Saturday, June 28, 2014

When cuffed in the patrol car, not in immediate presence of car

Rick Kittel and KU Defender Project intern Rene Ugarte won in State v. Pettay, No. 107,673 (Kan. June 6, 2014), obtaining suppression in a Reno County drug prosecution.  The question was whether, as the KSC had held in some other cases, the good-faith exception saved a pre-Gant search incident to arrest.  The KSC held that, because the statute in effect at the time of the offense only authorized searches incident to arrest within the "immediate presence" of the arrestee, the government could not rely on this statute in good faith when the arrestee had been handcuffed and placed into the patrol car.
The State argues the "immediate presence" limitation is expanded by federal caselaw such as Belton and its progeny to permit a vehicle search even while the arrestee is secured away from the vehicle. But our court has expressly rejected that argument and held federal Fourth Amendment caselaw, such as the Belton line of cases, does not expand the statute's plain language.
. . .
We hold that after Conn and Anderson, a law enforcement officer conducting a search incident to arrest could not objectively reasonably rely on federal caselaw to enlarge the physical scope set out in K.S.A. 22-2501 beyond the statute's plain language, which limited the search to the subject's "immediate presence."
Because the KSC held that the search did not fall into the plain language of the statute, the officer could not have relied on in in good-faith and, therefore, the admittedly illegally obtained evidence had to be suppressed.

As an aside, Justice Johnson concurred, but observed that the majority, like the SCOTUS, seems very focused on deterrence as a basis for the exclusionary rule.  Justice Johnson quotes LaFave for the proposition that there are other independent bases for exclusion beyond deterrence:  one is judicial integrity.
But the rule serves other purposes as well. There is, for example, . . .'the imperative of judicial integrity,' namely, that the courts not become 'accomplices in the willful disobedience of a Constitution they are sworn to uphold.' . . . A third purpose of the exclusionary rule, as stated most clearly by some members of the Court, is that 'of assuring the people—all potential victims of unlawful government conduct—that the government would not profit from its lawless behavior, thus minimizing the risk of seriously undermining popular trust in government.'
It is particularly interesting that in a world where the KSC (and SCOTUS) are very willing to change parties' substantive rights based on its view of wrongdoing on the part of a litigant (like forfeiture by wrongdoing or fugitive disentitlement), that it shouldn't extend the same rationale to the prosecution.  Other states have expressly adopted judicial integrity as a basis for its state constitutional rulings.  Could the KSC ever take judicial integrity into account if it ever discovers the state constitutional prohibition against unreasonable warrantless searches?

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