State v. Hershberger

• Decision Date: 05 May 2000
• Docket Number: No. 82,400.,82,400.
• Citation: 5 P.3d 1004,27 Kan. App.2d 485
• Parties: STATE OF KANSAS, Appellee, v. BRAD HERSHBERGER, Appellant.
• Court: Kansas Court of Appeals

27 Kan. App.2d 485

5 P.3d 1004

STATE OF KANSAS, Appellee, v. BRAD HERSHBERGER, Appellant.

No. 82,400.

Court of Appeals of Kansas.

Opinion filed May 5, 2000.

Brad Hershberger, appellant pro se.

Richard C. King, assistant county attorney, and Carla J. Stovall, attorney general, for appellee.

Before KNUDSON, P.J., GREEN, J., and BUCHELE, S.J.

KNUDSON, J.:

Brad Hershberger raises numerous issues on appeal following his conviction for driving while license suspended, contrary to K.S.A. 1997 Supp. 8-262, including: (a) whether failure to conduct a probable cause hearing within 48 hours after arrest requires dismissal with prejudice, and (b) whether state law requiring Hershberger to have a valid driver's license violates his constitutional right to travel.

We affirm. An illegal detention should not void a subsequent conviction absent a showing of prejudice to the defendant's substantive rights, the constitutional right to travel is not impaired by the State's licensing of motorists, and none of the other issues raised by Hershberger have legal merit.

On Wednesday, January 7, 1998, Hershberger had appeared in municipal court in Augusta and was convicted of driving while suspended and attempting to elude a police officer. Later that same day, the officer who testified at the municipal court trial saw Hershberger driving a vehicle in Augusta. Knowing Hershberger's license was suspended, the officer contacted the police department and pointed out Hershberger's vehicle to another officer. This other officer stopped the car. After Hershberger was arrested, he refused to reveal his name.

On the afternoon of his arrest, a video first appearance hearing was held. Hershberger refused to tell the judge his name, claiming it would be incriminating. The prosecutor did not have the police reports, so the matter was continued until Friday at 1:30 p.m. The judge ordered Hershberger to submit to fingerprinting and other booking procedures.

At the hearing 2 days later, charges still had not been filed; the prosecutor had not received Hershberger's driving record from the Kansas Department of Revenue (KDR). The State agreed Hershberger should be released and that a summons or warrant would be issued when the State determined and filed the proper charge. The court agreed but told Hershberger he would not be released from jail until he complied with a prior order to complete the booking procedures. Hershberger apparently continued to refuse to comply and remained in jail until January 13, 1998, at which time the jail officials were ordered to release him.

On January 23, 1998, an information was filed charging Hershberger with felony driving while suspended in violation of K.S.A. 1997 Supp. 8-262(a)(1)(C). The State also filed an affidavit setting forth the factual basis for the charge. The State issued a summons and alias summons to Hershberger ordering him to appear on February 23, 1998, for a hearing. Hershberger received the latter summons and returned it to the district court by letter claiming he had received it "inadvertently." He later argued he had not accepted service of process, and, therefore, the court lacked jurisdiction.

Hershberger did not appear at the February 23 hearing, and the court issued a warrant for his arrest. On March 12, 1998, Hershberger was released from the Sedgwick County jail and arrested on the Butler County bench warrant. He had his first appearance in Butler County the next day, at which time a preliminary hearing was set for April. Shortly thereafter, Hershberger filed a petition for habeas corpus with the Supreme Court contending his detention was unlawful. The petition was summarily denied. Hershberger v. Butler County, Case No. 80,841, decided April 28, 1998.

Hershberger appeared pro se at a preliminary hearing on April 24, 1998. Various law enforcement officers testified. After Hershberger continued to deny his identity, the State called Lloyd Hershberger, the defendant's father, who identified the defendant as his son, Brad. During the hearing, Hershberger challenged the court's bench warrant and asserted numerous other legal issues included in his later motions.

Certified copies of the KDR's records were admitted at the preliminary hearing. The KDR mailed a notice of suspension to Hershberger at a Wichita post office box on July 8, 1996, suspending his license effective in 30 days. This notice also indicated Hershberger had a prior conviction for driving while suspended. Prior to his arrest in this case, Hershberger had been cited for driving with a suspended license at least twice. Hershberger was bound over for trial and arraigned. After Hershberger refused to respond appropriately, the court entered a not guilty plea on his behalf and scheduled the matter for a jury trial. Hershberger remained in custody until April 25, 1998, at which time bond was posted.

