State v. Dennis

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,052

STATE OF KANSAS,
Appellee,

v.

ROBERT DENNIS,
Appellant.


SYLLABUS BY THE COURT

1.
On a motion to suppress evidence, this court reviews the factual findings
underlying the trial court's suppression decision using a substantial competent evidence
standard and the legal conclusions drawn from those factual findings using a de novo
standard. This court does not reweigh evidence.

2.
Warrantless searches are considered unreasonable and invalid unless they fall
within a recognized exception to the warrant requirement. It is the State's burden to
demonstrate a warrantless search was lawful.

3.
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 protections. Instead, the exclusionary rule is a judicially
created remedy to prevent the use of unconstitutionally obtained evidence in a criminal
case.
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4.
The exclusionary rule operates to protect Fourth Amendment rights generally
through its deterrent effect upon law enforcement, rather than serving as a personal
constitutional right of the victim of an illegal search and seizure. It does not apply to
evidence obtained by police who acted in objectively reasonable reliance on K.S.A. 22-
2501(c) prior to 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).

5.
When it was effective, K.S.A. 22-2501 governed searches incident to arrest and set
forth the circumstances and purposes under which such searches could be conducted. An
officer's subjective understanding or articulation of K.S.A. 22-2501 as the legal basis for
a search incident to arrest is not determinative of whether there was objectively
reasonable reliance on the statute.

Review of the judgment of the Court of Appeals in an unpublished opinion filed February 4,
2011. Appeal from Butler District Court; DAVID A. RICKE, judge. Opinion filed May 3, 2013. Judgment
of the Court of Appeals reversing and remanding to the district court is reversed. Judgment of the district
court is affirmed. Case is remanded to the Court of Appeals with directions.

Michelle Davis, of Kansas Appellate Defender Office, was on the briefs for the appellant.

Joseph M. Penney and James R. Watts, assistant county attorneys, Steve Six, former attorney
general, and Derek Schmidt, attorney general, were on the briefs for appellee.

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The opinion of the court was delivered by

BILES, J.: The State seeks review of a divided Court of Appeals decision
suppressing drug evidence obtained during a vehicle search conducted incident to the
driver's arrest. That search occurred prior to Arizona v. Gant, 556 U.S. 332, 129 S. Ct.
1710, 173 L. Ed. 2d. 485 (2009), and both parties agree Gant rendered the search illegal.
But the State argues suppression is unnecessary and contrary to this court's decision in
State v. Daniel, 291 Kan. 490, 242 P.3d 1186 (2010), cert. denied 131 S. Ct. 2114 (2011).
In Daniel, we applied a good-faith exception to the exclusionary rule for pre-Gant
searches conducted under the then-existing authority of K.S.A. 22-2501(c) (search
incident to arrest for evidence of a crime). The panel majority refused to apply Daniel, in
part, because the officer did not testify that he relied on K.S.A. 22-2501(c) to conduct the
search. State v. Dennis, No. 101,052, 2011 WL 425987, at *3 (Kan. App. 2011)
(unpublished opinion). We granted review.

The panel majority erred when it found Daniel distinguishable. We hold that it
was unnecessary for the officer to specifically articulate K.S.A. 22-2501 as authority for
the search because application of a good-faith exception to the exclusionary rule is not
governed by a subjective inquiry. The question is whether an objectively reasonable
officer could rely on K.S.A. 22-2501. We agree with the State that the good-faith
exception applies. We reverse and remand this case to the Court of Appeals for resolution
of the remaining issues unaddressed in the panel's decision.

FACTUAL AND PROCEDURAL BACKGROUND

On November 16, 2007, Officer Matthew Meckel was parked in his patrol car,
watching an apartment complex he believed was associated with illegal drug use. While
doing so, Meckel learned that a parked vehicle at the complex belonged to Robert
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Dennis, whose driver's license was suspended. Meckel later observed the vehicle leave
the complex and stopped it for making an illegal turn at a nearby intersection. As the
vehicle pulled over, Meckel saw Dennis making movements towards the center console.
Dennis exited his vehicle, shut and locked the door behind him, and faced the officer in
what Meckel described as an "aggressive" or "offensive" manner.

Meckel said he approached Dennis and patted him down for officer safety, during
which Meckel saw what appeared to be an open beer bottle between the front seats of
Dennis' car. Meckel testified he asked Dennis if there was an open container in the
vehicle and Dennis replied, "'Yes.'" The officer arrested Dennis for transporting an open
container, handcuffed him, and sat him down on a nearby curb. Meckel then searched the
vehicle incident to the arrest.

