Martin Linen Supply Co., 430 U.S. at 569, 97 S.Ct. 1349; see Serfass v. United States, 420 U.S. 377, 391, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975) (“[J]eopardy does not attach until a defendant is ‘put to trial before the trier of the facts.’ ”); State v. Ruden, 245 Kan. 95, 99, 774 P.2d 972 (1989) (“In a jury trial, jeopardy attaches when a jury is impaneled and sworn”; “[i]n a bench trial, jeopardy attaches when the first witness is sworn.”). Consequently, if the order is entered after the close of one party's evidence, jeopardy would have attached.
The appellate court cannot decide a question of fact that is based upon conflicting testimony which requires an assessment of the demeanor and credibility of the witnesses." State v. Ruden, 245 Kan. 95, 106, 774 P.2d 972 (1989). The State argues that the record "clearly shows" that the district court believed that an officer may not rely on a juvenile's consent to gain entry into a residence.
Id. at 748-52. See also State v. Ruden, 774 P.2d 972, 977-78 (Kan. 1989) (holding that a bench warrant issued in a "limited action" civil case based on an individual's failure to appear did not constitute a valid arrest warrant sufficient to authorize a home arrest). In addition, the Court suggested, though declined to decide, that for non-felony offenses, even exigent circumstances would not permit a justifiable exception to the warrant requirement for home arrests.
The government does not address the precedential value of this Kansas law in deciding this Fourth Amendment issue. In State v. Ruden, 245 Kan. 95, 774 P.2d 972 (1989), cited but not discussed in the government's brief, the Kansas Supreme Court held that the Fourth Amendment prohibited officers' nonconsensual entry into a private dwelling in — execution of a bench warrant issued in a limited civil action. The court keyed on the fact that the Kansas statute authorized a bench warrant to issue without requiring a probable cause finding that a crime was committed.
Further, as to Prouse, there was a warrant for his arrest on a crime for which he had been convicted. To support his probable cause argument, Thomas cites State v. Ruden, 245 Kan. 95, 774 P.2d 972 (1989), where the State appealed the district court's decision to grant the defendant's motion to suppress. Two bench warrants were issued for Robert Ruden's failure to appear in limited actions civil cases.
223 Kan. at 143.'" State v. Rexroat, 266 Kan. 50, 55, 966 P.2d 666 (1998) (quoting State v. Ruden, 245 Kan. 95, 105, 774 P.2d 972 [1989]). "In determining whether consent was voluntary, the trial court should consider whether the individual was threatened or coerced, and whether he was informed of his rights.
The State has the burden to prove by a preponderance of the evidence that a defendant's consent to search was valid. State v. Ruden , 245 Kan. 95, Syl. ¶ 6, 774 P.2d 972 (1989). To establish valid consent, the State must prove: (1) clear and positive testimony that consent was unequivocal, specific, and freely and intelligently given; and (2) the absence of duress or coercion, express or implied.
" Beerbower, 262 Kan. at 253, 936 P.2d 248. In support of his claim that we should treat the district court's ruling as a judgment of acquittal, thereby barring the City's appeal, Bannon relies upon a statement in State v. Anderson, 40 Kan.App.2d 69, 72, 188 P.3d 38 (2008), rev. denied 287 Kan. ---- (2009), to the effect that while an acquittal generally follows the close of evidence, our Supreme Court in State v. Ruden, 245 Kan. 95, 98, 774 P.2d 972 (1989), recognized that an acquittal may be granted before the close of the State's case, such as when a fatal flaw is revealed in the State's opening statement. In Ruden, the trial court entered a judgment of acquittal after suppressing the State's evidence, and the State appealed.
We would, however, add the following dicta. As we read State v. Ruden, 245 Kan. 95, 774 P.2d 972 (1989), a probable cause finding is necessary if a warrant is to be used to enter a person's house. But the Ruden court acknowledged that a bench warrant issued in a civil case, as here, does not require a finding of probable cause.
The defendants principally argue for several reasons that the trial court was correct and should be affirmed. The defendants point to and heavily rely on the standard of review restated in State v. Rexroat, 266 Kan. 50, 54-55, 966 P.2d 666 (1998), and arising from Justice Allegrucci's summary in State v. Ruden, 245 Kan. 95, 105, 774 P.2d 972 (1989): "`An individual may waive the requirement of a search warrant or consent to a search without a warrant, but the State has the burden to show such consent or waiver is voluntarily, intelligently, and knowingly given.