State v. Miller

• Decision Date: 02 June 1995
• Docket Number: No. 71687,71687
• Citation: 896 P.2d 1069,257 Kan. 844
• Parties: STATE of Kansas, Appellant, v. George D. MILLER, Appellee.
• Court: Kansas Supreme Court

Page 1069

896 P.2d 1069

257 Kan. 844

STATE of Kansas, Appellant, v. George D. MILLER, Appellee.

No. 71687.

Supreme Court of Kansas.

June 2, 1995.

Syllabus by the Court

1. An officer who makes an arrest without a warrant outside the territorial limits of his or her jurisdiction must be treated as a private person. The officer's actions will be considered lawful if the circumstances attending would authorize a private person to make the arrest.

2. A private citizen may arrest another person when a felony has been or is being committed and the person making the arrest has probable cause to believe that the arrested person is guilty thereof or when any crime has been or is being committed by the arrested person in the view of the person making the arrest.

3. Jurisdiction of a court to try a person accused of a crime is not divested by the fact he or she may have been unlawfully arrested. An unlawful arrest, without more, does not give the accused immunity from prosecution or provide a defense to a valid conviction.

4. The usual sanction for an illegal arrest is not the dismissal of the charges against the accused, but a prohibition against the introduction into evidence of statements or admissions made by the defendant while in custody.

5. If the accused is in the jurisdiction of the court, the court has jurisdiction to try the accused regardless of how the accused was brought into the jurisdiction. There are exceptions, such as when an accused has been tortured by law enforcement personnel. An unlawful arrest may affect the admissibility of evidence.

6. To the extent State v. Hennessee, 232 Kan. 807, 658 P.2d 1034 (1983), is inconsistent with any part of this opinion, it is overruled.

Edwin R. Smith, County Atty., argued the cause, and Carla J. Stovall, Atty. Gen., was with him on the briefs for the appellant.

Jean K. Gilles Phillips, Asst. Appellate Defender, argued the cause, and Joycelyn Lucas, Student Intern, and Jessica R. Kunen, Chief Appellate Defender, were with her on the brief for the appellee.

ABBOTT, Justice:

This is a direct appeal by the State pursuant to K.S.A.1993 Supp. 22-3602(b)(1) from the dismissal of a complaint charging the defendant, George D. Miller, with burglary, contrary to K.S.A.1993 Supp. 21-3715, and theft, contrary to K.S.A.1993 Supp. 21-3701.

The dispositive issues are the lack of a record and the effect of a law enforcement officer making an arrest outside the officer's jurisdiction.

The defendant was charged with one count of theft and one count of burglary arising from an incident at the John Knight residence in Osage City, Osage County, Kansas.

The defendant filed a motion to dismiss the charges, arguing that his arrest, which was made in the city of Lyndon, in Osage County, was unlawful because it was made by Osage City police officers outside their jurisdiction. The State filed a brief in opposition, arguing that the arrest was a valid citizen's arrest and that summary dismissal because of a technical defect was improper. After the presentation of evidence the magistrate judge granted the defendant's motion, and the complaint was dismissed. The magistrate judge relied on State v. Hennessee, 232 Kan. 807, 658 P.2d 1034 (1983). Both counsel believed at the time that a record was being made when evidence was presented to the magistrate judge.

The State appealed to the district court. Both parties then were informed no record had been made of the earlier proceedings. Both parties filed briefs giving somewhat different versions of what occurred and what the testimony was. The district judge, by letter, informed the parties that unless he heard from them he would decide the case on the motions and briefs submitted.

The parties then filed a stipulated statement of facts which the district judge considered in addition to the defendant's written motion to dismiss and briefs filed by the State.

The stipulated facts, in pertinent part, are as follows:

"On October 31, 1993, Osage City Police Officer Newman was dispatched to the John Knight residence located at 232 N. 12th Street in Osage City, Kansas on a report by Teresa Knight of an alleged burglary and theft. Office[r] Newman completed a 12 page report on the alleged incident on October 31, 1993.

"On December 26, 1993, Officer Newman received information from Officer Mitalski of the Osage City Police Department that the defendant herein may have been involved in the October 1993 alleged burglary and theft at the John Knight residence. Officer Mitalski received this information on the evening of December 26, 1993 from juveniles he had been interrogating in regard to an unrelated burglary and theft in Osage City.

"On December 27, 1993, shortly after midnight, based on the juveniles' 'tip', Officer Newman and Osage City Police Chief Mathey decided to go to the defendant's residence located in Lyndon, Kansas.

