State v. Perkins

• Citation: 449 P.3d 756
• Decision Date: 04 October 2019
• Docket Number: No. 112,449,112,449
• Parties: STATE of Kansas, Appellee, v. Dustin Dean PERKINS, Appellant.
• Court: United States State Supreme Court of Kansas

449 P.3d 756

STATE of Kansas, Appellee,

v.Dustin Dean PERKINS, Appellant.

No. 112,449

Supreme Court of Kansas.

Opinion filed October 4, 2019.

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

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Curtis Brown, of Glassman, Bird, Brown & Powell, L.L.P., of Hays, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

Per Curiam:

Dustin Dean Perkins seeks review of the Court of Appeals decision to affirm his conviction for driving under the influence. Citing this court's holdings in State v. Ryce , 303 Kan. 899, 368 P.3d 342 (2016) ( Ryce I ), and State v. Nece , 303 Kan. 888, 367 P.3d 1260 (2016) ( Nece I ), Perkins argues the results of the warrantless breath test conducted following his arrest should have been suppressed as an unconstitutional search.

The Court of Appeals rejected Perkins' argument and affirmed on two bases: (1) the search was not unconstitutional because it fit within the search incident to arrest exception to the Fourth Amendment's warrant requirement; and (2) the good-faith exception to the exclusionary rule permitted the State to convict Perkins with unconstitutionally obtained evidence. State v. Perkins , 55 Kan. App. 2d 372, 415 P.3d 460 (2018). On review of that decision, we affirm the Court of Appeals panel based on our holding that the good-faith exception to the exclusionary rule permits the State to use evidence obtained as a result of Perkins' breath test.

FACTUAL AND PROCEDURAL OVERVIEW

In July 2012, a Hays Police Department law enforcement officer (LEO) stopped the vehicle Perkins was driving for disobeying a red traffic signal and ultimately arrested him for driving under the influence (DUI). After the arrest, the LEO transported Perkins to the police station and provided him with written and oral implied consent advisories. Perkins agreed to submit to a breath test, and his breath sample registered a 0.158 percent blood alcohol content (BAC), which is above the legal limit. The State charged Perkins with misdemeanor DUI under K.S.A. 2012 Supp. 8-1567(a)(2), or in the alternative K.S.A. 2012 Supp. 8-1567(a)(3) and (b)(1)(B).

In the district court, Perkins filed a motion to suppress the results of the breath test and submitted the matter to the district court based upon a stipulation of facts and waiver of jury trial. The district court denied the motion to suppress in June 2014 and convicted Perkins of DUI. Perkins appealed.

Before the Court of Appeals considered Perkins' appeal, this court published its decisions in Ryce I and Nece I . Those decisions declared K.S.A. 8-1025's criminalization of a driver's refusal to submit to BAC testing to be unconstitutional under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights. See Nece I , 303 Kan. 888, 367 P.3d 1260, Syl. Consequently, a consent to submit to BAC testing after being advised that a refusal was a criminal act rendered the consent unduly coerced and invalid.

Subsequent to Ryce I and Nece I , the United States Supreme Court decided Birchfield v. North Dakota , 579 U.S. ––––, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016). That decision held that the Fourth Amendment prohibits warrantless blood tests pursuant to DUI arrests and that motorists cannot be deemed to have consented to such a test based on a threat of criminal penalty. 136 S. Ct. at 2186. But in contrast, the Birchfield Court also held that warrantless breath tests can be permissible under the Fourth Amendment. 136 S. Ct. at 2184.

Upon rehearing to consider the impact of Birchfield , this court reaffirmed the results reached in Ryce I and Nece I . State v. Nece , 306 Kan. 679, 396 P.3d 709 (2017) ( Nece II ); State v. Ryce , 306 Kan. 682, 396 P.3d 711 (2017) ( Ryce II ).

The Court of Appeals issued a show cause order in Perkins' case, directing the State to explain why the matter should not be summarily reversed per Nece I and II . The State responded, acknowledging that the consent in this case was rendered involuntary per Nece I but that other exceptions to the exclusionary rule should apply and the State should be given an opportunity to raise those exceptions because its initial briefing predated Nece I . The State specifically argued that the search incident to arrest exception to the warrant requirement and the good-faith exception to the exclusionary rule might apply.

