State v. Nwoji

1

NOT DESIGNATED FOR PUBLICATION

No. 117,721

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

WILFRED J. NWOJI JR.,
Appellant.

MEMORANDUM OPINION


Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed August 24, 2018.
Affirmed.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MCANANY, P.J., PIERRON, J., and WALKER, S.J.

PER CURIAM: Wilfred M. Nwoji pleaded guilty to one count of criminal threat,
and the district court sentenced him to probation. Over his objection, the court ordered
that he submit to random drug and alcohol testing as a probation condition. For the first
time on appeal, Nwoji argues that K.S.A. 2017 Supp. 21-6607(c)(6), which requires
district courts to impose random drug and alcohol testing as a probation condition, is
unconstitutional under the Fourth Amendment to the United States Constitution and § 15
of the Kansas Constitution Bill of Rights. We affirm.

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The charges stemmed from an incident in which Nwoji strangled his girlfriend and
threatened to kill her. A presentence investigation (PSI) report showed Nwoji had a
criminal history score of H with at least eight prior drug or alcohol related convictions.
He was on probation for possession of marijuana and drug paraphernalia at the time he
committed the current offense.

The district court sentenced Nwoji to 12 months' probation with an underlying 7-
month prison sentence. As a term of probation, the court ordered Nwoji to "[a]t your own
expense submit to random breath, blood or urine testing, as directed by probation and at
the . . . minimum once every 30 days." Nwoji's counsel objected to this condition,
arguing that by law "there has to be cause or some sort of reasonable suspicion." The
court responded,

"Yeah, my reasonable suspicion is the facts underlying this case and the actions
and attitudes of the defendant, which are out of line with his behavior as it is today, not
under the influence. And the fact that he has one, two , three, four, five, six, seven, eight
prior substance abuse convictions spanning 14 years, so clearly substance abuse is a fuel
for him to commit offenses. So that's the basis, but I note your objection."

Nwoji appeals this condition.

Constitutionality of K.S.A. 2017 Supp. 21-6607(c)(6).

On appeal, Nwoji argues that K.S.A. 2017 Supp. 21-6607(c)(6) is unconstitutional.
He contends the statutory requirement that all probationers must submit to random drug
or alcohol testing violates probationers' rights under the Fourth Amendment and § 15. He
asserts the statute is inconsistent with State v. Bennett, 288 Kan. 86, 200 P.3d 455 (2009).
There, the Kansas Supreme Court held that probation or law enforcement officers "must
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have a rational, articulable suspicion of a probation violation or other criminal activity
before subjecting the probationer's person or property to a search." 288 Kan. at 99.

The State presents many arguments to counter Nwoji's claim. The State starts out
by arguing we should not address the constitutionality of K.S.A. 2017 Supp. 21-
6607(c)(6) at all. It contends we should not hear Nwoji's challenge for the first time on
appeal because the record does not contain the necessary facts. Next, the State contends
we lack jurisdiction because Nwoji lacks standing and the issue is not ripe. The State also
asserts Nwoji has waived and abandoned his argument because he did not adequately
brief it.

As for the merits, the State responds that K.S.A. 2017 Supp. 21-6607(c)(6) is
constitutional under one of the exceptions to the Fourth Amendment's individualized
suspicion requirements. It claims the special need beyond law enforcement exception
applies because the statute is part of a scheme to supervise probationers. It also asserts the
administrative search exception applies because drug and alcohol testing is necessary to
the administration of the probation system. The State acknowledges Bennett but counters
that changes in Kansas law undermine that holding.

While there are a number of problems with addressing the arguments on appeal,
we will do so in case of review.

Preservation

To begin with, we must address whether this issue is properly before us. Nwoji
objected to his probation condition before the district court, but he did not challenge the
constitutionality of K.S.A. 2017 Supp. 21-6607(c)(6). Generally, constitutional
arguments raised for the first time on appeal are not properly before this court. State v.
Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). This rule has several exceptions
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though, including: (1) the newly asserted theory involves only a question of law arising
on proved or admitted facts and is finally determinative of the case; (2) consideration of
the theory is necessary to serve the ends of justice or to prevent denial of fundamental
rights; and (3) the district court is right for the wrong reason. State v. Phillips, 299 Kan.
479, 493, 325 P.3d 1095 (2014).

