KS declines to apply exclusionary rule to city officer’s extraterritorial arrest

The Kansas Supreme Court refuses in this case to apply the exclusionary rule to an extraterritorial police operation that resulted in defendant’s arrest, understanding why the trial court suppressed. The legislature modified the common law rule of territoriality somewhat, but not completely. The state sought judicial rewrite of the statute, which the court declined. While not applying the exclusionary rule this time, the court notes that, in another case with better facts for the defense, that might not be the rule. State v. Vrabel, 2015 Kan. LEXIS 231 (April 24, 2015):

At first blush, Hawaii’s rationale of maintaining the integrity of the judicial process by refusing to justify and condone tainted evidence is mildly seductive. But a closer look at the purpose of K.S.A. 2014 Supp. 22-2401a convinces us that exclusion is not the appropriate remedy.

With the enactment of 22-2401a in 1977, the legislature modified the common law. See City of Junction City v. Riley, 240 Kan. 614, 619, 731 P.2d 310 (1987). Legislative history reveals that before K.S.A. 2014 Supp. 22-2401a’s enactment, “there [was] no law enforcement power beyond the limits of the city.” Minutes of the Senate Committee on Judiciary, March 3, 1977, p. 2. Supporters of the statute noted a desire to “extend authority to officers when they are responding to a request for assistance.” Minutes of the Senate Committee on Judiciary, March 3, 1977, p. 2. But the testimony also voiced serious concerns about the possibility of “giving statewide law enforcement powers” to city officers. Minutes of the Senate Committee on Judiciary, March 3, 1977, p. 2. Accordingly, the purpose of the statute originally enacted was to give law enforcement the additional leeway needed to assist one another in certain circumstances, such as when an officer was in fresh pursuit of a lawbreaker or when an officer was observing a crime being committed.

But, by not granting statewide jurisdiction to all law enforcement officers, the legislation maintained local control by cities and counties, protecting them from unwanted intrusion by neighboring law enforcement officers over whom the invaded territory would have no control. For instance, the governing body of a city may endeavor to establish stringent policies on the use of force by law enforcement officers against the citizens of that city, but it would be hard-pressed to enforce its regulations against marauding law enforcement officers from other jurisdictions. Even when the legislature reacted to Sodders by amending K.S.A. 2014 Supp. 22-2401a to add subsection 5, it was careful [*30] not to extend the extraterritorial jurisdiction of city officers to any cities other than those within but two counties.

In short, it is apparent that the statutory limitations on the jurisdiction of city officers was put in place to protect the local autonomy of neighboring cities and counties, rather than to create an individual right, assuring that a person could only be caught breaking the law by an officer of the jurisdiction within which the crime was being committed. Such an individual right strikes one as a bit nonsensical. How was Vrabel adversely impacted by PVPD, rather than LPD, arranging and paying for the controlled drug buy? Moreover, a purpose to create an individual right to be free from apprehension by an officer from outside the jurisdiction is belied by the exceptions incorporated into K.S.A. 2014 Supp. 22-2401a, which provide for ample lawful opportunities for such an apprehension to occur.

Consequently, the suppression of any evidence obtained during a city officer’s unauthorized exercise of police power outside the officer’s employing city-other than a search or seizure-will generally not be required. That is especially so in circumstances such as presented in this case where the defendant has not been prejudiced in the least by the fact that PVPD arranged the drug buy, rather than LPD. Therefore, notwithstanding that the district court surely thought it was dutifully following the precedent set in Sodders, we must reverse its suppression of the evidence. The Court of Appeals decision is affirmed on different grounds.

But before concluding, a word of caution might be in order. Like our sister State to the West: “‘[T]his court cannot sanction willful and recurrent violations of the law’ and … future violations ‘may trigger application of the [exclusionary] rule.'” People v. Martinez, 898 P.2d 28, 33 (Colo. 1995) (quoting People v. Wolf, 635 P.2d 213, 217[Colo. 1981]).