Petition — Barrow v. Kansas

88-1497

In the Supreme Court of the United States

October Term, 1983

THE STATE OF KANSAS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE KANSAS SUPREME COURT

Joun C. Humpacs

(Counsel of Record)

314 West Seventh Street

Topeka, Kansas 66603

Phone: (913) 235-5351

Counsel for Petitioner

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BE. L. Meweanmats, iee., 986 Cherry Strest, Kanses City, Mo. 64106, (816) 421-8080

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QUESTION PRESENTED

1. Is it reasonable, under the Fourth Amendment to

the Constitution of the United States, for a State Highway

Patrolman to search the premises of third party, where

the Highway Patrolman is allegedly in pursuit of a vehicle

wanted only for a non-violent misdemeanor (speeding), and

where the Highway Patrolman, having lost sight of the

vehicle, was unable to identify the vehicle or so much as

the number of occupants, and the gender of the driver,

exigent circumstances having dissipated, without attempt-

ing to obtain judicial approval for the admitted reason that

he did not possess sufficient information or facts. The

Petitioner’s prosecution herein resting on his failure to con-

sent to the intrusion, along with his insistence that the

officer obtain judicial approval.

CONSTITUTIONAL AND STATUTORY PROVI.

SIONS INVOLVED ve

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

1. Has the “Hot Pursuit” Exception to the Fourth

Amendment to the United States Constitution

Now Been Reduced to Allow the Warrantless In-

trusion of a Third Party’s Premises, Absent a

Warrant, Probable Cause, Exigent Circum-

stances or Consent for a Non-Violent Misde-

meanor, Speeding -

The Order of the Supreme Court Denying Peti-

tioner’s Petition for Review

Opinion of the Kansas Court of Appeals

Applicable Kansas Statutes

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TABLE OF CASES AND STATUTES

Boyd v. United States, 116 U.S. 616, 635 (1886) ........... 13

Chimel v. California, 395 U.S. 752 (1969) 9

Coolidge v. New Hampshire, 403 U.S. 443, 480 (1971)

6, 10

Dorman v. United States, 435 F.2d 385 (C.A. D.C. Cir.

1970) 10

Johnson v. United States, 333 U.S. 10 (1948) —........6,9, 10

Ker ». California, 374 U.S. 23, 34 (1963) 13

McDonald v. United States, 335 U.S. 451, 456 (1948) 9

People v. Swirecz, 432 N.E.2d 900 (Ill. 1982) ............ 13

People v. Young, 242 N.E.2d 587 (Ill. 1968) ................ 13

Rochin v. California, 342 U.S. 165 (1952) 13

Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973) 13

State of Kansas v. Platten, 225 Kan. 764, 504 P.2d 201

(1979) 10

Steagald v. United States, 451 U.S. 204, 221 (1981)... 12

Thompson v. Louisville, 362 US. 199, 205 (1960) ...... 13

United States v. Reed, 572 F.2d 412 (2nd Cir. 1978) ... 10

United States v. Santana, 427 U.S. 38 (1976) 8,9

Vale v. Louisiana, 399 U.S. 30, 35 (1970) 6, 12

Warden v. Hayden, 383 U.S. 249 (1967) —...............7,8,9

United States Constitutional Amendment IV 2

KSA. 21-3808 2,13

K.S.A. 1982 Supp. 22.2401a (6) (c) 13

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No.

In the Supreme Court of the United States

October Term, 1983

MARION BARROW,

Petitioner,

vs.

THE STATE OF KANSAS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE KANSAS SUPREME CUURT

The Opinion of the Court of Appeals of the State of

Kansas is unpublished and is appended hereto. The Order

JURISDICTION

The Judgment of the Court of Appeals of the State

of Kansas was rendered on November 23, 1983. A timely

Petition for Review by the Supreme Court of the State

of Kansas was denied on January 20, 1984, and this Peti-

tion for Certiorari was filed within sixty (60) days of

that date. This Court’s jurisdiction is invoked under 28

US.C., Sec. 1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the Constitution of the

United States (U.S. Const, Amend. [V) provides:

“The right of the people to be secure in their persons,

houses, papers and effects, against unreasonable

searches and seizures, shal] not be violated and no

ported by or affirmation, and particularly de-

scribing the place to be searched and the persons or

things to be seized.”

STATEMENT OF THE CASE

The Petitioner was convicted of obstructing official

duty in violation of Kansas Statutes Annotated, Sec.

