State v. Vrabel, 108,930.

• Decision Date: 27 December 2013
• Docket Number: No. 108,930.,108,930.
• Citation: 49 Kan.App.2d 61,305 P.3d 35
• Parties: STATE of Kansas, Appellant, v. Carl VRABEL, Appellee.
• Court: Kansas Court of Appeals

49 Kan.App.2d 61

305 P.3d 35

STATE of Kansas, Appellant,

v.Carl VRABEL, Appellee.

No. 108,930.

Court of Appeals of Kansas.

June 14, 2013.

Review Granted Dec. 27, 2013.

Syllabus by the Court

1. An appellate court uses a bifurcated standard when reviewing a district court's decision on a motion to suppress. The factual underpinnings of the suppression decision are viewed under a substantial competent evidence standard, and the ultimate legal conclusion drawn from those facts is reviewed de novo.

2. Interpretation of a statute is a question of law over which an appellate court exercises unlimited review.

3. Under K.S.A. 2012 Supp. 22–2401a(2), law enforcement officers employed by any city may exercise their powers as law enforcement officers anywhere within the city limits of the city employing them and 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.

4. Under the facts of this case, Prairie Village, Kansas, police officers were authorized to conduct a controlled drug buy in Leawood, Kansas, under the “request for assistance” exception in K.S.A. 2012 Supp. 22–2401a(2)(b).

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant.

Jonathan A. Bortnick, of Bortnick, McKeon, Sakoulas & Schanker, P.C., of Kansas City, Missouri, for appellee.

Before MALONE, C.J., PIERRON, J., and JAMES L. BURGESS, District Judge Retired, assigned.

PIERRON, J.

The State appeals from the district court's suppression of the evidence obtained through a controlled drug buy conducted by police outside their jurisdiction.

On July 26, 2011, a confidential informant (CI) advised Corporal Ivan Washington of the Prairie Village Police Department (PVPD) that Carl Vrabel was selling hash. Cpl. Washington had the CI arrange to purchasehash from Vrabel at a grocery store in Leawood, Kansas. Cpl. Washington did not know where Vrabel was when he spoke to the CI on the phone. The grocery store was selected because it was located on a main road into Missouri, where Vrabel lived, and was one of law enforcement's traditional buy locations.

At around 10:26 a.m. the next day, Cpl. Washington called Lieutenant Kevin Cauley, the operations commander of the Leawood Police Department (LPD), to notify him of the drug investigation. LPD had participated in previous controlled buys.

At an undisclosed location in Prairie Village, the PVPD gave the CI $120 of marked buy money and wired the CI with audio equipment. Then they proceeded to the buy location. At 1:20 p.m., Cpl. Washington called Lt. Cauley again to notify him they were en route to Leawood.

At around 1:24 p.m., the PVPD surveilled the controlled buy. Cpl. Washington testified LPD officers were not present and provided no assistance, whereas Lt. Cauley testified that he was not sure whether LPD provided any assistance but thought they stayed out of the area. After the CI parked in a stall at the grocery store, a vehicle pulled into a neighboring stall. Vrabel exited the vehicle and entered the CI's vehicle. PVPD officers listened as the CI paid for and Vrabel furnished the hash. Vrabel exited the CI's vehicle, entered his own vehicle, and drove away.

The PVPD did not contact Vrabel that day. But they did meet the CI at an undisclosed location to retrieve the hash and wire. At 1:28 p.m., Cpl. Washington called Lt. Cauley a third time to notify him that the controlled buy was successful, no one was hurt, and PVPD was leaving his city.

The State charged Vrabel with distribution of marijuana and use of a communication facility to sell a controlled substance. Before trial, Vrabel filed a motion to suppress, arguing that PVPD unlawfully exercised its jurisdiction by “set[ting] up and investigat[ing] a crime” in Leawood. In granting the motion, the district court made the following finding:

“The Prairie Village officers obtained the challenged evidence through an investigation and controlled drug transaction that occurred in Leawood, Kansas, therefore, they exercised their powers as law enforcement officers outside of their jurisdiction pursuant to K.S.A. 22–2401a(2). There was no request for assistance from Leawood officers, and the fresh pursuit exception does not apply. Further, subsection (7) of K.S.A. 22–2401a and K.S.A. 22–2403 do not apply. As a result, the Prairie Village officers obtained the drug evidence and the conversation between the CI and Defendant unlawfully.”

