Petition — Sanders v. Kansas
Supreme Court brief1977
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In the Supreme Court of the United States
OCTOBER TERM, 1976
STEVEN CHARLES SANDERS,
Petitioner,
vs.
STATE OF KANSAS,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
KANSAS SUPREME COURT
JoHN C. HUMPAGE
314 West Seventh Street
Topeka, Kansas 66603
Phone: (913) 235-5351
Attorney for Petitioner
E. L. Menpennatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3080
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SUBJECT INDEX
IEEE ES RA Oe 2
IRE AS ER I hn <n OO 2
Questions Presented ............ Bs 1 OE Ton a A 3
I a sianensenieniciamnenn 4
I alanis nnttiblihnasetngation 5
Reasons for Granting the Writ—
(A) The Purported Affidavit, the Only Evidence
Presented for the Issuance of the Search War-
rant Herein, Was Grossly Insufficient to Estab-
lish Hopeful Cause, Let Alone Probable Cause,
As Required by the Fourth Amendment to the
United States Constitution .2...........0....eeceeeeeeeee 10
(B) The Petitioner in Making a Prima Facie Show-
ing of Material False Representation of Fact by
the Affiant Was Entitled to Suppression and
in Addition, the Court’s Failure to Allow the
Petitioner to Present Additional Evidence to
Support This Issue Was a Rank Violation of
it TTS EIT 12
ARERR Sire RS SP oe ae aS. aN On 23
Index to Appendices
Appendix A—Opinion of the Kansas Supreme Court .... Al
Appendix B—The Kansas Supreme Court’s Order
Overruling the Petitioner’s Motion for Rehearing and
ee I sc dehcciteiknstiaiiinchitiscstinciilinentaitiied Al4
Appendix C—The Kansas Supreme Court’s Opinion of
April 9, 1977, in State of Kansas v. Roy Eugene Ames,
Ek GEE wcicalivceieutirnnndensdbinehtacccaniaiibieestilabbasinbabidiieeeatsiinitiod Al5
Il
Table of Authorities Cited
CASES
Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d
TED (BODO eceeccccesmseneooeeeesee 11, 16
Barnes vy. State, Tex.Crim.App., 520 S.W.2d 401 (1975) 21
Battle v. United States, 345 F.2d 438, 440 (D.C. Cir.
BIGB) oeciccce-cescescssersssecssnensssenciasutsigeiasuinieeiaaia 12
Berkshire v. Commonwealth, ........ BES edna , 471 S.W.
Ee: | pee ee gy 20
Chambers. v. Mississippi, 410 U.S. 284, 92 S.Ct. 1038,
SB TaD DR DOU CROTB) ccecececccutstsinvcecntsitesasinciaee 12
Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342
(BUD) cncccracsasscinecsicenecetuinsietntnassacenseaisensamsaagiaaann 19
Commonwealth v. Rugaber, ........ OD scctiitn , 343 N.E.
eS Ft ene ee 18
Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1457,
eR fF BB Of ee ae 12
Garcia v. United States, 373 F.2d 806 (10th Cir. 1967) 12
Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31
AF 8 Se Cee ee 22
Giordenello v. United States, 357 U.S. 480, 78 S.Ct.
1295, 2 L.Ed.2d 1503 (1958) ................. 11
Goldberg v. United States, 422 U.S. 94, 96 S.Ct. 1338,
47 L.Ed.2d 603 (1976) ....... 22
Grzesiowski yv. State, ........ Ind.App. ........ , 343 N.E.2d
eee 19
Hoffritz v. United States, 240 F.2d 109 (9th Cir. 1956) 12
Jaben v, United States, 318 U.S. 214, 85 S.Ct. 1365, 14
Oe ee 15
Jenkins v. McKeithen, 395 U.S. 411, 23 L.Ed.2d 404 ... 12
+]
Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4
EE 12
McConnell vy. State, 48 Ala.App. 523, 266 So.2d 328,
cert. den., 289 Ala. 746, 266 So.2d 334 (1972) ............ 18
Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266,
SE 12
Owens v, Stuie, 217 Tenn. 544, 399 S.W.2d 507 (1965) 21
Padilla v. United States, 421 F.2d 123 (10th Cir. 1970) 12
People v. Alfinito, 16 N.Y.2d 181, 264 N.Y.S.2d 243,
211 N.E.2d 644 (1965) -............ 19
People v. Bak, 45 Ill.2d 140, 258 N.E.2d 341, cert. den.,
400 U.S. 82, 91 S.Ct. 117, 27 L.Ed.2d 121 (1970) ........ 20
People v. Broils, 58 Mich.App. 547, 228 N.W.2d 456
EE SEES A 18
People v. Martin, Colo., 527 P.2d 806 (1974) —....0000000000.... 18
Powell v. State, ........ a , 540 S.W.2d 1 (1976) ..... 20
Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825,
ene C0 12
Seager v. State, 200 Ind. 579, 164 N.E. 274 (1928) ........ 19
Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21
cassia 11, 16
State v. Appleton, ........ eer , 297 A.2d 363 (1972) 19
State v. Baca, 84 N.M. 513, 505 P.2d 856 (1976) ............ 19
State v. Bankhead, 30 Ut.2d 135, 514 P.2d 800 (1973) .... 19
State v. Boyd, Ia., 224 N.W.2d 609 (1974) 22... 18
State v. Breest, ........ ce | 367 A.2d 1320, 1329
ese 19
State v. Brugioni, 320 Mo. 202, 7 S.W.2d 262 (1928) .... 20
State v. Davenport, Ak., 510 P.2d 78 (1973) 00... 18
State v. English, 71 Mont. 343, 229 Pac. 727 (1924) ........ 20
State v. Goodlow, 11 Wash.App. 533, 523 P.2d 1205
COI wines sesescicnsiicabsinianieaietstssiniiiiiali ape iaee le, 19
State v. Gordon, 219 Kan. 643, 549 P.2d 886 (1976) ........ 17
State v. Harris, 25 N.C.App. 404, 213 S.E.2d 414, cert.
den., 287 N.C. 666, 216 S.E.2d 909 (1975) ................... 20
State v. Hubbard, 215 Kan. 42, 523 P.2d 387 (1974) .... 11
State v. Jacobs, Fla.App., 320 So.2d 45 (1975) -............... 18
State v. Lamb, 209 Kan. 453, 497 P.2d 275 (1972) ........ 20
State v. LeBlanc, 100 R.I. 523, 217 A.2d 471 (1966) ........ 21
State v. Luciow, ........ BD, cncscsl , 240 N.W.2d 833
CTD <idecininesadiilnaseniathiiiinitih as ntilgiiinitsiieaestuitlaadisie a saicmesipabin 19
State v. Manoff, 160 Mont. 344, 502 P.2d 1138 (1972)
OR SE OEE cal EE Me ent en ee See 16, 19-20
State v. Mielson, La., 284 So.2d 873 (1973) .................... 18
State v. Osburn, 211 Kan. 248, 505 P.2d 742 (1973) ... 12
State v. Payne, 25 Ariz.App. 454, 544 P.2d 671 (1976) 18
State v. Petillo, 61 N.J. 165, 293 A.2d 649 (1972), cert.
den., 410 U.S. 944, 93 S.Ct. 1393, 35 L.Ed.2d 611
CODD sissieiscniesdalisiccciiinsaiilabinitteinb haiti sialon 20
State v. Sabari, 109 Ariz. 553, 514 P.2d 474 (1973) ........ 18
State v. Sachs, 264 S.C. 541, 216 S.E.2d 501 (1975) ........ 19
State v. Seymour, 46 R.I. 257, 126 Atl. 755 (1924) ........ 21
State v. Williams, 160 Conn. 322, 363 A.2d 71 (1975) .... 20
State v. Wright, Or., 511 P.2d 1223 (1973) 20000... 19
Theodor v. Superior Court of Orange County, 104 Cal.
Rptr. 226, 501 P.2d 234 (1972) ..2..0..........-eccsceecececceceeeeee 18
United States v. Belcwfine, 508 F.2d 58 (1st Cir. 1974) 17
United States v. Carmichael, 489 F.2d 983 (7th Cir.
SPUD | cunstvdinisevnantiiinidintipdeniandiaiadinh sinc IG ee or 17-18
United States v. Damitz, 495 F.2d 50 (9th Cir. 1974) ... 17
United States v. Gonzales, 488 F.2d 833 (2nd Cir. 1973) 17
United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29
RD TED» sacbcetedeececcelsstnetnticileshinintoevectancensesesncseemns
United States v. Harwood, 470 F.2d 322 (10th Cir. 1972)
United States v. Lee, 540 F.2d 1205 (4th Cir.), cert. den.,
ane US. coccececy coveeeee S.Ct. «......., 50 L.Ed.2d 177 (1976)
United States v. Luna, 525 F.2d 4 (6th Cir. 1975), cert.
den., 424 U.S. 965, 96 S.Ct. 1459, 41 L.Ed.2d 732 (1976)
United States v. Marihart, 492 F.2d 897 (8th Cir.), cert.
den., 419 U.S. 827, 95 S.Ct. 46, 42 L.Ed.2d 51 (1974)
United States v. Payne, 474 F.2d 603 (10th Cir. 1973) ....
United States v. Thomas, 489 F.2d 664 (5th Cir. 1973),
cert. den., 423 U.S. 844, 96 S.Ct. 79, 46 L.Ed.2d 64
I ia cael et eal ca ticenais sdimiinhaapianiiandiienes
United States v. Thornton, 454 F.2d 957 (D.C. Cir. 1971)
United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741,
ae
United States ex rel. Petillo v. New Jersey, 400 F.Supp.
1152 (D.N.J. 1975), vacated per curiam, 541 F.2d 275
(3rd Cir.), on remand, 418 F.Supp. 686 (1976) ........
William v. State, 232 Ga. 213, 205 S..2d 859 (1974) ....
Wood v. State, ........ Miss. ........, 322 So.2d 462 (1975) ....
Wrenn v. North Carolina, No. 72-2176 (E.D.N.C.,
11/5/73), affirmed per curiam, 486 F.2d 1399 (4th
Cir. 1973), cert. den., 417 U.S. 973, 94 S.Ct. 3180, 41
ES EE UID cin ncuissscnagediantsemnedesiionninaninetedtboguinen
Wright v. State, Okla.Cr., 552 P.2d 1157 (1976) ............
STATUTES AND RULES
ao accacteesbaanenmnninadinnissimensl
I a lates tanlntntbantaansictatsistiseniiens
Kansas Statutes Annotated, 21-4501(d) (1974 Supp.) ....
12
18
Kansas Statutes Annotated, 21-4503(b) (1974Supp.) ... 1
Kansas Statutes Annotated, 22-3216(2) (Weeks, 1974)
Kansas Statutes Annotated, 65-4127(a) (1974 Supp.) 1,5
Kansas Statutes Annotated, 65-4127(b) (1974 Supp.) 2,5
Kansas Supreme Court Rule 112 (211 Kan. xli) ........ 16
Revised Code of Montana, 95-1805 00000. 16
In the Supreme Court of the United States
OCTOBER TERM, 1976
STEVEN CHARLES SANDERS,
Petitioner,
vs.
STATE OF KANSAS,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
KANSAS SUPREME COURT
TO: THE HONORABLE CHIEF JUSTICE and ASSOCI-
ATE JUSTICES OF THE UNITED STATES SU-
PREME COURT:
Petitioner, Steven Charles Sanders, prays for a Writ
of Certiorari, to review the judgment of the Kansas Su-
preme Court, which affirmed the judgment of the District
Court of Wyandotte County, Kansas, in sentencing the
Petitioner to the custody of the Secretary of Penal Institu-
tions for a period of not less than one (1) nor more
than ten (10) years, pursuant to K.S.A. 1974 Supp. 65-
4127(b), K.S.A. 1974 Supp. 21-4501(d), and K.S.A. 1974
Supp. 21-4503 (b).
OPINION BELOW
The trial court, District Court of Wyandotte County,
Kansas, overruled the Petiticner’s pre-trial Motion to Sup-
press along with the Petitioner’s objections to the items
seized at the time they were offered during the course
of the Petitioner’s trial herein, said objection being pref-
aced on the Petitioner’s pre-trial Motion to Suppress, at
the conclusion of the Petitioner’s trial to the Court, the
Court finding the Petitioner GUILTY of the one count
remaining in the Information alleging a violation of K.S.A.
