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No. 104,163 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. MISTY A. ORAM, Appellant.

SYLLABUS BY THE COURT 1. In reviewing the trial court's ruling on a motion to suppress, an appellate court reviews the factual findings to determine if they are supported by substantial competent evidence and the ultimate legal conclusion by a de novo standard.

2. When the material facts to the trial court's decision on a motion to suppress are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review.

3. Warrantless searches are considered unreasonable and invalid unless they fall within a recognized exception to the search warrant requirement. The State bears the burden of proof to demonstrate that a challenged search or seizure was lawful.

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4. A search which is purely a search incident to arrest may only be conducted for the purposes listed in K.S.A. 22-2501: officer protection; escape prevention; and discovery of the fruits, instrumentalities, or evidence of the crime of arrest.

5. A search incident to arrest under K.S.A. 22-2501 requires that the search only include the area within the arrestee's immediate presence.

6. Police officers who arrested a driver of a car for obstruction could not search the interior of the car for drugs incident to arrest under K.S.A. 22-2501 when the arrestee was no longer within the immediate presence of the arrestee's car and when the police were not concerned for their personal safety, safeguarding any evidence of the crime of arrest, or preventing the arrestee from escaping because the arrestee had been handcuffed, searched, removed from the scene, and placed in the back seat of a police patrol car.

7. In determining whether to apply the exclusionary rule, a court should examine whether such application will advance the deterrent objective of the rule.

8. The good-faith exception to the exclusionary rule is reserved for situations where the exclusion of illegally obtained evidence would not deter illegal police conduct.

9. The exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.

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10. The good-faith exception applies only narrowly outside the context of a warrant and ordinarily only when an officer relies in an objectively reasonable manner on a mistake made by someone other than the officer.

11. Police are presumed to know the law of the jurisdiction that they are enforcing. Therefore, a failure to understand the law by the very person charged with enforcing it is not objectively reasonable under the Fourth Amendment.

12. The good-faith exception to the exclusion of evidence obtained by police during a search incident to arrest did not apply to evidence of marijuana found in the arrestee's car, where, under Kansas law, the police could not have objectively believed in good faith that they had the authority to search the arrestee's car when the arrestee was no longer within the immediate presence of the arrestee's car and when the police were not concerned for their personal safety, safeguarding any evidence of the crime of arrest, or preventing the arrestee from escaping because the arrestee had been handcuffed, searched, removed from the scene, and placed in the back seat of a police patrol car. Thus, the exclusion of the evidence would deter police from conducting unauthorized searches in violation of the immediate presence language under K.S.A. 22-2501.

13. An inventory search must not be a ruse for a general rummaging to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce inventory. Police must not be allowed so much latitude that inventory searches are turned into a purposeful and general means of discovering evidence of crime.

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14. An inventory search of a defendant's car could not be justified as an exception to the search warrant requirement when police officers gave conflicting testimony about whether they intended to conduct an inventory search or an investigatory search and when the trial court later determined that the officers intended to conduct an investigatory search.

15. Under the inevitable discovery doctrine, evidence will not be suppressed, despite a constitutional violation in the way it was discovered or obtained, if the same evidence could have come to the attention of law enforcement independent of the violation.

16. Evidence is not fruit of the poisonous tree merely because it would not have come to light except for the illegal police activity. Instead, the inquiry is whether the evidence objected to came to light by exploitation of that illegality.

17. In reviewing a trial court's decision regarding the suppression of a confession, an appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard.

18. Under the attenuation doctrine, a court may find that the poisonous taint of an unlawful search or seizure has dissipated because the connection between the unlawful law enforcement conduct and the challenged evidence became attenuated.

Appeal from Wyandotte District Court; JOHN J. MCNALLY, judge. Opinion filed December 2, 2011. Reversed and remanded with directions.

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Charles D. Lamb, of Kansas City, for appellant.

Shawn M. Boyd, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.

Before GREENE, C.J., GREEN, J. and LARSON, S.J.

GREEN, J.: Misty Oram appeals her conviction for possession of marijuana after a bench trial was held on stipulated facts. On appeal, Oram raises two arguments. First, Oram argues that the trial court correctly concluded that the search violated Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), but she argues that the trial court erred when it determined that the good-faith exception to the exclusionary rule applied. We determine that the trial court correctly held that the search violated Gant. Nevertheless, we determine that because the search was not conducted in an objectively reasonable manner, the good-faith exception to the exclusionary rule did not apply. Second, Oram contends that the trial court erred when it denied her motion to suppress her confession regarding evidence that was seized in the illegal search. We agree. Accordingly, we reverse and remand this case to the trial court with directions to vacate Oram's conviction.

On October 2, 2008, at approximately 10:20 p.m., sheriff's deputies in Wyandotte County, Kansas, conducted a routine traffic stop that eventually resulted in the arrests of the driver Oram (for obstruction) and the passenger Emanuel Butler (for an outstanding warrant). The deputies handcuffed both Oram and Butler and placed them in the back seat of separate patrol cars. The deputies then searched the car and found a white paper bag behind the driver's seat which they believed to be marijuana. It was later determined that the substance in the white paper bag was marijuana.

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After finding the marijuana, Oram was read her Miranda rights which she later waived and agreed to answer questions. Oram confirmed that the marijuana in the car was hers and admitted that she uses it to medicate herself. Oram was then arrested for possession of marijuana.

