22-2302. Issuance of warrant or summons; availability of affidavits and testimony in support of probable cause requirement. (a) If the magistrate finds from the complaint, or from an affidavit or affidavits filed with the complaint or from sworn testimony, that there is probable cause to believe both that a crime has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue, except that a summons instead of a warrant may be issued if: (1) The prosecuting attorney so requests; or (2) in the case of a complaint alleging commission of a misdemeanor, the magistrate determines that a summons should be issued. More than one warrant or summons may issue on the same complaint. If a defendant fails to appear in response to the summons, a warrant shall issue.
(b) For a warrant or summons executed prior to July 1, 2014, affidavits or sworn testimony in support of the probable cause requirement of this section shall not be made available for examination without a written order of the court, except that such affidavits or testimony when requested shall be made available to the defendant or the defendant's counsel for such disposition as either may desire.
(c) (1) For a warrant or summons executed on or after July 1, 2014, affidavits or sworn testimony in support of the probable cause requirement of this section shall not be open to the public until the warrant or summons has been executed. After the warrant or summons has been executed, such affidavits or sworn testimony shall be made available to:
(A) The defendant or the defendant's counsel, when requested, for such disposition as either may desire; and
(B) any person, when requested, in accordance with the requirements of this subsection.
(2) Any person may request that affidavits or sworn testimony be disclosed by filing such request with the clerk of the court. Upon entry of appearance by an attorney on behalf of the defendant, or indication by the defendant to the court that such defendant will represent the defendant's self, the clerk of the court shall promptly notify the defendant or the defendant's counsel, the prosecutor and the magistrate that such request was filed. The prosecutor shall promptly notify any victim. For the purposes of this subsection, victim shall include any victim of an alleged crime that resulted in the issuance of the arrest warrant, or, if the victim is deceased, the victim's family, as defined in K.S.A. 74-7335, and amendments thereto.
(3) Within five business days after receiving notice of a request for disclosure from the clerk of the court, the defendant or the defendant's counsel and the prosecutor may submit to the magistrate, under seal, either:
(A) Proposed redactions, if any, to the affidavits or sworn testimony and the reasons supporting such proposed redactions; or
(B) a motion to seal the affidavits or sworn testimony and the reasons supporting such proposed seal.
(4) The magistrate shall review the requested affidavits or sworn testimony and any proposed redactions or motion to seal submitted by the defendant, the defendant's counsel or the prosecutor. The magistrate shall make appropriate redactions, or seal the affidavits or sworn testimony, as necessary to prevent public disclosure of information that would:
(A) Jeopardize the physical, mental or emotional safety or well-being of a victim, witness, confidential source or undercover agent, or cause the destruction of evidence;
(B) reveal information obtained from a court-ordered wiretap or from a search warrant for a tracking device that has not expired;
(C) interfere with any prospective law enforcement action, criminal investigation or prosecution;
(D) reveal the identity of any confidential source or undercover agent;
(E) reveal confidential investigative techniques or procedures not known to the general public;
(F) endanger the life or physical safety of any person;
(G) reveal the name, address, telephone number or any other information which specifically and individually identifies the victim of any sexual offense described in article 35 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or article 55 of chapter 21 of the Kansas Statutes Annotated or K.S.A. 21-6419 through 21-6422, and amendments thereto;
(H) reveal the name of any minor;
(I) reveal any date of birth, personal or business telephone number, driver's license number, nondriver's identification number, social security number, employee identification number, taxpayer identification number, vehicle identification number or financial account information; or
(J) constitute a clearly unwarranted invasion of personal privacy. As used in this subparagraph, "clearly unwarranted invasion of personal privacy" means revealing information that would be highly offensive to a reasonable person and is totally unrelated to the alleged crime that resulted in the issuance of the arrest warrant, including information totally unrelated to the alleged crime that may pose a risk to a person or property and is not of legitimate concern to the public. The provisions of this subparagraph shall only be used to redact and shall not be used to seal affidavits or sworn testimony.
(5) Within five business days after receiving proposed redactions or a motion to seal from the defendant, the defendant's counsel or the prosecutor, or within 10 business days after receiving notice of a request for disclosure, whichever is earlier, the magistrate shall either:
(A) Order disclosure of the affidavits or sworn testimony with appropriate redactions, if any; or
(B) order the affidavits or sworn testimony sealed and not subject to public disclosure.
(6) (A) If the magistrate orders disclosure of the affidavits or sworn testimony with appropriate redactions, if any, to any person in accordance with the requirements of this subsection, then such affidavits or sworn testimony shall become part of the court record and shall be accessible to the public.
(B) If the magistrate orders the affidavits or sworn testimony sealed and not subject to public disclosure in accordance with the requirements of this subsection, then such affidavits or sworn testimony shall become part of the court record that is not accessible to the public.
(C) Any request for disclosure of affidavits or sworn testimony in accordance with the requirements of this subsection shall become part of the court record and shall be accessible to the public, regardless of whether the magistrate orders disclosure with appropriate redactions, if any, or sealing of the requested affidavit or sworn testimony.