1974 Supp. 65-4127(b). On appeal, the Kansas Supreme
Court affirmed the District Court’s judgment on April
9, 1977, further denying the Petitioner’s Motion for Re-
hearing on May 18, 1977, however, afforded the Petitioner
a thirty (30) day stay of the Court’s mandate herein condi-
tioned on the Petitioner petitioning this Honorable Court
for Certiorari. The decision of the Kansas Supreme Court
is not as yet reported; however, the decision along with
the Court’s Stay Order are attached hereto as Appendices
A and B.
JURISDICTION
The jurisdiction of this Honorable Court is invoked
under 28 U.S.C. Sec. 1257(3), along with the Court’s Rules
27, 50, and 51.
The Federal Constitutional questions sought to be re-
viewed by this Court, were developed, raised, and reraised
in all Courts below, by the Petitioner’s Motion to Suppress,
New Trial, Appeal, and Motion for Rehearing, which were
all denied as is more fully evidenced in the Petitioner’s
trial record and the Kansas Supreme Court’s Opinion here-
in. (R. 5, 8, 10, 11, 12, 15) (A4, AQ).
In addition, the issues sought to be reviewed herein
are of the greatest constitutional importance, in that all
of the Federal Circuit Courts have determined, in opposi-
tion to the Kansas Court’s Opinion that if the false repre-
sentations were intentionally made, suppression is re-
quired; the highest courts of nineteen sister states have
additionally determined this issue in opposition to the
Court’s Opinion, eleven sister states have taken the same
position as announced by this Court; however, two of these
jurisdictions have been overruled by the Federal Courts.
The balance of the State Courts have either not ruled on
this issue, been squarely faced with same, or readily appear
to be leaning toward allowing inquiry as to falsity. The
Petitioner herein would have developed additional sub-
stantiation, if allowed to call the witnesses who were in
attendance to the Court at the time the Court heard the
evidence and argument in relation to his Motion to Sup-
press. (R, 8).
In an attempt to minimize my expanse herein, I will
attempt to confine my position, in all deference and respect,
to those areas of the Kansas Supreme Court’s Opinion
that I feel are clearly erroneous and are in further conflict
with the Court’s own decisions.
QUESTIONS PRESENTED
Two Federal Constitutional questions of exceeding im-
portance are presented in this case for determination by
this Fonorable Court:
(a) The purported Affidavit, the only evidence pre-
sented for the issuance of the Search Warrant herein,
was grossly insufficient to establish hopeful cause, let alone
probable cause, as required by the Fourth Amendment
to the United States Constitution.
(b) The Petitioner in making a prima facie showing
of materia] false representation of fact by the Affiant
was entitled to suppression and in addition, the Court’s
failure to allow the Petitioner to present additional evi-
dence to support this issue was a rank violation of DUE
PROCESS.
STATUTES INVOLVED
The Fourth Amendment to the United States Constitu-
tion (U.S. Const. Amend. IV) provides:
“The right of the people to be secure in either house,
person, papers and effects, against unreasonable
searches and seizure, shall not be violated, and no
warrant shall issue, but upon probable cause, sup-
ported by oath or affirmation and particularly describ-
ing the place to be searched and persons or things
to be seized.”
Kansas Statutes Annotated 22-3216(2), the pertinent
portions of same being as follows:
“The motion shall be in writing and state facts show-
ing wherein the search and seizure were unlawful.
The judge shall receive evidence on any issue of fact
necessary to determine the motion and the burden
of proving that the search and seizure were lawful
shall be on the prosecution.”
STATEMENT OF THE CASE
The Petitioner was charged by Information on June
23, 1974, alleging in the first count that Petitioner pos-
sessed heroin, in violation of K.S.A. 65-4127 (a); the second
count alleged that Petitioner possessed cocaine, in viola-
tion of K.S.A. 65-4127(a); the third count alleged that
the Petitioner possessed marijuana with intent to sell, in
violation of K.S.A. 65-4127 (b); and the fourth count alleged
that Petitioner possessed psilocybin with intent to sell,
in violation of K.S.A. 65-4127(b). (R. 2, 3). The matter
came on for trial pursuant to a “Stipulation of Fact”.
(R. 8). The terms of the stipulation reveal that the State
and Petitioner waived a trial by jury, the Court consented
to the said waiver. (R. 8). The stipulation further pro-
vided for the dismissal, at the State’s request, of Counts
I, II, and IV of the Information. (R. 9). Thus, the only
count which remained to be tried by the Court was Count
III, being the charge relating to the possession of cannabis
sativa L., commonly known as marijuana with intent to
sell, in violation of K.S.A. 65-4127(b). (R. 9). The Court
accepted the written Stipulation of Fact, pursuant to Su-
preme Court Rule 112, and upon review of said facts
found the Petitioner guilty of the one count remaining
in the amended Information. (R. 14).
On January 30, 1975, Petitioner filed with the Magis-
trate Court of Wyandotte County, Kansas, a Motion to
Suppress any and all evidence seized during a search of
his residence at 35 South 15th Street, Kansas City, Kan-
sas. The Petitioner’s Motion sought review of the legality
of the search and seizure which was accomplished under
the apparent authority of a search warrant issued May
12, 1974. Petitioner’s Motion sought the review of the
sufficiency of the Affidavit filed by Jack L. Hartman in
support of the Search Warrant and further Petitioner
sought review of the issuance of the Search Warrant in
light of certain falsities appearing on the face of the Affi-
davit. The Affidavit for the Search Warrant provided
as follows:
AFFIDAVIT FOR SEARCH WARRANT
“Before Cordell D. Meeks, Judge of the District Court,
Wyandotte County Courthouse, Kansas City, Kansas:
The undersigned being duly sworn deposes and
says:
That he has reason to believe that on the premises
known as 35 South 15th Street (upstairs apt.) in the
Wyandotte District of Kansas, there is now being con-
cealed certain property, namely Cannabis Sativa L.,
(commonly known as Marijuana), Cocaine, and Heroin
which are illegal for possession by the Uniform Con-
trolled Substance Act, K.S.A. 65-4105.
And that the facts tending to establish the fore-
going grounds for issuance of a Search Warrant are
as follows: The assigning officer swears and affirms
that he has information from a confidential informant,
who he has known for several months who has given
him information in the past that has proven to be
correct, that at the above address is secreted Heroin
and Cocaine in one ounce lots and Marijuana in one
pound lots. The confidential informant states that
this is the residence of Steve Sanders, and he has
purchased the above-mentioned items within the last
24 hours.
/s/ Jack L. Hartman
Special Agent, A. G. Office”
Testimony of the Affiant, Jack Hartman, was heard
on July 18, 1974, during the course of the Preliminary
Hearing before the Magistrate Court of Wyandotte County.
(R. 6). Jack Hartman testified that he had known the
confidential informant, Mickey Harris, for fifteen days
prior to May 12, 1974. (R. 6). He met Harris in the
Wyandotte County Jail on April 27, 1974, when he and
another agent, John Echart, made certain promises and
commitments for information. (R. 6). Mr. Hartman fur-
ther testified that the informant, Harris, provided Hartman
with information on two or three occasions; however, the
information did not prove out. (R. 7). Harris’ information
to Hartman was obtained on one occasion before the Search
Warrant was obtained herein, but that information also
did not prove out. (R. 7, 21).
Inquiry was then made concerning exactly what in-
formation was imparted to him by the informer, Harris.
In this regard, Hartman testified that he had no recollec-
tion whether the informant had told him he had been
up to the house, or if he was just at the door. (R. 7).
Further, the witness guessed that Mickey Harris had been
over to the house a couple of times before. (R. 7). Hart-
man’s testimony further reflected that the alleged sale con-
summated at Sanders’ residence consisted of one gram of
heroin; however, the purchaser being expanded from the
informant, Mickey Harris, to the informant and one Eddie
Stewart. (R. 7). The record further shows that Stewart
was the actual provider of information to Mickey Harris
because Hartman testified Harris stated, “It is where
Stewart bought all of his marjuana and Mickey knew
it, and Mickey told me that.” (R. 7, 23). Further, Hart-
man attributed the following statement to Harris: “He
took Eddie Stewart over there and they purchased one
gram of heroin.” (R. 7).
In addition, Hartman testified that the Affidavit sub-
mitted in relation to obtaining the Search Warrant was
compiled with a blank form obtained from the Kansas
City, Kansas Police Department in the late evening of
May 11, 1974. (R. 7). Hartman did not prepare the Affi-
davit as viewed in the “blank form”. The Affidavit was
prepared from information he provided. (R. 7, 19). After
the Affidavit was completed from the information pro-
vided, he read and executed the Affidavit. (R. 7). Hart-
man testified that there was at least one word in the
Affidavit he didn’t understand and he further conceded
mistakes existed in the Affidavit. (R. 7, 19).
Prior to trial in the District Court, Petitioner filed
a pre-trial Motion to Suppress the evidence seized at his
residence. (R. 5). The Petitioner’s Motion to Suppress
was twofold: (1) that the Affidavit contained insufficient
and incomplete information to justify the issuing of a
Search Warrant; and (2) that the Affidavit submitted to
obtain the Search Warrant contained false and misleading
information. (R. 5,6). The Petitioner’s Motion to Suppress
was argued on April 3, 1975, and the stenographic tran-
script of the Petitioner’s Preliminary Hearing was admitted
by Stipulation of Fact for the sole purpose of showing
Hartman’s false material representation of fact. (R. 10).
The Petitioner also had other witnesses in attendance in
the Court on April 3, 1975, to testify to the material false
representation. (R. 10). The Court, however, refused to
hear any testimony from the witnesses on this issue. (R.
8, 10). The Petitioner on April 11, 1975, filed an Offer
of Proof by which Petitioner submitted he is prepared
to present additional evidence to the Court which would
show the material falsity of the Affiant’s Affidavit. The
Offer of Proof was as follows:
“That the confidential informant, Mickey Harris,
alluded to in Hartman’s Affidavit has never been at
the residence attributable to the Defendant, 35 South
15th Street (upstairs apartment), Kansas City, Kansas,
within 24 hours from the date the Affiant executed
the Affidavit, May 12, 1974, or for that matter, at
any point. In addition, the evidence will disclose that
at no point has the confidential informant, by himself
or acting in league with anyone, purchased any type
of item, be it information or contraband, from the
Defendant herein.” (R. 9).
After the above-described tertiary hearing on the Mo-
tion, the Motion was overruled on April 16, 1975. (R.
9). The Court finding in relation to Hartman’s Affidavit:
“The Court found in relation te Hartman’s Affi-
davit, ‘Frankly if this Affidavit had been presented
to me, I would have found probable cause whether
the man had lied or not.’” (R. 7).
Thus, the Court permitted into evidence the material
removed from Petitioner’s residence which was found to
be marijuana. After the Court’s finding and verdict of
guilty on November 12, 1975, as aforesaid, the Petitioner
moved for a New Trial. (R. 11). The Motion for New
Trial cited as error the failure to suppress seized evidence
as more fully described in the pre-trial Motion; and the
failure to permit the witness present on April 3, 1975,
to testify in relation to the Motion to Suppress; and more
particularly, to testify to the false representations con-
tained in Mr. Hartman’s Affidavit. (R. 11). Petitioner’s
claim of error was again rejected by the Court in its
denial of a new trial (R. 14), and thereafter Petitioner
duly perfected his appeal. (R. 15).
10
REASONS FOR GRANTING THE WRIT
A. The Purported Affidavit, the Only Evidence Pre-
sented for the Issuance of the Search Warrant
Herein, Was Grossly Insufficient to Establish
Hopeful Cause, Let Alone Probable Cause, As
Required by the Fourth Amendment to the United
States Constitution.
In reviewing the Affidavit of May 12, 1974, that the
Kansas Supreme Court found not wanting herein (A6),
even though it lacked “grammatical skill”, may well de-
scribe the premises with certainty but anything asserted
thereafter requires the use of mystics and imagination
to determine or support its author’s “tale”. (R. 4). What
information had previously been provided by this confi-
dential informant that proved reliable? How was the
determination of reliability made? How did the in-
formant determine what was secreted on the premises,
by sight, rumors, of the use of a crystal ball; and what
was his purchase within the last twenty-four hours, that
of information or drugs?
