Paradigm Shifts in Search and Suppression Law
| Citation | Vol. 79 No. 4 Pg. 22 |
| Pages | 22 |
| Publication year | 2010 |
By Kathryn Gardner
I. Introduction
It was a blockbuster year for the Fourth Amendment in 2009. Although the language of the Fourth Amendment remains static, recent court decisions have substantially altered several areas of Fourth Amendment law, impacting both civil and criminal practitioners in Kansas. These include the definition of a search, the scope of traditional exceptions to the warrant requirement, a growing number of special needs cases, and a broader good-faith exception to the exclusionary rule, producing a corresponding expansion of qualified immunity. From initial traffic stops, as addressed in "Traffic Stops: Normal and Abnormal Incidents Thereto,"[1] to suppression of illegally seized evidence, the rules have changed, even beyond the realm of vehicle searches.
Traditional exceptions to the warrant requirement have recently been refined under Kansas law in 2009. The U.S. Supreme Court (U.S. Court) and the Kansas Supreme Court (Kansas Court) both narrowed the search incident to arrest exception, although not identically. The emergency doctrine has also undergone substantial change. What are the current exceptions to the warrant and probable cause requirement in Kansas, and are they the same in Kansas state and federal courts?
In a growing number of cases, the Fourth Amendment's traditional warrant and probable cause requirement is replaced with a test which balances the governmental against the private interests at stake. These special needs cases are sometimes viewed as exceptions to the warrant requirement. What are special needs cases and why are they permitted?
Many of us learned the "fruit of the poisonous tree doctrine," that evidence obtained as the result of an illegal search is inadmissible and must be suppressed.[2] But in January 2009, the U.S. Court announced what some have called a "new rule on suppression,"[3] which expands the good-faith exception to the exclusionary rule. This article will address these changes in Fourth Amendment law.
II. General Law - Fourth Amendment
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ... ."[4] Although nothing in the amendment's text suggests a warrant is required, the U.S. Court has created a presumption that a warrant is required, unless infeasible, for a search to be reasonable.[5]
A Fourth Amendment search is traditionally deemed to occur "when the government violates a subjective expectation of privacy that society recognizes as reasonable."[6] Kansas practitioners must meet "the classic Fourth Amendment test: whether the defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as objectively reasonable."[7]
It used to be fairly simple to determine whether or not a search had occurred. A search typically consisted of a law enforcement officer's physical entry into the threshold of the house for the purpose of gathering information or evidence. With the advance of technology, however, many less invasive yet more surreptitious means of gaining previously private information are becoming common. This complicates the initial determination of whether a Fourth Amendment search has occurred. The U.S. Court has insisted "that the meaning of a Fourth Amendment search must change to keep pace with the march of science."[8] In such cases, the general rule currently is that a search occurs when sense enhancing technology obtains information that could not otherwise have been obtained without physical intrusion into a constitutionally protected area, at least where "the technology in question is not in general public use."[9] As the use of global positioning systems and other technology becomes more prevalent, the determination of whether a search has occurred becomes more difficult, as demonstrated by many cases in this area grappling with issues of extrasensory or sense-enhancing technology.[10]
III. Traditional Exceptions to the Warrant Requirement in Kansas
"A warrantless search of a suspect's premises is unreasonable per se under the Fourth Amendment unless the government shows that the search falls within one of a carefully defined set of exceptions ..."[11] In Kansas, the traditional exceptions to the warrant requirement include consent; search incident to a lawful arrest; stop and frisk; probable cause to search accompanied by exigent circumstances; the emergency doctrine; inventory searches; plain view; plain feel; and administrative searches of closely regulated businesses.[12] Creative efforts to expand this fixed set of traditional exceptions, such as by urging adoption of a prank exception for a mock arrest, have failed.[13]
A. Narrowing of the search incident to arrest exception
Until recently, the scope of the search incident to arrest exception was the same under federal and state law in Kansas. But decisions in 2009 appear to render the scope of the Kansas incident to arrest exception narrower than that of its federal counterpart.
The search incident to arrest exception has long permitted an officer's warrantless search of an arrestee and the surrounding area, contemporaneously with a lawful arrest. Under Tenth Circuit law, the propriety of a search incident to arrest depends on two factors: (1) whether the arrest was in fact lawful and (2) "whether the search was contemporaneous, both spatially in terms of areas within the defendant's "?immediate control' and temporally in terms of the incidents rendering the arrest permissible."[14]
Under Kansas law, "the permissible circumstances, purposes, and scope of a search incident to arrest are all controlled by K.S.A. 22-2501." [15] The Kansas Court in 2009 found this statute "facially unconstitutional" to the extent it permitted a search for the purpose of discovering evidence of "a crime" other than "the crime" for which the person was arrested.[16] The result of this holding is that the elements of this exception are different under federal law than under state law, as discussed below.
Where Kansas law and federal law are not identical, attorneys must base their determination of governing law — and thus their substantive analysis of the case — on the jurisdiction in which the prosecution is brought, rather than presume state law applies since state actors are involved.
[I]n federal prosecutions the test of reasonableness in relation to the Fourth Amendment protected rights must be determined by federal law even though the police actions are those of state police officers. ... Therefore, the fact that the arrest, search, or seizure may have violated state law is irrelevant as long as the standards developed under the federal constitution were not offended.[17]
A short summary of relevant cases demonstrates the current challenges in this area for Kansas practitioners.
1. New York v. Belton
Since the Belton case was decided by the U.S. Court in 1981, a "bright line rule" governed the legality of a search incident to arrest in federal court in the context of a car stop: "When a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile."[18] That rule permitted car searches even when an officer did not act to secure his safety or to preserve evidence related to the crime of arrest. Kansas courts consistently applied Belton to allow an officer to search the passenger compartment of an automobile soon after its occupant was arrested, regardless of whether or not the occupant was within reaching distance of the vehicle.[19] Although the Kansas incident to arrest statute limited the permissible search area to the person arrested and the area within such person's "immediate presence," Kansas courts interpreted that area to include the passenger compartment of the vehicle, in accordance with Belton. State and federal law in this area were thus consistent.
2. Arizona v. Gant
In 2009, the U.S. Court in Gant,[20] altered Beltons bright-line rule by holding: "Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest."[21] This grab zone rule represents a substantial change in the established scope of the incident to arrest exception. No longer is a vehicle search valid as incident to a lawful arrest when a defendant is handcuffed in the back of the patrol car at the time of the search. Nor can an officer legally search a vehicle pursuant to this exception if the officer reasonably suspects the vehicle contains evidence of some crime other than the offense for which the person is arrested. In many cases when a person is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains evidence relevant to the crime of arrest.[22]
3. State v. Henning
The Kansas Court in 2009 followed Gant in State v. Henning,[23] finding a portion of Kansas' incident to arrest statute facially unconstitutional. When that statute was enacted in 1970, it provided:
When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person's immediate presence for the purpose of (a) Protecting the officer from attacks; (b) Preventing the person from escaping; or (c) Discovering the fruits, instrumentalities, or evidence of the crime. (emphasis added)
K.S.A. 22-2501. On July 1, 2006, subsection (c) was changed to read: "Discovering the fruits, instrumentalities, or evidence of a crime."...
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