The officer testified he observed "a Taco Tico or Taco Bell bag with suspicious
items hanging out the top" on the floorboard behind the driver's seat while retrieving the
beer bottle. One item in the bag was a stained or discolored rubber glove. Meckel said he
looked inside and saw a peeled lithium battery, which he knew from his training to be
associated with manufacturing methamphetamine. On the backseat, Meckel said he saw a
camp stove and a microwave oven, as well as a funnel, some tubing, a glass jar with
powder residue, and a number of plastic bags tied in knots. Meckel believed several of
these items were used to manufacture methamphetamine. He then contacted his sergeant
to assist with the search, which ultimately revealed additional drug paraphernalia and
manufacturing equipment. Some items tested positive for methamphetamine. Dennis was
charged with one count of manufacture of methamphetamine, one count of possession of
ephedrine with intent to use as a precursor, one count of possession of methamphetamine,
and one count of possession of drug paraphernalia with intent to manufacture.

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Before trial, Dennis moved to suppress the items found in his vehicle, challenging
both the validity of the stop and the officer's vehicle search incident to his arrest. At the
suppression hearing, Meckel testified he unlocked Dennis' vehicle to "search incident to
arrest and to get the beer bottle."

The district court denied Dennis' suppression motion. It found the officer's
testimony credible and the traffic stop supported by reasonable suspicion that a traffic
infraction had been committed. It further found the officer's initial pat-down was justified
for officer safety reasons, and that once Meckel saw the open beer bottle inside the
vehicle, which Dennis confirmed, there was probable cause to arrest Dennis. The court
then found the passenger compartment search proper as a search incident to arrest. At
trial, the jury convicted Dennis of all four counts.

On appeal to the Court of Appeals, Dennis claimed multiple trial errors including
that the district court should have suppressed the evidence obtained from the vehicle
search. In support of this argument, Dennis relied on Gant and State v. Henning, 289
Kan. 136, 147-49, 209 P.3d 711 (2009) (declaring K.S.A. 22-2501[c] unconstitutional
following Gant). Both cases were decided after Dennis was convicted. Gant held that a
warrantless vehicle search incident to arrest is prohibited under the Fourth Amendment to
the United States Constitution 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. 556 U.S. at 351. In Henning, our court adopted
that Fourth Amendment principle as a parallel protection under § 15 of the Kansas
Constitution Bill of Rights and declared K.S.A. 22-2501(c) unconstitutional. 289 Kan. at
148-49.

In both Gant and Henning, the respective courts invoked the judicially created
exclusionary rule and suppressed the evidence obtained from the illegal searches. Neither
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court considered whether a good-faith exception to the exclusionary rule would have
saved the illegally seized evidence. See Daniel, 291 Kan. at 492. In its Court of Appeals
brief, the State conceded the officer's search of the vehicle was illegal to the extent it
exceeded simply retrieving the beer bottle because it was not related to the crime of
arrest, which was transporting an open container. But the State argued that a good-faith
exception applied since the officer acted in accordance with clearly established law when
the search occurred.

While Dennis' appeal was pending with the Court of Appeals, this court decided
Daniel, in which we considered for the first time whether the good-faith exception to the
exclusionary rule applied to evidence obtained in a search incident to arrest later
invalidated by Gant and Henning. In holding a good-faith exception applied, we noted
the United States Supreme Court had recognized a good-faith exception in other
circumstances. Daniel, 291 Kan. at 492, 497-98. Daniel relied upon Herring v. United
States, 555 U.S. 135, 139-48, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009) (officer's
reasonable reliance on negligently maintained police records); Illinois v. Krull, 480 U.S.
340, 349-50, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987) (officer's reliance on statute); and
United States v. Leon, 468 U.S. 897, 922-23, 104 S. Ct. 3405, 82 L. Ed. 2d 677, reh.
denied 468 U.S. 1250 (1984) (officer's reliance on facially valid warrant).

