State v. Cousins ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,676
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
WESLEY S. COUSINS,
Appellant.
MEMORANDUM OPINION
Appeal from Sumner District Court; R. SCOTT MCQUIN, judge. Opinion filed October 23, 2020.
Affirmed in part and dismissed in part.
Kevin J. Zolotor, of O'Hara & O'Hara, LLC, of Wichita, for appellant.
Mitch Spencer, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., BUSER and POWELL, JJ.
PER CURIAM: Wesley S. Cousins appeals his conviction of driving under the
influence (DUI), claiming the district court erred by denying his motion to suppress the
results of his evidentiary breath test. Cousins contends that his consent to be tested was
involuntary and unduly coerced because the implied consent advisories stated that (1)
Kansas law "requires" drivers to submit to testing and (2) refusal to submit to testing may
be used as evidence at trial. Cousins also claims the statutory provision allowing test
refusal evidence to be used against a driver at a DUI trial is unconstitutional.
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We find that the implied consent advisory misstated the law by telling Cousins
that Kansas law "requires" drivers to submit to testing, so Cousins' consent to the breath
test was involuntary and the breath test violated his Fourth Amendment rights. We need
not reach Cousins' additional claim that the advisory that refusal to submit to testing may
be used as evidence at trial was inaccurate and coercive. But although the breath test did
not fully comply with Cousins' constitutional rights, we find that the results are
admissible under the good-faith exception to the exclusionary rule because the law
enforcement officer reasonably relied on the current statutory advisories in use at the time
of Cousins' arrest. Finally, we find that Cousins lacks standing to challenge the
constitutionality of the statutory provision allowing test refusal evidence to be used
against a driver at a DUI trial because Cousins did not refuse to submit to testing.
FACTUAL AND PROCEDURAL BACKGROUND
On March 18, 2018, Kansas State Trooper Reed Sperry saw Cousins drive past
him at the Kansas Star Casino toll booth in Sumner County and saw an open can of beer
in Cousins' truck. Sperry stopped Cousins and noticed he had bloodshot and watery eyes,
slurred speech, and an odor of alcoholic beverage. Cousins admitted to drinking "about 3
beers" earlier in the day. Sperry administered field sobriety tests and Cousins exhibited
several clues on both the walk-and-turn test and the one-leg-stand test. Sperry concluded
that Cousins could not safely operate a motor vehicle and arrested him for DUI. He
transported Cousins to the Mulvane Police Department, where Sperry read Cousins the
implied consent advisories as set out on the authorized DC-70 form (DC-70). The DC-70
advised Cousins as follows:
"1. Kansas law (K.S.A. 8-1001) requires you to submit to and complete one or more tests
of breath, blood or urine to determine if you are under the influence of alcohol or drugs
or both.
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"2. You have no constitutional right to consult with an attorney regarding whether to
submit to testing.
"3. If you refuse to submit to and complete any test of breath, blood or urine hereafter
requested by a law enforcement officer, your driving privileges will be suspended for 1
year.
"4. If you submit to a breath or blood test requested by a law enforcement officer and
produce a completed test result of .15 or greater, your driving privileges will be
suspended for one year.
"5. If you submit to a breath or blood test requested by a law enforcement officer and
produce a completed test result of .08 or greater, but less than .15, the length of
suspension will depend upon whether you have a prior occurrence. A prior occurrence is
a prior test refusal, test failure or any conviction or diversion for an alcohol or drug
related conviction as defined in K.S.A. 8-1013, and amendments thereto, or any
combination thereof, whether before, on or after July 1, 2001.
"6. If you fail a test with an alcohol content of .08 or greater, but less than .15, and do not
have any prior occurrences, your driving privileges will be suspended for 30 days.
"7. If you have a prior occurrence and fail a test with an alcohol content of .08 or
greater, but less than .15, your driving privileges will be suspended for one year.
"8. Refusal to submit to testing may be used against you at any trial on a charge arising
out of the operation or attempted operation of a vehicle while under the influence of
alcohol or drugs, or both.
