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State v. Perkins

Supreme Court of Kansas

October 4, 2019

State of Kansas, Appellee,
v.
Dustin Dean Perkins, Appellant.

         SYLLABUS BY THE COURT

         1. 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 evidence.

         2. 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.

         3. The 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.

         4. In 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.

         5. The 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 invalidated.

         Review of the judgment of the Court of Appeals in 55 Kan.App.2d 372, 415 P.3d 460 (2018).

          Appeal 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.

          PER CURIAM:

         Dustin 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.

         The 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' breath test.

         Factual and Procedural Overview

         In July 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 ...


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