IN THE COURT OF APPEALS OF THE STATE OF KANSAS. STATE OF KANSAS Plaintiff-Appellee. vs. DAVID DON WASYLK Defendant-Appellant BRIEF OF APPELLANT

Transcription

1 No A MAY " HE ATI IF;^ I.. SMITH CLERK O f A PPF-IU T E COURTS IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS Plaintiff-Appellee vs. DAVID DON WASYLK Defendant-Appellant BRIEF OF APPELLANT Appeal from the District Court of Lyon County, Kansas Honorable Merlin Wheeler, Judge District Court Case No. 13CR362 Peter Maharry, #19364 Kansas Appellate Defender Office Jayhawk Tower 700 Jackson, Suite 900 Topeka, Kansas (785) (785) fax adoservice@sbids.org Attorney for the Appellant

2 Table of Contents Arguments and Authorities... 1 Issue 1: The district court erred in finding that the good faith exception applied in this matter, where the search warrant was based solely on the statements of an informant without any verification of the information she provided...1 State v. Landis, 37 Kan. App. 2d 409, 156 P.3d 675 (2007)...1 State v. Adams, 294 Kan. 171, 273 P.3d 718 (2012)...1 State v. Novotny, 297 Kan. 1174, 307 P.3d 1278 (2013)...2 K.S.A Cooke v. Gillespie, 285 Kan. 748, 176 P.3d 144 (2008)...2 State v. Finical, 254 Kan. 529, 867 P.2d 322 (1994)... 2 Conclusion...3 ii

3 Arguments and Authorities Issue 1: The district court erred in finding that the good faith exception applied in this matter, where the search warrant was based solely on the statements of an informant without any verification of the information she provided. The district court found that the search warrant was invalid as it was based solely on the statements of Michelle Hemandez-Corea, a participant in the criminal activity, and the State failed to corroborate any of her statements. (R. 8, ). The State never challenged that finding in a cross appeal. However, in its brief, the State argues that finding by the district court was incorrect. Having failed to cross-appeal, the State cannot now challenge the findings of the district court that the warrant was invalid as Corea s statements were not corroborated. In its brief, the State asserts that the district court relied upon [State v,] Landis, [37 Kan. App. 2d 409, 156 P.3d 675 (2007)] in determining that the warrant was invalid, the present facts can be distinguished from Landis. (State s brief, pg. 21). After attempting to distinguish Landis and arguing this case is more analogous to State v. Adams, 294 Kan. 171,273 P.3d 718 (2012), the State concluded [b]ecause this information incriminated Ms. Hemandez-Corea as well, it was not necessary for the officers to corroborate it and it was not unreasonable for the officers to rely upon the warrant based upon this information. Because the officers reliance on the warrant was reasonable, the exclusionary rule should not be applied. (State s brief, pg. 24)(emphasis added). At the suppression hearing, the district court specifically found the State has not met its burden to demonstrate the sufficient corroboration of [Corea s] statements. (R. 8, 128). The State never challenged that finding. To challenge that finding, the State was required to file a cross-appeal. State v. Novotny, 297 Kan. 1174, 1181, 307 P.3d

4 (2013)(citing K.S.A (h); Cooke v. Gillespie, 285 Kan. 748, , 176 P.3d 144 (2008)). As the State failed to challenge the district court s findings in a cross-appeal, they cannot now argue on appeal that the officers did not need to obtain corroboration of Corea s statements. That finding has become law of the case as it has not been challenged with a timely appeal. In State v. Finical, 254 Kan. 529, 532, 867 P.2d 322 (1994), the State chose not to appeal the initial dismissal of indictments by the district court. Rather, after the initial dismissal of the indictments, the State obtained a second round of indictments from the same grand jury. Id. at Those were again thrown out and the State appealed. On appeal, the Kansas Supreme Court found the State s failure to appeal from Judge Sanders dismissal of the first indictments bars its appeal of Judge Stevenson s order dismissing the second group of indictment. Id. at 531. That initial dismissal by the district court became law of the case when the State chose not to appeal and the State was therefore bound by the earlier ruling. Id. at In Novotny, the district court found the law enforcement officers' repeated use of a one-photo lineup to be unnecessarily suggestive. Despite this finding, the district court concluded the identification in question was reliable and admissible at trial. Novotny raised the issue on appeal. The State did not file any cross-appeal, but argued in response to Novotny s appeal as it did below, that the identification procedure was not unnecessarily suggestive. Novotny, 297 Kan It urged the Kansas Supreme Court to find that the district court's suppression ruling was right for the wrong reason. However, on appeal, the Kansas Supreme Court declined to review that finding because the State failed to crossappeal the district court's ruling finding the identification unnecessarily suggestive. 2

5 Novotny, 297 Kan. at Likewise, in this case, the State cannot now argue that corroboration of Corea s statements to law enforcement officers was not necessary. The district court found that such corroboration was necessary and the State failed to cross-appeal that finding. Any argument that the good faith exception applied because it was reasonable for the officers to rely on the warrant because corroboration was not necessary is a direct challenge to the district court s finding corroboration was necessary. To make that argument, the State has to start with the premise that corroboration of Corea s statements was not necessary. Consequently, the State s argument that it was reasonable for officers to rely on Corea s statements is nothing more than a backdoor argument that the district court erred in finding corroboration was necessary. If a search warrant is invalid if it is based solely on the uncorroborated statements of one involved in the criminal activity, how is it then reasonable to rely on that very same warrant supported by those very same uncorroborated statements? Such an argument would eliminate the well-settled principle requiring corroboration and is in fact an argument that corroboration is not necessary. The State cannot now assert in any manner that corroboration of Corea s statements was not necessary. The district court explicitly found such corroboration was necessary and the State chose not to challenge that finding by filing a cross-appeal. It is binding on the State and must be considered law of the case in this matter. Conclusion For the reasons stated above and in Wasylk s original brief, the district court erred in finding the good faith exception applied in this matter. It was unreasonable for the officers to rely on the uncorroborated statements of Corea in executing the invalid search 3

6 warrant in this case. The district court s finding should be reversed with orders that the motion to suppress be granted and all evidence seized pursuant to the warrant ruled inadmissible. RespecfcffrHy submitted, L P t r Maharry, #19364 /K ansas Appellate Defender Office Jayhawk Tower 700 Jackson, Suite 900 Topeka, Kansas (785) (785) Fax adoservice@sbids.org Attorney for Appellant Certificate of Service The undersigned hereby certifies that service of the above and foregoing brief was made by mailing two copies, postage prepaid, to Marc Goodman, Lyon County Attorney, 402 Commercial, Emporia, KS ; and by ing a copy to Derek Schmidt, Attorney General, at ksagappealsoffice@ag.ks* on the day of May, Peter Maharry, #