"9. The results of the testing may be used against you at any trial on a charge arising out
of the operation or attempted operation of a vehicle while under the influence of alcohol
or drugs, or both.
"10. After the completion of testing, you have the right to consult with an attorney and
may secure additional testing, which, if desired, should be done as soon as possible and is
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customarily available from medical care facilities willing to conduct such testing."
(Emphases added.)
Cousins agreed to take a breath test on an Intoxilyzer 9000, and his breath sample
showed an alcohol content of 0.112. On April 16, 2018, the State charged Cousins with
one count of misdemeanor DUI; the State later amended the complaint to add a
misdemeanor charge of transporting an open container of alcoholic beverage.
Cousins moved to suppress the breath test results. In the motion, he argued that
Sperry's statement to him—per paragraph No. 1 of the DC-70—that Kansas law required
him to submit to a breath test was inaccurate because Cousins had a constitutional right to
withdraw his implied consent to such testing. He also argued that Sperry's statement—per
paragraph No. 8 of the DC-70—that refusing the breath test could be used against him at
a trial was both inaccurate and unduly coercive. Cousins argued that the district court
should exclude his breath test results because his consent to the test was involuntary.
The State filed a legal memorandum opposing the motion to suppress. In its
memorandum, the State contended that the DC-70 was not inaccurate or unduly coercive
and that Cousins' consent to the breath test was voluntary. In the alternative, the State
argued that the good-faith exception to the exclusionary rule prevented suppression of the
evidence. More specifically, the State asserted that "Trooper Sperry gave the DC-70
notices as they are currently given and the purpose of the exclusionary rule would not be
served to exclude the evidentiary breath test when the Trooper did not make a mistake."
The district court held a hearing on the motion to suppress on January 25, 2019. At
the hearing, the parties stipulated "that the only issue is the voluntariness of the
evidentiary breath test because of the DC-70 notices that were given," and the district
court admitted the DC-70 into evidence. The State argued that the DC-70 notices were
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not unduly coercive and, in the alternative, that the exclusionary rule should not apply to
exclude the test results.
In response, Cousins pointed out that in State v. Ryce, 303 Kan. 899, 944, 368 P.3d
342 (2016) (Ryce I), aff'd on reh'g 306 Kan. 682, 396 P.3d 711 (2017) (Ryce II), our
Supreme Court had recently held that individuals have a constitutional right to withdraw
implied consent and refuse to submit to a breath test. Cousins argued that when Sperry
told him that he was required to submit to the evidentiary breath test, Sperry misstated the
law and unduly coerced him into taking the test. He also asserted that the DC-70 advisory
that evidence of a breath test refusal could be used against him at trial rendered his
consent to the test involuntary. Cousins also argued that the good-faith exception to the
exclusionary rule did not apply in this case.
After hearing arguments, the district court found that the language in the DC-70
telling Cousins that he was required to submit to testing was not unduly coercive. The
district court took under advisement Cousins' argument about the unduly coercive nature
of being advised that a test refusal could be used against him at trial.
On February 7, 2019, the district court issued its final ruling from the bench.
Noting that the DC-70 referred to the civil consequences of refusing to submit to testing,
the district court again found that the language in the DC-70 that Cousins was required to
submit to testing did not mislead him into believing that he could not refuse the test.
Next, the district court found that State v. Bussart-Savaloja, 40 Kan. App. 2d 916, 198
P.3d 163 (2008), controlled the issue of whether using test refusal evidence at a later trial
violates an individual's constitutional rights. Bussart-Savaloja held there was no
constitutional right to refuse testing, so there was no constitutional right that would
exclude evidence of a test refusal at trial. 40 Kan. App. 2d at 928. Thus, the district court
rejected Cousins' argument that Sperry unduly coerced his consent to the breath test by
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stating that refusing to take the test could be used against him at a later trial. The district
court issued a written journal entry denying the motion to suppress on April 17, 2019.
On June 13, 2019, the district court held a bench trial on stipulated facts. The
district court found Cousins guilty of both charges. On July 25, 2019, the district court
sentenced Cousins to 6 months in jail for the DUI and 30 days in jail for transporting an
open container. The district court granted Cousins probation for 1 year after serving 48
hours in jail. Cousins timely appealed the district court's judgment.
