KS former restrictive SI statute applied rather than Gant

Kansas had a search statute [in effect from 2006-11] that was more restrictive on the police than Gant, and the trial court and court of appeals erred in not applying that statute. State v. Julian, 2014 Kan. LEXIS 500 (September 5, 2014):

Although the [court of appeals] majority acknowledged that K.S.A. 22-2501 “controlled the ‘permissible circumstances, purposes, and scope of a search incident to arrest'” it declined to apply the statute to the facts in this case and instead decided the case on “the constitutional issue.” Julian, 276 P.3d 83, 2012 WL 1759405, at *3. When it did this it impermissibly departed from longstanding precedent of this court. Since we decided Anderson, our decisions have consistently demonstrated the centrality of K.S.A. 22-2501 to issues involving searches incident to arrest. See State v. Pettay, 299 Kan. __, Syl. ¶ 4, 326 P.3d 1039; State v. Carlton, 297 Kan. 642, 304 P.3d 323, Syl. ¶ 4; State v. Dennis, 297 Kan. 229, 300 P.3d 81, Syl. ¶ 5; State v. Conn, 278 Kan. at 391. As we stated in Anderson, in dealing with an issue involving a search incident to arrest “we need not discuss federal law further” as K.S.A. 22-2501, and not federal caselaw applying the Fourth Amendment, controls such searches. 259 Kan. at 22.

Regardless that the parties may have focused their arguments on Fourth Amendment caselaw, for the Court of Appeals majority to reject applying K.S.A. 22-2501 to resolve the case resulted in applying a clearly incorrect legal standard to the issue in this case. The statute in effect at the time of the search in this case did not allow for a search for evidence. By applying Gant, the Court of Appeals deprived Julian of a basic protection afforded to him according to Kansas law that was applicable at the time.

Note: Arguably, this issue may not arise again in Kansas.