State v. Perkins

• Decision Date: 02 March 2018
• Docket Number: No. 112,449,112,449
• Citation: 55 Kan.App.2d 372,415 P.3d 460
• Parties: STATE of Kansas, Appellee, v. Dustin Dean PERKINS, Appellant.
• Court: Kansas Court of Appeals

55 Kan.App.2d 372

415 P.3d 460

STATE of Kansas, Appellee,

v.Dustin Dean PERKINS, Appellant.

No. 112,449

Court of Appeals of Kansas.

Opinion filed March 2, 2018.

Michael S. Holland II, of Holland and Holland, of Russell, for appellant.

Curtis Brown, special prosecutor, of Hays, Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for appellee.

Before Hill, P.J., McAnany and Atcheson, JJ.

Hill, J.:

From time to time, the law changes while cases are awaiting appellate review. This is such a case. Dustin Dean Perkins appeals his conviction for driving under the influence of alcohol arising from a trial to the court on stipulated facts. The issue for us to consider is whether his breath test was constitutional and its results admissible under the search-incident-to-arrest exception to the search warrant requirement of the Fourth Amendment to the United States Constitution. Following binding United States Supreme Court precedent, we hold that the breath test was a permissible search incident to arrest and thus, its results were admissible. Additionally, we hold the results were also admissible under the good-faith exception to the exclusionary rule. Accordingly, we affirm Perkins' conviction.

We begin with a brief summary of the facts that led to Perkins' conviction and follow with a review of three important appellate opinions that control our decision. We conclude with our analysis and explanation on why we affirm his conviction.

A police officer witnessed a traffic infraction.

Around 1:30 one morning in July 2012, an investigator from the Hays Police Department saw Perkins disobey a red traffic signal at an intersection. When the investigator stopped Perkins' car, he noticed that Perkins had bloodshot eyes and he detected a moderate odor of alcohol coming from Perkins' person. Perkins told him that he drank three beers that evening. When the investigator asked Perkins to get out of the car to perform field sobriety tests, he spotted an open, partially crushed, beer can on the floorboard between the driver's seat and door.

The field tests were informative. In the investigator's view, Perkins exhibited at least four "clues of impairment" on the walk-and-turn test. Perkins could not maintain his balance during the instructional phase of the test; he stopped walking before completing the second set of nine steps; he missed making heel-to-toe contact on both sets of nine steps; and, he did not turn around properly. On the one-legged-stand test, Perkins exhibited two clues of impairment—he swayed and hopped during all three 10-second standing periods.

All of these facts led the investigator to arrest Perkins for driving under the influence of alcohol. He then transported him to the law enforcement center for testing. He gave Perkins the oral and written notices required by the Kansas implied-consent law and, in due course, Perkins agreed to submit to a breath test. Perkins' breath test result indicated a breath-alcohol concentration of .158 grams of alcohol per 210 liters of breath, which is above the legal limit. The State charged him with a class A nonperson misdemeanor, driving under the influence of alcohol in violation of K.S.A. 2012 Supp. 8-1567(a)(2), or in the alternative (a)(3), and (b)(1)(B).

Before trial, Perkins moved to suppress the breath test results, contending that his consent for the test was coerced and involuntary. He argued that the breath test was an unreasonable search in violation of the Fourth Amendment to the United States Constitution. The district court denied his motion to suppress and found Perkins guilty on stipulated facts. Perkins appealed to this court.

While this appeal was pending, two Supreme Courts made important rulings.

Under Kansas law at the time of Perkins' arrest, a driver's consent to the testing of his or her blood, breath, urine, or other bodily substances for possible alcohol content was implied by statute. According to K.S.A. 2016 Supp. 8-1001, if a person is operating or attempting to operate a vehicle in Kansas, the law deems that person has consented to alcohol testing. Consent for testing is implied from that conduct. But, along with that law, K.S.A. 2016 Supp. 8-1025 made it a crime for a person to withdraw that implied consent by refusing the test. Our Kansas Supreme Court's treatment of the second statute—making it a crime to refuse the breath test—leads directly to the issue arising in this case.

We now examine two cases from the Kansas Supreme Court and one from the United States Supreme Court.

