City of Kingman v. Ary

• Decision Date: 20 November 2020
• Docket Number: No. 114,413,114,413
• Citation: 475 P.3d 1240
• Parties: CITY OF KINGMAN, Appellee, v. Ronald S. ARY, Appellant.
• Court: Kansas Supreme Court

475 P.3d 1240

CITY OF KINGMAN, Appellee,

v.Ronald S. ARY, Appellant.

No. 114,413

Supreme Court of Kansas.

Opinion filed November 20, 2020.

Michael S. Holland II, of Holland and Holland, of Russell, was on the briefs for appellant.

Cody R. Smith, city attorney, and Todd D. Hauser, assistant city attorney, were on the briefs for appellee.

The opinion of the court was delivered by Luckert, C.J.:

In this appeal, a Court of Appeals panel held that the warrantless blood test of Ronald S. Ary obtained under the implied consent statute was unconstitutional based either on consent or as a search incident to arrest per Birchfield v. North Dakota , 579 U.S. ––––, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016) ; State v. Ryce , 306 Kan. 682, 699-700, 396 P.3d 711 (2017) ( Ryce II ); and State v. Nece , 306 Kan. 679, 681, 396 P.3d 709 (2017) ( Nece II ). The panel still affirmed Ary's driving under the influence (DUI) conviction, holding that the good-faith exception to the exclusionary rule allowed the district court to consider the results of Ary's blood test. City of Kingman v. Ary , No. 114,413, 2017 WL 6395794 (Kan. App. 2017) (unpublished opinion).

Ary asks us to reverse the panel's holding that the good-faith exception applies. Ary recognizes this court's holding in State v. Perkins , 310 Kan. 764, 449 P.3d 756 (2019), in which we held the good-faith exception applies to breath tests for blood alcohol content collected under the unconstitutional implied consent statute. But Ary asks us to revisit Perkins . In doing so, he does not base any of his arguments on the differences between blood and breath tests, and he does not persuade us to abandon our recent decision in Perkins . We thus affirm the Court of Appeals and the district court's decisions to allow consideration of the blood test results, which presumptively showed Ary was guilty of DUI.

FACTUAL AND PROCEDURAL BACKGROUND

A law enforcement officer responded to a crash in May 2014 involving a vehicle driven by Ary. The officer investigating the crash noticed that Ary showed signs of impairment and arrested Ary in Kingman for DUI. The officer gave Ary the statutorily required implied consent advisories, both orally and through the written DC-70 form.

Ary agreed to submit to a blood test. Emergency personnel took a blood sample at the police station. Police did not try to get a search warrant. The blood test results revealed a blood alcohol content of .14 grams per 100 milliliters of blood.

Ary was found guilty in the Kingman Municipal Court and appealed for review by the Kingman County District Court. Ary moved to suppress the results of the search warrant as unconstitutional. Ary waived his right to jury trial, and the case proceeded to a bench trial on stipulated facts. Ary and the City of Kingman agreed to the stipulation with the understanding that Ary would preserve his right to appeal the denial of his motion to suppress. The City of Kingman raised the good-faith exception as one of the defenses in its response to Ary's motion to suppress at the district court. The district court denied the motion to suppress and found Ary guilty of DUI.

Ary appealed, and the Court of Appeals affirmed. Ary , 2017 WL 6395794, 407 P.3d 673. The panel held that the warrantless blood test was unconstitutional based either on consent or as a search incident to arrest, citing Birchfield , ––– U.S. ––––, 136 S. Ct. 2160, 195 L.Ed.2d 560 ; Ryce II , 306 Kan. at 699-700, 396 P.3d 711 ; and Nece II , 306 Kan. at 681, 396 P.3d 709. But the panel held the district court could consider evidence because the good-faith exception to the exclusionary rule applied. The panel held there was no reason for the arresting officer to know the implied consent statute would be found unconstitutional two years after the arrest, and there was no sign that the Legislature had abandoned its duty to pass constitutional laws. 2017 WL 6395794, at *4. The good-faith exception thus preserved the evidence. See Illinois v. Krull , 480 U.S. 340, 349-50, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987) ; United States v. Leon , 468 U.S. 897, 906, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) ; State v. Daniel , 291 Kan. 490, 500, 242 P.3d 1186 (2010).

After granting review over the Court of Appeals' decision, this court held in Perkins that the good-faith exception to the exclusionary rule allowed courts to consider evidence from breath tests obtained in reliance on the unconstitutional implied consent statute. 310 Kan. at 770-71, 449 P.3d 756. After that decision, we asked Ary and the City of Kingman to show cause why Perkins does not control the outcome of this appeal. In response, Ary asked us to revisit Perkins .