Oram filed three separate motions to suppress. In the first motion, Oram argued that her arrest was unlawful and that the later search was unlawful because it took place while she was secured and away from the vicinity of her car. After hearing evidence, the trial court issued a memorandum opinion. The trial court determined that the deputies had probable cause to arrest Oram for obstruction. The trial court then determined that although the State contends that the search was an inventory search, it was clearly a search incident to arrest. The trial court further held that the search incident to arrest violated the rule set out in Gant but did not explain which factors were violated. After determining that the search was unlawful, the trial court determined that because the deputies acted in good-faith reliance on the law when the search was made, the evidence would not be suppressed.

Oram filed two later motions where she argued that her confession should be suppressed because it was the fruit of an illegal search. The trial court again denied her motions. The trial court held that although the search violated Gant, the search was done in good faith and, as a result, the statement was voluntary.

After her motions were denied, Oram waived her right to a jury trial and proceeded to a bench trial on stipulated facts. The trial court found Oram guilty of possession of marijuana. Oram was sentenced to 12 months' probation.

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Did the Trial Court Err In Denying Oram's Motion to Suppress Evidence Seized From a Search Incident to Arrest?

On appeal, Oram first argues that the trial court erred in denying her motion to suppress the evidence from the search of her car because there was no lawful basis for the search. Oram asserts, and the trial court agreed, that the search was illegal because it exceeded the permissible scope of a search incident to arrest under Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). Oram further contends that the trial court erred in applying the good-faith exception to the exclusionary rule.

In response, the State argues that the deputies relied in good faith on well-settled caselaw and Kansas statutes when they searched Oram's car incident to arrest. The State maintains that when the search was made, the law allowed the deputies to search a car incident to arrest for evidence of a crime. The State contends that the deputies complied with current law when the search was made and, therefore, any later change in the law should not affect the search that previously took place. Additionally, the State argues that applying the exclusionary rule to this case would only penalize law enforcement for the legislature's error and would serve no deterrent purpose.

In reviewing the trial court's ruling on a motion to suppress, an appellate court reviews the factual findings to determine if they are supported by substantial competent evidence and the ultimate legal conclusion by a de novo standard. State v. Daniel, 291 Kan. 490, 495, 242 P.3d 1186 (2010). "Substantial competent evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion." State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009).

Warrantless searches are considered unreasonable and invalid unless they fall within a recognized exception to the search warrant requirement. Daniel, 291 Kan. at 496. The State bears the burden of proof to demonstrate that a challenged search or 7

seizure was lawful. State v. McGinnis, 290 Kan. 547, 551, 233 P.3d 246 (2010). An appellate court does not reweigh the evidence, determine the credibility of witnesses, or resolve conflicting evidence. State v. McMullen, 290 Kan. 1, 4, 221 P.3d 92 (2009).

When the material facts to the trial court's decision on a motion to suppress are not in dispute, which is the case here, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Thomas, 291 Kan. 676, 682, 246 P.3d 678 (2011). Consequently, we exercise unlimited review in determining whether the search of Oram's car was a valid search incident to arrest or if it fits within the good-faith exception to the exclusionary rule of United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677, reh. denied 468 U.S. 1250 (1984).

Was the search a valid search incident to arrest?

Before addressing the main argument based on the good-faith exception, we must consider briefly Oram's arguments that the search of the car was not a valid search incident to arrest based on the Gant holding. Oram contends that the search of the car violated the Gant holding for two reasons: (1) because the search exceeded the purposes allowed for a search under Gant; (2) because the search exceeded the search limitation of the area within Oram's immediate presence. The trial court did not explain in its holding which factors in Gant were violated. Therefore, an analysis of both factors is necessary to determine whether the trial court correctly held that the search violated Gant. We will first consider whether the search of Oram's car exceeded the purposes allowed for a search incident to arrest under Gant.

In Kansas, the permissible circumstances, purposes, and scope of a search incident to arrest are controlled by statute. State v. Conn, 278 Kan. 387, 391, 99 P.3d 1108 (2004). K.S.A. 22-2501 defines the parameters of police authority to conduct a search incident to arrest. When Oram was arrested, K.S.A. 22-2501 read as follows: 8

"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." (Emphasis added.)

Years before this search occurred, our Supreme Court declared that K.S.A. 222501 was intended to guide "officers and courts as to one method of making a valid, warrantless search." State v. Garcia & Bell, 210 Kan. 806, 811, 504 P.2d 172 (1972). Later, our Supreme Court interpreted K.S.A. 22-2501 to determine the permissible extent of a search without a search warrant which is incident to a lawful arrest. State v. Youngblood, 220 Kan. 782, 784, 556 P.2d 195 (1976). Moreover, the Youngblood court pointed out that it had previously examined K.S.A. 22-2501 in light of Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685, reh. denied 396 U.S. 869 (1969), and determined that the statute was patterned after quoted portions of Chimel. Youngblood, 220 Kan. at 784; see also State v. Anderson, 259 Kan. 16, 22, 910 P.2d 180 (1996) ("In Kansas, we have a statute [K.S.A. 22-2501] that sets forth the permissible circumstances and purposes under which a search incident to an arrest can be made. The statute may possibly be more restrictive than prevailing case law on the Fourth Amendment would permit, but this does not alter the plain language of the statute.").

It is important to note that the legislature amended K.S.A. 22-2501(c) in 2006 by changing "the" to "a" crime. L. 2006, ch. 211, sec. 8. In doing so, "the legislature expanded an arresting officer's authority to search, without a warrant, for evidence of the fruits, instrumentalities, or evidence of any unspecified crime." State v. Richardson, No. 101,821, 2010 WL 1610407, at *2 (Kan. App. 2010) (unpublished opinion).

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In State v. Henning, 289 Kan. 136, 209 P.3d 711 (2009), relying on Gant, our Supreme Court struck down K.S.A. 22-2501(c) as facially unconstitutional under the Fourth Amendment to the United States Constitution and

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