State v. Nelson
| Decision Date | 06 December 1991 |
| Docket Number | No. 65870,65870 |
| Citation | 249 Kan. 689,822 P.2d 53 |
| Parties | STATE of Kansas, Appellant, v. Bryan E. NELSON, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Dismissal of a criminal complaint by a trial court upon the due process grounds of outrageous government conduct is subject to review de novo as a question of law.
2. A defense to a criminal charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise.
3. Governmental participation in a criminal enterprise reaches an intolerable degree when it constitutes a denial of fundamental fairness, shocking to the universal sense of justice, in violation of the due process clause of the 5th Amendment to the United States Constitution.
4. A person who is predisposed to commit a particular crime cannot claim entrapment. When that predisposition exists, the defense of denial of due process of law by abusive government conduct is also unavailable.
5. Four factors to be considered in determining whether government conduct is so outrageous as to violate due process are: (1) the type of activity under investigation; (2) whether the government instigated the criminal activity in question or whether it infiltrated a preexisting criminal enterprise; (3) whether the government directed or controlled the activities or merely acquiesced in their criminality; and (4) the causal relationship between the challenged government conduct and the commission of the acts for which defendant stands convicted.
6. The use of informants to infiltrate criminal enterprises is a recognized and permissible means of investigation by the government. This proposition remains true even though an informant or government agent engages in some criminal activity or supplies something of value to the criminal enterprise.
7. In an appeal by the State from an order dismissing the complaint because the government engaged in conduct that was egregious, outrageous, and "entrapment per se," the record is examined and it is held: The conduct of law enforcement officers stopped far short of constituting a denial of fundamental fairness, shocking to the universal sense of justice, in violation of the due process clause of the 5th Amendment; consequently, the defense of outrageous police conduct as a denial of due process was misapplied and the complaint should not have been dismissed.
Debra A. Vermillion, Asst. Dist. Atty., argued the cause, and Paul J. Morrison, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief, for appellant.
J. Lawrence Louk of Fox & Partee, Prairie Village, argued the cause and was on the brief, for appellee.
This first impression criminal case relates to a claim of outrageous police conduct rising to the level of a due process violation of the 5th Amendment. The trial court found the conduct of the police to be egregious, outrageous, and "entrapment per se" and dismissed the complaint.
The State appeals. Our jurisdiction is under K.S.A. 22-3602(b)(1).
Bryan E. Nelson was charged with possession of cocaine in violation of K.S.A.1990 Supp. 65-4127a.
In our view, the police conduct was not outrageous, egregious, or entrapment per se. The conduct stopped far short of constituting a denial of fundamental fairness, shocking to the universal sense of justice, in violation of the due process clause of the 5th Amendment. The defense of outrageous police conduct as a denial of due process was misapplied and the complaint should not have been dismissed. We reverse the trial court and remand the case for reinstatement of the complaint.
Nelson telephoned Penny J. Boettcher for the purpose of purchasing an "eight-ball" of cocaine. Nelson and Boettcher agreed to meet the next morning at a restaurant. Nelson gave Boettcher $300 at the scheduled meeting. The two decided to meet again that afternoon so that Boettcher could deliver the cocaine.
Prior to the initial meeting with Nelson, Boettcher met with Frank Ogeda and Doug Hanson. Ogeda was Boettcher's apartment manager. (Nelson claims Ogeda was a police informant.) Hanson was a prospective cocaine buyer and an undercover narcotics policeman. Ogeda introduced Hanson to Boettcher. Neither Boettcher nor Ogeda knew of Hanson's undercover activity.
Hanson asked Boettcher if she would sell him a quarter gram of cocaine. Boettcher agreed to provide Ogeda with the cocaine Hanson wanted.
Hanson learned that Boettcher was to meet an attorney (Nelson) that day to receive payment for cocaine. Hanson was present when Boettcher secured cocaine for Nelson and himself. The information on Boettcher's purchase and planned resale was passed on to other law enforcement officers.
Boettcher was running late for her afternoon meeting with Nelson. She telephoned Nelson's office and left a message that she would meet him at 7:00 p.m.