DID THE DISTRICT COURT ERR BY DENYING COUSINS' MOTION TO SUPPRESS?
Cousins argues that Sperry unlawfully coerced him into consenting to and
submitting to a breath test, so the district court erred by denying his motion to suppress
the breath test results. More specifically, Cousins asserts that the following statements
made by Sperry and reflected in the DC-70 unduly coerced his consent: (1) Kansas law
"requires" drivers to submit to testing and (2) refusal to consent to testing may be used as
evidence at trial. In response, the State argues that the test results were admissible
because Cousins validly consented to the test, the test was properly administered as a
search incident to arrest, and the good-faith exception to the exclusionary rule applies to
allow the evidence even if requiring him to submit to the test was unconstitutional. In a
reply brief, Cousins asserts that this court should not consider the search incident to arrest
doctrine because the State did not argue that the doctrine applied in district court. Cousins
also argues that the good-faith exception should not apply in this case.
Generally, the standard of review for a district court's decision on a motion to
suppress has two parts. First, the appellate court reviews the district court's factual
findings to determine whether they are supported by substantial competent evidence.
Next, the ultimate legal conclusion is reviewed using a de novo standard. State v. Hanke,
307 Kan. 823, 827, 415 P.3d 966 (2018). But when, as here, the material facts supporting
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a district court's decision on a motion to suppress are not in dispute, only the second part
of the test matters and the appellate court has unlimited review over the district court's
legal conclusion about whether the evidence should be suppressed. 307 Kan. at 827.
We begin by examining the text of the applicable constitutional provisions. The
Fourth Amendment to the United States Constitution, made applicable to the states
through the Fourteenth Amendment, protects the "right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures." Our
Supreme Court has held that § 15 of the Kansas Constitution Bill of Rights provides the
same protections. State v. Boggess, 308 Kan. 821, 825-26, 425 P.3d 324 (2018).
Our Supreme Court has held that a breath test to determine a person's alcohol level
is a search subject to Fourth Amendment protections. State v. Jones, 279 Kan. 71, 76, 106
P.3d 1 (2005). So when Sperry sought to obtain a breath sample from Cousins to be used
as evidence in a criminal investigation, this action triggered Cousins' Fourth Amendment
rights. Sperry secured a breath test from Cousins without a warrant. A warrantless
government search is per se unreasonable unless it falls within a recognized exception to
the warrant requirement; those exceptions include consent and search incident to lawful
arrest. State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014).
Search incident to lawful arrest exception to the warrant requirement
The State argues on appeal that Cousins' breath test was properly administered as a
search incident to arrest. But the State did not make this argument in district court.
Generally, an appellate court does not consider issues not raised before the district court.
State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). At the hearing on the motion to
suppress, the prosecutor stipulated "that the only issue is the voluntariness of the
evidentiary breath test because of the DC-70 notices that were given." By so stipulating,
the State represented that whether this was a proper warrantless search incident to arrest
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was not before the district court. Thus, we will not consider the State's appellate
argument that the breath test was proper as a search incident to arrest.
The record does not reflect why the State stipulated in district court that the only
issue was the voluntariness of Cousins' consent to the breath test based on the DC-70
notices. In Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 560(2016), the United States Supreme Court held that the Fourth Amendment permits
warrantless breath tests incident to arrests for drunk drivers but not warrantless blood
tests. 136 S. Ct. at 2184-85. The search incident to a lawful arrest exception to the
warrant requirement is applied categorically, rather than on a case-by-case basis. 136 S.
Ct. at 2176. There does not appear to be any dispute that Sperry had probable cause and
lawfully arrested Cousins for DUI. Had the State tried to introduce the evidence of
Cousins' breath test results under the search incident to arrest exception to the warrant
requirement, then Cousins' consent to the test and the language of the implied consent
advisories would not have mattered on whether the results were admissible. See K.S.A.
2019 Supp. 8-1001(e). But we agree with Cousins that the State waived any argument on
the search incident to arrest exception and we will not consider the issue on appeal.
