State v. Pettay

• Decision Date: 06 June 2014
• Docket Number: No. 107,673.,107,673.
• Parties: STATE of Kansas, Appellee, v. Erik PETTAY, Appellant.
• Court: Kansas Supreme Court

326 P.3d 1039

STATE of Kansas, Appellee,

v.Erik PETTAY, Appellant.

No. 107,673.

Supreme Court of Kansas.

June 6, 2014.

Syllabus by the Court

1. Under the Fourth Amendment to the United States Constitution, a warrantless search by law enforcement officers is considered unreasonable and invalid unless the search falls within a recognized exception to the warrant requirement. It is the State's burden to demonstrate a warrantless search was lawful.

2. The Fourth Amendment to the United States Constitution does not expressly prohibit the use of evidence obtained in violation of its protections. Instead, the exclusionary rule is a judicially created remedy to prevent the use of unconstitutionally obtained evidence in a criminal case. One good-faith exception to the exclusionary rule, articulated in Illinois v. Krull, 480 U.S. 340, 349–50, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), is for objectively reasonable reliance on a statute by law enforcement.

3. On a motion to suppress evidence, an appellate court reviews the factual findings underlying the trial court's suppression decision using a substantial competent evidence standard. The legal conclusions drawn from those factual findings are reviewed using a de novo standard. The court does not reweigh evidence.

4. When it was effective, K.S.A. 22–2501 controlled the permissible circumstances, purposes, and scope for a search incident to a lawful arrest. Notably, the statute's permissible physical scope specified that a law enforcement officer may reasonably search only the person arrested or the area within an arrestee's immediate presence.

5. Once an arrestee is handcuffed and secured within a patrol car, the arrestee's vehicle is no longer within the arrestee's immediate presence as required for a search incident to arrest under K.S.A. 22–2501.

6. Issues not briefed on appeal are deemed waived.

Rick Kittel, of Kansas Appellate Defender Office, was on the briefs for appellant.

Daniel D. Gilligan, assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

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

Erik Pettay seeks review of a Court of Appeals decision approving the admission of drug evidence obtained during a vehicle search incident to his arrest for driving with a suspended license. The search occurred 2 days before the United States Supreme Court's decision in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (invalidating certain searches incident to arrest). Both parties agree Gant rendered the search illegal. See State v. Henning, 289 Kan. 136, 148–49, 209 P.3d 711 (2009) (following Gant ). The lingering issue is whether the State can still use the illegally seized evidence under a good-faith exception to the exclusionary rule recognized by this court for pre- Gant searches incident to a lawful arrest. See State v. Daniel, 291 Kan. 490, 505, 242 P.3d 1186 (2010), cert. denied ––– U.S. ––––, 131 S.Ct. 2114, 179 L.Ed.2d 908 (2011) (allowing evidence obtained based on officer's objectively reasonable reliance on constitutionalityof K.S.A. 22–2501[c] ); see also State v. Carlton, 297 Kan. 642, 647, 304 P.3d 323 (2013) (same); State v. Karson, 297 Kan. 634, 641, 304 P.3d 317 (2013) (same); State v. Dennis, 297 Kan. 229, 240, 300 P.3d 81 (2013) (same).

Pettay argues the good-faith exception should not apply in his case because the search exceeded the physical scope permitted by K.S.A. 22–2501 (repealed July 1, 2011, by L. 2011, ch. 100, sec. 22). He is the first litigant to present this precise issue to this court. See Dennis, 297 Kan. at 239–40, 300 P.3d 81 (specifically noting defendant did not argue the search was outside his immediate presence or the statute's permissible physical scope); Daniel, 291 Kan. at 501–02, 242 P.3d 1186 (same). But our Court of Appeals has addressed the issue with varying results. See State v. Davison, 41 Kan.App.2d 140, 148, 202 P.3d 44 (2009) (automobile search did not exceed K.S.A. 22–2501's physical scope limitation, even though defendant was removed from car, handcuffed, and placed in patrol car before the vehicle search, rev'd by Supreme Court order dated October 9, 2009); but see State v. Oram, 46 Kan.App.2d 899, 914, 266 P.3d 1227 (2011) (good-faith exception not available when officers searched vehicle incident to arrest when defendant was handcuffed and secured in patrol car because vehicle was not within defendant's immediate presence); State v. Sanders, 5 Kan.App.2d 189, 196–97, 614 P.2d 998 (1980) (when defendant secured behind vehicle, vehicle is no longer within arrestee's immediate control).

K.S.A. 22–2501 directs that an officer “may reasonably search the person arrested and the area within such person's immediate presence.” (Emphasis added.) When Pettay's vehicle was searched, he was handcuffed and secured in a patrol car. The Court of Appeals agreed with the State that a good-faith exception should apply based on the factual similarities with the search in Daniel. State v. Pettay, No. 107,673, ––– Kan.App.2d ––––, 2013 WL 1149745, at *8, (Kan.App.2013) (unpublished opinion).

We disagree with that outcome. The State's arguments do not justify application of a good-faith exception in light of the plain language of K.S.A. 22–2501, which had been held to statutorily control the permissible circumstances, purposes, and scope for a search incident to arrest long before Pettay's vehicle search. See State v. Conn, 278 Kan. 387, 391, 99 P.3d 1108 (2004); State v. Anderson, 259 Kan. 16, 22, 910 P.2d 180 (1996). Based on the issues as presented by the parties, we reverse the Court of Appeals panel, reverse the district court's order, and remand.

Factual and Procedural Background

On April 19, 2009, a Reno County Sheriff's deputy initiated a traffic stop of Pettay's vehicle. The deputy had learned the vehicle's owner, who matched Pettay's description, had a suspended driver's license. Pettay acknowledged the suspended license and could not produce proof of current insurance. The deputy handcuffed Pettay and put him in the backseat of a patrol car. Another officer stayed with Pettay while the deputy conducted a warrantless search of Pettay's vehicle incident to his arrest. During the search, the deputy found a multicolored glass pipe on the passenger-side floorboard.

The pipe contained a residue the deputy believed to be marijuana, which later testing confirmed. Pettay subsequently waived his Miranda rights during questioning. He admitted the pipe was his and that he had smoked marijuana the night before. The State charged Pettay with felony possession of marijuana, failure to provide proof of liability insurance, and driving with a suspended license. See K.S.A. 2008 Supp. 8–262 (suspended license); K.S.A. 2008 Supp. 40–3104 (proof of insurance); K.S.A. 2008 Supp. 65–4162(a)(3) (possession).

Two days after his arrest, the United States Supreme Court decided Gant, which prohibits warrantless vehicle searches incident to arrest unless the arrestee is within reaching distance of the passenger compartment at the time of the search or there is a reasonable belief the vehicle contains evidence of the crime of arrest. Gant, 556 U.S. at 351, 129 S.Ct. 1710; see also Henning, 289 Kan. at 148–49, 209 P.3d 711. Relying on Gant and Henning, Pettay moved to suppress the drug evidence.

The State conceded the search was illegal under Gant but asserted the evidence should not be suppressed because the deputy relied in good faith on controlling law in effect at the time of the search, citing K.S.A. 22–2501(c) and New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). The district court ruled a good-faith exception did not apply because neither Gant nor Henning referred to it when suppressing the evidence in those cases, and granted Pettay's motion. The State filed an interlocutory appeal.

While that appeal was pending, this court issued its opinion in Daniel, 291 Kan. at 493, 242 P.3d 1186, which held an officer's pre- Gant vehicle search incident to arrest was subject to the good-faith exception to the exclusionary rule based on the officer's objectively reasonable reliance on K.S.A. 22–2501(c), which authorized searches incident to arrest to discover “the fruits, instrumentalities, or evidence of a crime.” (Emphasis added.) Relying on Daniel, the Court of Appeals summarily reversed the district court's suppression order in Pettay's case and remanded for further proceedings. See Supreme Court Rule 7.041 (2013 Kan. Ct. R. Annot. 62) (authorizing summary disposition).

On remand, Pettay continued to press the suppression issue. He advanced an argument based on a then-recently released Court of Appeals panel's decision in which a majority of the panel held that Daniel did not mandate application of a good-faith exception because the officer in that case had not expressly claimed he was relying on K.S.A. 22–2501(c) to conduct the pre- Gant search. See State v. Dennis, No. 101,052, ––– Kan.App.2d ––––, 2011 WL 425987, at *3 (Kan.App.2011) (unpublished opinion), rev'd297 Kan. 229, 300 P.3d 81 (2013). Pettay also argued the vehicle was not within his “immediate presence” at the time of the search as specified by K.S.A. 22–2501, which is the principal focus in this appeal.

The district court refused to suppress the evidence, holding it was obliged to follow Daniel. The district court found Pettay guilty on all charges after a bench trial on stipulated facts. It imposed sentences on all counts, including 18 months' community corrections with an underlying 12–month prison term for the possession of marijuana conviction. Pettay timely appealed to the Court of Appeals.

In an unpublished opinion, a Court of Appeals panel affirmed the district court's denial of Pettay's motion to suppress. Pettay, 2013 WL 1149745, at *8. The panel held the good-faith exception articulated in Daniel applied, even though the deputy had...