                           NOT DESIGNATED FOR PUBLICATION

                                              No. 121,904

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                            STATE OF KANSAS,
                                               Appellant,

                                                    v.

                                        ROBERT D. HOMOLKA,
                                             Appellee.


                                    MEMORANDUM OPINION


        Appeal from Wyandotte District Court; ROBERT A. MARTINEZ, judge. Opinion filed July 10,
2020. Affirmed.


        Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellant.


        Jay Norton, of Norton Hare, LLC, of Overland Park, for appellee.


Before LEBEN, P.J., SCHROEDER, J., and LAHEY, S.J.


        PER CURIAM: Robert D. Homolka submitted to a warrantless blood draw after
Kansas Highway Patrol troopers arrested him for driving under the influence of alcohol.
The district court granted Homolka's motion to suppress the results of the blood draw,
and the State appeals. Finding no error by the district court, we affirm.




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                       FACTUAL AND PROCEDURAL BACKGROUND


       On January 19, 2018, Kansas Highway Patrol troopers received information from
dispatch related to a hit-and-run by a possible drunk driver. The tag information for the
involved vehicle was registered to Homolka. Homolka's address was in Lake of the
Forest, a gated community near Bonner Springs. Two troopers drove to the address and
discovered Homolka lying next to the vehicle in his driveway. Homolka had a minor
laceration on his forehead and scraped knees when the troopers found him.


       The interactions between one trooper and Homolka were captured on the trooper's
body camera, and a 45-minute video was submitted to the district court for review. One
trooper also testified about those events. When the trooper arrived at Homolka's
residence, he inspected Homolka's car for damage and saw it had damage consistent with
the hit-and-run accident and a flat tire. He first asked Homolka how he got the injuries,
and Homolka replied he was not sure. The trooper also asked Homolka where he had
driven from. Homolka responded he came home from a bar, but the trooper was not able
to understand the name of the bar. After being asked how much he had to drink, Homolka
responded he had three beers. Homolka was unable to stand up without assistance, so the
troopers decided that standard field sobriety testing would not have been safe and made
the determination to get medical attention for Homolka. The trooper testified he placed
Homolka in the front seat of his patrol car but did not handcuff him, then drove him to
the front gate of the neighborhood where the EMS ambulance was located.


       Medical personnel performed a general assessment of Homolka. The paramedic
testified Homolka had an odor of consumed alcohol but also described Homolka as
awake, able to make conversation, exhibiting no slurred speech, and having no life-
threatening injuries or bleeding that needed correcting. When asked how he got injured,
Homolka told the paramedic he had slipped on the top step of his residence. The trooper



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testified the only question he asked Homolka while at the ambulance was which car he
drove home from the bar. Homolka responded by saying his white Buick.


       When the medical personnel completed their duties, the trooper asked Homolka if
he would submit to a blood draw, and Homolka agreed. The trooper handed Homolka the
"OAG Substitute for DC-70 (Rev. 02/26/2016)" (DC-70) form that provided the implied
consent notices. The implied consent notices in this version of the DC-70 did not contain
the provision that advised it was a crime to refuse to submit to testing, nor did it contain
the provision that advised it was not a constitutional right to refuse to submit to testing.
The form stated that "Kansas law (K.S.A. 8-1001) requires you" to submit to the testing,
and that is what the trooper told Homolka, in addition to the other advisements. After
reading the form to Homolka, the trooper again asked if Homolka would submit to a
blood draw. Homolka agreed, and the paramedic drew his blood. After the blood sample
was drawn, the troopers took Homolka back to his house, then left. From the trooper's
perspective, Homolka was never under arrest that evening.


       Homolka was charged with driving under the influence of alcohol. Homolka filed
a motion to suppress the results of the blood draw, arguing lack of consent under the
Fourth Amendment to the United States Constitution. Following the hearing, the district
court took the matter under advisement and, thereafter, granted the suppression motion.