We noted further that before Daniel, this court had applied a good-faith exception
when the officer relied on a warrant subsequently determined to be unsupported by
probable cause in State v. Hoeck, 284 Kan. 441, 455-65, 163 P.3d 252 (2007). Daniel,
291 Kan. at 492, 497. We held that our prior precedent compelled recognizing a good-
faith exception "when it can be determined the officer conducting the search incident to
arrest was acting in objectively reasonable reliance on K.S.A. 22-2501(c)." 291 Kan. at
493. We held further that this exception was applicable to searches occurring before Gant
was decided on April 21, 2009. Daniel, 291 Kan. at 493.
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The release of Daniel sparked additional briefing in Dennis' appeal. Ultimately, a
divided Court of Appeals held that the district court should have suppressed the evidence
from the vehicle search. The majority refused to apply the good-faith exception,
reasoning that Daniel did not control. It justified this outcome by observing that the
officer did not testify that he was relying on K.S.A. 22-2501(c) when conducting the
search, that the search-incident-to-arrest caselaw was unsettled at the time of the search,
and that Dennis was not within the "immediate presence" of the passenger compartment
when it was searched, as specified by the statute. Dennis, 2011 WL 425987, at *3.

Dissenting, Judge Melissa Standridge remarked that the facts in Dennis were
"strikingly similar" to those in Daniel and that the circumstances noted by the majority to
deviate from Daniel were "distinctions without a difference and therefore fail to justify
the majority's decision to depart from applicable, and mandatory, Kansas Supreme Court
precedent." Dennis, 2011 WL 425987, at *7 (Standridge, J., dissenting).

We granted the State's petition for review. Our jurisdiction arises from K.S.A. 20-
3018(b) (review of Court of Appeals decision).

ANALYSIS

Standard of Review

Our review of an evidence suppression issue is bifurcated. Without reweighing the
evidence, the appellate court first examines the district court's findings to determine
whether they are supported by substantial competent evidence. State v. Sanchez-Loredo,
294 Kan. 50, 54, 272 P.3d 34 (2012). The district court's legal conclusions are then
reviewed de novo. If there are no disputed material facts, the issue is a question of law
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over which the appellate court has unlimited review. 294 Kan. at 54. In Dennis' case, the
facts material to the legal issues on review are not in dispute, so the only remaining
inquiry is whether the appropriate remedy is to suppress the evidence seized. This is a
question of law.

Discussion

The Fourth Amendment guarantees the right to be free from unreasonable searches
and seizures. This court interprets § 15 of the Kansas Constitution Bill of Rights, which
specifically addresses searches and seizures, as providing the same protection. Daniel,
291 Kan. at 498. Warrantless searches are considered unreasonable unless they fall within
a recognized exception to the warrant requirement, such as consent, search incident to
lawful arrest, stop and frisk, probable cause plus exigent circumstances, the emergency
doctrine, inventory searches, plain view or feel, and administrative searches of closely
regulated businesses. State v. Fitzgerald, 286 Kan. 1124, 1127, 192 P.3d 171 (2008). The
State bears the burden to prove a warrantless search was lawful. Daniel, 291 Kan. at 496.

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 Davis v.
United States, 564 U.S. __, 131 S. Ct. 2419, 2426-27, 180 L. Ed. 2d 285 (2011). In
Kansas, our court has similarly recognized the exclusionary rule in criminal proceedings
as an appropriate remedy for an unlawful search. See Daniel, 291 Kan. at 496. But
neither the Fourth Amendment nor §15 of the Kansas Constitution Bill of Rights
expressly prohibits the use of evidence obtained in violation of their respective
protections. 291 Kan. at 496. Exclusion is not a personal constitutional right; rather, its
purpose is to deter future violations by the State. Davis, 131 S. Ct. at 2426; Daniel, 291
Kan. at 496. Accordingly, exceptions to the exclusionary rule exist. See 291 Kan. at 492.
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The search at issue in this case occurred on November 16, 2007, which predates
Gant. And at that time, a police officer would have reasonably relied on K.S.A. 22-2501
for the permissible circumstances, purposes, and scope of a search incident to arrest in
Kansas. State v. Anderson, 259 Kan. 16, 19, 910 P.2d 180 (1996). The 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 the fruits, instrumentalities or evidence of a crime."
(Emphasis added.) K.S.A. 22-2501.

Notably, an earlier version of K.S.A. 22-2501 limited officers to searching for
evidence of "the" crime rather than evidence of "a" crime. (Emphasis added.) K.S.A. 22-
2501 (Furse 1995). But the scope of a permissible search was broadened in 2006 to
include the language quoted above. See L. 2006, ch. 211, sec. 8. No Kansas case had
addressed the validity of the 2006 amendment changing "the" to "a" before the officer
searched Dennis' vehicle.

