State v. Henning, 98,118.

Citation209 P.3d 711
Decision Date26 June 2009
Docket NumberNo. 98,119.,No. 98,118.,98,118.,98,119.
PartiesSTATE of Kansas, Appellant, v. Randy L. HENNING, Appellee, and Kelly K. Zabriskie, Appellee.
CourtUnited States State Supreme Court of Kansas

Timothy L. Dupree, assistant county attorney, argued the cause, and Marc Goodman, county attorney, and Paul J. Morrison, attorney general, were with him on the briefs for appellant.

Don W. Lill, of Emporia, argued the cause and was on the brief for appellee Randy L. Henning.

Monte L. Miller, of Monte L. Miller, Chtd., of Emporia, argued the cause and was on the briefs for appellee Kelly K. Zabriskie.

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

These consolidated appeals focus on the meaning and constitutionality of K.S.A. 22-2501(c) a part of the Kansas statute on searches incident to arrest. We hold that the United States Supreme Court's recent decision in Arizona v. Gant, 556 U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), controls in this case and that it compels us to strike down K.S.A. 22-2501(c) as unconstitutional.

Factual and Procedural Background

There is no material dispute on the relevant facts.

Defendant Randy Henning came to the attention of Deputy Sheriff Patrick F. Stevenson when they crossed paths one morning at an Emporia convenience store. Stevenson believed that there was an outstanding warrant for Henning's arrest and radioed a dispatcher. When the dispatcher confirmed the existence of a warrant, Stevenson left the store and asked Henning to step out of the passenger side of the car he had just entered. Defendant Kelly Zabriskie was sitting in the driver's seat. Once Stevenson confirmed Henning's identity, he arrested and handcuffed him.

Stevenson then searched the car while Henning stood on a sidewalk 5 feet to 7 feet from the front of the car. Zabriskie stood beside Henning during the search. Stevenson determined that the car was registered to Henning but insured by Zabriskie. In the car's closed center console, Stevenson found a flashlight case. Inside the case, he discovered a clear glass pipe, a syringe, and two Q-tips. The clear glass pipe appeared to contain drug residue; the residue was later tested and identified as amphetamine. After finding this evidence, Stevenson placed Zabriskie under arrest for possession of drug paraphernalia.

Defendants moved to suppress. On hearing, Stevenson testified that he searched the car "[b]ecause the Kansas statute had changed to be able to search for items after an arrest, fruits of a crime, and that law had taken [effect] July 1st. [T]his was July 6th and ... [Henning] had been in that vehicle and the law also stated that I could search the vehicle where I made an arrest out of."

Stevenson was referring to a one-word change made in K.S.A. 22-2501(c) by the 2006 legislature. Since 1970, when the statute was enacted, it had provided:

"When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person's immediate presence for the purpose of

(a) Protecting the officer from attacks;

(b) Preventing the person from escaping; or

(c) Discovering the fruits, instrumentalities, or evidence of the crime." (Emphasis added.)

During the 2006 legislative session, the statute was first repealed and then revived with a change that took effect on July 1, 2006. The new subsection (c) has since read: "Discovering the fruits, instrumentalities, or evidence of a crime." (Emphasis added.)

Stevenson's testimony also made clear that, at the time he searched defendants' car, he had no expectation that he would find evidence of any particular crime committed by any particular person:

"Q: [Zabriskie's attorney] So what crime were you looking for fruits of[,] evidence of?"

"A: [Stevenson] Of any crime.

"Q: None in particular just a crime, any crime?

"A: I recall being trained that on the 1st, July, 2006 the Kansas statute changed to be able to fruit—to search for fruits of a crime.

"Q: A crime and I'm asking you what crime in particular were you searching.

"A: I don't know until I find it, sir."

In each of the defendants' cases, the district judge held that Stevenson's search was unconstitutional. Our Court of Appeals consolidated the State's appeals in the two cases and then reversed and remanded. We granted defendants' petition for review.

