State v. Vrabel
| Decision Date | 24 April 2015 |
| Docket Number | 108,930. |
| Citation | 301 Kan. 797,347 P.3d 201 |
| Parties | STATE of Kansas, Appellant, v. Carl VRABEL, Appellee. |
| Court | Kansas Supreme Court |
Shawn E. Minihan, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellant.
Jonathan A. Bortnick, of Bortnick, McKeon, Sakoulas & Schanker, P.C., of Kansas City, Missouri, argued the cause and was on the brief for appellee.
Daniel E. Monnat, of Monnat & Spurrier, Chtd., of Wichita, was on the brief for amicus curiae Kansas Association of Criminal Defense Lawyers.
Law enforcement officers employed by the City of Prairie Village set up a controlled drug buy from Carl Vrabel to occur in the neighboring Johnson County city of Leawood. As a result of the controlled buy, the district attorney filed felony drug charges against Vrabel. But the district court suppressed evidence of the drugs and the conversation between the confidential informant (CI) and Vrabel during the controlled buy because the Prairie Village officers had obtained that evidence while exercising their police powers outside of their jurisdiction as authorized under K.S.A. 2014 Supp. 22–2401a(2). The Court of Appeals reversed, finding an implied agreement between the two cities that constituted a request for assistance by Leawood to Prairie Village. Vrabel seeks review of that reversal. Also, the State seeks our review of K.S.A. 2014 Supp. 22–2401a's applicability to the facts of this case and of the question of whether excluding evidence was an appropriate remedy for a jurisdictional violation under K.S.A. 2014 Supp. 22–2401a. We affirm the result reached by the Court of Appeals; we reverse the district court and remand for further proceedings.
On July 26, 2011, a CI advised Corporal Ivan Washington of the Prairie Village Police Department (PVPD) that Carl Vrabel had hashish—a form of marijuana—for sale. At Washington's request, the CI arranged to buy drugs from Vrabel the following day at a location specified by Washington, which was a grocery store parking lot at 95th and Mission in Leawood. Washington would explain that PVPD frequently used the Leawood location for drug buys and that it was located on a main thoroughfare to Missouri, where Vrabel lived.
The next day, prior to the buy, the CI met with Washington and other officers in Prairie Village. The officers placed a recording device on the CI and provided her with money to purchase drugs from Vrabel. The PVPD officers then followed the CI to the controlled buy location in Leawood. Shortly thereafter, Vrabel arrived, parked his vehicle, and entered the CI's vehicle. The CI gave Vrabel money in exchange for hashish. Once the transaction concluded, Vrabel returned to his vehicle and left the area. The PVPD officers did not follow Vrabel or attempt to contact him on the day of the controlled buy. When the CI left the parking lot, she met the PVPD officers and gave them the purchased hashish.
In October 2011, the PVPD contacted Vrabel in Missouri. At the PVPD's request, Vrabel voluntarily followed the officers back to Prairie Village. After learning that Vrabel “didn't want to cooperate,” the PVPD sent the matter to the district attorney's office. On March 9, 2012, the State charged Vrabel with distribution of marijuana and use of a communication facility to sell a controlled substance. On March 20, 2012, nearly 8 months after the drug buy, the Johnson County District Court issued a warrant for Vrabel's arrest. Vrabel voluntarily surrendered on March 26, 2012.
Vrabel filed a motion to suppress the hashish, the audio recording of the controlled buy, and surveillance photos of the scene, arguing that the PVPD “had no jurisdiction to set up and investigate a crime in the City of Leawood, Kansas.” At evidentiary hearings on the motion to suppress, the State put on testimonial evidence from Washington and Captain Kevin Cauley of the Leawood Police Department (LPD) to support its position that the PVPD had jurisdiction to conduct the controlled buy in Leawood. Washington explained that his normal protocol when the PVPD conducts an investigation in Leawood is to contact Cauley and notify him of the investigation, allowing Cauley to determine if the LPD wants to assist.
On this particular occasion, Washington explained that LPD officers were not present at the buy location and did not provide assistance to Washington. Rather, Washington called Cauley and notified him that the PVPD was coming to Leawood for a narcotics investigation. Washington called Cauley again when the PVPD officers were on their way to Leawood to conduct the investigation. After the buy was completed, Washington attempted to call Cauley twice to inform him that the buy was successful and the officers were leaving.
Cauley confirmed that his phone records reflected three phone calls from Washington on the day of the controlled buy but explained that he did not remember the content of the conversations. He explained that he believed the LPD stayed out of the area but was not 100 percent certain.
The district court granted Vrabel's motion to suppress because the court found that the PVPD “obtained the challenged evidence through an investigation and controlled drug transaction that occurred in Leawood, Kansas, [and,] therefore, they exercised their powers as law enforcement officers outside of their jurisdiction pursuant to K.S.A. [2014 Supp.] 22–2401a(2).”
The State filed an interlocutory appeal of the district court's decision to suppress evidence to the Court of Appeals. The Court of Appeals majority found that the PVPD had jurisdiction in Leawood based on a provision in K.S.A. 2014 Supp. 22–2401a(2)(b) allowing municipal officers to exceed their jurisdictional boundaries when another jurisdiction requests assistance. State v. Vrabel, 49 Kan.App.2d 61, 68–69, 305 P.3d 35 (2013). One concurring member of the panel disagreed with the majority's holding that the statutory request for assistance provision applied to this case but opined that suppression of the evidence was not the appropriate remedy for the statutory violation “because Vrabel's constitutional rights were not violated by the police officers' conduct.” 49 Kan.App.2d at 69, 305 P.3d 35 (Malone, C.J., concurring). Vrabel timely petitioned this court for review. This court also granted the State's cross-petition for review and the Kansas Association of Criminal Defense Lawyers' motion to file an amicus brief.
We begin with an analysis of K.S.A. 2014 Supp. 22–2401a's jurisdictional limitations and specific grants of extraterritorial authority, to ultimately determine that PVPD exceeded its statutory jurisdictional authority when it arranged for a controlled drug buy in Leawood. But then we determine that, under the facts of this case, suppression of the drugs, audio recording, and surveillance photographs was not the appropriate remedy for PVPD's statutory violation.
K.S.A. 2014 Supp. 22–2401a contains the provisions which govern the territory in which a city-employed law enforcement officer may exercise his or her police powers. The relevant portions of that statute state:
The interpretation, construction, and application of a statute are questions of law subject to unlimited review. See State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
No one disputes that the PVPD officers involved in the controlled buy were municipally employed law enforcement officers within the meaning of K.S.A. 2014 Supp. 22–2401a(2). See also K.S.A. 22–2202(13) (). But the plain statutory language only constrains the exercise of the officers' “powers as law enforcement officers.” K.S.A. 2014 Supp. 22–2401a(2). And in State v. Miller, 257 Kan. 844, Syl. ¶ 1, 896 P.2d 1069 (1995), the court opined that “[a]n officer who makes an arrest without a warrant outside the territorial limits of his or her jurisdiction must be treated as a private person.” Miller opined that a law enforcement officer who is acting outside the scope of his or her powers under K.S.A. 2014 Supp. 22–2401a does not meet K.S.A. 22–2202(13)'s definition of a law enforcement officer, and, therefore, the officer is eligible to make a citizen's arrest...
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