In re J.O.

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 116,954

In the Matter of J.O.

SYLLABUS BY THE COURT

1.
K.S.A. 2017 Supp. 22-2401a(2) generally authorizes law enforcement officers
employed by a city to act within the city's limits, on property owned by or under the
control of the city, and "in any other place when a request for assistance has been made
by law enforcement officers from that place or when in fresh pursuit of a person."

2.
Under the "request for assistance" exception in K.S.A. 2017 Supp. 22-2401a(2)(b),
city law enforcement officers cannot exercise police powers outside the boundaries of
their own city unless they have received a request for assistance from the law
enforcement officers of the other place. Mere acquiescence or acceptance of assistance by
the officers of the invaded jurisdiction after notification by the invading officers does not
constitute a request for assistance under K.S.A. 2017 Supp. 22-2401a(2)(b).

3.
The Legislature adopted K.S.A. 2017 Supp. 22-2401a's statutory limitations on the
jurisdiction of city law enforcement officers to protect the local autonomy of neighboring
cities and counties, rather than to create an individual right.

4.
Generally, the remedy of suppression is unavailable if law enforcement officers
conduct a search in violation of state statute only and the statute violated does not vest a
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defendant with an individual right, the statute violated does not contemplate exclusion of
evidence as a remedy, and the violation results in no cognizable injury to a defendant's
substantial rights.

5.
In general, appellate courts review a district court's factual findings relating to a
motion to suppress for substantial competence evidence—evidence that is relevant,
substantive, and furnishes a substantial basis in fact from which the issues can reasonably
be resolved. Appellate courts do not reweigh evidence, assess the credibility of witnesses,
or resolve conflicts in evidence and instead give great deference to the factual findings of
the district court, including when a district court draws reasonable factual inferences from
the evidence.

6.
Suppression of evidence is a deterrent measure, not a personal right. So courts
restrict its application to those situations that effectively advance its remedial purpose.

Review of the judgment of the Court of Appeals in an unpublished opinion filed October 27,
2017. Appeal from Johnson District Court; THOMAS E. FOSTER, judge. Opinion filed July 27, 2018.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.

Jean Ann Uvodich, of Olathe, argued the cause and was on the brief for appellant.

Andrew J. Jennings, assistant district attorney, argued the cause, and Stephen M. Howe, district
attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

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The opinion of the court was delivered by

LUCKERT, J.: K.S.A. 2017 Supp. 22-2401a(2) authorizes law enforcement officers
employed by a city to act within the city's limits, on property owned by or under the
control of the city, and "in any other place when a request for assistance has been made
by law enforcement officers from that place or when in fresh pursuit of a person." Here,
the district court held the Prairie Village Police Department (PVPD) violated this statute
when it orchestrated two controlled buys from J.O., a juvenile, at her residence in
Shawnee. The district court also found the PVPD committed willful and recurrent
violations of the statute, in part because the buys occurred after this court held the PVPD
had violated the statute in circumstances similar to this case. See State v. Vrabel, 301
Kan. 797, 347 P.3d 201 (2015).

On appeal, the parties do not dispute the district court's conclusion that the PVPD
violated K.S.A. 2016 Supp. 22-2401a (at least once) or its findings that the PVPD
officers acted willfully and that the PVPD had repeatedly violated the statute. Instead, the
parties focus on whether the district court should have suppressed the evidence. We reject
J.O.'s request for an order of suppression because (1) the district court took other action
to deter future violations of the statute, (2) J.O. does not allege a constitutional violation
or otherwise state a cognizable injury to her substantial rights, and (3) K.S.A. 2017 Supp.
22-2401a does not vest J.O. with an individual right.

FACTS AND PROCEDURAL HISTORY

The district court made the following detailed factual findings:

"At around 8:00 a.m. on August 24, 2015, a confidential informant ('CI') advised
Officer Travis Gray of the Prairie Village Police Department ('PVPD') that [J.O.] had
marijuana wax for sale in Shawnee, Kansas. At Gray's request, the CI arranged to buy
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drugs from [J.O.] in Shawnee at 3:00 p.m. later that day. At around 2:15 p.m., prior to the
buy, Gray contacted Sergeant Brent Griffin of the Shawnee Police Department ('SPD') to
'see if they could assist us in the buy that we had set up.' Griffin notified Gray that the
SPD had no personnel available to assist PVPD with the controlled buy.

"Around 3:00 p.m. the CI met [J.O.] in Shawnee and purchased marijuana wax
from [J.O.]. Officer Gray surveilled the transaction and later received the marijuana wax
from the CI. SPD officers were not present at the buy location and did not provide
assistance to Gray. The PVPD officers did not make contact with [J.O.] on the day of the
controlled buy.

