State v. Pettay

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 107,673

STATE OF KANSAS,
Appellee,

v.

ERIK PETTAY,
Appellant.


SYLLABUS BY THE COURT

1.
Under the Fourth Amendment to the United States Constitution, a warrantless
search by law enforcement officers is considered unreasonable and invalid unless the
search falls within a recognized exception to the warrant requirement. It is the State's
burden to demonstrate a warrantless search was lawful.

2.
The Fourth Amendment to the United States Constitution does not expressly
prohibit the use of evidence obtained in violation of its protections. Instead, the
exclusionary rule is a judicially created remedy to prevent the use of unconstitutionally
obtained evidence in a criminal case. One good-faith exception to the exclusionary rule,
articulated in Illinois v. Krull, 480 U.S. 340, 349-50, 107 S. Ct. 1160, 94 L. Ed. 2d 364
(1987), is for objectively reasonable reliance on a statute by law enforcement.

3.
On a motion to suppress evidence, an appellate court reviews the factual findings
underlying the trial court's suppression decision using a substantial competent evidence
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standard. The legal conclusions drawn from those factual findings are reviewed using a
de novo standard. The court does not reweigh evidence.

4.
When it was effective, K.S.A. 22-2501 controlled the permissible circumstances,
purposes, and scope for a search incident to a lawful arrest. Notably, the statute's
permissible physical scope specified that a law enforcement officer may reasonably
search only the person arrested or the area within an arrestee's immediate presence.

5.
Once an arrestee is handcuffed and secured within a patrol car, the arrestee's
vehicle is no longer within the arrestee's immediate presence as required for a search
incident to arrest under K.S.A. 22-2501.

6.
Issues not briefed on appeal are deemed waived.

Review of the judgment of the Court of Appeals in an unpublished opinion filed March 15, 2013.
Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed June 6, 2014. Judgment
of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed
and remanded.

Rick Kittel, of Kansas Appellate Defender Office, was on the briefs for appellant.

Daniel D. Gilligan, assistant district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, were on the brief for appellee.

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The opinion of the court was delivered by

BILES, J.: Erik Pettay seeks review of a Court of Appeals decision approving the
admission of drug evidence obtained during a vehicle search incident to his arrest for
driving with a suspended license. The search occurred 2 days before the United States
Supreme Court's decision in Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed.
2d 485 (2009) (invalidating certain searches incident to arrest). Both parties agree Gant
rendered the search illegal. See State v. Henning, 289 Kan. 136, 148-49, 209 P.3d 711
(2009) (following Gant). The lingering issue is whether the State can still use the illegally
seized evidence under a good-faith exception to the exclusionary rule recognized by this
court for pre-Gant searches incident to a lawful arrest. See State v. Daniel, 291 Kan. 490,
505, 242 P.3d 1186 (2010), cert. denied 131 S. Ct. 2114 (2011) (allowing evidence
obtained based on officer's objectively reasonable reliance on constitutionality of K.S.A.
22-2501[c]); see also State v. Carlton, 297 Kan. 642, 647, 304 P.3d 323 (2013) (same);
State v. Karson, 297 Kan. 634, 641, 304 P.3d 317 (2013) (same); State v. Dennis, 297
Kan. 229, 240, 300 P.3d 81 (2013) (same).

Pettay argues the good-faith exception should not apply in his case because the
search exceeded the physical scope permitted by K.S.A. 22-2501 (repealed July 1, 2011,
by L. 2011, ch. 100, sec. 22). He is the first litigant to present this precise issue to this
court. See Dennis, 297 Kan. at 239-40 (specifically noting defendant did not argue the
search was outside his immediate presence or the statute's permissible physical scope);
Daniel, 291 Kan. at 501-02 (same). But our Court of Appeals has addressed the issue
with varying results. See State v. Davison, 41 Kan. App. 2d 140, 148, 202 P.3d 44 (2009)
(automobile search did not exceed K.S.A. 22-2501's physical scope limitation, even
though defendant was removed from car, handcuffed, and placed in patrol car before the
vehicle search, rev'd by Supreme Court order dated October 9, 2009); but see State v.
Oram, 46 Kan. App. 2d 899, 914, 266 P.3d 1227 (2011) (good-faith exception not
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available when officers searched vehicle incident to arrest when defendant was
handcuffed and secured in patrol car because vehicle was not within defendant's
immediate presence); State v. Sanders, 5 Kan. App. 2d 189, 196-97, 614 P.2d 998 (1980)
(when defendant secured behind vehicle, vehicle is no longer within arrestee's immediate
control).

