State v. Karson (Supreme Court)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,263

STATE OF KANSAS,
Appellee,

v.

DAVID CHRISTOPHER KARSON,
Appellant.


SYLLABUS BY THE COURT

1.
An appellant's death during the pendency of a petition for review from the
conviction of a criminal offense does not automatically abate the appeal. The issues may
be fully reviewed and adjudicated when doing so is in the public interest or when it is in
the interest of the appellant's family and estate.

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 protections. Instead, the judicially created exclusionary rule prevents the
use of unconstitutionally obtained evidence in some circumstances.


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4.
The exclusionary rule operates to protect Fourth Amendment rights generally
through its deterrent effect on 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 set forth the permissible circumstances,
purposes, and scope for a search incident to arrest. 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.

Review of the judgment of the Court of Appeals in 44 Kan. App. 2d 306, 235 P.3d 1260 (2010).
Appeal from Johnson District Court; THOMAS H. BORNHOLDT, judge. Opinion filed June 21, 2013.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.

Rachel L. Pickering, of Kansas Appellate Defender Office, was on the briefs for appellant.

Steven J. Obermeier, assistant district attorney, Ramsey A. Olinger, legal intern, Stephen M.
Howe, district attorney, Steve Six, former attorney general, and Derek Schmidt, attorney general, were on
the briefs for appellee.

The opinion of the court was delivered by

BILES, J.: A now deceased David Karson appealed his drug convictions, claiming
the incriminating evidence found in his car should have been suppressed because it was
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illegally obtained after his arrest on an outstanding traffic warrant. At the time of his
arrest, state law authorized a search incident to arrest for the purpose of "discovering the
fruits, instrumentalities or evidence of a crime." (Emphasis added.) K.S.A. 22-2501(c).
But after Karson was convicted, the United States Supreme Court held such searches
illegal in Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009); see
also State v. Henning, 289 Kan. 136, Syl. ¶ 6, 209 P.3d 711 (2009) (declaring K.S.A. 22-
2501[c] unconstitutional based on Gant).

Karson argues the district court erred when it denied his motion to suppress the
drug evidence obtained from the vehicle search, which was prophetically based on an
argument that the search incident to arrest was illegal. The State concedes the search was
illegal under Gant but asserts we do not need to decide this case because Karson died
while the appeal was pending. In the alternative, the State argues application of a good-
faith exception to the exclusionary rule based upon the police officer's objectively
reasonable reliance on a then-valid statute. Karson counters that the exception should not
apply, in part, because the State did not prove the officer actually relied on the statute.
We affirm Karson's convictions based on our two recent decisions in State v. Dennis, 297
Kan. __, 300 P.3d 81 (2013), and State v. Daniel, 291 Kan. 490, 242 P.3d 1186 (2010),
cert. denied 131 S. Ct. 2114 (2011).

FACTUAL AND PROCEDURAL BACKGROUND

The facts are not disputed. On March 12, 2007, Karson parked his car at a gas
station, where a nearby police officer performed a routine check of the car's license plate.
The officer determined the vehicle was registered to Karson and that Karson had an
outstanding arrest warrant for a traffic violation. The officer approached Karson,
confirmed his identity, and arrested him before securing him in the backseat of a patrol
car. The officer then began searching Karson's vehicle, where drugs and drug
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paraphernalia were discovered. The State charged Karson with one count of possession of
cocaine and one count of possession of drug paraphernalia.

Karson moved to suppress the drug evidence, arguing caselaw precedent limited
searches incident to arrest to those circumstances when the officer is searching for
evidence related to the crime of arrest. He claimed the 2006 amendment to K.S.A. 22-
2501(c) was unconstitutional under the Fourth Amendment to the United States
Constitution and § 15 of the Kansas Constitution Bill of Rights because it expanded the
permissible scope of the search from evidence of "the" crime to evidence of "a" crime.
See L. 2006, ch. 211, sec. 8. At the suppression hearing, the parties stipulated the officer
arrested Karson for an outstanding warrant and then searched the vehicle. The district
court denied the suppression motion. Karson was found guilty of both counts at a later
bench trial.

Karson appealed his convictions to the Court of Appeals, focusing exclusively on
the denial of his suppression motion. Before the appeal was decided, the United States
Supreme Court issued Gant, which held that warrantless vehicle searches were
unconstitutional unless the arrestee is within reaching distance of the passenger
compartment at the time of search or there is reasonable belief the vehicle contains
evidence of the crime of arrest. 556 U.S. at 351. Shortly thereafter, this court decided
Henning, which declared K.S.A. 22-2501(c) unconstitutional for too-broadly allowing an
officer searching a vehicle incident to arrest to search for evidence of a crime. 289 Kan.
at 148-49. Karson argues these cases mandate reversal of the denial of his suppression
motion and convictions.