The Court of Appeals then ordered supplemental briefing from both parties addressing the impact of Nece I and II and "whether any exceptions to the warrant requirement of the Fourth Amendment [to the United States Constitution] should be applied" to this case. Perkins , 55 Kan. App. 2d at 378, 415 P.3d 460.

After supplemental briefing from both parties, the Court of Appeals issued a published opinion in which it affirmed the district court, finding that: (1) the search incident to arrest exception to the warrant requirement allows a warrantless breath test; and (2) in this case, the good-faith exception would apply to save the evidence from the exclusionary rule because at the time of arrest the officer acted with an objectively reasonable reliance on a statute that was later determined to be unconstitutional. Perkins , 55 Kan. App. 2d at 380-83, 415 P.3d 460.

We granted Perkins' timely petition for review in which he argues that the Court of Appeals blatantly ignored this court's opinions in the Nece and Ryce decisions, that the State failed to preserve its search incident to arrest theory, that the State's good-faith exception theory was implicitly rejected in our Nece II decision and is inapplicable because the officer was not relying on an unconstitutional statute as authority to conduct the search, and that the Legislature abandoned its duty to pass constitutional laws.

ANALYSIS

The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit unreasonable searches. 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). Neither the Fourth Amendment nor § 15 of the Kansas Constitution Bill of Rights addresses the proper remedy for a warrantless search; the exclusionary rule is a judicially created remedy designed to deter unlawful searches and seizures by prohibiting the prosecution's use of unconstitutionally obtained evidence. Illinois v. Krull , 480 U.S. 340, 347, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987) ; State v. Daniel , 291 Kan. 490, 496, 242 P.3d 1186 (2010).

Before the district court, the State argued Perkins had consented to the search. The district court found the consent was voluntary and within the consent exception to the warrant requirement. The district court thus did not discuss a remedy. On appeal, the State pivoted to asserting two new reasons the invalid consensual search of Perkins' deep lung air was nevertheless admissible as evidence against him in the DUI prosecution. In one argument, the State argued the officer could have relied on another exception to the warrant requirement—the search incident to arrest exception. In the second argument, the State focused on the remedy that applies if the search is unreasonable—that is, whether the evidence is admissible because the officer relied in good faith on a statute. The panel acknowledged that the State did not present either issue to the trial court and, "[o]rdinarily, issues not raised before the trial court cannot be raised on appeal. See State v. Kelly , 298 Kan. 965, 971, 318 P.3d 987 (2014)." Perkins, 55 Kan. App. 2d at 378, 415 P.3d 460.

The panel then noted that "there are several exceptions to this [preservation] rule" and recited the three exceptions this court has recognized: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is determinative; (2) consideration of the theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the trial court may be affirmed because it was right for the wrong reason. 55 Kan. App. 2d at 378, 415 P.3d 460 (citing State v. Phillips , 299 Kan. 479, 493, 325 P.3d 1095 [2014] ).

The panel also cited to the parties' stipulated facts, holding that because the facts were undisputed the two new theories presented only questions of law. As such, the panel concluded the first preservation exception applied and declared that, therefore, it could consider the new theories for the first time on appeal. 55 Kan. App. 2d at 378, 381, 415 P.3d 460 (citing State v. Cleverly , 305 Kan. 598, 604, 385 P.3d 512 [2016] ; Daniel , 291 Kan. at 496, 242 P.3d 1186 ). The panel did not clarify whether it selected the first preservation exception before or after it ordered supplemental briefing in which the State argued the applicability of all three preservation exceptions. Cf. State v. Williams , 298 Kan. 1075, 1085-86, 319 P.3d 528 (2014) (warning litigants to explain why an issue is properly before the court or risk having the issue deemed abandoned).

This case, however, differs significantly from the normal situation on appeal. Here, it was the Court of Appeals that requested the State to brief new arguments on appeal, akin to the panel raising the issue sua sponte. When an appellate court raises an issue, the parties should be afforded an opportunity to present their positions to the court. See Lumry v. State, 305 Kan. 545, 566, 385 P.3d 479 (2016) (citing State v. Puckett , 230 Kan. 596, 640 P.2d 1198 [1982] ).

Lumry concerned a dispute over wage and hour laws and retaliatory discharge; a Court of Appeals panel sua sponte raised an issue regarding adequate alternative remedies under the Fair Labor Standards Act and then did not address the issue, but "arbitrarily invoked the...