I won in State v. Gray, No. 112,035 (Kan. October 27, 2017), obtaining reversal and a new suppression hearing in a Harvey County drug prosecution. Mr. Gray had raised a claim under a recent Kansas statute that prohibited "racial or other biased-based policing." The KSC had to answer (1) whether this was a legally cognizable claim in a criminal case and (2) if yes, what standard would apply?
The KSC held that, although there were other statutory remedies possible for violations of the statute, such a claim could also be raised under K.S.A. 22-3216, the statute governing suppression in criminal cases:
In summary, the Kansas Legislature has tied the suppression remedy to one consideration and one consideration alone: Was there "an unlawful search and seizure?" (Emphasis added.) K.S.A. 22-3216(1). If so, suppression is an appropriate remedy. Circling back to the plain language of K.S.A. 2014 Supp. 22-4609 that "[i]t is unlawful to use racial or other biased-based policing," we hold that K.S.A. 22-3216 provides a remedy for a violation of Kansas' biased-based policing statutes, K.S.A. 2014 Supp. 22-4606 et seq.
Interestingly, the KSC notes in passing that it could also consider whether suppression would be an appropriate remedy under its inherent powers to protect judicial integrity, but finding that the suppression statute applies, do not reach a conclusion on that point.
On the substance of the racial profiling statute, the KSC agreed with Mr. Gray that the statute has to require more than what is required for a traditional pretextual stop, which is what the district court and Court of Appeals had found:
We read K.S.A. 2014 Supp. 22-4609 and 22-4606(d) together to provide the test a district court should use when considering a motion to suppress based on an alleged violation of Kansas' biased-based policing statutes: The district judge must examine more than the ultimate justification of a traffic stop and must consider whether an officer "unreasonably use[d]" race or another characteristic listed in K.S.A. 2014 Supp. 22-4606(d) in deciding to initiate the enforcement action of a traffic stop.
With regard to the proper test for the district court, the KSC clarified that a defendant need merely allege that he or she is a member of a statutorily-protected class and reasons for arguing that a police action was biased-based. Then the state will have the burden to show that race (or other protected class) was not improperly used in initiating the police action and district court will be required to determine whether race (or other protected class) improperly factored in the the police action:
This means that ultimately, at least in many cases, the determination of whether an officer unreasonably used race will largely depend on credibility—a weighing-of-the evidence process that is already quite familiar to district judges. As with any credibility assessment, a district judge must weigh surrounding facts and circumstances along with a witness' statements. In a case like Gray's, where the defendant urges suppression based on an unlawful (but not unconstitutional) search or seizure, a district court cannot focus on whether a traffic violation caused or justified a pretextual stop. Instead, the district court must consider whether race, national origin, ethnicity, gender, or religion was unreasonably used in deciding to initiate the enforcement action. This means that a judge will consider any reasons proffered by the State as to why a particular traffic signal violation was enforced and determine whether those reasons credibly, fairly, and uniformly would result in decisions to initiate traffic stops regardless of a driver's race, ethnicity, national origin, gender, or religion.
On this last point, one commentator has noted the importance of the state making a showing that particular situations would "uniformly" result in the police action.
Because the district court did not have this test, the KSC reversed and remanded with directions to apply this test in Mr. Gray's case.
