KANSAS OFFICE of
  REVISOR of STATUTES

  

Home >> Statutes >> Back


Click to open printable format in new window.Printable Format
 | Next

22-3216. Motion to suppress illegally seized evidence. (1) Prior to the trial a defendant aggrieved by an unlawful search and seizure may move for the return of property and to suppress as evidence anything so obtained.

(2) The motion shall be in writing and state facts showing wherein the search and seizure were unlawful. The judge shall receive evidence on any issue of fact necessary to determine the motion and the burden of proving that the search and seizure were lawful shall be on the prosecution. If the motion is granted then at the final conclusion of the case, the court shall order the suppressed evidence restored to the party entitled thereto, unless it is otherwise subject to lawful detention.

(3) The motion shall be made before trial, in the court having jurisdiction to try the case, unless opportunity therefor did not exist or the defendant was not aware of the ground for the motion, but the court in its discretion may entertain the motion at the trial.

(4) A motion to suppress illegally seized evidence may be made before or during a preliminary examination. If the motion is granted the suppressed evidence shall be held subject to further order of the magistrate. If the defendant is bound over for trial, the suppressed evidence shall thereupon become subject to the orders of the district court. If the defendant is not bound over and if no further proceedings are instituted on the particular charge or involving the particular suppressed evidence within ninety (90) days after the granting of the order, then the magistrate shall order the suppressed evidence restored to the party entitled thereto, unless it is otherwise subject to lawful detention.

History: L. 1970, ch. 129, § 22-3216; L. 1971, ch. 114, § 5; July 1.

Law Review and Bar Journal References:

Apparent intention of act is that an order to suppress be made by either the magistrate conducting the preliminary hearing, or the trial judge, Richard H. Seaton and Paul E. Wilson, 39 J.B.A.K. 97, 167 (1970).

"Searches Incident to a Lawful Arrest," Keith G. Meyer, 41 J.B.A.K. 365, 366 (1972).

"Arrest Under the New Kansas Criminal Code," Keith G. Meyer, 20 K.L.R. 685, 693, 719 (1972).

Mentioned in note concerning the constitutionality of the use of lay judges in Kansas, 25 K.L.R. 275, 282 (1977).

Cited in note concerning an employee's right to challenge a search of his employer's premises, Robert M. Adrian, 17 W.L.J. 209, 212 (1977).

Mentioned in note concerning the exclusion of evidence obtained by use of false affidavits, 27 K.L.R. 509, 516, 517 (1979).

"Criminal Procedure Review: Survey of Recent Cases," 44 K.L.R. 895 (1996).

"The Not So Plain Feel Exception," Dustin W. Mullin, 37 W.L.J. 777 (1998).

Criminal Procedure Survey, 55 K.L.R. 797 (2007).

CASE ANNOTATIONS

1. State sustained burden of proving search and seizure lawful; district court erred in ordering suppression of articles of personal property. State v. Voit, 207 Kan. 635, 639, 485 P.2d 1306.

2. Interlocutory appeal of order suppressing gambling equipment obtained in warrantless search of private club sustained. State v. Dailey, 209 Kan. 707, 708, 498 P.2d 614.

3. Defendant with no interest in premises has no standing to object to search thereof. State v. Masqua, 210 Kan. 419, 421, 502 P.2d 728.

4. Cited in appeal on question reserved; functions of court and jury discussed in disapproving patterned jury instruction. State v. McClanahan, 212 Kan. 208, 211, 510 P.2d 153.

5. Subsection (3) cited; trial court has discretion to reentertain motion to suppress if new or additional evidence produced. State v. Jackson, 213 Kan. 219, 225, 515 P.2d 1108.

6. Order sustaining motion to suppress evidence allegedly obtained in violation of federal Posse Comitatus Act reversed. State v. Danko, 219 Kan. 490, 494, 495, 548 P.2d 819.

7. Order suppressing evidence reversed; search by private citizen not agent for state not prohibited. State v. Boswell, 219 Kan. 788, 789, 549 P.2d 919.

8. Evidence sufficient to sustain state's burden under subsection (2); conviction of aggravated robbery affirmed. State v. Huff, 220 Kan. 162, 165, 551 P.2d 880.

9. Subsection (2) applied; order suppressing evidence on grounds of illegal seizure held proper. State v. Youngblood, 220 Kan. 782, 785, 556 P.2d 195.

10. No abuse of discretion in refusing to hear motion made during trial. State v. Black, 221 Kan. 248, 250, 559 P.2d 784.

11. Motion to suppress evidence of certain hair samples properly overruled. State v. Buckner, 223 Kan. 138, 141, 574 P.2d 918.

12. No claim that hair samples taken were not knowingly given; motion to suppress overruled. State v. Coe, 223 Kan. 153, 161, 574 P.2d 929.

13. Motion to suppress properly overruled; seizure upon probable cause. State v. Johnson, 223 Kan. 185, 187, 573 P.2d 976.

14. Subsection (3) cited; procedure not followed; effect not ruled upon. State v. Sullivan, 224 Kan. 110, 123, 578 P.2d 1108.

15. Proof of voluntariness of consent to search and seizure requires preponderance of evidence; question for trier of fact, not overturned unless clearly erroneous. State v. Nicholson, 225 Kan. 418, 422, 590 P.2d 1069.

16. Cited in construing K.S.A. 22-3603; interlocutory appeal by state from order of trial court suppressing evidence may be taken prior to preliminary examination. State v. Platten, 225 Kan. 764, 767, 594 P.2d 201.

