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No infraction, no legal stop

By Randall Hodgkinson

Mike Sheahon won in State v. Ryan, No. 98,027 (Kan. App. Nov. 21, 2007) (unpublished), affirming Judge Hebert's suppression order in a Saline County drug prosecution. In a pretty short opinion, the COA notes that there was disputed evidence whether the pretextual infraction occurred at all:

Here, the trial court's ruling that the State failed to meet its burden could be construed as a negative finding of fact. See City of Dodge City v. Norton, 262 Kan. 199, 203, 936 P.2d 1356 (1997).

In the present case, the trial court viewed the live testimony and that presented by the videotape of the traffic stop. The trial court weighed the evidence and had serious concerns about whether ?an actual violation even occurred here.? There was substantial competent evidence, though conflicting, to support the trial court's findings and conclusions the motion to suppress should be granted.

The cite to Norton is sort of interesting. As I've noted before, in a state's appeal of a suppression order, where the state had the burden at the district court, the standard of review should be that for a negative finding, which Norton says requires "proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice." But even in Norton, the appellate court seems to mix this with the substantial competent evidence standard, as did the Ryan court. A little confusing, but the same result in both cases.

[Update: the state did not file a PR and the mandate issued on December 26, 2007].

Full post as published by Kansas Defenders on December 20, 2007 (boomark / email).