A portable breath test is a search governed by the reasonableness clause of the Fourth Amendment. Telling the motorist he has to take the PBT renders it void; he has a choice. Also, passing the field sobriety test does not negate other evidence of intoxication. State v. Edgar, 296 Kan. 513, 294 P.3d 251 (2013), affg in part, revg in part 45 Kan. App. 2d 340, 246 P.3d 1013 (2011):
The PBT given in this case is considered a search and cannot be administered absent an exception to the general rule requiring search warrants. One of those exceptions occurs if the subject provides voluntary, knowing, and intelligent consent. See State v. Jones, 279 Kan. 71, 75-76, 106 P.3d 1 (2005) (quoting Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 616-17, 109 S. Ct. 1402, 103 L. Ed. 2d 639 ) ("'Subjecting a person to a breathalyzer test, which generally requires the production of alveolar or "deep lung" breath for chemical analysis . . . implicates similar concerns about bodily integrity and, like the blood-alcohol test . . . [citation omitted], should also be deemed a search.'"). PBT results are used to help law enforcement officers determine whether they should arrest someone for DUI and whether to request additional testing under K.S.A. 2010 Supp. 8-1001 once the person is in custody. The officer can arrest someone in whole or in part based on PBT results. K.S.A. 2010 Supp. 8-1012(d).
. . .
We hold that the officer's misstatement that Edgar had no right to refuse the PBT rendered the test involuntary. K.S.A. 2010 Supp. 8-1012(b) provides that a law enforcement officer "may request" a PBT, but not that such a test may be coerced. Telling Edgar he had no right to refuse the test transformed the test into an involuntary search by depriving Edgar of the opportunity to revoke his statutorily implied consent—an opportunity expressly contemplated by K.S.A. 2010 Supp. 8-1012(c)(2), (d). Based on the officer's misinformation, Edgar would understand he had no choice but to submit to the PBT.
Accordingly, the district court erred by not suppressing the PBT results. And that error also invalidates Edgar's DUI arrest and the subsequent blood-alcohol test. ...
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"A system of law that not only makes certain conduct criminal, but also lays
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—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
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—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
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—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)