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Topeka, KS - Criminal defense lawyer represented defendant charged with DUI
In April 2015, a law enforcement officer investigating a vehicle crash involving
Heim arrested Heim for driving under the influence (DUI). The officer gave Heim the
statutorily required implied consent advisories, both orally and through the written DC-70
form. Heim requested a blood test, which was drawn at a hospital. Officers did not get a
search warrant. The sample, taken within three hours of driving, measured .19 grams per
100 milliliters of blood.
Heim filed a motion to suppress the blood test results as unconstitutional. The
district court denied the motion and conducted a bench trial on stipulated facts. The
district court found Heim guilty of DUI.
The Court of Appeals affirmed. State v. Heim, No. 115,980, 2018 WL 1884093
(Kan. App. 2018) (unpublished opinion). On appeal, Heim argued the blood test was
unconstitutional. See Birchfield, 136 S. Ct. 2160; Ryce II, 306 Kan. at 699-700; Nece II,
306 Kan. at 681. But, for the first time on appeal, the State argued the good-faith
exception applied and allowed the district court to consider the results of the blood test.
Heim argued the State could not raise the exception for the first time on appeal and that it
did not apply. The Court of Appeals panel rejected both arguments.
First, the panel held that the State could raise the good-faith exception for the first
time on appeal because the United States Supreme Court had not decided Birchfield
before Heim's arrest and there was no reason for the State to raise the issue. It was thus a
newly relevant theory and involved only a question of law. 2018 WL 1884093, at *2.
Second, the panel held the good-faith exception applied because there was no reason for
the officer to know the statute would be found unconstitutional. The panel thus affirmed
the conviction. 2018 WL 1884093, at *4.
Heim petitioned for review, arguing the Court of Appeals panel erred in holding
the good-faith exception applied. He did not seek our review of the holding that the State
could raise the exception for the first time on appeal and has thus waived our
consideration of that issue. In re A.A.-F., 310 Kan. 125, 134, 444 P.3d 938 (2019); see
also Supreme Court Rule 8.03(b)(6)(C)(i) (2020 Kan. S. Ct. R. 54) ("The Supreme Court
will not consider issues . . . not presented or fairly included in the petition for review.").
As to remaining question of whether the good-faith exception applies, after
granting review over the Court of Appeals' decision, this court held in Perkins, 310 Kan.
764, that the good-faith exception to the exclusionary rule allowed courts to consider
evidence from breath tests obtained in reliance on the unconstitutional implied consent
statute. After that decision, we asked Heim and the State to show cause why Perkins does
not control the outcome of this appeal. Heim asked us to revisit Perkins.
To provide context to Heim's request and our review, we begin by summarizing
legal developments about the constitutional issues raised by implied consent laws and
blood alcohol (BAC) testing of impaired drivers up through this court's decision in
Perkins. Two lines of cases are relevant: (1) those defining BAC testing as a search and
(2) cases discussing the good-faith exception.
Several cases establish that a test for blood alcohol content is a search. E.g.,
Birchfield, 136 S. Ct. at 2173; Skinner v. Railway Labor Executives' Assn., 489 U.S. 602,
616-17, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989). This point is critical to Heim's
argument because the Fourth Amendment to the United States Constitution and § 15 of
the Kansas Constitution Bill of Rights prohibit unreasonable searches. And a warrantless
search is per se unreasonable unless a valid exception to the Fourth Amendment applies.
Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009); State v.
Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014). Recognized exceptions in Kansas
include consent, search incident to lawful arrest, and exigent circumstances, among
others. Neighbors, 299 Kan. at 239.
Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966),
was the United States Supreme Court's "first foray into considering intrusions into the
human body." State v. Ryce, 303 Kan. 899, 920, 368 P.3d 342 (2016) (Ryce I), aff'd on
reh'g 306 Kan. 682, 396 P.3d 711 (2017) (Ryce II). In that case, officers obtained a blood
test from a driver over his objection; the Court held that—under the particularized facts
of that case—the warrantless search fell into the exigent circumstances exception to the
Fourth Amendment warrant requirement. 384 U.S. at 770-72; see also Birchfield, 136 S.
Ct. at 2174 (Schmerber's exigent circumstances exception by its nature requires case-bycase analysis and is not categorical); Missouri v. McNeely, 569 U.S. 141, 156, 133 S. Ct.
