State v. Lekas

• Citation: 442 P.2d 11,201 Kan. 579
• Decision Date: 08 June 1968
• Docket Number: No. 45141,45141
• Parties: STATE of Kansas, Appellee, v. George LEKAS, Appellant.
• Court: United States State Supreme Court of Kansas

Page 11

442 P.2d 11

201 Kan. 579

STATE of Kansas, Appellee, v. George LEKAS, Appellant.

No. 45141.

Supreme Court of Kansas.

June 8, 1968.

Syllabus by the Court

1. The record in a criminal action, where the defendant was convicted of having possession and control of a pistol after having previously been convicted of one of the offenses enumerated in K.S.A 21-2611, is reviewed on appeal and it is held: (a) That an incriminating statement made by the defendant to a parole officer, without first having been advised of his constitutional rights, was improperly received in evidence; (b) that a subsequent incriminating statement made by the defendant to the sheriff and undersheriff, after having been fully advised of his constitutional rights, was the tainted fruit of the prior illegal admission and was improperly received in evidence; and (c) that a pistol received in evidence was the 'fruit of the poisonous tree' and improperly received in evidence.

2. Parole officers appointed by the Kansas State Board of Probation and Parole pursuant to K.S.A. 62-2235 are law enforcement officers in the state of Kansas and have the same powers as other peace officers in the state.

3. When parole officers in the state of Kansas are investigating the commission of a fresh or new felony by a parolee, they are obligated to advise the parolee of his constitutional rights in accordance with the Iranda rule, if incriminating statements they elicit from the parolee are to be admissible in evidence on the prosecution of the new offense.

4. A confession is inadmissible in evidence where it is the tainted fruit of a prior illegally obtained confession.

5. Where a confession is illegally obtained in violation of the mandate of Miranda and inadmissible in evidence against the accused, subsequent confessions of the accused, however or by whom abstracted, are likewise inadmissible unless the state convincingly demonstrates the absence of connection with the prior illegal confession.

6. Evidence acquired as the result of a tainted confession must be suppressed. This is frequently spoken of as the 'fruit of the poisonous tree' doctrine.

Donn J. Everett, Manhattan, argued the cause and was on the brief for appellant.

John C. Fay, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., was with him on the brief for appellee.

SCHROEDER, Justice:

This is a criminal action in which George Lekas was convicted of having a .22 caliber revolver in his possession and under his control, contrary to K.S.A. 21-2611, 'after having been convicted of burglary in the second degree * * * and robbery in the first degree.' He was sentenced under the habitual criminal act (K.S.A. 21-107a) on the basis of one prior felony conviction, the prior felony asserted being the robbery conviction alleged in the information.

Appeal has been duly perfected to this court.

The questions on appeal stem from whether the appellant was afforded proper constitutional safeguards in procuring evidence presented at the trial and upon which his conviction was based.

The appellant has attempted to enlarge the scope of this appeal by amending his specifications of error to challenge whether he was properly sentenced under the habitual criminal act, the prior felony asserted being one specifically set forth in the information. This motion has been denied on the ground that the point raised is immaterial to a decision in the case. (But see, State v. Ware, Kan., 442 P.2d 9 this day decided.)

The facts material to a determination of this appeal are uncontroverted.

On the 27th of March, 1967, George Lekas (defendant-appellant) was on parole after serving several years at the Kansas State Penitertiary on a charge of first degree robbery. He was under the direct supervision of the local representative of the Kansas State Board of Probation and Parole in Riley County, Kansas. His parole officer, Earl Dreher, had received information that the appellant was planning to leave town-that he had drawn his money out of the bank and had quit his job or had been fired. Accordingly, the parole officer on the 27th day of March, 1967, made arrangements for a police officer to meet him at the home of the appellant at 10:30 a.m.

Upon the arrival of the uniformed police officer in his police automobile at the appellant's residence, the parole officer and the police officer knocked at the door of the appellant's home. The appellant's mother came to the door and let the officers in. The appellant had been lying on his bed and had just gotten to his feet when the officers entered the home. The parole officer went to the appellant's bedroom and there observed some bullets lying on the dresser. Whereupon, he asked the appellant if he had a gun. The appellant responded that he did not have one.

The police officer and the parole officer then took the appellant to the police car and drove him to the Riley County courthouse where the appellant was questioned by the parole officer in his office. During this interrogation the police officer was not present. In the course of the interrogation the appellant admitted to the parole officer that he did have a pistol in his possession.

The parole officer testified that he did not at any time give the appellant the Miranda warning.

While the appellant was in the office of the parole officer came in the courthouse, the undersheriff came in to question the appellant on a forgery charge. Prior to such questioning, however, the undersheriff did give the appellant the Miranda warning. No inquiry was made of the appellant at that time concerning the appellant's possession of a pistol.

The undersheriff then talked to the parole officer and learned of the appellant's admission concerning the pistol. He thereupon procured a search warrant in the county court to look for the weapon. The only source of information upon which the undersheriff signed the affidavit to procure the search warrant came from the parole officer.

The sheriff of Riley County then joined the undersheriff, and with the appellant in their custody they drove to the home of the appellant. Enroute they presented the search warrant to the appellant and advised him of his constitutional rights as required by the Miranda decision. The appellant was informed they were advising him of his rights relative to an inquiry concerning the possibility of his possession of a pistol. Upon interrogation by the sheriff the appellant then admitted that he had a pistol in his possession.

Upon arriving at the appellant's home it was learned the appellant's mother was visiting at the home of the appellant's grandmother. The officers then proceeded to the grandmother's home with the appellant, where the sheriff informed the appellant's mother they had a search warrant; that they had information the appellant had a weapon; and that they had come to paick up the weapon.

While in the custody of the officers at the grandmother's residence, the appellant said, "mom, it's O.K., I have already told them I have one, I have a gun."

The appellant's mother told the officers there was no sense in going to the appellant's room to look for the pistol because she said, "I have it here in my purse and I removed it from under his pillow."

In the trial of the case the foregoing admissions made by the appellant concerning his possession of the pistol were all received in evidence over the appellant's objection. The pistol was likewise received in evidence over the appellant's objection. At all points throughout the trial of the case and in post-trial motions counsel for the appellant challenged the admissibility of such evidence, thereby squarely presenting the questions hereinafter discussed.

The appellant first contends it was error to admit into evidence his statement to the parole officer that he did have possession and control of the pistol, the statement having been made to the parole officer without any prior warning as to his constitutional rights.

It should be emphasized the issue here presented is not whether the appellant's parole can be revoked after the appellant confesses to the parole officer concerning a new crime, without first having been informed of his constitutional rights. (See, K.S.A. 62-2237.) Here the incriminating statements admitted in evidence were used to convict the appellant for a new offense. This is the issue confronting the court.

Under the foregoing circumstances the question, simply stated, is whether the requirements of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, apply to interrogation made by an officer of the Kansas State Board of Probation and Parole.

K.S.A. 62-2235 sets forth the powers and authority of the Kansas State Board of Probation and Parole. In pertinent part it provides:

'* * * and all persons employed under the provisions of this act as probation or parole officers shall have and exercise police powers to the same extent as other peace officers and such powers may be exercised by them anywhere within the state: * * *.'

In the instant case the appellant was confronted by his parole officer and a police officer of the city of Manhattan, Kansas. He was taken into custody and transported to the county courthouse in a police car where the interrogation commenced. This meets the first test of Miranda as to whether the appellant was in custody. In Miranda v. State of Arizona, supra, the court stated:

'Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom...