State v. Meitler

1
No. 111,697

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

TROY MEITLER,
Appellee.


SYLLABUS BY THE COURT

1.
Our state and federal Constitutions protect citizens from unlawful searches and
seizures.

2.
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.

3.
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.



2
4.
A law enforcement officer's subjective understanding or articulation of K.S.A.
2011 Supp. 8-1001(b)(2) as the legal basis to obtain a blood draw is not determinative of
whether there was objectively reasonable reliance on the statute.

5.
The exclusionary rule does not apply to evidence obtained by law enforcement
officers who acted in objectively reasonable reliance on K.S.A. 2011 Supp. 8-1001(b)(2)
prior to the Kansas Court of Appeals' decision in State v. Declerck, 49 Kan. App. 2d 908,
317 P.3d 794 (2014), rev. denied 299 Kan. __ (June 20, 2014).

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed March 27, 2015. Reversed
and remanded.

Andrew R. Davidson, assistant district attorney, and Derek Schmidt, attorney general, for
appellant.

Gregory D. Bell, of Forker Suter LLC, of Hutchinson, for appellee.

Before SCHROEDER, P.J., BUSER and ATCHESON, JJ.

SCHROEDER, J.: The State appeals the district court's granting of Troy B. Meitler's
motion to suppress evidence of a blood sample which revealed the presence of
methamphetamine and marijuana shortly after a two-vehicle collision. While driving his
car, Meitler crossed the centerline and collided with another vehicle which resulted in the
death of the other driver.

Meitler was severely injured in the collision, and while unconscious, his blood was
drawn at the hospital at the direction of Trooper John Maier. After criminal charges were
filed against Meitler, he filed a motion to suppress the results of the blood draw based on
3
a recent Kansas Court of Appeals decision in State v. Declerck, 49 Kan. App. 2d 908, 317
P.3d 794, rev. denied 299 Kan. __ (June 20, 2014), which found that K.S.A. 2011 Supp.
8-1001(b)(2) is unconstitutional. The district court suppressed the evidence from
Meitler's blood draw, ruling that Declerck applied to this case, and the good-faith
exception to the exclusionary rule did not apply.

We hold the district court erred in suppressing the evidence of Meitler's blood
draw because the good-faith exception to the exclusionary rule is applicable to the facts
of this case. Accordingly, we reverse the district court's order suppressing the evidence
and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On February 10, 2012, in Reno County, Trooper Stephen A. Morris of the Kansas
Highway Patrol responded to the scene of a two-vehicle accident. Upon his investigation,
Trooper Morris determined Meitler was the driver of the car who left his lane of traffic,
crossed the centerline, and caused the fatality collision. Although Trooper Morris
discovered no evidence of alcohol or drug impairment at that time, he also did not
observe any roadway features, conditions, or debris to explain why Meitler crossed the
centerline into oncoming traffic causing the collision. Meitler was flown to a Wichita
hospital because of the severity of his injuries.

Trooper Morris requested a Sedgwick County-assigned trooper go to the hospital
to obtain a sample of Meitler's blood. Trooper John Maier went to the hospital. Trooper
Maier was informed by the dispatcher that Meitler was involved in a fatality accident and
had been deemed the at-fault driver. Trooper Maier placed a copy of the implied consent
advisory on Meitler's body as he read the advisory aloud, but Meitler was unable to
follow along and appeared to be unconscious. Trooper Maier asked Meitler to consent to
the blood draw, and after receiving no response, marked "yes" on the advisory. Trooper
4
Maier then directed healthcare personnel to draw Meitler's blood. Trooper Maier took
custody of the blood sample which later tested positive for the presence of
methamphetamine and marijuana.

Meitler was charged with one count each of involuntary manslaughter pursuant to
K.S.A. 2011 Supp. 21-5405(a)(3), aggravated battery pursuant to K.S.A. 2011 Supp. 21-
5413(b)(2)(A), and driving under the influence of alcohol or drugs pursuant to K.S.A.
2011 Supp. 8-1567(a)(4). Meitler filed a motion to suppress the results of his blood test,
arguing that a fatality collision involving a driver who commits a traffic offense does not
provide probable cause the driver was impaired at the time of the collision. Meitler
argued to the district court that Declerck controlled and, because K.S.A. 2011 Supp. 8-
1001(b)(2) which permitted the blood draw was unconstitutional, Meitler's blood-test
results should be suppressed. See 49 Kan. App. 2d 908, Syl. ¶¶ 5-7 (finding K.S.A. 2011
Supp. 8-1001[b][2] unconstitutional).

The State countered that Declerck was inapplicable because, unlike Declerck who
refused the blood draw, Meitler was unconscious, and pursuant to the statute had
impliedly consented to the blood draw. Alternatively, the State argued that Trooper
Morris' and Trooper Maier's objective and reasonable reliance on K.S.A. 2011 Supp. 8-
1001(b)(2) before it was declared unconstitutional warranted applying the good-faith
exception to the exclusionary rule, thus permitting the results of the blood draw to be
admitted in evidence at trial. At Meitler's suppression hearing, the district court ordered
the parties to submit additional briefing on whether the good-faith exception to the
exclusionary rule should apply to prevent the evidence from being suppressed.

Upon receipt of the additional briefing, the district court issued an order
suppressing the results of the blood draw. First, the district court based its ruling on the
fact that Trooper Morris did not have probable cause to suspect Meitler was operating or
attempting to operate his vehicle under the influence of alcohol or drugs. Second, the
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district court found that, based upon Declerck, K.S.A. 2011 Supp. 8-1001(b)(2) was
unconstitutional as applied to this case. Finally, the district court determined the good-
faith exception to the exclusionary rule did not apply because Trooper Morris did not rely
on K.S.A. 2011 Supp. 8-1001(b)(2) when compelling Meitler's blood draw.

The State timely filed an interlocutory appeal.

ANALYSIS

K.S.A. 2011 Supp. 8-1001(b)(2) provides:

"(b) A law enforcement officer shall request a person to submit to a test or tests
deemed consented to under subsection (a): . . . . (2) if the person was operating or
attempting to operate a vehicle and such vehicle has been involved in an accident or
collision resulting in serious injury or death of any person and the operator could be
cited for any traffic offense, as defined in K.S.A. 8-2117, and amendments thereto. The
traffic offense violation shall constitute probable cause for purposes of paragraph (2).
The test or tests under paragraph (2) shall not be required if a law enforcement officer has
reasonable grounds to believe the actions of the operator did not contribute to the
accident or collision. The law enforcement officer directing administration of the test or
tests may act on personal knowledge or on the basis of the collective information
available to law enforcement officers involved in the accident investigation or arrest."
(Emphasis added.)

On appeal, the State acknowledges that in Declerck a panel of our court declared
K.S.A. 2011 Supp. 8-1001(b)(2) unconstitutional under the Fourth Amendment to the
United States Constitution. Declerck involved a rollover accident which resulted in the
death of the passenger in Declerck's vehicle. Declerck was injured and taken to the
hospital. At the hospital, Declerck refused to consent to a blood draw requested by an
investigating police officer after the officer informed her of the statutorily mandated
implied consent advisory. Upon Declerck's refusal, in keeping with K.S.A. 2011 Supp. 8-
6
1001(b)(2) and orders from his supervisor, the officer directed the hospital staff to draw a
blood sample from Declerck. Declerck was charged with involuntary manslaughter while
driving under the influence of alcohol or drugs pursuant to K.S.A. 2011 Supp. 21-
5405(a)(3) based on the evidence from her blood draw.

Declerck filed a motion to suppress the blood-draw evidence, and the district court
sustained the motion. The State filed an interlocutory appeal, and a panel of our court
affirmed the district court's suppression of the evidence. The panel held: "K.S.A. 2011
Supp. 8-1001(b)(2) is unconstitutional to the extent it requires a search and seizure absent
probable cause that the person was operating or attempting to operate a vehicle under the
influence of drugs or alcohol. A traffic infraction, plus an injury or fatality, without more,
does not constitute probable cause that drugs or alcohol were involved in the accident."
Declerck, 49 Kan. App. 2d 908, Syl. ¶ 6.

The Declerck panel acknowledged the potential application of the good-faith
exception to Declerck's circumstances, but it declined to consider the issue because the
State did not raise it before the district court. Thus, there were insufficient facts upon
which to evaluate whether this case merited application of the good-faith exception to the
exclusionary rule. 49 Kan. App. 2d at 922-23.

Here, while acknowledging Declerk's potential application, the State contends it is
inapplicable given one distinguishing fact. The State argues that in Declerck the driver
refused to consent to the blood draw, while in this case Meitler was unconscious and,
therefore, consented pursuant to K.S.A. 2011 Supp. 8-1001(a) ("a person who is dead or
unconscious shall be deemed not to have withdrawn a person's consent to such test or
tests"). Additionally, the State claims that even if K.S.A. 2011 Supp. 8-1001(b)(2) is
unconstitutional under the facts of this case, the good-faith exception to the exclusionary
rule applies to allow the admission of the blood draw obtained by Trooper Maier in
objectively reasonable reliance on that statute.
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For purposes of this opinion, we recognize Declerck determined that K.S.A. 2011
Supp. 8-1001(b)(2) is unconstitutional because it violates the Fourth Amendment, and we
presume that Declerck's holding is applicable under the facts of this case. As a result, the
sole question presented is whether the district court erred in concluding that the good-
faith exception did not apply under the facts of this case.

We begin the analysis by stating our standard of review:

"An appellate court generally reviews a trial court's decision on a motion to
suppress using a bifurcated standard. The trial court's findings are first reviewed to
determine whether they are supported by substantial competent evidence. Appellate
courts do not reweigh the evidence, assess the credibility of the witnesses, or resolve
conflicting evidence. The ultimate legal conclusion regarding the suppression of evidence
is then reviewed de novo. If the material facts in a trial court's decision on a motion to
suppress evidence are not in dispute, the question of whether to suppress is a question of
law over which an appellate court has unlimited review." State v. Martinez, 296 Kan.
482, 485, 293 P.3d 718 (2013) (citing State v. Johnson, 293 Kan. 1, 4, 259 P.3d 719
[2011]).

Our state and federal Constitutions protect citizens from unlawful searches and
seizures. State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied 131 S.
Ct. 2114 (2011). Here, the district court ordered suppression of Meitler's blood draw by
invoking the exclusionary rule. Neither the Fourth Amendment to the United States
Constitution nor § 15 of the Kansas Constitution Bill of Rights explicitly prohibits the use
of evidence obtained in contravention of their respective protections. State v. Dennis, 297
Kan. 229, Syl. ¶ 3, 300 P.3d 81 (2013). To remedy this situation, the United States
Supreme Court judicially created the exclusionary rule. 297 Kan. at 235 (citing Davis v.
United States, 564 U.S. ___, 131 S. Ct. 2419, 2426-27, 180 L. Ed. 2d 285 [2011]). This
rule generally provides that evidence obtained in violation of the Fourth Amendment is
barred from admission in criminal court proceedings. 297 Kan. at 235. Quite simply,
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"[t]he linchpin [of the exclusionary rule] is its deterrent effect upon law enforcement"
rather than serving as a personal constitutional right of the victim of an illegal search and
seizure. Daniel, 291 Kan. 490, Syl. ¶ 4.

The United States Supreme Court in Illinios v. Krull, 480 U.S. 340, 107 S. Ct.
1160, 94 L. Ed. 2d 364 (1987), discussed the good-faith exception to the exclusionary
rule. In Krull, the Supreme Court thoroughly explained the application of the good-faith
exception to the exclusionary rule. Under the good-faith exception, evidence seized by
the police in good-faith reliance on an unconstitutional statute may still be admitted into
evidence provided the police obtained the evidence by acting in an objectively reasonable
belief that their conduct did not violate the Fourth Amendment. 480 U.S. at 349-50. In
Krull, the Supreme Court stated that an unconstitutional statute cannot support
objectively reasonable reliance by law enforcement under two circumstances:

(a) If in the enactment, the legislature wholly abandoned its responsibility to
pass constitutional law; or
(b) The statutory provisions are such that a reasonable law enforcement officer
should have known the statute was unconstitutional. 480 U.S. at 355.

The Kansas Supreme Court endorsed the Krull precedent in Daniel, 291 Kan. 490, Syl ¶¶
7-8.

In our review of the question presented in this case, we will first discuss whether
the provisions of K.S.A. 2011 Supp. 8-1001(b)(2) are such that a reasonable law
enforcement officer should have known the statute was unconstitutional. Next, we will
address our colleague's dissent which argues that in passing K.S.A. 2011 Supp. 8-
1001(b)(2), the legislature wholly abandoned its responsibility to pass constitutional
legislation.

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In ruling that the good-faith exception to the exclusionary rule did not apply in this
case, the district court found that "Trooper Morris did not rely on the unconstitutional
statute in directing the blood draw." However, the testimony of Trooper Morris was clear
that he directed the blood draw because "by statute we're required on a serious accident
like this, with the injuries and death . . . we did the blood draws on the drivers to
determine alcohol or drugs." Later, Trooper Morris reiterated that the reason he directed
the blood draw was "[b]ecause of the statute. To follow—we had to follow the statute
that on an accident like this we're required to, to obtain these from drivers." Trooper
Morris also confirmed that at the scene, he determined Meitler's vehicle had crossed the
centerline. Similarly, Trooper Maier, who actually ordered the hospital personnel to draw
Meitler's blood, testified he had verified through dispatch Meitler had committed a traffic
offense and was the "at-fault driver." Trooper Maier was also aware of Meitler's injuries
and the other driver's death.

Our careful review of the record reveals substantial competent evidence Troopers
Morris and Maier relied on K.S.A. 2011 Supp. 8-1001(b)(2) when causing the hospital
personnel to draw Meitler's blood for testing. Thus, there was substantial competent
evidence to prove Troopers Morris and Maier were aware of the statute and they fully
complied with its provisions prior to ordering Meitler's blood draw.

On appeal, Meitler does not contend Troopers Morris and Maier failed to comply
with the requirements of K.S.A. 2011 Supp. 8-1001(b)(2). The record clearly reflects the
cause of the collision was Meitler's traffic offense of crossing the centerline, resulting in
the other driver's death and Meitler's serious injuries. Rather, Meitler's argument focuses
on aspects of the troopers' testimony suggesting they did not fully understand the
requirements of K.S.A. 2011 Supp. 8-1001(b)(2).

Meitler's argument is mistaken. In Dennis, our Supreme Court clarified the
objectively reasonable reliance standard by stating: "[I]t was unnecessary for the officer
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to specifically articulate [the statute] 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 [the statute]." 297
Kan. at 230. Thus, although it is apparent Troopers Morris and Maier relied on K.S.A.
2011 Supp. 8-1001(b)(2) when obtaining the blood draw, it is not essential they
subjectively understood the Fourth Amendment implications of this statute. On the
contrary, the dispositive question is whether an objectively reasonable law enforcement
officer should have known the statute was unconstitutional. See Krull, 480 U.S. at 355;
Dennis, 297 Kan. at 230.

We are not persuaded that an objectively reasonable officer on February 10, 2012,
should have known the statute was unconstitutional. In 2008, the legislature enacted the
amendment contained in K.S.A. 2011 Supp. 8-1001(b)(2). See L. 2008, ch. 170, sec.
1(b)(2). Four years later, Meitler's blood was drawn under the authority of that statute. At
the time of Meitler's blood draw, no Kansas appellate court had deemed the amended
provision unconstitutional. The Declerck opinion was filed on February 7, 2014, 6 years
after the amendment and 2 years after Meitler's blood draw. Declerk was the first time
law enforcement officers were put on notice that K.S.A. 2011 Supp. 8-1001(b)(2) was
unconstitutional.

Additionally, the Kansas implied consent law was originally passed by the
legislature in 1955. See L. 1955, ch. 61, sec. 1. Since that time, although it has undergone
numerous amendments, officers have become accustomed to the statutory scheme which
has essentially remained the same over the years. In particular, this scheme requires that
law enforcement officers have some basis to believe a driver is intoxicated, oral and
written statutory advisories must be provided to the driver, and the driver's consent is
requested. See K.S.A. 2011 Supp. 8-1001. Finally, the amendment at issue was brief and
limited in its application as compared to the extensive provisions found in the Kansas
implied consent law generally. See K.S.A. 8-1001 et seq.
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Here, the language employed in K.S.A. 2011 Supp. 8-1001(b)(2) was also familiar
to law enforcement officers. Under circumstances of a vehicular accident involving
serious injury or death and the commission of a traffic offense, the amendment presumed
there was "probable cause" to request a blood draw. The expression "probable cause" is a
term well known to law enforcement officers given its frequent reference in statutes and
caselaw. The use of the term is especially recognizable to officers because it is typically
employed in the context of Fourth Amendment search and seizure jurisprudence. In short,
the language of the amendment was unremarkable in the context of the implied consent
statute.

Under these facts, when tied to the United States Supreme Court precedent, we are
unable to conclude that on February 10, 2012, a reasonable law enforcement officer
should have known that K.S.A. 2011 Supp. 8-1001(b)(2) was unconstitutional. See Krull,
480 U.S. at 355. The district court's contrary legal conclusion finding that the good-faith
exception did not apply in this case was error.

Our dissenting colleague agrees the district court erred in declining to apply the
good-faith exception because Trooper Morris' "subjective understanding of the statute
was amiss." However, our colleague would suppress the blood-draw evidence reflecting
Meitler was under the influence of illicit drugs at the time of the fatal collision by
applying the legislative test to deny the good-faith exception announced by the United
States Supreme Court in Krull. That precedent provides: "A statute cannot support
objectively reasonable reliance if, in passing the statute, the legislature wholly abandoned
its responsibility to enact constitutional laws." 480 U.S. at 355.

As acknowledged by the dissent, in the 28 years since Krull was issued, there does
not appear to be any reported cases wherein a federal or state appellate court declined to
apply the good-faith exception because a legislative body wholly abandoned its
responsibility to enact constitutional laws. See Fairchild v. Lockhart, 675 F. Supp. 469,
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485 (E.D. Ark. 1987) ("The Court is struck, however, by the stringency of the Krull test:
what is required to foreclose access to the good-faith exception is that the Legislature
have wholly abandoned its duties to enact constitutional legislation.").

Meitler failed to present any legislative history or other evidence before the district
court to support that the Kansas Legislature wholly abandoned its legislative
responsibility under the Krull doctrine. Moreover, the district court did not base its
suppression ruling on the legislature's complete rejection of its duty to pass constitutional
legislation. Thus, the Krull doctrine involving the legislature's abandonment of its
responsibility should not be applied to Meitler's motion to suppress.

Because "the exclusionary rule was aimed at deterring police misconduct[, citation
omitted,] . . . legislators, like judicial officers, are not the focus of the rule. . . . Indeed . . .
courts presume that legislatures act in a constitutional manner." Krull, 480 U.S. at 350-
51; see State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014) (the appellate courts
presume statutes are constitutional and must resolve all doubts in favor of a statute's
validity). In Krull, where police acted on an administrative search statute later held to be
unconstitutional and there was "no evidence suggesting that Congress or state legislatures
have enacted a significant number of statutes permitting warrantless administrative
searches violative of the Fourth Amendment, . . . [the United States Supreme Court
found] no basis for believing that legislators are inclined to subvert their oaths and the
Fourth Amendment and that . . . 'requires application of the extreme sanction of
exclusion.'" 480 U.S. at 351.

Similarly, we see no basis for concluding that the legislators who enacted the 2008
amendment to K.S.A. 2011 Supp. 8-1001(b)(2) to add the language at issue here, against
only five "No" votes in both chambers, subverted their oaths and the Fourth Amendment.
See L. 2008, ch. 170, sec. 1(b)(2); House J. 2008, pp. 1380, 2628; Senate J. 2008, pp.
1658, 2167-68. Our review of the legislative history reveals no testimony or document
13
proving the legislature's purpose was to override or evade Fourth Amendment rights.
There was also no testimony or caselaw presented to the legislature which suggested that
similar legislation in other states had been deemed unconstitutional as violating the
Fourth Amendment.

On the other hand, there was testimony presented to the Kansas Legislature that
the proposed amendment was in compliance with the Fourth Amendment. Shawnee
County Senior Assistant District Attorney Karen Wittman testified that the proposed
amendment was "a combination of Maine and Oklahoma law . . . [and] both have been
deemed constitutional." Minutes, Sen. Judiciary Comm., March 5, 2008, attach. 7, p. 3. In
fact, in State v. Declerck, 49 Kan. App. 2d 908, 920, 317 P.3d 794, rev. denied 299 Kan.
__ (June 20, 2014), the panel acknowledged an Oklahoma law similar to K.S.A. 2011
Supp. 8-1001(b)(2) and caselaw supporting its constitutionality. Although the Declerck
panel found the Oklahoma appellate court's constitutional analysis "unsatisfying and,
therefore, unpersuasive," the fact remains the Kansas Legislature was advised that at least
one state had passed a similar law, Okla. Stat. tit. 47, § 10-104(B) (1998 Supp.), and that
the Oklahoma Court of Appeals held the law did not violate the Fourth Amendment. See
49 Kan. App. 2d at 917-18; Guest v. State, 2002 OK CR 5, ¶ 8, 42 P.3d 289 (2002). In
short, as acknowledged by the dissent in our case, there was legal authority and caselaw
presented to the legislature supporting the constitutionality of the Kansas amendment.
Given this legislative history, we cannot find the Kansas Legislature wholly abandoned
its duty to pass constitutional legislation.

