Record and brief — Simpson v. Kansas

| Office - Supreme Court, U.S.

81 -739 FILED

OCT 14 1981

No. ALEXANDER |. sTy Vas.

near tna

THE SUPREME COURT OF THE UNITED STATES

October Term, 1981

DANIEL W. SIMPSON, Petitioner

Vv.

STATE OF KANSAS, Respondent

PETITION FOR WRIT OF CERTIORARI

TO REVIEW THE JUDGMENT IN A

CRIMINAL CASE RENDERED BY

The Supreme Court of Kansas

Case No. 80-52459-A

KERMIT M. BEAL

Counsel of Record for

Petitioner

JERRY L. DONNELLY

Co-Counsel

1035 Vermont Street

P. O. Box 13306

Lawrence, Kansas 66044

913-841-2294

QUESTION PRESENTED FOR REVIEW

Whether the search of an automobile

based on consent meets constitutional stan-

dards where the owner consents to the search

while in police custody but prior to being

arrested, and where the police induce consent

through the use of a fraudulent pretext while

the owner is intoxicated.

TABLE OF CONTENTS

Index to Authorities ......+.-e«#+.-s. ii

Opinion Below >. * . . . * . . . . . _ iii

Jurisdictional Statement ....... iii

Constitutional Provision and

Statute Involved * . . > * >. _ >. > iv

Statement of the Case ......-«. -« 1

Peoee@Gural Gietery . . « « s+ e.e es 1

Relevant Facts «. .<« «ese cee se 2

Reasons for Granting this Writ .... 9

Conc lus ion . 7 . . . . . . . . . . . . 1 8

Appendix A . . . . . . . . ad . . ad . . 2 1

Opinion of the Supreme Court

of Kansas of July 17, 1981 ..... 21

-i-

Judgment of the Supreme Court

of Kansas of July 17, 1981. .

Journal Entry of the District

Court of Douglas County,

Kansas, of August 5, 1980 ..

Appendix B..+-+-e«ce eevee

Motion to Suppress Evidence

in the District Court of

Douglas County, Kansas, of

June 17, 1980 ...«e«-e-e ee

INDEX TO AUTHORITIES

Camara v. Municipal Court, 387

U.S. 523, 87 S.Ct. lio, 18

L.Ed.2d 930 wn ¢ «© © © « ¢

Chambers v. Maroney, 399 U.S.

42, 90 S.Ct. 157s, 26 L.Ed.

24 419. (1970 «4 2 2 2 0 ct 8

Chimel v. California, 395 U.S.

eGbe , 23 L.Ed.

2d 685. ae hUcethmlCl wml hl Omlc OhlUc hl el

Coolidge v. New Hampshire, 403

U. Ss. . Cee 2, 29

L.Ed.2d 564 [aves 6 ee «6 6

District of Columbia v. Little,

178 F.2d 13 (D.C.Cir. 1949)

ene°@ Bae Gels BP 6 2c ce te

Johnson v. United States, 333

U.S. 10, 68 $.ct. 367, 92

L.Ed. 436 | ee ee a

Ma v. Ohio, 367 U.S. 643, 81

peat 1684, 6 L.Ed.2d 1181

(1961) . . . . . . . . 2 = . .

etie

ll,

12,

25

25

29

10

12

12

13

17

14

10

Miranda v. Arizona, 384 U.S.

436, 86 S.Ct. 1602, 16 L.

B4.24 694 (1966) «. « «© & 6

Schneckloth v. Bustamonte,

U.S. , §.Ct.

2041, 36 L.Ed.2d 854

(1973) e . ° e . . 2 * ° . . e 13, 14,

United States v. Chadwick,

433 U.S. Le 97 §.Ct. 2476,

S53 L.B4.24 $38 (1972) .- ee

United States v. Griffin,

F. th Cir.

1976) a . >. — a . * * _ . . .

OPINION BELOW

14

15

10

17

The per curiam, memorandum opinion of

the Supreme Court of Kansas was unreported.

