State v. Santiapillai

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NOT DESIGNATED FOR PUBLICATION

No. 115,215

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JERAD SANTIAPILLAI,
Appellant.

MEMORANDUM OPINION

Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed May 19,
2017. Affirmed in part, vacated in part, and remanded with directions.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., GREEN and MCANANY, JJ.

Per Curiam: Jerad Santiapillai was convicted of various charges arising out of his
use of a scanning device and an encoder to make fake credit cards containing stolen
credit card information in order to make unauthorized cash withdrawals at several ATMs
in Overland Park. Santiapillai is a Canadian citizen who legally entered this country on a
6-month visa. But after he was arrested he remained in custody, and by the time of his
sentencing, his visa had expired and he was no longer entitled to remain in the United
States.


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Facts

Santiapillai, at age 22, entered the United States in early January 2014, apparently
to carry out his illegal scheme. His problems began on the morning of January 28, 2014,
when Drug Enforcement Administration (DEA) agent Ronald Kipp stopped at a
Commerce Bank drive-through ATM so that his partner could withdraw cash for lunch.
As he approached the ATM, Kipp saw Santiapillai standing in the drive-through lane
engaged in a transaction at the ATM. When Santiapillai completed his transaction, Kipp
pulled up to the ATM, his partner made his withdrawal, and they left.

After leaving the ATM, Kipp saw Santiapillai at another drive-through ATM.
Kipp thought this was suspicious, so he parked at a spot where he could watch
Santiapillai. He saw Santiapillai walk across a parking lot to a CVS pharmacy. About 1
minute later, Santiapillai left the pharmacy, crossed the parking lot again, and entered a
7-Eleven convenience store. (Kipp later testified that he did not know whether there were
ATMs in the pharmacy or the convenience store.) A couple of minutes later, Santiapillai
left the 7-Eleven and returned to the original Commerce Bank drive-through ATM to
make another transaction. He then walked directly past the driver's side of Kipp's
unmarked vehicle toward an adjacent parking lot. Kipp saw that Santiapillai was carrying
a small electronic device. Santiapillai was wearing a sweatshirt with a Batman logo. He
got into a vehicle in the parking lot and drove off.

Kipp and his partner followed. They called the Overland Park police and gave
them the Ontario, Canada, license plate number on Santiapillai's vehicle. Kipp then lost
Santiapillai in traffic, so Kipp returned to the DEA office and recounted to other DEA
agents what he had observed.

That evening, DEA agent Michael Holder left the office at around 5:30 p.m. and
noticed a blue Honda parked in a lot adjacent to a vacant building. The car had an
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Ontario, Canada, license plate. Holder saw Santiapillai get out of the car and walk 60 to
70 yards to an ATM. Santiapillai was wearing a sweatshirt with a Batman logo. After
leaving the ATM, Santiapillai started walking toward his vehicle but turned around and
walked away when he saw Holder. Holder drove up to Santiapillai and confirmed that he
appeared to be the man described by Kipp. Holder sounded his horn to get Santiapillai's
attention and got out of his unmarked vehicle. He showed Santiapillai his badge and
asked Santiapillai to talk with him.

Holder saw that Santiapillai was holding a cellphone and about five blank debit
cards with a number written on the corner of each of them. The cards did not have any
bank logo. When questioned, Santiapillai responded, "'I need to talk to a lawyer.'" Holder
placed Santiapillai under arrest and held him for the Overland Park police. An Overland
Park officer arrived and took Santiapillai into custody.

The following day, Detective Justin Russell searched Santiapillai's motel room and
seized a computer, an encoder, blank gray plastic debit cards, telephones, a black Sharpie
marker, and a suitcase containing approximately $82,000 in cash. The police discovered
text files containing credit card and PIN numbers. It was determined that the computer's
software allowed the encoder to transfer financial data to the blank debit cards.
Santiapillai was charged with 1 counts of possession of a scanning device or reencoder,
18 counts of identity theft, and 16 counts of theft.