The Court of Appeals affirmed the district court, holding that although the search
was unlawful, the good-faith exception to the exclusionary rule applies since the police
officer conducting the search acted in reasonable reliance on settled caselaw. State v.
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Karson, 44 Kan. App. 2d 306, 314-15, 235 P.3d 1260 (2010). Karson petitioned this
court for review, which we granted along with two companion cases involving the same
issue but containing differing outcomes and rationales. See State v. Dennis, No. 101,052,
2011 WL 425987 (Kan. App. 2011) (unpublished decision) (denying application of good-
faith exception), rev. granted May 31, 2011; State v. Carlton, No. 103,086, 2010 WL
2817048 (Kan. App. 2010) (unpublished decision) (reversing district court's suppression
order and applying good-faith exception), rev. granted May 17, 2011.

Karson died while this appeal was pending. The State now argues his death makes
our review unnecessary. We will address that issue first.

KARSON'S DEATH DOES NOT ABATE THIS APPEAL

We have previously held that a defendant's death during the pendency of a direct
appeal does not abate the appellate process. In State v. Jones, 220 Kan. 136, 137, 551
P.2d 801 (1976), we determined:

"A defendant's conviction is at this state in midair. The judgment of conviction is
not final due to the pendency of the appeal. While death moots the sentence, renders
impossible a new trial and abates any fine imposed, the matter of costs remain. . . . The
family of the defendant and the public have an interest in the final determination of a
criminal case." (Emphasis added.)

This has been a long-standing principle in Kansas. See State v. Salts, 288 Kan.
263, 265, 200 P.3d 464 (2009) (defendant's death 12 days after his notice of appeal was
filed did not render his direct appeal moot); State v. Burnison, 247 Kan. 19, 32, 795 P.2d
32 (1990) ("[I]n Kansas the death of a defendant does not abate his direct appeal as it is
in the interest of the public that the issues raised on appeal be adjudicated upon the
merits."); State v. Ellvin, 51 Kan. 784, Syl. ¶ 1, 33 P. 547 (1893) (court reviewed
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judgment for costs related to late defendant's conviction for selling intoxicating liquors);
State v. Fisher, 37 Kan. 404, 405, 15 P. 606 (1887) (considered merits of case after
defendant's death to resolve issues of costs).

The State points out that when a defendant's conviction is affirmed on direct
appeal and the defendant dies while the case is pending discretionary review, many states
dismiss the discretionary appellate proceeding and keep the judgment below intact. See
Surland v. State, 392 Md. 17, 19, 895 A.2d 1034 (2006). But in Kansas a party aggrieved
by a decision of the Court of Appeals has the statutory right to petition this court for
review. K.S.A. 20-3018(b). And if a petition is filed, the appeal does not become final
until either review is refused or the court issues its disposition on review. Supreme Court
Rule 8.03(i) (2012 Kan. Ct. R. Annot. 72). As a result, a defendant's right to petition this
court for review is an integral part of the appellate process.

More importantly, when review was granted, this case and its companions
collectively presented questions of public importance because they touch on rights under
the Fourth Amendment to the United States Constitution and § 15 of the Kansas
Constitution Bill of Rights relating to vehicle searches incident to an occupant's arrest.
And Karson's case is somewhat different factually because it is based solely on a search
incident to arrest based on an outstanding warrant. In other words, in Karson's case the
officer did not observe prior criminal activity before the arrest. In addition, Karson
directly challenged K.S.A. 22-2501's constitutionality before the district court, and his
case resulted in a published Court of Appeals decision. We hold that Karson's appeal
should not be abated because of his death in light of the public interest considerations
attendant to the case. We proceed next to the merits.

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THE GOOD-FAITH EXCEPTION APPLIES

Karson argues the evidence obtained by a search later found to be unconstitutional
should be suppressed. The State argues the good-faith exception applies, rendering
suppression unnecessary. We agree with the State and hold that the good-faith exception
applies because an objectively reasonable officer could have reasonably relied on K.S.A.
22-2501(c) at the time the search incident to arrest occurred.

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
over which the appellate court has unlimited review. 294 Kan. at 54. In Karson's case, the
facts material to the legal issues on review are not in dispute. The only remaining inquiry
is whether the appropriate remedy is to suppress the evidence seized. This is a question of
law.

