The evidence was suppressed, and the state appealed and it was affirmed. They dismissed and refiled later. The prior ruling was “law of the case,” and the state is bound by it. State v. Parry, 2017 Kan. LEXIS 116 (March 24, 2017) (see Treatise § 60.54):
This brings us to the central issue: whether the law of the case on the evidence suppression question as settled in Parry I applies in this new proceeding. More precisely, are the proceedings in this case successive stages of the same suit as Parry I? The panel majority concluded these cases should be treated as a single proceeding, “even though, technically, this case is not the same case as Parry I.” Parry II, 51 Kan. App. 2d at 931. We agree.
Typically, after a decision affirming the evidence’s suppression, as in Parry I, a case would have returned to the district court for the State to decide if it could proceed without the suppressed evidence. But instead, in its prosecution against Parry, the State dismissed the first case against him without prejudice and then refiled the same criminal charges under a new case number. The State admits its purpose in doing this was to have a technically “new” case, in which to try again to meet its burden to justify the officers’ warrantless search. As the panel majority aptly described it, “The State wanted a do-over on the issue of the constitutionality of the police search of Parry’s residence and the seizure of the marijuana and paraphernalia from inside the home, so it could assert arguments it failed to raise during the first hearing.” Parry II, 51 Kan. App. 2d at 931.
There is no dispute that a county attorney has the legal authority to dismiss and refile criminal charges. See State v. Ratley, 253 Kan. 394, 401, 855 P.2d 943 (1993) (“The district attorney is the representative of the state in criminal prosecutions. He controls criminal prosecutions. He has the authority to dismiss any charge ….”); State v. Hanson, 280 Kan. 709, 719, 124 P.3d 486 (2005) (holding jeopardy did not attach to de novo appeal to district court from magistrate court conviction, so State could refile same charges after district court dismissed appeal without prejudice). But this alone does not mean an issue decided in the previous criminal action has no preclusive effect in the new one. For this reason, State v. Zimmerman & Schmidt, 233 Kan. 151, 660 P.2d 960 (1983), State v. Rowland, 172 Kan. 224, 239 P.2d 949 (1952), and other related cases, illustrating the State’s power to dismiss and refile criminal cases, cited in Judge Gardner’s dissent and embraced by the State, are not dispositive. See Parry II, 51 Kan. App. 2d at 937.
With Parry, the State refiled identical criminal charges on the same facts against the same defendant after losing the first interlocutory appeal just so it could repackage the same issue it had already lost. It did so only as a means to revive a dead issue. And to ignore this reality would defeat the long standing purposes supporting the law of the case doctrine. See Poulin, Prosecution Use of Estoppel and Related Doctrines in Criminal Cases: Promoting Consistency, Tolerating Inconsistency, 64 Rutgers L. Rev. 409, 428 n.79 (2012) (“Rulings favorable to the defendant should be treated as law of the case, otherwise the government could dismiss and refile to effectively void an unfavorable pretrial ruling.”).
As the panel majority recited, this court has viewed the filing of the same criminal charges against the same defendant in successive cases as a single action for purposes of computing speedy trial times under K.S.A. 22-3402. See Parry II, 51 Kan. App. 2d at 931 (citing State v. Cuezze, Houston & Faltico, 225 Kan. 274, 277-78, 589 P.2d 626 [1979], and State v. Goss, 245 Kan. 189, 192, 777 P.2d 781 [1989] [characterizing circumstances when the State obviously dismisses and refiles criminal charges to avoid the speedy trial requirements as a subterfuge]). …
We agree. Parry’s second prosecution amounted to a successive stage in the same criminal prosecution, in which the State had already litigated—and lost—the suppression issue. Accordingly, we affirm the panel majority’s determination to invoke the law of the case doctrine to uphold the district court’s granting of Parry’s second motion to suppress the evidence secured in the warrantless search.
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