The Affidavit also must be viewed in the context
that there is a complete void of any of the underlying
circumstances necessary to be provided to the Cow t to
allow the assessment of reliability of the informant Th
attestations viewed are permeated with glib ger cuities
absent detail, time or underlying circumstances as to why,
when and how the information was received by the Af-
fiant from the informant. Further, the Affidavit fails to
indicate how the Affiant concluded the information pro-
vided was in fact correct or reliable, or for that mat-
ter, that the information provided by the informant pre-
viously was information connected to, or associated with
11
criminal activity. Simply, it is submitted that there were
no specifics to justify the conclusion of reliability.
The Kansas Supreme Court had previously determined
the requisite basis that Search Warrant Affidavits must
reflect. The Court determining that the Affidavits must
reflect as to how and why the informant possessed the
information represented in the Affidavit and additionally
must reflect the underlying circumstances to support the
Affiant’s conclusion that the informant is reliable or credi-
ble. It appears that the Court’s Opinion herein is in di-
ametric opposition to the Court’s previously announced
wisdoms. State v. Hubbard, 215 Kan. 42, 44, 523 P.2d
387, however, the Court’s Opinion herein is in direct con-
flict with this Honorable Court’s announced wisdoms.
Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723; United
States v. Ventresca, 380 U.S. 102, 13 L.Ed.2d 684; Giorden-
ello v. United States, 357 U.S. 480, 2 L.Ed.2d 1503; Spinelli
v. United States, 393 U.S. 410, 21 L.Ed.2d 637. The Kansas
Supreme Court thereafter in its Opinion (A6), attempts
to equate some inertia of reliability to the informant by
stating that the declaration, whatever it may have been,
made by the informant to Hartman was a declaration
against the informant’s penal interest, that is, assuming
the revelation was that the informant purchased drugs.
The information that was provided, absent further attesta-
tion, suggests the confidential informant was performing
under Hartman’s, the Affiant, direction and control (R.
20), or that he may have served as a procuring agent
for Hartman. Again from the Record, Hartman talked
with Harris, the informant, on April 27, 1974 (R. 6); a
Search Warrant was issued on May 12, 1974 (R. 4); the
Affidavit reflects that the informant purchased something,
again presumably drugs, within twenty-four hours from the
12
time Hartman executed the Affidavit. (R. 4). Assuming
this to be the case, which we must from the Record, it
would render complete absolution to the informant for any
criminal activity involved herein. State v. Osburn, 211 Kan.
248, 505 P.2d 742; Garcia v. United States, 373 F.2d 806
‘(10th Cir.); Padilla v. United States, 421 F.2d 123, 124
(10th Cir.). It would therefore be impossible to construe
the admission by the informant as being contrary to his
penal interest; hence, the supposed admission would not
inherit reliability as a declaration against same. United
States v. Harris, 403 U.S. 573, 583, 584, 29 L.Ed.2d 723,
733, 734; Chambers v. Mississippi, 410 U.S. 284, 35 L.Ed.2d
297.
B. The Petitioner in Making a Prima Facie Showing
of Material False Representation of Fact by the
Affiant Was Entitled to Suppression and in Ad-
dition, the Court’s Failure to Allow the Petitioner
to Present Additional Evidence to Support This
Issue Was a Rank Violation of DUE PROCESS.
The Kansas Supreme Court’s Opinion in preventing
inquiry into flagrantly false Affidavits submitted to obtain
a Search Warrant provides absolution and judicial im-
munity to those who perpetrate falsities, if we are estopped
from delving into the falsities of Search Warrant Affi-
davits, if the Search Warrant was directed at the per-
petrator.
In any event, to condone falsity to any extent on
the basis of possible abuse by a defendant, is certainly
an encouragement to perpetuate falsities by Affiants and
necessarily makes “the Court an accomplice in the willful
disobedience of a constitution they are sworn to uphold.”
Elkins v. United States, 364 U.S. 206, 223, 4 L.Ed.2d 1669.
13
In addition, the Court’s Opinion further prevents a defen-
dant, after a prima facie showing is made of a falsity,
from providing the evidence of a falsity and further con-
dones denial of the Petitioner’s right to present his evidence
in relation thereto, a more flagrant violation of DUE PRO-
CESS, I cannot imagine. The Kansas Supreme Court has
effectively condoned suppression of material, relevant, and
cogent evidence of falsity to be elicited by the Petitioner
herein. Giglio v. United States, 405 U.S. 150, 154, 31 L.Ed.
2d 104; misrepresentation in this regard is always min-
imally relevant. Jones vy. United States, 362 U.S. 257, 271,
4 L.Ed.2d 697, 708. In determining the existence of a
Fourth Amendment violation, federal courts are required
and must make independent inquiry in relation thereto.
Elkins, id. 224. Jenkins v. McKeithen, 395 U.S. 411, 23
L.Ed.2d 404; Nardone v. United States, 308 U.S. 338, 341,
84 L.Ed. 307; Hoffritz v. United States, 240 F.2d 109, 112
(9th Cir. 1956); Battle v. United States, 345 F.2d 438,
440 (D.C. Cir. 1965).
The peripheral inaccuracies or misrepresentations al-
lowing this Honorable Court to conclude did not affect
the integrity in the Affidavit in Rugendorf v. United States,
376 U.S. 528, 11 L.Ed.2d 887, are clearly not found herein,
as Hartman’s distortions and falsehoods that the Petitioner
managed to establish are several in number and clearly
reflected in the Record herein at pages 6 and 7. In addi-
tion, if the informant had purchased drugs from the Peti-
tioner as represented by Hartman in the Affidavit (R.
4), on May 11, 1974 or May 10, 1974, why was the Petitioner
not charged with this violation, or where are the fruits
of the purchase? It is exceedingly unfortunate that the
Petitioner was unable to explore this line of inquiry.
14
The Petitioner’s Offer of Proof (R. 8), was prefaced
on witnesses who were in attendance to the Trial Court
to testify in relation to the Petitioner’s Motion to Suppress,
and may well have solved this riddle, as the witness was
Eddie Stewart, the informant’s informant, Hartman’s sec-
ond confidant (R. 7, 23), along with Affiant Hartman.
The Kansas Supreme Court further concluded in its
Opinion that if the “attacked rule” were allowed that
Hartman’s distortions were peripheral in nature, not mate-
rial and further fell short of destroying the Affidavit’s
integrity. (Al3). The Kansas Supreme Court’s deter-
mination herein unfortunately came to pass even though
the Petitioner was foreclosed from introducing evidence
in support of his announced position.
The culmination of intentional material false represen-
tations readily appears in the Record herein, at pages 6, 7,
and 19-24; in making this judicial determination as stated
in the Record, it would appear the following material
issues must be resolved. How could the Affiant describe
with such particularity the drugs secreted on the Peti-
tioner’s premises (R. 4), when the Affiant was never in
the residence (R. 7), and the Affiant wasn’t sure whether
the informant was. (R. 7, 23).
The information provided by the informant did not
prove out (R. 21), one lead was provided the Affiant
before the issuance of the Search Warrant, one subsequent
thereto. (R. 21). However, Hartman’s subsequent testi-
mony reflects that the lead provided prior to the Search
Warrant allowed the Affiant to purchase drugs from a
vendor that he cannot find. (R. 22). His acquaintance
with the informant was fifteen (15) days, not several
months. (R. 6).
15
We have information coming from two sources, the
informant and a third party, with attestation of supposed
reliability being directed by the Affiant solely to the in-
formant. (R. 7, 23).
The materiality and intentional misrepresentation
viewed may further be seen if the Affidavit were corrected
to speak the truth, the material portion of same would
thereafter reflect as follows:
I have not been- in the residence described herein,
and I am not sure my informant was, however, drugs
are secreted therein. My informant has provided cor-
rect information in the past in that he provided me
with information that allowed me to purchase drugs
from a vendor I can’t find. I have known the in-
formant some fifteen days and some of the information
- provided by the informant comes from a third party
source. My informant purchased the above items
within the last twenty-four hours; however, I am not
positioned to state the present location of his purchase.
However, I don’t desire to prosecute the vendor in
relation to same.
The materiality of the intentional falsities thence be-
comes unassailable by making but one query, who amongst
us would issue a Search Warrant based on the corrected
Affidavit?
There is little question that narcotic informant’s cred-
ibility may often be suspect. Jaben v. United States, 318
U.S. 214, 223, 224, 14 L.Ed.2d 345. In addition, I think
there is little question that a Defendant may challenge
the credibility and reliability of an informer whose infor-
mation is utilized by a peace officer seeking a Search
16
Warrant. Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723;
Spinelli v. United States, 393 U.S. 410, 21 L.Ed.2d 637.
If this Honorable Court permits us to challenge infor-
mant information, but were to deny us the right to make
inquiry of the Affiant’s attestations in relation thereto,
then how could we determine the basis of the Affiant
or his informant’s conclusions as represented in Search
Warrant Affidavits? To deny this avenue of exploration
is to deny both avenues of inquiry.
The Kansas Supreme Court in its Opinion feels without
expressed statutory authority that inquiry into the contents
of the Affidavit is not allowable, Kansas in providing the
tools to challenge the legality of a search or seizure has
adopted legislation from the Montana Code 95-1805 as
viewed in K.S.A. 22-3216 (2), the pertinent portions of same
being as follows:
“The motion shall be in writing and state facts show-
ing wherein the search and seizure were unlawful.
The judge shall receive evidence on any issue of fact
necessary to determine the motion and the burden
of proving that the search and seizure were lawful
shall be on the prosecution.”
The Montana Supreme Court has concluded that material
false representation of fact in Search Warrant Affidavits
most assuredly merits inquiry. State v. Manoff, 160 Mont.
344, 502 P.2d 1138 (1972).
In further reviewing the Kansas Supreme Court’s
Opinion, I note the parties’ stipulation entered into here-
in, pursuant to the Kansas Supreme Court’s Rule 112,
as set out in the Court’s Opinion. (A2-A4). The Kansas
Supreme Court’s Opinion further reflected and found that
17
the Trial Court accepted the stipulation of the parties
hereto. (A4). The stipulation, in part, allowed the ad-
mission of evidence in support of the Petitioner’s position
that the Affidavit contained material false representation
of fact.
The stipulation further reflected that the Trial Court
was not inclined to allow testimony from witnesses in
further support of this issue. (A4).
The Kansas Supreme Court’s Opinion, however, fails
to determine how the stipulation entered into by the parties
hereto, that was accepted by the Trial Court, was not
binding on the Trial Court and justified the Trial Court
in refusing thereafter to allow the Petitioner to present
testimony in further support of the central issue of the
accepted stipulation. Would this appear to be equal appli-
cation of the existing precedent? State v. Gordon, 219
Kan. 643, 651, 549 P.2d 886; United States v. Payne, 474
F.2d 603 (10th Cir. 1973).
As we have previously called to the Court’s attention,
all federal circuits have agreed that an attack may be
made, on falsities in Search Warrant Affidavits, although
some have not decided what standards should be used.
E.g., United States v. Belcufine, 508 F.2d 58 (1st Cir. 1974);
United States v. Gonzales, 488 F.2d 833 (2nd Cir. 1973);
United States v. Damitz, 495 F.2d 50 (9th Cir. 1974); United
States v. Thornton, 454 F.2d 957 (D.C. Cir. 1971). The
Fourth, Sixth, Seventh, and Eighth Circuits will invalidate
warrants where procured by (1) any intentional misrepre-
sentation or (2) a material reckless misrepresentation.
United States v. Lee, 540 F.2d 1205 (4th Cir. 1976); United
States v. Luna, 525 F.2d 4 (6th Cir. 1975), cert. denied, 424
U.S. 965, 41 L.Ed.2d 732, 96 S.Ct. 1459 (1976); United
18
States v. Carmichael, 489 F.2d 983 (7th Cir. 1973); United
States v. Marihart, 492 F.2d 897 (8th Cir. 1974). The
Fifth Circuit invalidates warrants procured by (1) any
intentional misrepresentation or (2) any material misrepre-
sentation. United States v. Thomas, 489 F.2d 664 (5th Cir.