Nwoji acknowledges he did not raise this issue below but argues we may still
address it because two exceptions apply. He contends his challenge to the
constitutionality of K.S.A. 2017 Supp. 21-6607(c)(6) presents only a question of law. He
also asserts consideration of his argument is necessary to serve the ends of justice and
prevent the denial of fundamental rights guaranteed by the United States and Kansas
Constitutions.

The State responds that none of the exceptions apply here. It notes that while the
constitutionality of a statute is often a question of law, the constitutionality of a search is
subject to a totality of the circumstances analysis. It points out that a totality of the
circumstances approach requires courts to determine the facts underlying the search.
Those facts do not exist here because Nwoji did not raise this issue below and no search
has occurred.

Nwoji counters that he is bringing a facial challenge to this statute. According to
Nwoji, this type of challenge involves no particular search and needs no facts particular
to Nwoji. He adds that the constitutionality of a statute is always a question of law. See
State v. Ryce, 303 Kan. 899, 905, 368 P.3d 342 (2016).

While the constitutionality of a statute is ordinarily a question of law, some
constitutional challenges present mixed questions of law and fact. See State v. Mossman,
294 Kan. 901, 906, 281 P.3d 153 (2012). For example, a challenge to the constitutionality
of a sentence under § 9 of the Kansas Constitution Bill of Rights requires the district
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court to make both legal and factual findings. 294 Kan. at 906. Likewise, determining the
constitutionality of a search authorized by statute requires courts to analyze the
circumstances of the search. See Skinner v. Railway Labor Executives' Assn., 489 U.S.
602, 619, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989). In doing this, courts must weigh the
search's intrusion on an individual's privacy against the promotion of legitimate
government interests. Samson v. California, 547 U.S. 843, 848, 126 S. Ct. 2193, 165 L.
Ed. 2d 250 (2006). This requires some facts, such as how the search is conducted. See
State v. Martinez, 276 Kan. 527, 530, 78 P.3d 769 (2003).

Because Nwoji did not raise this issue below, the record contains little information
relevant to the circumstances of a search under K.S.A. 2017 Supp. 21-6607(c)(6). Most
critically, Nwoji did not establish the methods of drug and alcohol testing authorized by
the statute. Without this information, we cannot determine the extent of any invasion on a
probationer's privacy rights under this statute. As a result, we cannot resolve this issue for
the first time on appeal.

Inadequate Briefing

Another bar to review that the State presents is that Nwoji has waived and
abandoned this issue because of inadequate briefing. See State v. Williams, 303 Kan. 750,
758, 368 P.3d 1065 (2016) (holding appellants waive or abandon an issue when they fail
to brief it). Nwoji relies solely on Bennett to show that K.S.A. 2017 Supp. 21-6607(c)(6)
is unconstitutional. According to the State, Nwoji has failed to address adequately the
effect of changes in Kansas law on Bennett.

In Bennett, the Kansas Supreme Court held that probation or law enforcement
officers "must have a rational, articulable suspicion of a probation violation or other
criminal activity before subjecting the probationer's person or property to a search." 288
Kan. at 99. In reaching that decision, the court noted: "The Kansas Legislature has not
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authorized suspicionless searches of probationers or parolees." 288 Kan. at 98. The court
also observed that "parolees in Kansas have an expectation that they will not be subjected
to suspicionless searches" based on the parole supervision procedure at the time of the
decision. 288 Kan. at 98. Because probationers have a greater expectation of privacy than
parolees, the court reasoned that probationers could not be subject to suspicionless
searches. 288 Kan. at 98-99.

Since Bennett, notable changes to Kansas law have taken place. In 2012, the
Kansas Legislature amended K.S.A. 21-6607 to allow for suspicionless drug and alcohol
testing of probationers. L. 2012, ch. 70, § 1. The Legislature also amended K.S.A. 22-
3717 to authorize suspicionless searches of parolees by parole officers. L. 2012, ch. 70, §
2. In his brief, Nwoji acknowledges that the Kansas Legislature amended K.S.A. 2017
Supp. 21-6607(c), but he does not mention the change to K.S.A. 2017 Supp. 21-3717. He
also does not explain what effect these changes may have had on the reasoning in
Bennett.