"On September 15, 2015, the CI advised Detective Patrick Mahoney of the
PVPD that [J.O.] had marijuana for sale. The CI indicated that he could purchase
marijuana from [J.O.] the following day at [J.O.]'s residence, which is located in
Shawnee. At Mahoney's request, the CI arranged for the controlled buy to be conducted
the following day at 3:00 p.m.

"The next day, Mahoney contacted Detective Thomas Hayselden of the SPD to
notify him of the anticipated transaction with the CI and [J.O.] in Shawnee. Hayselden
informed Mahoney that the SPD was unable to assist in the controlled buy due to lack of
manpower.

"At around 2:50 p.m., at an undisclosed location in Shawnee, Mahoney and one
other Prairie Village officer gave the CI $60 in cash from their 'control buy fund' and
wired the CI with audio equipment. The PVPD officers then followed the CI to [J.O.]'s
residence in Shawnee. Mahoney testified that Hayselden and SPD Officer Skinner were
in an unmarked area listening to the transaction over a confidential informant scanner,
whereas Hayselden testified the SPD officers were not present and provided no
assistance.

"The PVPD officers surveilled the CI enter [J.O.]'s residence and listened as the
CI paid for and [J.O.] furnished the marijuana. After leaving [J.O.]'s residence, the CI

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 met with the PVPD officers and gave them the purchased marijuana. The PVPD officers
did not attempt to contact [J.O.] on the day of the controlled buy.

"On January 20, 2016, the State charged [J.O.] with two charges of distribution
of marijuana, in violation of K.S.A. 21-5705(a)(4) and two charges of use of a
communication facility to sell a controlled substance, in violation of K.S.A. 21-5707.
[J.O.] filed a motion to suppress all evidence obtained from the controlled buys. At
evidentiary hearings on the motion to suppress, the State put on testimonial evidence
from Sergeant Gray, Sergeant Griffin, Detective Mahoney, and Detective Hayselden to
support its position that the PVPD had jurisdiction to conduct the controlled drug buys in
Shawnee.

"Officer Mahoney explained that sometime prior to the controlled drug buys with
[J.O.], the CI was arrested by SPD and wished to work off his charges by being an
informant for SPD. SPD turned over the CI to PVPD with the understanding that the CI
would be used to target illegal drug sales in Shawnee. PVPD knew the CI was a Shawnee
resident and that his only drug targets were in Shawnee. After turning over the CI to
PVPD, SPD had no involvement with the CI. Detective Hayselden testified that SPD had
no knowledge of the investigation regarding [J.O.]. Mahoney testified that there was no
evidence [J.O.] was selling drugs in Prairie Village or targeting Prairie Village. PVPD
used the CI to target Shawnee because, as Mahoney explained[,] 'just because the
problem is in Shawnee does not mean it will stay in Shawnee.'"

Based on these findings, the district court determined the PVPD officers exceeded
their authority under K.S.A. 2016 Supp. 22-2401a when surveilling the two drug buys in
Shawnee. Turning to whether J.O.'s request for suppression would be appropriate given
those violations, the district court noted J.O. had a "voluntary encounter with the CI" and
had not been searched or seized by officers. Thus suppression could not occur by
operation of the federal exclusionary rule that protects against violations of the Fourth
Amendment to the United States Constitution or by operation of Kansas' statutory

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exclusionary rule, K.S.A. 22-3216, because both apply only when a search or seizure has
occurred.

The district court then discussed this court's ruling in Vrabel, 301 Kan. 797,
another case in which the PVPD exceeded its authority under the statute by arranging a
drug buy outside Prairie Village. In Vrabel, this court decided not to suppress the
evidence of a drug buy, although it left open the possibility in future cases where officers
willfully and repeatedly violated the statute. 301 Kan. at 813-14. The district court
expressed its hesitancy to suppress the evidence given the outcome in Vrabel and because
the decision "did not declare or authorize or set forth any specific circumstances in which
the trial [or district] court could apply the exclusionary consequence." But the district
court announced it would advise "the Prairie Village police officers of their Fifth
Amendment privilege against self-incrimination if they are called to testify in future
proceedings pertaining to this matter."

