367 P.3d 1260 (Kan. 2016), 111,401, State v. Nece

Docket Nº:111,401
Citation:367 P.3d 1260
Opinion Judge:Luckert, J.:
Party Name:STATE OF KANSAS, Appellant, v. GREGORY MICHAEL NECE, Appellee
Attorney:Brock R. Abbey, assistant county attorney, argued the cause, and Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, were with him on the brief for appellant. Michael S. Holland, II, of Holland and Holland, of Russell, argued the cause and was on the brief for appellee.
Judge Panel:LUCKERT, J. STEGALL, J., concurring. Stegall, J., concurring:
Case Date:February 26, 2016
Court:Supreme Court of Kansas
 
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367 P.3d 1260 (Kan. 2016)

STATE OF KANSAS, Appellant,

v.

GREGORY MICHAEL NECE, Appellee

No. 111,401

Supreme Court of Kansas

February 26, 2016

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Review of the judgment of the Court of Appeals in an unpublished opinion filed October 10, 2014. Appeal from Saline District Court; RENE S. YOUNG, judge.

SYLLABUS

BY THE COURT

A driving under the influence suspect's consent to breath-alcohol testing is not freely and voluntarily given if such consent was given following a written and oral advisory informing the suspect that he or she might " be charged with a separate crime of refusing to submit to a test to determine the presence of alcohol or drugs, which carries criminal penalties equal to or greater than those for the crime of driving under the influence." The advisory is inaccurate and cannot serve as the basis for a voluntary consent in light of State v. Ryce, No. 111,698, this day decided, which holds that K.S.A. 2014 Supp. 8-1025 is unconstitutional.

Brock R. Abbey, assistant county attorney, argued the cause, and Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, were with him on the brief for appellant.

Michael S. Holland, II, of Holland and Holland, of Russell, argued the cause and was on the brief for appellee.

LUCKERT, J. STEGALL, J., concurring.

OPINION

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Luckert, J.:

Ultimately, this appeal raises the question of whether the State violated the Fourth Amendment to the United States Constitution when it tested a driving under the influence (DUI) suspect's breath-alcohol content after the suspect consented to such a search. The suspect, Gregory Michael Nece, contends the evidence found through the breath-alcohol testing must be suppressed because his consent did not meet the Fourth Amendment standard of being freely and voluntarily given. More specifically, he argues the law enforcement officer coerced his consent by advising him, as the law requires, that if he refused consent " you may be charged with a separate crime of refusing to submit to a test to determine the presence of alcohol or drugs, which carries criminal penalties equal to or greater than those for the crime of driving under the influence."

In State v. Ryce, No. 111, 698, slip op. at 76, this day decided, we discussed K.S.A. 2014 Supp. 8-1025, which provides for the separate crime of refusal to submit that was referenced by law enforcement's advisory warning, and held that 8-1025 is facially unconstitutional. We must now decide whether our holding in Ryce has any effect on the advisory notice law enforcement is required to provide DUI suspects. In light of Ryce, we conclude that Nece's consent was unduly coerced because, contrary to the informed consent advisory, the State could not have constitutionally imposed criminal penalties if Nece had refused to submit to breath-alcohol testing. Thus, because Nece's consent was premised on the inaccurate information in the advisory, Nece's consent was involuntary.

Facts and Procedural Background

In June 2013, a Salina Police Department officer stopped a vehicle for having a defective headlight. When speaking with the driver, Nece, the officer noticed an odor of alcohol and that Nece's eyes were bloodshot. Nece told the officer he had one beer about an hour earlier. Thereafter, Nece failed standardized field sobriety testing, and a preliminary breath test showed his breath-alcohol content was above the legal limit.

The officer arrested Nece and took him to the Saline County Jail. At the jail, the officer requested a breath-alcohol test, and Nece received an oral and written notice of the implied consent advisory, commonly referred to as the DC-70 Implied Consent Advisory. As more fully quoted above, the advisory informed Nece that if he refused to submit to the breath-alcohol test: (1) he " may be charged with a separate crime of refusing to submit to a test" if he had previously refused a test or had been convicted of a DUI offense, (2) his driving privileges would be suspended for a year, and (3) a refusal could be used against him in a trial arising out of the operation of a vehicle while under the influence of alcohol or drugs. Nece agreed to take a breath test, which reflected his breath-alcohol content was .162.