When Boettcher arrived to meet Nelson that evening, he was not there. Boettcher called a mutual acquaintance, Dave Slater, to find out how to contact Nelson. Slater did not answer his phone, and Boettcher left a message on his tape recorder. After the phone call, Boettcher returned to her apartment.
Boettcher was stopped by law enforcement officers on the way to her apartment. She was arrested for the sale of cocaine to Hanson. Police removed the cocaine she was to deliver to Nelson from her purse. After her arrest, Boettcher was transported to the Johnson County Sheriff's Department.
Boettcher told police that she was to meet Nelson at 7:00 p.m. that evening to deliver an "eight-ball" of cocaine. Boettcher said she was late and, apparently, Nelson had left before she arrived. Boettcher agreed to finish her prearranged cocaine delivery to Nelson.
Boettcher and Nelson decided, through Slater, to meet later the same evening at a restaurant.
Boettcher, in the company of Detective Michael Kill, drove to the restaurant. Kill placed the cocaine originally taken from Boettcher and a tape recorder in Boettcher's purse. Nelson was waiting for Boettcher at the restaurant parking lot when she and Kill arrived. Kill told Boettcher to do what she normally would do when she met with Nelson. Boettcher walked over to Nelson's car. Once she was in the car, Nelson held out his hand and Boettcher dropped the "eight-ball" of cocaine in his hand. After a short conversation, she walked back to her car.
Nelson attempted to leave the area but was stopped by police. The "eight-ball" of cocaine was found in an air vent next to the base of the console in his car. During the search, police also recovered two vials which contained powder residue. The powder residue in one vial was later determined to be cocaine. The other vial contained an insufficient amount of residue to test.
Boettcher first met with Nelson at Slater's house six months before Nelson's arrest. The purpose of the meeting was to discuss the sale of cocaine from Boettcher to Nelson.
Kill, who had Boettcher under surveillance, observed the initial noon meeting between Nelson and Boettcher the day of Nelson's arrest. When Boettcher told Hanson of her planned sale to Nelson, Hanson informed law enforcement officers. Law enforcement officers already had Nelson's name due to Kill's prior observance. Police surveillance of Nelson's residence commenced at 6:00 p.m. the night of his arrest.
The record reflects a dispute as to the packaging of the cocaine. Boettcher said that the cocaine had been repackaged when it was returned to her to deliver to Nelson. Kill stated that it was packaged exactly as he had received it from Boettcher.
The trial court ruled that the conduct by police in this case was so egregious and outrageous that it constituted a denial of fundamental fairness, shocking to the universal sense of justice, in violation of the due process clause of the 5th Amendment. See United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973).
Dismissal of a complaint based upon the due process grounds of outrageous government conduct is subject to review de novo as a question of law. United States v. Bogart, 783 F.2d 1428, 1431 (9th Cir.1986). See U.S. v. Simpson, 813 F.2d 1462, 1470-71 (9th Cir.), cert. denied 484 U.S. 898, 108 S.Ct. 233, 98 L.Ed.2d 192 (1987); Annot., 97 A.L.R.Fed. 273, 285.
The foundation for the defense of "outrageous conduct" is an offshoot of entrapment and is found in Justice Rehnquist's dictum in United States v. Russell: "[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." 411 U.S. at 431-32, 93 S.Ct. at 1642-43.
In Russell, an undercover narcotics agent went to Russell's home and met with Russell and two other people. The agent's role was to locate a laboratory where it was believed that methamphetamine was being manufactured. The agent told Russell that he represented an organization that was interested in controlling the manufacture and distribution of methamphetamine. The agent made an offer to supply Russell with a chemical necessary for the manufacture of methamphetamine in return for one-half of the drugs produced. This offer was made with the condition that the agent be shown where the laboratory was. During the agent's contact with Russell and the other two individuals involved, the agent found out that they had been manufacturing the drug. He was also given a quantity of methamphetamine by one of the individuals. Shortly after the initial meeting, the agent was allowed to view the laboratory. At the laboratory, the agent observed an empty box of the same chemical he had agreed to provide to Russell. 411 U.S. at 425, 93 S.Ct. at 1639.
The agent provided Russell the promised chemical necessary to manufacture the methamphetamine. As agreed, the agent was given one-half of the manufactured drugs. Russell kept the remainder....
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