Transcript Search and Seizure

Assistant District Attorney Jonathan Sullivan
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Senate Bill 329
Amends the Statute of Limitations For Certain
Offenses committed by Juveniles
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Creates an alternative means of adjudication for Juvenile
Offenders.
No Child in Need of Care can be held in a detention facility
unless necessary to protect their safety or if they are also a
Juvenile Offender.
Requires the Secretary of Corrections to conduct a study of
all youth residential centers in Kansas.
Mandatory Risk Assessment Tool for all Juvenile Offenders.
Clarifies that the Department of Children and Families
cannot be appointed the permanent custodian of a child.
No MAPs for Juveniles under 12 years old.
Juvenile Sentencing Matrix Amended
Good time credit allowed below mandatory minimum term
of commitment
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K.S.A. 2013 Supp. 38-2303 amended to extend
the statute of limitations on filing charges
against Juveniles.
Extends the time limit for filing charges for the
offenses of Murder, Rape, Aggravated
Criminal Sodomy, Terrorism, and Illegal Use of
Weapons of Mass Destruction to no limitation
from the date of the commission of the offense.
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Extends the time limit for filing charges for the
offenses of Lewd and Lascivious Behavior,
Unlawful Voluntary Sexual Relations and
Aggravated Incest to five years from date of the
commission of the offense if the victim is less than
sixteen years old.
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Extends the time for the filing of charges for sexually violent
offenses as defined by K.S.A. 22-3717; indecent and
aggravated indecent liberties with a child,, criminal sodomy,
indecent and aggravated indecent solicitation of a child,
sexual exploitation of a child, aggravated sexual battery,
aggravated human trafficking, commercial sexual
exploitation of a child, and any attempt, conspiracy or
criminal solicitation of these offenses.
When the victim is 18 years old or older to 10 years from the date of
the commission of the offense or 1 year from the date on which the
identity of the suspect is established by DNA testing, whichever is
later.
 When the victim is less than 18 years old; within 10 years of the date
the victim turns 18 years of age or one year from the date on which
the identity of the suspect is established by DNA testing,
whichever is later.
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K.S.A. Supp. 38-2303 also amended to define when an
offense occurs and when a proceeding is commenced
under the Revised Juvenile Justice Code.
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An offense is committed either when every element occurs, or, if a
legislative purpose to prohibit a continuing offense plainly
appears, at the time when the course of conduct or the alleged
juvenile offender’s complicity therein is terminated. Time starts
to run on the day after the offense is committed.
A proceeding under this code is commenced when a complaint or
information is filed, or an indictment returned, and a warrant
thereon is delivered to the sheriff or other officer for execution.
No such proceeding shall be deemed to have been commenced
if the warrant so issued is not executed without unreasonable
delay.
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Creates an Alternative means of adjudication for
Juvenile Offenders by amending K.S.A. 2013 Supp.
38-2347, 38-2360, 38-2369, 38-2370 and 38-2372 and
repealing the existing sections..
Applies to Misdemeanors only
A county or district attorney with jurisdiction over the offense
may designate an alleged juvenile offender for
adjudication under the statute and not seek application of
a placement within the placement matrix pursuant to
K.S.A. 2013 Supp. 38-2369, if the alleged juvenile
offender’s act, if committed by an adult, would constitute
a misdemeanor.
 The county or district attorney must make the
designation in the original complaint or by written notice
within 14 days after the filing of the complaint.
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All trials under the statute are bench trials.
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The trial of offenses under this section shall be to the
court and the right to a trial by jury under K.S.A.
2013 Supp. 38-2357, and amendments thereto, shall
not apply.
Juveniles cannot be committed to a correctional
facility if offense designated under the statute.
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The juvenile cannot be directly committed to a
juvenile correctional facility for an offense or for the
violation of a term or condition of the disposition for
an offense designated under the alternative means of
adjudication.
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Offenses designated under the statute have no
effect on a juvenile’s criminal history.
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No adjudication under the alternative means of
adjudication or violation of the terms and conditions
of the disposition of the offense, including a
placement failure, can be used against the juvenile in
a proceeding on a subsequent offense committed as
a juvenile or as an adult.
 ‘’used against the juvenile’’ includes, but is not limited
to, establishing an element of a subsequent offense,
raising the severity level of a subsequent offense or
enhancing the sentence for a subsequent offense.
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Other features of Alternative Means of Adjudication:
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Automatic Total Expungement: Upon completion of the case
and the termination of the court’s jurisdiction, the court shall
order the adjudication expunged.
 Ordinarily, expungements are subject to certain disclosure
requirements, but under this statute, the record is completely
wiped clean.
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The juvenile cannot be required to register as an offender under
the Kansas Offender Registration Act as a result as a result of
adjudication under the statute.
Normal records disclosure requirements do not apply.
 The provisions of K.S.A. 2013 Supp. 38-2309 and 38-2310, and
amendments thereto, shall not apply to proceedings under this
section.
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Motions for Adult Prosecution, K.S.A. 2013 Supp. 38-2347, do
not apply to proceedings under the statute.
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Children in need of care cannot be placed in a detention
facility under ordinary circumstances.
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The Revised Kansas Code for Care of Children is
amended as follows; notwithstanding any other provision
of law, no child alleged or found to be a child in need of
care may be placed in a juvenile detention facility unless:
 (1) Such placement is necessary to protect the safety of the
child and is authorized by subsection (b) of K.S.A. 2013 Supp.
38-2232, and amendments thereto, or K.S.A. 2013 Supp. 382242, 38-2243 or 38-2260, and amendments thereto; or (2) the
child is also alleged to be a juvenile offender and such
placement is authorized by K.S.A. 2013 Supp. 38-2330 or 382343, and amendments thereto.