1973). The Tenth Circuit invalidates any warrant procured
by material misrepresentations. United States v. Harwood,
470 F.2d 322 (10th Cir. 1972).
The following twenty states additionally permit in-
quiry in this regard:
McConnell v. State, 48 Ala.App. 523, 266 So.2d 328,
cert. denied, 289 Ala. 746, 266 So.2d 334 (1972),
Alabama;
State v. Davenport, 510 P.2d 78 (1973), Alaska;
State v. Sabari, 109 Ariz. 553, 514 P.2d 474 (1973)
(dictum), Arizona; and
State v. Payne, 25 Ariz.App. 454, 544 P.2d 671 (1976),
Arizona;
Theodor v. Superior Court of Orange County, 104 Cal.
Rptr. 226, 501 P.2d 234 (1972) (by statute), Cali-
fornia;
People v. Martin, 527 P.2d 806 (1974), Colorado;
State v. Jacobs, Fla.App., 320 So.2d 45 (1975), Florida;
William v. State, 232 Ga. 213, 205 S.E.2d 859 (1974),
Georgia;
State v. Boyd, Iowa, 224 N.W.2d 609 (1974), Iowa;
State v. Mielson, La., 284 So.2d 873 (1973), Louisiana;
Commonwealth v. Rugaber, ........ Mass. .......- , 343 N.E.2d
865 (1976), Massachusetts;
People v. Broils, 58 Mich.App. 547, 228 N.W.2d 456
(1975), Michigan;
State v. Luciow, ........ Minn. ........ , 240 N.W.2d 833
(1976), Minnesota;
State v. Baca, 84 N.M. 513, 505 P.2d 856 (197€), New
Mexico;
People v. Alfinito, 16 N.Y.2d 181, 264 N.Y.S.2d 243, 211
N.E.2d 644 (1965), New York;
Wright v. State, Okla.Cr., 552 P.2d 1157 (1976), Okla-
homa;
State v. Wright, Or., 511 P.2d 1223 (1973) (by statute),
Oregon;
Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342
(1973), Pennsylvania;
State v. Sachs, 264 S.C. 541, 216 S.E.2d 501 (1975),
South Carolina;
State v. Bankhead, 30 Utah2d 135, 514 P.2d 800 (1973)
(by statute), Utah; and
State v. Goodlow, 11 Wash.App. 533, 523 P.2d 1205
(1974), Washington.
In at least two states, the question has been left un-
decided. State v. Breest, ........ + a , 367 A.2d 1220,
1329 (1976); State v. Appleton, ........ Be dadoats , 297 A.2d
363, 367 n.1 (1972). Furthermore, two states formerly
thought to support the rule are now subject to doubt.
Compare Seager v. State, 200 Ind. 579, 164 N.E. 274 (1928)
with Grzesiowski v. State, ........ Ind.App. ........ , 343 N.E.2d
305 (1976) (recognizing rule by implication). Most in-
terestingly, Montana, from whom our Motion to Suppress
statute, K.S.A. 22-3216, was borrowed, appears to have
overruled sub silentio an earlier case which held that
a facially valid warrant could not be subsequently im-
peached. In State v. Manoff, 160 Mont. 344, 502 P.2d
20
1138 (1972), without referring to State v. English, 71 Mont.
343, 229 Pac. 727 (1924), the Montana Court held:
“It is clear that erroneous information was given to
the district judge, and that this information provided
the evidence upon which the warrant was issued. We
cannot uphold warrants which are not based on prob-
able cause, and probable cause cannot be established
by the use of incorrect information.”
The following twelve states hold that Search Warrant
Affidavits may not be challenged:
Powell v. State, ........ Spree , 540 S.W.2d 1 (1976),
Arkansas;
State v. Williams, 160 Conn. 322, 363 A.2d 71 (1975),
Connecticut;
People v. Bak, 45 Ill.2d 140, 258 N.E.2d 341, cert.
denied, 400 U.S. 882, 27 L.Ed.2d 121, 91 S.Ct. 117
(1970), Illinois;
State v. Lamb, 209 Kan. 453, 497 P.2d 275 (1972),
Kansas;
Berkshire v. Commonwealth, ........ SY wdainnts , 471 S.W.2d
695 (1971), Kentucky;
Wood v. State, ........ ewe , 322 So.2d 462 (1975),
Mississippi;
State v. Brugioni, 320 Mo. 202, 7 S.W.2d 262 (1928),
Missouri;
State v. Harris, 25 N.C.App. 404, 213 S.E.2d 414, cert.
denied, 287 N.C. 666, 216 S.E.2d 909 (1975);
State v. Petillo, 61 N.J. 165, 293 A.2d 649 (1972), cert.
denied, 410 U.S. 944, 35 L.Ed.2d 611, 93 S.Ct. 1393
(1973), New Jersey;
21
State v. Seymour, 46 R.I. 257, 126 Atl. 755 (1924),
partially overruled on oath grounds, State v. Le-
Blanc, 100 RI. 523, 217 A.2d 471 (1966),
Rhode Island;
Owens v. State, 217 Tenn. 544, 399 S.W.2d 507 (1965),
Tennessee; and
Barnes v. State, Tex.Crim.App., 520 S.W.2d 401 (1975),
Texas.
It is noteworthy that federal courts in New Jersey
and North Carolina have granted relief to Petitioners, on
habeas corpus, wherein state courts have refused to grant
relief in attempting to challenge material false representa-
tion of fact in Search Warrant Affidavits. United States,
ex rel. Petillo v. New Jersey, 400 F.Supp. 1152 (D.N.J.
1975), vacated per curiam, 541 F.2d 275 (3rd Cir.), on
remand, 418 F.Supp. 686 (1976); Wrenn v. North Carolina,
No. 72-2176 (E.D.N.C., 11/5/73), aff'd per curiam, 486
F.2d 1399 (4th Cir. 1973), cert. denied, 417 U.S. 973, 41
L.Ed.2d 1144, 94 S.Ct. 3180 (1974) (White, J. and Burger,
C. J., dissenting).
It is of exceeding interest that the Kansas Supreme
Court on April 9, 1977, additionally handed down its Opin-
ion in State v. Ames, No. 48,366; the Opinion is not reported
at this point, however, is reproduced herein in Appendix
C. The Court concluded in the Ames decision that the
statements made by the Affiant in a Search Warrant Affi-
davit, even though based on the Affiant’s personal obser-
vation, save the address of the Appellant’s wife, which
was hearsay. The hearsay nature of the latter statement
was not disclosed to the issuing magistrate.
22
The Court thereafter concluded that this point was
raised by the Appellant at the suppression hearing before
trial. “In its ruling on the Motion to Suppress, the Dis-
trict Court stated that if the Warrant had been issued
on a finding of probable cause, based on material written
statements under oath that were later shown to be untrue,
items seized should be suppressed. Evidence at the sup-
pression hearing, however, showed the sworn statement
was true. Should the items seized be suppressed anyway
because hearsay was involved and there was no find-
ing based upon the two-pronged test of Aguilar? The
District Court answered this question in the negative. It
reasoned that warrants may be based on hearsay, and
where the hearsay statements are true and are of the
nature of the statements in this case, the evidence seized
should not be suppressed. We agree with the District
Court. The hearsay involved in this case did not affect
the magistrate’s probable cause determination. Failure
to comply with the Aguilar requirement does not mandate
suppression under the instant facts.” (A15, A21). The Kan-
sas Supreme Court therefore appears to employ a two-
prong test in determining whether false representations
of fact in Search Warrant Affidavits allow for inquiry
in relation thereto. The obvious difficulty is determining
which of the two prongs affords the Appellant the right
to make such inquiry.
In addition, it readily appears that this Honorable
Court demands disclosure, not suppression, and further ex-
acts appropriate penalties for falsity of any nature as false
testimony readily violates DUE PROCESS. Giglio v.
United States, 405 U.S. 150, 154, 31 L.Ed.2d 104; compare
Goldberg v. United States, 422 U.S. 94, 47 L.Ed.2d 603.
CONCLUSION
To sustain Hartman’s Affidavit herein as justifying
the needed verbiage for a finding of probable cause, would
require the elimination of both this Honorable Court’s
eyes and ears.
It would further necessitate the Court to stamp its
approval and to condone perjury as to information so criti-
cally inaccurate as to raise the spectre of the prosecution
and to condone conviction of the innocent.
It would further require this Honorable Court to deny
the existing precedent of every federal circuit court of
appeals and to repudiate their announced wisdoms. This
practice necessarily would deny STARE DECISIS, along
with the annihilation of the Fourth and Fifth Amendments
to the United States Constitution, reducing jurisprudence
to the “shifting sands of time”; impossible to find, seldom
repeated, ever-changing, and always subject to the
whim of its Divine Provider. The Petitioner therefore
respectfully urges this Honorable Court to grant his Peti-
tion for Writ of Certiorari.
Very respectfully submitted,
Joun C. HUMPAGE
314 West Seventh Street
Topeka, Kansas 66603
Phone: (913) 235-5351
Attorney for Petitioner
Al
APPENDIX A
No. 48,484
STATE OF KANSAS, // %/ ?
Appellee,
VS.
STEVEN CHARLES SANDERS,
Appellant.
SYLLABUS BY THE COURT
Before a search warrant may be validly issued there
must be presented before the issuing magistrate sufficient
facts to enable him to make an intelligent and independent
determination that probable cause exists.
2.
While an affidavit to support the issuance of a search
warrant may be based o;. hearsay, there must be adequate
affirmative allegations of the affiant’s personal knowledge
of the information provided, to provide a rational basis
upon which the issuing magistrate can make a finding of
probable cause.
3.
It is generally held that in the absence of statutory
authority to the contrary a party against whom a search
warrant is directed may not dispute the matters alleged
in the supporting affidavit or complaint. (Following State
v. Wheeler, 215 Kan. 94, Syl. 4, 523 P. 2d 722.)
A2
Appeal from Wyandotte district court, division No. 3;
HARRY G. MILLER, judge. Opinion filed April 9, 1977.
Affirmed.
John C. Humpage, of Topeka, argued the cause and
was on the brief for the appellant.
Zygmunt Jarczyk, Assistant District Attorney, argued
the cause, and Curt T. Schneider, Attorney General, Nick
A. Tomasic, District Attorney, and Dennis L. Harris, Assis-
tant District Attorney, were on the brief for the appellee.
The opinion of the court was delivered by
KAUL, J.:
Defendant-appellant, Steven Charles Sanders, appeals
from a conviction, in a trial to the court, of possession of
Cannabis Sativa L. (marijuana) with the intent to sell in
violation of K. S. A. 1976 Supp. 65-4127b. The central issue
involves the sufficiency of an affidavit upon which a search
warrant was issued.
The search warrant in question was issued by the
judge of division No. 6 of the Wyandotte district court on
May 12, 1974. As a result of the execution of the search
warrant quantities of narcotic drugs were seized at the
residence of the defendant and a four count information
was filed against him. Three counts were later dismissed.
Prior to the scheduled date for a preliminary hearing, de-
fendant filed, in the magistrate court, a motion to suppress
the evidence seized in the execution of the warrant. After
an evidentiary hearing before the magistrate, defendant’s
motion to suppress was denied, and thereupon defendant
waived preliminary hearing and was bound over for trial
to the district court.
A3
In the district court, defendant filed a second pretrial
motion to suppress the evidence on essentially the same
grounds as alleged in his first motion. After a hearing
before the district court, defendant’s motion was again de-
nied. Thereupon, the parties stipulated that a trial by jury
would be waived, the state dismissed three counts of the
information, and it was further stipulated and agreed that
the case would be submitted to the district court upon a
stipulation of facts which reads in pertinent part:
“THAT IT IS STIPULATED BY THE PARTIES
hereto that the Defendant was an occupant of the
premises at 35 South 15th Street (upstairs apartment),
Kansas City, Kansas, on May 12, 1974.
“IT IS FURTHER STIPULATED AND AGREED
BY THE PARTIES HERETO that the authorities
gained entry to said premises on May 12, 1974, on the
basis of a Search Warrant issued by the Honorable
Cordell Meeks, Judge of the Wyandotte County Dis-
trict Court, Division No. 6, on May 12, 1974, said Search
Warrant to be admitted into evidence herein and
marked as Defendant’s Exhibit ‘A’. The Search War-
rant issued on the basis of an Affidavit submitted by
Jack Hartman, Special Agent, Attorney General’s Of-
fice, on May 12, 1974, said Affidavit to be admitted
into evidence and marked Defendant’s Exhibit ‘B’.