Consent exception to the warrant requirement
Turning to the motion to suppress the breath test results based on lack of consent,
the State bears the burden to prove that a consent to search was voluntary. State v.
Thompson, 284 Kan. 763, 776, 166 P.3d 1015 (2007). Generally, a valid consent requires:
(1) clear and positive testimony that the consent was unequivocal, specific, and freely
given, and (2) the absence of duress or coercion, express or implied. 284 Kan. at 776.
Although the voluntariness of a consent to a search is usually a question of fact to be
reviewed for substantial competent evidence, whether consent is voluntary is a question
of law when the facts are undisputed. Jones, 279 Kan. at 77.
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Kansas' implied consent statute, K.S.A. 2019 Supp. 8-1001, provides a mechanism
for obtaining consent during a DUI investigation, and Sperry followed this procedure in
seeking Cousins' consent to submit to a breath test. At the time of Cousins' DUI arrest,
K.S.A. 2017 Supp. 8-1001(a) provided that any person who operates or attempts to
operate a motor vehicle in Kansas "is deemed to have given consent, subject to the
provisions of this article, to submit to one or more tests of the person's blood, breath,
urine or other bodily substance to determine the presence of alcohol or drugs." Effective
July 1, 2018, about three and a half months after Cousins' DUI arrest, the statute was
amended to read that any person who operates or attempts to operate a motor vehicle in
Kansas "may be requested, subject to the provisions of this article, to submit to one or
more tests of the person's blood, breath, urine or other bodily substance to determine the
presence of alcohol or drugs." (Emphasis added.) See K.S.A. 2018 Supp. 8-1001(a).
Likewise, at the time of Cousins' DUI arrest, K.S.A. 2017 Supp. 8-1001(k)(1)
provided that before an officer can administer testing, the officer must give oral and
written notice that "Kansas law requires the person to submit to and complete [testing] to
determine if the person is under the influence of alcohol or drugs, or both." (Emphasis
added.) K.S.A. 2017 Supp. 8-1001(k)(7) provided that before an officer can administer
testing, the officer must give oral and written notice that "refusal to submit to testing may
be used against the person at any [DUI] trial."
Effective July 1, 2018, the advisory that was found at K.S.A. 2017 Supp. 8-
1001(k)(1) was eliminated from the notices an officer must give to a driver before asking
for consent for breath testing. See K.S.A. 2018 Supp. 8-1001(c). As a result of the
statutory changes, the current DC-70 for breath testing no longer includes a notice that
Kansas law "requires" the person to submit to testing. But the current DC-70 for breath
testing still contains a notice to drivers that refusal to submit to testing may be used as
evidence in a DUI trial. See K.S.A. 2019 Supp. 8-1001(c)(4); Kansas Department of
Health and Environment DC-70 (Rev. 07/19).
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Telling Cousins that he was required to submit to testing
In Ryce I, our Supreme Court held that "when an officer requests a search based
solely on having deemed that the driver had impliedly consented to the search, the driver
has a right grounded in the Fourth Amendment to refuse to submit." 303 Kan. at 944.
Cousins argues that under the holding in Ryce I, the advisory that "Kansas law (K.S.A. 8-
1001) requires you to submit to and complete one or more tests of breath, blood or urine
to determine if you are under the influence of alcohol or drugs or both" is a misstatement
of the law. (Emphasis added.) He contends that a person cannot be required to do
something that he or she has a constitutional right to refuse to do.
The voluntariness of a person's consent is determined from the totality of the
circumstances, but knowledge of the right to refuse consent is one factor to be
considered. State v. Nece, 303 Kan. 888, 893, 367 P.3d 1260 (2016) (Nece I), aff'd on
reh'g 306 Kan 679, 396 P.3d 709 (2017) (Nece II). A person's consent to alcohol testing
may be involuntary if "it was obtained by means of an inaccurate, and therefore
coercive, advisement." (Emphasis added.) Nece I, 303 Kan. at 897.
