Court of Appeals, 2010-CA-000607-MR
Frank Allen Fletcher, Judge, Powell County
Before: Taylor, Chief Judge, Caperton, and Clayton
To-be-Published, Reversing and Remanding
Opinion by Judge Caperton
Johnson pled guilty to drug charges conditional on the appeal of the denial of his motion to dismiss his indictments. Johnson moved to suppress the evidence and dismiss the indictments because neither the Attorney General’s Office nor Operation UNITE detectives had jurisdiction to conduct the investigation in Powell County. No local law enforcement officer from Powell County was involved.
Held: The COA reversed Johnson’s conviction and ordered that on remand the trial court must assess whether the indictments --obtained based on testimony presented to the grand jury by the Attorney General and Operation UNITE-- should be dismissed due to lack of jurisdiction.
The COA held that the Attorney General’s Office lacked jurisdiction because it was not invited to participate in this investigation as required by Kentucky Revised Statutes (KRS) 15.200. Also, the UNITE officers could not lawfully engage in the arrest because Powell County is outside their jurisdiction, the congressional district of Hal Rogers.
KRS 218A.240(1) provides the Attorney General’s Office with the authority to investigate crimes within its jurisdiction. But those powers can be modified by statute, and KRS 15.200 requires that a request must be made of the Attorney General’s Office in writing for it to intervene, participate or direct any investigation or criminal action. In other words, “it takes the governor, courts, grand juries, sheriff, mayor, or majority of a city legislative body to invite the Attorney General to participate in an investigation or to bring a prosecution.”
Practice tip: Jurisdiction, jurisdiction, jurisdiction. If it’s not there, your client wins. Congratulations to Lisa Whisman, the trial attorney who preserved this issue for appeal.
Contributed by Susan Balliet