Distinguishing Daniel [PR GRANTED]

Michelle Davis won in State v. Dennis, No. 101,052 (Kan. App. Feb. 4, 2011)(unpublished), obtaining reversal of several Butler County drug convictions. The main issue was whether evidence illegally obtained as the result of a vehicular search incident to arrest should be suppressed. The state relied on Daniel, a recent KSC case, which held that because a recently amended statute purported to make such searches legal, the good faith exception to the exclusionary rule applied. The COA factually distinguished that case:

We are not persuaded that Daniel controls the outcome here. First, the officer here made no claim of reliance on K.S.A. 22-2501(c), nor does the record indicate any such reliance. Second, the State has not argued (until its supplemental brief) that the officer relied on the statute; instead, the State has argued that the officer acted “within the permitted parameters of a search incident to arrest as set forth ... in New York v. Belton.” Third, here the appellant has indeed argued that the vehicle was no longer within his “immediate presence,” whereas Daniel made no such argument and the Supreme Court specifically noted the impact of this distinction in its analysis.

Here, we must engage in an analysis of a different sort; the issue here turns not on whether the officer could have objectively relied on the constitutionality of the statute, but rather on whether the officer could have objectively relied on existing case law in conducting his search of Dennis' vehicle. We have concluded he could not, and therefore the State is not entitled to a good-faith exception to the exclusionary rule.

The COA does a nice job of explaining that the state of the law regarding such searches was hardly "settled" at the time of the search in this case. As a result, the COA held the illegally obtained evidence should be suppressed:

In summary, our Supreme Court's recent decision in Daniel is not controlling here because the State has not argued and the record does not support any reliance on K.S.A. 22-2501(c). Instead, the State has urged us to hold that the search of Dennis' vehicle was based on the officer's good-faith reliance on "established law." We cannot do so because neither Kansas law nor federal law should have given the officer any comfort in searching the vehicle after Dennis was secured and no longer within the immediate presence of the interior of that vehicle.

I might also note that on February 17, 2011, I filed a cert petition in Daniel itself in light of a pending SCOTUS case involving the application of the good-faith exception to the Gant error. You can read SCOTUSblog coverage of that pending case here.

[Update: the state filed a PR on March 4, 2011.]

[Further update: the KSC granted the state's PR on May 31, 2011. The case will likely be argued late next fall.]