Other than the general discussion of the law in Ryce I and Nece I, neither party
cited a case in their briefs that we consider directly on point to the issue Cousins raises in
this appeal. But after briefing was completed, this court considered the argument that
telling a driver that Kansas law "requires" the driver to submit to testing is inaccurate and
unduly coercive in State v. Homolka, No. 121,904, 2020 WL 3885698, at *3-4 (Kan.
App. 2020) (unpublished opinion). In that case, Kansas state troopers encountered Robert
Homolka while investigating a hit-and-run accident possibly involving a drunk driver.
One of the troopers asked Homolka if he would submit to blood testing, and he agreed.
As happened to Cousins, the trooper gave Homolka the DC-70 advisories, which
contained the language that "'Kansas law (K.S.A. 8-1001) requires you' to submit to the
testing." 2020 WL 3885698, at *1. Homolka agreed to the blood test. After the State
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charged Homolka with DUI, he moved to suppress the test results, arguing that his
consent was involuntary.
The district court found, among other things, that "[b]ecause the trooper told
Homolka that Kansas law 'required' him to submit to testing, the consent was coerced."
2020 WL 3885698, at *2. In the interlocutory appeal by the State, this court noted:
"In so finding, the district court relied on how State v. Edgar, 296 Kan. 513, 294 P.3d 251(2013), and City of Lenexa v. Gross, No. 96,367, 2007 WL 2043580 (Kan. App. 2007)
(unpublished opinion), differentiated between the words 'required' and 'requested.' In
Gross, 2007 WL 2043580, at *4, a panel of our court held that telling a driver she was
'"required by law"' to take a preliminary breath test, despite the fact refusal was an option,
was coercive. In Edgar, again involving a PBT, the officer incorrectly told Edgar he had
no right to refuse a PBT. Our Supreme Court found the misstatement of the law
'transformed the [request for a PBT] into an involuntary search' because the driver would
understand he had no choice. 296 Kan. at 530.
"Here, Homolka argued, and the district court agreed, the language of the implied
consent advisory . . . informing a driver that he or she is required to submit to a blood test
was coercive based on Edgar and Gross. 'Required,' in the opinion of the district court,
did not represent choice, while 'requested' did. Thus, the language of the DC-70 was
coercive because Homolka consented after being told he was required to consent to the
test." 2020 WL 3885698, at *3.
The State argued in Homolka, as it does here and as the district court found here,
that using the word "requires" was not coercive because the DC-70 also relates the civil
consequences of a driver's license suspension by refusing to submit, thereby suggesting
that test refusal is an option. 2020 WL 3885698, at *3. But as the Homolka court noted:
"No Kansas law requires a DUI suspect to submit to a blood draw. To the contrary, a
defendant has a constitutional right not to submit to testing without a warrant
commanding it, and the right to refuse a test is a 'fundamental Fourth Amendment right.'
Ryce I, 303 Kan. at 951. Our Supreme Court recognized the implied consent advisory
11
misstated the law by stating Kansas law requires a person submit to testing.
'Significantly, while the statutory implied consent advisory informs the driver he or she is
required to take a blood alcohol content test or face consequences, K.S.A. 2016 Supp. 8-
1001(k), an officer can only "request" that a driver submit to a test, K.S.A. 2016 Supp. 8-
1001 (b), (c).' Ryce II, 306 Kan. at 695.
"In Ryce II, our Supreme Court reiterated that consent is not voluntary if it was
obtained '"by means of an inaccurate, and therefore coercive, advisement."' 306 Kan. at
687. Because K.S.A. 2017 Supp. 8-1001 does not require a person to submit to a test, the
trooper misstated the law when he told Homolka that Homolka was required to submit to
a blood test. Under the totality of the circumstances, the district court did not err by
considering the coercive effect of telling Homolka he was 'required' to submit to testing."
