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NOT DESIGNATED FOR PUBLICATION 

No. 122,259

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee, 

v.

ARMANDO CIPRIANO LIRA,

Appellant.

MEMORANDUM OPINION

Appeal from Wyandotte District Court; JENNIFER L. MYERS, judge. Opinion filed March 26,

2021. Affirmed.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.

Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek

Schmidt, attorney general, for appellee.

Before BRUNS, P.J., GREEN and ATCHESON,JJ.

PER CURIAM: Armando Lira appeals his aggravated robbery, aggravated assault, 

and driving with a suspended license convictions. Lira argues that we should reverse his 

convictions because, after his warrantless arrest, the trial court did not promptly make a 

judicial determination of probable cause in violation of his rights under the Fourth 

Amendment to the United States Constitution and K.S.A. 2020 Supp. 22-2901(1). 

Nevertheless, because Lira's argument is not warranted by law and fact, we affirm his 

convictions.
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Background

On October 17, 2018, around 9:20 p.m., Joshua Wells reported to the police that 

Armando Lira had just driven away in his tow truck after forcing him out of his tow truck 

at gunpoint, threatening Wells with his own handgun. Because Wells' tow truck

contained a GPS tracker, the police quickly located Wells' tow truck within minutes of 

Wells' report. When the police arrested Lira around 9:30 p.m., Lira was walking away 

from Well's tow truck with Well's handgun near his feet.

Two days after his warrantless arrest, on October 19, 2018, a trial judge signed 

Lira's arrest warrant. Three days after this on October 22, 2018, the State charged Lira 

with kidnapping, aggravated robbery, aggravated assault, theft, criminal damage to 

property, and driving with a suspended license. At this same time on October 22, 2018, 

the court clerk certified Lira's arrest warrant. Significantly, this was the same arrest 

warrant that the trial judge had already signed sometime on October 19, 2018. Then, the 

next day, October 23, 2018, the trial court held Lira's first appearance.

The transcript of Lira's first appearance is not in the record on appeal. Even so, 

because the trial court did not dismiss the State's charges against Lira, it is readily 

apparent that at his first appearance, the trial court determined that probable cause 

supported Lira's warrantless arrest five days earlier on October 17, 2018, around 9:30 

p.m.

Next, before his jury trial, Lira moved to dismiss the State's charges against him. 

In his motion to dismiss, Lira argued that the trial court's failure to timely conduct a 

probable cause hearing following his warrantless arrest violated his rights under the 

Fourth Amendment. In making this argument, Lira pointed to the United States Supreme 

Court's holding in County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S. Ct. 1661,

114 L. Ed. 2d 49 (1991). The Court held that the Fourth Amendment requires a judicial
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determination of probable cause following a defendant's warrantless arrest to occur 

within 48 hours of that defendant's warrantless arrest. 500 U.S. at 56-57. Lira then 

asserted that the five-day delay between his warrantless arrest and probable cause 

determination at his first appearance prejudiced his defense because the delay prevented 

him from being "released [from jail] to obtain the legal representation of his choice."

The State responded that Lira's motion was meritless because regardless of when 

Lira's first appearance occurred, a trial judge signed Lira's arrest warrant within two days 

of his arrest. The State further responded that even if the trial court did not timely make a 

judicial determination of probable cause in violation of K.S.A. 22-2901(1), dismissal of 

its charges against Lira was an extreme sanction not warranted under the facts of Lira's 

case.

The trial court held a hearing on Lira's motion. Although Lira's written motion to 

dismiss focused on a potential violation of the Fourth Amendment at the hearing, Lira 

also argued that an unnecessary delay between his warrantless arrest and the trial court's 

probable cause determination at his first appearance violated his rights under K.S.A. 22-

2901(1). In the end, however, the trial court denied Lira's motion. The trial court agreed 

with the State's argument, ruling that a timely judicial determination of probable cause 

occurred in Lira's case because a trial judge signed Lira's arrest warrant just two days 

after his warrantless arrest.

After denying Lira's motion to dismiss, the trial court held Lira's jury trial. At the 

conclusion of his trial, the jury found Lira guilty of aggravated robbery, aggravated 

assault, and driving with a suspended license. The jury was unable to reach a unanimous 

verdict on Lira's kidnapping, theft, and criminal damage to property charges. The trial 

court then sentenced Lira to a controlling term of 259 months' imprisonment followed by

36 months' postrelease supervision.
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Lira timely appealed.

