State v. Bennett, 98,038.

CourtUnited States State Supreme Court of Kansas
Writing for the CourtDavis
Citation200 P.3d 455
PartiesSTATE of Kansas, Appellee, v. Nicholas Adams BENNETT, Appellant.
Docket NumberNo. 98,038.,98,038.
Decision Date30 January 2009
200 P.3d 455
STATE of Kansas, Appellee,
Nicholas Adams BENNETT, Appellant.
No. 98,038.
Supreme Court of Kansas.
January 30, 2009.

[200 P.3d 456]

Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Daryl E. Hawkins, assistant county attorney, argued the cause, and Paul J. Morrison,

[200 P.3d 457]

attorney general, was with him on the brief for appellee.

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

Nicholas Bennett was convicted of possession of methamphetamine and placed on probation. He appealed from one of the conditions of his probation, which required him to submit to random, suspicionless searches by community corrections or law enforcement officers. The Court of Appeals held that this condition was unconstitutional and unenforceable. State v. Bennett, 39 Kan.App.2d 890, 185 P.3d 320 (2008). We agree and affirm the Court of Appeals' reversal of the district court's finding that the probation condition was constitutional.


Nicholas Bennett pleaded guilty to possession of methamphetamine in October 2006. The State recommended that Bennett be placed on probation. As a condition of that probation, the State proposed that Bennett submit to random searches without probable cause or further court order. Before sentencing, Bennett filed a written objection to this proposed condition, arguing that United States Supreme Court precedent demands that such searches be supported, at a minimum, by reasonable suspicion.

The district court sentenced Bennett to 13 months in prison, suspended the sentence, and imposed an 18-month term of probation with mandatory drug treatment. The following exchange took place when the court considered the defendant's previous objection to the State's proposed probationary conditions:

"[DEFENSE COUNSEL:] So, my argument, Your Honor, is that the line, as it's now drawn, is that the probation officer or ... law enforcement officers would have to have ... at least reasonable suspicion or reasonable grounds to conduct a full-scale search ... of a probationer's residence ....


"UNIDENTIFIED SPEAKER: I would just clear some things up, maybe.... I'll read what's on a condition. Um, it just says that he shall allow a search ... without warrant of the residence, physical person, or any property under your control upon request of any community corrections officer. This search may be conducted with the assistance of any law enforcement officer.

"THE COURT: And that's what it is.... I don't think there's anything in there that talks about reasonable grounds.

Ms. Taylor [the probation officer], is it your understand[ing] that you have that right to search that at anytime [sic]?

"MS. TAYLOR: Yes, it's a standard condition of probation.

"THE COURT: [T]hat's the Court order; that's always been the Court's order. When ... you're on probation, you lose certain rights. One of the rights you lose, they—they let you come in the home. One of the ... probation orders is that they allow you to come in the home.

Now, normally, you're not allowed to come in the home, because a person has a Fourth Amendment right. But in probation, if you extrapolate it out, they have the right to come in the home ... to visit the defendant and to look around and see what's there. They have a right to come in the car and look in the car and look around. If the defendant is on probation, they lose those certain rights. So, conduct yourself accordingly."

The sentencing journal entry summarized the court's decision by including the following condition of probation: "Defendant is to submit to random searches deemed necessary that Community Corrections or Law Enforcement may conduct without probable cause or need for further Court order."

Bennett appealed, claiming that this condition of his probation violated his Fourth Amendment right to be free from unreasonable searches of his person and property. The Court of Appeals agreed in a published opinion authored by Chief Judge Gary Rulon, concluding that searches of probationers in Kansas must be supported by reasonable suspicion. Bennett, 39 Kan.App.2d 890, 185 P.3d 320. Because the district court's order subjected the defendant in this case "to nonconsensual, suspicionless searches by community

200 P.3d 458

corrections or law enforcement officers," the court found the probation condition in question to be "unconstitutional and unenforceable." 39 Kan.App.2d at 896, 185 P.3d 320.

The State petitioned this court for review, arguing that the Court of Appeals' decision would thwart efforts by law enforcement officers to rehabilitate probationers since those officers would be required to have reasonable suspicion to search. The State also claimed that the United States Supreme Court's decision in Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), which upheld a California law stating that parolees could be searched without reasonable suspicion, should be interpreted to imply that probationers could be subjected to similar suspicionless searches. This court granted the State's petition.

On November 14, 2008, while the case was pending before this court, Bennett was discharged from the Kansas Department of Corrections and is no longer under state custody. Bennett's counsel subsequently filed a notice of mootness, claiming that because Bennett has completed his probation, the issues raised in his appeal have been rendered moot.


Before considering the merits of Bennett's appeal, we must first consider whether the case was rendered moot when the defendant was discharged from probation in November 2008. As this court explained in Board of Johnson County Comm'rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 (1996):

"The mootness doctrine is one of court policy which recognizes that it is the function of a judicial tribunal to determine real controversies relative to the legal rights of persons and properties which are actually involved in the particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive."

At the same time, we have recognized an exception to the mootness rule "where a particular issue, although moot, is one capable of repetition and one of public importance." 259 Kan. at 504, 912 P.2d 716.

Bennett argues that because he is no longer under state supervision and thus is no longer subject to the conditions of his probation, no justiciable controversy remains to be decided by this court. The State responds that the issue before the court in this case— whether probationers may be subjected to suspicionless searches—is an issue that will be repeated as a standard condition of probation and is important to this state's rehabilitative and protective functions in enforcing probation conditions.

