# Petition — Barrow v. Kansas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1277%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 466 U.S. 959 ## Text 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 eee BE. L. Meweanmats, iee., 986 Cherry Strest, Kanses City, Mo. 64106, (816) 421-8080 : . : ’ : yl iter, er nn a 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 Aw p> os Bee Bit « 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 a 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 Re RC ee pier 4 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 ss) 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 eae Bite auaah tH HE te ate AH fried | Ha Et iH) epltglayy igual ita iF vie ; i ASHE Lan ies HEEL alll, by eeu EHR EEEEE ETL LEE SESE=s 3 mtsihh ane “algal inti i - + ts Uae abdiadl [Ape ii ieee en tie siiytirtitealll lp si] i ; ed itl Hae Hi haa By HA aA aH tHer fH He Wain 10 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 ir 1 + i F HL 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 -y 7 Are oo ie lea es? UT, | eee ee, Ae .: 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 _ if bd . Pe We , 4 ‘ > ry . Sh wa ~ > | we wes 24 “ql An Ff oe er a ae 1 roy : } ay * he rh Pat . 4 7 : “ J : NS : Mri hp, % * Ma?-t j TE CMT 8 tee rae at lh TS ld 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1277%3A1. Public record. Not legal advice.