Nwoji also does not engage in the traditional balancing test to determine if a
search is reasonable under the Fourth Amendment. He discusses probationers' privacy
rights, but he does not address the extent of any intrusion on those rights or the
government's interest in conducting these tests. Nwoji asserts this analysis is irrelevant
because the probation condition does not require probation officers to consider any
circumstances before ordering a test. But he fails to recognize that courts still use this
balancing test even when analyzing suspicionless drug and alcohol testing. See, e.g.,
Treasury Employees v. Von Raab, 489 U.S. 656, 665-66, 109 S. Ct. 1384, 103 L. Ed. 2d
685 (1989); Skinner, 489 U.S. at 619. For these reasons, Nwoji has failed to brief this
issue adequately.
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Standing and Ripeness

The State argues we lack jurisdiction because Nwoji lacks standing and the issue
is not ripe. Standing and ripeness are components of subject matter jurisdiction. KNEA v.
State, 305 Kan. 739, 743, 387 P.3d 795 (2017). Whether jurisdiction exists is a question
of law over which we have unlimited review. State v. Smith, 304 Kan. 916, 919, 377 P.3d
414 (2016).

Standing is the "right to make a legal claim or seek enforcement of a duty or
right." Gannon v. State, 298 Kan. 1107, 1122, 319 P.3d 1196 (2014). Parties establish
standing by showing that (1) they have suffered a cognizable injury and (2) a causal
connection exists between the injury and the challenged conduct. Solomon v. State, 303
Kan. 512, 521, 364 P.3d 536 (2015). To establish a cognizable injury, the party must
show "a personal interest in a court's decision and that he or she personally suffers some
actual or threatened injury as a result of the challenged conduct." Sierra Club v. Moser,
298 Kan. 22, 33, 310 P.3d 360 (2013).

The doctrine of ripeness prevents courts from deciding abstract issues. State ex rel.
Morrison v. Sebelius, 285 Kan. 875, 892, 179 P.3d 366 (2008). "To be ripe, issues must
have taken shape and must be concrete rather than hypothetical and abstract." 285 Kan. at
892. An issue is not ripe if it is "'contingent [on] future events that may not occur as
anticipated, or indeed may not occur at all.' 13A C. Wright, A. Miller, & E. Cooper,
Federal Practice and Procedure § 3532 (1984)." Thomas v. Union Carbide Agricultural
Products Co., 473 U.S. 568, 580-81, 105 S. Ct. 3325, 87 L. Ed. 2d 409 (1985).

The State argues that Nwoji has not submitted to a search, so he has not suffered
an actual or concrete injury which would create standing. For the same reason, the State
contends the issue is not ripe.
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Nwoji responds that the district court has already applied the challenged statute to
him because the court ordered it as a condition of his probation. He reasons that a
judgment in a criminal case is effective on pronouncement from the bench, so the statute
has already begun adversely affecting his rights. See State v. Royse, 252 Kan. 394, 397,
845 P.2d 44 (1993). He adds that defendants may challenge probation conditions on
direct appeal. See State v. Schad, 41 Kan. App. 2d 805, 811, 206 P.3d 22 (2009).

Kansas courts have addressed the constitutionality of a probation condition
ordering searches of the probationer on direct appeal without discussing whether the
probationer had been subject to an actual search. See, e.g., Bennett, 288 Kan. 86; State v.
Gordon, No. 94,477, 2006 WL 1379689, at *2-3 (Kan. App. 2006) (unpublished
opinion). These cases do not address standing or ripeness, though. Independent research
uncovered no cases addressing when a probationer has standing to challenge a probation
condition or when that challenge is ripe.

Nwoji has standing to challenge the constitutionality of this statute. He has a
personal interest in resolving this issue because the district court has ordered him to
submit to drug and alcohol testing under the statute. Were we to find the statute
unconstitutional, Nwoji would no longer be subject to this condition. And Nwoji is not
challenging a search, but a probation condition which is already in effect. If the condition
alone is not enough to establish an actual injury, the impending drug testing is a
threatened injury.

