Internet Explorer 11 is not supported

For optimal browsing, we recommend Chrome, Firefox or Safari browsers.

Kansas Police Conduct Illegal Search and Seizure All the Time

Law enforcement across the state have violated Fourth Amendment rights numerous times over the last decade. That has called into question the training and experience requirements for officers.

a flashlight shines on a document stating the Fourth Amendment
The Fourth Amendment provides protections against unreasonable search and seizures, but Kansas police have committed numerous violations of Fourth Amendment rights over the past decade.
(Neil Nakahodo/The Kansas City Star/TNS)
Just before midnight on a Tuesday in May 2016, Kyle McCool answered a knock on his door. Sheriff’s deputies and a police detective stood on the other side, carrying a search warrant.

The 27-year-old let the officers inside the ranch-style house near Emporia State University. They were hunting for illegal drugs after a confidential informant purchased weed earlier in the evening from a suspected dealer at the property.

Stepping inside, Lyon County, Kan., Deputy Sheriff Heath Samuels quickly realized the rental house was divided into three apartments, but believed the suspected dealer lived in the basement.

Confronted with a house that was more of a mini-apartment building, Samuels made a fateful decision. Instead of seeking additional warrants for the other apartments while officers searched the basement, he gave the residents a stark choice.

“He basically said if they had to search for anything that we would go to jail that night or go to the police station,” McCool later testified.

Kansas law enforcement have committed numerous violations of Fourth Amendment rights over the past decade, an investigation by The Kansas City Star found. At least 25 times since 2014, courts either ruled that Kansas law enforcement trampled search and seizure protections; or lawsuits alleging Fourth Amendment violations have led to payouts, court-ordered remedies or remain ongoing. The number almost certainly significantly undercounts the true number of violations because it includes only incidents that have made their way into the courts.

The Fourth Amendment is one of the most basic rights people in the United States enjoy, providing a bulwark against government intrusion. It says the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” and that warrants can only be approved based on probable cause and must “particularly” describe what will be searched or seized.

The Star’s investigation began after police raided the Marion County Record in August. Gideon Cody, then the Marion police chief, obtained search warrants for the Record’s newsroom, as well as the homes of the publisher and a city councilwoman. Cody’s investigation quickly fell apart and he resigned weeks later.

Cody’s raid was widely seen as an attack on the First Amendment – retaliation against the press after the newspaper had investigated Cody’s past at the Kansas City Police Department, where he was facing discipline before he left for Marion.

But it also raises troubling questions about Fourth Amendment rights. While the Marion raids provoked widespread condemnation, many other confirmed or alleged Fourth Amendment violations draw little public attention. The episodes identified by The Star encompass everything from warrantless searches of homes to the alleged wrongful seizure of vehicles, firearms and animals.

Some are flagrant violations while others represent borderline calls. They have taken place all over the state. The cases involve both victims who likely engaged in illegal activity and those never accused of a crime.

Among them:

–The City of Sabetha paid a couple $105,000 after police arrested one of them following what the family alleged was a warrantless search of their home.

–The Thomas County Sheriff’s Office aided in the repossession of a resident’s vehicle despite having no court order authorizing a repossession. The sheriff’s office later agreed to require additional training to settle a lawsuit over the incident.

–Buhler police conducted a warrantless search of a rental home after the landlord let an officer in. The police found marijuana, but a state appeals court said the police violated the renter’s Fourth Amendment rights and ordered the evidence suppressed.

–The Kansas Highway Patrol engaged in a pattern of Fourth Amendment violations in how troopers conducted traffic stops, a federal judge ruled this summer.

The list goes on.

The Star interviewed more than 40 Kansas residents, defense attorneys, prosecutors, current and former law enforcement and judges, elected officials and others for this investigation. The newspaper also reviewed thousands of pages of court records, including transcripts of court hearings and trials.

Additionally, The Star collaborated with local newspapers across Kansas. This story includes reporting from The Emporia Gazette, the Abilene Reflector Chronicle, the Chase County Leader-News and The Cowley Courier Traveler.

This story is part of The Star’s “Broken Government” project, which exposes the ways governments across Missouri and Kansas fail to work for residents and taxpayers – and hold officials and politicians accountable. Previous installments examined fraud in local governments, police vetting requirements and the water crisis in Kansas.