21-3808. Obstructing official duty, in this case, is a Class

A misdemeanor, punishable by confinement in the County

jail for a term not exceeding one (1) year, and/or a fine

in a sum not to exceed $2,500.00. At the Defendant’s

trial, the following facts were developed:

On March 12, 1982, at approximately 10:20 pm.,

Trooper Gary Thiessen of the Kansas Highway Patrol

was on duty, patrolling a stretch of U.S. Highway 75,

approximately one mile south of the City of Holton in

Jackson County, Kansas. The officer met a vehicle, which f

his radar indicated was traveling at a speed of 72 m.p.h.,

a violation of the 55 m.p.h. speed limit in effect. The

officer turned his patrol car around and proceeded to

pursue the vehicle with his red lights on. The vehicle

passed another vehicle and turned into a private drive

at Barrow Motors. Barrow Motors is a business, located

on property owned by the Petitioner. The Petitioner’s

home is located ia another area of the same property.

(R. Vol. 3, pp. 8-9)

Trooper Thiessen described the vehicle as being a

small car, which appeared to be brown in color, with

horizontal taillights and rectangular headlights. On cross

examination, the trooper stated that he could not tell what . ‘

kind of car he was chasing. He was unable to. state .

whether the car was a two-door or a four-door model. =

3 He could not tell whether the car was being driven by

z a man or a woman. He could not state what state license

a plate was on the car, but was able to determine that

the plate was white in color. He also stated that it was

possible that the car was orange, rather than brown in

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color. The trooper admitted that at one point he had

stated that the vehicle had hexigon headlights. (R. Vol. 3,

pp. 10, 41-47)

The car which Trooper Thiessen was pursuing drove

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rested the Petitioner during this exchange. (R. Vol. 3,

pp. 23-32) The speeder for whose arrest the entry was

ostensibly made was never found nor arrested. During

the course of the trooper’s search, which covered the

entire salvage yard, the trooper never saw any car which

even “tickled his suspicion”. (R. Vol. 3, pp. 23, 75-90)

The Petitioner was charged by Information with

aggravated assault on a law enforcement officer, and

obstructing an official duty. (R. Vol. 3, p. 3) The charge

of aggravated assault on a law enforcement officer was

disposed of when the Trial Court sustained the Peti-

tioner’s Motion for Judgment of Acquittal at the end of

all of the evidence. (R. Vol. 3, p. 317) The Petitioner

was convicted by a jury of the offense of obstructing

an official duty. (R. Vol. 3, p. 330) The Petitioner’s post-

trial Motion for Judgment of Acquittal, or in the Alter-

native, for a New Trial, was overruled. (R. Vol. 1, pp.

21-23) The Petitioner’s timely appeal to the Kansas

Court of Appeals was unsuccessful and the Kansas Su-

preme Court refused his Petition for Review.

Throughout the proceedings, the Petitioner has main-

tained that Trooper Thiessen’s activities in searching his

property were unlawful, because the search violated the

Defendant’s rights under the Fourth Amendment to the

Constitution of the United States, in that the officer was

not in possession of a valid Search Warrant, nor wes his

REASONS FOR GRANTING THE WRIT

‘The Opinion rendered by the Kansas Court of Ap-

peals, in which the Kansas Supreme Court denied review,

is in conflict with the teachings of this Court, the Federal

Circuit Courts, and further serves to repudiate previous

decisions of the Kansas Supreme Court. The Court's

Opinion carves yet another exception to the Fourth

Amendment to the United States Constitution, contrary

to existing precedents and totally beyond the realm of

constitutional reasonableness in that the Court has applied

the “hot pursuit” exception in an arbitrary fashion, with-

out regard for the circumstances that existed at the time

of the warrantless entry into a third party’s premises,

the Petitioner’s, for a non-violent misdemeanor, speeding.

In examining the decisions of this Court dealing with

“hot pursuit”, it is clearly evident that “hot pursuit” in

and of itself is not an exception to the warrant require-

ment of the Fourth Amendment, but it is merely an appli-

cation of the doctrine of exigent circumstances, which

in certain situations may excuse the failure to comply

with the warrant requirement, this Court additionally

restricting the exception’s application to felony crimes.

Coolidge v. New Hampshire, 403 US. 443, 480 (1971);

Vale v. Louisiana, 399 U.S. 30, 35 (1970).

The first case in which the words “hot pursuit” were

used was the case of Johnson v. United States, 333 U.S.

10 (1948). In that case, government agents entered John-

circumstances existed in which, on balancing the need

it could be contended that a Search Werrant might be

drivers followed an armed robber to a house. They de-

scribed the man as a Negro about five feet, eight inches

tall, wearing a light cap and dark jacket, and pointed

out to the police the house which he had entered. The

police arrived within five minutes and entered the house,

searching for the suspect. In upholding that search, this

Court stated:

“We agree with the Court of Appeals that neither

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right to privacy and the need for effective law enforce-

ment. Johnson v. United States, supra. In any case of

warrantless search end seizure, the burden is on the

one claiming exception to prove that it was necessary.

Coolidge v. New Hampshire, supra. In the case of Dorman

v. United States, 435 F.2d 385 (C.A. D.C. Cir. 1970), the

Court of Appeals for the District of Columbia established

a six-part test for determining exigent circumstances or

urgent needs in cases involving warrantless entries to

effect arrest. This test has been adopted by other juris-

dictions, including the Second Circuit, United States v.