Ripeness presents a harder question. Several scenarios could prevent Nwoji from
ever submitting to a random, suspicionless drug test, such as an arrest for a new offense
resulting in incarceration and probation revocation. As the State argues, Nwoji may later
be subject to drug testing for treatment purposes or his probation officer may have
reasonable suspicion or probable cause every time Nwoji submits to a test.
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On the other hand, failure to address this issue now could put Nwoji in a difficult
position. He may avoid a random drug or alcohol test by failing to abide by his probation
conditions. Alternatively, he may comply with the conditions, and his reward would be a
possibly unconstitutional search. Either way, Nwoji must now prepare himself to submit
to a search at any time.

In the end, "the question of ripeness turns on 'the fitness of the issues for judicial
decision' and 'the hardship to the parties of withholding court consideration.' [Citation
omitted.]" Pacific Gas and Elec. v. Energy Resources Comm'n, 461 U.S. 190, 201, 103 S.
Ct. 1713, 75 L. Ed. 2d 752 (1983). Here, we do not need more facts about a particular
search to determine the constitutionality of the statute. See KNEA, 305 Kan. at 748 ("A
claim is ripe when 'no additional facts need to arise or be developed in the record.'
[Citation omitted.]"). At the same time, withholding consideration places a hardship on
Nwoji. We find this issue is ripe for decision, and we have jurisdiction.

Turning to the merits, Nwoji argues K.S.A. 2017 Supp. 21-6607(c)(6) is
unconstitutional because it requires district courts to subject probationers to "searches
that may not be based on reasonable suspicion that the probationer either committed a
crime or violated a condition of their probation." A statute's constitutionality is a question
of law subject to unlimited review. The appellate courts presume statutes are
constitutional and must resolve all doubts in favor of a statute's validity. Courts must
interpret a statute in a way that makes it constitutional if any reasonable construction
would maintain the Legislature's apparent intent. State v. Petersen-Beard, 304 Kan. 192,
194, 377 P.3d 1127, cert. denied 137 S. Ct. 226 (2016).

K.S.A. 2017 Supp. 21-6607(c) is a subsection of the statute governing the
conditions of probation. That subsection provides,

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"(c) In addition to any other conditions of probation, suspension of sentence or
assignment to a community correctional services program, the court shall order the
defendant to comply with each of the following conditions:

. . . .

(5) be subject to searches of the defendant's person, effects, vehicle, residence
and property by a court services officer, a community correctional services officer and
any other law enforcement officer based on reasonable suspicion of the defendant
violating conditions of probation or criminal activity; and

(6) be subject to random, but reasonable, tests for drug and alcohol consumption
as ordered by a court services officer or community correctional services officer."

The parties do not contest that probation officers do not need reasonable suspicion
to order drug or alcohol testing of probationers under subsection (c)(6). The plain
language of the statute supports this conclusion. See State v. Barlow, 303 Kan. 804, 813,
368 P.3d 331 (2016). The inclusion of a reasonable suspicion requirement in subsection
(c)(5) but its exclusion in subsection (c)(6) also supports this conclusion. See State v.
Martin, 285 Kan. 735, 741-42, 175 P.3d 832 (2008) (applying the doctrine of expressio
unius est exclusio alterius—including one thing implies excluding another).

K.S.A. 2017 Supp. 21-6607(c)(6) does not specify the manner by which drug and
alcohol testing may take place. The district court, though, ordered Nwoji to submit to
drug and alcohol testing through breath, blood, or urine tests. A breath, blood, or urine
test is a search for Fourth Amendment purposes. See Ryce, 303 Kan. at 912.

The Fourth Amendment protects against unreasonable searches and seizures.
Section 15 offers the same protections. Whether a search is reasonable depends on the
circumstances of the search. Bennett, 288 Kan. at 92. A search is generally unreasonable
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without individualized suspicion, but this is not always the case. Martinez, 276 Kan. at
529.

One exception to the individualized suspicion requirement is the government's
special needs beyond law enforcement. Martinez, 276 Kan. at 529-30. Under this
exception, the United States Supreme Court has approved suspicionless drug testing in
some circumstances. See Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 664-65, 115
S. Ct. 2386, 132 L. Ed. 2d 564 (1989) (holding suspicionless drug testing of public school
student athletes constitutional); Skinner, 489 U.S. at 633-34 (upholding suspicionless
drug testing of railway employees after a train accident); Von Raab, 489 U.S. at 678-79,
(upholding suspicionless testing of U.S. Customs employees who carry firearms or
interdict illegal drugs). The Kansas Supreme Court has also affirmed the DNA testing of
individuals convicted of some crimes as a special need. Martinez, 276 Kan. at 534-37.

