STATE OF KANSAS, Appellant, v. ALLEN R. JULIAN, Appellee.
No. 105,695
Supreme Court of Kansas
September 5, 2014
(333 P.3d 172)
Gregory D. Bell, of Forker Suter LLC, of Hutchinson, argued the cause and was on the brief for appellee.
KING, J.: We consider this case on a petition for review filed by Allen R. Julian. He contends that evidence seized from his automobile in a warrantless search incident to his arrest should be suppressed. The district court granted Julian‘s motion to suppress. The State filed an interlocutory appeal. A divided Court of Appeals panel held that the search was authorized by Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), and reversed the district court‘s suppression order. State v. Julian, No. 105,695, 2012 WL 1759405 (Kan. App. 2012) (unpublished opinion).
This was a warrantless search of a vehicle incident to arrest for the purpose of discovering evidence. At the time the search was conducted, searches incident to arrest in Kansas were governed by statute.
We conclude that by relying on Fourth Amendment caselaw rather than the Kansas statute governing searches incident to arrest, the district court and the Court of Appeals applied the incorrect legal standard to this case. In doing so, the Court of Appeals reached an incorrect result. The trial court reached the correct result, but it did so for the wrong reasons.
Factual and Procedural Background
The material facts are not in dispute.
On January 17, 2010, Rice County Sheriff‘s Deputy Jeff Pieplow stopped Allen Julian for driving a vehicle with a defective headlight. Pieplow had prior reports that Julian was involved in methamphetamine manufacture but, prior to the stop, had no grounds to believe Julian‘s car contained anything illegal.
As Pieplow approached Julian‘s car, he saw Julian make what he described as “furtive movements,” consisting of Julian raising a blanket and appearing to shove items underneath it. Pieplow removed Julian from the car and placed him under arrest when he could not produce proof of insurance. Incident to the arrest, Pieplow conducted a pat down search. He found a loaded firearm in
Pieplow placed Julian under arrest for carrying a concealed weapon, possession of marijuana, and possession of drug paraphernalia. Pieplow secured Julian in the back of his patrol car and went back to Julian‘s car to search it. He testified he was searching for more marijuana and items used to manufacture methamphetamine. Pieplow found a bowling bag containing items associated with the manufacture of methamphetamine.
In addition to the traffic violations for defective headlight and no proof of insurance, the State charged Julian with five felonies: (1) attempting to manufacture methamphetamine, (2) possession of pseudoephedrine, (3) possession of drug paraphernalia, (4) possession of marijuana, and (5) possession of a firearm.
Julian filed a motion to suppress the evidence recovered from his vehicle. The district court granted his motion. The State pursued an interlocutory appeal. The Court of Appeals reversed the suppression ruling by a 2-1 vote.
This court granted Julian‘s petition for review.
Standard of Review
If the material facts are not in dispute, review of a decision on a motion to suppress evidence is a question of law subject to de novo review. The State bears the burden to demonstrate a warrantless search was lawful. State v. Pettay, 299 Kan. 763, 768, 326 P.3d 1039 (2014).
Searches Incident to Arrest: 1969 to Present
The
A warrantless search incident to a lawful arrest is one of the exceptions to the warrant requirement of the
While it was in effect,
Although this case turns on application of
The year after Chimel was decided, Kansas adopted a statute pertaining to warrantless searches incident to arrest.
“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person‘s immediate presence for the purpose of
“(a) Protecting the officer from attack;
“(b) Preventing the person from escaping; or
“(c) Discovering the fruits, instrumentalities, or evidence of the crime.” L. 1970, ch. 129, sec. 22-2501.
When it was enacted,
In 1981, the United States Supreme Court applied Chimel to a warrantless search of an automobile incident to the arrest of an occupant of the vehicle. The Court held that when there has been a lawful arrest of the occupant of a vehicle, the officer “as a contemporaneous incident of that arrest” may search the passenger compartment of the vehicle and any containers found therein. New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981), reh. denied 453 U.S. 950 (1981).
Belton was widely interpreted to expand the authority to make a warrantless search of a vehicle incident to arrest. In fact, United States Supreme Court Justice Sandra Day O‘Connor later observed that “lower courts seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of
In State v. McClain, 258 Kan. 176, 184, 899 P.2d 993 (1995), this court observed: “Since its filing in 1981, Kansas courts have consistently applied Belton to allow an officer to search the passenger compartment of an automobile when its occupant is arrested.”
One year after our decision in McClain we decided Anderson, 259 Kan. 16. In Anderson, 259 Kan. at 22, we noted that in dealing with an issue involving a search incident to arrest “we need not discuss federal law further,” as federal caselaw applying the
“In Kansas, we have a statute that sets forth the permissible circumstances and purposes under which a search incident to arrest can be made. 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.” 259 Kan. at 22.
Since Anderson, this court has consistently held that
In 2006, the legislature amended
The precise reasons for this change are not known; however, some proponents of the amendment argued that changing “the” to “a” made Kansas law consistent with Belton. State v. Henning, 289 Kan. at 142-44.