1552, 185 L. Ed. 2d 696 (2013) (same).
After Schmerber, legislatures enacted implied consent laws, eventually in all 50
states, because states recognized that "the cooperation of the test subject is necessary
when a breath test is administered and highly preferable when a blood sample is taken."
Birchfield, 136 S. Ct. at 2168. Typically, these laws sought to secure this consent through
revoking or suspending a driver's license as a penalty for withdrawal of the consent
because every motorist impliedly consents to the testing as a condition of the privilege of
driving on public roads. 136 S. Ct. at 2169; State v. Adee, 241 Kan. 825, 831, 740 P.2d
This was fine, constitutionally, until the Kansas Legislature enacted criminal
sanctions for the withdrawal of consent. As the term "implied consent" suggests, these
laws hinge on the consent exception to the Fourth Amendment warrant requirement. For
consent to be valid, a person must be able to withdraw consent. Ryce I, 303 Kan. at 932.
In Ryce I, the court held that the statutory language in K.S.A. 2014 Supp. 8-1025 which
criminalized the driver's withdrawal of consent to BAC testing was unconstitutional.
303 Kan. at 963. In State v. Nece, 303 Kan. 888, 367 P.3d 1260 (2016) (Nece I), aff'd on
reh'g, 306 Kan. 679, 396 P.3d 709 (2017) (Nece II), the court held that the
unconstitutional threat of criminal sanctions in K.S.A. 2014 Supp. 8-1025 unduly coerced
a driver's consent to BAC testing, making it involuntary. 303 Kan. at 889.
Then, in Birchfield, the United States Supreme Court held that warrantless breath
tests are constitutionally permissible under the search incident to arrest exception to the
Fourth Amendment warrant requirement, and therefore such searches are a categorical
exception to the warrant requirement. 136 S. Ct. at 2185. The Court did not include blood
tests in this holding because blood tests are far more intrusive. 136 S. Ct. at 2185.
We reaffirmed Ryce I and Nece I after rehearings to consider the effect of
Birchfield. Ryce II, 306 Kan. at 700; Nece II, 306 Kan. at 681. Ryce II pointed out that
Birchfield concerned the search incident to arrest exception, while Ryce I and Nece I
concerned the consent exception. The statute's criminalization of withdrawal of consent
was thus still unconstitutional, although in Ryce II we recognized that warrantless breath
tests could be constitutionally permissible as searches incident to arrest. 306 Kan. at 699-
This led to several appeals of DUI convictions in which officers procured the BAC
test under the unconstitutional threat of criminal sanctions in K.S.A. 2015 Supp. 8-1025,
repealed by L. 2019, ch. 13, § 5. The State began to argue that the good-faith exception to
the exclusionary rule should apply because the officers had no reason to know that this
court would declare K.S.A. 2015 Supp. 8-1025 unconstitutional, often years after the
2. Good-Faith Exception
Neither the Fourth Amendment nor § 15 of the Kansas Constitution Bill of Rights
address the proper remedy for a warrantless search. The exclusionary rule is a judicially
created remedy that deters unconstitutional searches because it prevents the use of
unconstitutionally obtained evidence at trial. Krull, 480 U.S. at 347; Daniel, 291 Kan. at
496. But the exclusionary rule does not always apply, including when the good-faith
exception allows the court to consider the evidence. Krull, 480 U.S. at 349-50; Daniel,
291 Kan. at 499-500.
In Leon, the Supreme Court held an officer's reasonable, good-faith reliance on a
search warrant insulated the evidence from the exclusionary rule even though a court
later found the warrant invalid. 468 U.S. at 922-23. The Supreme Court made clear that a
court should apply the exclusionary rule only when doing so deters law enforcement
officers from acting in an unconstitutional manner. 468 U.S. at 906. The Court thus
reserved the exclusionary remedy for circumstances in which a court "has examined
whether the rule's deterrent effect will be achieved, and has weighed the likelihood of
such deterrence against the costs of withholding reliable information from the truthseeking process." Krull, 480 U.S. at 347. Because this weighing is fact-specific,
"suppression of evidence . . . should be ordered only on a case-by-case basis and only in
those unusual cases in which exclusion will further the purposes of the exclusionary
rule." Leon, 468 U.S. at 918.