It appears in Appendix A hereto, infra, page

y The judgment of the Supreme Court of

Kansas appears in Appendix A hereto, infra,

page 25. The Journal Entry of the District

Court of Douglas County, Kansas, appears in

Appendix A hereto, infra, page 25.

JURISDICTIONAL STATEMENT

The judgment of the Supreme Court of

Kansas was entered on July 17, 1981.

-iii-

titioner invokes the jurisdiction of this

Court under 28 U.S.C. §1257(3).

l.

CONSTITUTIONAL PROVISION AND

STATUTE INVOLVED

The Fourth Amendment, United States

Constitution, which provides:

2.

"The right of the people

to be secure in their per-

sons, houses, papers, and

effects, against unreason-

able searches and seizures,

shall not be violated, and

no Warrants shall issue,

but upon probable cause,

supported by Oath or af-

fiarmation, and particularly

describing the place to be

searched, and the persons

or things to be seized."

The statute under which petitioner

was prosecuted, though nothing turns on its

terms, was K.S.A. 65-4127b(a) (3), 1979 Supp.,

which provides as follows:

"65-4127b. Manufacture,

possession, disposition or

sale of depressant, stimu-

lant or hallucinogenic

drugs; penalties.

"(a) Except as authorized

by the Uniform Controlled

Substances Act, it shall

-iv-

be unlawful for any per-

son to manufacture, pos-

sess, have under such

person's control, pre-

scribe, administer, de-

liver, distribute, dis-

pense or compound:

"(3) any hallucin-

ogenic drug desig-

nated in subsection

(d) of K.S.A. 65-

4105.

"Any person who violates

this subsection shall be

guilty of a class A mis-

demeanor, except that

upon conviction of a

second or subsequent of-

fense, such person shall

be guilty of a class D

felony."

1k.S.A. 65-4105(d) (11) lists marijuana

the drug petitioner was convicted of having

in his possession.

-V~-

STATED ENT OF THE CASE

The facts necessary to place in its

setting the question now raised can be

briefly stated:

1. Procedural history of the case now

before this Court.

On August 5, 1980, in a combined trial

and hearing on petitioner's motion to sup-

press evidence, entitled State of Kansas v.

Daniel W. Simpson, Case No. 80-223, peti-

tioner was tried by the District Court of

Douglas County, Kansas, on a complaint al-

leging six counts in violation of K.S.A. 65-

4127b. At the conclusion of the State's

testimony, the Court ruled on petitioner's

motion to suppress evidence.

The Court found that the evidence sup-

porting Counts I through V was improperly

seized during an unlawful search. However,

the Court also ruled that the evidence sup-

porting Count VI had been taken during a

lawful search. Accordingly, the Court sus-

tained petitioner's motion to suppress evi-

je

dence as it related to Counts I through V

and overruled petitioner's motion to sup-

press evidence as it related to Count VI.

On that basis, the Court dismissed

Counts I through V and found petitioner

guilty of Count VI charging violation of

K.S.A. 65-4127b(a) (3).

On August 5, 1980, the District Court

of Douglas County, Kansas, entered judgment

and petitioner was sentenced to one year's 3

imprisonment in the County Jail and fined

$150 plus costs.

On August 6, 1980, petitioner filed a

notice of appeal to the Supreme Court of

Kansas. The judgment and sentence of the

District Court was affirmed by the Supreme

Court of Kansas, State of Kansas v. Daniel

W. Simpson, Case No. 80-52459-A, unpublished

memorandum opinion No. 52,459. (See Appen-

dix A, infra, page 21)

2. Relevant facts concerning the un-

derlying conviction for misde-

meanor possession of marijuana.

a2o

At 11:48 p.n. on the night of April l,

1980, an officer of the Lawrence, Kansas,

Police Department was dispatched to the

Kwik Shop, 1714 West 23rd Street, Lawrence,

Kansas, in response to a request from the

store's night manager that two individuals

be removed from the premises. The night

manager, Mr. Lance R. Norris, informed the

officer, Kenneth McKenzie, that petitioner,

Mr. Daniel W. Simpson, and an unknown male

companion had caused a disturbance with his

customers. (R. 6, 49)

Officer McKenzie confronted petitioner

outside the store. Petitioner's companion,

upon observing the arrival of the police,

had fled from the premises. According to

the police report, petitioner appeared to

be in a very intoxicated state. Officer

McKenzie's uncontroverted trial testimony

demonstrates that at this time petitioner's

speech was slurred, he had problems with

balance, (R. 62) but petitioner did not

oie

have the smell of alcohol on his breath.