K.S.A. 22-2501 directs that an officer "may reasonably search the person arrested
and the area within such person's immediate presence." (Emphasis added.) When Pettay's
vehicle was searched, he was handcuffed and secured in a patrol car. The Court of
Appeals agreed with the State that a good-faith exception should apply based on the
factual similarities with the search in Daniel. State v. Pettay, No. 107,673, 2013 WL
1149745, at *8, (Kan. App. 2013) (unpublished opinion).

We disagree with that outcome. The State's arguments do not justify application of
a good-faith exception in light of the plain language of K.S.A. 22-2501, which had been
held to statutorily control the permissible circumstances, purposes, and scope for a search
incident to arrest long before Pettay's vehicle search. See State v. Conn, 278 Kan. 387,
391, 99 P.3d 1108 (2004); State v. Anderson, 259 Kan. 16, 22, 910 P.2d 180 (1996).
Based on the issues as presented by the parties, we reverse the Court of Appeals panel,
reverse the district court's order, and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On April 19, 2009, a Reno County Sheriff's deputy initiated a traffic stop of
Pettay's vehicle. The deputy had learned the vehicle's owner, who matched Pettay's
description, had a suspended driver's license. Pettay acknowledged the suspended license
and could not produce proof of current insurance. The deputy handcuffed Pettay and put
him in the backseat of a patrol car. Another officer stayed with Pettay while the deputy
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conducted a warrantless search of Pettay's vehicle incident to his arrest. During the
search, the deputy found a multicolored glass pipe on the passenger-side floorboard.

The pipe contained a residue the deputy believed to be marijuana, which later
testing confirmed. Pettay subsequently waived his Miranda rights during questioning. He
admitted the pipe was his and that he had smoked marijuana the night before. The State
charged Pettay with felony possession of marijuana, failure to provide proof of liability
insurance, and driving with a suspended license. See K.S.A. 2008 Supp. 8-262
(suspended license); K.S.A. 2008 Supp. 40-3104 (proof of insurance); K.S.A. 2008 Supp.
65-4162(a)(3) (possession).

Two days after his arrest, the United States Supreme Court decided Gant, which
prohibits warrantless vehicle searches incident to arrest unless the arrestee is within
reaching distance of the passenger compartment at the time of the search or there is a
reasonable belief the vehicle contains evidence of the crime of arrest. Gant, 556 U.S. at
351; see also Henning, 289 Kan. at 148-49. Relying on Gant and Henning, Pettay moved
to suppress the drug evidence.

The State conceded the search was illegal under Gant but asserted the evidence
should not be suppressed because the deputy relied in good faith on controlling law in
effect at the time of the search, citing K.S.A. 22-2501(c) and New York v. Belton, 453
U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981). The district court ruled a good-faith
exception did not apply because neither Gant nor Henning referred to it when
suppressing the evidence in those cases, and granted Pettay's motion. The State filed an
interlocutory appeal.

While that appeal was pending, this court issued its opinion in Daniel, 291 Kan. at
493, which held an officer's pre-Gant vehicle search incident to arrest was subject to the
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good-faith exception to the exclusionary rule based on the officer's objectively reasonable
reliance on K.S.A. 22-2501(c), which authorized searches incident to arrest to discover
"the fruits, instrumentalities, or evidence of a crime." (Emphasis added.) Relying on
Daniel, the Court of Appeals summarily reversed the district court's suppression order in
Pettay's case and remanded for further proceedings. See Supreme Court Rule 7.041 (2013
Kan. Ct. R. Annot. 62) (authorizing summary disposition).