       In its ruling, the district court noted multiple discrepancies between the trooper's
testimony and the video recording of the encounter. For example, the trooper testified he
never asked Homolka if he wanted emergency medical help. In fact, the district court
noted the first thing the trooper asked Homolka was if he needed any EMS assistance.
Homolka clearly said no, to which the trooper said, "Well, then you're going to take a
stroll with us." The trooper did not check the damage on Homolka's vehicle at the
beginning of the encounter as he described in his testimony. The trooper testified
Homolka was not placed under arrest, was not in custody, was not handcuffed, and was


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placed in the front passenger seat of the trooper's patrol car when he was transported to
the ambulance. The district court determined from the video Homolka was physically
taken into custody, handcuffed, and placed into the back seat of the trooper's car when he
was taken from his house to EMS personnel. The district court found no evidence on the
video that Homolka told the trooper he had just left a bar. The district court found the
audio in the video indicated the troopers were strategizing on how to get Homolka to
consent to a blood draw. The troopers did not ask Homolka about the hit-and-run
accident until approximately 20 minutes after the tape started. The video showed
Homolka's vehicle was not inspected until after the blood draw and Homolka was taken
home even though the trooper said he inspected the car when he first arrived at
Homolka's residence. In its ruling, the district judge twice commented that he believed
the trooper was being evasive in his testimony.


       The district court ruled the State failed to meet its burden to prove Homolka
unequivocally, specifically, freely, and intelligently consented to the blood test. It found
Homolka "merely submitted to lawful authority" in agreeing to take the test. Because the
trooper told Homolka that Kansas law "required" him to submit to testing, the consent
was coerced. The State thereafter filed a motion to reconsider, arguing the good-faith
exception should apply. The motion was denied, and the State timely filed this
interlocutory appeal.


I.     DID THE DISTRICT COURT ERR IN GRANTING THE MOTION TO SUPPRESS?


       "Faced with a motion to suppress evidence, the State bears the burden of proving
the search and seizure were lawful." State v. Hubbard, 309 Kan. 22, 31, 430 P.3d 956
(2018); see K.S.A. 22-3216(2). When reviewing a motion to suppress evidence, the
appellate court reviews the district court's factual findings to determine whether they are
supported by substantial competent evidence but reviews the ultimate legal conclusions
using a de novo standard. In reviewing the factual findings, the appellate court does not


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reweigh the evidence or assess the credibility of witnesses. State v. Brown, 306 Kan.
1145, 1151, 401 P.3d 611 (2017).


       The Fourth Amendment prohibits unreasonable searches and seizures by the
government, and "Section 15 of the Kansas Constitution Bill of Rights offers at least the
same protections." State v. Cleverly, 305 Kan. 598, 604, 385 P.3d 512 (2016). The
trooper did not obtain a search warrant prior to the paramedic drawing Homolka's blood.
Both the United States Supreme Court and our Supreme Court have made clear that the
taking of a blood sample is a search subject to the warrant requirement. See Birchfield v.
North Dakota, 579 U.S. ___, ___, 136 S. Ct. 2160, 2173, 195 L. Ed. 2d 560 (2016); State
v. Ryce, 303 Kan. 899, 910, 368 P.3d 342 (2016) (Ryce I), aff'd on reh'g 306 Kan. 682,
396 P.3d 711 (2017) (Ryce II). "[W]arrantless searches are per se unreasonable unless
they fall within an exception to the warrant requirement." Hubbard, 309 Kan. at 33. An
individual's consent to search is one of the established exceptions to the warrant
requirement. Ryce I, 303 Kan. at 914.


       The State argues Homolka consented to the blood draw. To establish valid
consent, the State must prove "(1) clear and positive testimony that consent was
unequivocal, specific, and freely given, and (2) the absence of duress or coercion, express
or implied." Cleverly, 305 Kan. at 613. The existence of consent to a search "is a question
of fact to be determined from the totality of all the circumstances." Ryce I, 303 Kan. at
932. "The standard for measuring the scope of a [person]'s consent under the Fourth
Amendment is that of 'objective' reasonableness—what would the typical reasonable
person have understood by the exchange between the officer and the [person]?" Florida
v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991). Mere
acquiescence to a claim of lawful authority is inadequate to show voluntary consent. State
v. Jones, 279 Kan. 71, 78, 106 P.3d 1 (2005). "'Voluntariness [of an individual's consent
is] an issue of fact which is reviewed on appeal for substantial competent evidence.'"
State v. James, 301 Kan. 898, 909, 349 P.3d 457 (2015).


