9111 3/17/08. Motion to dismiss for Richard Wilson.
Douglas; I will be filing my brief tomorrow. Any
suggestions?
_
This document is http://www.lawyerdude.netfirms.com/9111.html
(Lawyerdude says: I don’t recall writing this brief. Don’t know who wrote it.)
____________________________
IN THE DISTRICT COURT OF LINN COUNTY, KANSAS
STATE OF KANSAS,
Plaintiff,
vs.
Case No. 06TR947
Richard D. Wilson
Defendant.
BRIEF IN SUPPORT OF
DISMISSAL
FACTS
1. The court ordered the State, within 20
days, to brief the issue of whether or not there was
probable cause for the traffic stop.
2. State does not comport with order but
submits brief of the lesser standard of reasonable
suspicion.
3. State uses some of the pertinent facts
presented at trial.
4. State offers (and is admitted)
defendant’s driving record. Record reflects Latest
issue 06/26/96. Expire date 07/04/00. Issue date
07/04/91. Accidents 0, convictions 0, withdrawals 0,
miscellaneous 0, administration 0 End of record.
5. State’s witness Deputy Paul Filla
testified he acted alone and used information obtained
in a 25 September 2004 standard offense report (00011
animal call) to effectuate the 26 December 2006
traffic stop for a driver’s license check.
6. Deputy Filla testified (and the State
argues further probable cause pursuant to K.S.A.
8-244) he arrested and took defendant to jail. Deputy
Filla then proceeded with an investigation into
whether defendant had a valid driver’s license.
7. Deputy Filla testified that the unlawful
license check and arrest were at his sole discretion.
Under color of law, Deputy Filla violated defendant’s
civil rights and right to due process.
8. Deputy Filla admits knowing it is easy
to obtain a drivers license and that defendant could
obtain one at any time. Deputy Filla admits it would
be his guess defendant did not have one at trial.
9. State cites State v. Hamic, State v.
Campbell and K.S.A. 8-244 as principals of law upon
which this case can be viewed.
10. The trial court notes that the
evidentiary record is clear. On 25 Sept. 2004, Deputy
Filla wrote a standard offense report on 00011 (animal
call) which defendant was a witness. No vehicles were
involved. No further investigation of defendants
driving record prior to arrest 26 December 2006.
LAW
Kansas Statutes Annotated 8-244 is a
nullity, clearly applies only to a licensee.
State v. Hamic And State v. Campbell are
limited use because the facts and circumstances can
not be compared to this case. Both cites are about
suspended licenses and have other articulable facts.
Defendant agrees it is established law that there must
be more than a hunch or unparticularized suspicion to
justify a investigatory stop. One must look at the
totality of the circumstances and probabilities when
weighing the standards.
United States v. Griffith,
No.04-40106-01/02-JAR(D.Kan.04/01/2005) is helpful in
that it shows a controlling courts reasoning with
regard to stale information.
U.S. v. Griffith
On this basis, defendants argue, there was no evidence
in the affidavit
upon which the magistrate judge could find that
contraband or evidence of a crime would be found at
the residence at the time of the search. This Court
agrees. For, "[p]robable cause to search cannot be
based on stale information that no longer suggests
that the items sought will be found in the place to be
searched."*fn8 And a determination of timeliness
"depends not merely on the passage of time but on the
nature of the criminal activity, the length of the
activity, and the nature of the property to be
seized."*fn9 The staleness doctrine is based on the
notion that probable cause may dissipate over time.
Defendant has been unable to find cases involving
stale information with facts and circumstances on
point that have been adjudicated by the controlling
courts. Defendant offers Moody v. State, No.SC94435
(Fla.01/02/2003) Supreme Court of Florida. McReynolds
v. State, Court of Criminal Appeals of Alabama
No.2Div.352 1983.AL.1774 441 So.2d1016 (1983 AL.)
Defendant knows these cases do not control this court
but may be used in an advisory capacity for case based
reasoning because they are directly on point.
