NOT DESIGNATED FOR PUBLICATION
No. 124,330
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
KARA NICHOLE COLE,
Appellant.
MEMORANDUM OPINION
Appeal from Sumner District Court; WILLIAM R. MOTT, judge. Opinion filed September 9, 2022.
Affirmed.
Stephen L. Brave, of Brave Law Firm, LLC, of Wichita, for appellant.
Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for
appellee.
Before ARNOLD-BURGER, C.J., SCHROEDER and WARNER, JJ.
PER CURIAM: Kara Nichole Cole appeals from the district court's decision
revoking her probation. The question we must answer is whether the State waived its
right to prosecute the probation violation by unreasonably delaying the execution of the
warrant for Cole's arrest. We hold it did not and affirm.
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FACTUAL AND PROCEDURAL HISTORY
Cole pled guilty to driving while her license was suspended in June 2017. The
district court sentenced her to a 90-day jail sentence but released her on one year of
probation. A couple months later, the State moved to revoke Cole's probation after she
tested positive for methamphetamine, amphetamine, and oxycodone. As a result, the
district court issued a bench warrant for Cole in August 2017. The affidavit supporting
the warrant listed Cole's last known address on Ash Street in Argonia. The warrant was
returned served shortly thereafter.
The day after the warrant issued, Cole posted an appearance bond listing her
address as "High St Argonia, KS 67004." The following month, Cole applied for
appointed defense services in which she indicated that her address was "high st" in
Argonia. These documents were in her court file.
The State filed a supplemental affidavit in November 2017 alleging that Cole
again violated the terms of her probation by failing to report to the probation office.
Cole did not appear at her probation violation hearing. Another bench warrant
issued in November 2017 based on Cole's failure to appear. The warrant was not returned
served until April 2021. The return indicated that Cole was arrested in Sedgwick County.
Cole filed a motion asking the court to rule that the State waived its right to
prosecute her for the probation violation by failing to timely execute the arrest warrant.
The district court held an evidentiary hearing on the motion.
Deputy Jordan Douglas with the Sumner County Sheriff's Office testified as to the
State's efforts to serve the warrant at the hearing. He testified that his office received the
warrant in December 2017 and attempted to serve it three days later at the Ash Street
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address. Deputy Douglas explained that he initially tried to serve the warrant at the Ash
Street address because it was what was provided to him with the warrant. He said he did
not have access to the court file, which would have contained the documents in which
Cole indicated she lived on High Street.
When the attempted service at the Ash Street address was unsuccessful, Deputy
Douglas posted Cole's wanted poster on Facebook. He also searched a law enforcement
investigation program for Cole's information and found an address in Mulberry. Deputy
Douglas did not have jurisdiction in Mulberry, but he contacted the local sheriff. Another
deputy performed a license inquiry to see if Cole had a current address on her driver's
license. The inquiry returned an address in Newton, so they contacted the Newton police
department. A deputy also searched another database and found a different address in
Mulberry. At the time of the hearing, that deputy was no longer with the department and
Deputy Douglas could not say whether any further actions were taken in regard to that
address. That database search occurred in June 2019. No other actions were taken to
locate Cole after that.
The district court found that the State made reasonable efforts to execute the
warrant and denied Cole's motion. Then, after finding that Cole violated the terms of her
probation, the district court revoked Cole's probation and ordered her to serve her
underlying 90-day jail sentence. Cole appealed.
ANALYSIS
Cole claims that her due process rights were violated by the State's unreasonable
delay in executing the probation violation warrant. This court exercises unlimited review
over whether due process requirements are satisfied. State v. Hall, 287 Kan. 139, 143,
195 P.3d 220 (2008).
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The Due Process Clause of the Fourteenth Amendment to the United States
Constitution "imposes procedural and substantive due process requirements whenever the
State deprives someone of liberty, such as through the revocation of an individual's
probation." 287 Kan. at 143. When the State issues an arrest warrant, "due process
demands that the State act without unreasonable delay in the issuance and execution of
[the] arrest warrant." 287 Kan. at 144. "The failure to act in a timely and reasonable
manner may divest the district court of jurisdiction to revoke probation if there is
unreasonable delay, which must be determined on the circumstances of each case." State
v. Curtis, 42 Kan. App. 2d 132, 136-37, 209 P.3d 753 (2009). A delay is unreasonable if
"it prejudices the defendant or, alternatively, where there is an indication that the State
has waived its right to pursue the violation." 42 Kan. App. 2d at 139. If the State waives
its right to pursue the violation, then the probationer is not required to establish prejudice.
42 Kan. App. 2d at 139.
Cole argues that the State waived its right to pursue the violation. Waiver is "the
voluntary relinquishment of a known right" and "may be express or implied." 42 Kan.