In the Emporia police search, after Samuels threatened residents with jail time if they didn’t allow him to search their apartments, McCool took the deputy to his ground floor apartment. As Samuels held open a bag, McCool deposited bongs, pipes, digital scales and showed the deputy where he kept his marijuana.

The Lyon County Attorney’s Office charged McCool with marijuana possession and possession of drug paraphernalia, both class A misdemeanors. After a one-day bench trial in October 2016, a district court judge found him guilty.

The convictions unraveled a little more than a year later. In early 2018, the Kansas Court of Appeals ruled that Samuels had coerced McCool into letting the deputy sheriff search his apartment and vacated the convictions.

Judge Anthony Powell, now the state solicitor general, wrote for the court that the “jail threat gave the appearance that McCool did not have much choice about whether to deny the request.”

But many alleged Fourth Amendment violations are never challenged in court, especially if criminal charges are never brought. In other instances, prosecutors might quietly dismiss a criminal case before troubling conduct by law enforcement draws attention or reach a plea deal before Fourth Amendment issues are resolved. And many individuals who believe their rights have been violated don’t have access to top-flight lawyers or the ability to attract public attention the way the Record did.

“We see violations of the Fourth Amendment, or at least things we think are violations of the Fourth Amendment, all the time,” said Cole Hawver, a Junction City-based public defender.

Several key factors make Fourth Amendment violations more likely, The Star found, including insufficient experience among officers and a lack of coordination between law enforcement and prosecutors before searches.

Across Kansas, law enforcement experience with searches and seizures varies dramatically. Officers, especially in rural areas, can go a whole career obtaining as few as a dozen search warrants, which must be approved by a judge. Others may handle a dozen or more a year.

Officers are required to take continuing education each year, but Kansas imposes no rule that any of it focus on Fourth Amendment issues. While some law enforcement officials say most training in some way touches on the Fourth Amendment, it’s up to individual departments and agencies whether to mandate specific instruction.

In some rural areas, police departments and sheriff’s offices don’t consistently work with local prosecutors before obtaining a search warrant. Prosecutors often work with multiple agencies and may be the only lawyer in their office, leaving little time to keep tabs on investigations.

And because Kansas allows non-lawyers to serve as magistrate judges, it’s possible some search warrants are approved without ever being reviewed by an attorney.

“For folks in the metro areas who go, ‘Oh my lord, that’s ridiculous, how on earth could that be?’ Well, the reality is there are not enough people practicing law in rural areas to have law-trained judges everywhere,” Sedgwick County District Attorney Marc Bennett said.

Searches and Seizures Change Lives

Violations of the Fourth Amendment can upend the lives of those who experience them.

In Sabetha, police arrested Austin Wasinger four months after the death of his 1-month-old son, Caldyn, on Dec. 1, 2018. The day he received Caldyn’s autopsy report in mid-March 2019, Wasinger said he called a suicide hotline.

Caldyn’s death was ruled accidental and attributed it to an unsafe sleeping environment, which Wasinger said involved him. Wasinger said he “absolutely was a total mess” for a couple days after reading the report.

On April 3, 2019, a social worker from the Kansas Department for Children and Families arrived at Wasinger’s home, accompanied by police.

“I answered the door, I was standing in the doorway and they basically said you have to come with us, answer some questions,” Wasinger said.

Wasinger said he protested because he was looking after the children alone while his wife, Krista, was out of town. In a federal lawsuit, he alleged an officer unlawfully entered the home and conducted a warrantless search. Wasinger spent two days in jail, accused of interfering with a police officer. He was never prosecuted.

The City of Sabetha paid Wasinger $105,000 to settle the lawsuit last year. In a court filing, an attorney representing the city admitted the Wasingers were innocent of any criminal activity and the officers had no basis to arrest Austin or search his home.

But Martin Mishler, Sabetha’s city attorney, said the city is confident the police handled the situation correctly.

Wasinger said he emerged from the experience with an altered view of law enforcement, becoming aware of “all the constitutional oversteps that take place on a regular basis that people just don’t question.”