In October 2014, Santiapillai moved to suppress the evidence obtained after his
arrest, arguing that the DEA agents lacked probable cause to arrest him. The court held a
hearing on Santiapillai's motion, at which both Kipp and Holder testified. Holder testified
that he believed he "had probable cause to arrest [Santiapillai] for either a federal felony
for stealing or fraud from a bank, federal institution, or state theft charge" and "probable
cause to believe that some nefarious ATM money scheme activity was going on." The
district court denied Santiapillai's motion.
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In January 2015, well before trial and apparently in anticipation of a conviction,
the State moved for an upward dispositional departure, i.e., that Santiapillai not be
granted probation but be sent to prison. The State claimed that Santiapillai was not
amenable to probation because he was a Canadian citizen and could not be effectively
supervised on probation.

The State also moved for a durational departure, arguing that the sophistication of
Santiapillai's criminal scheme displayed a greater level of planning or concealment than a
typical fraud and that Santiapillai's crimes involved over 50 victims.

Santiapillai waived his right to a jury trial. At the bench trial that followed, the
court found Santiapillai guilty of 1 count of possession of a scanning device or reencoder,
18 counts of identity theft, and 12 counts of misdemeanor theft.

The State's Upward Dispositional Departure Motion

In advance of Santiapillai's sentencing hearing, the district court received a
presentence investigation (PSI) report. The report noted that Santiapillai had no criminal
history, either as an adult or juvenile, in either the United States or Canada. The PSI
recommended that Santiapillai be placed on probation under supervision of Community
Corrections with the following probation conditions: that Santiapillai (1) not possess or
consume alcohol or illegal drugs; (2) submit to breath tests, blood tests, and urinalysis
tests at his probation officer's request and at his expense; (3) notify his probation officer
of changes in employment, residence, and telephone number; and (4) not contact the
victims.

At the time of the sentencing hearing in October 2015, Santiapillai had been in jail
for 22 months. David Thomas, the director of Johnson County Court Services with
respect to adult offenders, testified at the hearing that a probationer assigned to the
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Residential Center for a term of probation must seek employment if physically able to
work. A probationer "cannot essentially just live at the Residential Center . . . without
working." Thomas also explained that the Interstate Compact system generally allows a
person who committed a crime in Kansas to serve probation in another state or country.
But here, it would be impossible to transfer Santiapillai to Canada for supervision
because Canada will not supervise a probationer from the United States unless the
probationer is on federal probation.

On cross-examination, Thomas was asked whether there is a rule that noncitizens
cannot be supervised by Johnson County Court Services. Thomas responded: "That
would be clearly up to the Judge to make that call."

Andrew Zumhofe, a special agent with the Department of Homeland Security,
Immigration, and Customs Enforcement (ICE), testified that Santiapillai had not
previously entered the country illegally and been deported. Thus, he lawfully entered the
United States in January 2014 with a 6-month visa. That was about 3 weeks before the
crimes at issue here. But now, at the time of sentencing, Santiapillai's visa had expired
and was no longer legally present in the United States. If released from the Johnson
County jail and placed on probation, ICE would attempt to locate him and seek to have
him deported. With his current status, Santiapillai is not entitled to be lawfully employed
in the United States.

The State argued that based on this evidence Santiapillai was not amenable to
probation.

"The State is seeking to depart because it is logically and factually impossible for the
defendant to complete a probation. . . . If he's released, he's going to be swiped up by
Immigration and Customs and be taken. He cannot physically complete a probation here
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in the United States. And probation cannot be supervised by another country, specifically
in this case, Canada."