Finally, in reviewing K.S.A. 2011 Supp. 8-1001(b)(2), the context of this
particular legislation must be considered—an amendment to an implied consent statute
which had been repeatedly upheld by the Kansas Supreme Court in fairly broad terms.
See State v. Johnson, 297 Kan. 210, 222-23, 301 P.3d 287 (2013); Martin v. Kansas
Dept. of Revenue, 285 Kan. 625, 635, 176 P.3d 938 (2008); Declerck, 49 Kan. App. 2d at
920-21 (surveying and distinguishing this caselaw).
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On the limited factual record presented and for reasons discussed above, we
conclude there is no sufficient factual or legal basis to show that the Kansas Legislature,
by passing this amendment, "wholly abandoned its responsibility to enact constitutional
laws." See Krull, 480 U.S. at 355.

In conclusion, the exclusionary rule does not apply to evidence obtained by law
enforcement officers who acted in objectively reasonable reliance on K.S.A. 2011 Supp.
8-1001(b)(2) prior to the Kansas Court of Appeals' decision in Declerck, 49 Kan. App. 2d
908.

Under the facts of this case, the district court erred in its factual findings and
conclusions of law. We hold Trooper Morris' and Trooper Maier's conduct in ordering the
blood draw was in objectively reasonable reliance on the then-existing authority provided
by K.S.A. 2011 Supp. 8-1001(b)(2). Accordingly, the district court's order suppressing
the blood-draw evidence is reversed, and the case is remanded for further proceedings.

ATCHESON, J., dissenting:

I.

State legislatures may not override decisions of the United States Supreme Court
construing federal constitutional rights by passing statutes designed to thwart those
decisions and dilute those rights. That is a fundamental precept of our system of
governance integrating the dual sovereignty of state and federal authorities. The search
and seizure at issue in this criminal case tests a particular aspect of how that integration
ought to work and, in turn, the manner in which the courts must protect citizens against
egregious legislative encroachment of their rights secured in the Fourth Amendment to
the United States Constitution. The majority declines to deploy the full measure of that
protection. I respectfully dissent.
15
When a state legislature passes a measure plainly aimed at constricting an
established application of the Fourth Amendment, thereby authorizing constitutionally
unreasonable government searches and seizures, the enactment cannot be judicially
enforced and things law enforcement officers seize in reliance on that enactment should
not be used as evidence in any criminal prosecution of the person from whom they were
taken. The irrebuttable presumption of probable cause written into K.S.A. 2011 Supp. 8-
1001(b)(2) allowing government agents to extract blood samples from drivers if they
have been involved accidents resulting in death or serious injury and might be guilty of
traffic violations contravenes basic Fourth Amendment protections and was promoted to
accomplish precisely that objective. The statute, thus, represents the rare enactment so
dramatically at odds with proper legislative purpose and function that the exclusionary
rule should be applied regardless of a government agent's good-faith reliance on it. See
Illinois v. Krull, 480 U.S. 340, 355, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987).

Accordingly, any evidence derived from the blood sample unconstitutionally taken
from Defendant Troy Meitler should not be admitted as evidence in the criminal case
against him for involuntary manslaughter and related charges. On that basis, I would
affirm the ruling of the Reno County District Court granting Meitler's motion to suppress
that evidence.

Meitler raised and briefly argued the principle recognized in Krull that when a
legislature "wholly abandons its responsibility to enact constitutional laws," the good-
faith exception does not extend to government searches or seizures made in reliance on
that law. 480 U.S. at 355. Although the principle has been routinely acknowledged in
appellate decisions dealing with other aspects of Krull, I have found no case in which a
court has weighed its application in any detail. See, e.g., State v. Daniel, 291 Kan. 490,
504-05, 242 P.3d 1186 (2010), cert. denied 131 S. Ct. 2114 (2011); accord United States
v. Vanness, 342 F.3d 1093, 1097-98 (10th Cir. 2003); United States v. Gambrell, 178
F.3d 927, 929-30 (7th Cir. 1999); United States v. Ashburn, ___ F. Supp. 3d ___, No. 13-
16
CR-0303, 2014 WL 7403851, at *9-10 (E.D.N.Y. 2014); State v. Fierro, 853 N.W.2d
235, 244 n.6 (S.D. 2014); Weems v. State, 434 S.W.3d 655, 666 (Tex. App. 2014). The
Illinois Court of Appeals has described that aspect of Krull as "cryptic and difficult."
People v. McGee, 268 Ill. App. 3d 32, 36, 644 N.E.2d 439 (1994). I would generally
agree. The boundaries of the requisite legislative abandonment are murky at best.
Nonetheless, the circumstances here would seem to be a paradigmatic example for the
principle's application. The legislative amendment of K.S.A. 2011 Supp. 8-1001(b)(2)
redefined "probable cause"—a phrase taken from the Fourth Amendment itself—in a way
that contradicts its settled meaning. If the principle applies at all, it ought to apply in this
case.

II.

The issue requires a brief recapitulation of some essential Fourth Amendment law.
The Fourth Amendment itself guarantees citizens the right "to be secure in their persons .
. . against unreasonable searches and seizures" and requires any warrant issue only "upon
probable cause." Those protections have been incorporated through the Fourteenth
Amendment and constrain agents of state and local governments. Mapp v. Ohio, 367 U.S.
643, 654-55, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). Although warrantless searches are
presumed unreasonable under the Fourth Amendment, the United States Supreme Court
has recognized searches based on probable cause coupled with particularized exigent
circumstances may be constitutionally permissible. See Groh v. Ramirez, 540 U.S. 551,
559, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004).

In Schmerber v. California, 384 U.S. 757, 770-71, 86 S. Ct. 1826, 16 L. Ed. 2d
908 (1966), the Court held that law enforcement officers may have medical personnel
extract blood from a driver suspected of being under the influence without getting a
search warrant because alcohol or other intoxicants in the driver's system would be
metabolized fairly quickly. The Court found that potential loss of evidence could create
17
an exigency excusing the need for a search warrant. But the Court required the officer
have probable cause to believe the person to be intoxicated and, therefore, that the blood
seized and then tested would show the presence of intoxicants. 384 U.S. at 770. The rule
has been recently stated this way:

"The Court in Schmerber held that probable cause to believe an arrested driver was
intoxicated, together with the likelihood that delay in taking blood from the driver would
result in the loss of evidence as alcohol dissipated, justified not only the drawing of
blood, but also the introduction of the subsequent 'chemical analysis' into evidence."
Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010) (citing Schmerber, 384 U.S. at 766-67).

In State v. Murry, 271 Kan. 223, 227, 21 P.3d 528 (2001), the Kansas Supreme
Court distilled Schmerber into three requirements permitting a warrantless blood test for
intoxicants: (1) the delay in obtaining a warrant would threaten the loss of the evidence;
(2) "the officer must have probable cause to believe the suspect has been driving under
the influence"; and (3) the procedures for extracting the blood sample must be
reasonable. This is a common formulation of the Schmerber holding. See, e.g., Dale v.
State, 209 P.3d 1038, 1039 n.7 (Alaska App. 2009); State v. Geiss, 70 So. 3d 642, 646
(Fla. Dist. App. 2011); State v. Tullberg, 359 Wis. 2d 421, ___, 857 N.W.2d 120, 128,
(2014).