Such experiences can be traumatizing and diminish public confidence in police.

“If someone feels that they’ve been mistreated by the police, if they feel like they’ve been treated unfairly, if they feel like their privacy has been invaded for no reason, that can significantly shift someone’s attitude,” said Lauren Bonds, executive director of the National Police Accountability Project.

In Leavenworth, Ebony Shaffer spent months trying to retrieve guns police took from the home of her father, Willie Gillom, Jr., after he died unexpectedly in December 2020. The seizures, she said, were warrantless and unreasonable.

As family members sorted through Gillom’s belongings after his death, they discovered at least five missing handguns. After Shaffer called police to file a report, she learned police had seized the weapons.

That set off rounds of back-and-forth between Shaffer and police as she tried to get the guns back. She said the department set shifting requirements for what she needed to do and that she was shuffled around to different staff members without making progress.

“I think they didn’t like being questioned, they didn’t like their authority being questioned,” Shaffer said.

Only in April 2021 – four months later and with the involvement of an attorney – did police release the weapons. Shaffer filed a lawsuit in late 2022 in Leavenworth District Court against the city and police department.

The police department agreed to pay $25,000 to settle the lawsuit, which landed in federal court. The settlement agreement indicates the city and police department “categorically deny” Shaffer’s claims.

Leavenworth Police Maj. Dan Nicodemus, the deputy police chief, said the department has a longstanding practice of taking firearms for safekeeping when there’s an unaccompanied death and no immediate family members to secure the weapons. He said the death initially appeared potentially suspicious but an autopsy later put those concerns to rest.

Police say Shaffer temporarily fell through the cracks of the department’s bureaucracy when she tried to get the guns back, leading to delays.

For Shaffer, the experience left a bitter taste.

“My parents were very law-abiding citizens, they raised my brother and I to be that way,” she said. “You don’t really question the authority of the police department.”

Shaffer said she never wants to step back into the police department again. “I felt so frustrated, very frustrated,” she said.

Training, Experience Questioned

Police receive specific training on searches and seizures when they enter the profession at academies. But after that, Kansas doesn’t require that the 40 hours of annual continuing education each officer must attend focus on the Fourth Amendment.

That raises the prospect of officers going years without formal training specifically on the constitutional right, even as court decisions alter the bounds of acceptable conduct.

Some agencies said they had no specific training or policy regarding search and seizures while others provided The Star with hundreds of pages of training and policy documents, often prepared by the national police consulting firm Lexipol, which writes training and policy documents for thousands of clients across the United States and Canada.

According to data kept by the Institute for Criminal Justice Reform, every state in the nation but Hawaii requires some continuing education for officers. Kansas is one of seven states that mandates 40 or more hours.

Sometimes local prosecutors aid law enforcement in Fourth Amendment training. The Johnson County District Attorney’s Office holds training for individual agencies and briefs rank-and-file officers.

If officers aren’t well trained on the Fourth Amendment, “we lose cases,” said Chris McMullin, chief deputy in the Johnson County District Attorney’s Office, and president of the Kansas District and County Attorney Association.

“Very few instances in my entire career where I’ve seen an officer that is deliberately doing something,” McMullin said. “It’s more like ... it’s a gray enough area that maybe they’re pushing the edge of the envelope.”

Despite extensive training, former Johnson County Sheriff Frank Denning said at times warrants would be denied and evidence suppressed. Those instances, he said, were learning experiences for officers.

“It should be – and it is – a process that is complex and it should be difficult to obtain,” Denning said.

In Thomas County in northwestern Kansas, the sheriff’s office settled a 2020 lawsuit in part by agreeing to adopt policy requiring annual training for deputies on the department’s policy manual, including policies on seizures. The sheriff’s office also paid $55,000.

The settlement came after Kyle McLinn, who runs a towing business in Oakley, woke up on Aug. 10, 2018, to the Thomas County Sheriff’s Office and Kansas Highway Patrol standing by as his truck was itself towed away.

McLinn’s bank was repossessing his truck, even though it didn’t have a court order authorizing the repossession. From his own work assisting in repossessions, McLinn knew that police’s only role was to keep the peace and that, without a court order, police and the towing company had to obey if he asked them to leave his land.