2020 WL 3885698, at *4.
In two opinions filed one week after the opinion in Homolka was filed, this court
considered the argument that telling a driver that he or she is required to submit to testing
is inaccurate and unduly coercive in the context of an administrative driver's license
suspension case. In Sandate v. Kansas Dept. of Revenue, 58 Kan. App. 2d 450, 463, 471
P.3d 700 (2020), a case addressing the 2016 version of K.S.A. 8-1001, this court held that
a DC-70 that states Kansas law "requires" a driver to submit to testing, when considered
in context with the remaining provisions of the form, "makes it clear that a driver's choice
to submit to testing under the implied consent framework is voluntary." See also Fisher v.
Kansas Dept. of Revenue, 58 Kan. App. 2d 421, 428-29, 471 P.3d 710 (2020) (same
analysis and holding). In both Sandate and Fisher, this court upheld the administrative
suspension of a driver's license even though the DC-70 used in each case stated that
Kansas law requires drivers to submit to testing. Sandate, 58 Kan. App. 2d at 462-63;
Fisher, 58 Kan. App. 2d at 428-30.
There are fundamental differences between an administrative driver's license
suspension case and a criminal case. In a driver's license suspension case, "substantial
compliance" with statutory notice provisions is usually sufficient. Barnhart v. Kansas
Dept. of Revenue, 243 Kan. 209, 213, 755 P.2d 1337 (1988). The statutes governing
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driver's license suspension proceedings are remedial in nature and "shall be liberally
construed to promote public health, safety and welfare." K.S.A. 2019 Supp. 8-1001(u).
But here we are not concerned with whether Cousins can maintain his driving privileges.
We are concerned with Cousins' Fourth Amendment right in a criminal proceeding and
whether he voluntarily waived the warrant requirement by consenting to a breath test. On
the precise issue before us in Cousins' case, Homolka is the more instructive precedent.
We agree with the Homolka court that an implied consent advisory telling a driver
that Kansas law "requires" drivers to submit to testing is an inaccurate statement of the
law. To the contrary, a driver has a fundamental Fourth Amendment right not to submit
to testing without a warrant commanding it. When the only basis for admitting test results
into evidence is the person's consent to testing, the Fourth Amendment requires that
consent to be voluntary. Consent is not voluntary if it was obtained by means of an
inaccurate, and therefore coercive, advisement. Nece I, 303 Kan. at 897; Homolka, 2020
WL 38856989, at *3-4.
There is more at stake here than whether Cousins can maintain his driving
privileges. To paraphrase this court's reasoning in Homolka, had Sperry begun his effort
to obtain consent to search Cousins' home or car by advising him that Kansas law
required him to submit to the search, we would almost certainly view that statement as
being unduly coercive. See 2020 WL 3885698, at *5. We see no significant difference for
purposes of Fourth Amendment analysis between that example and the facts here. Under
the totality of the circumstances, based on this inaccurate and coercive advisory, we find
that Cousins' consent to the breath test was involuntary and the breath test violated his
Fourth Amendment rights. The district court erred by holding otherwise. As a result, we
need not reach Cousins' additional claim that the advisory that refusal to submit to testing
may be used as evidence at trial was inaccurate and coercive.
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The Good-Faith Exception
The State argues that if this court finds that Cousins' breath test was obtained
without valid consent, the good-faith exception to the exclusionary rule applies to allow
the admission of the breath test results. Cousins disagrees.
The State raised the good-faith issue in district court and both parties argued their
respective positions on whether the exception applied to Cousins' case, but the district
court did not reach the issue because it found that Cousins' consent to the breath test was
voluntary. Both parties have repeated their arguments on appeal. There is no factual
dispute here as the relevant facts were stipulated in district court. At the hearing on the
motion to suppress, the only evidence before the district court was the DC-70 form
admitted as an exhibit. Cousins made no claim that his consent to the breath test was
involuntary except for the language in the DC-70. This court is in the same position to
view the stipulated evidence as the district court, and neither party argues there is any
reason to remand the case to the district court to resolve this issue. Whether the good-
faith exception applies to given facts is a question of law over which an appellate court
has unlimited review. State v. Schmidt, 53 Kan. App. 2d 225, 234, 385 P.3d 936 (2016).
