State v. Dawes

NOT DESIGNATED FOR PUBLICATION

No. 115,859

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JIMMIE JASON DAWES,
Appellant.

MEMORANDUM OPINION

Appeal from Lyon District Court; W. LEE FOWLER,, judge. Opinion filed September 8, 2017.
Affirmed.

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.

Carissa Brinker, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, P.J., LEBEN and BRUNS, JJ.

LEBEN, J.: Jimmie Jason Dawes appeals his conviction for driving under the
influence, arguing that the blood-draw evidence (which showed his intoxication) should
have been excluded from trial because (1) the statute authorizing the blood draw was so
obviously unconstitutional that the police couldn't reasonably and in good faith rely on it
and (2) the legislature wholly abandoned its duty to pass constitutional legislation when it
passed this statute. But at the time of the blood draw, no Kansas appellate court had held
the statute unconstitutional, and nothing in the language of the statute would have alerted
police to any obvious unconstitutionality. And Dawes points to nothing in the legislative
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history to suggest that the legislature intended to pass an unconstitutional law. We affirm
the district court's judgment because the police performed the blood draw in good-faith
reliance on a statute later held unconstitutional.

FACTUAL AND PROCEDURAL BACKGROUND

This is the second time that Dawes' case has reached this court, so we provide only
a brief factual summary. See State v. Dawes, No. 111,310, 2015 WL 5036690, at *1-2
(Kan. App. 2015) (unpublished opinion). Around noon one day in July 2012, Dawes was
driving his motorcycle on a country road in Lyon County; while following a curve, his
motorcycle left the road. Dawes later claimed that he had lost control because his foot
had gotten caught underneath the peg on the motorcycle; he said he hadn't been drinking
the day of the accident but had been drinking the night before. One of the law-
enforcement officers who arrived at the scene of the accident noticed a "medium" odor of
alcohol coming from Dawes, and another officer observed that Dawes was disoriented,
swaying, and not talking very much.

Dawes was flown to Stormont-Vail Hospital in Topeka because of the severity of
his injuries (he would remain in a coma for three weeks). While Dawes was unconscious
in the hospital, an officer read the standard implied-consent advisories to him, and a nurse
drew his blood. Police did not obtain a search warrant for the blood draw. The Kansas
Bureau of Investigation analyzed the sample and found that Dawes' blood-alcohol content
was above the legal limit.

The State charged Dawes with several crimes, including driving under the
influence of alcohol. Dawes filed a motion to suppress the evidence from the blood test
because the police hadn't had a search warrant. But the district court found that the blood
draw was a reasonable search under Kansas' implied-consent law: Dawes had consented
to the blood test simply by driving his motorcycle, and he hadn't revoked that consent
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before losing consciousness, so the search was valid and the evidence didn't need to be
suppressed. Dawes was convicted of DUI (his fourth or subsequent offense), driving
while being declared a habitual violator, and driving too fast for conditions. The district
court sentenced him to 12 months in jail and imposed a $2,500 fine.

Dawes then filed his first appeal to this court. We reversed the DUI conviction and
held that the implied-consent statute was unconstitutional as applied to Dawes, so the
blood draw had been an unreasonable search and seizure. But we remanded the case back
to the district court to determine whether the evidence should have been suppressed or
whether the good-faith exception to the exclusionary rule applied. See Dawes, 2015 WL
5036690, at *5-6.

On remand, the district court found that the good-faith exception to the
exclusionary rule did apply in this case because law enforcement had reasonably relied
on a statute that appeared to be constitutional at the time of the search, so the blood-draw
evidence didn't need to be suppressed.

Dawes then filed this appeal.

ANALYSIS

Dawes argues that the district court's conclusion—that the good-faith exception
applied because the police reasonably relied on the implied-consent statute to draw his
blood while he was unconscious—is incorrect. Whether a court has correctly construed
the good-faith exception is a question of law, so we must review that question
independently, without any required deference to the district court. State v. Hoeck, 284
Kan. 441, 447-48, 163 P.3d 252 (2007); State v. Althaus, 49 Kan. App. 2d 210, 217, 305
P.3d 716 (2013).