J.O. appealed to the Court of Appeals, arguing the district court should have
suppressed the evidence because it had found the PVPD willfully and repeatedly violated
K.S.A. 2016 Supp. 22-2401a. In re J.O., No. 116,954, 2017 WL 4848252, at *2 (Kan.
App. 2017) (unpublished opinion). The Court of Appeals panel noted that the State had
not cross-appealed these findings, leaving only one question: whether the district court
erred in failing to suppress the evidence. 2017 WL 4848252, at *3 ("If an appellee fails to
file a cross-appeal, any challenge to an adverse ruling is not properly before the appellate
court."). The panel also noted the varying interpretations of Vrabel being presented to it:
The district court did not believe it had authority under Vrabel to suppress the evidence
even in the face of recurrent and willful violations of the statute, J.O. argued Vrabel gave
that authority, and the State argued a district court could suppress evidence only if a
defendant makes a search or seizure claim and argues the officers willfully and
repeatedly engaged in unlawful conduct.
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 Resolving these various viewpoints, the Court of Appeals panel concluded: "The
most straightforward reading of Vrabel is that the exclusionary rule is generally not
appropriate for violations of K.S.A. 2014 Supp. 22-2401a, but the court left open the
possibility that the exclusionary rule could be applied in the case of willful and recurrent
violations." 2017 WL 4848252, at *6. The panel then noted that "the ultimate purpose of
the exclusionary rule is deterrence," and it concluded suppression would "likely not serve
as a deterrent." 2017 WL 4848252, at *6. It reasoned that the PVPD seemed to be
engaged in Vrabel-like conduct at the first buy from J.O., but the State had dismissed
charges related to that buy. At the second buy, "the PVPD seems to have made at least a
nominal effort to comply with the statute," and the buy "appears to have been in
compliance with the statute." 2017 WL 4848252, at *6. For support, the panel cited our
decision in State v. Robinson, 303 Kan. 11, 123, 363 P.3d 875 (2015), disapproved of on
other grounds by State v. Cheever, 306 Kan. 760, 402 P.3d 1126 (2017).

J.O. petitioned this court to review the panel's decision, which we granted.

ANALYSIS

Before us, as in the district court and the Court of Appeals, J.O. asserts the district
court should have suppressed the evidence of the drug buys. She does not argue she
suffered a constitutional violation or any particularized harm. Instead, she focuses on the
repetitive and willful conduct that we cautioned against in Vrabel. She does not discuss
our decision in Robinson, which the panel had cited in support of its decision. But she
argues the Court of Appeals erred because it weighed evidence relating to the illegality of
the second buy and made a determination the PVPD complied with the statute—a
conclusion contrary to the findings of the district court.

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 To discuss these arguments, we segment our analysis into three parts: (1) A
discussion of Vrabel and Robinson, which inform our analysis; (2) a consideration of
whether the Court of Appeals panel reweighed evidence in reaching its conclusion the
second buy substantially conformed to K.S.A. 2016 Supp. 22-2401a; and (3) an analysis
of whether suppression was warranted.

1. Vrabel and Robinson

In Vrabel, the district court suppressed evidence obtained during a controlled buy
set up by a CI working with the PVPD. The CI and Carl Vrabel agreed to meet at a
grocery store parking lot in Leawood, a location the PVPD often used for drug buys even
though it was outside the territorial limits of Prairie Village. The Vrabel court rejected the
State's arguments that the PVPD had complied with K.S.A. 2014 Supp. 22-2401a.
Vrabel, 301 Kan. at 807-08. In doing so, the Vrabel decision concluded the territorial
limits applied to the exercise of all powers of law enforcement officers, not just when
they conducted a search or a seizure. 301 Kan. 797, Syl. ¶ 4. In addition, it clarified
which law enforcement agency had to initiate the request for assistance:

"To exercise their powers as law enforcement officers in a place outside the
boundaries of their own city pursuant to the 'request for assistance' exception under
K.S.A. 2014 Supp. 22-2401a(2)(b), the city officers must have received a request for
assistance from the law enforcement officers of the other place. Mere acquiescence or
acceptance of assistance by the officers of the invaded jurisdiction after notification by
the invading officers does not constitute a request for assistance under K.S.A. 2014 Supp.
22-2401a(2)(b)." 301 Kan. 797, Syl. ¶ 5.

The Vrabel decision turned to a discussion of remedy and noted that this court had
affirmed suppression of evidence based on a violation of K.S.A. 22-2401a in State v.
Sodders, 255 Kan. 79, 872 P.2d 736 (1994). But the Vrabel court found Sodders
8
distinguishable because Sodders involved a search. In contrast, no search or seizure
occurred when the CI and Vrabel met in the parking lot. 301 Kan. at 809-10. Because of
this factual distinction the Vrabel court determined Sodders was also legally distinct
because K.S.A. 22-3216 provides for the suppression of evidence obtained through an
unconstitutional or otherwise unlawful search or seizure. See State v. Gray, 306 Kan.
1287, 1297, 403 P.3d 1220 (2017) (recognizing K.S.A. 22-3216 provided for suppression
remedy for violations of K.S.A. 2014 Supp. 22-4606[d] and 22-4609). But the statute did
not apply in Vrabel because the PVPD did not conduct a search or seizure. Vrabel, 301
Kan. at 810-11.

