State v. Heim

475 P.3d 1248

STATE of Kansas, Appellee,

v.Trenton Michael HEIM, Appellant.

No. 115,980

Supreme Court of Kansas.

Opinion filed November 20, 2020.

Michael S. Holland II, of Holland and Holland, of Russell, was on the briefs for appellant.

Andrew R. Davidson, assistant district attorney, Keith E. Schroeder, former district attorney, Thomas R. Stanton, district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

The opinion of the court was delivered by Luckert, C.J.:

In this appeal, Trenton Michael Heim argues a warrantless blood test obtained under the implied consent statute was unconstitutional per Birchfield v. North Dakota , 579 U.S. ––––, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016) ; State v. Ryce , 306 Kan. 682, 699-700, 396 P.3d 711 (2017) ( Ryce II ); and State v. Nece , 306 Kan. 679, 681, 396 P.3d 709 (2017) ( Nece II ). But the State argues the district court could consider the blood test results because the good-faith exception to the exclusionary rule allowed the district court to consider the results of Heim's blood test. State v. Heim , No. 115,980, 2018 WL 1884093 (Kan. App. 2018) (unpublished opinion).

Heim asks us to reverse the panel's holding that the good-faith exception applies. Heim recognizes this court's holding in State v. Perkins , 310 Kan. 764, 449 P.3d 756 (2019), in which we held the good-faith exception applies to breath tests for blood alcohol content collected under the unconstitutional implied consent statute. But Heim asks us to revisit Perkins . In doing so, he does not base any of his arguments on the differences between blood and breath tests, and he does not persuade us to abandon our recent decision in Perkins . We thus affirm the Court of Appeals' and the district court's decisions to allow consideration of the blood test results, which presumptively showed Heim was guilty of DUI.

FACTUAL AND PROCEDURAL BACKGROUND

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, ––– U.S. ––––, 136 S. Ct. 2160 ; Ryce II , 306 Kan. at 699-700, 396 P.3d 711 ; Nece II , 306 Kan. at 681, 396 P.3d 709. 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, 449 P.3d 756, 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 .

ANALYSIS

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.

1. Search

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, 328 P.3d 1081.

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, 86 S.Ct. 1826 ; see also Birchfield , 136 S. Ct. at 2174 ( Schmerber 's exigent circumstances exception by its nature requires case-by-case 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 611 (1987).

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, 368 P.3d 342. 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, 368 P.3d 342. 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, 367 P.3d 1260.

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, 396 P.3d 711 ; Nece II , 306 Kan. at 681, 396 P.3d 709. 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 699-700, 396 P.3d 711.

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 arrest.

2. Good-Faith Exception

Neither the Fourth Amendment nor § 15 of the Kansas Constitution Bill of Rights address the proper remedy for a...