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We begin by outlining the legal context. The Fourth Amendment to the United
States Constitution and Section 15 of the Kansas Constitution Bill of Rights protect us
from unreasonable searches or seizures by the government. State v. Daniel, 291 Kan. 490,
496, 498, 242 P.3d 1186 (2010). Collecting a blood sample is both a search and a seizure,
so the constitutional protection of the Fourth Amendment applies. Schmerber v.
California, 384 U.S. 757, 767, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966); State v. Murry,
271 Kan. 223, 226, 21 P.3d 528 (2001); State v. Declerck, 49 Kan. App. 2d 908, 914-15,
317 P.3d 794 (2014). That means that before collecting a blood sample, the government
must generally get a warrant, because under the Fourth Amendment, a search or seizure
conducted without a warrant is considered unreasonable. State v. Johnson, 297 Kan. 210,
223, 301 P.3d 287 (2013).

But there are some exceptions to the warrant requirement, one of which is
consent—and this exception was the issue in Dawes' first appeal. Dawes, 2015 WL
5036690, at *5-6; see Johnson, 297 Kan. at 223. The State argued there that Dawes had
consented to the blood test based on Kansas' implied-consent statute, which provides that
anyone who drives on Kansas roads impliedly consents to have his or her breath or blood
tested for alcohol or drugs. K.S.A. 2016 Supp. 8-1001(a). We held that this statute was
unconstitutional as applied to Dawes because it created a categorical exception to the
Fourth Amendment's warrant requirement—anyone who drove on Kansas roads and
became unconscious would be subject to a blood test if the other statutory requirements
were met. Dawes, 2015 WL 5036690, at *5. As explained more fully in that opinion,
exceptions to the warrant requirement based on broad categories like this aren't allowed
because whether an exception to the warrant requirement exists depends on the
circumstances of the case, and categorical exceptions apply regardless of the specific
circumstances. See Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552, 1563, 185 L. Ed.
2d 696 (2013). So because Dawes' implied consent wasn't a sufficient warrant exception
and the police hadn't gotten a warrant, the blood test was an unreasonable search.

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The usual remedy for unreasonable searches is to exclude from trial the evidence
that the search produced—this is known as the exclusionary rule. State v. Powell, 299
Kan. 690, 694-95, 325 P.3d 1162 (2014); Daniel, 291 Kan. at 496. The rule doesn't come
from the Constitution; it was designed by the courts to encourage law enforcement not to
violate people's Fourth Amendment rights. United States v. Leon, 468 U.S. 897, 906-07,
104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); Daniel, 291 Kan. at 496. By preventing the
government from using evidence from an unconstitutional search against a defendant at
trial, courts thereby encourage law-enforcement officers to perform constitutional
searches so that the government can use discovered evidence at trial. Leon, 468 U.S. at
906-07.

But the exclusionary rule doesn't exclude the evidence from every unconstitutional
search; it only applies when it will actually discourage bad police behavior. Illinois v.
Krull, 480 U.S. 340, 347-49, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987). When the police
acted reasonably but a court later finds that the search was unconstitutional for some
reason, the evidence won't be excluded. This is called the good-faith exception to the
exclusionary rule. It applies when (among other situations) the police perform a search or
seizure that's authorized by a statute and that statute is later struck down as
unconstitutional. 480 U.S. at 349-50; Daniel, 291 Kan. at 500. In this type of situation,
the police did what they were supposed to do by following the statute—the mistake
belonged to the legislature that wrote the statute, so excluding the evidence wouldn't
affect police behavior and the exclusionary rule doesn't apply. Krull, 480 U.S. at 349-50;
Daniel, 291 Kan. at 498-99.

Of course, since these are judge-made rules designed for a limited purpose, there
are exceptions to this exception. There's no good-faith exception to the exclusionary rule
if: (1) the statute is so obviously unconstitutional that police should have known not to
follow it or (2) the legislature wholly abandoned its responsibility to pass constitutional
legislation. Krull, 480 U.S. at 355; Daniel, 291 Kan. 490, Syl. ¶ 8; State v. Meitler, 51
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Kan. App. 2d 308, 314, 347 P.3d 670 (2015). Dawes argues that both of these exceptions
apply here. He didn't argue below that the legislature wholly abandoned its duty, but we
will consider this claim for the first time on appeal because it's a purely legal question
involving no disputed facts. See State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014)
(listing exceptions to general rule that issues can't be raised for the first time on appeal).

Before we go further into Dawes' arguments, let's briefly reorient ourselves around
the facts in this case. The police relied on an unconstitutional implied-consent statute to
draw Dawes' blood, so the blood draw was unconstitutional. Dawes, 2015 WL 5036690,
at *5. Evidence from an unconstitutional search is usually excluded, but the district court
found that the good-faith exception to the exclusionary rule applied because at the time of
the blood draw, the statute hadn't yet been held unconstitutional. Did the district court
reach the wrong conclusion, either because the statute was obviously unconstitutional or
because the legislature wholly abandoned its responsibility to pass constitutional laws?