History: L. 1970, ch. 129, § 22-2302; L. 1979, ch. 90, § 8; L. 1983, ch. 113, § 1; L. 2014, ch. 139, § 3; L. 2016, ch. 75, § 1; L. 2017, ch. 92, § 6; July 1.
Source or Prior Law:
62-601, 62-602.
Law Review and Bar Journal References:
The issuance of citations discussed in symposium on criminal procedure, Robert L. Looney, 18 K.L.R. 715, 718, 726 (1970).
"Notes on the Code of Criminal Procedure." Richard H. Seaton and Paul E. Wilson, 39 J.B.A.K. 97, 98 (1970).
"Arrest Under the New Kansas Criminal Code," Keith G. Meyer, 20 K.L.R. 685, 692, 693, 694, 695, 696 (1972).
Probable cause for issuance of arrest warrant, 18 W.L.J. 643, 649 (1979).
"Ethics and the Government Lawyer," Bruce W. Kent, 62 J.K.B.A. No. 2, 30, 32 (1993).
Attorney General's Opinions:
Preliminary proceedings; form of warrant or summons. 83-17.
Crime of "unlawful disclosure of a warrant" prohibits disclosure, before execution of warrant, of complaint which leads to arrest warrant issuance. 87-100.
Uniform electronic transaction act does not authorize the use of unsworn electronic digitally signed complaint or supporting affidavit; court rule exception. 2008-4.
CASE ANNOTATIONS
1. Applied; allegations of complaint sworn to provide sufficient basis for issuance of arrest warrant. State v. Woods, 214 Kan. 739, 522 P.2d 967.
2. Warrant properly issued on verified complaint; failure to take testimony not error. State v. Giddings, 216 Kan. 14, 16, 531 P.2d 445.
3. Applied; conviction of burglary and attempted theft upheld; illegal arrest claims rejected. State v. Stephenson, 217 Kan. 169, 171, 535 P.2d 940.
4. Referred to in determining due process not denied by use of lay judges in preliminary hearings. State v. Boone, 218 Kan. 482, 486, 543 P.2d 945.
5. Finding of competency to stand trial; no abuse of discretion in refusal to provide psychiatric services upon arraignment. State v. Bradford, 219 Kan. 336, 338, 548 P.2d 812.
6. Cited; intended to provide an alternate form of criminal process. State v. Marshall & Brown-Sidorowicz, 2 Kan. App. 2d 182, 195, 577 P.2d 803.
7. Complaint on which warrant issued must disclose factual basis to support finding of probable cause. Wilbanks v. State, 224 Kan. 66, 579 P.2d 132.
8. Magistrate's oral examination of complainant sufficient to establish probable cause for issuance of warrant for arrest. (Dissenting opinion.) Wilbanks v. State, 224 Kan. 66, 83, 579 P.2d 132.
9. Section mentioned in general discussion of commencement of prosecutions and right to speedy trial. State v. Taylor, 3 Kan. App. 2d 316, 318, 594 P.2d 262.
10. Document titled "Information" held sufficient to commence prosecution if functions of complaint fulfilled. Henderson v. Schenk, 6 Kan. App. 2d 562, 563, 631 P.2d 246 (1981).
11. Habeas corpus proper where summons for preliminary hearing issued without probable cause; detention no longer illegal after proper cause shown. Karstetter v. Love, 9 Kan. App. 2d 194, 195, 674 P.2d 1066 (1984).
12. Probable cause does not require specific evidence of each element of offense; totality of the circumstances test applied. State v. Abu-Isba, 235 Kan. 851, 853, 685 P.2d 856 (1984).
13. Cited in holding attorney hired under K.S.A. 19-717 not special prosecutor under K.S.A. 22-2202(17); cannot appeal dismissal of complaint. State v. Berg, 236 Kan. 562, 566, 694 P.2d 427 (1985).
14. Cited; waiver of verified complaint for DUI (K.S.A. 8-1567) and certain other violations examined. State v. Fraker, 242 Kan. 466, 469, 748 P.2d 868 (1988).
15. Bench warrant (K.S.A. 61-2204) as inadequate to support entry into defendant's home without consent examined; arrest warrant distinguished. State v. Ruden, 245 Kan. 95, 104, 774 P.2d 972 (1989).
16. Improper release by clerk of the district court of affidavits in support of probable cause did not deny defendant a fair trial. State v. Baker, 249 Kan. 431, 454, 819 P.2d 1173 (1991).
17. Either defendant or defendant's counsel may obtain affidavits in support of probable cause requirement for arrest warrant, and entitlement for such applies to post-conviction request. State v. Thomas, 273 Kan. 750, 46 P.3d 543 (2002).
18. No requirement to issue warrant for arrest when defendant has been arrested on probable cause and is in custody after probable cause determination. State v. Palma, 35 Kan. App. 2d 116, 128 P.3d 999 (2006).
19. Disclosure of an affidavit or sworn testimony in support of probable cause is not automatic; the statute sets forth a procedure where, in response to a request, the parties may submit proposed redactions or move to seal the affidavits or sworn testimony. State v. Bodine, 313 Kan. 378, 405, 486 P.3d 551, 572 (2021).
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