(R. 65, 69) These outward manifestations

led Officer McKenzie to presumptively con-

clude that the petitioner was under the in-

fluence of an illegal drug or narcotic

which could be hidden in an automobile.

(R. 70)

When asked for identification, peti-

tioner had difficulty finding and removing

his driver's license from his wallet. (R.

51) After the officer returned his driver's

license, petitioner asked the officer how

to get out of Leawood, Kansas, a Johnson

County, Kansas, community 35 to 40 miles

southeast of Lawrence. Upon hearing this

rather unusual question, Officer McKenzie

asked the petitioner what town he was in.

Petitioner replied that he was in Kansas

City, Kansas, a Wyandotte County, Kansas,

community that is actually 30 to 35 miles

northeast of Lawrence. (R. 61-62) Based

on this conversation, coupled with his

-4-

observations of petitioner's speech, bal-

ance, and breath, Officer McKenzie ordered

the petitioner not to drive his car, to go

next door and get some coffee, sober up,

and find his friend before returning to

Leavenworth, Kansas, where petitioner re-

sides. (R. 50, 63)

Thereafter, petitioner was kept under

surveillance by Officer McKenzie from a

parking lot across the street. Shortly

after the surveillance was initiated, Of-

ficer Greg Hudson joined Officer McKenzie.

While discussing Officer McKenzie's ini-

tial confrontation with the petitioner and

the nature of petitioner's intoxication,

the officers observed the petitioner re-

peatedly get in and out of his car, and

further observed the petitioner circle the

outside of the store several times. It

was apparent to the officers that the peti-

tioner was looking for something. (R. 52)

Approximately 30 minutes after Officer

-5-

McKenzie began his surveillance of the

petitioner, the officers were summoned to

the store again. Mr. Norris had called

the police station a second time stating

that he wanted to lock up the store and

he was concerned about the petitioner's

continued presence. (R. 7-8, 21)

Upon their arrival, Officers Hudson

and McKenzie confronted the petitioner,

asking him why he had not sobered up and

left the premises. The petitioner re-

plied that he could not find his keys.

(R. 53)

Except for a negligible improvement

in his ability to walk, the petitioner's

mental and physical condition had not ma-

terially changed over the course of the

half-hour surveillance. (R. 64) Peti-

tioner's intoxication was obvious to Of-

ficer Hudson, who had not engaged the

petitioner prior to this encounter. The

petitioner's slurred speech, poor motor

a6

skills, and unresponsiveness to further

questions from the officers verified in Of-

ficer Hudson's mind the diminished capacity

of the petitioner. (R. 40-41) In fact,

the petitioner repeated his desire to leave

Leawood, Kansas. (R. 34) Because peti-

tioner continued to exhibit signs of ex-

treme intoxication, Officer McKenzie ad-

mitted at trial that, at this point in

time, he still would not have allowed a

man in petitioner's condition to drive a

car. (R. 65)

While Officers McKenzie and Hudson

were questioning and observing the peti-

tioner, he continued to look for his car

keys. Officer Hudson asked if he could

search the car for the keys. The peti-

tioner consented. Officer Hudson immedi-

ately searched the area under the driver's

seat and discovered a soft, vinyl bank bag.

Officer Hudson got out of the car with the

bag and asked petitioner if the keys were

-7-

inside the bag. The petitioner responded,

"I don't know, look." Officer Hudson then

opened the bag and found, among other things,

a plastic bag that appeared to contain mari-

juana. (R. 23-25)

The petitioner was then given Miranda

warnings by Officer Hudson, although, ac-

cording to Officer Hdson, the petitioner

was not under arrest at this point. (R.