Santiapillai's counsel argued that "the factors the State has listed . . . have . . .
nothing to do with him being amenable to probation." The court interjected, "[b]ut . . . he
has to have a job. . . . Those are the rules." Santiapillai's counsel continued:

"Amenability is his willingness to participate in and follow the rules of probation as
opposed to whether the rules of probation would let him get work."
. . . .
"[N]ot everybody on probation has to work. That is also per court order. If somebody was
disabled, they wouldn't necessarily have to work on probation.
. . . .
"Mr. Santiapillai is not the first non-US citizen I've had. Certainly all of the non-US
citizens I have had haven't gone to prison just because of their immigration status.
. . . .
"The Court doesn't have to order him to work, to obtain employment. He can still be on
probation."

Santiapillai's counsel asked that the defendant be placed at the Residential Center.

The State responded:

"They don't all go to prison and part of that is there are certain individuals who come to
this court charged with a crime and before there is ever a disposition of the offense, they
go to immigration court and they begin the proceedings and they work on obtaining some
sort of a status here and ordinarily by the time an individual here is sentenced on an
offense, if they don't have status, they are at least having the wheels turn in immigration
court to have a temporary hold so they are not being removed. They, at least, get some
sort of a period of time where they can proceed with immigration court hearings. That
happens frequently on cases . . . . [B]y the time there is disposition and somebody is
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seeking probation they have status, temporary status to resolve those issues and be here
and work. Mr. Santiapillai does not have that."

The State's Upward Durational Departure Motion

The State also moved for a longer sentence than called for under our guidelines. It
requested that the court apply at least one of two departure factors taken from the federal
sentencing guidelines: the sophistication of the defendant's scheme and the number of
victims. The State requested that the court impose a 76-month sentence, a substantial
upward departure from a guidelines sentence.

The State called Overland Park Police Detective Justin Russell to testify in support
of this motion. Russell worked for a number of years on various federal task forces
related to financial crimes. He was involved on a daily basis with identity theft and
computer fraud cases.

According to Russell, credit card numbers were compromised by the use of a
skimming device at a gas station in Canada which captured information from credit cards
when the cards were swiped at a pump. A small camera placed above the pump and
focused on the pump's key pad apparently was used to capture PIN numbers. The
information collected was communicated to the thief either wirelessly from the device or
by removing the device from the pump. The information was stored in an iCloud account
and downloaded onto Santiapillai's computer.

After Santiapillai was arrested, Russell searched Santiapillai's hotel room and
found software on Santiapillai's computer along with an encoding device that could be
used to encode information onto the magnetic strips on blank plastic cards found in
Santiapillai's room. The cards Russell found were encoded with credit card numbers.
Three days after Santiapillai was arrested, some of the credit cards were still being used
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in Minnesota, indicating that Santiapillai was part of a larger coordinated operation. In
the search of Santiapillai's hotel room, Russell also found about $86,000 in cash which he
attributed to ATM withdrawals.

Russell testified that "[t]his is probably one of the more sophisticated cases I've
seen just because of locating the encoder and a number of cards that were present at the
time." There were 600 credit card numbers in Santiapillai's computer or in the iCloud
account.

The State argued that the court should depart on the duration of Santiapillai's
sentence based on the factors of the sophistication of the crime and the number of
victims. These factors are contained in the federal sentencing guidelines but not
enumerated in the nonexclusive departure factors contained in the Kansas sentencing
guidelines.

Santiapillai's counsel argued that as stated in State v. Murphy, 270 Kan. 804, 19
P.3d 80 (2001), "extra statutory departure factors are subject to stricter scrutiny than
those enumerated in the statute." He argued that the use of a computer, an encoder, and
encoder software is typical of this type of crime and does not indicate an increased level
of sophistication; and while Santiapillai used stolen credit card information, there is no
evidence he was the one who originally stole the credit card information. Further, he
argued that according to the PSI, there were only two victims: HSBC Bank Canada and
Walmart Canada Bank. Finally, he argued that the legislature understood the nature of
this crime—involving a scanning device, re-encoder, and payment—when it defined it as
a level 6 felony with presumptive probation "without any accounting for the frequency of
usage or the potential loss to victim." He concluded that in "the ID theft statute . . . [t]he
legislature made the cutoff at $100,000 . . . [and] made all these offenses presumptive
probation."

