BY THE COURT
Determining a statute's constitutionality is a question
of law subject to unlimited appellate review.
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
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.
K.S.A. 2018 Supp. 21-6607(c)(6) does not on its face violate
the Fourth Amendment to the United States Constitution or Â§
15 of the Kansas Constitution Bill of Rights.
from Sedgwick District Court; Bruce C. Brown, judge.
J. Eddinger, of Kansas Appellate Defender Office, for
J. Gillett, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, for
Leben, P.J., Malone and Gardner, JJ.
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.
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.
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.
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."
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
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 ...