KS: Gant makes state SI statute unconstitutional

K.S.A. 22-2501(c) which permits a search of a vehicle incident to an occupant’s or recent occupant’s arrest, even if the purpose of the search is not focused on uncovering evidence only of the crime of arrest, is facially unconstitutional under the Fourth Amendment and under Section 15 of the Kansas Constitution Bill of Rights under Gant. State v. Henning, 2009 Kan. LEXIS 192 (June 26, 2009).

The statute provides:

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 attack;
(b) Preventing the person from escaping; or
(c) Discovering the fruits, instrumentalities, or evidence of a crime.

Factually, this case is more similar to Gant than to Belton but, analytically, a factual comparison is unnecessary. There is no dispute that there was no warrant to search the car. A recognized exception to the Fourth Amendment’s warrant requirement must apply, see State v. Thompson, 284 Kan. 763, 776, 166 P.3d 1015 (2007); or the search was invalid and the evidence it uncovered appropriately suppressed by the district court judge. When a search is challenged, the State bears the burden of demonstrating that it was lawful. See State v. Ibarra, 282 Kan. 530, 533, 147 P.3d 842 (2006). The State’s only argument here is that the search of the car was a proper search incident to the arrest of Henning under K.S.A. 22-2501(c). (Zabriskie, although out of the car and standing near Henning during the search, had not yet been arrested herself.) Even more specifically, the State’s only argument, based as it must be on the testimony of Stevenson, is that the search depended upon the recently amended and newly effective language of K.S.A. 22-2501(c), which, as we have discussed above, considerably broadened its scope and exceeded the purposes allowed for such searches under the Chimel rule. As Stevenson noted, his training was up-to-the-minute and told him he was permitted to search the car not only for evidence of the crime of arrest but for evidence of another crime or crimes.

Gant expressly disapproved of this approach:

“To read Belton as authorizing a vehicle search incident to every recent occupant’s arrest would thus untether the rule from the justifications underlying the Chimel exception–a result clearly incompatible with our statement in Belton that it ‘in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.’ [Citation omitted.]… [T]he … Chimel rationale authorizes police to search only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” 556 U.S. at , 129 S. Ct. at 1719.

In view of Gant, we are compelled to strike down the current version of K.S.A. 22-2501(c) as facially unconstitutional under the Fourth Amendment and Section 15 of the Kansas Constitution Bill of Rights. The district court judge was right to be suspicious of the statute’s wording; its breadth cannot be reconciled with the narrowness of the search and seizure concept it was meant to codify, not automatically in a vehicle context nor in the context of any other area within immediate control of an arrestee.