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K.S.A. 2013 Supp. 38-2268 amended to clarify
that the secretary of DCF cannot be appointed
the permanent custodian of a child in need of
care.
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Under prior law DCF could be appointed as a
permanent custodian.
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The statute requires that by January 15, 2015 that
the Secretary of Corrections :
conduct a cost study analysis of all youth residential
centers.
 Evaluate the program needs of youth in the residential
centers and compare the needs with program availability.
 Develop a fee schedule for base service at the centers and
rates for additional program components.
 Develop performance evaluations to measure the
performance and effectiveness of juvenile offender
service providers and a plan for performance-based
incentives for the providers.
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Amends K.S.A. 2013 Supp. 38-2360 to require that the presentence
investigation and report include a summary of the results from a
standardized risk assessment tool or instrument.
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The risk assessment tool used in Kansas is:
 The Youth Level of Service/Case Management Inventory™ (YLS/CMI™) is a
risk/needs assessment and a case management tool combined into one
convenient system derived from the Level of Service Inventory–Revised™ (LSI–
R™). The YLS/CMI helps probation officers, youth workers, psychologists, and
social workers identify the youth’s major needs, strengths, barriers, and
incentives; select the most appropriate goals for him or her; and produce an
effective case management plan. The Youth Level of Service/Case Management
Inventory™ (YLS/CMI™) is a risk/needs assessment and a case management
tool combined into one convenient system derived from the Level of Service
Inventory–Revised™ (LSI–R™). The YLS/CMI helps probation officers, youth
workers, psychologists, and social workers identify the youth’s major needs,
strengths, barriers, and incentives; select the most appropriate goals for him or
her; and produce an effective case management plan.
 Copyright © 2004. - 2014 Multi-Health Systems Inc. All Rights Reserved.
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The bill also amends K.S.A. 2013 Supp. 21-6607 to allow money in the
correctional supervision fund to be used to implement the statewide risk
assessment tool.
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K.S.A. 2013 Supp. 38-2369 amended. For the purpose
of committing juvenile offenders to a juvenile
correctional facility the statute is amended by:
amending the Serious Offender II category to include
only juvenile offenders adjudicated for a severity level 7
person felony adjudication with one prior felony
adjudication.
 Creates the Serious Offender III category which includes
juvenile offenders adjudicated for severity level 8, 9, and
10 person felonies with one prior felony adjudication and
requires that the judge conduct a departure hearing and
finds substantial and compelling reasons to impose a
departure sentence as provided in K.S.A. 2013 Supp. 382371.
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K.S.A. 2013 Supp. 38-2369 amended. For the
purpose of committing juvenile offenders to a
juvenile correctional facility the statute is
amended by:
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Chronic Offender I, II, and III categories amended by
requiring the court to conduct a departure hearing
and find substantial and compelling reasons to
impose a departure sentence as provided in K.S.A.
2013 Supp. 38-2371.
Offender Type
Offense Level of
Adjudication/History
Term of
Commitment
Aftercare Term
Violent Offenders
Violent Off. I
Off-grid felony
60 mo. to 22
½ yrs old
6 mo. to 23 yrs
old
Violent Off. II
Level 1 - 3 pers.
felony
24 mo. to 22
½ yrs old
6 mo. to 23 yrs
old
Serious Offenders
Serious Off. I
Level 4 - 6 pers.
Felony or Level 1-3
drug felony
18 to 36
months
6 to 24 months
Serious Off. II
Level 7 pers.
Felony and 1 prior
felony adjudication
9 to 18
months
6 to 24 months
Serious Off. III
Level 8-10 pers.
Felony and 1 prior
felony adjudication
and departure
hearing
9 to 18
months
6 to 24 months
Offender Type
Offense Level of
Adjudication/History
Term of
Commit
ment
Aftercare Term
Chronic Offenders
Chronic Off. I
Present non-pers. felony and 2 prior
felony adjudications and departure
hearing
6 to 18
months
6 to 12 months
Chronic Off. II
Present felony or level 3-4 drug
adjudication and 2 prior misd. adj. or
1 prior pers. or non-pers. felony adj.
Or 2 prior level 4-5 drug adj. and
departure hearing
6 to 18
months
6 to 12 months
Chronic Off. III
Present misdemeanor adj. or level 4 5 drug felony adj. and 2 prior misd.
adj. or 1 prior pers. or non-pers.
felony adj. or 2 prior level 4-5 drug
felony adj. and 2 placement failures
and departure hearing
3 to 6
months
3 to 6 months
3 to 6
months
2 to 6 months or
length of original
release
whichever is
longer.
Conditional Release
Violators
Conditional
Release Violator
All
* See 38-2369(a)(4)(B) for more
options on disposition of violators
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K.S.A. 2013 Supp. 38-2370 amended to allow
juveniles directly committed to a correctional
facility to earn good time credit below the
mandatory minimum sentence set forth in the
Juvenile Sentencing Matrix.
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Previously no good time credit could be earned to
reduce a sentence below the mandatory minimum
sentence.
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Riley v. California and United States v. Wurie,
573 U.S. ___, decided June 25, 2014.
Cellular phones seized incident to arrest of a suspect
generally may not be searched without a warrant.
 “[The Court’s] answer to the question of what police
must do before search a cell phone seized incident to
an arrest is accordingly simple – get a warrant.”
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What about exigent circumstances/possible
destruction of data?
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any effort by law enforcement must be limited to
preserve the data and not exceed that objective.
Must be able to answer the following questions:
 Are there “exigent circumstances”: a good faith claim of
urgent law enforcement need, some reason to believe
that data destruction is a realistic possibility?
 Is the preservation practice at issue narrowly tailored to
the objective of preserving evidence without intruding
into the data on the phone?
 Is the case a serious offense, generally defined as a
“jailable offense”?