“THE PARTIES ADDITIONALLY STIPULATE
that as a result of the execution of the Search Warrant
herein, the Officers removed from the Defendant’s
premises ‘32 large packages’ of green vegetation, same
marked as the State’s Exhibit 1, which has addition-
ally been analyzed by a forensic chemist and the
chemist’s testimony would reflect that the green vege-
A4
tation, the ‘32 large packages’, possessed the properties
of Cannabis Sativa L. and serves as the basis of the
prosecution herein.
“THE PARTIES AGREE AND STIPULATE FUR-
THER that at the time of the State’s offer of its Ex-
hibit 1 into evidence herein, the Defendant would re-
new his objection to its introduction for the reasons
more fully set out in the Defendant’s Pretrial Motion
to Suppress and Memorandum filed in support thereof,
same being overruled by the Court on April 16, 1975.
“THE PARTIES FURTHER STIPULATE that the
transcript of the Defendant’s Preliminary Hearing,
same being conducted by the Magistrate Court of
Wyandotte County, Kansas, on July 18, 1974, for the
sole purpose of presenting the issue of material false
representation of fact, the issue being readily raised
in the Defendant’s Motion to Suppress, should be ad-
mitted into evidence for this purpose and marked De-
fendant’s Exhibit ‘C’.
“IT IS ADDITIONALLY AND FURTHER STIP-
ULATED AND AGREED BY AND BETWEEN THE
PARTIES HERETO that the Defendant had witnesses
in attendance to the Court on April 3, 1975, to testify
in relation to the issue of material false representation
of fact that the Defendant raised in his Motion to Sup-
press; however, the Court was not inclined to hear any
of the testimony from the witnesses on this issue.”
The court accepted the stipulation and admitted the
evidence as stipulated and after considering the same found
the defendant guilty as charged in the remaining count.
After a motion for a new trial was denied, this appeal was
perfected.
A5
The points raised by defendant all go to the validity
of the search warrant and the sufficiency of the supporting
affidavit upon which the issuing judge relied. Defendant’s
argument on his first point goes to the sufficiency of the
information contained in the affidavit for search warrant
signed by Jack L. Hartman, a special agent for the attorney
general’s office.
The affidavit reads in material part:
“The undersigned being duly sworn deposes and
says:
“That he has reason to believe that on the prem-
ises known as 35 South 15th Street (upstairs apt.) in
the Wyandotte District of Kansas, there is now being
concealed certain property, namely Cannabis Sativa L.
(commonly known as Marijuana) Cocaine, and Heroin
which are illegal for possession by the Uniform Con-
trol Substance Act, K. S. A. 65-4105.
“And that the facts tending to establish the fore-
going grounds for issuance of a Search Warrant are
as follows: The assigning Officer swears and affirms
that he has information from a confidential informant,
who he has known for several months who has given
him information in the past that has proven to be
correct, that at the above address is secreted Heroin
and Cocaine in one ounce lots and Marijuana in one
pound lots. The confidential informant states that
this is the residence of Steve Sanders, and he has pur-
chased the above mentioned items within the last 24
hours.
“/s/ Jack L. Hartman
“Special Agent, A.G. Office.”
(Emphasis supplied.)
A6
While the affidavit is not drawn with grammatical
skill, it is sufficient on its face. It describes the premises
and subject property of the search with certainty and
identifies defendant as being the resident. The critical in-
formation is hearsay obtained from an unnamed informant;
however, reliability is shown by the statement that pre-
vious information received proved to be correct and more
importantly the affidavit states that informant had pur-
chased illegal drugs within the previous 24-hour period.
The last statement is an admission by the informant
against his criminal interest.
Principles governing the determination whether a
search warrant was validly issued, enunciated by the
United States Supreme Court in leading cases on the sub-
ject, were analyzed and the precedents therein were
adopted by this court in State v. Hart, 200 Kan. 153, 434
P. 2d 999, wherein we said:
“We are mindful of what has been said in Na-
thanson v. United States, 290 U. S. 41, 78 L. Ed. 159,
54 S. Ct. 11; Giordenello v. United States, 357 U. S.
490, 2 L. Ed. 2d 1503, 78 S. Ct. 1245; and Aguilar v.
Texas, 378 U. S. 108, 12 L. Ed. 2d 723, 84S. Ct. 1509;
and we recognize the precedent established by those
cases. The import of those decisions, as we read them,
is that before a search warrant may validly be issued,
there must have been placed before the issuing mag-
istrate sufficient facts to enable him to make an in-
telligent and independent determination that prob-
able cause exists; that bald conclusions or mere af-
firmations of belief or suspicion are not enough; and
while an affidavit may be based on hearsay, there
must be sufficient affirmative allegations as to the
affiant’s personal knowledge or his knowledge con-
AT
cerning his informant, or as to the informant’s per-
sonal knowledge of the things about which the infor-
mant spoke, to provide a rational basis upon which
the magistrate can make a judicious determination of
probable cause.” (p. 162.)
The requirements for the issuance of a state search
warrant based on hearsay, set forth in Aguilar v. Texas,
378 U. S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, were fur-
ther considered by this court in State v. Hubbard, 215
Kan. 42, 523 P. 2d 387. In Hubbard, as in the case at bar,
the affidavit in support of the search warrant was based
largely upon hearsay. We spoke of the Aguilar test as
being twofold with respect to the supportive strength of
hearsay evidence. The first test concerns the reliability
of the informant’s information and the second is the re-
quirement that the magistrate be informed of the under-
lying circumstances which led an affiant to believe the
informant to be credible. In the instant affidavit the af-
fiant swears that the informant has supplied information
in the past which has proven to be correct. This satisfies
the reliability test. Affiant’s statement that a purchase
was made within the last 24 hours discloses underlying cir-
cumstances which would permit the affiant to believe the
informant to be credible.
The record reflects, as will be discussed later, that all
of the information available to affiant was not presented.
Neither full disclosure of facts at hand nor elaborate spec-
ificity are required. (United States v. Ventresca, 380 U. S.
102, 13 L. Ed. 2d 684, 85 S. Ct. 741.)
Although the court in Spinelli v. United States, 393
U. S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584, found that the
affidavit therein fell short of the standards set forth in
A8
Aguilar, it reaffirmed principles pertinent to the issue
which had been enunciated in prior decisions. The court
said:
“. . . In holding as we have done, we do not re-
treat from the established propositions that only the
probability, and not a prima facie showing, of crim-
inal activity is the standard of probable cause, Beck
v. Ohio, 379 U. S. 89, 96 (1964); that affidavits of
probable cause are tested by much less rigorous stan-
dards than those governing the admissibility of evi-
dence at trial, McCray v. Illinois, 386 U. S. 300, 311
(1967); that in judging probable cause issuing magis-
trates are not to be confined by niggardly limitations
or by restrictions on the use of their common sense,
United States v. Ventresca, 380 U. S. 102, 108 (1965);
and that their determination of probable cause should
be paid great deference by reviewing courts, Jones
v. United States, 362 U. S. 257, 270-271 (1960)... .”
(p. 419.)
While, as we have previously indicated, the instant
affidavit is not a model of literary composition, its mean-
ing clear when read in a common sense and realistic
fashion. This statement appearing in United States v.
Ventresca, supra, is apropos:
“. . . If the teachings of the Court’s cases are to
be followed and the constitutional policy served, af-
fidavits for search warrants, such as the one involved
here, must be tested and interpreted by magistrates
and courts in a common sense and realistic fashion.
They are normally draited by nonlawyers in the midst
and haste of a criminal investigation. Technical re-
quirements of elaborate specificity once exacted un-
A9
der common law pleadings have no proper place in
this area. A grudging or negative attitude by review-
ing courts toward warrants will tend to discourage
police officers from submitting their evidence to a
judicial officer before acting.” (p. 108.)
Reading the instant affidavit as a whole, in the con-
text of the foregoing rules, we are satisfied there was a
substantial basis for the issuing judge to conclude that
narcotics were probably present in defendant’s residence
and that is sufficient. (Jones v. United States, 362 U. S.
257, 4 L. Ed. 2d 697, 80 S. Ct. 725, 78 A. L. R. 2d 233.)
We conclude the affidavit, on its face, sufficiently estab-
lished probable cause for the issuance of a warrant under
the foregoing tests.
In his second point, defendant claims error in the trial
court’s refusal to permit defendant to submit evidence
which defendant claims would show a material false rep-
resentation of fact in the affidavit of special agent Hart-
man. Defendant strenuously argues that even if the af-
fidavit of Hartman was facially sufficient, he was entitled
to go behind the surface of the affidavit after initial
showing of a misrepresentation of a material fact. In sup-
port of his position defendant relies upon United States
v. Carmichael, 489 F. 2d 983 (7th Cir. 1973) and other fed-
eral cases in accord.
In answer to defendant’s arguments, the state first
responds by pointing out that the rule followed in this
jurisdiction is that in the absence of statutory authoriza-
tion a person against whom a search warrant is directed
may not dispute the matters alleged in the affidavit sup-
porting the warrant. (State v. Wheeler, 215 Kan. 94, 523
P. 2d 722; State v. Lamb, 209 Kan. 453, 497 P. 2d 275; 4
Al0
Wharton’s Criminal Law and Procedure, Search and Sei-
zure, Sec. 1545, pp. 167, 168; 5 A. L. R. 2d, Anno., p. 394;
68 Am. Jur. 2d, Searches and Seizures, Sec. 66, p. 720.)
While, as defendant points out, there is some authority to
the contrary (See Vols. 1-6 A. L. R. [2nd Series] Later
Case Service 1976 Supp., Sec. 3, p. 73 [5 A. L. R. 2d, p.
405].), the rule of Lamb and Wheeler prevails in a ma-
jority of jurisdictions. The state of the law is summed
up in 68 Am. Jur. 2d, supra, in these words:
“.. . A majority of the state courts which have
considered the problem have held that in the absence
of statute, the matters contained in an affidavit on
which a search warrant is based may not be disputed
by the person against whom a warrant is directed, for
the purpose of showing the invalidity of the warrant.
A few state courts have taken the position that the
truth or falsity of facts stated in supporting affidavits
may be so disputed, and some federal cases have
stated that such an attack might be permitted where
the defendant makes an initial showing of falsehood.”
(p. 720.)
To this date, at least, the United States Supreme Court
has not seen fit to directly rule upon the extent to which
a court may or must permit an attack upon the supporting
affidavit of a search warrant, which upon its face, estab-
lishes probable cause. The last word from the high court
appears in Rugendorf v. United States, 376 U. S. 528, 11
L. Ed. 2d 887, 84 S. Ct. 825, reh. den. 377 U. S. 940, 12 L.
Ed. 2d 303, 84 S. Ct. 1330, wherein Justice Clark speak-
ing for the court said:
“. . . This court has never passed directly on the
extent to which a court may permit such examination
when the search warrant is valid on its face and when
All
the allegations of the underlying affidavit establish
‘probable cause’; however, assuming, for the purpose
of this decision, that such attack may be made, we
are of the opinion that the search warrant here is
valid....” (pp. 531-532.)
Further in the opinion the court observed that factual in-
accuracies in the affidavit which were developed by tes-
timony, were of only peripheral relevancy to the showing
of probable cause and did not go to the integrity of the
affidavit.
We have examined many of the cases cited by defen-
dant’s industrious counsel. We have also considered the
review of the cases on the subject and the author’s com-
prehensive analysis of all facets of the issue in a treatise
entitled “The Outwardly Sufficient Search Warrant Af-
fidavit: What If It’s False?”, appearing in 19 U. C. L. A.
Law Review, (1971), p. 96. With respect to federal de-
cisions the author observes:
“Lower federal courts are divided on the question
of whether the victim of a search may contest the
veracity of the facts alleged in an affidavit. Those
federal courts allowing challenge have done so under
provisions of Federal Rule of Criminal Procedure
41(e), or a prior statutory enactment, the Espionage
Act of 1917. Other federal courts have refused to
quash warrants or hear evidence tending to show
falsity of the facts of affidavits once a judicial officer
has determined that the warrants rest on probable
cause....” (pp. 104-105.)
Concerning state court decisions, the author says:
“The majority of state courts have been wary
of opening this area to potential abuse by defendants
Al2
and have, therefore, prohibited disputes of search af-
fidavits where such documents establish probable
cause on their face.” (p. 106.)
Our search warrant statutes (K. S. A. 22-2501, et seq.,
{and 1976 Supp.]), enacted in 1970, have not been amended
in any manner relevant to the right of a person to dispute
matters alleged in search warrant affidavits. State v.
