State v. Pettay , 299 Kan. 763 ( 2014 )

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exception should not apply in his case because the search exceeded the physical scope permitted by K.S.A. 22-2501 (repealed July 1, 2011, by L. 2011, ch. 100, sec. 22).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, revel 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 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 diat an officer “may reasonably search the person arrested and the area within such persons 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 drat 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 tire 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 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 interlocutoiy 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 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 Pet-tay’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. Pie advanced an argument based on a then-recendy 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-Gani 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 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 contraiy 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.

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 Hen-ning. 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 exclusionaiy 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. 229, 236-37, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (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 tire 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 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.

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-Gani 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 tire deputy by K.S.A. 22-2501.

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 exclusionaiy rule and remand this case for further proceedings consistent with this opinion.

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