State v. Posa

500 P.3d 1212

STATE of Kansas, Appellee,

v.Corey POSA, Appellant.

No. 122,772

Court of Appeals of Kansas.

Opinion filed November 5, 2021.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, Topeka, KS, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, Olathe, KS, and Derek Schmidt, attorney general, Topeka, KS, for appellee.

Before Gardner, P.J., Hill and Hurst, JJ.

Gardner, J.:

Corey Posa appeals his conviction for possession of methamphetamine, arguing the district court improperly denied his motion to suppress evidence. Police arrested Posa on a bench warrant that Posa told them had been vacated five days earlier by a hearing officer—he even showed them a carbon copy of the hearing officer's signed order before they arrested him. In a search incident to that arrest, police found methamphetamine in Posa's pocket. Posa moved to suppress the evidence, arguing the warrant was vacated so his arrest based on the warrant was illegal. But the district court denied that motion, finding the officers acted in good-faith reliance on confirmed information from dispatch that the warrant was valid—the warrant was not vacated until the hearing officer's order was signed and filed by the district court after Posa's arrest.

Posa raises three arguments on appeal: (1) that the Kansas Constitution does not recognize the good-faith exception to the exclusionary rule; (2) that officers acted with a "deliberate, reckless, or grossly negligent" disregard for his constitutional rights by willfully ignoring the copy of the hearing officer's order that he gave them; and (3) that the five-day delay between the date the hearing officer signed the order vacating his warrant and the date the district court signed and filed that order so it could appear in the dispatch's system is systemic failure unexcused by the good-faith exception. For the reasons explained below, we agree that the good-faith exception to the exclusionary rule applies. We thus affirm Posa's conviction.

FACTUAL AND PROCEDURAL BACKGROUND

At around 2 a.m. on February 26, 2019, City of Gardner Police Officer Kathrine Davidson stopped Posa for having an inoperable tag light on his vehicle. City of Gardner Police Sergeant David Rollf heard Davidson on the radio and came to assist. Rollf was familiar with Posa and remembered that Posa had an outstanding warrant for his arrest—it was standard practice for officers to make themselves aware of new or recent warrants in their jurisdiction. After arriving at the scene, Rollf contacted dispatch to give them Posa's information, and dispatch responded that Posa had an active arrest warrant through Johnson County. Rollf asked dispatch to confirm that warrant and requested instructions from the sheriff's office. Dispatch returned several minutes later confirming that the warrant was valid.

When Davidson told Posa of the warrant for his arrest, Posa responded that the warrant was not valid because it had been "dismissed." Posa then gave Davidson a carbon copy of a document, signed by a court hearing officer and dated five days earlier, stating the warrant had been vacated. It is unclear whether Davidson looked at the information, but she told Posa she would instead rely on the information from dispatch. She arrested him and told him she would investigate the matter again later.

Rollf searched Posa incident to his arrest and found in Posa's pocket a zip-lock baggie containing what Rollf believed was methamphetamine residue. Although he had not given Posa Miranda warnings, Rollf asked Posa whether he had any other drugs or drug paraphernalia in his car, and Posa admitted that he had a bag under his driver's seat. When Rollf checked Posa's vehicle, he found a digital scale and another zip-lock baggie containing methamphetamine.

After Posa's arrest, Davidson placed Posa in a patrol car and rechecked the status of Posa's warrant. Davidson called Deputy Sheila Roe, court security for the Johnson County District Court, and asked whether the arrest warrant for Posa was still outstanding. Davidson explained that Posa had given her paperwork showing the warrant was vacated. Roe checked the court's record system but found no order vacating the warrant and told Davidson so. Davidson then transported Posa to the sheriff's office for booking. Once there, Davidson told the booking supervisor that Posa claimed the warrant was invalid and gave the supervisor a copy of Posa's document to make sure someone would look into it.