Reed, 572 F.2d 412 (2nd Cir. 1978), and the State of

Kansas, State of Kansas v. Platten, 225 Kan. 764, 594 P.2d

201 (1979). The six factors are: (1) the gravity or violent

nature of the offense with which the suspect is to be

charged; (2) whether the suspect is reasonably believed

to be armed; (3) a clear showing of probable cause; (4)

strong reasons to believe that the suspect is in the prem-

ises; (5) a likelihood that the suspect will escape if not

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his presence. At the time the officer entered the

Appellant’s property, he could not have legitimately made

any arrests. This is because the officer in fact had no

suspect. The officer had not seen the person who was

allegedly driving the car, and could not in any way

describe him. The officer’s description of the car was

so vague that once he had lost sight of that automobile,

he would not have been able to positively identify any

automobile as the one he was pursuing, much less make

an identification of a driver for the purposes of an arrest

or prosecution for speeding. Probable cause in this case

was actually non-existent. Fourth, strong reasons to be-

lieve that the suspect is in the premises. The officer

had seen the auto he was pursuing enter the Barrow

premises. He obviously felt that there was only one

way out of the Barrow property, and that was back onto

12

cause. Having secured the property against the possi-

bility of escape, exigent circumstances having been found

dissipated, then is it not the officer’s duty to seek out

judicial approval? .

The officer did not enter the Defendant’s property

to make an arrest. His entry was done in order to at-

tempt to develop a suspect. His search was purely ex-

ploratory. The burden that the Courts have placed upon

the use * any exception to the Fourth Amendment has

reduced to allow its use as was done here “when viewed

in the light most favorable to the prosecution, the evi-

dence was sufficient to establish the patrolman was law-

fully on the Defendant’s premises and duly engaged in

the performance of his official duty.” (A. A2-A4) Vale

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croachments thereon.” Boyd v. US., 116 US. 616,

635 (1886); Schneckloth v. Bustamonte, 412 U.S. 218,

. 228 (1973).

In addition, the Kansas Court of Appeals’ finding

that the officer’s entry as being lawful on the pretext

of KS.A. 1982 Supp. 22-2401a(6)(c) is unique in that

the Petitioner was arrested on March 12, 1982, and the

statute was not enacted until July 1, 1982. However,

(1960); Rochin v. California, 342 U.S. 165 (1952); People

v. Swirecz, 432 N.E.2d 900 (Ill. 1982); People v. Young, 242

N.E.2d 587 (Ill. 1968).

CONCLUSION

For these reasons, a Writ of Certiorari should issue

Al

APPENDIX

4 IN THE

SUPREME COURT OF THE STATE OF KANSAS

No. 83-55261-A

State of Kansas, Appellee,

v.

Marion Barrow, Appellant.

You are hereby notified of the following action taken

in the above entitled case:

PETITION FOR REVIEW.

DENIED.

Yours very truly,

Lewis C. Carter

Clerk, Supreme Court

Date January 20, 1984

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IN THE

COURT OF APPEALS OF THE STATE OF KANSAS 7

STATE OF KANSAS,

MEMORANDUM OPINION

Appeal from Jackson District Court; TRACY D.

KLINGINSMITH, judge. Opinion filed November 23, ;

John C. Humpage of Humpage, Berger and Hoffman, ;

of Topeka, for the appellant. 5

.

Frank A. Caro, Jr., legal intern, J. Richard Lake,

A3

Constitution of the United States; and

unnecessary delay, of a person

falls within the “hot” or “fresh” pursuit exception. The

patrolman had chased the speeder from the public high-

way onto defendant’s property. Although he lost sight

of the vehicle, he was reasonably certain the vehicle

was still on the premises. The short delay in obtaining

a backup unit before commencing the search was not

unreasonable in light of the possibility of escape. When

viewed in the light most favorable to the prosecution,

the evidence was sufficient to establish that the patrol-

pebopegrangen Dane ge t Fameprtnne =, oe

"yah, denied

is tam. Sik Gis PAE tae Vineet, See also United

States v. Santana, 427 U.S. 38, 49 L.Ed.2d 300,

2406 (1976); Monroe v. Darr, 221 Kan. 281, 559

(1977); 68 Am.Jur.2d, Searches and Seizures

as 4

KANSAS STATUTES ¥

K.S.A. 1982 Supp. 22-2401a(6) (c):

“fresh pursuit” means pursuit, without unnecessary

delay, of a person who has committed a crime, or

crime.

HISTORY L. 1977, Ch. 82, Sec. 1; L. 1977, Ch. 84,

Sec. 1; L. 1982, Ch. 380, Sec. 2; July 1

KSA. 21-3212