State v. Eldredge

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NOT DESIGNATED FOR PUBLICATION

No. 113,102

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ZACHERY SCOTT ELDREDGE,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed March 2, 2018. Affirmed.

Michael S. Holland II, of Holland and Holland, of Russell, for appellant.

Andrew R. Davidson, assistant district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before HILL, P.J., McANANY and ATCHESON, JJ.

PER CURIAM: Zachery Scott Eldredge appeals his conviction for driving under the
influence of alcohol. At issue is whether his breath test results were admissible under the
good-faith exception to the exclusionary rule after State v. Nece, 306 Kan. 679, 396 P.3d
709 (2017) (Nece II). We hold that they were and therefore affirm his conviction.

Around 4 a.m. on October 6, 2012, police officers spotted a red truck parked in a
parking lot with its headlights on and engine running. They found Eldredge sleeping in
the driver's side of the vehicle. They woke him up and began a DUI investigation.

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They arrested Eldredge for driving under the influence of alcohol and took him to
the law enforcement center for processing. While under arrest and in custody, he was
provided with the oral and written notices required by the Kansas implied-consent law
through the use of a DC-70 form. He agreed to take a breath test.

The breath test result was higher than the legal limit. The breath test was given
within three hours of when Eldredge was found sleeping in his vehicle. Eldredge was
charged with driving under the influence of alcohol in violation of K.S.A. 2012 Supp.
8-1567(a),(b)(1)(B)—a class A misdemeanor. He filed a motion to suppress the breath
test result, contending that his consent was coerced and involuntary and that the breath
test was an unreasonable search in violation of the Fourth Amendment to the United
States Constitution. The district court denied the motion to suppress and found him guilty
on stipulated facts. He appealed to this court.

While this appeal was pending, the Kansas Supreme Court struck down portions
of the Kansas implied-consent law. The court held that K.S.A. 2014 Supp. 8-1025 was
facially unconstitutional because by punishing an individual for withdrawing his or her
consent to search, it violated the fundamental right to be free from an unreasonable
search and was not narrowly tailored to serve the State's interests. State v. Ryce, 303 Kan.
899, Syl. ¶¶ 9, 12, 368 P.3d 342 (2016) (Ryce I), aff'd on reh'g 306 Kan. 682, 396 P.3d
711 (2017) (Ryce II). On the same day, our Supreme Court affirmed the suppression of a
defendant's breath-alcohol test result in a case similar to this one. The court determined
that the test resulted from involuntary consent because under the Kansas implied-consent
law, the defendant was informed that she might be charged with a separate crime for
refusing to submit to a breath-alcohol test and, in light of Ryce I, the State could not have
constitutionally imposed criminal penalties if the defendant refused the testing.
Therefore, the defendant's consent was obtained by means of an inaccurate and coercive
advisement. State v. Nece, 303 Kan. 888, 889, 897, 367 P.3d 1260 (2016) (Nece I), aff'd
on reh'g 306 Kan. 679, 396 P.3d 709 (2017) (Nece II).
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Shortly thereafter, the United States Supreme Court went further, holding in a
similar case that drivers cannot be deemed to have consented to a blood-alcohol content
test on the threat of a charge of a criminal offense for refusal. But the Court held that
warrantless breath tests are permitted under another exception to the warrant
requirement—as a search incident to arrest. See Birchfield v. North Dakota, 579 U.S.
___, 136 S. Ct. 2160, 2185-86, 195 L. Ed. 2d 560 (2016).

After Birchfield, the Kansas Supreme Court reheard and reaffirmed Ryce I and
Nece I. The court modified its Ryce I decision "to reflect the validity of conducting a
breath test in a DUI case where an arrest is made under the warrant exception of a search
incident to lawful arrest," but the court reaffirmed its original holding that K.S.A. 2016
Supp. 8-1025 was unconstitutional based on its interpretation of the Kansas statute. Ryce
II, 306 Kan. at 693, 698-99. In Nece II, the court reaffirmed that Nece's consent to the
warrantless breath test was involuntary. But the court did not further analyze whether the
search was lawful under the search-incident-to-arrest exception to the warrant
requirement. 306 Kan. at 680-81.

We ordered the parties to submit supplemental briefs addressing Nece I and Nece
II and whether any exceptions to the warrant requirement of the Fourth Amendment
should be applied.

In its supplemental brief, the State argues that the exclusionary rule should not be
applied because the officer acted in good-faith reliance on the Kansas statute when
advising Eldredge that he might be charged with a separate crime for refusing the breath
test. Eldredge argues that the State cannot raise the good-faith exception for the first time
on appeal and that the good-faith exception does not apply under the circumstances.

Following our reasoning in State v. Perkins, 55 Kan. App. 2d ___, Syl. ¶ 6 (No.
112,449, this day decided), we will consider the applicability of the good-faith exception
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for the first time on appeal because it is a question of law based on stipulated facts and is
determinative of the case. State v. Schmidt, 53 Kan. App. 2d 225, 233, 385 P.3d 936
(2016), rev. denied 306 Kan. 1329 (2017).

Here, there is no indication that the officer should have known that K.S.A. 2012
Supp. 8-1025 was unconstitutional or that the implied-consent advisory was coercive. At
the time of the arrest, the officer was required by law to advise Eldredge that failure to
submit to a breath test could constitute a separate crime. Suppression of the breath test
result would not serve the purpose of the exclusionary rule—to deter police misconduct.
Prior to Ryce I and Nece I, our courts had consistently upheld the validity of consent
obtained after giving the implied consent advisory. See, e.g., State v. Johnson, 297 Kan.
210, 222-23, 301 P.3d 287 (2013). Our Supreme Court did not invalidate the implied
consent advisory until after the officer read it to Eldredge. Nor is there any indication that
the Legislature wholly abandoned its duty to enact constitutional laws in passing the
statutes. Other states had similar statutes and continued to uphold them until the
Birchfield decision. See Schmidt, 53 Kan. App. 2d at 235-37.

Eldredge argues that in order for the good-faith exception to apply, the State must
show the officer was in good faith relying on a statute for the admissibility of evidence or
as authority for the search. But, he argues, the statute that was ruled unconstitutional does
not provide for the admissibility of the evidence or authorize the officer to conduct the
breath test. Rather, admissibility was premised on consent.

The distinction Eldredge makes is unconvincing. Based on the stipulated facts, it
was the officer informing Eldredge that he may be charged with a separate crime of
refusal that rendered the consent involuntary. He does not argue the consent was
otherwise involuntary. But the officer was required by statute to give the advisory. In
determining whether suppression is the appropriate remedy, the question is whether
suppression would serve the purpose of the exclusionary rule, which is to deter police
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misconduct. The exclusionary rule is only applied when deterrence can be achieved. See
State v. Daniel, 291 Kan. 491, 496, 242 P.3d 1186 (2010). Thus, applying the good-faith
exception in this context "is simply a way of saying that excluding evidence obtained as a
result of the implied consent advisories would not deter future violations of the Fourth
Amendment." State v. McClellan, No. 115,164, 2017 WL 839720, at *14 (Kan. App.
2017) (unpublished opinion), petition for rev. filed March 31, 2017.

The district court was correct to deny Eldredge's motion to suppress, even though
it was for the wrong reason. If a district court reaches the correct result, its decision may
be upheld even though it relied upon the wrong ground. State v. Overman, 301 Kan. 704,
712, 348 P.3d 516 (2015). The breath test result was admissible under the good-faith
exception to the exclusionary rule.

Eldredge's conviction is affirmed.