State v. Gibson

• Decision Date: 27 May 1994
• Docket Number: No. 69980,69980
• Citation: 874 P.2d 1122,255 Kan. 474
• Parties: STATE of Kansas, Appellant, v. Brandon Kelly GIBSON, Appellee.
• Court: Kansas Supreme Court

Page 1122

874 P.2d 1122

255 Kan. 474

STATE of Kansas, Appellant, v. Brandon Kelly GIBSON, Appellee.

No. 69980.

Supreme Court of Kansas.

May 27, 1994.

Syllabus by the Court

1. Pursuant to K.S.A. 22-2514(3), the interception of the contents of a telephone communication occurs in the county where the pen register is installed and the communication is monitored and decoded; thus, under the facts of this case, the district judge in Riley County had jurisdiction to authorize the interception of the telephone communications via the installation of a pen register in Riley County, notwithstanding that the telephone and the "slave unit" were located in Pottawatomie County.

2. In an appeal by the State from an order by the district court dismissing the charges against the defendant, it is held that the district court erred in (1) suppressing the evidence obtained by wiretaps, and (2) dismissing four counts as offenses "other than those specified in the order authorizing the interception" of the telephone communications within the meaning of K.S.A.1993 Supp. 22-2515(f).

Gabrielle M. Thompson, Asst. County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with her on the brief for appellant.

Troy V. Huser, of Myers, Pottroff & Ball, Manhattan, argued the cause and was on the brief for appellee.

ALLEGRUCCI, Judge:

The State of Kansas appeals from the district court's order dismissing criminal charges against the defendant, Brandon Kelly Gibson. The district court suppressed all the evidence obtained by pen register and wiretaps and, upon the State's advising the court that there "was no evidence without this," dismissed the charges against the defendant. The State appeals pursuant to K.S.A.1993 Supp. 22-3602(b)(1).

The State raises two issues on appeal:

1. Does a district judge sitting in one judicial district have power to authorize installation and use of a pen register which has the "slave unit" physically located in another judicial district if the decoding and recording unit is located in the judge's judicial district and monitoring takes place there?

2. Did the district court err in dismissing the counts which allege that defendant used a telephone to arrange the sale or purchase of controlled substances in violation of K.S.A. 65-4141 on the ground that it is an offense "other than those specified in the order authorizing" the wiretap within the meaning of K.S.A.1993 Supp. 22-2515(f).

On May 7, 1992, the Honorable Paul E. Miller, Judge of the District Court of Riley County, upon the application of the Assistant Riley County Attorney, signed and filed an order authorizing the following in the criminal investigation of Gibson and John Delbane:

(a) The Riley County Police Department may install and use a pen register dial recorder to register numbers calling to and called from 913/539-1861, which corresponds to the physical address of 5617 Elbo Bluff Drive, Manhattan, Pottawatomie County;

(b) the authorization to trap and trace calls is limited to the geographic limits of the jurisdiction of Southwestern Bell Telephone in Riley County;

(c) the purpose of the investigation was to gather information about the unlawful sale of controlled substances; and

(d) the authorization would expire in 30 days.

On May 8, 1992, the order was amended so that the authorization to trap and trace calls was "limited to the geographic limits of the jurisdiction of Southwestern Bell Telephone in Riley and Pottawatomie Counties." The order states: "The trap/trace device is a two part component. One part will be in rural Pottawatomie County attached to Southwestern Bell's telephone services and the second part is located in Riley County. The monitoring is located in Manhattan, Riley County, Kansas."

On May 12, 1992, a similar authorization was obtained from Judge Miller for 913/539-6325, which also corresponds to the physical address of 5617 Elbo Bluff Drive. It, too authorizes a two-part trap/trace device to be located in Pottawatomie and Riley Counties with the monitoring in Riley County.

On July 7, 1992, a joint application for authorization to intercept and record wire communications was made to Justice Lockett by the county attorneys of Riley and Pottawatomie Counties. The State concedes that the application was "based in part on the information obtained from the pen registers." In addition to the two telephone lines at 5617 Elbo Bluff Drive to which the pen register devices had been connected, the order authorizing interception applies to 913/539-8845 located at 410 S. Juliette, Manhattan, Riley County. The application and the order of Justice Lockett specify that the type of telephone communications sought concern "sale and possession with intent to sell cocaine as defined by K.S.A. 65-4127a and sale and possession with intent to sell marijuana/tetrahydrocannabinol as defined by K.S.A. 65-4127b and the offenses of conspiracy to commit the above listed offenses as defined by K.S.A. 21-3302."