In short, the Schmerber Court rested its ruling on the exigent circumstances arising
when a law enforcement officer has probable cause to believe that a person's blood
contains intoxicants that would be lost as evidence of a crime if a search and seizure in
the form of a blood draw were not conducted promptly. The Court specifically
recognized that the separate exception for warrantless searches incident to arrests would
not suffice to justify a bodily intrusion of the sort necessary to extract blood. 384 U.S. at
769-70. Accordingly, a law enforcement officer arresting a driver for a simple traffic
violation—speeding or failing to signal a turn, for example—could not then
constitutionally obtain a blood sample from that individual absent additional facts
18
establishing probable cause to believe the individual to be intoxicated. See United States
v. Chapel, 55 F.3d 1416, 1419 (9th Cir. 1995); People v. Trotman, 214 Cal. App. 3d 430,
436, 262 Cal. Rptr. 640 (1989).

Probable cause remains an essential constitutional requirement to search for and
seize evidence from within a person's body, consistent with the words of the Fourth
Amendment. That's the point of Schmerber, 384 U.S. at 769-71. And Schmerber
continues to be sound Fourth Amendment law. See Missouri v. McNeely, 569 U.S. ___,
133 S. Ct. 1552, 1557-58, 185 L. Ed. 2d 696 (2013) (acknowledging Fourth Amendment
rule of Schmerber); People v. Youn, 229 Cal. App. 4th 571, 576, 176 Cal. Rptr. 3d 652
(2014); State v. Foster, ___ Wis. 2d ___, ___, 856 N.W.2d 847, 856 (2014) (applying
Schmerber).[1]

[1]In McNeely, the Court held that the exigency excusing a search warrant
recognized in Schmerber—the balancing of the natural, inexorable dissipation of alcohol
or other intoxicants through metabolization with the delay in getting a warrant—must be
assessed under the facts of the particular case and does not reflect a categorical rule
applicable in every instance. 133 S. Ct. at 1567-68. In some circumstances, a law
enforcement officer may be able to obtain a search warrant without jeopardizing the
recovery of such evidence and presumably, then, has to seek a search warrant to extract
blood. The ruling in McNeely does not affect the issue or the analysis in this case.

A warrantless search based on exigency requires the same constitutional "probable
cause" as a judicially issued search warrant. Kirk v. Louisiana, 536 U.S. 635, 637, 122 S.
Ct. 2458, 153 L. Ed. 2d 599 (2002); Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.
Ct. 2485, 135 L. Ed. 2d 1031 (1996); United States v. Camou, 773 F.3d 932, 940 (9th Cir.
2014). In the context of a search, probable cause requires that government agents know
specific facts that would lead a reasonable person to conclude evidence of a crime may be
found in a particular place. Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657,
134 L. Ed. 2d 911 (1996) ("[P]robable cause to search . . . exist[s] where the known facts
and circumstances are sufficient to warrant a man of reasonable prudence in the belief
that contraband or evidence of a crime will be found."); Illinois v. Gates, 462 U.S. 213,
19
238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (probable cause for search warrant must
establish "a fair probability that contraband or evidence of a crime will be found in a
particular place"). This definition of probable cause is neither new nor especially
controversial. See Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 69 L. Ed.
543 (1925) (Government agents had sufficient cause to search for illegal liquor when "the
facts and circumstances within their knowledge and of which they had reasonably
trustworthy information were sufficient in themselves to warrant a man of reasonable
caution in the belief that intoxicating liquor was being transported in the automobile in
which they were stopped and searched."). Probable cause for a search warrant or a
warrantless search based on exigent conditions must be derived from the case-specific
"totality" of circumstances. See Gates, 462 U.S. at 230-31; State v. Sanchez-Loredo, 294
Kan. 50, Syl. ¶ 2, 272 P.3d 34 (2012); accord United States v. Williams, 224 F.3d 530,
533-34 (6th Cir. 2000) (Cole, J., dissenting); Coronado v. State, 148 So. 3d 502, 505 (Fla.
Dist. App. 2014).

In sum, to justify a search of a person's body by taking blood, consistent with
Schmerber and the Fourth Amendment, a law enforcement officer must be aware of
specific facts indicating that person to be under the influence of alcohol or other
intoxicants. Those facts would then suggest that the person had ingested intoxicants that
would be revealed in the testing of the seized blood. See Gates, 462 U.S. at 232 (Probable
cause turns on "assess[ing] probabilities in particular factual contexts," so "[r]igid legal
rules are ill-suited" to that determination.).

III.

Those constitutional markers guide the analysis of K.S.A. 2011 Supp. 8-1001,
governing the authority of law enforcement officers to conduct blood, breath, and other
tests to determine if a driver is under the influence of alcohol or other intoxicants. In this
case, Highway Patrol Trooper Stephen A. Morris relied on K.S.A. 2011 Supp. 8-
20
1001(b)(2) permitting a law enforcement officer to obtain a blood draw from a driver
who has been "involved in an accident or collision resulting in serious injury or death to
another person" when the driver "could be cited for any traffic offense." That subsection
of the statute states the evidence supporting the traffic offense furnishes "probable cause"
for the seizure of a blood sample. Here, the physical evidence showed Meitler's vehicle
crossed the centerline and struck another vehicle in its traffic lane. The other driver died.
Neither Trooper Morris nor any other investigator had any evidence suggesting Meitler
had been drinking or was under the influence of alcohol or drugs at the time of the crash.
When his blood was taken, Meitler was unconscious and receiving medical treatment for
his injuries. Trooper Morris did not attempt to get a search warrant, and Meitler never
gave actual consent for the blood draw.[2]

[2]At Trooper Morris' direction, Trooper John Maier went to the hospital where
Meitler had been taken. Trooper Maier had no independent information about the
collision and acted on Trooper Morris' orders to supervise the blood draw. Meitler and
Trooper Maier apparently never spoke or otherwise communicated. For legal purposes,
Trooper Maier functioned as an extension of Trooper Morris. His presence makes no
substantive difference to the constitutional analysis or to the outcome.

The constitutional failing of K.S.A. 2011 Supp. 8-1001(b)(2) seems plain. It
creates an irrebuttable presumption of probable cause based solely on a driver's
involvement in a motor vehicle mishap resulting in death or serious injury when the
driver could be cited for a traffic violation. But a driving error leading to a death or
serious injury does not establish specific facts suggesting a search of the driver's body
through the extraction of blood will yield evidence of intoxication. There are all kinds of
scenarios where those circumstances may occur without a driver being under the
influence. The statute effectively rejects the constitutional standard for probable cause to
search in favor of a substantially broader standard and directly conflicts with the
requirements of Schmerber. As a result, the statute substantively dilutes the Fourth
Amendment.

21
State statutes that constrict protections afforded citizens in the United States
Constitution, including the Fourth Amendment, are themselves unconstitutional and
unenforceable. See Berger v. New York, 388 U.S. 41, 63-64, 87 S. Ct. 1873, 18 L. Ed. 2d
1040 (1967); State v. Henning, 289 Kan. 136, 148-49, 209 P.3d 711 (2009). Those
enactments violate the Supremacy Clause of the United States Constitution. U.S. Const.,
art. VI, cl. 2 ("This Constitution, and the Laws of the United States which shall be made
in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or Laws of any State to the
contrary notwithstanding."); see Younger v. Harris, 401 U.S. 37, 52, 91 S. Ct. 746, 27 L.
Ed. 2d 669 (1971). The Supremacy Clause renders state statutes and common law
ineffective to the extent they materially conflict with or impede federal law. Cipollone v.
Liggett Group, Inc., 505 U.S. 504, 516, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992);
Hillsborough County v. Automated Medical Labs., 471 U.S. 707, 712-13, 105 S. Ct.
2371, 85 L. Ed. 2d 714 (1985) ("It is a familiar and well-established principle that the
Supremacy Clause, U.S. Const., Art. VI, cl. 2, invalidates state laws that 'interfere with,
or are contrary to,' federal law." [quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211, 6
L. Ed. 23 (1824)]). Given those principles, this court correctly held K.S.A. 2011 Supp. 8-
1001(b)(2) unconstitutional and a search conducted in reliance on it a violation of the
Fourth Amendment. State v. Declerck, 49 Kan. App. 2d 908, 919, 317 P.3d 794, rev.
denied 299 Kan. ___ (June 20, 2014). The same is true here, as the majority more or less
acknowledges.