ANALYSIS

To provide context to Ary's request and our review, we begin by summarizing legal developments about the constitutional issues raised by implied consent laws and blood alcohol (BAC) testing of impaired drivers up through this court's decision in Perkins . Two lines of cases are relevant: (1) those defining BAC testing as a search and (2) cases discussing the good-faith exception.

1. Search

Several cases establish that a test for blood alcohol content is a search. E.g., Birchfield , 136 S. Ct. at 2173 ; Skinner v. Railway Labor Executives' Assn. , 489 U.S. 602, 616-17, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989). This point is critical to Ary's argument because the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit unreasonable searches. And a warrantless search is per se unreasonable unless a valid exception to the Fourth Amendment applies. Arizona v. Gant , 556 U.S. 332, 338, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009) ; State v. Neighbors , 299 Kan. 234, 239, 328 P.3d 1081 (2014). Recognized exceptions in Kansas include consent, search incident to lawful arrest, and exigent circumstances, among others. Neighbors , 299 Kan. at 239, 328 P.3d 1081.

Schmerber v. California , 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), was the United States Supreme Court's "first foray into considering intrusions into the human body." State v. Ryce , 303 Kan. 899, 920, 368 P.3d 342 (2016) ( Ryce I ), aff'd on reh'g 306 Kan. 682, 396 P.3d 711 (2017) ( Ryce II ). In that case, officers obtained a blood test from a driver over his objection; the Court held that—under the particularized facts of that case—the warrantless search fell into the exigent circumstances exception to the Fourth Amendment warrant requirement. 384 U.S. at 770-72, 86 S.Ct. 1826 ; see also Birchfield , 136 S. Ct. at 2174 ( Schmerber 's exigent circumstances exception by its nature requires case-by-case analysis and is not categorical); Missouri v. McNeely , 569 U.S. 141, 156, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) (same).

After Schmerber , legislatures enacted implied consent laws, eventually in all 50 states, because states recognized that "the cooperation of the test subject is necessary when a breath test is administered and highly preferable when a blood sample is taken." Birchfield , 136 S. Ct. at 2168. Typically, these laws sought to secure this consent through revoking or suspending a driver's license as a penalty for withdrawal of the consent because every motorist impliedly consents to the testing as a condition of the privilege of driving on public roads. 136 S. Ct. at 2169 ; State v. Adee , 241 Kan. 825, 831, 740 P.2d 611 (1987).

This was fine, constitutionally, until the Kansas Legislature enacted criminal sanctions for the withdrawal of consent. As the term "implied consent" suggests, these laws hinge on the consent exception to the Fourth Amendment warrant requirement. For consent to be valid, a person must be able to withdraw consent. Ryce I , 303 Kan. at 932, 368 P.3d 342. In Ryce I , the court held that the statutory language in K.S.A. 2014 Supp. 8-1025 which criminalized the driver's withdrawal of consent to BAC testing was unconstitutional. 303 Kan. at 963, 368 P.3d 342. In State v. Nece , 303 Kan. 888, 367 P.3d 1260 (2016) ( Nece I ), aff'd on reh'g , 306 Kan. 679, 396 P.3d 709 (2017) ( Nece II ), the court held that the unconstitutional threat of criminal sanctions in K.S.A. 2014 Supp. 8-1025 unduly coerced a driver's consent to BAC testing, making it involuntary. 303 Kan. at 889, 367 P.3d 1260.

Then, in Birchfield , the United States Supreme Court held that warrantless breath tests are constitutionally permissible under the search incident to arrest exception to the Fourth Amendment warrant requirement, and therefore such searches are a categorical exception to the warrant requirement. 136 S. Ct. at 2185. The Court did not include blood tests in this holding because blood tests are far more intrusive. 136 S. Ct. at 2185.

We reaffirmed Ryce I and Nece I after rehearings to consider the effect of Birchfield . Ryce II , 306 Kan. at 700, 396 P.3d 711 ; Nece II , 306 Kan. at 681, 396 P.3d 709. Ryce II pointed out that Birchfield concerned the search incident to arrest exception, while Ryce I and Nece I concerned the consent exception. The statute's criminalization of withdrawal of consent was thus still unconstitutional, although in Ryce II we recognized that warrantless breath tests could be constitutionally permissible as searches incident to arrest. 306 Kan. at 699-700, 396 P.3d 711.

This led to several appeals of DUI convictions in which officers procured the BAC test under the unconstitutional threat of criminal sanctions in K.S.A. 2013 Supp. 8-1025, repealed by L. 2019, ch. 13, § 5. The State began to argue that the good-faith exception to the exclusionary rule should apply because the officers had no reason to know that this court would declare K.S.A. 2013 Supp. 8-1025 unconstitutional, often years after the arrest.

2. Good-Faith Exception

Neither the Fourth Amendment nor § 15 of the Kansas Constitution Bill of Rights address the proper remedy for a warrantless search. The exclusionary rule is a judicially created remedy that deters unconstitutional searches because it...