In August 1992, a 10-count complaint was filed in Riley County District Court against Gibson. Each odd-numbered count alleged conspiracy to sell controlled substances, contrary to K.S.A. 21-3302, K.S.A. 65-4127a, and K.S.A. 65-4127b. Each even-numbered count alleged use of a telephone to facilitate violation of K.S.A. 65-4127a and 65-4127b, contrary to K.S.A. 65-4141. Counts I and II are based on a telephone call made on a cordless telephone on June 11, 1992. The cordless telephone call was overheard and recorded by law enforcement officers without the use of equipment which requires judicial authorization. Counts III through X are based on telephone calls which were intercepted pursuant to Justice Lockett's order. An amended information filed in February 1993 retains this organization.

Gibson filed a motion to suppress the evidence obtained through the pen registers and the wiretaps. He contended that the pen registers were unlawful because component parts were located in Pottawatomie County and the authorizations had been issued by a Riley County district judge. He contended that the evidence obtained through the wiretaps should be suppressed as fruit of the poisonous tree. Gibson also sought dismissal of certain counts for failure to specify the offenses alleged in those counts in the application for a wiretap order. On May 25, 1993, Judge Miller ordered that all evidence relating to the charges be suppressed and that all charges filed against the defendant be dismissed. The dismissal was based on K.S.A. 22-2515(6) and State v. Kuchinsky, 3 Kan.App.2d 224, 592 P.2d 144 (1979). In the order dismissing Counts IV, VI, VIII, and X, the district court stated: "At no time were violations of K.S.A. 65-[4141] specifically brought to the attention of Justice Lockett, nor was any subsequent application made to him to include evidence of those crimes at any time, let alone as soon as practicable." In a separate journal entry, the district court explained its rationale for suppressing the evidence relating to all of the counts. The district court stated:

"1. A pen register device is comprised of two components. One component being the Bartec monitoring device and the second component being what is referred to by the manufacturer as a 'slave device.'

"2. The pen register system, as used in this case, required both components to intercept defendant's telephone transmissions.

"3. The monitoring device was located at Riley County Police Department, Special Investigations Unit Headquarters located in Riley County, Kansas.

"4. The slave device necessary for interception was located in Pottawatomie County.

"5. The Court finds for the reasons set forth in the record that it had no jurisdiction to issue an order authorizing a pen register unit, any part of which is outside of the court's judicial district.

"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that because the Court acted outside its jurisdiction in issuing its order authorizing pen register interception of defendant's telephone transmissions, that all evidence obtained by the State from and after the initial order authorizing pen register interception of defendant's phone transmissions dated May 7, 1992, should be and is hereby suppressed."

On June 18, 1993, the State filed a Notice of Appeal from the orders dismissing Counts IV, VI, VIII, and X and suppressing evidence obtained through use of a pen register and wiretap.

We first consider if Judge Miller had jurisdiction to authorize installation and use of a pen register. This question arises because Judge Miller of the Riley County District Court authorized installation and use of pen register devices on Pottawatomie County telephones. The bulk of the equipment and all monitoring were in Riley County, but one component of the equipment was located in Pottawatomie County. Riley County is in the Twenty-first Judicial District. K.S.A. 4-222. Pottawatomie County is in the Second Judicial District. K.S.A. 4-203.

Neither party contends that there are any Kansas cases which directly answer this question. Neither party suggests what the appellate standard of review ought to be. The State relies primarily on federal cases and cites two Kansas cases for the proposition that federal case law is treated as controlling where wiretap statutes are at issue. The only Kansas case discussed by the State is State v. Adams, 2 Kan.App.2d 135, 576 P.2d 242, rev. denied 225 Kan. 845 (1978), and the point of that discussion is to distinguish Adams from the present case.

In Adams, the district attorney of Johnson County applied to a judge of the Tenth Judicial District for authorization to intercept and record telephone communications on a telephone located in Wyandotte County in the Twenty-ninth Judicial District. "The telephone, the interception bridge, and the monitoring station" all were located in Wyandotte County. 2 Kan.App.2d 135, 576 P.2d 242. The Court of Appeals affirmed the district court's suppression of evidence...