Tuesday, September 29, 2009

Another Gant win

Rick Kittel won in State v. Witmer, 100,646 (Kan. App. Sept. 25, 2009)(unpublished), reversing a Riley County drug conviction. The evidence stemmed from a search incident to arrest. The COA noted that, during the appeal, both Arizona v. Gant and State v. Henning were decided and were controlling:
Witmer had been arrested outside of her car and placed in the back of a patrol car before the search of the car was conducted. As in Gant, Witmer was secured and could not reach the passenger compartment of the car when the search was conducted. As a result, the was an unreasonable search incident to arrest under K.S.A. 22-2501 and the Fourth Amendment to the United States Constitution.
The COA holds that, because of the Fourth Amendment violation, the "evidence that the officer seized is therefore inadmissible."

[Update: the state did not file a PR and the mandate issued on October 29, 2009.]

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