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State v. Hinnenkamp

Court of Appeals of Kansas

July 5, 2019

State of Kansas, Appellee,
v.
Teresa Gayle Hinnenkamp, Appellant.

         SYLLABUS BY THE COURT

         1. Determining a statute's constitutionality is a question of law subject to unlimited appellate review.

         2. K.S.A. 2018 Supp. 21-6607(c)(6), which requires district courts to impose random drug and alcohol testing as a condition of probation, is exempt from the Fourth Amendment's general warrant requirement because (1) the special needs of the probation system make the warrant and probable cause requirement impracticable, and (2) the primary purpose of random drug and alcohol testing for probationers is distinguishable from the State's general interest in crime control.

         3. When we weigh a Kansas probationer's diminished expectation of privacy against the State's interests in promoting rehabilitation and probation compliance, and we consider the efficacy of random suspicionless drug and alcohol testing, it is reasonable to permit a court services officer or community correctional services officer to order a probationer to submit to random drug and alcohol testing, even without any suspicion of wrongdoing.

         4. K.S.A. 2018 Supp. 21-6607(c)(6) does not on its face violate the Fourth Amendment to the United States Constitution or § 15 of the Kansas Constitution Bill of Rights.

          Appeal from Sedgwick District Court; Bruce C. Brown, judge.

          Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.

          Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Leben, P.J., Malone and Gardner, JJ.

          Malone, J.

         Teresa Gayle Hinnenkamp appeals the district court's order that she submit to random drug and alcohol testing as a condition of her probation for her conviction of aggravated escape from custody. She claims that K.S.A. 2018 Supp. 21-6607(c)(6), which requires district courts to impose random drug and alcohol testing as a condition of probation, violates the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights. For the reasons stated in this opinion, we reject Hinnenkamp's claims and affirm the district court's judgment.

         On October 26, 2017, pursuant to a plea agreement, Hinnenkamp pled guilty to one count of aggravated escape from custody. She had failed to return to a work release facility where she had been assigned as the result of her conviction in another case. The presentence investigation report showed that Hinnenkamp had a lengthy criminal history including three convictions of driving under the influence and a conviction of unlawful possession of drug paraphernalia. She was on felony bond when she committed the new crime. On December 8, 2017, the district court sentenced her to 18 months' imprisonment but granted probation for 24 months to be supervised by community corrections.

         As a condition of probation, the judge ordered Hinnenkamp to "not possess, use or consume alcohol, illegal drugs or prescription drugs without a prescription." He also ordered her to "submit to random breath, blood or urine testing, as directed by [her] probation officer, and in any event, no less than once every 30 days." Hinnenkamp objected to the probation condition and briefly argued that she should not be subjected to random drug testing by her probation officer, but she did not expressly identify any constitutional grounds to support her claim. The district court overruled the objection but clarified that if Hinnenkamp did not test positive during her first year of probation, later testing would "be at probation's discretion." Hinnenkamp timely appealed her sentence.

         This appeal centers on the mandatory conditions of probation in K.S.A. 2018 Supp. 21-6607(c), which states, in part:

"In addition to any other conditions of probation . . . the court shall order the defendant to comply with each of the following conditions:
. . . .
"(6) be subject to random, but reasonable, tests for drug and alcohol consumption as ordered by a court services officer or community correctional services officer."

         Hinnenkamp argues that K.S.A. 2018 Supp. 21-6607(c)(6) violates her rights under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights because it subjects her to searches unsupported by reasonable suspicion. In response, the State argues that Hinnenkamp's argument is (1) improperly raised for the first time on appeal; (2) not ripe, so this court lacks jurisdiction to consider it; and (3) so inadequately briefed that Hinnenkamp has waived it. As for the merits of Hinnenkamp's argument, the State contends that K.S.A. 2018 Supp. 21-6607(c)(6) is constitutional, both on its face and as applied to Hinnenkamp. We will begin by addressing the State's reasons why we should not reach the merits of this appeal.

         Preservation

         To begin with, the State asserts that Hinnenkamp's constitutional claim is improperly raised for the first time on appeal. Although Hinnenkamp briefly objected to the probation condition for drug testing at her sentencing hearing, she did not refer to either the Kansas or federal Constitution to support her claim. We agree with ...


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