State v. Jones

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NOT DESIGNATED FOR PUBLICATION

No. 117,597

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOSHUA PAUL JONES,
Appellant.

MEMORANDUM OPINION


Appeal from Ford District Court; E. LEIGH HOOD, judge. Opinion filed June 22, 2018. Affirmed.

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

Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for
appellee.

Before GARDNER, P.J., PIERRON, J., and WALKER, S.J.

PER CURIAM: The State charged Joshua Paul Jones with driving under the
influence (DUI), driving left of center, and speeding. The district court denied his motion
to suppress the evidence of his breath-alcohol test. Jones proceeded with a bench trial on
stipulated facts while preserving the admission of evidence for appeal. Jones appeals the
district court's decision to admit the evidence from his breath-alcohol test. We affirm.

On September 21, 2014, Kansas Highway Patrol Trooper Steven Sites was
conducting speed checks along Highway 50 when Jones drove past at a speed of 105
miles per hour in a 65 mile-per-hour zone. Sites saw the truck weave and cross the white
lane line at least twice. Sites stopped Jones. Sites told Jones the purpose of the stop and
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requested his driver's license and registration. Sites smelled a strong odor of an alcoholic
beverage coming from Jones.

Jones admitted he had drunk two beers. Trooper Sites asked Jones to step out of
his truck and perform field sobriety tests. Sites noted that Jones was not steady on his
feet. Jones first attempted to perform the walk and turn test. However, he lost his balance
while Sites provided instructions and started the test before the instructions were finished.
Sites noted that Jones could not complete the test successfully because he would not look
at his feet, his hands were away from his body, and he stepped off the line. Sites next had
Jones perform the one-leg stand test. Again, Jones did not follow the instructions and
looked straight ahead instead of at his feet. When he lifted his right foot, he lost balance
after counting to "one-thousand three" and put his foot back on the ground. When he
attempted to continue the test, he again lost his balance.

Trooper Sites placed Jones in his patrol car and informed him he did not have the
right to consult an attorney about whether to submit a breath-alcohol test, refusal could
and would lead to a ticket, and failure would result in further testing. Sites asked Jones to
submit to a preliminary breath-alcohol test, to which Jones agreed. The results showed a
breath-alcohol level of 0.217 grams of alcohol per 210 liters of breath.

Trooper Sites arrested Jones and transported him to the Ford County Jail. Sites
provided him with oral and written notice of the Implied Consent Advisory, Form DC-70.
After allowing the proper 20-minute deprivation period, Sites asked Jones to submit a
breath sample on the Intoxilyzer 8000 machine. Jones agreed and the results showed a
breath-alcohol level of 0.207.

The State charged Jones with DUI, driving left of the center lane of travel, and
speeding. On January 6, 2015, Jones filed a motion to suppress the results of the breath-
alcohol test claiming Trooper Sites had failed to obtain a knowing, intelligent, and
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voluntary consent, free of duress or coercion. Jones contended the Kansas implied
consent law, K.S.A. 2014 Supp. 8-1001 et seq., was unconstitutional as applied and on its
face. He asserted that because Sites did not attempt to obtain a warrant prior to
conducting the breath-alcohol test, he had violated Jones' Fourth Amendment rights
under the United States Constitution and the court should suppress the results of the test.

The State filed a memorandum in opposition asserting that the courts had
permitted coercion in the implied consent law because safety on roadways is a
compelling government interest. The State asserted that the good-faith exception to the
exclusionary rule applied because Sites relied, in good faith, on the statutory scheme that
courts had held to be constitutional.

However, due to cases pending in the Kansas Supreme Court, the parties agreed to
a stay to avoid "needlessly wasting the Court's time and resources until the Kansas
Supreme Court directly addresses the issue." Jones waived his speedy trial rights until
after the Supreme Court had issued its opinion in State v. Nece, 303 Kan. 888, 367 P.3d
1260 (2016) (Nece I).