We address two questions in the following order: (1) What was the significance of the legislature's 2006 change of "the" to "a" in subsection (c) of the statute? and (2) Is the current statute constitutional? Replacement of "The" with "A"

The appellate standard of review for a question of statutory interpretation or construction is unlimited. See State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008). Our most fundamental guideline is that the intent of the legislature governs if that intent can be ascertained. See Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). Thus, our first task is to discern "the legislature's intent through the statutory language it employs, giving ordinary words their ordinary meaning." State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007).

"When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. We need not resort to statutory construction. It is only if the statute's language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature's intent." In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007).

See also State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 769, 69 P.3d 1087 (2003).

As a general rule, criminal statutes must be strictly construed in favor of the accused. Nevertheless, this rule of strict construction is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Paul, 285 Kan. 658, 662, 175 P.3d 840 (2008). When the legislature has revised an existing law, we presume that a change in meaning was intended. State v. McElroy, 281 Kan. 256, 263, 130 P.3d 100 (2006).

"A" is often referred to as an indefinite article, while "the" is denominated a definite article. See Garner's Modern American Usage 1, 785 (2nd ed.2003). The word "a" is "used as a function word before singular nouns when the referent is unspecified." Merriam Webster's Collegiate Dictionary 1 (11th ed.2003). "A" can also mean "any." Merriam Webster's Collegiate Dictionary 1. "The" is "used as a function word to indicate that a following noun or noun equivalent is definite or has been previously specified by context or by circumstance." Merriam Webster's Collegiate Dictionary 1294.

In State v. Anderson, 259 Kan. 16, 910 P.2d 180 (1996), this court examined a vehicle search incident to arrest and explicitly considered the specificity denoted by the use of "the" in the earlier version of K.S.A. 22-2501(c).

In Anderson, a police officer took the driver of a car into custody after a traffic stop and license check turned up an arrest warrant. The driver was handcuffed and situated in the back seat of the officer's car; a front-seat passenger was asked to step out. The officer then searched the car, uncovering drug evidence. The passenger was then arrested. Anderson, 259 Kan. at 17-18, 910 P.2d 180.

Writing for a unanimous court, then Chief Justice Kay McFarland first observed: "The search of the vehicle was purely and solely a search incident to arrest. There is no evidence of or claim made that probable cause was present for the search." Anderson, 259 Kan. at 19, 910 P.2d 180. Chief Justice McFarland then reviewed the language of K.S.A. 22-2501 and addressed the State's argument that the statute had been intended to codify federal law enunciated in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, reh. denied 396 U.S. 869, 90 S.Ct. 36, 24 L.Ed.2d 124 (1969), and should be read as co-extensive with the later United States Supreme Court ruling in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, reh. denied 453 U.S. 950, 102 S.Ct. 26, 69 L.Ed.2d 1036 (1981).

In Chimel, the Court had held that a search of an arrestee's entire house could not be justified under the Fourth Amendment; "[t]he search here went far beyond [defendant's] person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him. There was no constitutional justification, in the absence of a search warrant, for extending the search beyond that area." Chimel, 395 U.S. at 768, 89 S.Ct. 2034.

In Belton, the search at issue was conducted in the passenger compartment of a car after four occupants were removed from the car, placed under arrest, searched, and separated from each other. Drug evidence was found in the defendant's jacket on the back seat. In that case, the Court held that the scope of a constitutional search incident to arrest was broad enough to include the interior of the car. Belton, 453 U.S. at 460, 101 S.Ct. 2860. As Chief Justice McFarland noted in Anderson, the Belton decision also expressly denied that its holding altered "`the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.' Belton, 453 U.S. at 460 n. 3, 101 S.Ct. 2860." 259 Kan. at 22, 910 P.2d 180.

With Chimel and Belton as backdrop, Chief Justice McFarland then concluded that the original language of K.S.A. 22-2501(c), i.e., which used "the" rather than "a," may "be more restrictive than prevailing case law on the Fourth Amendment would permit, but this does not alter the plain language of the statute." Anderson, 259 Kan. at 22, 910 P.2d 180.

"Belton may expand the scope of the constitutionally permissible search of a vehicle but not the permissible...

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