Eligibility for Postconviction DNA Testing Not Determined by Sentence Imposed

State v. LaPointe, No. 113,580 (Kan. Feb. 15, 2019)

Issue: Some offenders qualify for postconviction DNA testing if they are similarly situated to those convicted of first-degree murder and rape. LaPointe was convicted of aggravated robbery but—because of his criminal history—received a sentence similar in length to a rape conviction. Does the length of LaPointe’s sentence make him similarly situated to offenders convicted of rape?

Answer: No. The sentence imposed does not determine whether an offender is similarly situated to a person for whom postconviction DNA testing is statutorily available.

Correcting an Illegal Sentence Includes Determining Concurrent vs. Consecutive Sentencing

State v. Jamerson, No. 115,629 (Kan. Jan. 25, 2019)

Issue: On a motion to correct an illegal sentence, does the resentencing court have the authority to modify the duration and concurrent nature of the legal portions of the sentence, while addressing the illegal portion of a sentence?

Answer: The court may modify the concurrent nature of the legal portions of the sentence when resentencing, but it may not change the duration of a legal sentence.

Prosecutorial Error May Occur During Sentencing Proceedings

State v. WilsonNo. 114,567 (Kan. Dec. 14, 2018)

Issue: Under the 14th Amendment, a criminal defendant has a due process right to a fair trial. Can a prosecutor’s error, made outside the jury trial context, violate this due process right?

Answer: Yes, prosecutorial errors in non-jury-trial settings can violate due process.

Publicly-Parked Car Not Seized After Arrest

State v. ParkerNo. 112,959 (Kan. Dec. 7, 2018)

Issue: Parker was arrested outside his locked car. His car sat in a public parking lot until a drug dog arrived to sniff the vehicle. Was his car unlawfully “seized” by the officers during this time?  

Answer: No, because there was no meaningful interference with Parker’s possessory interest in the vehicle.

Marijuana Odor Can Justify Probable Cause

State v. Hubbard, No. 113,888 (Kan. Dec. 7, 2018)

Issue: Can marijuana odor supply probable cause?

Answer: Yes, based on the totality of the circumstances including: proximity, strength of odor, the investigating officer’s experience, etc.

Officers Cannot Search Containers of Already-Identified Drivers Involved in Accident Without a Warrant

State v. Evans, No. 119,458 (Kan. Nov. 21, 2018)

Issue: The “community caretaking” exception to the warrant requirement allows officers to conduct limited warrantless searches. Evans, who had already identified herself to officers, was taken from the scene of a car accident by ambulance. An officer opened her wallet to find her driver’s license; he found drugs. Did the search of Evans’ wallet violate the Fourth Amendment? 

Answer: Yes. The search did not qualify as an exception to the warrant requirement, so the officer had no authority to search the wallet.

Simultaneous Consideration No Longer Required for Kansas Homicide Instructions

State v. SimsNo. 115,038 (Kan. Nov. 30, 2018)

Issue: The Kansas Supreme Court has previously held that courts must instruct juries to consider both greater and lesser offenses simultaneously in homicide cases. After years of criticism, should courts still require simultaneous instructions?

Answer: No. Requiring juries to simultaneously consider conflicting offenses is confusing, ineffectual, and lacks legal justification. Kansas precedent requiring simultaneous consideration in homicide cases is now overruled.

Arrests on Outstanding Warrants Don’t Justify Searches of Bags Outside the Owner’s Control

State v. Ritchey, No. 118,905, (Kan. Ct. App. Nov. 2, 2018)

Issue: Law enforcement may conduct a warrantless, though limited, “search incident to arrest” under the Fourth Amendment. Officers arrested Ritchey pursuant to an outstanding warrant. Could they search a purse in the Ritchey’s car—outside her immediate control—without a search warrant?

Answer: No. A bag unrelated to the present offense and outside the owner’s immediate control can’t be searched in a warrantless “search incident to arrest.”

A Message from the Editor in Chief

Green Hall

The University of Kansas Law Review is pleased to announce the launch of its all-new Kansas Criminal Procedure Blog, the new home for the Kansas Criminal Procedure Survey.  The Criminal Procedure Survey is a long-standing tradition of the KU School of Law and the Law Review.

Nancy Musick, 2018-2019 Editor in ChiefBeginning this year, the Law Review will no longer update the Criminal Procedure Survey in its old form. Based on feedback from professors and practitioners, the Criminal Procedure Survey was no longer serving its original purpose: to provide valuable insight into Kansas criminal procedure to Kansas practitioners. While we will no longer incorporate the information from the old Criminal Procedure Survey, old editions will still be available on our website. We are proud to adapt the Criminal Procedure Survey into a new format that will provide timely updates to Kansas practitioners about new criminal law changes in Kansas and the 10th Circuit.

Please subscribe to be the first to see our new posts. And be sure to check out the first issue of Volume 67 of the Law Review, available soon!

Rock Chalk!

Nancy Musick
Editor in Chief

Drivers May Have Apparent Authority to Consent to Search of Passenger’s Bag

State v. BoggesNo. 111,361 (Kan. Aug. 24, 2018)

Issue: If a driver gives permission to search his car, a law enforcement officer can search bags in the car so long as it’s reasonable to believe the driver had authority to consent to the bag’s search. Bogges, a passenger, had a nondescript bag on the extremely cluttered floorboard. When the driver consented to a search of the vehicle, was it reasonable for the officer to believe the driver had authority to consent to the bag’s search?

Answer: Yes. Nothing indicated that the bag belonged to the passenger, so the driver had apparent authority to consent to the search.