App. 2d at 142 (citing Black's Law Dictionary 1611 [8th ed. 2004]). "'"An implied waiver
may arise where a person has pursued such a course of conduct as to evidence an
intention to waive a right, or where his conduct is inconsistent with any other intention
than to waive it."' [Citations omitted.]" 42 Kan. App. 2d at 142. To determine whether the
State has waived its right to pursue a probation revocation, courts "must consider the
State's conduct to determine whether such conduct reflects (1) reasonable diligence in
pursuing revocation or (2) unreasonable inaction in pursuing revocation, indicating
implied waiver." 42 Kan. App. 2d at 143.
The parties each cite cases which help to define the line between reasonable and
unreasonable delay. Cole contends her case is like State v. Bennett, 36 Kan. App. 2d 381,
138 P.3d 1284 (2006), or State v. Myers, 39 Kan. App. 2d 250, 178 P.3d 74 (2008). The
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State contends those cases are distinguishable, and the better comparison is State v.
Alexander, 43 Kan. App. 2d 339, 225 P.3d 1195 (2010). So we will examine each case.
In Bennett, this court found a delay of more than two years between issuance of a
probation violation warrant for Wynona Bennett and Bennett's arrest was unreasonable.
36 Kan. App. 2d at 381. There were different addresses attributed to Bennett—one was
listed on her warrant, another she provided at a preliminary hearing, and another was on
her presentence investigation report. The police did not attempt to serve the warrant at
any of the three addresses. The first attempt the police made at serving the warrant was
several months after the warrant was issued after an officer did some research and
identified a fourth potential address. Six months after that, the police featured Bennett in
a "'felon of the day'" program in a newscast on a local television station. 36 Kan. App. 2d
at 382. Eleven months after the warrant issued police received a tip on Bennett's
whereabouts but they did not follow up on it. They received another tip two months later
that they did follow up on. The person who answered the door at the address provided
said she was the babysitter and the police left. Later that day they received another tip
saying that Bennett was the person claiming to be the babysitter. Yet, Bennett was not
arrested at that address until a week later.
There were several facts which led this court to conclude that the delay was
unreasonable. First, the police did not attempt to serve the warrant at the address provided
with it. Second, the police waited several months before making its first effort to locate
Bennett and their efforts were insubstantial. Third, the police did not follow up on the
first tip they received as to Bennett's location. 36 Kan. App. 2d at 386. And although they
followed up on the second tip, they failed to return to the address upon learning that
Bennett was the person claiming to be the babysitter. 36 Kan. App. 2d at 386-87. Finally,
the court rejected the State's argument that Bennett attempted to conceal herself and its
efforts were reasonable in light of that. The court stated: "Her efforts to conceal herself is
only one factor to consider in determining the reasonableness of the investigation. If no
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one is looking for you, you cannot be said to be concealing yourself." 36 Kan. App. 2d at
387.
The present case had a longer period of time—three years and five months as
opposed to two years—between the issuance of the warrant and Cole's arrest. But the
facts are readily distinguishable. The police in Bennett waited several months to serve the
warrant and never attempted to serve it at the addresses provided, whereas in this case the
police attempted to serve the warrant at the address provided to them within three days of
receiving the warrant. The police in this case also followed up on the addresses they
found that were associated with Cole. Because the other addresses were outside their
jurisdiction, they were limited to notifying other police apartments to be on the lookout
for Cole, but they did make some effort. In Bennett, the police had several potential
addresses for Bennett but only attempted service at one. They also ignored a tip on
Bennett's whereabouts.
Myers is even more distinguishable. Thaddeus Myers began probation in October
2001. He moved to Oklahoma in February 2004 without informing his probation office.
The State moved to revoke Myers' probation in June 2004 and a warrant was issued that
same month. Myers was not arrested for two years. There was no evidence that the police
attempted to serve the warrant during those two years. The State argued that waiver of the
probation violation was not appropriate because Myers contributed to the failed service
by not reporting his new residence. This court rejected the State's argument, noting that
concealment was only one factor to consider in the analysis and that it did not relieve the
State of its obligation to conduct a reasonable investigation. 39 Kan. App. 2d at 253-54.
Because there was a "nearly complete absence of evidence" regarding the State's efforts
to serve the warrant, the court held that the State waived the probation violations asserted
in its motion to revoke. 39 Kan. App. 2d at 255. The present case is distinguishable from
Myers because the police here made several documented efforts to serve the warrant. The
question is whether these efforts were reasonable under the circumstances.
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The State points this court to Alexander, 43 Kan. App. 2d 339. In Alexander, this
court held that the State did not waive its right to proceed with a probation violation
hearing even though the State's efforts "fell short of perfection." 43 Kan. App. 2d at 339.