In analyzing whether a scheme meets a special need, a court first must determine
if the scheme's main purpose is something other than uncovering criminal activity.
Martinez, 276 Kan. at 530, 534. If the scheme meets this threshold determination, the
court then performs a balancing test. The court must consider the privacy interest at stake
and the degree of the intrusion on that privacy interest. Board of Ed. of Independent
School Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 829, 122 S. Ct. 2559,
153 L. Ed. 2d 735 (2002). The court then weighs these considerations against the
government's interests and the efficacy of the scheme in meeting those interests. 536 U.S.
at 834.

Special Need

The State's responsibility to supervise probationers is a special need that may
justify departures from the Fourth Amendment's warrant and probable cause
requirements. Griffin, 483 U.S. at 873-74. Drug and alcohol testing under K.S.A. 2017
12

Supp. 21-6607(c)(6) is part of a statutory scheme for the supervision of probationers. See
Griffin, 483 U.S. at 873-74; see also K.S.A. 2017 Supp. 21-6607 generally. In addition,
its plain language only authorizes probation officers to order drug and alcohol testing, not
law enforcement officers. It therefore likely qualifies as a special need beyond law
enforcement.

On the other hand, K.S.A. 2017 Supp. 21-6607(c)(6) does not limit the use of any
drug and alcohol testing results. This is relevant because if law enforcement may obtain
the results without the consent of the probationer, the testing may no longer qualify as a
special need. See Von Raab, 489 U.S. at 666. Nothing in the record indicates what may
be done with the test results, though the State asserts the results cannot support a new
criminal charge.

Extent of Probationer's Privacy Expectation

Next, we must consider the extent of probationers' privacy expectations. As the
Kansas Supreme Court explained in Bennett:

"[A] person's reasonable expectations of privacy depend on the level of freedom that
person enjoys in society. Persons under state control—such as probationers, parolees, and
prisoners—exist on a '"continuum" of state-imposed punishments' and thus enjoy more
limited privacy than do free citizens. Samson v. California, 547 U.S. at 850. The [United
States Supreme] Court has found that incarcerated prisoners have no reasonable
expectation of privacy and can be searched at any time for any reason. Hudson v. Palmer,
468 U.S. 517, 530, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984). Parolees have some
expectation of privacy, although that expectation is greatly diminished. . . . Probationers
have a greater expectation of privacy than parolees but enjoy more limited privacy rights
than free citizens. See Samson, 547 U.S. at 850; [United States v. Knights, 534 U.S. 112,
119, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001)]." 288 Kan. at 92.

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The United States Supreme Court has developed some guidelines for determining
the extent of probationers' or parolees' privacy expectations. The Supreme Court in
Griffin held that supervision of probationers was a special need, and a probation officer
could search a probationer's home based only on reasonable suspicion without flouting
the Fourth Amendment. 483 U.S. at 879-80. In Knights, the Supreme Court held law
enforcement officers may search a probationer's home based only on reasonable
suspicion, using ordinary Fourth Amendment principles instead of applying the special
needs exception. 534 U.S. at 121-22. In Samson, the Supreme Court upheld suspicionless
searches of parolees. 547 U.S. at 857. The United States Supreme Court has yet to
address whether suspicionless searches of probationers is reasonable under the Fourth
Amendment.

The Kansas Supreme Court has also found that probationers have reduced privacy
interests, but the Fourth Amendment still limits the extent of any potential invasion of
those rights. In Bennett, the Kansas Supreme Court considered whether a probation
condition that subjects probationers to random, suspicionless searches violates the
probationers' rights under the Fourth Amendment and § 15. Instead of the special needs
exception, the court held that this condition was not constitutional using an ordinary
Fourth Amendment analysis. 288 Kan. at 98-99.