24, 39) The petitioner was asked if the

bank bag and its contents were his. He

replied, "Yes, can I go home now?" (R. 66)

Officer Hudson then asked the petitioner

for permission to search the trunk of the

car if the officers could find the car keys.

The petitioner gave Officer Hudson permis-

sion to search the trunk, saying, "Yes, if

you could find the keys." (R. 54)

Officer Hudson found the keys near the

back of the store approximately 10 minutes

after he had discovered the bank bag. (R.

28) The officer again requested permission

wae

to search the trunk, advising the petitioner

to keep his rights in mind. (R 54-55) The

petitioner again consented and the subse-

quent search revealed that the trunk appar-

ently contained a sizable quantity of illegal

drugs. (R. 31-32) Only after the trunk had

been searched did the officers place the pe-

titioner under arrest. (R. 33)

REASONS FOR GRANTING THIS WRIT

The trial court's ruling suppressing

the evidence necessary to find petitioner

guilty of Counts I through V involved the

drugs found in the search of the trunk.

Since the petitioner was tried in a com-

bined trial and hearing on the motion to

suppress evidence, any question as to the

suppression of the trunk evidence is now

moot as petitioner was acquitted on Counts

I through V after jeopardy had attached.

The only issue before this Court is the

validity of the initial search of peti-

=o

tioner's car which led to the discovery of a

small bag apparently containing marijuana.

The Fourth Amendmert to the United

States Constitution protects citizens

against unreasonable searches and seizures

by the federal government. This Court has

interpreted the due process clause of the

Fourteenth Amendment to extend this pro-

tection to unreasonable searches and sei-

zures by state authorities. Mapp v. Ohio,

367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1181

(1961). Moreover, this protection applies

to the search and seizure of an automobile,

United States v. Chadwick, 433 U.S. l, 97

S.Ct. 2476, 53 L.Ed.2d 538 (1972), even if

the individual is not suspected of criminal

activity. Camara v. Municipal Court, 387

U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930

(1967).

Subject only to a few well-defined ex-

ceptions, this Court's unbroken precedents

hold that searches conducted without a judi-

-~10-

cial warrant are per se unreasonable. The

exceptions are "jealously and carefully

drawn" and there must be a clear showing

by those seeking the exception that the

exigencies of the situation made a war-

rantless search imperative. Coolidge v.

New Hampshire, 403 U.S. 443, 445, 91 S.Ct.

2022, 29 L.Ed.2d 564 (1971). In this case,

the only exception to the warrant require-

ment that applies to the initial search

involves the fact that petitioner consented

to the search.

The initial search cannot be justified

on the basis of probable cause and exigent

circumstances. The officers had no informa-

tion that would give them probable cause to

believe that the petitioner's car contained

contraband until after the first search was

concluded. During the entire search period,

the petitioner was in effective police cus-

tody and did not have his car keys. Hence,

there was no possibility that his car could

-ll-

be removed from the store's parking lot be-

fore a warrant could be obtained. There-

fore, no exigent circumstance or probable

cause validates the officers’ warrantless

search. Chambers v. Maroney, 399 U.S. 42,

90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

Nor is it meritorious to justify the

search as incidental to a lawful arrest.

The petitioner was not under arrest until

after the conclusion of the second search.

Further, the area searched was not within

his immediate control. Hence, this excep-

tion is similarly inapplicable. Johnson

v. United States, 333 U.S. 10, 68 S.Ct.

367, 92 L.Ed.2d 436 (1948), Chimel v.

California, 395 U.S. 752, 89 S.Ct. 203,

23 L.Ed.2d 685 (1969). The "plain view"

doctrine, which allows police to seize in-

criminating evidence that is in "plain

view," if and only if the initial intru-

sion is lawful, has no application in the

case at bar. The contents of the closed

@12-

bag under the driver's seat were obviously

not in plain view. Coolidge v. New Hampshire,

supra.