The Vrabel decision then discussed whether there would be any other basis for
suppressing evidence obtained in violation of K.S.A. 2014 Supp. 22-2401a. Amicus
curiae had presented a "mildly seductive" rationale for doing so—the "rationale of
maintaining the integrity of the judicial process by refusing to justify and condone tainted
evidence." Vrabel, 301 Kan. at 812. Support for this rationale came from State v.
Pattioay, 78 Hawaii 455, 896 P.2d 911 (1995), which had recognized courts' "'inherent
supervisory power over criminal prosecutions to ensure that evidence illegally obtained
by government officials or their agents is not utilized in the administration of criminal
justice through the courts.' 78 Hawaii at 468." Vrabel, 301 Kan. at 812.

In considering that rationale, the Vrabel court looked to the purpose of K.S.A.
2014 Supp. 22-2401a. The court held:

"[T]he 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." 301 Kan. at 813.

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The court also concluded the argument that the Legislature had intended 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." 301 Kan. at 813.

Ultimately, the Vrabel court held that "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."
301 Kan. at 813-14. The Vrabel court added that its conclusion found reinforcement in
the fact the defendant had suffered no prejudice simply because the PVPD rather than the
Leawood police department had arranged the buy. But the court issued a caution that
serves as the basis for J.O.'s motion: "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])." 301 Kan. at 814.

In Robinson, 303 Kan. at 118-22, this court revisited the availability of a
suppression remedy for a violation of 22-2401a. There, John E. Robinson challenged the
Lenexa Police Department's warrantless searches of trash from his house in Olathe. We
distinguished Vrabel because a search had occurred and thus suppression became an
available remedy under Kansas' suppression statute, K.S.A. 22-3216(1). We noted,
however, that the Kansas statute merely allows for suppression, it does not compel it. 303
Kan. at 121.

We then engaged in a two-part analysis: (1) Did the Legislature intend to create
individual rights or remedies under K.S.A. 22-2401a? and (2) Did the

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defendant suffer an injury to substantial rights? As to the first question, we reviewed the
statutory purpose of K.S.A. 2014 Supp. 22-2401a and reiterated our conclusion in
Vrabel—the Legislature designed the statute "to protect local autonomy, not to create
individual rights." 303 Kan. at 122. As to the second questions, we noted that Robinson
could not "reasonably claim he suffered injury to any substantial right based on the fact
that [Lenexa Police Department] officers, rather than Olathe police, conducted the
otherwise lawful trash pulls." 303 Kan. at 122.

We left open the possibility of suppressing evidence as a remedy for violations of
state law. But we stated: "[W]here a search is conducted in violation of state statute only
and the statute violated does not vest defendant with an individual right, does not
contemplate exclusion of evidence as a remedy, and the violation results in no cognizable
injury to defendant's substantial rights, such a remedy is unavailable." 303 Kan. at 122.
We did not in Robinson revisit our discussion of our inherent supervisory authority when
faced with recurrent and willful violations of a statute.

While the Court of Appeals applied these cases, J.O. argues it erred by reweighing
the evidence. We next turn to that argument.

2. Reweighed Evidence

More specifically, J.O. argues the Court of Appeals reweighed evidence on its way
to concluding the second buy substantially complied with K.S.A. 2016 Supp. 22-2401a.
This argument depends, in part, on the standard of appellate review for considering a
district court's ruling on a motion to suppress. In general, appellate courts review a
district court's factual findings on a motion to suppress for substantial competent
evidence and its legal conclusions de novo. Robinson, 303 Kan. at 110, 118. Substantial
competent evidence is evidence that is relevant, substantive, and "furnishes a substantial
11
basis in fact from which the issues can reasonably be resolved." State v. Sharp, 289 Kan.
72, 88, 210 P.3d 590 (2009).