Sometime after Hershberger was bound over to stand trial, an attorney entered an appearance on his behalf. Counsel moved to dismiss the charge, contending the KDR's notice of the suspension was not sent to Hershberger's last known address. After a hearing, this motion was denied. Hershberger's motion challenging his detention also was argued, but the matter was taken under advisement so the court could obtain transcripts from the prior hearings. Subsequently, the trial court found that the State's detention of Hershberger was not unlawful.

The case proceeded to bench trial on stipulated facts. Hershberger was found guilty of misdemeanor driving while suspended, sentenced to 1 year's confinement, and then placed on probation for 1 year. Hershberger filed a timely notice of appeal.

Hershberger filed two motions to arrest judgment, with one of the grounds being newly discovered evidence. Hershberger presented the court with a letter from KDR indicating he had a 90day suspension remaining for driving while suspended. Hershberger asked the court to arrest the judgment based on the theory he was eligible to reinstate his license. Hershberger's motions were denied, and he has not filed a notice of appeal from any of the trial court's post-trial rulings.

Unlawful Detention Claims

Hershberger claims the trial court erred in not dismissing the charges against him because he was unlawfully detained by Butler County authorities. Hershberger argues the State failed to hold a probable cause hearing within 48 hours as required by County of Riverside v. McLaughlin, 500 U.S. 44, 47, 114 L. Ed.2d 49, 111 S. Ct. 1661 (1991), and, consequently, the charges should have been dismissed.

McLaughlin was a class action civil suit filed against Riverside County, challenging its practice of holding combined probable cause hearings and arraignments for persons arrested without a warrant. Under the County's procedures, arraignments were to be held within 2 days of arrest; this 2-day requirement, however, excluded weekends and holidays. The plaintiff sought declaratory and injunctive relief requiring the County to provide quicker probable cause determinations.

In McLaughlin, the issue was whether the County's procedures comported with the Fourth Amendment's requirement for a "prompt" judicial determination of probable cause following a warrantless arrest as mandated by Gerstein v. Pugh, 420 U.S. 103, 43 L. Ed.2d 54, 95 S. Ct. 854 (1975). 500 U.S. at 47. In balancing the interests of the parties, the Court recognized that some delays were inevitable. 500 U.S. at 55. To provide more certainty in defining "prompt," however, the Court created a bright line rule that probable cause determinations had to occur within 48 hours of arrest in order to comply with Gerstein. Once the detention exceeded 48 hours, the government was required to show a bona fide emergency or justification for continuing the detention; the mere fact that a weekend intervened was not sufficient. 500 U.S. at 56-57.

Hershberger first argues a McLaughlin violation occurred between January 7 and January 13, 1998. We will assume for purposes of analysis that he is correct.

In Powell v. Nevada, 511 U.S. 79, 84-85, 128 L. Ed.2d 1, 114 S. Ct. 1280 (1994), the Supreme Court held that the McLaughlin standard applied and the defendant's detention of 4 days prior to a hearing was presumptively unreasonable. In dicta, however, the Supreme Court held that even though the detention was unreasonable, this did not require that the defendant be released; nor was the defendant necessarily entitled to other relief such as suppression of evidence. Instead, the Court remanded the case to the Nevada Supreme Court to consider the appropriate remedy.

On remand, the Nevada Supreme Court found that the unreasonable delay was not grounds for voiding the defendant's conviction. Powell v. State, 113 Nev. 41, 44, 930 P.2d 1123,cert. denied 522 U.S. 954 (1997), citing Gerstein v. Pugh, 420 U.S. at 119 (noting the rule that an illegal arrest or detention does not void a subsequent conviction). The court also found the Fourth Amendment's exclusionary rule would not automatically apply to otherwise voluntary statements made during a prolonged detention. 113 Nev. at 45-46. The Nevada court concluded that even if the trial court should have suppressed Powell's statements made after the detention became unreasonable, the failure to do so was harmless error in light of pre-arrest statements Powell had made to police. 113 Nev. at 46-47.

Other courts addressing the appropriate remedies for McLaughlin violations also tend to focus on suppressing evidence obtained during the prolonged detention rather than dismissing the charges as a sanction. See, e.g., U.S. v. Fullerton, 187 F.3d 587, 590 (6th Cir. 1999), cert. denied 120 S. Ct. 961 (2000) (refusing to invalidate arrest and evidence seized at time of arrest because of subsequent McLaughlin violation). The Wisconsin Court of Appeals has held that reversal of a conviction and the granting of a new trial is not the appropriate remedy for a McLaughlin violation...