In reaching its decision, the Bennett court noted: "The Kansas Legislature has not
authorized suspicionless searches of probationers or parolees." 288 Kan. at 98; see also
State v. Toliver, 307 Kan. 945, 956-57, 417 P.3d 253 (2018) (finding that "an authorizing
state statute [or administrative regulation] presents one way in which a suspicionless
search can withstand Fourth Amendment scrutiny"). The court also observed that
"parolees in Kansas have an expectation that they will not be subjected to suspicionless
searches" based on the procedure of parole supervision at the time of the decision.
Bennett, 288 Kan. at 98. Because probationers have a greater expectation of privacy than
14

parolees, the court reasoned that probationers could not be subject to suspicionless
searches. 288 Kan. at 98-99.

Nwoji argues that K.S.A. 2017 Supp. 21-6607(c)(6) is inconsistent with Bennett,
but notable changes to Kansas law have taken place since that decision. As the Bennett
court noted, the Kansas Legislature had not authorized suspicionless searches of
probationers or parolees at that time. In 2012, the Kansas Legislature amended K.S.A.
21-6607 to allow for suspicionless drug and alcohol testing of probationers. L. 2012, ch.
70, § 1. The Legislature also amended K.S.A. 22-3717 to authorize suspicionless
searches of parolees by parole officers. L. 2012, ch. 70, § 2. The Kansas Supreme Court
also recently held that the warrantless, suspicionless search of a parolee's home did not
violate the Fourth Amendment. Toliver, 307 Kan. at 958-59.

Of course, Bennett appears to consider the existence of a statute authorizing
suspicionless searches in determining the extent of a probationer's privacy expectations—
if probationers know they will be subject to suspicionless searches under a statute, they
have fewer privacy expectations. Nwoji, however, is challenging the statute itself, so this
factor does not play the same part in the constitutionality analysis. Still, these changes to
Kansas law suggest Bennett need not control the outcome here. Probationers still have a
reduced privacy expectation which may or may not allow for suspicionless searches in
some circumstances.

Extent of Privacy Invasion

While probationers have reduced privacy rights compared to ordinary citizens,
how far the State may infringe on those rights is not unlimited. We must consider the
extent of the invasion of privacy caused by the challenged statute. Here, there are no
specifics on the drug or alcohol testing a probation officer may order. That said, breath,
blood, and urine tests would likely pass constitutional muster.
15


Breath, blood, and urine tests are all searches, but they intrude on an individual's
privacy expectations to different degrees. Breath tests are only a slight intrusion on an
individual's privacy. Birchfield v. North Dakota, 579 U.S. __, 136 S. Ct. 2160, 2184, 195
L. Ed. 2d 560 (2016); Skinner, 489 U.S. at 626. "Blood tests are significantly more
intrusive" than breath tests. Birchfield, 136 S. Ct. at 2184. All the same, the United States
Supreme Court has held that if conducted in a reasonable manner, blood tests could be
permissible under the special needs exception. Skinner, 489 U.S. at 625-26.

Urine tests are not as physically invasive as blood tests. Still, they do intrude on
"an excretory function traditionally shielded by great privacy." Skinner, 489 U.S. at 626.
"[T]he degree of intrusion depends upon the manner in which production of the urine
sample is monitored." Vernonia, 515 U.S. at 658 (citing Skinner, 489 U.S. at 626).

The United States Supreme Court has upheld suspicionless urine tests in part
because the person giving the sample did not have to be under direct observation. See,
e.g., Vernonia, 515 U.S. at 658; Skinner, 489 U.S. at 626-27. In those cases, though, the
groups subject to testing had not been convicted of any crimes and were not under State
control. A probationer would likely have fewer privacy expectations than these groups.
Given these fewer privacy expectations, a urine sample produced even under direct
observation would not be so significant an intrusion as to render the testing
unconstitutional.

Another consideration is that tests such as urine or blood tests can expose other
private medical data about someone. Skinner, 489 U.S. at 617. K.S.A. 2017 Supp. 21-
6607(c)(6), however, authorizes only drug and alcohol testing. The plain language of the
statute restricts probation officers to testing for drugs and alcohol, limiting the extent of
the privacy invasion. See State v. Olsen, 189 Wash. 2d 118, 132-33, 399 P.3d 1141
(2017) (applying commonsense reading to probation condition authorizing urinalysis for
16

drugs and alcohol and concluding testing limited to presence of drugs and alcohol). But
see State ex rel. Secretary of SRS v. Yarmer, No. 102,885, 2010 WL 3564748, at *4 (Kan.
App. 2010) (unpublished opinion) (finding order for random drug testing in child custody
case unconstitutional because it did not limit the use of test results).