The officers did not leave, McLinn said in the lawsuit. Instead, they instructed him to allow the repossession to occur and one deputy made repeated gestures toward his gun, the lawsuit alleged.

“I’ve had law enforcement on more than one occasion tell me that I have to follow the law or else,” McLinn said in an interview. “I follow them but when it comes around to their side they don’t really have a lot of concern for it.”

Craig Uhrich, an attorney who represented McLinn, said the situation would have been avoided if the deputies had followed their policy manual. He accused the sheriff’s office of violating the settlement by never training its officers.

Law enforcement in Thomas County have had issues with searches and seizures on numerous occasions. At least two other lawsuits allege either the Thomas County Sheriff’s Office or Colby Police Department improperly assisted with a vehicle seizure without a court order.

The Thomas County Sheriff’s Office did not comment on the seizure. However, the department provided records to The Star, including the settlement agreement in which the agency denies any wrongdoing.

The office also provided recordings of phone calls between McLinn and department employees and body camera footage of the seizure. The footage shows Deputy Jacob Cox encouraging McLinn to allow the repossession to take place.

On the other side of Kansas, Louisburg Police Chief Josh Weber said the Fourth Amendment factors into nearly every element of training. The department doesn’t have specific training activities on the amendment, he said, but it comes up in most continuing education activities.

“I would venture to say it touches 90-plus percent of everything we do,” he said.

How much experience officers have with search warrants also varies widely.

In Louisburg, Weber said the agency requests fewer than 10 search warrants annually. Abilene Police Chief Chad Langley told the Abilene Reflector Chronicle his officers might go a month without filing a search warrant affidavit and then submit five to seven on a single case.

But Rep. Eric Smith, a Burlington Republican and undersheriff in Coffey County, said his agency obtains around two search warrants every week.

Officers often make quick decisions about whether they can act without a warrant, and the details of every situation matters.

“You may think you’re completely in the right but then, as you get somebody who has a little bit of training and legal theory starts to tear it apart, you start to question yourself,” Smith said.

In February 2014, Buhler Police Chief William Tracy conducted a warrantless search of a rental home after U.S. Marshals arrested the renter, Darla Conners, and her roommate John Galentine on out-of-state warrants in late January.

The owner, Lewayne Bartel, had heard about the arrests and went to the property to investigate. He asked Tracy to come to the property, and the two men went inside, where they found marijuana plants in the basement. They also found a bag of marijuana leaves in the backyard.

Bartel, who once owned 20 rental properties but has since sold off nearly all of them, said in an interview that he believed he needed to check on the property following the arrests. Given that he was the landlord and the renters had been arrested, he said at that point “I don’t know if he would have needed a warrant.”

Tracy used what he saw while in the house to obtain a search warrant the next day. He and two drug task force agents seized 131 plant stems and bags with “green leafy vegetation.” Based on what police found, prosecutors charged Conners with cultivating marijuana and possession of drug paraphernalia.

But Reno County District Court Judge Trish Rose suppressed the evidence. Generally, renters enjoy Fourth Amendment protections over their apartments or rental homes that owners cannot unilaterally waive. Simply put, Bartel didn’t have the authority to consent to a search of the property. The Kansas Court of Appeals later affirmed Rose’s ruling.

During a 2016 court hearing over the search, Tracy testified that in his 27-year law enforcement career, he had executed just 10 search warrants.

A public defender for Conners asked Tracy on the stand whether he thought he should get a search warrant once he saw what appeared to be marijuana leaves in the bag in the backyard. Tracy responded that Bartel wanted to show him the basement, so they went into the basement.

“I’m asking, did you at that point think you needed to go get a search warrant?” the attorney said.

“Not at that time,” Tracy replied.

Tracy, who has since retired as police chief but still works part time for the department, said in an interview he was surprised by the court’s decision. He said as a small town of fewer than 2,000 residents, Buhler police don’t obtain many search warrants and that he changed how he did his job in the wake of the opinion.

“I would ask more questions,” Tracy said.

Should Prosecutors Review Warrants?