When assessing whether substantial competent evidence supports the district
court's findings of fact, appellate courts do not "reweigh evidence, assess the credibility
of witnesses, or resolve conflicts in evidence" and instead "give[] great deference to the
factual findings of the district court." State v. Talkington, 301 Kan. 453, 461, 345 P.3d
258 (2015). District courts are "entitled to draw reasonable factual inferences from the
evidence which [appellate courts] are not permitted to dispute by an inappropriate use of
de novo review." Sharp, 289 Kan. at 91

Consistent with these principles, the Court of Appeals first noted it was bound by
the district court's factual finding that the PVPD engaged in willful and recurrent
violations because the State failed to cross-appeal. J.O., 2017 WL 4848252, at *6. The
district court had found that Vrabel was published on April 24, 2015, and involved the
PVPD. In J.O., the PVPD made the two controlled buys four and five months after
Vrabel's publication. The district court found the PVPD could and should have been
aware of the decision, making the two controlled buys willful and recurrent violations.

Despite those findings, the panel mitigated the legal effect of the district court's
conclusion by limiting its analysis to the September controlled buy because that was the
only charge the State pursued. The panel then relied on the testimony of Mahoney
(PVPD) and Hayselden (SPD), noting both had "testified that Hayselden had asked for
Mahoney's assistance in completing the controlled buy." 2017 WL 4848252, at *6. This
conclusion ignores an important requirement: A request for assistance must originate in
the host jurisdiction, i.e., the jurisdiction in which the law enforcement powers are to be

12
exercised. Here, that means Shawnee must have initiated the request, not merely
acquiesced in a proposal that originated outside the boundaries of Shawnee. See K.S.A.
2017 Supp. 22-2401a(2)(b) (permitting extraterritorial exercise outside an officer's
jurisdiction "when a request for assistance has been made by law enforcement officers
from that place"); see also Robinson, 303 Kan. at 123-24; Vrabel, 301 Kan. at 806.

Hayselden testified that Mahoney called him to inform him that a "drug
investigation had led towards our city [of Shawnee], and he was wondering if we were
able to handle it, and at that time, we are not due to other investigations we had going on.
So I requested his assistance to complete his investigation that started in his city."
(Emphasis added.) Another of Hayselden's responses on cross-examination emphasizes
the point that the investigation did not originate in Shawnee:

"Q: And when you were contacted and notified of it, you went ahead and told Prairie
Village to handle it since they had set it up?

"A: No, that is not correct. We were asked if we were able to continue an investigation
involving a drug buy and we were not able to due to manpower and caseload." (Emphasis
added.)

Hayselden's testimony establishes there was no request for assistance originated in
Shawnee and thus no compliance with the statutory requirements. The panel erred in its
analysis, and this error underlies its conclusions that the second buy "appears to have
been in compliance with the statute" and that "application of the exclusionary rule here
would likely not serve as a deterrent." J.O., 2017 WL 4848252, at *6.

The district court, on the other hand, compared the phone exchange between the
officers to the communication Vrabel had held to be an insufficient request for assistance
under K.S.A. 2014 Supp. 22-2401a. The district court's factual findings are supported by
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substantial competent evidence, and it reached its legal conclusion by properly applying
established Kansas law. See Vrabel, 301 Kan. 797, Syl. ¶ 5.

3. The District Court Did Not Err.

We thus conclude that the PVPD violated K.S.A. 2017 Supp. 22-2401a when it
conducted both buys. And, like the district court, we are troubled by the PVPD officers'
continued extraterritorial exercise of their police powers. As we stated in Vrabel: "If the
officers were acting as private citizens, i.e., were not exercising their police powers, then
they were aiding and abetting the commission of a drug felony in Leawood." 301 Kan. at
803. Consistent with that conclusion, the district court implemented its own warning by
advising it would remind testifying PVPD officers of their privilege against self-
incrimination, as guaranteed by the Fifth Amendment to the United States Constitution.

As this court has observed, suppression of evidence "is a deterrent measure," not a
personal right. State v. Pettay, 299 Kan. 763, 769, 326 P.3d 1039 (2014). "Therefore, its
application is '"restricted to those situations in which its remedial purpose is effectively
advanced."' [Citation omitted.]" 299 Kan. at 769.

Here, J.O. has not explained why suppression can be justified given the district
court's remedial measure of warning the officers they should assert their Fifth
Amendment rights. We suspect this warning serves as a greater deterrent than an order of
suppression would. Moreover, as we noted in Vrabel and Robinson, K.S.A. 2014 Supp.
22-2401a protects local autonomy; it does not create an individual right. Vrabel, 301 Kan.
at 813; Robinson, 303 Kan. at 122. And, like the defendants in those cases, J.O. cannot
reasonably claim she suffered injury to any substantial right based on the fact a PVPD
officer, rather than a Shawnee officer, set up the controlled buys.

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 Under these circumstance, and in light of the district court's strong warning, we
hold the district court did not err when it decided not to suppress the evidence.

Affirmed.

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