In a word, no. Our court previously considered this exact question in Meitler,
which involved essentially the same situation: a blood draw from an unconscious
defendant after a serious traffic accident, based on the unconstitutional implied-consent
statute. 51 Kan. App. 2d at 310; see State v. McClellan, No. 115,164, 2017 WL 839720,
at *12-13 (Kan. App. 2017) (unpublished opinion) (holding that good-faith exception
applied where officer had read the defendant implied-consent advisories that were later
held unconstitutional), petition for rev. filed March 31, 2017. The Meitler court found
that at the time of the defendant's blood draw in 2012, an objectively reasonable police
officer should not have known that the implied-consent statute was unconstitutional, 51
Kan. App. 2d at 315, and we agree with that conclusion. Dawes' blood draw was also in
2012, and at that point, no Kansas appellate court had found the implied-consent statute
unconstitutional. The first case to do so was filed two years later, in our court's decision
in Declerck, 49 Kan. App. 2d 908, Syl. ¶ 6.

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The implied-consent statutory scheme had existed in Kansas since 1955, so police
officers were familiar with the general contours of this law: when an officer believed a
driver was intoxicated, the officer would give the driver advisories about breath and
blood tests for intoxication and then ask the driver to consent to one of those tests. See
Meitler, 51 Kan. App. 2d at 316. The section of the implied-consent statute that Declerck
found was unconstitutional—and that officers relied on in Meitler and in this case, K.S.A.
2016 Supp. 8-1001(b)(2)—provided that a serious car accident combined with a traffic
offense would constitute probable cause for a breath or blood test. Probable cause is a
concept widely used in the context of Fourth Amendment searches and seizures, so police
officers are familiar with it; nothing about the phrase appearing in the statute (or any
other language in the statute) would have alerted a reasonable officer to the provision's
unconstitutionality. See Meitler, 51 Kan. App. 2d at 316.

We also agree with the Meitler majority that the legislature did not wholly
abandon its responsibility to pass constitutional laws when it passed subsection (b)(2) of
the implied-consent statute. 51 Kan. App. 2d at 317-19; see McClellan, 2017 WL
839720, a *13 (reaching same conclusion for implied-consent advisories). We generally
presume that the legislature enacts constitutional laws. State v. Petersen-Beard, 304 Kan.
192, 194, 377 P.3d 1127 (2016). And all legislators must take an oath to uphold the
United States Constitution. See Kan. Const. art. 15, § 14; Krull, 480 U.S. at 351 (citing
U.S. Const., art. VI, cl. 3). So we must begin by assuming that the legislature hasn't
abandoned its responsibility. In fact, since the United States Supreme Court first applied
the good-faith exception in this context, as far as we are aware, no court in the country
has found that a state legislature wholly abandoned its responsibility to pass
constitutional laws. See Meitler, 51 Kan. App. 2d at 317. The legislature had a legitimate
aim in passing this statute: to combat drunk driving. As the Meitler majority detailed,
nothing in the legislative history suggested that the purpose of the statute was to evade or
override the Fourth Amendment. 51 Kan. App. 2d at 318.

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We recognize that one of our colleagues has a contrary view. Meitler, 51 Kan.
App. 2d at 319-36 (Atcheson, J., dissenting). He pointed to legislative history that
indicates the legislature intended to make it easier for police to test drivers for
intoxication, but that purpose doesn't equate with a desire to violate the Fourth
Amendment. See 51 Kan. App. 2d at 333-35 (Atcheson, J., dissenting). In fact, when the
legislature passed subsection (b)(2) of the implied-consent statute, it had heard testimony
that two other states had upheld similar statutes, giving it reason to believe that the statute
was constitutional. 51 Kan. App. 2d at 318. The legislature's reliance on these out-of-state
examples doesn't become unreasonable simply because at some later date a Kansas
appellate court wasn't persuaded by them. See Meitler, 51 Kan. App. 2d at 333
(Atcheson, J., dissenting); Declerck, 49 Kan. App. 2d at 918. In summary, we find no
evidence to support Dawes' claim that the legislature wholly abandoned its responsibility
to pass constitutional laws when it passed subsection (b)(2) of the implied-consent
statute.

The district court correctly concluded that the good-faith exception to the
exclusionary rule applied to this case, and we affirm its judgment.