BY THE COURT
Neither the Fourth Amendment to the United States
Constitution nor § 15 of the Kansas Constitution Bill of
Rights addresses the proper remedy for a warrantless search;
the exclusionary rule is a judicially created remedy designed
to deter unlawful searches and seizures by prohibiting the
prosecution's use of unconstitutionally obtained
Ordinarily, issues not raised before the trial court cannot
be raised on appeal. There are three exceptions to this
preservation rule: (1) the newly asserted theory involves
only a question of law arising on proved or admitted facts
and is determinative; (2) consideration of the theory is
necessary to serve the ends of justice or to prevent the
denial of fundamental rights; and (3) the trial court may be
affirmed because it was right for the wrong reason.
good-faith exception to the exclusionary rule as discussed in
Illinois v. Krull, 480 U.S. 340, 349-50, 107 S.Ct.
1160, 94 L.Ed.2d 364 (1987), applies when an officer
reasonably relies upon a statute to make a search and the
statute is later deemed unconstitutional. Reliance upon a
statute is not reasonable if the provisions of a statute are
such that a reasonable officer should have known that the
statute was unconstitutional.
this case, a law enforcement officer's reliance on K.S.A.
2012 Supp. 8-1025 was reasonable because the officer could
not have reasonably been expected to have known that the
statute would later be found unconstitutional and the officer
followed the law as it existed at the time.
Legislature did not wholly abandon its duty to pass
constitutional laws when it passed K.S.A. 2012 Supp. 8-1025;
this court has held that the provisions of K.S.A. 2012 Supp.
8-1025 that criminalize withdrawal of consent to submit to a
blood alcohol content test are unconstitutional, but the
entire implied consent statutory scheme has not been
of the judgment of the Court of Appeals in 55 Kan.App.2d 372,
415 P.3d 460 (2018).
from Ellis District Court; Edward E. Bouker, judge.
Michael S. Holland II, of Holland and Holland, of Russell,
argued the cause and was on the briefs for appellant.
Kristafer R. Ailslieger, deputy solicitor general, argued the
cause, and Curtis Brown, of Glassman, Bird, Brown &
Powell, L.L.P., of Hays, and Derek Schmidt, attorney general,
were with him on the briefs for appellee.
Dean Perkins seeks review of the Court of Appeals decision to
affirm his conviction for driving under the influence. Citing
this court's holdings in State v. Ryce, 303 Kan.
899, 368 P.3d 342 (2016) (Ryce I), and State v.
Nece, 303 Kan. 888, 367 P.3d 1260 (2016) (Nece
I), Perkins argues the results of the warrantless breath
test conducted following his arrest should have been
suppressed as an unconstitutional search.
Court of Appeals rejected Perkins' argument and affirmed
on two bases: (1) the search was not unconstitutional because
it fit within the search incident to arrest exception to the
Fourth Amendment's warrant requirement; and (2) the
good-faith exception to the exclusionary rule permitted the
State to convict Perkins with unconstitutionally obtained
evidence. State v. Perkins, 55 Kan.App.2d 372, 415
P.3d 460 (2018). On review of that decision, we affirm the
Court of Appeals panel based on our holding that the
good-faith exception to the exclusionary rule permits the
State to use evidence obtained as a result of Perkins'
and Procedural Overview
2012, a Hays Police Department law enforcement officer (LEO)
stopped the vehicle Perkins was driving for disobeying a red
traffic signal and ultimately arrested him for driving under
the influence (DUI). After the arrest, the LEO transported
Perkins to the police station and provided him with written
and oral implied consent advisories. Perkins agreed to submit
to a breath test, and his breath sample registered a 0.158
percent blood alcohol content (BAC), which is above the legal
limit. The State ...