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State v. Parry

Supreme Court of Kansas

March 24, 2017

State of Kansas, Appellant,
v.
Dominic Parry, Appellee.

         SYLLABUS BY THE COURT

         1. The law of the case doctrine prevents a party from relitigating an issue already decided within successive stages of the same proceeding.

         2. An 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.

         3. 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.

         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 affirmed.

          Richard E. James, county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the briefs for appellant.

          Phylemon C. Yau, assistant public defender, argued the cause and was on the briefs for appellee.

          OPINION

          Biles, J.

         The law 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.

         Factual and Procedural Background

         In 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.

         Though 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).

         Parry 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).

         Undaunted, 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 ...


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