Discussion

Warrantless searches are considered unreasonable and invalid unless they meet
one of the exceptions to the warrant requirement. One such exception is a search incident
to a lawful arrest. See 294 Kan. at 55 (citing State v. Fitzgerald, 286 Kan. 1124, 1127,
192 P.3d 171 [2008]). The officer searched Karson's vehicle incident to his arrest, but as
the State concedes that search was later found to be unconstitutional. See Gant, 556 U.S.
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at 351; Henning, 289 Kan. at 148-49. It is the State's burden to demonstrate a warrantless
search was lawful. Dennis, 297 Kan. ___, Syl. ¶ 2.

Evidence obtained in violation of the Fourth Amendment is subject to the
exclusionary rule, which was created by the United States Supreme Court to deter police
misconduct. Davis v. United States, 564 U.S. __, 131 S. Ct. 2419, 2426-27, 180 L. Ed. 2d
285 (2011). Kansas similarly recognizes 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
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.

In Daniel, this court considered whether to apply a good-faith exception for
warrantless searches incident to arrest authorized by K.S.A. 22-2501(c) before it was
determined to be unconstitutional. We adopted the rule set out by the United States
Supreme Court in Illinois v. Krull, 480 U.S. 340, 349-50, 107 S. Ct. 1160, 94 L. Ed. 2d
364 (1987), 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.

Karson makes two arguments to avoid application of the good-faith exception.
First, he claims that Gant and Henning require suppression based on the doctrine of
retroactivity, citing United States v. Gonzales, 578 F.3d 1130 (9th Cir. 2009). Second, he
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contends there was no evidence the officer actually relied on K.S.A. 22-2501(c) when
conducting the search incident to arrest in his case. Both of these arguments fail based on
subsequent caselaw.

In Davis, the United States Supreme Court made clear the good-faith exception is
applicable to searches conducted incident to arrest, even if Gant subsequently rendered
them illegal. The Court reasoned that Gant rendered the search unconstitutional, but
examined whether the purpose of the exclusionary rule would be met by excluding the
evidence obtained from the unlawful search. Davis, 131 S. Ct. at 2426-27. In declining to
exclude the evidence, the Davis Court noted that the binding federal court precedent in
the jurisdiction in which the search occurred allowed the search. Given the lack of police
culpability or evidence of recurring or systemic police negligence, the Court held that the
good-faith exception to the exclusionary rule applied. 131 S. Ct. at 2428-30. Based on
Davis, Karson's first argument that Gant and Henning require suppression is without
merit.

Similarly, Karson's contention that there is no evidence the officer relied on
K.S.A. 22-2501(c) fails. The record reflects that at the preliminary hearing that served as
the evidentiary basis for the suppression hearing, the officer was asked, "Officer, did you
have an occasion to search Mr. Karson's vehicle incident to that arrest?" And the officer
replied, "Yes, I did."

In Dennis, we recently held that an officer's subjective understanding or explicit
reference to K.S.A. 22-2501(c) as the basis for the search incident to arrest is not
determinative. To qualify for the good-faith exception, there needs to be objectively
reasonable reliance on the statute. 297 Kan. __, Syl. ¶ 5. We reasoned that our prior
caselaw had established that K.S.A. 22-2501 controlled the permissible circumstances,
purposes, and scope of any search incident to arrest, citing State v. Conn, 278 Kan. 387,
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Syl. ¶ 1, 99 P.3d 1108 (2004) (search incident to arrest may only be conducted for the
purposes listed in the statute) and State v. Anderson, 259 Kan. 16, 19, 910 P.2d 180
(1996). Dennis, 297 Kan. __, 300 P.3d at ___. Accordingly, we held that when an officer
said he conducted 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. 297
Kan. at __, 300 P.3d at ___.

We see no substantive difference between the officer's testimony in Dennis and the
officer's testimony at Karson's hearing. In both instances it was confirmed the officer was
conducting a search incident to arrest, so K.S.A. 22-2501 controlled the permissible
circumstances, purposes, and scope of the officer's search. The legal question then is
whether it was objectively reasonable for the officer to rely on K.S.A. 22-2501(c). Our
holdings in both Dennis and Daniel confirm that application of a good-faith exception
was appropriate under the circumstances because it was objectively reasonable for the
officer to rely on K.S.A. 22-2501(c) before the United States Supreme Court decided
Gant. Dennis, 297 Kan. __, Syl. ¶ 5; Daniel, 291 Kan. at 505.

Affirmed.