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No. 102,635 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. ROBIN ROBERT GALYARDT, Appellant. SYLLABUS BY THE COURT 1. K.S.A. 22-2401a is analyzed and applied.

2. A two-step analysis is used to determine the reliability of eyewitness identification evidence. First, the appellate court determines whether the procedure used was unnecessarily suggestive. If it was, the second step requires consideration of certain factors in assessing whether the unnecessarily suggestive procedure led to a substantial likelihood of misidentification.

3. The appropriateness of PIK Crim. 3d 52.20 is analyzed and applied.

Appeal from Pratt District Court; ROBERT J. SCHMISSEUR, judge. Opinion filed October 8, 2010. Affirmed.

Meryl Carver-Allmond, of Kansas Appellate Defender Office, for appellant.

Kenneth Van Blaricum, county attorney, and Steve Six, attorney general, for appellee.

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Before MALONE, P.J., PIERRON, J., and BUKATY, S.J.

PIERRON, J.: Robin Robert Galyardt appeals his conviction for aggravated burglary. Galyardt argues the trial court erred in denying both his motions to suppress because the officer was out of his jurisdiction during the vehicle search and the eyewitness identification was impermissibly suggestive. He also contends the eyewitness instruction was outdated and clearly erroneous.

When Harold Windholtz went to work at the Barron Theatre in Pratt at 6 a.m. on June 15, 2008, he found the front door unlocked and heard noise in the office. Windholtz realized there was an intruder and left to call the police. Windholtz met Steve Cross outside in his truck and told him of the intrusion. As the two talked, the intruder came out the front door. Windholtz was not wearing his glasses, but he described the intruder as having long hair, gray clothing, and gloves. Cross indentified the intruder as wearing a gray shirt, black pants, black gloves, and black cap. Cross followed the intruder's vehicle for several blocks and observed the license plate number of "103AUD." Cross returned to the theatre.

Officer Nathan Humble of the Pratt Police Department responded to Windholtz' call and investigated the break-in. He arrived at the scene at 6:11 a.m. and spoke with Windholtz and Cross. Officer Humble issued an alert for a gold car with license plate number 103AUD. Cross left for work after giving his statement. As the officers investigated the burglary, Stafford County law enforcement reported they had stopped a gold car with license plate number "103AHD." Office Humble immediately called Cross and asked if he would be available to see if the car and driver were the same he witnessed at the theatre. Officer Humble picked up Cross and they drove into Stafford County. At approximately 7:30 a.m., in a one-man show-up, Cross identified Galyardt as the person he saw leaving the theatre.

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Officer Humble arrested Galyardt and in a search of his vehicle discovered instruments that would later be described as specialized burglary tools. The State charged Galyardt with burglary but later amended the charge to aggravated burglary. Galyardt filed a motion to suppress the evidence found during the search of his car, based on the officer's lack of territorial jurisdiction, and a motion to suppress the eyewitness identification testimony based on an unconstitutional identification procedure. The trial court ultimately denied both motions. The jury convicted Galyardt as charged. The trial court sentenced him to a presumptive term of 49 months' incarceration.

An appellate court reviews the district court's decision on motions to suppress using a bifurcated standard. Without reweighing the evidence, the district court's findings are reviewed to determine whether they are supported by substantial competent evidence. Then, the ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).

Fresh Pursuit

Galyardt first contends his arrest and the search of his car were unlawful because Officer Humble, of Pratt County, was acting outside his jurisdiction, in Stafford County, in violation of K.S.A. 22-2401a. At the hearing on Galyardt's motion to suppress, the trial court granted the motion, finding the arrest was improper, and consequently suppressed all items seized from the car subject to the State offering authority that a private citizen could make a search incident to an arrest. At a motion for reconsideration, the court reversed its prior ruling and held that Officer Humble was in fresh pursuit of Galyardt at the time of the arrest and search, and the motion to suppress was therefore denied.

The extraterritorial jurisdiction of municipal police officers is governed by K.S.A. 22-2401a(2)(b), which provides that law enforcement officers employed by any city may exercise their powers as law enforcement officers "in any other place when a request for 3

assistance has been made by law enforcement officers from that place or when in fresh pursuit of a person." "Fresh pursuit" is defined in the same statute as "pursuit, without unnecessary delay, of a person who has committed a crime, or who is reasonably suspected of having committed a crime." K.S.A. 22-2401a(10)(d).