Because Nece did not refuse the test, he was not charged under K.S.A. 2014 Supp. 8-1025, which makes " refusing to submit to or complete a test or tests deemed consented to under subsection (a) of K.S.A. 8-1001" a crime and sets forth the various criminal penalties. But the State charged Nece with driving under the influence of alcohol under

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K.S.A. 2012 Supp. 8-1567 and driving with a defective headlight under K.S.A. 8-1705. In response to the charges, Nece filed a motion to suppress evidence of the breath test results, arguing his consent to the test was not voluntary and thus the test violated his Fourth Amendment right to be free from an unreasonable search. After a hearing on the motion, the district court found that Nece's " consent to a breath test, after being provided the DC-70 Implied Consent Advisory and having it read to him, was not freely and voluntarily given." The State timely filed an interlocutory appeal to the Court of Appeals.

The Court of Appeals recognized that the breath test was a search subject to the protection of the Fourth Amendment. It also recognized that the Fourth Amendment demands a warrant before any search unless there is an applicable exception to the warrant requirement. State v. Nece, 337 P.3d 72, 2014 WL 5313744, at *4 (Kan. App. 2014) (unpublished opinion), rev. granted 301 Kan., (January 15, 2015). The Court of Appeals then considered whether the consent exception to the warrant requirement applied on the grounds that Nece had given a free and voluntary consent. The Court of Appeals followed this court's precedent, which often notes that the " coercive" effect of informing a suspect of the negative legal consequences of refusing to consent to blood-alcohol testing (such as losing driving privileges) does not render consent involuntary as long as the information about the negative consequences was accurate. 337 P.3d 72, 2014 WL 5313744, at *5 (citing Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 635, 176 P.3d 938 [2008]; Standish v. Department of Revenue, 235 Kan. 900, 904, 683 P.2d 1276 [1984]; Popp v. Motor Vehicle Department, 211 Kan. 763, 767, 508 P.2d 991 [1973]). The court concluded that Nece's consent was voluntary because the officer read him the implied consent advisory, as required by statute, and the advisory correctly advised him of the possibility of criminal charges. The court also recognized decisions from other courts upholding other states' criminal refusal statutes and determining that the possibility of criminal penalties did not unduly coerce consent. Thus, the court reversed and remanded the case to the district court. Nece, 337 P.3d 72, 2014 WL 5313744, at *8.

Chief Judge Thomas Malone concurred in the result. He believed, as to the issue of coerced consent, that " the legislature crossed the line when it made test refusal a crime." 337 P.3d 72, 2014 WL 5313744, at *8. He would have found that Nece's consent to a warrantless search was involuntary because the advisory, which informed him that he would be subject to criminal sanctions if he refused, was impermissibly coercive. Nonetheless, Chief Judge Malone would have applied the good-faith exception to the exclusionary rule because the officer reasonably relied on a statute in advising Nece of the consequences of refusal. 337 P.3d 72, 2014 WL 5313744, at *9. Nece petitioned this court for review, which was granted.

Analysis

Nece based his motion to suppress evidence on the Fourth Amendment, which provides: " The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . ." U.S. Const. amend. IV; see Mapp v. Ohio, 367 U.S. 643, 650-53, 655-57, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513 (1961) (reaffirming that the rule against unreasonable searches and seizures is imposed upon the states).

Notably, " the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable." Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 619, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). In other words, " [t]he ultimate standard set forth in the Fourth Amendment is reasonableness." Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). In defining the Fourth Amendment's touchstone of reasonableness in a criminal context, the United States Supreme Court has repeatedly held that searches conducted without a warrant " '" are per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions." " ' Los Angeles v. Patel, 576 U.S. __, __, 135 S.Ct. 2443, 2452, 192 L.Ed.2d 435 (2015) (quoting Arizona v. Gant,

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556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 [2009]; Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 [1967]); see State v. Johnson, 297 Kan. 210, 223, 301 P.3d 287 (2013); State v. Sanchez-Loredo, 294 Kan. 50, 55, 272 P.3d 34 (2012). Here, the State performed a search when it tested Nece's breath pursuant to the procedures defined in Kansas' implied consent statute, 8-1001. See Ryce, Slip op. at 8.

One of the established and well-delineated exceptions to the warrant requirement is an individual's consent to a search. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Johnson, 297 Kan. at 223. Kansas' implied consent statute provides a mechanism for obtaining consent to search...

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