State's Interest

Finally, we must consider the government's interest in conducting random,
suspicionless drug and alcohol testing of probationers. "The primary purpose of probation
is the successful rehabilitation of the offender." State v. Turner, 257 Kan. 19, 24, 891
P.2d 317 (1995). Probation "provide[s] a program whereby an individual is given the
opportunity to rehabilitate himself without institutional confinement under the
supervision of a probation official and under the continuing power of the district court to
impose institutional punishment for the original offense if the probationer abuses this
opportunity." State v. Dubish, 236 Kan. 848, 853, 696 P.2d 969 (1985). The State thus
has a substantial interest in monitoring probationers to promote their rehabilitation and
compliance with probation conditions.

Drug and alcohol testing is a tool for monitoring probationers, but its efficacy
relies heavily on being random. Random testing deters probationers from drug and
alcohol use because a probation officer could discover this use at any time. It also
provides the probation officer with important information to determine whether
rehabilitation is taking place. Olsen, 189 Wash. 2d at 131. Imposing a reasonable
suspicion standard would hurt the efficacy of this testing, because detecting drug and
alcohol use simply through observation can be difficult. See Skinner, 489 U.S. at 626-28.

The State's reason for random, suspicionless drug and alcohol testing of
probationers is the successful rehabilitation of the offender. This significant State interest
outweighs a probationer's reduced privacy rights. As a result, drug and alcohol testing
17

under K.S.A. 2017 Supp. 21-6607(c)(6) is constitutional under the Fourth Amendment
and § 15.

The State also argues that K.S.A. 2017 Supp. 21-6607(c)(6) is constitutional under
the administrative search exception to the Fourth Amendment's individualized suspicion
requirement. Because this statute is constitutional as a special need beyond law
enforcement, we need not address the merits of this argument. The State also has cited no
authority that the administration of a probation system would qualify for this exception.


Abuse of Discretion

Nwoji also argues the district court abused its discretion in imposing the condition
that he submit to random drug and alcohol testing at least once every 30 days.

Here, the district court arguably erred in finding reasonable suspicion supported
random drug and alcohol testing as a probation condition. In finding reasonable
suspicion, the court relied on Nwoji's criminal history and prior drug use. While a court
may consider these factors in determining if reasonable suspicion exists, there must still
be some particularized knowledge relevant to the context of the search or seizure. State v.
Evans, No. 116,022, 2017 WL 544565, at *4 (Kan. App. 2016) (unpublished opinion);
State v. Rodenbeek, No. 93,282, 2006 WL 903145, at *4 (Kan. App. 2006) (unpublished
opinion).

Nevertheless, we may still uphold the district court as right for the wrong reason.
Phillips, 299 Kan. at 493. A district court generally has broad discretion in imposing
probation conditions. Bennett, 288 Kan. at 91; see K.S.A. 2017 Supp. 21-6607. But
probation conditions that restrict constitutional rights must bear a reasonable relationship
to the rehabilitative goals of probation, the protection of the public, and the nature of the
18

offense. See State v. Evans, 14 Kan. App. 2d 591, 592, 796 P.2d 178 (1990). Whether a
condition of probation is constitutional is a question of law subject to unlimited review.
Bennett, 288 Kan. at 91.

In State v. Gordon, No. 94,477, 2006 WL 1379689, at *3 (Kan. App. 2006)
(unpublished opinion), the court found that the district court did not abuse its discretion
in imposing drug and alcohol testing as a probation condition for a defendant convicted
of burglary:

"The use of controlled substances is illegal, and the State has an interest in ensuring that
those placed on probation are not engaged in illegal behavior. While the use of alcohol is
not illegal once one reaches the legal age of consumption, alcohol abuse is a factor that is
directly related to the possibility of engaging in future criminal behavior. The State's
interest in regulating alcohol abuse when one is under the supervision of community
corrections falls within the broad powers of the court in determining conditions of
probation."

As with Gordon, the probation condition here "bear[s] a reasonable relationship to the
rehabilitative goals of probation, the protection of the public, and the nature of the
offense." See 2006 WL 1379689, at *2. The district court did not abuse its discretion in
imposing this condition.

Affirmed.