During his probation term, Brent Alexander asked that his probation supervision be
transferred from Garden City to Liberal because he had nowhere to live in Finney
County, but he could live with his wife in Ulysses near Liberal. Alexander was supposed
to fill out paperwork to facilitate the transfer but failed to do so. Alexander missed his
next two meetings with his probation officer. When his probation officer called him and
directed him to report and provide a residential address, Alexander did neither. The State
moved to revoke Alexander's probation. A warrant was issued for Alexander in
November 2005.
The police attempted to execute the warrant at Alexander's last known address that
same month but were unsuccessful. They also sent a copy of the warrant with Alexander's
photo to the Ulysses Sheriff's Office, though there was no evidence they attempted to
contact Alexander's wife there. The other efforts to serve the warrant included contacting
Alexander's mother and one of his friends but they did not have any useful information.
Police also input Alexander's information into a national computer database and
published a wanted photo in a local newspaper. When the police received tips that
Alexander was working in Arkansas, they contacted local police but did not hear back
from them. Police also received a tip that Alexander was working in Ulysses, but by the
time they identified his employer several months later he was no longer working there.
During the time the warrant was active, police had contact with Alexander on two
different occasions and failed to arrest him on the outstanding warrant. One incident was
when Alexander was a witness in a battery case and another was when police went to
Alexander's residence on a domestic disturbance call. Alexander was eventually arrested
in Arkansas in October 2007. Alexander moved to dismiss the probation violation on the
basis that the State unreasonably delayed executing the warrant.
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This court began by noting that the State's efforts were more extensive than those
taken in Myers and Bennett. Alexander, 43 Kan. App. 2d at 342-43. The police went to
Alexander's last known address, entered his information into a national law enforcement
program, sought help from the public by publishing his photo in the local newspaper,
followed up on tips they received, called Alexander's mother and friend, and forwarded
information about Alexander to police in Ulysses and Arkansas. The court recognized
that there were additional actions the State could have taken to execute the warrant more
quickly but concluded that overall the State acted reasonably. 43 Kan. App. 2d at 344.
This case is much more similar to Alexander than Myers or Bennett. The police
took many of the same steps—quickly attempting to serve the warrant at the address
provided with the warrant, inputting the warrant information into law enforcement
databases, publicizing a photo of the wanted person (albeit there was no evidence as to
what impact such publications had), and contacting other jurisdictions when they
identified potential addresses in those jurisdictions.
The reasons Cole provides for finding that the State engaged in unreasonable delay
are not persuasive. First, Cole repeatedly asserts that she provided the district court with
an updated address on High Street in Argonia and the police failed to attempt to serve the
warrant there. This is not true. While Cole did say she lived on High Street, she did not
provide a specific address. She is essentially arguing that the police should have gone up
and down High Street in search of her which would be unreasonable. The State need not
follow every lead or act perfectly for a court to find that the State made reasonable
efforts. In Alexander, the police knew that Alexander wanted to live with his wife in
Ulysses, but they did not attempt to contact her despite contacting Alexander's mother
and friend.
Cole also makes the misleading assertion that between the attempted warrant
execution on Ash Street in December 2017 and her arrest, the police "took no other steps
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to execute the warrant." This ignores the multiple attempts to locate an accurate address
for Cole, many of which are similar to the methods used by the police in Alexander. This
included searching law enforcement databases for Cole's address and contacting other
jurisdictions when they had reason to believe that Cole may reside there.
The biggest factor weighing against the State is the length of time, three years and
nearly five months, that passed between the issuance and execution of the warrant. This is
longer than the time elapsed in Alexander. Between June 2019 and April 2021 when Cole
was arrested, Deputy Douglas did not believe they made any attempts to locate Cole.
However, the State's actions were reasonable under the circumstances. As the district
court noted, the State has limited resources and thousands of active warrants. The court
also said that Cole "knew darn good and well she was on probation." Because she was on
probation, Cole had a continuing duty to notify her probation officer of any changes in
address. "[I]t should only be in the most unusual circumstances, those in which law
enforcement exhibits a complete indifference to its responsibilities, like the courts in
Haines, Bennett, and Myers were faced with, in order for the court to determine that [a]
probationer's due process rights have been violated for failure to serve a warrant." State v.
Carleton, No. 105,267, 2011 WL 6311920, at *4 (Kan. App. 2011) (unpublished
opinion). Holding otherwise would "send[] the wrong message to probation violators"
and suggest that all they need to do to be released from probation is to avoid being
arrested for two years. Myers, 39 Kan. App. 2d at 257 (Malone, J., concurring).
For these reasons, we affirm the district court.
Affirmed.
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