On July 8, 2016, the State filed a revised response to Jones' motion to suppress,
addressing the Kansas Supreme Court decisions in State v. Ryce, 303 Kan. 899, 368 P.3d
342 (2016) (Ryce I), and Nece I, which deemed the previously permitted coercion in the
Kansas implied consent law to be unconstitutional. However, the State also presented that
in State v. Kraemer, 52 Kan. App. 2d 686, 371 P.3d 954 (2016), rev. denied 306 Kan.
1325 (2017), decided after Ryce I and Nece I, the court had applied the good-faith
exception. The Kraemer court, 52 Kan, App. 2d at 695-99, determined that the
exclusionary rule did not apply to evidence obtained by police who acted in an
objectively reasonable manner in reliance on the implied consent statutory scheme before
the Supreme Court decided Ryce I and Nece I. The State asserted that the breath-alcohol
test was permitted as a search incident to arrest under the United States Supreme Court
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decision in Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 560
(2016).

On December 19, 2016, the parties submitted stipulations and a motion for a
ruling. The parties requested the district court determine the merits of the motion to
suppress first. The parties stated that if the court denied the motion, the matter would be
set for a bench trial based on stipulations of facts provided in the motion. However, if the
court granted the motion, the State could take an interlocutory appeal.

Considering the decisions in Birchfield, Ryce I, Nece I, and Kraemer, the district
court found that Trooper Sites had provided the implied consent advisory as required by a
facially valid statute and applied the ruling from Kraemer by applying the good-faith
exception to the breath-alcohol test results. The court admitted the results and found
Jones guilty of DUI, driving left of center, and speeding, based on the stipulated facts as
recited above. On April 7, 2017, the court sentenced Jones to 12 months of probation
with an underlying term of 120 days in jail with 5 days in jail as a condition of probation
for the DUI. He received fines for the two additional violations. However, Jones' bond
was continued and the court stayed the imposition of his sentence until a decision by the
Court of Appeals. Jones timely appealed.

The Court of Appeals decided several cases with similar fact patterns on March 2,
2018, and March 9, 2018. In these cases, the court applied both the search incident to
lawful arrest and good-faith exceptions to the exclusionary rule to permit admission of
breath-alcohol test results. State v. Perkins, 55 Kan. App. 2d 372, 415 P.3d 460 (2018),
was the only published decision.

We must first determine if the district court erred when it denied Jones' motion to
suppress.

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Standard of Review

The standard of review of a district court's decision on a motion to suppress is
bifurcated. Appellate courts apply a substantial competent evidence standard to the
factual underpinnings and the ultimate legal conclusions are reviewed de novo. State v.
Mattox, 305 Kan. 1015, 1035, 390 P.3d 514 (2017). When the material facts in a district
court's determination on a motion to suppress are not in dispute, the question of whether
to suppress is a question of law, which the appellate court reviews de novo. State v.
Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013). The parties stipulated to the facts, so
we will review the motion to suppress de novo.

Discussion

Jones contends that the district court erred by denying his motion to suppress
because the results of the breath-alcohol test were obtained in violation of his Fourth
Amendment rights against unreasonable searches and seizures. He states that he was
unlawfully coerced into submitting the breath sample and so the court should have
excluded the evidence. He concludes that Ryce I and Nece I should be the controlling
caselaw.

Jones asserts that the good-faith exception to the exclusionary rule should not
apply because of the facially coercive nature of the implied consent statutory scheme and
because the Kansas Supreme Court did not reach the issue when given the opportunity in
Nece I and Ryce I. Jones asks us to expand the exclusionary rule to the Legislature's
overreaching attempt at limiting individuals' constitutional rights. He quotes Justice
O'Connor's dissent in Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364
(1987), stating that such an expansion would have the deterrent effect for which the rule
was created.