Neither the Fourth Amendment to the United States Constitution nor § 15 of the
Kansas Constitution Bill of Rights expressly prohibits the use of evidence obtained in
violation of their respective provisions. Instead, to supplement the bare text of the Fourth
Amendment, the United States Supreme Court created the exclusionary rule as a deterrent
barring the introduction of evidence obtained in violation of the Fourth Amendment in
criminal prosecutions. See Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed.
652 (1914) (recognizing exclusionary rule in criminal prosecutions in federal court); see
also Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) (applying
exclusionary rule in state court prosecution through the Fourteenth Amendment).
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The purpose of the exclusionary rule is to protect Fourth Amendment rights
through deterrence, but it is not a personal constitutional right of a defendant. United
States v. Leon, 468 U.S. 897, 906, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). The United
States Supreme Court first recognized the good-faith exception to the exclusionary rule in
Leon, when the Court found that if law enforcement obtains evidence relying on a
warrant later found to be invalid, the evidence should not be excluded. 468 U.S. at 920-
21. The United States Supreme Court extended the Leon good-faith exception to the
exclusionary rule to include reasonable reliance by law enforcement upon a statute, even
if the statute is later found to be unconstitutional. Illinois v. Krull, 480 U.S. 340, 349-50,
107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987).
The Kansas Supreme Court adopted Krull's expansion of the Leon good-faith
exception to excuse a police officer's reasonable reliance on a statute in State v. Daniel,
291 Kan. 490, 500, 242 P.3d 1186 (2010). In Daniel, police arrested Cody S. Daniel and
searched her car under K.S.A. 22-2501(c), which, at the time, allowed a search of a
person's car incident to an arrest. Later, after Daniel appealed her conviction, K.S.A. 22-
2501(c) was found to be unconstitutional in Arizona v. Gant, 556 U.S. 332, 344, 129 S.
Ct. 1710, 173 L. Ed. 2d 485 (2009). But even though the search of Daniel's car was
unconstitutional, our Supreme Court found the officer's reliance on K.S.A. 22-2501(c)
was reasonable because of pre-Gant caselaw which supported such searches and affirmed
the district court's denial of the motion to suppress. Daniel, 291 Kan. at 505.
Noting that the good-faith exception is not unlimited, the Daniel court echoed the
United States Supreme Court's admonition in Krull that for the good-faith exception to
apply, an officer's reliance on a statute must be objectively reasonable. Daniel, 291 Kan.
at 500 (citing Krull, 480 U.S. at 355). Reliance on a statute is not objectively reasonable
if the Legislature "'wholly abandoned its responsibility to enact constitutional laws'"
when passing the statute. 291 Kan. at 500 (quoting Krull, 480 U.S. at 355).
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Returning to Cousins' case, both parties agree that State v. Perkins, 310 Kan. 764,
769-71, 449 P.3d 756 (2019), is important for our consideration because that case applied
the good-faith exception to admit evidence of a breath test after consent to the test was
found to be involuntary based on language in a DC-70. The Perkins court discussed
Daniel and found that it was analogous to the facts in that case:
"Similarly, here, there was no reason for the officer to know that K.S.A. 2012
Supp. 8-1025 would later be found unconstitutional or that the implied consent advisory
based on that law was coercive. The LEO followed the law as it existed at that time and
could not reasonably be expected to know that the statute later would be found
unconstitutional. Nor did the Legislature wholly abandon its duty to pass constitutional
laws, as argued by Perkins. We have held that the provisions in K.S.A. 8-1025 which
criminalized test refusal were unconstitutional, but we have not invalidated the entire
implied consent statutory scheme. Perkins' arguments to this effect are unavailing, and
we find that the good-faith exception to the exclusionary rule would save the evidence in
this case even though Perkins' consent to search was invalid." 310 Kan. at 770-71.
The State argues that Sperry, like the officer in Perkins, gave the current DC-70
notices, so suppressing Cousins' breath test results would not deter police misconduct.
Cousins argues that Perkins was wrongly decided because it misinterpreted United States
Supreme Court caselaw. But this court is bound by Kansas Supreme Court precedent
unless there is some indication that the court is departing from its earlier position, and
here there is not. See State v. Hayes, 57 Kan. App. 2d 895, 910, 462 P.3d 1195 (2020).