When Marion’s then-police chief prepared to raid the Marion County Record in August, he sent his search warrant application to Marion County Attorney Joel Ensey. Cody, the former chief, later claimed Ensey never read the application before it went to Magistrate Judge Laura Viar for approval.

But under Kansas law, Ensey wasn’t required to look. Police officers have power to apply for search warrants without running it by prosecutors first.

Approaches vary sharply by county and law enforcement agency.

Some law enforcement agencies said they send warrant applications to prosecutors as a matter of policy before submitting them to judges. Others sought prosecutorial review on a case-by-case basis, while some did not send their warrants to prosecutors at all.

Chase County Sheriff Jacob Welsh, for instance, told the Chase County Leader-News that a prosecutor may recommend officers seek a search warrant in a case but they do not consult on warrant applications.

Sherri Schuck, the Pottawatomie County attorney, said her office, which has just three attorneys, tends to review search warrant applications but they cannot get to all of them.

“Practically, it’s not feasible,” she said.

Some prosecutors are reluctant to partner with law enforcement on search warrants at all. Leavenworth County Attorney Todd Thompson said he is cautious because of court decisions suggesting prosecutors can take on liability if they assist with warrants.

Thompson said his office will talk to officers about the law but that they don’t review warrants. “I’ve taken a more standoffish approach to processing or helping search warrants,” he said.

Kansas’ two biggest counties by population — Johnson and Sedgwick — take the opposite approach. The district attorney’s offices in both counties review every search warrant application before it’s sent to a judge.

Bennett, the Sedgwick County district attorney, said the policy provides quality control for warrants and ensures judges’ time isn’t wasted by warrant applications that don’t pass muster.

McMullin, the chief deputy in the Johnson County District Attorney’s Office, said the review provides comfort for judges, who know more than one set of eyes has already taken a look at the application. He said prosecutors have a special role in helping to ensure the rights of county residents are respected.

Prosecutors have a strong incentive to help law enforcement obtain search warrants. Case law heavily favors allowing evidence obtained through a search warrant, even if courts later determine the warrant shouldn’t have been approved by a judge.

The U.S. Supreme Court in 1984 created a “good faith” exception to the general rule that illegally obtained evidence must be excluded at trial. At the time, the justices wanted to encourage law enforcement to seek warrants and created an opening for them to retain evidence gathered illegally as long as they had obtained a search warrant in good faith.

Once a search warrant application is in front of a judge, approval can come very quickly.

State Rep. Jason Probst, a Hutchinson Democrat and former journalist, recalled a moment when he sat in a Reno County courtroom years ago as a reporter and watched a judge approve a search warrant application with no more than a cursory glance.

“A judge signs a warrant, that’s all there is, that’s what demonstrates it’s been reviewed,” Probst said. “There’s no way to demonstrate that a judge actually reviewed it.”

A 2018 Salt Lake Tribune analysis of Utah search warrants found that judges spent fewer than 10 minutes reviewing applications more than half the time. Unlike Utah, Kansas doesn’t maintain a central database of search warrants, making a similar analysis impossible.

But anecdotally, the amount of time judges spend reviewing warrant applications appears to vary widely.

In the 5th Judicial District, which covers Lyon and Chase counties, Chief Judge Jeffry Larson told The Emporia Gazette that judges can spend just a few minutes to more than 20 on an application. Chief Judge Nick St. Peter of the 19th Judicial District told the Courier Traveler that judges divide up Cowley County geographically in handling applications.

Even when judges are carefully looking over search warrant applications, Johnson County Chief Judge Thomas Kelly Ryan said in an interview that having prosecutors take a look beforehand serves as an important backstop. Prosecutors are able to anticipate what a judge is looking for.

Still, prosecutorial review — whether of a warrant or an overall investigation — isn’t foolproof. In the arrest of Wasinger, the Sabetha man whose 1-month-old child died, police had been told by the county prosecutor that enough probable cause existed to arrest him, said Mishler, the city’s attorney.

“It’s definitely made me a whole lot more aware of how frequently these things do happen,” Wasinger said. “They can happen to anyone.”

©2023 The Kansas City Star. Distributed by Tribune Content Agency, LLC.
TNS delivers daily news service and syndicated premium content to more than 2,000 media and digital information publishers.
From Our Partners