17. Affidavit in support of warrant did not contain adequate facts to support determination of probable cause; order suppressing evidence upheld. State v. Brown, 2 Kan. App. 2d 379, 380, 579 P.2d 729.

18. Trial court order excluding "other crimes" evidence not an order suppressing evidence; appellate court has no jurisdiction to hear appeal by state. State v. Boling, 5 Kan. App. 2d 371, 374, 375, 377, 617 P.2d 102.

19. Conviction for possession of heroin upheld; search warrant affidavit showed probable cause. State v. Whitehead, 229 Kan. 133, 134, 135, 137, 622 P.2d 665.

20. Policemen's statements were not voluntary when refusal to answer would result in departmental discipline. State v. Mzhickteno, 8 Kan. App. 2d 389, 658 P.2d 1052 (1983).

21. Burden is on prosecution to show search and seizure was lawful and supported by probable cause. State v. Dunn, 233 Kan. 411, 415, 662 P.2d 1286 (1982).

22. Cited in holding review under K.S.A. 22-3603 permitted where rulings may substantially impair state's ability to prosecute case. State v. Newman, 235 Kan. 29, 31, 35, 680 P.2d 257 (1984).

23. Where court upon oral motion to suppress evidence dismissed charges prior to preliminary hearing, the state must appeal dismissal to invoke appellate jurisdiction. State v. Patrzykont, 235 Kan. 537, 680 P.2d 555 (1984).

24. Warrantless search of vehicle for inventory purposes incident to lawful impounding, including locked compartments, reasonable. State v. Fortune, 236 Kan. 248, 257, 689 P.2d 1196 (1984).

25. Movant is required to show search and seizure was unlawful, that movant was personally aggrieved and movant's rights were prejudiced. State v. Sumner, 210 Kan. 802, 804, 504 P.2d 239 (1972).

26. Trial court can reentertain an earlier motion to suppress which had been denied. State v. Olson, 11 Kan. App. 2d 485, 488, 726 P.2d 1347 (1986).

27. Cited; discretion of court to entertain motion to suppress at trial discussed. State v. Riedel, 242 Kan. 834, 837, 752 P.2d 115 (1988).

28. Guidelines for investigatory stops (K.S.A. 22-2402) examined where defendant/driver was habitual violator (K.S.A. 8-286). State v. Whitehurst, 13 Kan. App. 2d 411, 413, 772 P.2d 1251 (1988).

29. K.S.A. 22-3603 as proper statute to appeal order suppressing or excluding evidence that substantially impairs state's case examined. State v. Griffin, 246 Kan. 320, 323, 787 P.2d 701 (1990).

30. Burden on prosecutions to show evidence not "Fruit of the Poisonous Tree". State v. Daly, 14 Kan. App. 2d 310, 316, 789 P.2d 1203 (1990).

31. Reviews discretion of court to entertain a motion to suppress. State v. Wickliffe, 16 Kan. App. 2d 424, 428, 826 P.2d 522 (1992).

32. Cited where court held phlebotomist not "qualified medical technician" authorized to draw blood under K.S.A. 8-1001(c)(3). City of Salina v. Martin, 18 Kan. App. 2d 284, 285, 849 P.2d 1010 (1993).

33. Cited; whether police violated defendant's rights by using unnecessary and unreasonable force in executing search warrant examined. State v. McCloud, 257 Kan. 1, 10, 891 P.2d 324 (1995).

34. Pro se motion containing only conclusory statements insufficient to require trial court to hold a hearing. State v. Cheeks, 258 Kan. 581, 592, 908 P.2d 175 (1995).

35. Objection at trial to search not incidental to arrest overruled; no record created supporting defendant's assertions. City of Dodge City v. Hadley, 262 Kan. 234, 242, 936 P.2d 1347 (1997).

36. Trial did not err in finding detention of defendant unlawful and consent to search not voluntary. State v. Rice, 264 Kan. 232, 238, 955 P.2d 1258 (1998).

37. Court may reentertain motion to suppress evidence because of new or additional evidence at trial. State v. Holmes, 278 Kan. 603, 102 P.3d 406 (2004).

38. Cited; the burden of proving that the search and seizure was lawful is on the prosecution. State v. Martin, 285 Kan. 994, 997, 179 P.3d 457 (2008).

39. Cited; state has the burden of proving that a search and seizure was lawful. State v. Morlock, 40 Kan. App. 2d 216, 221, 190 P.3d 1002 (2008).

40. Defendant's motion to suppress fails to allege an unlawful search and seizure. State v. Smith, 46 Kan. App. 2d 939, 268 P.3d 1206 (2011).


 | Next

LEGISLATIVE COORDINATING COUNCIL
  6/03/2024 Meeting Notice 

  LCC Policies

REVISOR OF STATUTES
  2023 New, Amended and Repealed by KSA
  2023 New, Amended and Repealed by Bill
  2024 Valid Section Numbers
  Chapter 72 Statute Transfer List
  Kansas School Equity & Enhancement Act
  Gannon v. State
  Information for Special Session 2021
  General Info., Legal Analysis & Research
  2022 Amended & Repealed Statutes
  2021 Amended & Repealed Statutes
  2020 Amended & repealed Statutes
  2019 Amended & Repealed Statutes

USEFUL LINKS
Session Laws

OTHER LEGISLATIVE SITES
Kansas Legislature
Administrative Services
Division of Post Audit
Research Department