The thrust of Cousins argument on the good-faith issue is that, based on Ryce I and
Nece I, a reasonable law enforcement officer should have known that the DC-70 used at
Cousins' arrest was invalid. In Ryce I, the court held that K.S.A. 2014 Supp. 8-1025,
which imposed criminal penalties upon a motorist for refusing to submit to any method of
blood-alcohol testing, was facially unconstitutional because the statute was not narrowly
tailored to serve a compelling state interest. 303 Kan. at 963. In Nece I, the court held that
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a driver's consent to a breath test premised on the threat of criminal prosecution under
K.S.A. 2014 Supp. 8-1025 for test refusal was unduly coerced because the State could not
have constitutionally imposed criminal penalties for a test refusal. 303 Kan. at 889. But
the implied consent notices in the version of the DC-70 Sperry provided to Cousins had
no provision that advised him it was a crime to refuse to submit to testing, and it cannot
be said that our Supreme Court's holdings in Ryce I and Nece I control the outcome of
Cousins' case.
Before this court's 2020 decision in Homolka, we are aware of no Kansas appellate
court case that had ruled that the language in the DC-70 that Kansas law "requires" a
driver to submit to testing is inaccurate and unduly coercive. The law on this issue is
unsettled in Kansas with no Kansas Supreme Court decision directly on point. As a result,
a reasonable law enforcement officer would not have known that the DC-70 used at
Cousins' arrest was invalid based on Ryce I and Nece I. Finally, we note that the Homolka
court declined to apply the good-faith exception but only because the trooper testified at
the suppression hearing and the district court found his testimony to be "inaccurate and
evasive." 2020 WL 3885698, at *6. We do not have facts like that in Cousins' case.
In sum, the good-faith exception applies. Sperry read Cousins the DC-70 and gave
the implied consent advisories as they were statutorily worded at the time of the arrest.
See K.S.A. 2017 Supp. 8-1001(k). Sperry's reliance on the statute was objectively
reasonable. When Sperry read the implied consent advisories to Cousins, he was only
doing what he was required by law to do. Cousins makes no claim that the Legislature
abandoned its responsibility to enact constitutional laws when passing the statute in
question. Suppressing Cousins' breath test results would not serve the purpose of the
exclusionary rule, which is to deter police misconduct. Thus, while the district court erred
in finding that Cousins' consent to the breath test was voluntary under the totality of the
circumstances, we uphold the district court's decision to deny Cousins' motion to suppress
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the evidence. See State v. Overman, 301 Kan. 704, 712, 348 P.3d 516 (2015) (finding
district court's decision will be upheld if it is correct for any reason).
IS K.S.A. 2019 SUPP. 8-1001(N) UNCONSTITUTIONAL?
In his second issue, Cousins claims the statutory provision allowing test refusal
evidence to be used against a driver in a DUI trial is unconstitutional. See K.S.A. 2019
Supp. 8-1001(n). The State disagrees. But this court will not reach the merits of Cousins'
constitutional claim because he lacks standing to make it.
"The requirement that a party have standing is a component of subject matter
jurisdiction, which may be raised at any time, including upon the court's own motion.
Jurisdiction may not be waived. Standing is a question of law subject to unlimited review.
[Citations omitted.]" Creecy v. Kansas Dept. of Revenue, 310 Kan. 454, 459-60, 447 P.3d
959 (2019). To challenge the constitutionality of a statute,
"a person must 'show a cognizable injury and establish a causal connection between the
injury and the challenged conduct.' In order to show a cognizable injury, '"a party must
establish 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."' [Citations
omitted.]" 310 Kan. at 461.
Here, the evidence is undisputed that Cousins submitted to taking the breath test;
he did not refuse the test. Thus, no test refusal evidence was used against him at a later
trial. Cousins was not injured by application of the statutory provision, so he lacks
standing to challenge its constitutionality and this court lacks jurisdiction to consider the
issue in this appeal. We dismiss Cousins' claim for lack of jurisdiction.
Affirmed in part and dismissed in part.
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