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Fourth Amendment

The Fourth Amendment to the United States Constitution and Section 15 of the
Kansas Constitution Bill of Rights prohibit unreasonable searches and seizures. State v.
Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010). A breath-alcohol test is a search for
Fourth Amendment purposes. State v. Edgar, 296 Kan. 513, 526, 294 P.3d 251 (2013).
When law enforcement illegally obtains evidence in an unconstitutional search or seizure,
the exclusionary rule, a judicially created rule, may act as a safeguard by suppressing
evidence. State v. Powell, 299 Kan. 690, 694, 325 P.3d 1162 (2014). The purpose of the
rule is deterrence from future violations. Powell, 299 Kan. at 694-95. Courts should only
apply the exclusionary rule to further its intended purpose. Krull, 480 U.S. at 347. In
determining whether application will achieve the rule's deterrent effect, the court weighs
the likelihood of the deterrence against the costs of withholding reliable evidence. 480
U.S. at 347.

Though warrantless searches are per se unreasonable, the exclusionary rule may
not apply if the State shows that the search fits into recognized exceptions to the warrant
requirement. State v. Sanchez-Loredo, 294 Kan. 50, 55, 272 P.3d 34 (2012). The
recognized exceptions are consent, search incident to lawful arrest, stop and frisk,
probable cause plus exigent circumstances, the emergency doctrine, inventory searches,
plain view or feel, and administrative searches. 294 Kan. at 55.

The Kansas Supreme Court's recent decisions in Ryce I and Nece I revolve around
the consent assumed in the Kansas implied consent law, K.S.A. 2014 Supp. 8-1001 et
seq. In Ryce I, the court held that K.S.A. 2014 Supp. 8-1025, which imposed criminal
penalties for failure to submit to any test deemed consented to, is facially unconstitutional
because it criminalizes a defendant's right to withdraw consent to a warrantless search
and it is not narrowly tailored to achieve the compelling state interest of combating drunk
driving. 303 Kan. at 963. In Nece I, the court held that because criminal penalties for
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refusing to submit to a breath-alcohol test were unconstitutional, a driver's consent,
premised on the threat of criminal prosecution for refusal, was unduly coerced. 303 Kan.
at 889. Thus, because consent was premised on the coercion built into the advisory, it was
involuntary. 303 Kan. at 889.

Within months of Ryce I and Nece I, the United States Supreme Court issued its
decision in Birchfield, in which the Court addressed the search incident to lawful arrest
and consent requirements with regard to breath-alcohol and blood-draw tests
administered after DUI arrests. The Court distinguished between breath and blood testing
based on the intrusiveness of the tests, holding that breath tests are less intrusive and may
be administered without a warrant as a search incident to arrest. 136 S. Ct. at 2184-85. In
light of Birchfield, the Kansas Supreme Court granted the State's motions for rehearing in
both Ryce I and Nece I. The court essentially reaffirmed its holding in each case. State v.
Ryce, 306 Kan. 682, 699-700, 396 P.3d 711 (2017) (Ryce II); State v. Nece, 306 Kan.
679, 681, 396 P.3d 709 (2017) (Nece II). In Ryce II, the court modified Ryce I to reflect
the validity of warrantless breath-alcohol tests in DUI cases under the search incident to
lawful arrest exception. 306 Kan. at 693.

Search Incident to Lawful Arrest Exception

"The search-incident-to-arrest doctrine has an ancient pedigree. Well before the
Nation's founding, it was recognized that officers carrying out a lawful arrest had the
authority to make a warrantless search of the arrestee's person." Birchfield, 136 S. Ct. at
2174. While there is no indication that the Fourth Amendment altered the doctrine, the
United States Supreme Court has limited searches to the person arrested and the area in
his or her immediate control. 136 S. Ct. at 2175 (quoting Chimel v. California, 395 U.S.
752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 [1969]). The Court provided that the authority
for such a search lies in the fact of a lawful arrest and that lawful custodial arrests are not
only an exception to the warrant requirement, but also a "reasonable" search under the
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Fourth Amendment. United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 38 L.
Ed. 2d 427 (1973).

The Birchfield Court weighed the degree of intrusion into individuals' privacy and
the degree of necessity for breath-alcohol tests to promote the legitimate governmental
interest. 136 S. Ct. at 2176. In assessing individuals' privacy, the Court considered the
physical intrusion, the information revealed, and the level of embarrassment resulting
from the test. The physical intrusion is almost negligible, requiring only a minimum
inconvenience and effort similar to blowing up a balloon. 136 S. Ct. at 1276-77. Breath
tests only reveal the alcohol concentration in one's breath and there is no additional
information available or sample that could be further tested. 136 S. Ct. at 2177. Finally,
breath tests involve only minimum embarrassment as the act of blowing into a straw is
not inherently embarrassing and they are administered in a way to minimize
embarrassment. 136 S. Ct. at 2177.