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"When we consider the legislative intent, it is clear from the definitions of the
encoder statute and the setting of damages at $100,000 for ID theft, that the legislature
was aware of what they were doing when they drafted the statutes, yet they declared these
statutes to be presumptive probation."

The State responded that had it charged Santiapillai with separate counts for the
thefts committed on different days, under the legislature's special rule the conviction on
the second count would have meant presumptive prison.

The Court's Sentence

Regarding the dispositional departure motion, the court found:

"[T]he State has proven beyond a reasonable doubt that there are no amenable programs
for the defendant with regard to a probation in this case and the testimony of Mr. Thomas
from the adult probation services has established that as far as providing some sort of a
program for probation for the defendant in this case, there is no such program in
existence.
"Of course, the State is not required to make a special program for the
defendant in this case. And so because—not because that he is an illegal alien, that the
Court will not depart based on the fact that he is, in fact, an illegal alien. That is not the
reason why the Court is departing.
"The Court is departing because . . . the Court cannot assign the defendant to
any kind of a program that currently exists and there is no program that the Court finds
would be amenable to probation for this defendant.
"The Court wanted to make a specific comment that it is not because he's . . . a
citizen of Canada and not a resident of Kansas that the Court is departing with regard to
this dispositional sentence. So probation will not be granted."

The district court also granted the State's motion for a durational departure and
imposed a controlling 70-month prison term with 24 months' postrelease supervision. The
court also ordered Santiapillai to pay $38,072.25 in restitution to HSBC Bank Canada
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and Walmart Canada Bank, which apparently was to be paid out of the cash seized from
Santiapillai's motel room. Santiapillai's longer-than-guidelines sentence was based on the
sophistication of the crime, not the number of victims. The court stated:

"So, you know, the State was wanting 76 months. The Court imposed a 70-month
sentence. I'll just state for the record that the defendant is a 24-year-old man. I guess he
might have been 22 at the time this crime was committed, it would appear that that he
was caught up in a sophisticated scheme, maybe organized crime of some sort, but he
certainly used some very sophisticated methods. The fact that he—at allocution here
today he seems like a very intelligent person and maybe this was the only incident that he
has gone astray. But, by the same token, this is a very serious type of crime that's going
on throughout the United States. Part of it being because the banks and Walmart didn't
put in sufficient security to stop that. Every other country in the world was doing that. I'm
not blaming the victims in this case because they didn't do this, but certainly if you leave
your keys in your car, and somebody who has a [propensity] to commit a crime is going
to take that car. That's where Mr. Santiapillai came in. So the Court is going to find that
the State has proven sufficiently that there ought to be a departure in this case and the
defendant ought to serve the time that the Court has imposed on him."

This Appeal

Santiapillai's appeal brings the matter to us. He makes three claims of error: (1)
the district court erred in denying his suppression motion; (2) the district court erred in
granting the State's dispositional departure motion based on the finding that Santiapillai
was not amenable to probation; and (3) the district court erred in not stating on the record
substantial and compelling reasons for granting a durational departure.

Suppression Issue

With regard to the suppression issue, Santiapillai claims that the authorities lacked
probable cause to arrest him and, as a result, the district court should have suppressed all
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evidence obtained after his arrest. Because none of the facts is in dispute, our review of
this issue is de novo.

The Fourth Amendment to the United States Constitution and § 15 of the Kansas
Constitution Bill of Rights protect against unreasonable searches and seizures. "Kansas
courts interpret § 15 of the Kansas Constitution Bill of Rights to provide the same
protection from unlawful government searches and seizures as the Fourth Amendment."
State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014). Thus, we are bound by
United States Supreme Court precedent regarding Fourth Amendment issues. State v.
Henning, 289 Kan. 136, 145, 209 P.3d 711 (2009).