In 2009, the United States Supreme Court held that warrantless vehicle searches incident to an arrest are prohibited unless “the
Two months after Gant was decided, this court found that, based on Gant, the 2006 amendment to
On July 1, 2011, the legislature repealed
The Lower Courts’ Decisions
Both the district court and the Court of Appeals declined to apply
The Court of Appeals majority acknowledged that
We do not concur in the Court of Appeals majority‘s determination that Julian did not argue the statute‘s applicability on appeal. Admittedly, the focus of argument by both Julian and the State has centered on Fourth Amendment caselaw and Gant in particular. However, Julian has consistently asserted the applicability of
Although he did not file a brief with the district court, the prosecuting attorney at the hearing on the motion to suppress argued the applicability of
Julian came to the Court of Appeals as the appellee, armed with a favorable ruling from the district court on his motion to suppress. Julian did not have the burden to prove the illegality of the search. Julian was not responsible for the reasoning the district court used to sustain his motion to suppress.
In his brief to the Court of Appeals, Julian included the following as part of his argument that the district court was correct to suppress the evidence:
“The permissible scope of a vehicle search incident to lawful arrest of an occupant has also been addressed by the Kansas courts. In State v. Anderson, 259 Kan. 16, 910 P.2d 1080 (1996), the court followed the long-held standard as outlined in Chimel with regard to the basic scope of car searches incident to lawful arrest, stating that the constitutionally permissible purposes of the search incident to lawful arrest must be as the current Kansas statutes set out, not extending the purpose of the search any further. Id. 23-24. The Court held that officers could conduct searches incident to lawful arrest for the three (3) purposes which were
enumerated within K.S.A. 22-2501 : (1) officer safety; (2) preventing an arrestee from escaping; or (3) discovering the fruits or instrumentalities, or evidence to support only the crime of arrest. Id.“However,
K.S.A. 22-2501 was amended in 2006 changing the word in subsection (c) from ‘the’ crime to ‘a’ crime. Senate Bill 431. L. 2006, ch. 211, sec. 8. This legislative change came on the heels of and completely undermined the Court‘s ruling in Anderson, and its observance of the long-standing Chimel rule. See State v. Henning, 289 Kan. 136, 145, 209 P.3d 711 (2009). The modification of the single word from ‘the’ to ‘a’ has resulted in countless unconstitutional vehicle searches incident to lawful arrest in this State. The practical effect of the statute‘s modification was that law enforcement officers were given unlimited access to any vehicle incident to the lawful arrest of an occupant for any reason.“After the Gant decision, the Kansas Supreme Court revisited the search incident to arrest issue and ruled that
K.S.A. 22-2501 was ‘facially unconstitutional under the Fourth Amendment and the search and seizure provisions of the Kansas Constitution Bill of Rights.’ Henning, 289 Kan. at 148. ‘The district judge was right to be suspicious of the statute‘s wording: its breadth cannot be reconciled with the narrowness of the search and seizure concept it was meant to codify, not automatically in a vehicle context nor in the context of any other area within immediate control of an arrestee.’ [289 Kan. at 149.]”
Rather than a “failure to argue the statute‘s applicability on appeal,” a fair reading of Julian‘s argument from the above-quoted excerpt of his brief is: Anderson held that the constitutionally permissible purposes of a search incident to arrest must be as set out in
Although the majority acknowledged that
Regardless that the parties may have focused their arguments on Fourth Amendment caselaw, for the Court of Appeals majority to reject applying
The Search of Julian‘s Vehicle
The broadened authority to search occasioned by the 2006 amendment to
In all these cases, the sole basis offered to justify the search was that it was authorized as a search incident to arrest. In all of these cases, the court found
Most recently, in State v. Pettay, this court considered for the first time the authorized scope of a search incident to arrest under
In his petition for review, Julian argued that “any search under
The search of Julian‘s car took place on January 17, 2010. At that time
Julian‘s case is the first search incident to arrest case this court has considered where the search was conducted (1) after the 2006 amendment to the statute, (2) after the United States Supreme Court‘s decision in Gant, and (3) prior to the 2011 repeal of
The sole basis offered to justify the search of Julian‘s car is as a search for evidence incident to arrest. The State‘s position, approved by the Court of Appeals, that Gant serves as authority permitting this search is unavailing.
The State has argued throughout this proceeding that Gant and Henning had the effect of reviving the pre-2006 version of
No argument has been made that this case is subject to any exception to the exclusionary rule. At no time has the State argued that this case is subject to the good-faith exception to the exclusionary rule. Such an argument would be of no avail as this court has previously noted on multiple occasions such exception could only be considered to apply to searches conducted prior to the date Gant was decided. See Carlton, 297 Kan. at 646-47; Karson, 297 Kan. at 640; Dennis, 297 Kan. at 230; Daniel, 291 Kan at 493.
Conclusion
This was a warrantless search of a vehicle for evidence incident to arrest, conducted at a time when searches incident to arrest were governed in Kansas by statute, and the statute in effect at the time did not authorize searches for the purpose of discovering evidence. The search of Julian‘s vehicle was therefore illegal.
The judgment of the Court of Appeals reversing the district court is reversed. The judgment of district court is affirmed.
MORITZ, J., not participating.
DAVID J. KING, District Judge, assigned.