The only basis on which the initial

search of petitioner's car can be justified

is his consent. This was recognized by

both the prosecution and defense counsel

when they argued that the sole issue as

to the initial search was the validity of

the petitioner's consent. (R. 71-78)

The proper legal standard for deter-

mining the validity of a purported consent

measures the "voluntariness" of the con-

sent. Thus, whether consent to search is

in fact voluntary, is a question of fact

to be determined from the totality of the

surrounding circumstances. Schneckloth v.

Bustamonte, 412 U.S. 218, 93 S.Ct. 2041,

36 L.Ed.2d 854 (1973).

In determining the voluntary nature

of a consent, a variety of factors warrant

judicial attention. Here, the evidence at

o1 3<

trial conclusively established that the con-

sent was obtained while petitioner was in

custody, an inherently coercive situation

that renders a consent involuntary. John-

son v. United States, supra; Schneckloth,

supra; Miranda v. Arizona, 384 U.S. 436,

86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The consent was obtained through the

use of a fraudulent pretext. The officers

admitted at trial that they would not have

let petitioner drive his car. (R. 50, 63,

65) Clearly, their motive in asking him

if they could search the car for the keys

was not to allow petitioner to leave after

the keys were found. Since the officers

were not prepared to let petitioner leave

once the keys were found, some unknown mo-

tive must have prompted their request to

aid petitioner in finding his keys.

The petitioner was never informed of

his right to refuse consent. While such

knowledge is not a prerequisite to a valid

-14-

consent, it is one factor to be taken ac-

count of in determining the voluntariness

of petitioner's consent. Schneckloth, supra.

However, the necessity of being informed

of one's constitutional right to refuse

consent becomes critical where, as here,

the officers obtain consent by disguising

their motives.

The petitioner was obviously in a "vul-

nerable subjective state" due to his se-

verely impaired mental capacity which re-

sulted from his extreme intoxication. In

Schneckloth, supra, the Court noted that

“account must be taken of subtly coercive

police questions, as well as the possibly

vulnerable subjective state of the person

who consents." 412 U.S. at 229. Petitioner

had been confronted and interrogated by the

police twice; he had been abandoned by his

companion; he did not have possession of

his car keys, and, as the trial court spe-

cifically concluded, he did not even know

Ss {=

what town he was in. (R. 79) A more vul-

nerable subjective state would be difficult

to imagine.

Clearly, in light of all the surround-

ing circumstances, the petitioner's pur-

ported consent to the initial search cannot

be reasonably seen as the product of a ra-

tional intellect and a free will. However,

the trial court failed to determine the va-

lidity of the petitioner's initial consent

when it ruled that the officers had not

conducted the initial search totally for

improper motives. (R. 78-79) The court's

legal justification for its ruling is er-

roneous. There is no recognized exception

to the warrant requirement, under the facts

of this case, which would validate even a

good faith search of an individual's car

without a valid consent.

Proper motivation or intention has no

recognized legal significance which is suf-

ficient, standing alone, to justify a war-

=-i6e

rantless search. District of Columbia v.

Little, 178 F.2d 13 (D.C. Cir. 1949) (aff'd

339 U.S. 1). The motive and intents of the

police officers in conducting the search,

proper or improper, are important only to

the extent that they bear on the validity

of the consent. United States v. Griffin,

530 F.2d 739 (7th Cir. 1976). The officers'

motives bear on the validity of the consent

in the case at bar by reducing to a nullity

petitioner's constitutional right to refuse

consent.

The only motive apparent to the peti-

tioner to explain the actions of the police

suggested that the police were there to help

him find his keys so he could leave. The

police did nothing to alter this perception.

In fact, they cultivated this perception

when they knew it to be false. Because the

police did nothing to dispel a false image

that they intentionally created, petitioner

was precluded from making a knowing, intel-

=)

ligent, and voluntary consent.