The State filed a motion to reconsider. In denying the motion, the district court made these findings: (1) No case law has upheld an independent police investigation without the cooperation of the other jurisdiction; (2) K.S.A. 22–2401a is the controlling statute and it does not deal strictly with arrests; (3) No statutory basis exists that allows police to go outside of their jurisdiction to perform unilateral investigations; and (4) The investigation cannot be considered a citizen's arrest since the police used the ‘color of their office’ to initiate the investigation.

The State filed for an interlocutory appeal which was allowed.

The State's argument is threefold: (1) K.S.A. 22–2401a does not apply to a police officer's investigation of a crime; (2) even if it does apply, either the “request for assistance” or the “bordering municipalities” exception applies; and (3) even if no exception applies, suppression is not the appropriate remedy for violation of the statute.

An appellate court uses a bifurcated standard when reviewing a district court's decision on a motion to suppress. The factual underpinnings of the suppression decision are reviewed under a substantial competent evidence standard, and the ultimate legal conclusion drawn from those facts is reviewed de novo. An appellate court does not reweigh evidence. When the facts are undisputed, an appellate court exercises unlimited de novo review of the district court's legal conclusion. State v. Edgar, 296 Kan. 513, 519–20, 294 P.3d 251 (2013). Moreover, interpretation of K.S.A. 22–2401a is a question of law over which an appellate court exercises unlimited review. State v. Mendez, 275 Kan. 412, 416, 66 P.3d 811 (2003).

The jurisdiction of municipal police officers is governed by K.S.A. 2012 Supp. 22–2401a, which provides in relevant 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 Plain Language of K.S.A. 2012 Supp. 22–2401a(2) Limits the Authority of Municipal Officers to Exercise Their Powers as Law Enforcement Officers, and Does Not Expand Their Authority to Investigate Suspected Criminals

“The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. An appellate court's first attempt to ascertain legislative intent is through an analysis of the language employed, giving ordinary words their ordinary meaning. If a statute is plain and unambiguous, an appellate court does not need to speculate further about legislative intent and, likewise, the court need not resort to canons of statutory construction or legislative history.” State v. Wells, 296 Kan. 65, Syl. ¶ 9, 290 P.3d 590 (2012).

A law enforcement officer is

“any person who by virtue of office or public employment is vested by law with a duty to maintain public order or to make arrests for violation of the laws of the state of Kansas or ordinances of any municipality thereof ... while acting within the scope of their authority.” (Emphasis added.) K.S.A. 22–2202(13).

“ ‘ “Absent guidelines, police officers are vested with the necessary discretionary authority to act in an appropriate manner to protect the public.” ’ [Citation omitted.]” Mills v. City of Overland Park, 251 Kan. 434, 446, 837 P.2d 370 (1992).

Such guidelines limiting the authority of Kansas police officers include the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights (no unreasonable searches or seizures), K.S.A. 22–2401 (circumstances under which officer may arrest person), K.S.A. 22–2402 (circumstances under which an officer may stop a person), K.S.A. 22–2405 (how to effect arrest); K.S.A. 22–2408 (circumstances under which officer may serve notice to appear), and the key to this case, K.S.A. 2012 Supp. 22–2401a (where officers may exercise their powers).

Generally, municipal officers are authorized to exercise their law enforcement powers within their city of employment, on property owned or control by the city, and in any other place when in fresh pursuit or when local law enforcement has requested assistance. K.S.A. 2012 Supp. 22–2401a(2). But the legislature has expanded the authority of municipal officers to exercise their law enforcement powers in certain situations. See K.S.A. 2012 Supp. 22–2401a(5) (“In addition to the areas where law enforcement officers may exercise their powers pursuant to subsection [2], law enforcement officers of any jurisdiction within Johnson or Sedgwick county may exercise their powers as law enforcement officers in any area within the respective county when executing a valid arrest warrant or search warrant.” [Emphasis added.] ); K.S.A. 2012 Supp. 22–2401a(7) (“In addition to the areas where law enforcement officers may exercise their powers pursuant to subsection [2], law enforcement officers of any jurisdiction within Johnson county may exercise their powers as law enforcement officers in any adjoining city within Johnson county when any crime, including a traffic infraction, has been or is being committed by a person in view of the law enforcement officer.”...