The district court, therefore, rightly concluded the blood draw—an intrusive
search of and seizure from Meitler's person, a place explicitly protected in the language
of the Fourth Amendment—to be constitutionally infirm. No particularized facts known
to Trooper Morris or any other government agents at the time of the blood draw
suggested Meitler to have been intoxicated, let alone established probable cause for such
a belief. The State has only the impermissible statutory presumption of K.S.A. 2011
Supp. 8-1002(b)(2) to justify the blood draw. That's not constitutionally good enough.
22
IV.

A.

The question, then, becomes what relief, if any, must be extended to Meitler
because of that constitutional violation. The courts commonly apply the exclusionary rule
to bar the government from using things seized in violation of a person's Fourth
Amendment rights as evidence against that person in a criminal prosecution. See Herring
v. United States, 555 U.S. 135, 139-40, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009); United
States v. Leon, 468 U.S. 897, 908-09, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). This
court recently outlined the evolution of the exclusionary rule from its inception a century
ago. See State v. Althaus, 49 Kan. App. 2d 210, 219-24, 305 P.3d 716 (2013). The
doctrinal development of the rule, though contextual background for the issue here, is not
essential, so I do not repeat that discussion.

The Leon decision marked a deep retrenchment of the exclusionary rule. The
Court held that the rule generally should not apply if law enforcement officers conduct a
search in good-faith reliance on warrant signed by a judge. 468 U.S. at 913. Thus was
born "the good-faith exception" to the exclusionary rule. The Court reasoned that the
exclusionary rule ought to be applied when it would deter police conduct violating the
Fourth Amendment, so a judge's error in signing a search warrant later found to be
constitutionally deficient shouldn't require the exclusion of evidence. Invoking the
exclusionary rule for the judicial mistake wouldn't improve police behavior in future
cases. 468 U.S. at 918-21. In Leon, however, the Court identified several circumstances
in which the good-faith exception should not apply, including when the judicial officer
signing a warrant has "wholly abandoned" the role of a detached and neutral official. 468
U.S. at 923.

23
In Krull, the Court extended the good-faith exception to the exclusionary rule to
law enforcement officers making warrantless searches in reasonable reliance on statutes
later found to violate the Fourth Amendment, rendering those searches unconstitutional.
480 U.S. at 349 ("The approach used in Leon is equally applicable to the present case
[involving an administrative search of a regulated business authorized by state statute].").
So courts generally should admit evidence law enforcement officers have seized before a
statute has been held constitutionally infirm. Borrowing further from Leon, the Court,
however, recognized two situations rendering the good-faith exception inapplicable: (1)
if a reasonably trained law enforcement officer would recognize the statute to be
constitutionally defective on its face; or (2) "if, in passing the statute, the legislature
wholly abandoned its responsibility to enact constitutional laws." 480 U.S. at 355.

The Krull majority explained in detail why legislators presumably will commonly
act to pass constitutional legislation and, therefore, typically need not face the deterrent
spur of the exclusionary rule to keep them from overreaching. And law enforcement
officers operating within statutory boundaries, therefore, should be afforded good-faith
protection for doing so. In summary, the majority suggested: "Legislators enact statutes
for broad, programmatic purposes, not for the purpose of procuring evidence in particular
criminal investigations." 480 U.S. at 352. The majority, in turn, concluded a judicial
determination that a statute violates the Fourth Amendment sufficiently protects those
constitutional interests without invoking the exclusionary rule, save for the rare situations
when a measure facially contravenes the Fourth Amendment or the legislature has been
derelict. 480 U.S. at 352.

The four dissenters in Krull, led by Justice O'Connor, sharply disagreed and
submitted the constitutional framers had intended the Fourth Amendment as a check on
both legislative and law enforcement excesses, thereby warranting suppression of
evidence in that case through the exclusionary rule. 480 U.S. at 362-64 (O'Connor, J.,
dissenting, joined by Brennan, Marshall, and Stevens, JJ.). Justice O'Connor, herself a
24
former state legislator, argued members of the legislative branch, far more so than
judicial officers, are prone to yield to political pressures and the vicissitudes of vocal
constituencies especially in clipping constitutional rights, such as the Fourth Amendment,
that are often publically reviled. 480 U.S. at 365-66. The exclusionary rule would rein in
those impulses and preserve the integrity of the Fourth Amendment's checks on
impermissible government searches and seizures.

The Kansas Supreme Court has endorsed and applied the rule of Krull to expand
the good-faith exception from search warrants to statutes. Daniel, 291 Kan. at 500. And
the court has construed the protections in § 15 of the Kansas Constitution Bill of Rights
to be no more extensive than those in the Fourth Amendment. 291 Kan. at 500; but see
291 Kan. at 506 (Johnson, J., dissenting). As a result, the scope of the good-faith
exception is not open for further consideration, at least not in this forum.

Here, the majority holds that Trooper Morris relied in good faith on K.S.A. 2011
Supp. 8-1001(b)(2) in ordering the blood draw and, therefore, declines to apply the
exclusionary rule to bar the State from using the resulting evidence against Meitler. I
have no real quarrel with the majority's finding that Trooper Morris acted in good faith,
since the blood draw comported with the requirements of K.S.A. 2011 Supp. 8-
1002(b)(2). That's true even though Trooper Morris' subjective understanding of the
statute was amiss. The district court, therefore, erred in declining to apply the good-faith
exception because Trooper Morris misunderstood the statute.

But the inquiry doesn't end there. The good-faith exception should not neutralize
the exclusionary rule if either of the exceptional grounds recognized in Krull applies. I
suppose the reasonable law enforcement officer, hypothecated for forensic purposes,
would not recoil upon reading K.S.A. 2011 Supp. 8-1002 and exclaim subsection (b)(2)
to be a patent violation of the Fourth Amendment. So the first ground in Krull for
rejecting the good-faith exception doesn't apply. What remains is the enigmatic limitation
25
on the good-faith exception when a legislature abdicates its responsibility to enact
measures consonant with the protections afforded citizens in the Fourth Amendment.

B.

Beyond recognizing legislative abdication as a reason to withhold the good-faith
exception, the Krull decision offers little in the way of guidance. The Court, of course,
analogizes to the provision in Leon for judges and to Lo-Ji Sales, Inc. v. New York, 442
U.S. 319, 326-27, 99 S. Ct. 2319, 60 L. Ed. 2d 920 (1979), cited there as illustrative. See
Krull, 480 U.S. at 355. But the reference affords little help. Apart from citing Lo-Ji Sales,
the Leon Court didn't elaborate on how to determine when judges abandon their duties in
reviewing warrant requests. In Lo-Ji Sales, a state magistrate judge issued what amounted
to an impermissible general warrant to search a business selling pornographic films,
magazines, and books and then accompanied government agents as they executed the
warrant. The judge spent several hours on the premises reviewing materials brought to
him and determining whether there was probable cause to believe they were obscene and,
thus, illegal under New York law. The Leon Court obviously found that to be judicial
conduct going too far. See 468 U.S. at 914, 923.