Probable cause is the test for a warrantless arrest. As stated in State v. Hill, 281
Kan. 136, 146, 130 P.3d 1 (2006),

"Probable cause is the reasonable belief that a specific crime has been or is
being committed and that the defendant committed the crime. [Citation omitted.]
Probable cause to arrest exists when the facts and circumstances within the arresting
officer's knowledge are sufficient to assure a person of reasonable caution that an offense
has been or is being committed and the person being arrested is or was involved in a
crime. The officer's knowledge must be based on reasonably trustworthy information. To
determine whether probable cause exists, an appellate court considers the totality of the
circumstances, including all of the information in the officer's possession, fair inferences
drawn therefrom, and any other relevant facts, even if they may not be admissible at trial.
[Citation omitted.] We view the totality of the circumstances by evaluating the
information from the standpoint of an objectively reasonable police officer. [Citation
omitted.]"

Here, Holder positively identified Santiapillai as the suspect described by Kipp
who appeared to engage in suspicious ATM transactions. Holder witnessed Santiapillai
engage in similar activities at drive-through ATMs which Santiapillai approached on
foot. The cards Holder saw Santiapillai holding were blank cards without the logo of any
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bank. Santiapillai's conduct suggested that he was not the owner of the accounts. He
parked his car some distance from the ATMs rather than driving up to the ATMs,
apparently in an attempt to evade detection from security cameras. Given his personal
observations and the information he had from Kipp, a reliable source, Holder reasonably
inferred from Santiapillai's conduct that he was making unauthorized withdrawals with
the intent to deprive the account holders of their money.

Based on the undisputed evidence, Holder had probable cause to arrest
Santiapillai. Accordingly, the district court did not err in denying Santiapillai's motion to
suppress.

Granting the State's Dispositional Departure Motion

K.S.A. 2016 Supp. 21-6815(a) requires the sentencing court to impose the
sentencing guideline's presumptive sentence unless the court finds "substantial and
compelling reasons to impose a departure sentence." In reviewing the district court's
decision to depart, we review de novo whether a particular mitigating or aggravating
factor found by the sentencing court can be a substantial and compelling reason to depart.
We use the substantial evidence standard to determine whether the evidence supports the
departure factor relied upon by the district court. State v. Reed, 302 Kan. 227, 249, 352
P.3d 530 (2015).

A defendant not being amenable to probation is a substantial and compelling
reason the court can rely on in deciding to depart from a presumptive sentence of
probation. See State v. Rodriguez, 269 Kan. 633, 647, 8 P.3d 712 (2000). In State v.
Benoit, 31 Kan. App. 2d 591, 97 P.3d 497 (2003), we held that a defendant is not
amenable to probation when probation is simply impractical or unworkable.

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Here, the district court's decision to deny presumptive probation was premised on
the finding that it would be impossible for Santiapillai to successfully complete
probation. Based on the testimony at the sentencing hearing, the court eliminated the
possibility of Santiapillai's probation being supervised in Canada, though Santiapillai
stated in his allocution that "I am more than willing and capable of paying for a private
independent firm [to supervise probation], whether in Kansas or in Canada." The court
also found that if Santiapillai served his probation at the Residential Center in Johnson
County he would have to work and, having overstayed his 6-month visa (albeit because
he was in jail), he could not be lawfully employed. The court stated, "he has to have a
job. . . . Those are the rules." Finally, the court reasoned that if Santiapillai was released
on probation, it was likely that ICE would detain him and begin deportation proceedings.

The court apparently failed to take into account Thomas' testimony on cross-
examination that whether a noncitizen could be supervised by Johnson County Court
Services was "clearly up to the Judge." Santiapillai's counsel focused on this point when
he argued in opposition to the motion that "not everybody on probation has to work" and
whether a probationer has to work depends on the court's order. "The Court doesn't have
to order him to work, to obtain employment. He can still be on probation." Besides, if
employment was not an option, the district court could have ordered a rigorous course of
community service as a viable alternative in a probation plan.