In Krull, the United States Supreme Court expanded the Leon good-faith exception
to include an officer's reasonable reliance on an unconstitutional statute. 480 U.S. at 349-
50. The United States Supreme Court held, under the circumstances of that case,
excluding evidence obtained when police are enforcing a statute later found to be
unconstitutional would not serve the rule's purpose because it would have no deterrent
effect on law enforcement. 480 U.S. at 349. The Krull Court explained:
"Unless a statute is clearly unconstitutional, an officer cannot be expected to question the
judgment of the legislature that passed the law. If the statute is subsequently declared
unconstitutional, excluding evidence obtained pursuant to it prior to such a judicial
declaration will not deter future Fourth Amendment violations by an officer who has
simply fulfilled his responsibility to enforce the statute as written. To paraphrase the
Court's comment in Leon: 'Penalizing the officer for the [legislature's] error, rather than
his own, cannot logically contribute to the deterrence of Fourth Amendment violations.'
[Citation omitted.]" 480 U.S. at 349-50.
The Krull Court recognized a new body of actors other than law enforcement that
played a role in statutes: legislators. A new issue thus arose as to whether applying the
exclusionary rule would deter legislators from enacting unconstitutional statutes. In
analyzing that question, the Court first reasoned that legislators take an oath to uphold the
Constitution and courts presume legislators act constitutionally. 480 U.S. at 351. The
Court was thus "not willing to assume now that there exists a significant problem of
legislators who perform their legislative duties with indifference to the constitutionality
of the statutes they enact." 480 U.S. at 352 n.8.
Even so, the Krull Court acknowledged a point made by the dissenters and
recognized situations might arise in which a legislature enacted an obviously
unconstitutional statute because the legislature yielded "to the temptation offered by the
Court's good-faith exception." 480 U.S. at 366 (O'Connor, J., joined by Brennan,
Marshall, and Stevens, JJ., dissenting). But the Court concluded the objectively
reasonable reliance requirement of Leon allowed courts to consider the circumstances
and, where appropriate, apply the exclusionary rule:
"A statute cannot support objectively reasonable reliance if, in passing the statute, the
legislature wholly abandoned its responsibility to enact constitutional laws. Nor can a law
enforcement officer be said to have acted in good-faith reliance upon a statute if its
provisions are such that a reasonable officer should have known that the statute was
unconstitutional. [Citation omitted.] As we emphasized in Leon, the standard of
reasonableness we adopt is an objective one; the standard does not turn on the subjective
good faith of individual officers. [Citation omitted.]" 480 U.S. at 355.
Examining the circumstances in Krull, the Court held the officer's reliance on the
statute was objectively reasonable. 480 U.S. at 360. Several factors led to that conclusion:
Caselaw had supported similar statutes, the statute appeared to be aimed at a legitimate
state purpose, and the constitutional infirmity with the statute was not "sufficiently
obvious so as to render a police officer's reliance upon the statute objectively
unreasonable." 480 U.S. at 358-59.
This court adopted the Krull expansion of the good-faith exception to excuse an
officer's reasonable reliance on a statute in Daniel, 291 Kan. at 499-500. There, police
conducted a post-arrest search of a motorist's car under a statute that, at the time, allowed
such searches of vehicles after an arrest. The statute was later struck down as
unconstitutional, but Daniel held that the officer's reliance on the statute was reasonable
at the time given prior caselaw that supported vehicle searches after an arrest. 291 Kan. at
505; see also State v. Dennis, 297 Kan. 229, 230, 300 P.3d 81 (2013) (officer need not
specifically articulate statute authorizing search if an objectively reasonable officer could
rely on a statute).
Daniel was not unanimous. The dissent would have held this court need not
always afford the same protections under § 15 of the Kansas Constitution as the United
States Supreme Court allows under the Fourth Amendment even though we had
traditionally done so. The dissent would not extend the good-faith exception to
encompass an officer's reliance on a statute because to do so requires police—members
of the executive branch—to perform the judicial function of statutory interpretation. 291
Kan. at 506-07 (Johnson, J., dissenting). According to the dissent, in Candy Daniel's
situation, the law enforcement officer's reliance was not solely on statutory text but also
on previous judicial interpretations of United States Supreme Court precedent. 291 Kan.
at 507-08 (Johnson J., dissenting).