In Daniel, this court considered whether to apply a good-faith exception for
searches governed by K.S.A. 22-2501(c). It adopted the rule set out by the United States
Supreme Court in Krull, in which the exception was held to apply to an officer's good-
faith reliance on a statute permitting warrantless administrative searches before the
statute was invalidated. We held that the exclusionary rule did not apply to evidence
obtained in a search incident to arrest by an officer who acted in objectively reasonable
reliance on K.S.A. 22-2501(c) before the United States Supreme Court's Gant decision.
Daniel, 291 Kan. at 493.
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But the Court of Appeals majority determined Daniel did not control the outcome
in Dennis' case for three reasons: (1) The officer made no specific claim of reliance on
K.S.A. 22-2501(c); (2) the State did not argue reliance on K.S.A. 22-2501(c) until its
supplemental brief; and (3) unlike Daniel, Dennis argued the vehicle was no longer
within Dennis' "'immediate presence'" at the time of the search. Dennis, 2011 WL
425987, at *3. In attempting to differentiate the case from Daniel, the panel majority
stated:

"Here, we must engage in an analysis of a different sort; the issue here turns not
on whether the officer could have objectively relied on the constitutionality of the statute,
but rather on whether the officer could have objectively relied on existing case law in
conducting his search of Dennis' vehicle. We have concluded he could not, and therefore
the State is not entitled to a good-faith exception to the exclusionary rule." (Emphasis
added.) Dennis, 2011 WL 425987, at *4.

We hold that the Court of Appeals majority erred in its rationale that Daniel is not
applicable to this case.

In finding that Meckel did not rely on the then-existing K.S.A. 22-2501(c) as the
authority for his search, the panel majority looked to the officer's testimony at the
suppression hearing for his subjective reliance on the statute, i.e., a statement by the
officer that would have proved he was actually relying on the statute. It noted the officer
only testified that he entered the vehicle to "search incident to arrest and to get the beer
bottle." The majority then made a factual determination from this bit of testimony that
"the officer here apparently was either unaware of [K.S.A. 22-2501] or otherwise did not
rely thereon in conducting his search." Dennis, 2011 WL 425987, at *5. But subjective
reliance is not at issue in these instances.

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The good-faith exception to the exclusionary rule requires "'objectively reasonable
reliance'" by the officer. Daniel, 291 Kan. at 500. This standard was adopted by the
Supreme Court in Leon, in which it explained:

"We emphasize that the standard of reasonableness we adopt is an objective one
. . . 'Grounding the modifications in objective reasonableness . . . retains the value of the
exclusionary rule as an incentive for the law enforcement profession as a whole to
conduct themselves in accord with the Fourth Amendment.'" 468 U.S. at 919 n.20.

The panel majority mistakenly believed the officer had to literally testify at the
suppression hearing that he was searching incident to arrest pursuant to K.S.A. 22-
2501(c) for Daniel to apply because this court's caselaw at the time of the search made
clear that K.S.A. 22-2501 controlled the permissible circumstances, purposes, and scope
of any search incident to arrest. See, e.g., Anderson, 259 Kan. 16, Syl. ¶ 3; see also State
v. Conn, 278 Kan. 387, Syl. ¶ 1, 99 P.3d 1108 (2004) (search incident to arrest may only
be conducted for the purposes listed in the statute).

When the officer testified that his search of Dennis' vehicle was a "search incident
to arrest," that testimony necessarily carried with it an understanding that his authority for
that search emanated from K.S.A. 22-2501. See Anderson, 259 Kan. at 23. The officer
was not required to actually recite the statute from the witness stand for that statute to be
considered in an analysis of his objectively reasonable reliance on its authority to support
the vehicle search. The panel majority erred by imposing this testimonial obligation on
the officer and using a subjective inquiry as the linchpin for this portion of its analysis.

The panel majority also erred factually when it concluded that the State did not
argue that the officer relied on K.S.A. 22-2501(c) until the State filed its supplemental
brief in response to our Daniel decision. Dennis, 2011 WL 425987, at *3. The record on
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appeal shows the State noted the existence of K.S.A. 22-2501(c) and specifically asserted
the officer's reliance on it in its opening appellate brief, stating:

"In this case, the Kansas legislature enacted amendments to K.S.A. 22-2501(c) in July of
2006 . . . . This change was designed to broaden the searches authorized in Kansas by
statute to conform to the standard set by the U.S. Supreme Court in [New York v. Belton,
453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981),] and its progeny. . . . Officer
Meckel, in this case, acted in reliance not only on the clearly established case law both of
the Kansas and U.S. Supreme Court, he acted in reliance on Kansas statute." (Emphasis
added.)

The State then went on to defend the officer's search based on the caselaw existing at the
time it was conducted to address Dennis' constitutional arguments.