The Johnson County District Court had issued a bench warrant for Posa's arrest after he failed to appear in court on February 7, 2019, for a divorce proceeding. After Posa attended a purge of contempt hearing, a domestic hearing officer signed an order vacating the warrant and gave Posa a carbon copy of it dated February 21, 2019. But a hearing officer's order must be approved by a district court, and the district court did not sign and file the order vacating Posa's warrant until February 26th, about eight hours after Posa's arrest. As the district court found, "the bench warrant would not have been officially withdrawn until the district court judge's signature is entered and it is filed." So at the time of Posa's arrest, the records showed his arrest warrant was valid.

The State charged Posa with single counts of possession of methamphetamine and possession of drug paraphernalia. Posa moved to suppress the evidence obtained during his search incident to his arrest, arguing that his arrest was illegal because it stemmed from an invalid warrant. Posa also moved to suppress his incriminating statements and the evidence obtained from his car, arguing that police found the evidence based on Rollf's pre-Miranda questioning.

At the suppression hearing, the State agreed that Posa's pre-Miranda statements and the evidence seized from his car should be suppressed, so it dismissed the possession of drug paraphernalia charge. Then, without conceding that Posa had been illegally arrested, the State argued that the evidence found in Posa's pocket was admissible under the good-faith exception to the exclusionary rule. Posa countered that no good faith was shown because clerical error caused the delay and officers unreasonably ignored the valid order Posa gave them, which showed the warrant had been vacated. The State countered that the evidence showed no clerical error but showed that the officers reasonably relied on the information from dispatchers.

Officers Davidson and Rollf testified. Rollf had worked as a police officer for over 21 years. He used a standard record check at every traffic stop, which uses two systems: a regional justice information system (REJIS) to search the Kansas City metro area and parts of Missouri; and the national system, NCIC, which checks for local and felony warrants. After he or dispatch locates a warrant by running a search through that system, dispatch contacts the "agency that holds that warrant to confirm its validity by physically looking at that warrant, wherever it may be." To confirm Posa's warrant, Rolff

"[c]ontacted dispatch on the radio and provided [Posa's] biographical information. They advised that the computer system showed that he had an active warrant through Johnson County, Kansas, at which point [Rollf] asked them to confirm that warrant and requested instructions from [the] sheriff's office, and they returned several minutes later advising that the warrant was confirmed."

Davidson agreed that Rollf had run Posa's information and discovered an outstanding warrant but was not sure whether Rolff did a "double-check" of the information. Still, after Posa's arrest, she decided to take the extra step of calling court security on her own initiative—that was not required by police department policy. She contacted court security to ask whether their system showed Posa's bench warrant was vacated. And after court security responded that their system did not show the warrant had been vacated, Davidson transported Posa to jail.

Davidson testified that when she gets information from dispatch, it is accurate. If she gets information from a suspect that conflicts with information from dispatch, she relies on dispatch because based on her training and experience, that information is "the most accurate, up to date." So when Posa gave her a document, she explained to him that they go by what dispatch tells them. Dispatch had already "confirmed the warrant, saying they had called Johnson County, Johnson County said it was good, so I defer to what my dispatch and the originating agencies say."

Rollf testified that information from dispatch is generally reliable. Many times suspects have told him they do not have a warrant, when his information says they do. His protocol is to rely on dispatch, who has confirmed the validity of the warrant. He did not rely on Posa's paperwork because he "had already received confirmation from the issuing agency that they wanted an arrest made on this warrant. My thought process is that document is secondary to the document the judges issue. It's also my experience that many documents are outdated or fraudulent."

Both officers testified that it is not uncommon for a suspect to dispute the validity of an active arrest warrant. At times, suspects give officers outdated or fraudulent documents to support their claims that a warrant is invalid. Davidson believed Posa's order vacating his warrant was somehow forged, counterfeit, or inaccurate. Suspects had given her fake driver's licenses or altered insurance cards before, but this was the first time a suspect had given her a "fraudulent" district court order.

Still, even if Davidson believed that the suspect's paperwork was accurate, she would not be "allowed to disregard" the information from dispatch and the court security officer. Rather, she had to arrest Posa based on the information she had. Davidson could not imagine a situation in which she would accept a suspect's evidence showing a...