While the appearance of doing what was

necessary so that petitioner could drive

again disguised whatever unknown intent the

officers did possess, their actual intent

ultimately becomes irrelevant. The simple

truth remains that they did not reveal

whatever their true motive was; they al-

lowed petitioner to labor under the false

assumption that they were going to let him

leave once the keys were found; and, while

under the influence of this false assump-

tion, they induced the petitioner to con-

sent to the search.

CONCLUSION

The trial court was required in the

instant cise to make a finding that the pe-

titioner gave a knowing, intelligent, and

voluntary consent to the initial search of

his automobile in order for that search to

be held constitutionally permissible. The

-18-

trial court failed to make such a determina-

tion, basing its ruling that the search was

reasonable on an improper ground, i.e., the

motivation of the searching officer. This

error is particularly prejudicial in view

of the court's ultimate conclusion that the

petitioner was incapable of giving a valid

consent within a few short minutes after

the initial search.

The court's correct conclusion that

the petitioner was incapable of giving a

valid consent to the second search leads,

a fortiori, to the inescapable conclusion

that the petitioner was incapable of giving

a valid consent to the initial search. Any

attempted distinction between the two searches

is simply untenable. The trial court, there-

fore, committed reversible error when it re-

fused to suppress the evidence obtained in

the initial search of petitioner's automobile.

This petition for a writ of certiorari should,

therefore, be granted.

-19-

Respectfully submitted this Vig]

day of October, 1981.

KE T M. BEAL

Counsel of Record

for Petitioner

JERRY L. DONNELLY

Co-Counsel

1035 Vermont Street

P. O. Box 1330

Lawrence, Kansas 66044

913-841-2294

CERTIFICATE OF SERVICE

The undersigned hereby certifies that

he mailed 40 copies of the foregoing Peti-

tion for Writ of Certiorari to Review the

Judgment in a Criminal Case Rendered by the

Supreme Court of Kansas, Case No. 80-52459-A

to The Honorable Justice Thurgood Marshall,

c/o Clerk of the Supreme Court of the United

States, 1 First Street, N.—E., Washington,

D.C. 20543, and 5 copies to Michael J. Malone,

Douglas County District Attorney, Judicial

and Law Enforcement Center, Lawrence, Kansas

66044, by depositing said copies in the

United States mail, postage prepaid, on

the 14th day of October, 1981.

en a Ras 8

eS Pt ee ee

‘Kermit M. Beal slic

@20~

APPENDIX A

"NOT DESIGNATED FOR PUBLICATION

No. 52,459

STATE OF KANSAS

Appellee,

Vv.

DANIEL W. SIMPSON,

Appellant.

MEMORANDUM OPINION

“Appeal from Douglas district court;

JOHN MIKE ELWELL, associate judge. opin-

ion filed July 17, 1981. Conviction af-

firmed; State's appeal dismissed.

"John R. Hooge, of Allen & Cooley, of

Lawrence, argued the cause, and Jerry L.

Donnelly, of Lawrence, was on the brief

for the appellant.

"Harry E. Warren, assistant district

attorney, argued the cause, and Robert T.

Stephan, attorney general, and Michael J.

Malone, district attorney, were on the

brief for the appellee.

"Per Curiam: Daniel Simpson appeals

=2le@

his conviction of one count of possession

of marijuana, K.S.A. 65-4127b, upon a bench

trial in Douglas district court. The prin-

cipal issue is the validity of defendant's

consent to a search. Police officers were

called to a convenience store in Lawrence

about midnight on April 1, 1980. Simpson,

obviously somewhat intoxicated, was reported

to have caused a minor disturbance. The of-

ficers told Simpson to get some coffee at a

nearby cafe, sober up, and go home. About

30 minutes later he was still there; he

seemed to be looking for something in and

around his car. Simpson told the officers

that he could not find his keys. One of-

ficer volunteered to help, and asked if he

could look in the car for the keys; defen-

dant immediately consented. The officer

found a tan bank bag beneath the front seat;

he said "I asked him [Simpson] if the keys

could be in there, and he said he didn't

know, go ahead and look.” The bag contained

-22-

a pair of scissors and marijuana. Defendant

later consented to a search of the trunk,

where other drugs were found.