On remand, Pettay continued to press the suppression issue. He advanced an
argument based on a then-recently released Court of Appeals panel's decision in which a
majority of the panel held that Daniel did not mandate application of a good-faith
exception because the officer in that case had not expressly claimed he was relying on
K.S.A. 22-2501(c) to conduct the pre-Gant search. See State v. Dennis, No. 101,052,
2011 WL 425987, at *3 (Kan. App. 2011) (unpublished opinion), rev'd 297 Kan. 229,
300 P.3d 81 (2013). Pettay also argued the vehicle was not within his "immediate
presence" at the time of the search as specified by K.S.A. 22-2501, which is the principal
focus in this appeal.

The district court refused to suppress the evidence, holding it was obliged to
follow Daniel. The district court found Pettay guilty on all charges after a bench trial on
stipulated facts. It imposed sentences on all counts, including 18 months' community
corrections with an underlying 12-month prison term for the possession of marijuana
conviction. Pettay timely appealed to the Court of Appeals.

In an unpublished opinion, a Court of Appeals panel affirmed the district court's
denial of Pettay's motion to suppress. Pettay, 2013 WL 1149745, at *8. The panel held
the good-faith exception articulated in Daniel applied, even though the deputy had not
explicitly said he relied on K.S.A. 22-2501. It also rejected Pettay's argument that the
search exceeded the physical scope authorized by K.S.A. 22-2501. It held "well-trained
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law enforcement officers in Kansas could not have known that it was unlawful to search a
car after the defendant had been handcuffed and placed in the backseat of a patrol car
until the United States Supreme Court's decision in Gant." Pettay, 2013 WL 1149745, at
*7.

In so ruling, the panel relied on Daniel, expressly noting the facts in Daniel were
markedly similar to Pettay's circumstances. Pettay, 2013 WL 1149745, at *5. The panel
also rejected the analysis that led a different Court of Appeals panel to reach a contrary
result in Oram. Pettay, 2013 WL 1149745, at *7.

Pettay timely petitioned for review, which we granted. Jurisdiction is proper under
K.S.A. 20-3018(b).

ANALYSIS

Pettay argues the good-faith exception is inapplicable because (1) there was no
evidence the deputy actually relied on K.S.A. 22-2501(c) when he searched the car; and
(2) the car was not within Pettay's immediate presence when it was searched, i.e., the
search was outside the statute's permissible scope. The State argues this case is factually
indistinguishable from Daniel and that the car was within Pettay's immediate presence.

Standard of Review

The district court's factual findings on a motion to suppress evidence are reviewed
for substantial competent evidence. The legal conclusions drawn from that evidence are
reviewed de novo. Daniel, 291 Kan. at 495. The facts in Pettay's case are undisputed.
Accordingly, the district court's decision as to whether suppression was warranted is
reviewed de novo. See 291 Kan. at 495.
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Discussion

Warrantless searches are considered unreasonable and invalid unless they fall
within recognized exceptions to the warrant requirement. The State bears the burden to
demonstrate a challenged search was lawful. 291 Kan. at 496. In Pettay's case, it is
undisputed there was no warrant authorizing the vehicle search, and the State agrees the
search was unlawful under Gant and Henning. The only question then is whether the
appropriate remedy is to suppress the illegally seized evidence. This is a question of law.
See 291 Kan. at 496.

Neither the Fourth Amendment nor its state counterpart in § 15 of the Kansas
Constitution Bill of Rights prohibits the use of illegally seized evidence in criminal
proceedings. Instead, an exclusionary rule has developed, which is a judicially created
remedy that safeguards Fourth Amendment rights by preventing the use of
unconstitutionally obtained evidence in criminal proceedings against victims of illegal
searches. 291 Kan. at 496 (citing Illinois v. Krull, 480 U.S. 340, 347, 107 S. Ct. 1160, 94
L. Ed. 2d 364 [1987]).