Lamb, supra, was decided in 1972 and the holding therein
was restated in the identical language in paragraph (4) of
the syllabus in State v. Wheeler, supra, decided in 1974.
In the absence of statutory direction we find no com-
pelling reason to overrule our holdings in Lamb and
Wheeler.
As an alternative response to defendant’s contentions
the state maintains that even if we were to overrule Lamb
and Wheeler, the record here does not warrant suppression
even under the so-called “attack rule” followed by some
federal courts.
As indicated in the stipulation of the parties, when
defendant’s motion was first presented, prior to pre-
liminary hearing, the magistrate, over the state’s objec-
tion, granted an evidentiary hearing. Agent Hartman was
examined at length. It was brought out that his state-
ment in the affidavit that he had known the informant for
“several months”, was erroneous. Hartman admitted he
had only known the informant for about fifteen days
and indicated the discrepancy resulted from a typist’s
error—that he had said “several weeks” instead of months
when the affidavit was drafted. Hartman’s testimony
revealed that he had had the residence of defendant under
surveillance on several occasions and had witnessed what
he described as traffic in drugs. Hartman further testified
Al3
that at least on one occasion the informant had given in-
formation which enabled Hartman to make a drug buy.
The evidence reveals no intentional or deliberate mis-
representation in the affidavit as to any material matters
relevant to the showing of probable cause. The factual
inaccuracies stressed by defendant fall short of destroying
the integrity of the affidavit. Hartman’s testimony dis-
closes that the affidavit did not reveal all of the sources of
the affiant’s belief, but this was unnecessary. (State v.
Ogden, 210 Kan. 510, 502 P. 2d 654.)
When defendant renewed his motion to suppress be-
fore the trial court the transcript of the testimony in the
magistrate’s hearing was submitted to and considered by
the trial court over the state’s objection. A proffer of evi-
dence made by defendant was, in effect, only a denial of
the averments of the affidavit. In its ruling on defendant’s
motion, the trial court cited the rule of Lamb and Wheeler,
but nevertheless continued:
“Disregarding this, however, if the testimony given
by the officer at the preliminary hearing is to be con-
sidered in this matter, then the entire testimony should
be considered. There was testimony that Hartman
knew the informant ‘several weeks’ and that the in-
formant had given him information on one occasion at
least that had enabled Hartman to make a buy of a
controlled substance. In addition there was evidence
that Hartman had had the premises of defendant under
surveillance on several occasions and witnessed traffic
in drugs at the premises.
- “After consideration, the defendant’s motion to
suppress is denied.”
The judgment is affirmed.
Al4
APPENDIX B
IN THE
SUPREME COURT OF THE STATE OF KANSAS
No. 48,484
State of Kansas,
Appellee,
v.
Steven Charles Sanders,
Appellant.
You are hereby notified of the following action taken
in the above entitled case:
Motion by Appellant for Rehearing.
Motion for Rehearing considered and DENIED, peti-
tion for stay of mandate granted for a period of 30 days
from this date conditioned up.a Appellant’s petitioning
for certiorari to the Supreme Court of the United States.
Yours very truly,
Lewis C. Carter
Clerk, Supreme Court
Date May 18, 1977
Al5
APPENDIX C
No. 48,366
STATE OF KANSAS,
Appellee,
Vv.
ROY EUGENE AMES,
Appellant.
SYLLABUS BY THE COURT
The purpose of the constitutional requirement that
search warrants particularly describe the place to be
searched and the persons or property to be seized is to
prevent general searches and preclude the seizure of items
at the discretion of the officer executing the warrant.
Searches conducted under the authority of warrants
are preferred to warrantless searches. Hence, warrants
and their supporting affidavits are interpreted in a com-
mon sense rather than a hypertechnical fashion so as not
to discourage police officers from submitting their evi-
dence to a judicial officer before acting. Search warrants
and their supporting affidavits are presumed valid, and
one attacking their validity carries the burden of per-
suasion.
Al6
A search warrant shall not be quashed nor evidence
suppressed because of technical irregularities in the war-
rant’s execution unless the defendant demonstrates prej-
udice from the procedural violation.
4
In passing on a motion for judgment of acquittal,
the district court must determine whether upon the evi-
dence, giving full play to the right of the jury to deter-
mine credibility, weigh the evidence, and draw justifiable
inferences of fact, a reasonable mind might fairly con-
clude guilt beyond a reasonable doubt. If he concludes
guilt beyond a reasonable doubt is a fairly possible result,
he must deny the motion and let the jury decide the
matter. If he concludes that upon the evidence there
must be such a doubt in a reasonable mind, he must
grant the motion. (Following State v. Gustin, 212 Kan.
475, Syl. 3, 510 P.2d 1290.)
5.
On appellate review, the question is not whether the
evidence established guilt beyond a reasonable doubt, but
whether the evidence was sufficient to form the basis
for a reasonable inference of guilt. In making this deter-
mination, the evidence is viewed in the light most favor-
able to the state.
A party who shows a judge is prejudiced against him
has a right to have his case tried before some other judge—
either a judge in some other division or district, or a judge
AlT
pro tem. But failure to timely file an affidavit alleging
prejudice as required by statute (K.S.A. 20-311d and 311f)
may bar the movant’s obtaining a change of judge.
7.
A defendant has a constitutional right of self-repre-
sentation and may defend himself without counsel when
he voluntarily and intelligently elects to do so. An in-
digent defendant also has a constitutional right to court-
appointed counsel. But a defendant cannot simultaneously
assert both rights.
When a defendant chooses to have counsel, the con-
duct of the defense of the case rests with the attorney.
The decisions on what witnesses to call, whether and how
to conduct cross-examination, what jurors to accept or
strike, what trial motions to make, and all other strategic
and tactical decisions are the exclusive province of the
attorney after consultation with his client.
The right of a defendant recognized as co-counsel to
participate in the conduct of his defense is within the
sound discretion of the district court as is the ruling on
an indigent defendant’s motion for change of appointed
counsel.
10.
Statements of points which are neither briefed nor
argued on appeal are considered abandoned.
Al8
11.
The record on appeal from a conviction for the offense
of unlawful possession of a firearm is examined, and, as
more fully set forth in the opinion, it is held: (1) the
district court did not err (a) in admitting into evidence
a gun and holster seized under a search warrant, (b) in
denying the appellant’s motion for discharge and for di-
rected verdict, (c) in denying the appellant’s pro se mo-
tion for appointment of a judge pro tem, (d) in limiting
the appellant’s participation at trial and in allowing ap-
pointed counsel the exclusive province over strategic and
tactical decisions in the conduct of the defense, (e) in
denying the appellant’s motion for an order designating
the Menninger Foundation to conduct a psychiatric ex-
amination of the appellant, and (f) in sentencing the
appellant under the Habitual Criminal Act (K.S.A. 21-
4504); (2) the evidence was sufficient to form a reason-
able inference of guilt.
Appeal from Shawnee district court, division No. 4,
ADRIAN J. ALLEN, judge. Opinion filed April 9, 1977.
Affirmed.
Thomas A. Valentine, of Sloan, Listrom, Eisenbarth,
Sloan and Glassman, Topeka, argued the cause and was
on the brief for appellant; and Roy E. Ames was on the
appellant’s brief pro se.
Thomas D. Haney, assistant district attorney, argued
the cause and Curt T. Schneider, attorney general, and
Gene M. Olander, district attorney, were with him on the
brief for appellee.
Alg
The opinion of the court was delivered by
FATZER, C. J.:
This is an appeal by defendant Roy E. Ames from a
conviction by jury trial of the offense of unlawful posses-
sion of a firearm (K.S.A. 21-4204[1] [b]).
On April 2, 1974, a search warrant for a gun and hol-
ster at the downstairs apartment of 1616 Polk in Topeka
was issued. The appellant’s wife lived at this address; the
appellant was in the Shawnee County Jail at the time.
Officers found a revolver in a holster with the belt
wrapped around the holster. Ammunition was in the belt,
and live rounds were in the gun. All were seized. On Au-
gust 28, 1974, an information was filed charging the appel-
lant with the unlawful possession of a firearm with a barrel
less than twelve inches long, within five years after con-
viction for the felony offense of burglary, in the district
court of Shawnee County, Kansas. A jury tria. was com-
menced on December 9, 1974. During noon recess on that
day, jurors observed the appellant in handcuffs. A mis-
trial was granted. The second jury trial commenced on
February 3, 1975. The state’s evidence showed that on
September 21, 1973, the appellant and his wife met Mary
Lou Potter at Wild Willie’s South in Topeka. The appel-
lant pointed out the revolver he wanted and gave Mary
the necessary cash. She bought the gun and gave it to
the appellant. The evidence showed that subsequent to
the purchase, the appellant used the gun for target prac-
tice and frequently practiced fast-drawing the gun in front
of a mirror. Both the appellant and his wife referred to
the gun as his. On February 5, 1975, the jury returned
its verdict, finding the appellant guilty as charged. Fol-
lowing a number of post-trial motions which ultimately
resulted in the district court’s denying the appellant’s mo-
A20
tion for new trial, the appellant was sentenced under the
Habitual Criminal Act on September 30, 1975. This ap-
peal followed.
The appellant’s first three points on appeal deal with
the admission into evidence of the gun and holster seized
under the search warrant. He first contends such admis-
sion was error because the affidavit in support of the
search warrant was fatally defective in that it was based
in part on hearsay and such fact was not disclosed to the
issuing magistrate. :
The affiant was one Dena Christian. She had been
living with the appellant’s wife until they each moved to
a new address only a few days before she made her sworn
statement. In preparing her affidavit at the district at-
torney’s office, Dena was not certain of the address to
which the appellant’s wife had moved. She consulted the
classified section in the newspaper and called the listing
she thought the appellant’s wife had taken. The landlady
told her that the appellant’s wife had rented the down-
stairs apartment at that address. All the statements in
Dena’s affidavit are based on her personal observation
except the address at which she stated the appellant’s wife
was residing. The hearsay nature of the latter statement
was not disclosed to the issuing magistrate.
In State v. Hart, 200 Kan. 153, 434 P.2d 999, this court,
relying on Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723,
84 S.Ct. 1509, set out the requirements for the valid issu-
ance of a warrant:
“... [B]efore a search warrant may validly be
issued, there must have been placed before the issu-
ing magistrate sufficient facts to enable him to make
an intelligent and independent determination that
A21
probable cause exists; . . . while an affidavit may be
based on hearsay, there must be sufficient affirmative
allegations as to the affiant’s personal knowledge or
his knowledge concerning his informant, or as to the
informant’s personal knowledge of the things about
which the informant spoke, to provide a rational basis
upon which the magistrate can make a judicious de-
termination of probable cause.” 200 Kan. at 162.
See State v. Hubbard, 215 Kan. 42, 523 P.2d 387.
The point appellant now raises was raised at the sup-
pression hearing before trial. In its ruling on the motion
to suppress, the district court stated that if the warrant
had been issued on a finding of probable cause, based on
materiel written statements under oath that were later
shown to be untrue, items seized should be suppressed.
Evidence at the suppression hearing, however, showed the
sworn statement was true. Should the items seized be
suppressed anyway because hearsay was involved and
there was no finding based upon the two-pronged test of
Aguilar? The district court answered this question in
the negative. It reasoned that warrants may be based on
hearsay, and where the hearsay statements are true and
are of the nature of the statements in this case the evi-
dence seized should not be suppressed. We agree with
the district court. The hearsay involved in this case did
not affect the magistrate’s probable cause determination.
Failure to comply with the Aguilar requirement does not
mandate suppression under the instant facts.
The appellant next contends admitting the holster
into evidence was error because the warrant authorized
the seizure of only the gun and not the holster.
A22
The search warrant provided in pertinent part:
. I find there is probable cause to believe that
an offense against the laws of the State of Kansas
has been committed and that certain items, to-wit:
One pearl handled white revolver wrapped with tape
on handles. Possibly 38 or 45 caliber with barrel less
than 12” in length, in leather holster . . . are contra-
band or are fruits, instrumentalities, or evidence of
such offense. . . .”
The Fourth Amendment to the United States Con-
stitution and Section Fifteen of the Bill of Rights of the
Kansas Constitution prohibit warrants except those “par-
ticularly describing the place to be searched, and the per-
sons or property to be seized.” The purpose of this re-
quirement is to prevent general searches and to prevent
the seizure of an item at the discretion of the officer.