Whether a trial court violated a defendant's right to a prompt judicial 

determination of probable cause following his or her warrantless arrest constitutes a 

question of law over which this court exercises unlimited review. See Doe v. Thompson,

304 Kan. 291, 307, 373 P.3d 750 (2016) (holding that "'[w]hen the application of a statute 

is challenged on constitutional grounds, [an appellate] court exercises an unlimited, de 

novo standard of review'"), overruled on other grounds by State v. Petersen-Beard, 304

Kan. 192, 377 P.3 1127 (2016); see also State v. Garcia, 282 Kan. 252, 260, 144 P.3d

684 (2006) (holding that an appellate court's review over the trial court's denial of a 

defendant's motion to dismiss hinges on the ground on which the defendant sought 

dismissal).

Following a warrantless arrest, the Fourth Amendment requires a prompt judicial 

determination of probable cause. Gerstein v. Pugh, 420 U.S. 103, 114, 95 S. Ct. 854, 43

L. Ed. 2d 54 (1975). To be considered prompt for Fourth Amendment purposes, a judicial 

determination of probable cause must occur within 48 hours of a defendant's warrantless 

arrest. McLaughlin, 500 U.S. at 56-57. Yet, even if a defendant establishes that there was 

an untimely judicial determination of probable cause following his or her warrantless 

arrest, the "appropriate remedy for failure to conduct a timely probable cause hearing will 

depend on the particular facts and circumstances of the case." State v. Hershberger, 27

Kan. App. 2d 485, Syl. ¶ 2, 5 P.3d 1004 (2000). Also, in such cases, the "dismissal of 

charges is an extreme remedy only warranted if the prolonged detention substantially 

impedes a defendant's ability to prepare a defense." 27 Kan. App. 485, Syl. ¶ 2.

In Kansas, K.S.A. 22-2901(1) also requires the prompt judicial determination of 

probable cause following a defendant's warrantless arrest. In relevant part, K.S.A. 2020

Supp. 22-2901(1) provides that if the defendant's "arrest has been made on probable 

cause, without a warrant, he shall be taken without unnecessary delay before the nearest
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available magistrate and a complaint shall be filed forthwith." Under K.S.A. 22-2901(1), 

"[w]hether a delay is unreasonable or prejudicial must depend on the facts and 

circumstances of each case." State v. Crouch, 230 Kan. 783, 786, 641 P.2d 394 (1982). 

Still, K.S.A. 22-2901(1) "provides no sanctions in the event there is unnecessary delay in 

taking a person under arrest before the nearest available magistrate." State v. Wakefield,

267 Kan. 116, 123, 977 P.2d 941 (1999). Furthermore, "[a]n unwarranted delay in taking 

the accused before a magistrate after he or she has been arrested is not in itself a denial of 

due process unless it has in some way prejudiced the right of the accused to a fair trial." 

Wakefield, 267 Kan. 116, Syl. ¶ 6.

Thus, regardless of whether a defendant's challenge falls under the Fourth 

Amendment or K.S.A. 22-2901(1), to be entitled to dismissal of the State's charges based 

on the trial court's untimely judicial determination of probable cause following a 

defendant's warrantless arrest, the defendant must prove the following three things: (1) 

that there was an unnecessary delay in the judicial determination of probable cause 

following his or her warrantless arrest; (2) that this unnecessary delay prejudiced his or 

her defense; and (3) that this unnecessary delay prejudiced his or her defense to an extent 

that the only equitable remedy available is dismissal of the State's charges.

On appeal, Lira argues that the five-day delay between his warrantless arrest and 

the trial court's probable cause determination at his first appearance violated his rights 

under the Fourth Amendment and K.S.A. 22-2901(1). In making this argument, Lira 

concedes that a trial judge signed his arrest warrant two days after his warrantless arrest. 

Nonetheless, Lira points out that there is no evidence concerning the exact time when the 

trial judge signed his arrest warrant. As a result, Lira asserts that despite signing his arrest 

warrant two days after his warrantless arrest, the trial judge may have signed his arrest 

warrant more than 48 hours after his warrantless arrest. Thus, according to Lira, this 

means that the record does not definitively establish that the trial court made a prompt
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determination of probable cause after his warrantless arrest as required under the Fourth

Amendment to the United States Constitution and K.S.A. 22-2901(1).