"Defendant filed a motion to suppress

all evidence seized from inside the ve-

hicle. Counsel and the court agreed that

the court would rule upon the motion after

hearing the State's evidence. In this

posture, the case went to trial. At the

close of the State's evidence, the trial

judge denied the motion as to the mari-

juana seized during the hunt for the keys,

but he sustained the motion as to the

large quantity of drugs found in the trunk.

"We have carefully reviewed the trial

judge's ruling. Although he spoke at

length about the officers' motives, it is

obvious that he was aware that the prin-

cipal issue, where consent is challenged,

is whether the consent was voluntary.

Schneckloth v. Bustamonte, 412 U.S. 218,

-23<

plicit in his ruling is the finding that the

defendant voluntarily and knowingly con-

sented to the initial search for his car

keys, which search led to the discovery of

the marijuana. The evidence supports such

a finding.

"That the court found the defendant

to be incapable at a later time of volun-

tarily consenting to a search of the trunk

is immaterial.

"The State appeals upon a question re-

served pursuant to K.S.A. 1980 Supp. 22-

3602 (b) (3), and attempts to challenge the

trial court's finding that the defendant

did not knowingly and voluntarily consent

to the search of the trunk. Had the rul-

ing suppressing the evidence been made be-

fore trial, the State could have taken an

interlocutory appeal. K.S.A. 1980 Supp.

22-3063. Any question as to the suppres-

sion of evidence is now moot, since trial

has been held and jeopardy has attached;

-24-

and we see no issue of statewide interest

or vital to the uniform administration of

law.

"The judgment of conviction is af-

firmed; the State's appeal is dismissed.

"Not designated for publication."

"IN THE SPECIALIZED DIVISION OF

THE DISTRICT COURT OF DOUGLAS

COUNTY, KANSAS

STATE OF KANSAS, Plaintiff

-vs- CASE NO. CR 80-223

DANIEL W. SIMPSON, Defendant

JOURNAL ENTRY

"Now on this 24th day of April, 1980,

the defendant appears by his attorney, Mr.

Jerry Donnelly, for the purpose of arraign-

ment. Defendant waives arraignment and

trial is set for the 22nd day of May, 1980

at 2:30 P.M.

"Now on this 15th day of May, 1980 the

case is continued by the defendant to the

19th day of June, 1980 at 10:00 A.M.

-25-

"Now on this 24th day of June, 1980

the case is continued by the defendant to

the 17th day of July, 1980 at 2:00 P.M.

"Now on this 3rd day of July, 1980

the case is continued by agreement to the

5th day of August, 1980 at 3:00 P.M.

"Now on this 5th day of August, 1980

the defendant appears before the court in

person and with his attorney, Mr. Jerry

Donnelly. The state appears by Assistant

District Attorney, Mr. Harry Warren. The

state thereupon presents its evidence and

moves to introduce its exhibits, at which

time the defendant moves to su[p]press all

exhibits based upon the argument that it

was an illegal search and seizure. The

court finds that all items seized pursuant

to a search of the trunk should be su[p]-

pressed and that items found within the

passenger part of the vehicle will be re-

ceived and are not the subject of an il-

legal search. Whereupon the state rests.

=26-

The defendant presents no evidence.

"Closing arguments are presented by

the state and defendant at which time the

court finds the defendant guilty of Count

VI of the complaint, the charge being Pos-

session of Marijuana. The remaining

charges are dismissed.

"The court advises the defendant that

normally, under the circumstances, a pre-

sentence report would be requested; how-

ever, counsel and the defendant request

the court to go ahead with sentencing im-

mediately as an appeal will be taken.

Prior to sentencing the court is advised

that the defendant has the following crim-

inal record:

"Conviction of Possession

of Marijuana (Misdemeanor.

"Conviction in 1974 in

Douglas County of Grand

Larceny (Felony).