"The officer arrived at the defendant's residence at 12:15 a.m. and requested the defendant to come with them to the Osage County Sheriff's Office 'to answer some questions'.

"According to Officer Mitalski's police report, which was introduced as an exhibit at the January 12, 1994 hearing on defendant's Motion to Dismiss, the defendant was already placed under arrest when he was Mirandized and asked questions regarding the burglary and theft at 12:30 a.m. in the Sheriff's Office.

"Officer Newman disputes Officer Mitalski's report and instead insists that only at the conclusion of the defendant's questioning in the Osage County Sheriff's Office did Officer Mitalski, who was not even present at the defendant's residence or during the questioning of the defendant, inform the defendant that he was placing him under arrest.

"At the January 12, 1994 hearing on the defendant's Motion to Dismiss, Officer Newman testified that when he left his jurisdiction to go to the City of Lyndon to question the defendant at his residence, he felt he had enough information to obtain an arrest warrant but he instead, knowing he did not have proper jurisdiction, decided to go to Lyndon under the guise of a 'police investigation' so he could avoid judicial arrest warrant channels.

....

"The State stipulates and agrees that on December 27, 1993, the Osage City Police Officers were without jurisdictional police power under K.S.A. 22-2401a or its 'fresh pursuit' or 'request for assistance' exceptions...."

The parties agreed that the defendant relied on State v. Hennessee, 232 Kan. 807, 658 P.2d 1034 as controlling authority, and the State contended the remedy for a jurisdictional violation is suppression of evidence, not dismissal of the case, as was affirmed in Hennessee. The State also contended that the Osage City police officers made a valid citizen's arrest pursuant to K.S.A. 22-2403.

The district judge denied the State's appeal in a one-paragraph order, which states:

"Now on this 4th day of April, 1994, plaintiff, State of Kansas' appeal is denied. The Court incorporates by reference the defendant's Memorandum of Law in his Motion to Dismiss as the Court's findings of fact and conclusions of law."

The stipulation of facts filed by the parties does not significantly differ from the facts set forth in the defendant's motion to dismiss.

The memorandum of law sets forth K.S.A. 22-2401a, which provides in pertinent part:

"(2) Law enforcement officers employed by any city may exercise their powers as law enforcement officers:

(a) Anywhere within the city limits of the city employing them and outside of such city when on property owned or under the control of such city; and

(b) in any other place when a request for assistance has been made by law enforcement officers from that place or when in fresh pursuit of a person."

The district judge then adopted the defendant's argument as follows:

"The Kansas Supreme Court case of State v. Hennessee, 232 Kan. 807 (1983) is factually similar to the case at bar and should be dispositive of the issues herein.

"Although Hennessee involved a county deputy's authority to exercise his police powers outside the jurisdiction of his home county, the language of the two applicable provisions of the same statute (K.S.A. 22-2401a[a] in Hennessee and K.S.A. 22-2401a[b] in the case at bar) are identical.

"In Hennessee, the Pratt County Sheriff traveled to the defendant's known residence in Stafford County to arrest the defendant with a warrant he had secured that same day. The Pratt County Sheriff was accompanied to the defendant's residence by the Stafford County Sheriff and the K.B.I. whom had jurisdiction in Stafford County. The Supreme Court upheld the trial court's dismissal of the case pursuant to K.S.A. 22-2401a, despite the fact that the sheriff was accompanied by two officers having jurisdiction in Stafford County.

"The Supreme Court reasoned that the Pratt County Sheriff acted beyond the scope of his statutory police power in arresting the defendant and therefore, the case was properly dismissed by the trial court. Hennessee, 232 Kan. at 807, 809 .

"Clearly, the Osage City Officers acted outside the scope of their statutory authority and jurisdiction. Thus, the charges filed against the accused must be dismissed as a matter of law."

The first problem here is the lack of a record. The parties were under the impression when the case was briefed and argued in this court that there was no record of the evidence presented to the magistrate judge. After oral argument in this court, the parties learned that a record had been made of the proceedings before the magistrate judge and was available to be transcribed. The State requested permission to have the transcript prepared and filed with this court.

This court has consistently held that new evidence cannot be presented for the first time on appeal. See Volt Delta Resources, Inc. v. Devine, 241 Kan. 775, 782, 740 P.2d 1089 (1987). The record of proceedings before the magistrate judge was never presented to the district judge...