Stanford v. Texas, 379 U.S. 476, 13 L.Ed.2d 431, 85 S.Ct.
506. The test is one of practical accuracy rather than one
of technical sufficiency, and absolute precision is not re-
quired in identifying the property to be seized. United
States v. Ventresca, 380 U.S. 102, 13 L.Ed.2d 684, 85 S.Ct.
741; 3 C. Wright, Federal Practice and Procedure, Crim-
inal, Sec. 670 (1969).
In Mascolo, Specificity Requirements for Warrants un-
der the Fourth Amendment: Defining the Zone of Privacy,
73 Dick.L.Rev. 1 (1968), it is said:
“The courts prefer searches conducted under the
authority of warrants to those conducted without ben-
efit thereof.
Therefore, warrants, and their supporting affi-
davits, are interpreted in a common sense, rather than
a hypertechnical, fashion. To do otherwise would
A23
‘tend to discourage police officers from submitting
their evidence to a judicial officer before acting.’ Be-
cause of the courts’ preference for warrants, it is pre-
sumed, in the absence of a showing of illegality, that
search warrants are valid. This presumption of le-
gality also applies to supporting affidavits, as well as
to the proper performance by the issuing magistrate
of his official duties. Consequently, one who attacks
the validity of a search warrant carries the burden of
persuasion.” Id. at 7-8.
In the case at bar, there was clearly no extension of
the search involved in seizing the holster, nor, in our opin-
ion, did the officers seize more than was particularly de-
scribed in the warrant. The warrant meets the constitu-
tional requirement of “particularity.”
The appellant next contends that because of the great
number of technical irregularities in connection with the
execution and return of the warrant, the warrant should
have been quashed and the evidence suppressed. There-
fore, admission of the holster and pistol into evidence was
error. The appellant enumerates the following technical
irregularities: (1) the return was unsigned; (2) the hol-
ster was not listed as an item seized; (3) the officer gave
the gun to the district attorney without prior authority
of the magistrate in violation of K.S.A. 22-2512; (4) no
receipt for the items taken was given to the accused or
filed with the magistrate in violation of K.S.A. 22-2512;
(5) the date on the return was in error.
K.S.A. 22-2511 provides:
“No search warrant shall be quashed . . . because
of technical irregularities not affecting the substan-
tial rights of the accused.”
A24
Failure to comply with each of the first four proce-
dural requirements which the appellant lists have been
found in various cases not to require suppression of the
evidence. United States v. Hall, 505 F.2d 961 (3rd Cir.
1974) (return unsigned); Cady v. Dombrowski, 413 U.S.
433, 37 L.Ed.2d 706, 93 S.Ct. 2523 (items seized not listed
on return); State v. Stewart, 219 Kan. 523, 548 P.2d 787
(failure to comply with K.S.A. 22-2512); People v. Canaday,
49 Ill.2d 416, 275 N.E.2d 356 (1971) (failure to give receipt
for items seized). The fifth irregularity—an erroneous
date on the return—is a purely technical error which we
discount out of hand under the facts of this case. We
are cited to no cases and have found none involving as
many irregularities as the instant case.
In State v. Stewart, 219 Kan. 523, 527, 548 P.2d 787,
792, we said:
“Police officers should comply with the statute
[K.S.A. 22-2512] and under certain circumstances
their failure to do so might well preclude the admis-
sion of seized articles into evidence at the trial. The
failure to comply with the statute, however, does not
as a matter of law prevent the admission of the seized
articles into evidence. .. .”
K.S.A. 22-2511 was adopted verbatim from IIl.Rev.Stat.
Ch. 38, Sec. 108-14. Relying on their statute which paral-
lels K.S.A. 22-2511, the Illinois court in People v. Canaday,
49 I1].2d 416, 275 N.E.2d 356 (1971) said:
“. . . [FJailure to comply . . . with a statutory
direction to furnish an inventory of the seized mate-
rials will not in the absence of prejudice invalidate
an otherwise proper search and seizure.” 275 N.E.2d
at 360. (emphasis added)
|
A25
In the instant case, the irregularities occurred after
a valid search and seizure. Hence, they are not constitu-
tionally significant; the ramification of the procedural vio-
lations is governed by the rules of procedure.
Federal Rule of Criminal Procedure 41(d) governs
the execution and return of search warrants. Its require-
ments are similar to those in Article 25 of the Kansas
Code of Criminal Procedure. The Third Circuit in United
States v. Hall, supra, was faced with determining the
proper remedy for failure to adhere to the procedures
of Fed.R.Crim.P. 41(d). Noting the rule did not expressly
address remedies which might flow from noncompliance,
the court turned to Fed.R.Crim.P. 2 for its interpretive
polestar. The language of K.S.A. 22-2103 is identical with
Fed.R.Crim.P. 2. We think Hall’s rationale is persuasive
and adopt it.
Article 25 of the Code of Criminal Procedure outlines
procedures for the execution of a search warrant, but
does not expressly address the remedies, if any, which
flow from a failure to adhere to these procedures. We
turn to K.S.A. 22-2103 as our guide. K.S.A. 22-2103 ex-
presses values sought to be achieved by the Code of Crim-
inal Procedure. It commands a construction which secures
“simplicity in procedure, fairness in administration and
the elimination of unjustifiable expense and delay.” The
manifest intent of the Code is to ensure a just determina-
tion of every criminal proceeding.
Applying these guidelines to the issue before us, we
do not believe it was intended that every violation of
procedures in the Code, however insignificant or inconse-
quential, should give rise to the suppression remedy. Were
that the intent, we think the Code would have specifically
A26
so provided. But we do not believe the Legislature would
enact the Code of Criminal Procedure expressly requiring
certain actions on the part of the state, and not also intend
some remedy to flow from certain violations of the required
procedures. We therefore conclude that a warrant should
be quashed and evidence suppressed by the district court
only when the defendant demonstrates prejudice from a
technical irregularity in violation of the rules of procedure
governing the execution of search warrants.
The foregoing interpretation furthers the governing
intent of the Code—a just determination of every criminal
proceeding—and prevents the wholesale opportunity for
abuse. Suppression remains a viable remedy where a
sufficient showing of prejudice is made—i.e., “prejudice
in the sense that it offends concepts of fundamental fair-
ness or due process.” United States v. Hall, supra, at
964.
While we do not condone the procedural violations
by law enforcement officers in the instant case, we find
the defendant has not demonstrated these technical irregu-
larities resulted in substantial prejudice.
For the reasons as set forth in the foregoing portion
of the opinion, we hold the district court did not err
in its ruling on the suppression motion and its admission
of the pistol and holster into evidence.
The appellant next contends the district court erred
in denying his motion for discharge at the close of the
state’s evidence, and his motion for a directed verdict
after the defense had rested its case.
A motion for discharge, a motion for directed verdict
and a motion for judgment of acquittal all go to the suffi-
A27
ciency of the evidence to support a conviction. See State
v. Gustin, 212 Kan. 475, 510 P.2d 1290; 23A C.J.S. Crim-
inal Law, Sec. 1145(3) (a) (1961). K.S.A. 22-3419 governs
motions for judgment of acquittal. The standards for judg-
ing the sufficiency of evidence in ruling on a motion for
judgment of acquittal were set out in State v. Gustin,
supra. In the instant case, the district court did not err
in this respect. See State v. Anderson, 211 Kan. 148,
505 P.2d 691.
The appellant next contends the state failed to prove
beyond a reasonable doubt the allegations set forth in
the information. This point really goes to the sufficiency
of the evidence. On appellate review, the question is
not whether the evidence establishes guilt beyond a reason-
able doubt, but whether the evidence was sufficient to
form the basis for a reasonable inference of guilt. State
v. Wilson, 220 Kan. 341, 552 P.2d 931. In making this
determination, the evidence is viewed in the light most
favorable to the state. State v. Motor, 220 Kan. 99, 551
P.2d 783.
Viewed in the light most favorable to the state, the
evidence shows that on September 21, 1973, the appellant
and his wife went to Wild Willie’s South in Topeka, and
looked at guns. The appellant had the clerk lay a gun
back for him and left. The appellant called his aunt,
Mary Lou Potter, in Holton, and asked that she come
to Topeka and buy him a gun. Mary came to Topeka
and met the appellant and his wife at Wild Willie’s South.
The appellant pointed out the gun he wanted and gave
Mary the necessary cash. She bought the gun and gave
it to him. After purchasing the gun, all went back to
Holton in Jackson County—the appellant, his wife and
Mary were in the car with the gun. That same day,
A28
the appellant and his wife purchased a holster for the
gun at Woolco in Topeka. The belt and holster were
too big for the appellant’s wife, but fit the appellant.
In January and February of 1974, the appellant and his
wife lived in Topeka; Dena Christian lived with them.
Dena observed the appellant practicing fast-drawing the
gun in front of the mirror almost every day. The sights
on the gun had been filed down, apparently to facilitate
fast-drawing. Dena testified she never saw the appellant’s
wife handling the gun except when they moved. Dena
testified the appellant referred to the gun as his, as did
his wife. When Dena and the appellant’s wife were living
together while the appellant was in jail, Dena never saw
his wife handle the gun except when they moved.
The evidence of events after September 21, 1973, was
relevant to show the requisite possession of the firearm
the appellant exercised on the day it was purchased—
i.e., a willful or knowing possession of a firea‘m with
intent to control the use and management thereof. State
v. Neal, 215 Kan. 737, 529 P.2d 114. We have no hesi-
tancy in finding the evidence was sufficient to form the
basis for a reasonable inference of guilt.
The appellant next contends the district court erred
in denying his pro se motion for appointment of a judge
pro tem.
K.S.A. 20-305 provides that a judge pro tem of the
district court may be selected when the judge is disquali-
fied to sit. (K.S.A. 20-305 was repealed January 10, 1977
[1976 Kan.Sess.Laws, Ch. 146, Sec. 48].) A judge is dis-
qualified to sit when he is shown to be prejudiced against
one of the parties. In re Peyton, 12 Kan. 398, *311.
Ee
A29
K.S.A. 20-311d provides:
“(a) If either party to any action in a district
court files an affidavit alleging any of the grounds
specified in subsection (b) the administrative judge
shall at once transfer the action to another division
of the court. ...
“(b) Grounds which may be alleged as provided
in subsection (a) for change of judge are:
“(5) That the party filing the affidavit has cause
to believe and does believe that on account of the
personal bias, prejudice, or interest of the judge he
cannot obtain a fair and impartial trial. Such affidavit
shall state the facts and the reasons for the belief
that bias, prejudice or an interest exists.”
K.S.A. 20-311f provides in pertinent part:
“ .. [A] party shall have seven (7) days after
pretrial, or after receipt of written notice of the judge
to which the case is assigned or before whom the
case is to be heard, whichever is later, in which the
affidavit may be filed.”
On January 30, 1975, the appellant filed a pro se
motion for appointment of a judge pro tem pursuant to
K.S.A. 20-305. On January 31, 1975, a motion by the
appellant through his appointed counsel was filed pursuant
to K.S.A. 20-311d for the disqualification of The Honorable
Adrian J. Allen, judge of the fourth division of the district
court of Shawnee County before whom the case was to
be tried. The administrative judge transferred the latter
motion to Judge William R. Carpenter of the first division
for hearing and determination. On February 3, 1975, the
A30
morning scheduled for the start of the appellant’s trial,
Judge Carpenter heard arguments on the motion for dis-
qualification of Judge Allen and denied the motion because
it was untimely filed under K.S.A. 20-311f. Judge Car-
penter filed his written decision on the motion on the
afternoon of February 3, 1975; thereafter, Judge Allen
denied the appellant’s pro se motion for judge pro tem
and the trial commenced. Judge Allen stated:
“Let the recc . how that the minutes reflect
that Judge Carpen... neard an application for disquali-
fication of myself today to hear this case which was
denied, and accordingly the Court feels that the motion
for a pro tem should also be denied.”
The appellant concedes Judge Carpenter properly
overruled the motion for disqualification because it was
untimely filed, but argues the time limits in K.S.A. 20-
311f cannot apply to a motion for a judge pro tem under
K.S.A. 20-305. Consequently, it was error for Judge Allen
to rely on Judge Carpenter’s ruling on procedural grounds.
The appellant argues his pro se motion should have been
determined on the merits by a judge other than Judge
Allen. The appellant’s point is not well taken.
