KS: “Best practices” in a search protocol isn’t usually constitutionally required

Applying “best practices” to a search protocol isn’t usually constitutionally required. State v. Fudge, 2022 Kan. App. LEXIS 37 (Sep. 30, 2022):

True, Pfannenstiel characterized checking the subject’s mouth as a “preference,” “good practice,” “highly recommended,” and “the best practice.” But even highly recommended or best practices are not requirements. See State v. Vandenberg, No. 110,236, 2014 WL 5312922, at *2 (Kan. App. 2014) (unpublished opinion) (holding that good practices that are not part of the “formal testing protocol” cannot violate the required testing procedures). See generally United States v. Kahn, 415 U.S. 143, 155 n.15, 94 S. Ct. 977, 39 L. Ed. 2d 225 (1974) (noting that warrants often “pass muster under the Fourth Amendment” even when they do not comply with “best practice”); United States v. Glenn, 966 F.3d 659, 661 (7th Cir. 2020) (Easterbrook, J.) (“The Fourth Amendment does not require best practices in criminal investigations.”); Henderson v. Board of Montgomery County Comm’rs, 57 Kan. App. 2d 818, 834, 461 P.3d 64 (2020) (finding officers’ best practices do not dictate acts officers are required to take). Best practices for officers, like best practices for attorneys, are not legal requirements. See, e.g., Harrington v. Richter, 562 U.S. 86, 105, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011) (Strickland’s standard for ineffective assistance of counsel does not ask whether attorney’s representation deviated from best practices or most common custom); Hartleib v. Weiser Law Firm, P.C., No. 19-02099-CM-JPO, 2019 WL 3943064, at *7 (D. Kan. 2019) (unpublished opinion) (“best practices generally recommend the clear and unambiguous communication of termination of the attorney-client relationship, but these practices are not required”).

This entry was posted in Warrant execution. Bookmark the permalink.

Comments are closed.