The interpretation of a statute is a question of law. This court's review of questions of law is unlimited. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (1010). The issue raised in this case is whether Officer Humble was in "fresh pursuit" of Galyardt as defined by K.S.A. 22-2401a(2)(b) when he arrested Galyardt and searched his vehicle outside of the jurisdiction of Pratt law enforcement.

In State v. Green, 257 Kan. 444, 901 P.2d 1350 (1995), Ottawa police officers received a report that a robbery had just taken place in Ottawa and that the suspects had proceeded north out of town. The officers drove north out of the city and later apprehended the suspects. The court, in holding that the officers were in fresh pursuit, noted that "the criminal activity that prompted the pursuit originated in Ottawa." 257 Kan. at 455; see City of Junction City v. Riley, 240 Kan. 614, 731 P.2d 310, cert. denied 482 U.S. 917 (1987) (finding that K.S.A. 1985 Supp. 22-2401a gave Junction City police officer authority to arrest suspect on military reservation for crime committed within officer's jurisdiction, when in fresh pursuit). The Green court noted that Kansas courts had not specifically addressed whether an officer must chase a fleeing suspect over a jurisdictional border to be in fresh pursuit. The issue in Green was whether the Kansas definition of fresh pursuit required that the actual visual pursuit of the person sought originate within the officer's territorial jurisdiction. In finding fresh pursuit existed, the Green court stated:

"Here, the criminal activity that prompted the pursuit originated in Ottawa. Although the Ottawa officers did not chase the defendants over the jurisdictional boundary, the pursuit was continuous, uninterrupted, and without delay. The officers

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immediately began pursuing the defendants upon receiving a report of the robbery and a description of the suspects and their direction of flight. The officers located the vehicle within seven minutes and chased it until it stopped. The officers continuously pursued the vehicle during the entire 28-minute period between the initial report of the crime and the ultimate stop and arrest of the defendants. There was no break in the officers' efforts to apprehend the defendants or the defendants' efforts to escape." 257 Kan. at 455.

Several other cases outside of Kansas, cited in Green, are instructive on this issue. In Com. v. Magwood, 503 Pa. 169, 469 A.2d 115 (1983), city police officers received a report of an attempted robbery. An officer sought the suspect after receiving his description and direction of flight. The officer located and arrested the suspect outside the officer's jurisdictional boundary. The court held that the Pennsylvania statute, which authorized extraterritorial arrests when the officer continues in pursuit, contemplated fresh pursuit. The court found the police continuously pursued the defendant from the time of the initial report and upheld the arrest after concluding the pursuit was fresh, continuous, and uninterrupted. 503 Pa. at 175-76.

In Charnes v. Arnold, 198 Colo. 362, 600 P.2d 64 (1979), the Colorado Supreme Court, interpreting language identical to the Kansas fresh pursuit statute, upheld an extraterritorial warrantless arrest where the suspect was not followed across the jurisdictional boundary. In Charnes, a Lakewood police officer responded to a report of a hit and run accident and, upon arriving at the scene, learned that the vehicle was registered to the defendant, who lived in Denver. The officer promptly drove to the defendant's Denver address, observed the defendant pulling into his driveway, and arrested him. The court concluded that although fresh pursuit obviously includes highspeed, Hollywood-style automobile chases, it also includes less dramatic police action. 198 Colo. at 364-65.

In determining if the officer was in fresh pursuit, the Charnes court recognized three factors: (1) whether the officer acted without unnecessary delay; (2) whether the 5

pursuit was continuous and uninterrupted, although there need not be continuous surveillance of the suspect or uninterrupted knowledge of the suspect's whereabouts; and (3) the relationship in time of the commission of the offense, the commencement of the pursuit, and the apprehension of the suspect. Because the police responded immediately to the call and promptly pursued the only lead available, the Charnes court held that the officer was in fresh pursuit. 198 Colo. at 365. The Green court adopted these three factors for its determination of whether an officer was in "fresh pursuit." 257 Kan. 444, Syl.

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