From the Kba Media-bar Committee

• Citation: Vol. 93 No. 2 Pg. 29
• Publication year: 2024
• Pages: 29

From the KBA Media-Bar Committee 93 J. Kan. Bar Assn 2, 29 (2024) Kansas Bar Journal April 2024

Training, Not Avoidance, Is Best Way Forward for Handling Search Warrants

By District Court Judge John J. Bryant, Leavenworth County

By now anyone interested in the Marion County Record case has probably already thoroughly reviewed and discussed the constitutional issues at play. But when I reviewed the case in the media, something stuck out to me: the speed with which the prosecutor agreed that there was no probable cause for the search and seizure to have taken place. With that in mind, the goal I have for this column is to encourage discussion regarding the importance of continual training for law enforcement, prosecutors, and judges.

The issue involving the search warrant in Marion County strikes me as a symptom of a larger change in prosecutors' offices: More and more of them are taking a hands-off approach to search warrants. I have seen this change firsthand starting with my 13 years as a prosecutor reviewing search warrants prior to law enforcement submitting them to a judge, the seven years in private practice I spent challenging them, and the three years I have spent reviewing them from the bench.

This change seems to stem from a number of cases in which prosecutors have been found to only have qualified immunity for the discretionary functions of their office. For anyone who has never looked, prosecutors and judges have absolute immunity for decisions made and actions taken that occur during the judicial process. For example, a prosecutor's presentation of evidence and the judge's verdict are covered by absolute immunity, meaning they are protected from civil liability for engaging in those activities. Qualified immunity then generally covers discretionary functions for those positions, such as a prosecutor assisting in the investigation of a suspect or the drafting of a search warrant.

I began my career as an attorney in 2001 in the adult criminal division of the Wyandotte County district attorney's office. All of the attorneys were expected to spend time on call to answer questions for law enforcement, to help law enforcement draft search warrants, and if necessary, to accompany law enforcement when they executed the warrant. In addition, the prosecutors would call the judge and go with law enforcement to get the judge's signature on the search warrants.

At the time, the district attorney felt that there had been a loss...