A party who shows a judge is prejudiced against him
has a right to have his case tried before some other judge—
either a judge in some other division or district, or a
judge pro tem. In re Peyton, supra. The first step in
getting a new judge, pro tem or otherwise, is to show
prejudice. K.S.A. 20-31ld sets out the procedures for this
determination. Only after a finding of prejudice under
the procedures of K.S.A. 20-31ld would the provisions
for appointment of a judge pro tem under K.S.A. 20-
305 come into play. To allow a movant for disqualification
A31
of a judge barred by the time limitations of K.S.A. 20-
311f to proceed under K.S.A. 20-305 regardless of time,
would circumvent the procedures for disqualification of
a judge.
K.S.A. 20-311f was a procedural bar to both the motion
for disqualification and the pro se motion for appointment
of a judge pro tem. The district court properly did not
rule on the merits of either motion; neither will this court
reach the merits of either motion on appeal.
The appellant’s next two points will be considered
together. The appellant contends he was denied the right
to have compulsory process for obtaining witnesses in his
favor in contravention of the Sixth Amendment of the
United States Constitution and Section Ten of the Bill
of Rights of the Kansas Constitution when the district
court ruled his court-appointed attorney had the sole power
to decide who would testify in the appellant’s behalf. The
appellant further contends this denial of compulsory pro-
cess together with the court-sanctioned refusal of his at-
torney to present the appellant’s desired defenses con-
stituted violations of rights that are necessarily implied
from the Sixth Amendment and Section Ten of the Kansas
Bill of Rights—i.e., the right to assist in his own defense.
It is quite clear from the record that the appellant
and his appointed counsel disagreed from the outset as
to what witnesses should be called and how the defense
should be presented. The appellant wanted to go into
areas in his defense strategy that his counsel thought were
collateral and irrelevant. The appellant filed a pro se
motion directing that some fourteen witnesses be sub-
poenaed. The appellant apparently wanted several of these
witnesses to present his theory of the defense. The judge
A32
ruled that while the appellant had the right to compulsory
process, the ultimate decision on which witnesses would
be subpoenaed was for his counsel as were other matters
of trial strategy. Appellant’s counsel talked to the wit-
nesses and knew what they would say; he called only
those witnesses which, in his opinion, were pertinent to
the defense.
There was also some dispute as to the degree of ap-
pellant’s participation in his defense. The appellant was
recognized as co-counsel at his arraignment. During the
course of the proceedings below, he filed a plethora of
pro se motions. He was allowed to argue some of these
pro se motions at both pretrial and post-trial hearings.
At trial, the appellant wanted not only to direct the course
of his defense strategy, but also wished to take part in
jury selection and wanted the right to have certain ques-
tions asked of witnesses. The appellant was not allowed
to so participate at the trial. Conduct of the trial was
entirely under the contro] of appointed counsel, although
he did listen to the appellant’s suggestions.
The appellant repeatedly stated he wanted appointed
counsel. He also wanted the right to conduct his own
defense. On October 10, 1974, the appellant’s first court-
appointed counsel was allowed to withdraw, and another
attorney was appointed. It is not clear from the record
why the appellant wanted the change. The court allowed
the change because both counsel and the appellant agreed
to it. When it became apparent that his second appointed
counsel would not call all the witnesses the appellant
desired or present his theory of the defense, the appellant
asked the court to dismiss him and appoint a third counsel.
The court advised the appellant he had the right to defend
~ «we
A33
himself or to have appointed counsel. The appellant
wanted counsel, and the court refused to make another
change.
In Faretta v. California, 422 U.S. 806, 45 L.Ed.2d 562,
95 S.Ct. 2525, the United States Supreme Court held that
the Sixth Amendment, as made applicable to the states
by the Fourteenth Amendment, guarantees that a defen-
dant in a state criminal trial has an independent constitu-
tional right of self-representation in that he may proceed
to defend himself without counsel when he voluntarily
and intelligently elects to doso. The opinion states:
“The Sixth Amendment does not provide merely
that a defense shall be made for the accused; it grants
to the accused personally the right to make his de-
fense. It is the accused, not counsel, who must...
be accorded ‘compulsory process for obtaining wit-
nesses in his favor.’ Although not stated in the
Amendment in so many words, the right to self-repre-
sentation—to make one’s own defense personally—is
thus necessarily implied by the structure of the
Amendment. The right to defend is given directly
to the accused; for it is he who suffers the conse-
quences if the defense fails.” 422 U.S. 819-20.
The appellant relies on Faretta for the proposition
that he had a constitutional right to dictate what witnesses
would be called and to participate in his own defense.
We disagree.
Prior to Faretta, federal courts held that a party had
a right to represent himself or to be represented by counsel,
but did not have the right to hybrid representation.
United States v. Hill, 526 F.2d 1019, 1024 (10th Cir. 1975).
Faretta ratified a consensus within the federal judiciary
A34
favoring a constitutional right to pro se representation.
United States v. Swinton, 400 F.Supp. 805 (S.D.N.Y. 1975).
Faretta did not alter the established rules concerning hy-
brid representation. United States v. Hill, supra. See
United States v. Bennett, 539 F.2d 45 (10th Cir. 1976);
United States v. Williams, 534 F.2d 119, 123 (8th Cir.
1976). An indigent accused has a right to either appointed
counsel or pro se representation, but both rights cannot
simultaneously be asserted. See United States v. Williams,
supra; United States v. Swinton, supra; People v. Morris,
12 Mich.App. 411, 163 N.W.2d 16 (1968). A defendant
who accepts counsel has no right to conduct his own trial
or dictate the procedural course of his representation by
counsel. See Rogers v. United States, 325 F.2d 485, 488
(10th Cir. 1963); People v. LaMarr, 1 Mich.App. 389, 136
N.W.2d 708 (1965).
The Faretta decision recognized that the defendant
could either represent himself or be represented by coun-
sel:
“. . It is true that when a defendant chooses
to have a lawyer manage and present his case, law
and tradition may allocate to the counsel the power
to make binding decisions of trial strategy in many
areas. (citations omitted) This allocation can only
be justified, however, by the defendant’s consent, at
the outset, to accept counsel as his representative.
An unwanted counsel ‘represents’ the defendant only
through a tenuous and unacceptable legal fiction. Un-
less the accused has acquiesced in such representation,
the defense presented is not the defense guaranteed
him by the Constitution, for, in a very real sense,
it is not his defense.” 422 U.S. at 820-21.
——_-— =
A35
There is no question appellant wanted appointed coun-
sel, but he did not want to be bound by the decisions
of counsel. Our holding in Winter v. State, 210 Kan.
597, 502 P.2d 733, is apropos:
“In the control and direction of a criminal case
certain decisions relating to the conduct of the case
are ultimately for the accused and others are ulti-
mately for defense counsel. The decisions which are
to be made by the accused after full consultation with
counsel are: (1) what plea to enter; (2) whether
to waive jury trial; and (3) whether to testify in
his own behalf.” (Syl. 1)
“In the conduct of the defense of a criminal case
the technical and professional decisions, which require
trained professional skill and judgment, must rest with
the lawyer. The decisions on what witnesses to call,
whether and how to conduct cross-examination, what
jurors to accept or strike, what trial motions should
be made, and all other strategic and tactical decisions
are the exclusive province of the lawyer after consul-
tation with his client.” (Syl. 2)
Although the appellant was recognized as co-counsel,
his right to participate with counsel in the conduct of
his defense was still within the sound discretion of the
district court. United States v. Swinton, supra, at 806;
Fowler v. State, 512 P.2d 238 (Okla. Crim. App. 1973);
see State v. Kelly, 210 Kan. 192, 499 P.2d 1040. We would
also note that an indigent criminal defendant may not
demand a different appointed counsel except for good
cause, and it is within the sound discretion of the district
court to decide whether the dissatisfaction of an indigent
accused with his court-appointed counsel warrants dis-
A36
charge of that counsel and appointment of new counsel.
State v. Banks, 216 Kan. 390, 532 P.2d 1058.
We hold that, under the facts of the instant case,
the appellant’s right to compulsory process was not
abridged, and the district court did not abuse its discretion
in limiting the appellant’s participation in his defense or
in denying his request for change of appointed counsel.
The appellant next contends the district court erred
in denying his motion for an order designating the Men-
ninger Foundation to conduct a psychiatric examination
of him in order to aid the court in determining whether
he was, prior to the rendition of the judgment and during
his trial, incompetent to stand trial as defined in K.S.A.
22-3301(1) (b).
Shortly after trial, the appellant’s court-appointed
counsel was allowed to withdraw and yet another counsel
was appointed as a result of allegations of ineffective as-
sistance of counsel in the appellant’s pro se motion for
a new trial. Two months after trial, the new appointed
counsel filed a motion to determine the appellant’s compe-
tency to stand trial. A psychiatrist with the Shawnee
County Court Clinic was directed to examine the appellant
concerning his competency. At the hearing on the motion
on June 3, 1975, the psychiatrist testified his examination
was inconclusive. After he testified, the appellant went
into a tirade and was twice found in contempt. The psy-
chiatrist took the stand again and testified concerning the
appellant’s conduct he had just observed. Based primarily
upon this testimony, the district court found the appellant
was unable to understand the nature of the proceedings
against him or to make or assist in making his defense.
The court ordered him committed to the state security
—— 6 et owse™
A37
hospital at Larned for a period not to exceed six months.
On July 1, 1975, Larned submitted a report to the district
court; a hearing was held on July 25, 1975, and, based
on the Larned report, the court found the appellant was
competent to stand trial, and ordered suspended proceed-
ings on motions, including motions for new trial, be re-
sumed. Thereafter, appellant’s counsel filed a motion
requesting the court to designate the Menninger Founda-
tion to conduct a further psychiatric examination of the
appellant to determine whether he was competent at the
time of trial. The district court heard arguments on the
motion, took it under advisement and, on August 25, 1975,
denied it.
The district court’s ruling appears to have been based
on doctor’s reports and upon the court’s own observation
of the appellant during trial and at numerous other court
appearances. The court had before it psychiatric evalua-
tions of the appellant made two and a half years before,
six months before and five months after the trial, all
of which indicated the appellant was competent to stand
trial. The first report by the Shawnee County Court Clinic
psychiatrist, filed some three months after trial, was incon-
clusive. Only the psychiatrist’s report based entirely on
his observations at the hearing on June 3, 1975, indicated
the appellant was incompetent to stand trial. The district
court noted that the appellant’s conduct had been observed
at various stages in pretrial and trial proceedings by two
public defenders, by various members of the district attor-
ney’s office and by several judges, none of whom ques-
tioned his competency based upon personal observation.
We do not find the district court abused its discretion
in denying the motion for a further psychiatric examination
by the Menninger Foundation or in finding the appellart
A38
was competent to stand trial at the time of trial. See
Johnson v. State, 208 Kan. 862, Syl. 1, 494 P.2d 1078;
State v. Ridge, 208 Kan. 236, Syl. 3, 491 P.2d 900; State
v. Kelly, 192 Kan. 641, 391 P.2d 123.
The appellant next contends the district court erred
in sentencing him pursuant to the Habitual Criminal Act
(K.S.A. 21-4504). The appellant argues the judgment of
conviction relied upon by the state in invoking the statute
should have been presumed void because the journal entry
was ambiguous as to whether counsel was present at the
time of sentencing, and in view of the appellant’s testi-
mony he had no counsel at the time of sentencing.
The district court found that counsel was present at
sentencing and that the Florida conviction could properly
be used for purposes of the Habitual Criminal Act. We
have no dispute with this finding. The Florida journal
entry appears in the record and from our reading it is
not ambiguous. It indicates counsel was present at the
time of sentencing. The district court apparently did not
believe the appellant’s testimony that no counsel was pres-
ent. It is not the function of the Supreme Court to reweigh
the evidence or pass on the credibility of testimony. State
v. Duke, 205 Kan. 37, 468 P.2d 132. The district court
did not err in invoking the Habitual Criminal Act pursuant
to K.S.A. 21-4504.
The appellant raised other points which do not merit
discussion. We have carefully considered each and find
no error. Points fifteen through nineteen in the appellant’s
statement of points are considered abandoned, having been
neither briefed nor argued on appeal. State v. Piland, 217
Kan. 689, 538 P.2d 666.
The judgment is affirmed.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.