Court majority views Salina police tactics as constitutional, but two justices disagree

TOPEKA — The Kansas Supreme Court reversed a Saline County judge’s decision to suppress a confession despite detectives’ exaggerated claims that a computer voice stress test was 100% accurate and proved a defendant lied about his innocence in an alleged sexual abuse case.

A split state Supreme Court affirmed the 2022 conclusion of the Kansas Court of Appeals that an earlier decision by Saline County Judge Jared Johnson incorrectly ruled Phillip Jason Garrett’s confession was coerced by Salina Police Department detectives in violation of 5th and 14th amendments to the U.S. Constitution.

Garrett was told by officers at police headquarters that he had failed the voice test prior to the decision by Garrett to implicate himself during an interrogation in 2018. Garrett has yet to stand trial for rape and other offenses due to the appeals.

The legal dispute led both state appellate courts to reconsider finer points of how law enforcement officers could tactically lie when questioning people and when those deceptive practices infringed on constitutional rights by coercing involuntary statements.

Originally, Judge Johnson denied Garrett’s motion to toss his confession. About 18 months later, however, the judge shifted course because he decided the officers’ statements concerning efficacy of voice stress tests — a common law enforcement exam despite conflicting opinions of its value — adversely influenced the voluntariness of Garrett’s confession.

Then-Attorney General Derek Schmidt turned to the state Court of Appeals to challenge Johnson’s ruling. The state Court of Appeals’ reversal of the county judge was appealed by a public defender on Garrett’s behalf to the state Supreme Court.

Justice Evelyn Wilson, an appointee of Democratic Gov. Laura Kelly writing for the majority, said the Salina officers’ misrepresentation of the accuracy of the voice stress test was deceptive, but not sufficiently problematic to compromise the confession.

“Under the totality of the circumstances we conclude that law enforcement’s actions did not go so far as to constitute misconduct in violation of due process,” Wilson said. “Since the tactics here were not misconduct, Garrett’s resulting confession is not rendered inadmissible.”

Wilson wrote the presence of inappropriate conduct by police in association with a confession wasn’t enough to require suppression. The misconduct must cause the defendant’s free will to be overcome to an extent the resulting confession was involuntary, she said.

Like a coin flip?

Justice Eric Rosen said in a dissent that he would affirm the district court’s suppression of Garrett’s statements. He wrote that high court’s majority was sanctioning “law enforcement interrogation tactics that the district court described as ‘akin to a psychological rubber hose.”‘

He said Salina police officers began the questioning of Garrett by minimizing the importance of the Miranda advisement of the right to remain silent.

Rosen said officers eventually wrenched a confession out of Garrett after claiming the voice stress test was “a reliable tool used by the military that was 100% accurate.” The officers’ implication, Rosen said, was that refusal of Garrett to take the voice test would demonstrate he was lying about his innocence. Salina police officers also told Garrett taking the test could result in better treatment by prosecutors.

Rosen said the reality of Salina’s voice stress exam was that it “was at best no more reliable than a coin flip” in determining truth value of a person’s statements.

“While the majority may be unbothered, I believe that the deceptive tactics here went too far and functioned to defeat Garrett’s free will,” said Rosen, who was placed on the court by Democratic Gov. Kathleen Sebelius.

Looking more broadly at the issue, Rosen wrote, the majority’s rubber-stamping of deceptive practices could pave the way for an onslaught of more elaborate trickery during police interrogations.

“I fear it will not be long before law enforcement tests the limits of creating fabricated images of a detainee at the scene of the crime or artificially create other evidence in order to convince a suspect to forego their right to remain silent or cooperate with an investigation,” Rosen said.

‘Divide and conquer’

Justice K.J. Wall, named to the court by Kelly, joined Rosen’s dissent and argued separately the Supreme Court’s majority faltered by not evaluating whether Garrett’s statement was voluntary under the totality of the circumstances.

“Instead, the majority uses a clever analytical device — divide and conquer,” Wall wrote. “It isolates each circumstance that contributed to the environment of coercion. Then, it points to caselaw suggesting each circumstance falls short of coercion on its own. The problem with this approach is that the constitution requires us to consider the forest, not each tree. And when we do, the state’s overreaching is apparent.”

In the majority opinion by Wilson, she argued Wall’s claim about a divide-and-conquer assessment was misplaced and that closer examination of each circumstance provided greater understanding of the outcomes.

Wall said Garrett was sleep-deprived when summoned to police headquarters. From the start, Garrett expressed confusion with the Miranda warning. He was repeatedly told computer technology “discerns truth from falsehood with 100% accuracy.” The testing consent form signed by Garrett said results could be used against him in court.

“All the while, police knew the testing was junk science, the results could not be used in court and that Garrett’s 5th Amendment rights were not ‘hoops’ to jump through,” Wall wrote. “This conduct put Garrett in an untenable situation. He could assert his constitutional rights or roll the dice and submit to testing. If he chose the former, this would have been viewed as an admission of guilt by silence given law enforcement’s 31 misrepresentations about the test’s accuracy. So, Garrett chose his only path to exoneration and submitted to testing.”

Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.

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