The panel majority further erred when it held that state and federal caselaw in
effect at the time of the search of Dennis' vehicle was not sufficiently settled to permit
application of a good-faith exception for the vehicle search. In support of this
proposition, the panel majority cited State v. Vandevelde, 36 Kan. App. 2d 262, 138 P.3d
771 (2006), as "the most recent case addressing the issue" in Kansas, and it characterized
the holding in Vandevelde as making "reasonably clear" that "removal of the defendant
from the vehicle invalidated a subsequent search of that vehicle." (Emphasis added.)
Dennis, 2011 WL 425987, at *5.

But the Vandevelde court made no such holding. It was an officer safety case
under subsection (a) of the pre-2006 version of K.S.A. 22-2501, not subsection (c) of the
post-2006 amendments at issue in Dennis' appeal. And Vandevelde addressed only
whether the authority for a search incident to arrest based upon officer safety was
applicable after the arrestee had been handcuffed and placed inside a patrol car. The court
found it was not because the arrestee had been secured and was no longer a threat to
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officer safety. See 36 Kan. App. 2d at 274-75. Vandevelde had no application to a search
incident to arrest for evidence of a crime under K.S.A. 22-2501(c), which is the issue in
Dennis' appeal.

The panel majority also found the federal caselaw unsettled at the time the officer
searched Dennis' car based upon what the majority perceived to be divisions within the
United States Supreme Court decision in Thornton v. United States, 541 U.S. 615, 124 S.
Ct. 2127, 158 L. Ed. 2d 905 (2004). And based on that, the panel majority concluded that
the more recent Vandevelde decision determined the "settled" nature of the law rather
than K.S.A. 22-2501(c), which it characterized as being "of dubious constitutionality."
Dennis, 2011 WL 425987, at *5. But it is unnecessary for us to review the validity of that
analysis because after Dennis was decided, the United States Supreme Court released
Davis, 131 S. Ct. at 2429, in which it held that a good-faith exception for Fourth
Amendment purposes applied based on an officer's objectively reasonable reliance on
binding federal court precedent in the jurisdiction in which the search occurred.

Using the Davis rubric, we can easily look to pre-Gant decisions by the Tenth
Circuit Court of Appeals to determine the settled nature of that circuit's precedent, which
made clear that a search incident to arrest was proper "without regard to the fact that the
search occurred after Defendant had been restrained . . . and without regard to the nature
of the offense for which he was arrested." United States v. Humphrey, 208 F.3d 1190,
1202 (10th Cir. 2000); see also United States v. McCane, 573 F.3d 1037, 1041-42 (10th
Cir. 2009) (discussing pre-Gant Tenth Circuit precedent). Notably, the Davis Court also
endorsed this court's Daniel decision and its application of the good-faith exception based
upon objectively reasonable reliance on K.S.A. 22-2501(c). Davis, 131 S. Ct. at 2429 n.4.

Finally, we consider whether the Dennis majority erred in holding that the search
exceeded the scope of K.S.A. 22-2501 because it was not within Dennis' "immediate
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presence." In other words, regardless of the statute's constitutionality, whether K.S.A. 22-
2501 was applicable to this search. The State urges us to reject this rationale because,
among other reasons, it was not an argument Dennis preserved for appeal. The State is
correct.

As noted in Judge Standridge's dissent, Dennis did not mention K.S.A. 22-2501 to
support his claim of error or rely on the specific statutory language to make an argument
that the search exceeded the statute's permissible scope. Dennis, 2011 WL 425987, at *9.
His opening brief relied exclusively on the holdings in Gant and Henning, and he used
those cases only to argue the statute was unconstitutional. And even in his supplemental
brief to the Court of Appeals following our Daniel decision, Dennis mentioned K.S.A.
22-2501 only three times and again only in the context of Gant and Henning. Dennis,
2011 WL 425987, at *9. Dennis never contended the statute was inapplicable—only that
it was unconstitutional. Issues not briefed on appeal are deemed waived. State v. Phillips,
295 Kan. 929, 938, 287 P.3d 245 (2012). The panel majority erred in addressing a
statutory scope issue not raised by Dennis.

For these reasons, Daniel controls the outcome. We hold that the officer conducted
a search incident to arrest upon objectively reasonable reliance on the then-existing
authority found in K.S.A. 22-2501(c). The district court correctly denied Dennis' motion
to suppress. This holding requires that we remand to the Court of Appeals for
consideration of those issues on appeal that were determined moot when the panel
majority decided the suppression issue.

Reversed and remanded to the Court of Appeals with directions.