The Birchfield Court noted that the State has a paramount interest in preserving
safety on public highways and alcohol consumption is a leading cause in traffic fatalities
and injuries, nearing 10,000 in 2014. 136 S. Ct. at 2178. The State interest goes beyond
merely removing the threat of drunk drivers on the road to also preventing future threats.
136 S. Ct. at 2179. The Court concluded that the Fourth Amendment permits warrantless
breath-alcohol tests incident to arrest for DUIs because the impact of breath-alcohol
testing on privacy is slight and the need is great. 136 S. Ct. at 2184. As with all searches
incident to arrest, a warrant is not required prior to a breath-alcohol test. 136 S. Ct. at
2185. Therefore, the search incident to lawful arrest exception applies and the district
court properly admitted the evidence.

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Good-faith Exception

The good-faith exception to the exclusionary rule applies when law enforcement
officers reasonably rely on statutes authorizing warrantless searches that are later
determined to be unconstitutional. Kraemer, 52 Kan. App. 2d at 698. To determine if an
officer reasonably relied on a statute, "courts consider whether the legislature '"wholly
abandoned its responsibility to enact constitutional laws"' and whether the statute was so
clearly unconstitutional that a reasonable officer should have known that it was
unconstitutional." 52 Kan. App. 2d at 698.

"'Unless a statute is clearly unconstitutional, an officer cannot be expected to question the
judgment of the legislature that passed the law. If the statute is subsequently declared
unconstitutional, excluding evidence obtained pursuant to it prior to such a judicial
declaration will not deter future Fourth Amendment violations by an officer who has
simply fulfilled his responsibility to enforce the statute as written.'" Daniel, 291 Kan. at
499 (quoting Krull, 480 U.S. at 349-50.)

The Court of Appeals has found that there was no indication of the
unconstitutionality of the Kansas implied consent law such that a well-trained officer
would have known that it was unconstitutional. Kraemer, 52 Kan. App. 2d at 699. Prior
to Ryce I and Nece I, our courts had upheld the validity of the consent obtained in
compliance with the implied consent advisory. Perkins, 55 Kan. App. 2d at 382 (citing
State v. Johnson, 297 Kan. 210, 222-23, 301 P.3d 287 [2013]). The Kansas Supreme
Court did not invalidate the implied consent advisory until more than a year had passed
after Trooper Sites read Jones the implied consent advisory. The Perkins court
determined there was no indication that the Legislature wholly abandoned its duty to
enact constitutional laws by passing the implied consent statutes considering other states
had similar statutes and continued to uphold them until the Birchfield decision. Perkins,
55 Kan. App. 2d at 382 (citing State v. Schmidt, 53 Kan. App. 2d 225, 235-37, 385 P.3d
936 [2016]). The Perkins court noted that several panels had already found the good-faith
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exception applied in similar circumstances. 55 Kan. App. 2d at 381; see Schmidt, 53 Kan.
App. 2d at 235-37, 385 P.3d 936; Kraemer, 52 Kan. App. 2d at 699; State v. McClellan,
No. 115,164, 2017 WL 839720, at *11-14 (Kan. App. 2017) (unpublished opinion), rev.
denied, 307 Kan. ___ (February 26, 2018); State v. Steckline, No. 112,242, 2017 WL
383343, at *7-8 (Kan. App. 2017) (unpublished opinion), rev. denied 306 Kan. 1330
(2017); State v. Rincon, No. 113,741, 2016 WL 3856670, at *4-5 (Kan. App. 2016)
(unpublished opinion), rev. denied 306 Kan. 1329 (2017). The reasoning in these cases is
persuasive. Therefore, the good-faith exception applies and the district court properly
admitted the evidence.

Affirmed.