We conclude that although Bennett is no longer subject to the conditions of probation in this case, the question as to the constitutionality of suspicionless searches is an issue that is "`capable of repetition, yet evading review.'" Reece Shirley & Ron's, Inc. v. Retail Store Employees Union & Local 782, 225 Kan. 470, 472, 592 P.2d 433 (1979) (quoting So. Pac. Terminal Co. v. Int. Comm. Comm., 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 [1911]). The State has argued that the probation condition at issue in this case is a standard condition that is imposed in various jurisdictions across the state. This representation is supported by the district court's statements at sentencing that the suspicionless-search condition was "the Court order" and had "always been the Court's order." Moreover, given the length of time that may lapse between a defendant's placement on probation and this court's ultimate resolution of the defendant's appeal, we find that there is a real possibility that the issue presented here may evade our review.

Because the issue presented here is capable of repetition and of public importance, we consider the merits of Bennett's appeal. See Board of Johnson County Comm'rs, 259 Kan. at 504, 912 P.2d 716.


The sole question presented in the State's petition for review is whether a condition of

200 P.3d 459

probation that subjects probationers to random, nonconsensual, suspicionless searches violates the United States and Kansas Constitutions. The Court of Appeals held that such a condition violates the probationer's rights under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights. The State argues that requiring articulable reasonable suspicion to conduct searches of probationers imposes an unreasonable burden on community corrections and law enforcement officers.

Standard of Review

K.S.A. 21-4610 sets forth a nonexclusive list of probation conditions that a court may impose. As the Court of Appeals noted in its decision, however, K.S.A. 21-4610 does not include any provision for searches (random or otherwise) of probationers. Bennett, 39 Kan.App.2d at 896, 185 P.3d 320. The condition most akin to searches is perhaps K.S.A. 21-4610(c)(4), which states that probationers must "permit the court services officer or community correctional services officer to visit the defendant at home or elsewhere."

A district court has broad discretion to impose any conditions of probation that the court deems "proper." K.S.A. 21-4610(c); State v. Starbuck, 239 Kan. 132, 133, 715 P.2d 1291 (1986). Kansas courts have consistently recognized, however, that a district court does not have discretion to impose probationary conditions that violate a probationer's constitutional rights, absent a compelling state...

To continue reading

Request your trial
55 cases
  • State v. Schad, 99,445.
    • United States
    • Court of Appeals of Kansas
    • April 24, 2009
    ...the probation granted." Citing Spencer, this court in State v. Bennett, 39 Kan.App.2d 890, 891, 185 P.3d 320 (2008), aff'd 288 Kan. ___, 200 P.3d 455 (2009), noted that this court has allowed an appeal from a presumptive sentence when the appeal challenged an imposed condition of probation.......
  • State v. Roat, s. 113
    • United States
    • United States State Supreme Court of Kansas
    • June 19, 2020
    ...298 Kan. 1075, 1082, 319 P.3d 528 (2014) ; State v. Hilton , 295 Kan. 845, 849, 286 P.3d 871 (2012) ; State v. Bennett , 288 Kan. 86, 89, 200 P.3d 455 (2009).Recognizing mootness to be a discretionary policy aimed at avoiding unnecessary or fruitless issues has the benefit of allowing a cou......
  • State v. Hamm, W2016-01282-SC-R11-CD
    • United States
    • Supreme Court of Tennessee
    • November 21, 2019
    ...unreasonable based on a continuum in which "parole is more akin to imprisonment than probation"); see also State v. Bennett , 288 Kan. 86, 200 P.3d 455, 463 (2009) (concluding that searches of probationers require reasonable suspicion because probationers have a greater expectation of priva......
  • State v. Ryce, 111,698.
    • United States
    • United States State Supreme Court of Kansas
    • February 26, 2016
    ...a home under a warrant, he announces in effect that the occupant has no right to resist the search."); State v. Bennett, 288 Kan. 86, 92, 200 P.3d 455 (2009) ("the Fourth Amendment does not protect against all searches and seizures, but only those that are unreasonable"); State v. Seabury, ......
  • Request a trial to view additional results
2 books & journal articles
  • Special needs' and other fourth amendment searches
    • United States
    • James Publishing Practical Law Books Suppressing Criminal Evidence Fourth amendment searches and seizures
    • April 1, 2022
    ...holds that random, suspicionless searches of probationers violate the Fourth Amendment and the Kansas constitution. State v. Bennett , 200 P.3d 455 (Kan. 2009); see also United States v. Freeman , 479 F.3d 743(10th Cir. 2007). In addition to reviewing the rules your client signed to determi......
  • Is It Reasonable? A Legal Review of Warrantless Searches of Probationers and Parolees
    • United States
    • Criminal Justice Policy Review No. 27-7, November 2016
    • November 1, 2016
    ...776 N.E.2d 1244 (2002)Conditions of ProbationYes NoIowa State v. Ochoa, 792 N.W.2d 260 (2010)House File 2433Yes NoKansas State v. Bennett, 200 P.3d 455 (2008) Yes NoKentucky Colman V. Kentucky, 100 S.W.3d 745 (2002)Yes NoLouisiana Statute: Sect. 30.2.895 Yes NoMaine State v. Bernier, 486 A.......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT