Friday, July 21, 2006

Ah, K.S.A. 22-2501, we knew you so well

Rick Kittel won in State v. Vandevelde, No. 94,613 (July 21, 2006), reversing a Shawnee County drug conviction based on an improper search under K.S.A. 22-2501. The trial court had ruled the search was a proper search incident to arrest, but the COA disagreed holding that it did not meet the statutory requirement that the search be limited in scope to searching for fruits or instrumentalities of the crime. The COA also rejected claims that the search was supported by exigent circumstances and as an inventory search.

By the way, the state snuck in legislation late in the session this last year to amend K.S.A. 22-2501 to now read that officers may search incident to arrest for fruits and instrumentalities of "a" crime instead of "the" crime. (Here is the text of the bill signed by the Governor). This has been repeatedly tried by the KBI ever since State v. Anderson was decided based on K.S.A. 22-2501. I have testified against such attempts on at least three occassions, (i.e. here) but this year it kind of came about in conference committee at the end of the session and got through. So now cops can go on a fishing expedition upon any arrest, right? WRONG!

Here is an excerpt from my testimony on this subject before the Legislature:
Finally, it is not clear that the proposed amendment would even survive constitutional scrutiny. In State v. Anderson, 259 Kan. 16, 910 P.2d 180 (1996), the Kansas Supreme Court reviewed K.S.A. 22-2501 and its relationship to the Fourth Amendment. In that case, prosecutors argued that, in New York v. Belton, 453 U.S. 54 (1981), the United States Supreme Court allowed broad searches incident to arrest. But the Kansas Supreme Court noted that "Belton may expand the scope of the constitutionally permissible search of a vehicle but not the permissible purpose of the search." 259 Kan. at 23 (emphasis added). In fact, the Belton court re-emphasized that "[t]he scope of [a] search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation." 453 U.S. at 457 (citing Terry v. Ohio, 392 U.S. 1 (1968)). HB 2541 appears to do exactly what the Kansas Supreme Court indicates was not authorized by Belton, expand the permissible purpose of a search incident to arrest.
So keep filing those motions to suppress when the search exceeds the scope of the arrest warrant. Although the COA has not been that great for us lately, Rick's case today is a good example that it is still taking the Fourth Amendment pretty seriously.

[Update: the state did not file a petition for review and the mandate issued August 24, 2006]

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