But the exclusionary rule is not absolute. See United States v. Leon, 468 U.S. 897,
906, 104 S. Ct. 3405, 82 L. Ed. 2d 677, reh. denied 468 U.S. 1250 (1984). It is a deterrent
measure, not a personal constitutional right. Daniel, 291 Kan. at 496. Therefore, its
application is "'restricted to those situations in which its remedial purpose is effectively
advanced.'" 291 Kan. at 496 (quoting Krull, 480 U.S. at 347). "[Q]uestions regarding
whether evidence should be excluded as a sanction for a Fourth Amendment violation
should be answered by weighing the costs and benefits of preventing the prosecution's
use of illegally obtained evidence." 291 Kan. at 497 (citing Leon, 468 U.S. at 907); see
also Davis v. United States, 564 U.S. ___, 131 S. Ct. 2419, 2426-27, 180 L. Ed. 2d 285
9



(2011) (suppression unwarranted when it fails to yield appreciable deterrence; deterrent
value necessary for exclusion but must always be weighed against social costs).

Pettay first claims the good-faith exception for objectively reasonable reliance on
K.S.A. 22-2501(c) cannot apply because the deputy did not testify he relied on the statute
in conducting the search. This claim is without merit. Whether the exception should
apply turns on whether, at the time of the search, an objectively reasonable officer could
rely on the statute, not on whether the officer subjectively had the statute in mind.
Dennis, 297 Kan. at 230 (testimony that search was "incident to arrest" sufficient basis to
apply good-faith analysis; not necessary to recite the statute); see also Karson, 297 Kan.
at 640-41 (same).

But Pettay's "immediate presence" argument, i.e., whether the search was within
the statute's permissible physical scope, requires more detailed consideration. At the time
of Pettay's arrest, Kansas had codified the scope of police authority to perform searches
incident to arrest. That statute provided:

"When a lawful arrest is effected a law enforcement officer may reasonably search the
person arrested and the area within such person's immediate presence for the purpose of
"(a) Protecting the officer from attack;
"(b) Preventing the person from escaping; or
"(c) Discovering the fruits, instrumentalities, or evidence of a crime." (Emphasis
added.) K.S.A. 22-2501.

As readily seen, when it was in effect, K.S.A. 22-2501 authorized searches
incident to arrest, but it also limited the physical scope and expressly stated the limited
purposes of that search. See Daniel, 291 Kan. at 501; Conn, 278 Kan. at 391; Anderson,
259 Kan. at 22. The physical scope was specified to be the arrestee's "immediate
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presence," and the limited purposes were set out in the statute's subsections. Daniel, 291
Kan. at 501.

The State argues the "immediate presence" limitation is expanded by federal
caselaw such as Belton and its progeny to permit a vehicle search even while the arrestee
is secured away from the vehicle. But our court has expressly rejected that argument and
held federal Fourth Amendment caselaw, such as the Belton line of cases, does not
expand the statute's plain language. See Conn, 278 Kan. at 391 (rejecting view that
Fourth Amendment caselaw would automatically authorize automobile search after
occupant arrested); Anderson, 259 Kan. at 22 ("The statute may possibly be more
restrictive than prevailing case law on the Fourth Amendment would permit, but this does
not alter the plain language of the statute.").

We hold that after Conn and Anderson, a law enforcement officer conducting a
search incident to arrest could not objectively reasonably rely on federal caselaw to
enlarge the physical scope set out in K.S.A. 22-2501 beyond the statute's plain language,
which limited the search to the subject's "immediate presence."

Admittedly, some Kansas appellate cases issued before our decision in Daniel,
such as the Court of Appeals' decision in State v. Karson, 44 Kan. App. 2d 306, 235 P.3d
1260 (2010), aff'd 297 Kan. 634, 304 P.3d 317 (2013), which the State cites as authority,
recognized a good-faith exception based on the Belton line of cases. But those Court of
Appeals cases considered K.S.A. 22-2501 to be coextensive with federal search-incident-
to-arrest caselaw, which is a proposition contradicted by this court's prior caselaw.
Compare Conn, 278 Kan. at 391, and Anderson, 259 Kan. at 22, with Karson, 44 Kan.
App. 2d at 310-14.

