BY THE COURT
law of the case doctrine prevents a party from relitigating
an issue already decided within successive stages of the same
appellate court ordinarily will not consider an issue raised
for the first time on appeal. But in limited circumstances,
the court has discretion to review such an issue. One such
circumstance is when the newly asserted issue involves only a
legal question arising on undisputed facts that will be
finally determinative of the case.
Whether the law of the case doctrine bars a party from
relitigating an issue is a legal question over which an
appellate court has unlimited review.
of the judgment of the Court of Appeals in 51 Kan.App.2d 928,
358 P.3d 101 (2015). Appeal from Clay District Court; John F.
Bosch, judge. Judgment of the Court of Appeals affirming the
district court is affirmed. Judgment of the district court is
Richard E. James, county attorney, argued the cause, and
Derek Schmidt, attorney general, was with him on the briefs
Phylemon C. Yau, assistant public defender, argued the cause
and was on the briefs for appellee.
of the case doctrine prevents a party from relitigating an
issue already decided on appeal in successive stages of the
same proceeding. See Thoroughbred Assocs. v. Kansas City
Royalty Co., 297 Kan. 1193, 1212, 308 P.3d 1238 (2013).
In this appeal, we consider whether that doctrine prevents
the State from relitigating an evidence suppression question
in a second criminal prosecution after it lost on that
question in an earlier appeal, then dismissed the first case,
and refiled a new one against the same defendant on the same
charges. A divided Court of Appeals panel applied the
doctrine sua sponte and held the State could not
argue the same suppression issue again in the subsequent
prosecution. We affirm.
and Procedural Background
response to a report of a marijuana odor at an apartment
building, a police officer knocked on the door where Dominic
Parry lived with his girlfriend, Erica Keeler, and their
two-year-old son. Parry and Keeler answered. As the door
opened, the officer noticed a strong marijuana odor emanating
from their apartment. When the officer questioned the smell,
Keeler admitted she had smoked marijuana earlier in the day.
Parry and Keeler refused the officer's request to search
their apartment. The officer responded by saying he was going
to apply for a search warrant, during which time the couple
could not go back into the apartment even though the officer
knew their son was inside and unattended.
the record does not conclusively establish what happened
next, police ultimately performed a warrantless search of the
apartment and discovered marijuana and drug paraphernalia.
The State charged Parry with felony possession of marijuana
as a repeat offender, a violation of K.S.A. 2015 Supp.
21-5706(b)(3), and possession of drug paraphernalia, a
misdemeanor violation of K.S.A. 2015 Supp. 21-5709(b)(2).
moved to suppress the evidence obtained during the
warrantless search. The State justified the search by
claiming Parry and Keeler had given their consent. After an
evidentiary hearing, the district court rejected the
State's justification and ordered the evidence
suppressed. The State took an interlocutory appeal, and the
Court of Appeals affirmed the district court's ruling.
See State v. Parry, No. 110, 671, 2014 WL 1708137
(Kan. App. 2014) (unpublished decision) (Parry I).
four days after the panel's decision, the State dismissed
the first case without prejudice and then charged Parry again
with the same offenses in a new case. Parry once more moved
to suppress the evidence from the warrantless search, and the
district court held another evidentiary hearing. This time
the State advanced two new legal arguments to support the
search's legality: there were exigent circumstances
excusing the need for a search warrant, or, alternatively,
the drug evidence inevitably would have been discovered. The
district court rejected both arguments and again granted
Parry's suppression ...