“Additionally, the court is advised

that at the time of the arrest a quantity

@27e

of assorted drugs were found in the trunk

of the defendant's vehicle, which evidence

has been su[p]pressed. Nevertheless, it

shows the following quantities and types

of drugs:

"1200 White tablets -

Lemmon 714

"149 Mandrax white

table[t]s 69017

"33 Black capsules 18-

789 (tall orange con-

tainer

"71 Orange capsules -

21 - tablet 555-47 (fat

orange container)

"90 valium - 10 tablets

(short orange container)

"2 L.S.D. Papers

"1 2"xl" Hash dark square

(Plastic bag)

"2 light brown chunks -

Hash

"9 Bags Marijuana

"The defendant and counsel are given

an opportunity to speak in regard to sen-

tencing, following which the court sentences

-28-

the defendant to serve one year in the

County Jail, to pay a fine of $150.00

Plus costs of this action.

"The court is advised tha[t] an ap-

peal wi..l be taken, at which time the court

sets an appeal bond in the sum of $1500.00.

That bond having been made, the defendant

is released pending the appeal.

(SEAL) csf John Mike Elwell

J I

ASSOCIATE DISTRICT JUDGE"

"IN THE DISTRICT COURT OF DOUGLAS

COUNTY, KANSAS

State of Kansas, Plaintiff

vs. No. CR80-223

Daniel W. Simpson, Defendant

MOTION TO SUPPRESS EVIDENCE

"Comes now the defendant, Daniel W.

Simpson, by anu through his attorney, Jerry

L. Donnelly, and moves the Court to suppress

as evidence any and all evidence gained by

law enforcement agents by means of an unlaw-

ful search of a certain 1970 Buick 4-Door

-29-

automobile, which unlawful search and seizure

were conducted on or about April l, 1980. In

support of this motion, defendant states and

alleges:

"1. The alleged contraband seized from

the aforementioned motor vehicle was not in

“plain view" of the arresting officers, and

a search was conducted to discover the same.

"2. The said search was made without

warrant and without authority. Any alleged

consent to search was invalid for the rea-

sons stated in the supporting brief.

"3. The aforesaid search and seizure

of alleged contraband were illegal because

there was no probable cause for the search

and seizure.

"4. The search, seizure, and arrest

were illegal because there was no author-

ity to arrest, and said search and seizure

were, therefore, not incidental to a law-

ful and valid arrest.

"5S. The search was unreasonable.

-30-

"6. The grounds heretofore enumerated

make such search violative of Amendment 4 of

the United States Constitution and compelled

the defendant to give evidence against him-

self in violation of the self-incrimination

clause of Amendment 5 of the United States

Constitution.

“WHEREFORE, counsel respectfully re-

quests that an order be entered suppressing

the evidence wrongfully seized herein and

that the same be ordered excluded as evi-

dence against the defendant, Daniel W.

Simpson, and that any conversations or

statements made by said defendant in con-

nection with said arrest be similarly or-

dered suppressed.

Respectfully submitted,

/s/ Jerry L. Donnelly

Jerry L. Donnelly

1035 Vermont Street

P. O. Box 1330

Lawrence, Kansas 66044

913-841-2294"

=3]-

"NOTICE OF HEARING

TO: Harry Warren

Assistant District Attorney

Douglas County, Kansas

"Please take notice that the foregoing

motion to suppress evidence will be brought

on for hearing before the Douglas County

District Court, Specialized Division, the

Honorable John Michael Elwell presiding,

on the 19th day of June, 1980, at 10:00

o'clock a.m., or as soon thereafter as

counsel can be heard.

"Dated this 17th day of June, 1980.

s/ Jerry L. Donnell

Jerry L. Donnelly

"CERTIFICATE OF SERVICE

‘The undersigned hereby certifies that

he delivered a true copy of the foregoing

Motion to Suppress Evidence to Harry Warren,

Asst. District Attorney, Judicial and Law

Enforcement Center, Lawrence, Kansas 66044

on the 17th day of June, 1980.

s/ Jer L. Donnell

Jerry L. Donnelly

=32<