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Even so, the Karson Court of Appeals decision came after the search of Pettay's
vehicle, so it cannot justify the deputy's actions. See Daniel, 291 Kan. at 504-05 (officer's
objectively reasonable reliance on statute demonstrated by appellate decisions that
predated search). Indeed, the State cites no prior appellate court decision on the
permissible physical scope of a search under K.S.A. 22-2501 to justify the Pettay search.
An issue not briefed on appeal is deemed waived. See Dennis, 297 Kan. at 240 (declining
to consider defendant's scope-of-search argument because defendant failed to address
statutory language); see also Daniel, 291 Kan. at 501-02 (noting defendant did not argue
items seized were outside his immediate presence).

The State also argues Daniel controls the outcome because of its factual similarity,
but that argument does not consider that the legal arguments here are different. Daniel
was resolved solely on the ground that an officer's reliance on the legislatively enacted
language in K.S.A. 22-2501(c) in conducting a pre-Gant search was objectively
reasonable. The defendant in Daniel claimed only that the search violated Gant; he did
not argue the search occurred outside the defendant's immediate presence, so we did not
address that issue. See 291 Kan. at 501-02.

Pettay, however, ventures precisely where the defendant in Daniel did not. He
argues that at the time of the search the deputy could not have relied on the authority
imparted by K.S.A. 22-2501 because the physical scope of the search exceeded that
statute's express language, i.e., "immediate presence," because he was handcuffed and
secured in a patrol car. Daniel's factual similarity is unavailing because Pettay advances
different legal arguments arising from those facts that Daniel did not. We hold Pettay's
search exceeded the physical scope authorized by the statute and, necessarily, exceeded
the authority conferred upon the deputy by K.S.A. 22-2501.

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The only remaining question is whether applying the exclusionary rule would
serve the purpose of deterring future law enforcement misconduct. See Davis, 131 S. Ct.
at 2426; Karson, 297 Kan. at 639 (noting purpose of exclusionary rule is to deter future
violations by the State). We hold that it does, although it is a closer call given the
contradictory caselaw prior to the search from the Court of Appeals. See Davison, 41
Kan. App. 2d at 148; Sanders, 5 Kan. App. 2d at 196-97.

But the prior caselaw from this court in Conn and Anderson held that K.S.A. 22-
2501 was not made more expansive by the Belton line of cases, so we hold that the better
view is that the State has an obvious interest in ensuring law enforcement officers comply
with the plain language of a statute authorizing a warrantless search. No other remedy but
suppression can effectively serve that interest in this instance.

Since no other justification is offered to save the search results, we reverse the
Court of Appeals and the district court in their application of the good-faith exception to
the exclusionary rule and remand this case for further proceedings consistent with this
opinion.

* * *

JOHNSON, J., concurring: I wholeheartedly agree with the result in the majority
opinion. Yet, I write separately for a few self-indulgent reasons.

First, I want to reiterate my belief that this court should not have expanded the
good-faith exception to the suppression of evidence for an unconstitutional search beyond
the exception we had previously adopted from United States v. Leon, 468 U.S. 897, 906,
104 S. Ct. 3405, 82 L. Ed. 2d 677, reh. denied 468 U.S. 1250 (1984). See State v. Daniel,
291 Kan. 490, 505-09, 242 P.3d 1186 (2010), cert. denied 131 S. Ct. 2114 (2011)
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(Johnson, J., dissenting). The Leon exception for an officer who relies in good faith upon
an invalid warrant is premised upon the notion that a judge has made a determination of
probable cause, i.e., we permit a member of the executive branch to rely in good faith
upon the legal opinion of a member of the judicial branch. The Daniel exception,
however, allows an executive branch law enforcement officer to perform the judicial
branch function of interpreting a statute—an act we routinely declare to be a question of
law subject to unlimited appellate review—for the purpose of determining whether the
officer can lawfully conduct a search, i.e., we place the fox in charge of the henhouse.

