State v. Daniel

Johnson, J.,

dissenting: I respectfully dissent. The majority makes a facially seductive case for expanding the scope of the good-faith exception to the exclusionary rule in this state to permit the admission of illegally obtained evidence where the law enforcement officer is deemed to have reasonably rebed on a statutory provision. However, I do not believe that we are bound to make such an exception for statutory rebanee, simply because the United States Supreme Court has recognized it, and I would not do so. Further, under the facts of this case, I submit that the law enforcement officer was not relying on a statutory provision but rather the justification for the search emanated from certain cases interpreting New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860, reh. denied 453 U.S. 950 (1981).

The majority acknowledges that, to date, this state has only recognized the good-faith exception to the exclusionary rule which derived from United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405, reh. denied 468 U.S. 1250 (1984). The Leon exception can be applied where the law enforcement officer reasonably and in good faith relied upon a search warrant which was issued and signed by a judge, notwithstanding a later determination that the warrant was defective and the search unlawful. 468 U.S. at 922-23.

However, the majority notes that, after Leon, the United States Supreme Court also applied the good-faith exception where the unlawful search resulted from a law enforcement officer’s objectively reasonable reliance on a statute. See Illinois v. Krull, 480 U.S. 340, 349-50, 94 L. Ed. 2d 364, 107 S. Ct. 1160 (1987). Then, the majority opines that because our case law has interpreted §15 of the Kansas Constitution Bill of Rights as providing the same protections as the Fourth Amendment to the United States Constitution, this court is compelled to recognize the good-faith exception articulated in Krull. I do not accept that constraint.

The disconnect in the majority’s compulsion analysis, in my view, can be found in the majority’s characterization of the exclusionary rule as “a judicially created remedy,” rather than as a constitutional right. 291 Kan. at 496. Even if one accepts the debatable premise that the United States Supreme Court’s interpretation of the Fourth Amendment functions as a concurrent interpretation of § 15 of the Kansas Constitution Bill of Rights, the exclusionary rule is not a product of that interpretation because the rule does not emanate from either Constitution. Accordingly, this court should be free to judicially create its own remedy for the victims of an illegal search in this state, i.e., to set the parameters of the exclusionary rule that will be enforced in Kansas.

In my view, the Leon exception involves a critical element distinguishing it from the Krull exception. A condition precedent to the Leon exception is a search warrant issued by a judge. In that situation, there has been a judicial interpretation of the law and application of that law to the facts of the particular case. Accordingly, the law enforcement officer, a member of the executive branch of government, has a legal opinion from a member of the judicial branch of government upon which the officer can then rely. In contrast, the majority would permit a law enforcement officer to perform the judicial function of interpreting a statute and applying the statutory provisions to the facts as they are being encountered by the officer. As a practical matter, the officer must necessarily rely on his or her own understanding of the statute’s meaning and appropriate application, notwithstanding the majority’s suggestion that the officer is simply relying on the legislature’s good faith in adopting constitutional laws. I do not believe that it is appropriate to delegate to an executive branch officer the clearly judicial function of interpreting and applying the law, and I would not extend the good-faith exception in this state to include a law enforcement officer’s reliance on a statute.

Even if I were to accept the majority’s newly adopted reliance-on-a-statute exception, I would not find that it was applicable in this case. The statutory provision upon which the majority believes the officer was entitled to rely was the amendment to K.S.A. 22-2501(c), which changed “the crime” to “a crime.” Cf. State v. Anderson, 259 Kan. 16, 22, 910 P.2d 180 (1996) (vehicle search for purpose of discovering evidence of crime unrelated to arrest violated preamendment version of K.S.A. 22-2501). Curiously, the legislature did not choose to be more explicit in its amendment by employing the words “any crime.” Nevertheless, as the majority notes, the legislative history suggests and the Court of Appeals found that the amendment was intended to expand “the scope of the permissible purpose of a search incident to a lawful arrest in Kansas consistent with Belton.” 291 Kan. at 504, quoting State v. Henning, 38 Kan. App. 2d 706, 722-23, 171 P.3d 660 (2007), rev. denied 289 Kan. 136, 209 P.3d 711 (2009).

Accordingly, the officer was not relying solely on the new text of K.S.A. 22-2501(c). Rather, to give context to the statutory amendment, the officer had to rely on the case law which had broadly interpreted and applied Belton. In effect, then, the majority has created a new exclusionary rule exception based upon a good-faith reliance on lower court decisions. The United States Supreme Court has not gone that far, even when presented the opportunity in Arizona v. Gant, 556 U.S. 332, 173 L. Ed. 2d 485, 129 S. Ct. 1710 (2009).

The Gant majority acknowledged that cases interpreting Belton to allow a vehicle search incident to arrest when the recent occupant of the vehicle had been handcuffed and secured in a patrol car are “legion.” 556 U.S. at 342. Yet, the Gant majority rejected the notion that its result should be dictated by law enforcement’s rebanee on that multitude of case precedent. Specifically, the majority said:

“We do not agree with the contention in Justice Alito’s dissent.. . that consideration of police reliance interests requires a different result. Although it appears that the State’s reading of Belton has been widely taught in police academies and that law enforcement officers have relied on the rule in conducting vehicle searches during the past 28 years, many of these searches were not justified by the reasons underlying the Chimel[ v. California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969),] exception. Coundess individuals guilty of nothing more serious than a traffic violation have had their constitutional right to the security of their private effects violated as a result. The fact that the law enforcement community may view the State’s version of the Belton rule as an entidement does not establish the sort of reliance interest that could outweigh the countervailing interest that all individuals share in having their constitutional rights fully protected. If it is clear that a practice is unlawful, individuals’ interest in its discontinuance clearly outweighs any law enforcement ‘entidement’ to its persistence.” 556 U.S. at 349.

In a footnote to the foregoing passage, the Gant majority apparently felt compelled to address what impact rebanee may have in another context, stating: “Because a broad reading of Belton has been widely accepted, the doctrine of quahfied immunity will shield officers from liability for searches conducted in reasonable rebanee on that understanding.” 555 U.S. at 349 n.ll. Conspicuously, the Court did not also note that the same reasonable rebanee on case precedent would shield the state from the exclusionary rule. I would not invent such a rule in this state.

For the multiple reasons stated above, I would reject the State’s first-time-on-appeal argument that the unlawfully obtained evidence was admissible under a good-faith exception to the exclusionary rule in this state. Accordingly, I would find the admission of the illegal evidence was reversible error.