Then, in State v. Pettay, 299 Kan. 763, 772, 326 P.3d 1039 (2014), this court
declined to extend Daniel because the search in Pettay exceeded the scope authorized by
the statute. A concurring opinion in Pettay reiterated the objection to the Daniel court's
expansion of the good-faith exception and disagreed with the concept that the only
purpose of the exclusionary rule was to deter police misconduct. The concurring opinion
noted that other functions of the exclusionary rule include preservation of judicial
integrity and preventing the government from profiting from fruits of lawless behavior.
299 Kan. at 772-73 (Johnson, J., concurring).
Next came Perkins, 310 Kan. 764. There, we applied the good-faith exception to
warrantless breath tests obtained under K.S.A. 2012 Supp. 8-1025. 310 Kan. at 770-71.
The concurring opinion in Perkins cited the Daniel dissent and suggested that it may be
time to revisit "whether Kansas should continue to apply the good-faith exception in
lockstep with federal caselaw." But the parties had not raised those arguments, so a
unanimous court applied the good-faith exception. Perkins, 310 Kan. at 771-72 (Luckert,
Perkins concerned breath tests and did not discuss blood tests. Heim seeks to
suppress his blood test and questions whether the Leon good-faith exception also applies
to warrantless blood tests obtained under K.S.A. 2015 Supp. 8-1025. But he raises no
arguments suggesting the difference between a blood and a breath test could lead to a
different application of the good-faith exception.
Instead, he asks us to reverse Perkins. Heim's counsel also represents Ronald S.
Ary in an appeal we decide today. City of Kingman v. Ary, 312 Kan. ___, ___ P.3d ___
(No. 114,413, this day decided). Heim and Ary present identical arguments about the
legal question of whether the good-faith exception applies, and our analysis is likewise
identical in most respects, although the facts of each case require a separate analysis.
Appellate courts consider legal arguments de novo. State v. Hanke, 307 Kan. 823, 827,
415 P.3d 966 (2018) (appellate courts review district court's factual findings related to
motion to suppress to determine whether they were supported by substantial competent
evidence, but the ultimate legal conclusion is a question of law reviewed de novo).
In asking us to reverse Perkins, Heim and Ary face a difficult task. "We do not
overrule precedent lightly and must give full consideration to the doctrine of stare
decisis." State v. Sherman, 305 Kan. 88, 107, 378 P.3d 1060 (2016). This is largely
because "'[t]he application of stare decisis ensures stability and continuity—
demonstrating a continuing legitimacy of judicial review. Judicial adherence to
constitutional precedent ensures that all branches of government, including the judicial
branch, are bound by law.'" Crist v. Hunan Palace, Inc., 277 Kan. 706, 715, 89 P.3d 573
(2004) (quoting Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 356, 789 P.2d
Even so, stare decisis "is not a rigid inevitability but a prudent governor on the
pace of legal change." State v. Jordan, 303 Kan. 1017, 1021, 370 P.3d 417 (2016). This
court will generally follow its precedent unless "'clearly convinced that the rule was
originally erroneous or is no longer sound because of changing conditions and that more
good than harm will come by departing from precedent.'" Crist, 277 Kan. at 715 (quoting
Samsel, 246 Kan. at 356).
Heim and Ary cite no change in conditions since Perkins, which we decided just
one year ago. But they do argue that Perkins was originally erroneous. In doing so, they
present three arguments.
First, they reiterate the points made in the Perkins concurring opinion and in the
dissent in Krull, 480 U.S. at 362 (O'Connor, J., joined by Brennan, Marshall, and
Stevens, JJ., dissenting) ("Unlike the Court, I see a powerful historical basis for the
exclusion of evidence gathered pursuant to a search authorized by an unconstitutional
statute. Statutes authorizing unreasonable searches were the core concern of the Framers
of the Fourth Amendment."). But the Krull dissent did not persuade the United States
Supreme Court majority, largely because of the majority's assumption that legislators
follow their oaths and courts presume statutes constitutional. 480 U.S. at 351-52. Plus,
the Krull majority carved an exception for situations in which reliance on those
assumptions was not objectively reasonable. 480 U.S. at 355. And in relying on Krull,
this court in Perkins, 310 Kan. at 770 (discussing Krull), and Daniel, 291 Kan. at 499-
500 (same), at least implicitly determined the Krull dissent was not persuasive. Nor did a
majority find the Perkins concurring opinion persuasive. Heim offers no new argument.