Next, I cannot accept the majority's suggestion that the only purpose of the
exclusionary rule is to deter illegal police action. As a popular commentator has
explained:

"But the rule serves other purposes as well. There is, for example, . . .'the imperative of
judicial integrity,' namely, that the courts not become 'accomplices in the willful
disobedience of a Constitution they are sworn to uphold.' . . . A third purpose of the
exclusionary rule, as stated most clearly by some members of the Court, is that 'of
assuring the people—all potential victims of unlawful government conduct—that the
government would not profit from its lawless behavior, thus minimizing the risk of
seriously undermining popular trust in government.' This is not merely another statement
of the deterrence objective, for the emphasis is on the effect of exclusion upon the public
rather than the police." 2 LaFave, Criminal Procedure § 3.1(b), p. 7 (3d ed. 2007).

Similarly, I do not subscribe to the majority's apparent suggestion that each
suppression case should be subjected to an ad hoc cost/benefit analysis. In my view,
exclusion of unconstitutionally seized evidence should be the general rule, subject only to
narrow exceptions.

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Next, even if one accepts the expansion of the good-faith exception in this State to
include a law enforcement officer's objectively reasonable reliance on a statute, the
majority's holding in this case serves to point out why the statutory-reliance exception
was inapplicable in Daniel and its progeny. Here, the majority specifically points to State
v. Conn, 278 Kan. 387, 391, 99 P.3d 1108 (2004), for the proposition that Fourth
Amendment caselaw does not automatically authorize an automobile search after the
occupant is arrested, and to State v. Anderson, 259 Kan. 16, 22, 910 P.2d 180 (1996), for
the proposition that the plain language of K.S.A. 22-2501 applies, even if it may be more
restrictive than prevailing caselaw on the Fourth Amendment. That leads the majority to
declare "that after Conn and Anderson, a law enforcement officer conducting a search
incident to arrest could not objectively reasonably rely on federal caselaw to enlarge the
physical scope set out in K.S.A. 22-2501 beyond the statute's plain language, which
limited the search to the subject's 'immediate presence.'"

The searches in State v. Carlton, 297 Kan. 642, 647, 304 P.3d 323 (2013); State v.
Karson, 297 Kan. 634, 635, 304 P.3d 317 (2013); State v. Dennis, 297 Kan. 229, 240,
300 P.3d 81 (2013); and Daniel, 291 Kan. at 505, all occurred after Conn and Anderson,
and all involved the search of the arrested defendant's automobile after the defendant had
been handcuffed and placed beyond the immediate presence of the vehicle. Therefore,
none of the law enforcement officers involved in those cases could have objectively
reasonably relied on K.S.A. 22-2501 as providing the authority to conduct the searches.

The majority in the prior cases determined that, because the defendant did not
argue that the searched automobile was not within the arrestee's immediate presence, the
State could block the suppression of the fruits of the unconstitutional searches and
seizures by arguing for the first time on appeal that the law enforcement officers were
acting in good faith. Yet, as the majority here acknowledges, the State bears the burden to
demonstrate that a challenged search is lawful. In my view, the State does not fulfill that
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burden by proving partial compliance with the law, e.g., merely establishing that the
search comports with federal Fourth Amendment jurisprudence or only showing why the
search would comply with subsection (c) of K.S.A. 22-2501. To the contrary, the State's
burden is to demonstrate that the challenged search is lawful in all respects, including
each and every provision of Kansas statutory law. In all of these cases, it is undisputed
that the State failed to prove that the search incident to arrest involved "the area within
[the arrested] person's immediate presence," which was required in order for the State to
meet its burden to demonstrate that the challenged search was lawful. See K.S.A. 22-
2501. A defendant does not have to disprove that the area was within his or her
immediate presence.

Further, if the State seeks to excuse an unconstitutional search based upon the
Daniel good-faith exception, surely it must assume the burden of establishing that the
officer acted in objectively reasonable reliance upon the applicable statute. But utilizing
the majority's own rationale, after Conn and Anderson an officer could not reasonably
believe that he or she could search an automobile that was beyond the immediate
presence of an arrestee. Consequently, the State, as a matter of law, could not meet its
burden of establishing objectively reasonable good faith, regardless of the arguments
propounded by the defendant. Accordingly, I would not have applied a good-faith
exception to any of the searches where the automobile was outside the arrestee's
immediate presence, i.e., I would not have applied a good-faith exception where it was
precluded as a matter of law.