I see no clear lesson in the facts of Lo-Ji Sales in assessing legislative abdication
under Krull—I wouldn't expect senators or representatives singularly or collectively to
turn up at the scenes of traffic fatalities to advise law enforcement officers as to their
authority to conduct blood draws. Nor do I think the Krull majority could have been
contemplating the sort of interaction that took place in Lo-Ji Sales. I presume, rather, the
circumstances of Lo-Ji Sales are to be considered qualitatively, meaning the legislative
action would have to be pretty egregious within the context of what legislators do.

In this respect, the two grounds recognized in Krull for withholding the good-faith
exception operate independently of each other. The first depends on the readily
26
identifiable unconstitutionality of the statute itself—something a reasonable law
enforcement officer would recognize on reading the measure. The other, however,
imputes greater discernment to legislators and requires they refrain from passing
measures that redefine constitutional language in ways that erode Fourth Amendment
rights. In this case, for example, the legislation consisted of a narrow amendment to a
broader existing statute. Legislators see proposed changes in the law in that context. Most
outsiders, including law enforcement officers, don't. They see only the end product. As a
result, a law enforcement officer might not recognize the constitutional shortcomings of
an amended statute. But that recognition is irrelevant to the legislative-abdication ground.
Were Krull read otherwise, the two bases for withholding the good-faith exception would
effectively collapse into a single one turning on what a reasonable law enforcement
officer would glean from reviewing the overall statute. In State v. Daniel, 291 Kan. 490,
504, 242 P.3d 1186 (2010), cert. denied 131 S. Ct. 2114 (2011), the Kansas Supreme
Court looked at the two bases separately, consistent with Krull.

The legislative abandonment of purpose recognized in Krull cannot be a complete
analog to the judge suggested in Leon who wholly abandons his or her neutral role in
issuing a search warrant. The brief reference in Leon at least suggests the law
enforcement officers relying on the warrant would have to be aware of and presumably
appreciate the character of the judge's conduct to be stripped of the good-faith exception.
Leon, 468 U.S. at 923. That makes some sense. A judge's review of a search warrant
application and the approval of the warrant entail a discrete, immediate function to which
the individual presenting the papers typically will be privy. The legislative process is
altogether different; it is anything but discrete and immediate. A typical bill goes through
committee review and hearings in both houses of the legislature. It may be amended
multiple times and only then comes up for a vote in each house. The Krull majority
cannot have intended the exclusionary rule to apply only if the law enforcement officers
conducting a search in reliance on an unconstitutional statute were somehow aware of the
way the legislature abandoned its responsibility in enacting the statute. Such a rule could
27
never be applied in practice. The Court actually intended to check especially egregious
legislative excess impairing Fourth Amendment rights—a check to be applied
independently of a law enforcement officer's good faith in later acting on the statute. In
short, the Court did not completely insulate the legislative process from the exclusionary
rule.

C.

As I have said, I have found no appellate cases delving into when the good-faith
exception should be withheld because of legislative abdication. The most detailed
discussion appears in two paragraphs in Daniel, 291 Kan. at 504-05, indicating the court
reviewed the legislative history pertaining to K.S.A. 22-2501(c), governing searches
incident to arrest, and found no indication the legislature sought to do anything other than
codify existing constitutional law. The court, therefore, saw no abandonment of
legislative purpose.[3]

[3]For the most part, the scope of a constitutionally permissible warrantless search
after arrest has been defined through decisions of the United States Supreme Court. The
Kansas Legislature apparently intended to set out the essence of that law statutorily when
it enacted K.S.A. 22-2501(c) in 1970 and amended it in 2006. See Daniel, 291 Kan. at
504-05. In 2009, the Court refined and limited the extent to which government agents
could search a motor vehicle without a warrant based on an arrest of the driver or a
passenger. Arizona v. Gant, 556 U.S. 332, 343-44, 129 S. Ct. 1710, 173 L. Ed. 2d 485
(2009). Despite remaining static since 2006, K.S.A. 22-2501(c) became unconstitutional
3 years later as the result of Gant rather than any specific legislative action. Daniel, 291
Kan. at 491-92. The legislature has since repealed K.S.A. 22-2501. See L. 2011, ch. 100,
sec. 22.

The legislative history for K.S.A. 2011 Supp. 8-1001(b)(2) tells quite a different
story. The language that became subsection (b)(2) of K.S.A. 2011 Supp. 8-1001 was
promoted to and passed by the Kansas Legislature in 2008 as a narrow, targeted
amendment modifying Schmerber to allow law enforcement officers to conduct blood
draws without constitutionally required probable cause. The original bill contained a
28
second component clarifying the duties of designated medical professionals in drawing
blood at the direction of law enforcement officers. The amendment did not reflect the sort
of broad programmatic measures the Krull majority contemplated in transplanting the
good-faith exception to legislative actions. It was, rather, designed to evade constitutional
restrictions on gathering evidence in a particular type of criminal investigation—very
much the counterpoint the Krull majority suggested shouldn't be feared in generally
extending the good-faith exception to legislation presumably because the exclusionary
rule would still apply in that circumstance.

The 2008 amendment to K.S.A. 2011 Supp. 8-1001 imposed a statutory definition
of probable cause applicable without regard to the facts of a given motor vehicle accident
and created an irrebuttable presumption of probable cause to search for evidence of
intoxication even when the facts of the accident suggested none. The amendment,
therefore, clashed with established constitutional principles defining probable cause
based on the language of the Fourth Amendment and controlling United States Supreme
Court decisions. A legislature cannot undercut constitutional protections that way.

In a written submission to the Senate Judiciary Committee in 2008, Karen C.
Wittman, then an assistant district attorney in Shawnee County, identified the three-factor
test in State v. Murry, 271 Kan. 223, Syl. ¶ 1, 21 P.3d 528 (2001), as the law governing
the search of drivers and the seizure of blood samples from them. Minutes, Sen. Judiciary
Comm., March 5, 2008, attach. 7, p. 1. As I have pointed out, that test outlines the
requirements laid down in Schmerber for a blood draw comporting with the Fourth
Amendment. The prosecutor told the committee that a law enforcement officer at the
scene of a motor vehicle accident "sometimes does not have enough information . . . to
determine 'probable cause' required for a blood draw." Minutes, Sen. Judiciary Comm.,
March 5, 2008, attach. 7, p. 1. The amendment, according to the prosecutor, would cure
that problem, making it easier to get a blood sample. But the cure also violated the
29
constitutional rights of the driver. The amendment plainly aimed to legislatively overrule
Murry and, necessarily, Schmerber.