While Perkins' appeal was pending, the Kansas Supreme Court struck down one of Kansas alcohol testing laws. The court held that K.S.A. 2014 Supp. 8-1025 was facially unconstitutional because by punishing an individual for withdrawing his or her consent to search, it violated the fundamental right to be free from an unreasonable search. It further held that the statute was not narrowly tailored to serve the State's interests. State v. Ryce , 303 Kan. 899, Syl. ¶¶ 9, 368 P.3d 342 (2016) ( Ryce I ), aff'd on reh'g 306 Kan. 682, 396 P.3d 711 (2017) ( Ryce II ). The court did not stop there.

On the same day in another case, the court affirmed the suppression of a defendant's breath-alcohol test result in a case factually similar to this one. The court decided that the test resulted from involuntary consent because the defendant was told before consenting to the test that she might be charged with a separate crime for refusing to submit to a breath-alcohol test. In the court's view, since the State could not have constitutionally imposed criminal penalties if the defendant refused the test, the defendant's consent to submit to the test was obtained by means of an inaccurate and, therefore, coercive advisement. In other words, consent obtained through a falsehood is coercive and is no consent at all. State v. Nece , 303 Kan. 888, 889, 897, 367 P.3d 1260 (2016) ( Nece I ), aff'd on reh'g 306 Kan. 679, 396 P.3d 709 (2017) ( Nece II ). The Kansas Supreme Court was not the only appellate court to address this subject.

Shortly after these two Kansas rulings, the United States Supreme Court went deeper into the subject. It held that courts cannot deem drivers to have validly consented to a blood-alcohol content test based on the threat that they may be charged with a criminal offense if they refused to take the test. This is consistent with the Kansas Supreme Court's rulings in Ryce I and II. Importantly, the Court went further than the Kansas court and held that warrantless breath tests are permitted as a search incident to arrest—another exception to the requirement for a search warrant. Birchfield v. North Dakota , 579 U.S. ––––, 136 S.Ct. 2160, 2185-86, 195 L.Ed.2d 560 (2016).

The language in Birchfield could not be clearer. Breath tests are constitutionally acceptable warrantless searches incident to arrest:

"Here, by contrast, we are concerned with the search-incident-to-arrest exception, and as we made clear in Robinson and repeated in McNeely itself, this authority is categorical. It does not depend on an evaluation of the threat to officer safety or the threat of evidence loss in a particular case.

"Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great." Birchfield , 136 S.Ct. at 2183-84.

See Missouri v. McNeely , 569 U.S. 141, 150 n.3, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) ; United States v. Robinson , 414 U.S. 218, 224, 234-35, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

After the ruling in Birchfield , the Kansas Supreme Court then reheard and reaffirmed its rulings in both Ryce I and Nece I . The court did modify its Ryce I decision "to reflect the validity of conducting a breath test in a DUI case where an arrest is made under the warrant exception of a search incident to lawful arrest," but the court reaffirmed its original holding that K.S.A. 2016 Supp. 8-1025 was unconstitutional based on its interpretation of the Kansas statute. Ryce II , 306 Kan. at 693, 698-99, 396 P.3d 711. In Nece II , the court reaffirmed that Nece's consent to the warrantless breath test was involuntary. But the court did not further consider or analyze whether the search was lawful under the search-incident-to-arrest exception to the warrant requirement. 306 Kan. at 680-81, 396 P.3d 709.

In the wake of these rulings, which were made while this appeal was pending, we wanted to know what effect, if any, they had on this case. So, we ordered the parties to submit supplemental briefs addressing the rulings in Nece I and II . Do any exceptions to the warrant requirement of the Fourth Amendment apply here? Both sides responded.

The State takes two positions, claiming victory if it prevails under either theory. It now argues that the results of the warrantless breath test in this case were constitutionally admissible since they were a result of a search incident to arrest. In the alternative, the exclusionary rule that excludes the admission of illegally obtained evidence should not apply here because the officer acted in good-faith reliance on the Kansas statute when advising Perkins that he might be charged with a separate crime for refusing the breath test. For his part, Perkins did not respond to the State's argument that the breath test was a lawful search incident to arrest. Instead, Perkins argues that the State cannot raise the good-faith exception for the first time on appeal and that the good-faith exception does not apply under these circumstances anyway.

We review some fundamental points of law.

The Fourth Amendment to the United States Constitution is the bedrock law we rely upon. It prohibits unreasonable searches. Blood and breath tests conducted by the police constitute searches. See Birchfield , 136 S.Ct. at 2173 ; Ryce II , 306 Kan. at 684, ...