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Gant applied in Kansas

Don Lill and Monte Miller (representing co-defendants) won in State v. Henning, No. 98,118 (Kan. June 26, 2009) affirming Judge Wheeler's suppression based on an improper search incident to arrest. The briefing and argument largely discussed the recent amendment to K.S.A. 22-2501(c), and the KSC decision spends considerable time discussing the legislative history of that amendment. But in the end, the KSC doesn't decide the specific contours of the amended statute:

Under these circumstances, we believe we can safely say that the legislature at least intended to undercut our holding in Anderson. We thus rule here that K.S.A. 22-2501(c)'s current wording would permit a search of a space, including a vehicle, incident to an occupant's or a recent occupant's arrest, even if the search was not focused on uncovering evidence only of the crime of arrest. We need not further define K.S.A. 22-2501(c)'s current parameters because Arizona v. Gant, 556 U.S. ___, 129 S. Ct. 1710 (2009) leaves those parameters without legal effect.

Carl blogged about Gant here. The KSC applied Gant and the candid officer made it an easy decision:

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, 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. 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.

It's worth repeating that the KSC held that suppression is the correct remedy:

A recognized exception to the Fourth Amendment's warrant requirement must apply, or the search was invalid and the evidence it uncovered appropriately suppressed by the district court judge.

This should be cited on the remedy issue if brought up by the state.

Full post as published by Kansas Defenders on June 26, 2009 (boomark / email).