The State argued that probation would be futile because once released from
custody Santiapillai likely would be detained by ICE for deportation proceedings. But the
backlog of such proceedings is substantial and not all detainees are held until their final
deportation hearing. It is not clear that a defendant could not serve a period of probation
during the pendency of any deportation proceedings. Finally, unsupervised probation or
probation supervised by a court services officer remotely by phone contact with the
probationer was a possibility.

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Ultimately, the propriety of these or other alternatives was a matter for the district
court, and we do not suggest that the district court's decision on whether to depart from
presumptive probation had to be controlled by any of these alternatives.

Other than a few statutorily required conditions, a district court has broad
discretion to impose any probation conditions that it deems proper. State v. Bennett, 288
Kan. 86, 91, 200 P.3d 455 (2009). Pursuant to K.S.A. 2016 Supp. 21-6607(c), a district
court must always impose six probation conditions, requiring that the defendant:

 Obey the laws of the United States and of Kansas and any other laws to which
the probationer is subject;
 Provide reparation or restitution to the victim for the damage or loss the
probationer's crime caused unless the court finds compelling circumstances
making restitution unworkable;
 Pay a correctional supervision fee, unless waived;
 Reimburse all or part of the expenditures relating to appointed counsel;
 Be subject to searches if there is reasonable suspicion that the probationer has
violated the conditions of probation or committed criminal activity; and
 Be subject to random and reasonable drug and alcohol testing.

Beyond these mandatory probation conditions, the "court may impose any conditions of
probation . . . that the court deems proper." (Emphasis added.) K.S.A. 2016 Supp. 21-
6607(b).

Here, we must conclude that the district court failed to take into account the fact
that as the sentencing entity it could fashion a probation plan that could have addressed
the issues raised by the State's departure motion. In other words, the court's hands were
not tied as the State viewed the evidence and as the court seemed to concede in
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concluding, "Those are the rules." The rules of the Residential Center did not foreclose
other alternatives which the court, on further review, may find either viable or not.

Accordingly, we must vacate the district court's order denying presumptive
probation and remand for further proceedings on the State's motion for a dispositional
departure.

Failure to State on the Record the Court's Reasons for a Durational Departure

Santiapillai argues that the district court erred in failing to state on the record the
substantial and compelling reasons supporting an upward durational departure. See State
v. Whitesell, 270 Kan. 259, 294, 13 P.3d 887 (2000).

In reviewing this matter, we must determine whether the district court stated on
the record its reasons for a departure. If the district court adequately stated its reasons, we
would normally then decide whether substantial competent evidence supports the district
court's particular reasons for departing. See State v. Bird, 298 Kan. 393, 397, 312 P.3d
1256 (2013). But here, Santiapillai does not argue that the reasons for the court's
departure were not substantial or compelling; rather, he contends that the court merely
adopted the grounds expressed in the State's departure motion without stating how these
grounds constituted substantial and compelling reasons to depart. Thus, he concludes that
"[t]he lack of that record raises the concern that the district court did not conduct the full
analysis required. This Court must therefore vacate the sentence and remand to the
district court for resentencing."

Santiapillai argues that the district court essentially rubber-stamped the State's
motion for a durational departure sentence without any explanation. He contends the
court granted the State's motion "based upon the 'criteria' in the State's motion;" and that
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in doing so, "the court failed to enumerate how the State's 'criteria' constituted substantial
and compelling reasons for a departure."

But Santiapillai ignores the extensive explanation recited above regarding the
district court's finding that its departure ruling was premised on the sophistication of the
scheme employed in committing these crimes. We are not persuaded by Santiapillai's
claim that the district court erred by not stating on the record its reason for departing.

Affirmed in part, vacated in part, and remanded for further proceedings.