The prosecutor reported to the committee that Oklahoma and Maine courts had
found similar measures to be constitutional. The representation itself wasn't entirely
accurate and appears sufficiently incomplete as to be misleading. In Guest v. State, 2002
OK CR 5, ¶ 8, 42 P.3d 289 (2002), a panel of the Oklahoma Court of Appeals upheld a
similar statute but offered no more than a bare conclusion that it conformed to the Fourth
Amendment. See Declerck, 49 Kan. App. 2d at 917-18 (discounting Guest as persuasive
authority for want of any reasoned analysis). The Maine Supreme Court upheld a statute
admitting blood-test results in a criminal prosecution arising from a fatal motor vehicle
accident if evidence independent of the test gathered at any time during the investigation
established probable cause to believe the defendant was intoxicated. State v. Roche, 681
A.2d 472 (Me. 1996). Just how Roche props up the 2008 amendment to K.S.A. 2011
Supp. 8-1001 that became subsection (b)(2) and its diminution of probable cause is less
than clear.[4] By 2008, when the Kansas Legislature adopted the amendment, courts in
other states had consistently found comparable statutes to be unconstitutional. See State
v. Blank, 90 P.3d 156, 161-62 (Alaska 2004); King v. Ryan, 153 Ill. 2d 449, 463-64, 607
N.E.2d 154 (1992); Hannoy v. State, 789 N.E.2d 977, 992 (Ind. App. 2003); McDuff v.
State, 763 So. 2d 850, 855 (Miss. 2000); Com. v. Kohl, 532 Pa. 152, 164, 615 A. 2d 308
(1992); see also Declerck, 49 Kan. App. 2d at 918-19 (discussing caselaw in these and
other states).

[4]The Maine Supreme Court acknowledged it relied on an argument to uphold the
statute that had been discounted by the Supreme Courts of Illinois and Pennsylvania and,
at least by implication, had been accepted nowhere else given the absence of citation to
any directly supporting authority. Roche, 681 A.2d at 474-75. I have found no other
jurisdiction citing Roche favorably and embracing its reasoning.

In a written submission to the Senate Judiciary Committee, Peter Bodyk, then
chief of traffic safety for the Kansas Department of Transportation, stated the agency
30
supported the amendment as "providing law enforcement personnel the increased ability
to test drivers involved in crashes when an injury or fatality has occurred." Minutes Sen.
Judiciary Comm., March 5, 2008, attach. 10, p. 1. Similarly, in written testimony on
behalf of the Kansas Peace Officers' Association and the Kansas Association of Chiefs of
Police, Ed Klumpp told the committee that the "probable cause" standard for blood draws
was "problematic in some cases" and the amendment would avoid "the current
restrictions." Minutes Sen. Judiciary Comm., March 5, 2008, attach. 3, p. 1. and attach. 4,
p. 1.

The legislative history, then, reveals a chorus calling for a specific change in
K.S.A. 8-1001 designed to make law enforcement more efficient by legislating away
protections central to the Fourth Amendment. But the Fourth Amendment is not so
evanescent and cannot be eclipsed to promote government efficiency even in the name of
aiding police investigations that may otherwise be cumbersome or less than wholly
effective. As this court has said, "[a] citizen's Fourth Amendment rights do not rise or fall
on the schedules of government agents or their predilections for expediency." State v.
Dugan, 47 Kan. App. 2d 582, 607, 276 P.3d 819 (2012).

Moreover, a state legislature may not enact statutes defining the words and ideas
of the Bill of Rights—here, probable cause—to suit its view of what the United States
Constitution ought to be. Doing so evinces a patent abandonment of legislative purpose to
pass constitutional measures. A court need not locate some formal declaration of such
intent to satisfy the ground identified in Illinois v. Krull, 480 U.S. 340, 355, 107 S. Ct.
1160, 94 L. Ed. 2d 364 (1987). Nor do legislators have to be deliberately so motivated.
As lawmakers, they must be expected to have some collective understanding of basic
constitutional language, principles, and protections. Their willful blindness to or
indifferent ignorance of basic Fourth Amendment concepts cannot support an application
of the good-faith exception to the exclusionary rule under Krull.

31
Here, the amendment that became K.S.A. 2011 Supp. 8-1001(b)(2) purposefully
redefined operative language in the Fourth Amendment, contrary to clearly established
law, to dilute protections against government searches and seizures. The Kansas
Legislature abdicated its responsibility as the lawmaking branch of a state government in
failing or refusing to recognize the plain purpose and result of that measure. This was not
some complex, multifaceted statute a small part of which ran afoul of a debatable or
arcane aspect of constitutional jurisprudence. Legislators have a duty to appreciate what
they are doing when they tinker with the words of the Bill of Rights, including the Fourth
Amendment, and to avoid corrupting those rights. The Krull Court recognized the need to
deter legislators from abandoning their duty in considering and passing measures targeted
for just that purpose. The Court, therefore, retained the exclusionary rule to suppress
evidence seized pursuant to that rare legislative enactment targeting and shooting down
Fourth Amendment rights. See 480 U.S. at 355. The 2008 amendment to K.S.A. 2011
Supp. 8-1001 reflects that sort of constitutional harm.[5]

[5] The majority offers no suggestion as to when the exclusionary rule ought to
apply to legislative enactments under Krull. In my colleagues' view, however, the
exclusionary rule can't apply here apparently because an outside proponent of the
amendment possessed of a law degree told a legislative committee it was okay and the
measure eventually passed by a wide margin. That the amendment took direct aim at
diluting established Fourth Amendment protections—and did so—doesn't really count, as
they see it, unless some Greek chorus says as much before the final vote. I cannot turn a
similarly blind eye to what Krull necessarily must have meant to remedy.

The Kansas Legislature could not reasonably consider and pass a bill that would
define sufficient probable cause for a search warrant for controlled substances or
paraphernalia to be "the presence of a person as a resident of a dwelling who has been
convicted of a felony drug offense within the preceding 5 years." Nor would a measure to
define "religion" in the First Amendment to the United States Constitution to include
only biblically based faiths for purposes of the Free Exercise Clause and to exclude them
from the Establishment Clause be anything other than constitutional folly. The
32
amendment here wasn't qualitatively much different in light of settled Fourth Amendment
law. I would find the resulting provision in K.S.A. 2011 Supp. 8-1001(b)(2) undeserving
of refuge from the exclusionary rule, consistent with Krull. On that basis, I would affirm
the ruling of the district court.[6]

[6]As an alternative ground for reversing the district court, the State has argued the
implied consent to testing outlined in K.S.A. 2011 Supp. 8-1001(a) applies to Meitler and
he did not withdraw that consent. A driver ostensibly gives consent to a blood test under
K.S.A. 2011 Supp. 8-1001(a) simply by operating a motor vehicle in this state. The
implied consent in subsection (a), however, is to testing conforming to circumstances
outlined in the rest of the statute. It is not a waiver of the driver's Fourth Amendment
protection against a blood test or other bodily invasion on less than constitutionally
defined probable cause; nor is it a valid consent for Fourth Amendment purposes. See
Declerck, 49 Kan. App. 2d 908, Syl. ¶ 7; accord Cooper v. State, 277 Ga. 282, 290-91,
587 S.E.2d 605 (2003); Hannoy, 789 N.E.2d at 987; cf. State v. Johnson, 253 Kan. 356,
362, 856 P.2d 134 (1993) (consent to search "must be given voluntarily, intelligently, and
knowingly"); see also United States v. Farnell, 701 F.3d 256, 262-63 (8th Cir. 2012)
(consent to warrantless search must be "knowing and voluntary" to comport with Fourth
Amendment); United States v. Buckner, 473 F.3d 551, 554 (4th Cir. 2007) (same). The
State's argument is unavailing and does not require reversal of the district court's order.