Second, Heim and Ary argue the officer could not have acted in good faith
because K.S.A. 2015 Supp. 8-1025 was clearly unconstitutional. They assert the officer
should have realized 8-1025 was unconstitutional and that the Legislature had abandoned
its duty to pass constitutional laws. But this situation is like Krull and Daniel where
judicial precedent gave the officer an objectively reasonable basis to rely on and enforce
the statute. Krull, 480 U.S. at 355-58; Daniel, 291 Kan. at 499; see Davis v. United
States, 564 U.S. 229, 240, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011) ("The police acted
in strict compliance with binding precedent, and their behavior was not wrongful. Unless
the exclusionary rule is to become a strict-liability regime, it can have no application in
For example, in considering K.S.A. 2015 Supp. 8-1025, the Kansas Court of
Appeals had held a DUI defendant has "no constitutional right to refuse to be tested."
State v. Bussart-Savaloja, 40 Kan. App. 2d 916, 927-28, 198 P.3d 163 (2008). And, at the
time of Heim's arrest, Kansas courts had consistently upheld the constitutionality of
warrantless blood draws undertaken under K.S.A. 2015 Supp. 8-1001. See, e.g., Martin v.
Kansas Dept. of Revenue, 285 Kan. 625, 176 P.3d 938 (2008); Popp v. Motor Vehicle
Department, 211 Kan. 763, 508 P.2d 991 (1973).
When the officer arrested Heim, the officer had no reason to know this court
would hold that the implied consent advisories were impermissibly coercive 10 months
after Heim's arrest. Further, Kansas statutory implied consent law is not unique. Other
states had statutes like K.S.A. 2015 Supp. 8-1025 and continued to uphold them until the
United States Supreme Court ruled in Birchfield that these types of criminal penalty laws
are unenforceable as to blood tests. See, e.g., Wing v. State, 268 P.3d 1105, 1109-10
(Alaska App. 2012) (upholding the constitutionality of an Alaska statute criminalizing the
refusal to submit to blood-alcohol test); State v. Bernard, 859 N.W.2d 762, 774 (Minn.
2015) (Minnesota statute that criminalizes refusal to submit to blood-alcohol test passes
rational basis review).
The Kansas implied consent statutes were not so clearly unconstitutional at the
time of Heim's arrest that a reasonably well-trained officer would have known that they
were unconstitutional. By giving the advisories and informing Heim that the State could
charge him with a separate crime for refusing to submit to a blood test, the officer was
merely fulfilling his responsibility to enforce the statutes as written, and suppression of
the evidence would not serve the deterrent aim of the exclusionary rule.
For these same reasons, the Kansas Legislature did not wholly abandon its
responsibility to pass constitutional laws.
Finally, Heim argues more harm than good will result from Perkins because "who
now would ever spend the time and money to challenge an unconstitutional statute under
the Fourth Amendment?" But this argument ignores cases such as Pettay, 299 Kan. 772,
in which we held the good-faith exception did not apply. The Krull majority noted the
similar argument raised by Justice O'Connor: "Providing legislatures a grace period
during which the police may freely perform unreasonable searches in order to convict
those who might have otherwise escaped creates a positive incentive to promulgate
unconstitutional laws." 480 U.S. at 366 (O'Connor, J., joined by Brennan, Marshall, and
Stevens, JJ., dissenting). The Krull majority countered that the exceptions it had created
left a path for courts to exclude the evidence because the good-faith exception did not
apply. See 480 U.S. at 355 (citing circumstances where Legislature "wholly abandoned
its responsibility to enact constitutional laws" and law enforcement officer's reliance was
not objectively reasonable).
We have previously considered and rejected many of Heim's and Ary's arguments.
They offer no persuasive reason for us to abandon Perkins. We hold the Court of Appeals
did not err in applying the good-faith exception, and the district court did not err in
holding Heim's blood test result was admissible.
Outcome: Judgment of the Court of Appeals affirming the district court is affirmed.
Judgment of the district court is affirmed