Alternatively, Lira argues that regardless of when the trial judge signed his arrest 

warrant, the act of signing his arrest warrant does not satisfy K.S.A. 22-2901(1)'s 

requirement to have a prompt probable cause hearing before a magistrate judge. Lira then 

asserts that the trial court's failure to make a prompt probable cause determination 

following his warrantless arrest prejudiced his defense because it "prevented him from 

marshalling the resources he needed to secure an attorney and develop a defense."

Indeed, the preceding argument is Lira's sole argument about why the five-day delay 

between his warrantless arrest and the trial court's probable cause determination at his 

first appearance prejudiced his defense. Nevertheless, there are significant problems with 

Lira's arguments.

To begin with, Lira argues that the trial judge may have signed his arrest warrant 

more than 48 hours after his warrantless arrest. The police arrested Lira around 9:30 p.m. 

on Wednesday, October 17, 2018. Thus, the burden was on Lira to show a McLaughlin 

and a K.S.A. 22-2901(1) violation had occurred between October 17, 2018, and October

19, 2018. Here, it is undisputed that a trial judge signed Lira's arrest warrant at some point 

on Friday, October 19, 2018. Because Lira has shown no 48-hour violation, he has failed 

to establish that the trial court made an untimely probable cause determination. See First 

Nat'l Bank & Trust Co. v. Lygrisse, 231 Kan. 595, 602, 647 P.2d 1268 (1982) (holding

that "[o]n appeal, error below is never presumed and the burden is on the appellant to

make it affirmatively appear").

Next, notwithstanding the preceding problem, Lira's argument concerning how the 

five-day delay between his warrantless arrest and the trial court's probable cause 

determination at his first appearance prejudiced his defense is fatally flawed. As the State 

correctly points out in its brief, even if the trial court's probable cause determination
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following Lira's warrantless arrest was untimely, the record on appeal entirely 

undermines Lira's contention that the trial court's untimely determination of probable 

cause in his case "prevented him from marshalling the resources he needed to secure an 

attorney and develop a defense."

For example, the record on appeal shows that Lira never retained an attorney to 

represent him in his criminal case. Instead, appointed counsel represented Lira 

throughout the pendency of his criminal case. And appointed counsel continues to 

represent Lira on appeal. Also, although the trial court set Lira's bond at his first 

appearance at $75,000, it seems Lira lacked the resources to bond out of jail because he 

remained in jail throughout the pendency of his criminal case. In short, the record on

appeal clearly establishes that Lira had no resources available to bond out of jail let alone 

to retain an attorney to develop his defense.

Based on the preceding, it is readily apparent that Lira's contention that the fiveday delay between his warrantless arrest and the trial court's probable cause 

determination at his first appearance prejudiced his defense because it "prevented him

from marshalling the resources he needed to secure an attorney and develop a defense" is 

meritless. Because Lira is not entitled to any remedy or sanction for the trial court's 

allegedly untimely determination of probable cause contrary to his Fourth Amendment 

and K.S.A. 22-2901(1) rights absent a showing of prejudice, Lira's failure to establish 

prejudice is fatal. See Wakefield, 267 Kan. 116, Syl. ¶ 6; Hershberger, 27 Kan. App. 485, 

Syl. ¶ 2.

Finally, it is important to note that in his brief, Lira never explains how the 

outcome of his case would have been different had he been able to retain counsel during 

the five-day delay between his warrantless arrest and the trial court's probable cause 

determination at his first appearance. Nor does Lira allege that his appointed counsel's 

representation of him was somehow prejudiced by this five-day delay. It is a well-known
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rule that "[c]onclusory contentions without evidentiary basis are not sufficient for relief." 

Gilkey v. State, 31 Kan. App. 2d 77, 82, 60 P.3d 351 (2003). In this case, even if we were 

to ignore the evidence indicating (1) that Lira failed to meet his burden to show that the 

trial court made an untimely probable cause determination following Lira's arrest and (2) 

that Lira could not afford to retain an attorney regardless of any untimely judicial 

determination of probable cause, Lira's argument that the trial court wrongly denied his 

motion to dismiss would still fail because Lira neither explains nor shows how his inability

to retain counsel during the five-day delay between his warrantless arrest and the trial

court's probable cause determination at his first appearance actually negatively affected his

defense.

Thus, for each of the preceding reasons, we affirm the trial court's denial of Lira's 

motion to dismiss.

Affirmed.