FURTHER CONSIDERATIONS
Delaware v. Prouse
*fn7 In that regard, it is possible to reconcile
Prouse with the cases cited above. In Prouse, the
Supreme Court found that Delaware's decision to
conduct random vehicle stops to check for unlicensed
drivers and unsafe vehicles was not shown to be
substantial enough to warrant the resulting intrusion
of an individual's privacy. The Court found no
evidence that demonstrated that random stops were
necessary to promote the government's asserted
interests. See Prouse, 440 U.S. at 658-63.
While we recognize that the totality of the
circumstances may have, at an early point in time,
justified the investigatory stop, we also recognize
that under the staleness doctrine, justification for
an investigatory stop may dissipate with time. When,
as in this case, as many as three years passes without
any further information about a person's driving
status, and when, as in this case, that person's
license can be restored through a simple
administrative process, the staleness of the officer's
information is indeed an important factor in
considering the totality of the circumstances showing
an objective manifestation to justify the stop. See
Denton v. State, 524 So. 2d 495 (Fla. 2d DCA 1988)
(staleness is an "important factor" in determining
probable cause, although not the only factor).
"Good faith is not a magic lamp for police officers to
rub whenever they find themselves in trouble." (United
States v. Reilly (2d Cir. 1996) 76 F.3d 1271, 1280.) A
reasonably well-trained officer would have recognized
that probable cause in this case had grown stale by
the time the warrant was sought and executed. To
prevent the exception from swallowing the rule,
application of the good faith exception must be
limited in this context to those cases in which the
staleness determination is a close one. This is not
such a case.
A police officer is not excused from complying with
the standards applicable to an investigative stop
merely because he may have wanted to verify or check
that a driver had obtained a license. The authority of
the police must be strictly circumscribed by the law
of arrest and search as it has developed to date in
the traditional jurisprudence of the Fourth Amendment.
Because the State cites no facts aside from Deputy
Filla’s knowledge of Defendant's 27 month old driving
record, that could, under an objective standard, give
rise to the requisite reasonable suspicion, this stop
was not justified. To hold that a stop based solely on
the facts from the 2004 investigation is proper, would
eviscerate the well-settled standards pertaining to
reasonable suspicion, substantially undermining the
guarantee against unreasonable seizures under the
Kansas and United States Constitutions. Driving
without a license where no suspension or revocation is
involved, the deputy, upon reencountering the driver,
is not legally cognizant of any impediment to the
driver's operation of a vehicle.
Applying an objective standard, it cannot be said that
a person of reasonable caution would be warranted in
believing defendant did not have a license. The
alleged “specific and articulable facts” in this case
amount to no more than Deputy Filla’s prior knowledge
that defendant’s license had been expired on 25
September 2004. At that time, Deputy Filla did not see
defendant commit any violation; Filla was
investigating an animal call in which no vehicles were
involved. Filla exercized a standardless and
unconstrained discretion, the type referred to in
Delaware v. Prouse, 440 U.S. 648,661 (1979).
CONCLUSION
This court should dismiss because the Supreme
Court of the United States, United States District
Court for Kansas, Supreme Court of Florida and the
Appellant Court of Alabama agree with Defendant in
reference to the staleness doctrine, when the facts
and legal circumstances are such as in this case.
Defendant prays this honorable court will enter
an order to dismiss with prejudice, expunge arrest
record and return Defendants property (appearance
bond, finger print cards).
Respectfully submitted,
____________________
Richard D. Wilson
2111 E. Santa Fe
Olathe, Kansas 66062
CERTIFICATE OF SERVICE
I, hereby certify that a copy of the foregoing Brief
in Support of Dismissal was hand-delivered on this
17th day of March, 2008 to the John S. Sutherland,
Linn County Attorney office.
____________________
Richard D. Wilson
_____________________
Richard David Wilson
2111 E. Santa Fe
Olathe, Kansas 66062
913-302-8693 cell