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       Here, the trooper read Homolka the implied consent provisions in the revised DC-
70 before Homolka submitted to a blood test. The first implied consent notice provision
mirrors K.S.A. 2017 Supp. 8-1001(k)(1): "Kansas law requires the person to submit to
and complete one or more tests of breath, blood or urine to determine if the person is
under the influence of alcohol or drugs, or both." (Emphasis added.) But Kansas law only
authorizes an officer to request a person take the test: "A law enforcement officer shall
request a person to submit to a test . . . ." K.S.A. 2017 Supp. 8-1001(b).


       The district court concluded the State did not prove Homolka's consent was
voluntary. In so finding, the district court relied on how State v. Edgar, 296 Kan. 513,
294 P.3d 251 (2013), and City of Lenexa v. Gross, No. 96,367, 2007 WL 2043580 (Kan.
App. 2007) (unpublished opinion), differentiated between the words "required" and
"requested." In Gross, 2007 WL 2043580, at *4, a panel of our court held that telling a
driver she was "'required by law'" to take a preliminary breath test, despite the fact refusal
was an option, was coercive. In Edgar, again involving a PBT, the officer incorrectly told
Edgar he had no right to refuse a PBT. Our Supreme Court found the misstatement of the
law "transformed the [request for a PBT] into an involuntary search" because the driver
would understand he had no choice. 296 Kan. at 530.


       Here, Homolka argued, and the district court agreed, the language of the implied
consent advisory in K.S.A. 2017 Supp. 8-1001 informing a driver that he or she is
required to submit to a blood test was coercive based on Edgar and Gross. "Required," in
the opinion of the district court, did not represent choice, while "requested" did. Thus, the
language of the DC-70 was coercive because Homolka consented after being told he was
required to consent to the test.


       The State argues the full context of the DC-70 makes it clear that Homolka had a
choice because paragraph 3 of the implied consent advisory informed him of the
consequences of refusing to submit to any test "requested" by the officer. It contends


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"[t]he one instance of the word 'require' in the DC-70 does not invalidate the overall
message." The State also argues that "Homolka's driving privileges, like those of every
other Kansan, were contingent on his compliance with K.S.A. 8-1001. In order to keep
his license, he was required to submit to a blood sample." The State's argument may be
correct insofar as to the application of K.S.A. 8-1001 to administrative proceedings
involving Homolka's driving privileges. But we are not concerned here with whether
Homolka is entitled to maintain his driving privileges. Similarly, the issue here is not
whether telling a driver he or she is required to submit to testing invalidates the entire
implied consent advisory scheme or undercuts the constitutionality of K.S.A. 8-1001.
Substantial compliance with K.S.A. 8-1001 is not a substitute for consent under the
Fourth Amendment. We are concerned here with Homolka's Fourth Amendment rights in
a criminal proceeding and whether he validly waived the warrant requirement by
consenting to the blood test. The question before us is whether, under all the
circumstances, including the language used in the DC-70, the district court had
substantial competent evidence supporting its conclusion that a reasonable person would
feel coerced into submitting to testing.


       None of the cases cited by the State specifically address the issue here—the
coercive effect of an officer obtaining consent by first telling the defendant that Kansas
law requires he or she submit to testing. No Kansas law requires a DUI suspect to submit
to a blood draw. To the contrary, a defendant has a constitutional right not to submit to
testing without a warrant commanding it, and the right to refuse a test is a "fundamental
Fourth Amendment right." Ryce I, 303 Kan. at 951. Our Supreme Court recognized the
implied consent advisory misstated the law by stating Kansas law requires a person
submit to testing. "Significantly, while the statutory implied consent advisory informs the
driver he or she is required to take a blood alcohol content test or face consequences,
K.S.A. 2016 Supp. 8-1001(k), an officer can only 'request' that a driver submit to a test,
K.S.A. 2016 Supp. 8-1001(b), (c)." Ryce II, 306 Kan. at 695.



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       In Ryce II, our Supreme Court reiterated that consent is not voluntary if it was
obtained "'by means of an inaccurate, and therefore coercive, advisement.'" 306 Kan. at
687. Because K.S.A. 2017 Supp. 8-1001 does not require a person to submit to a test, the
trooper misstated the law when he told Homolka that Homolka was required to submit to
a blood test. Under the totality of circumstances, the district court did not err by
considering the coercive effect of telling Homolka he was "required" to submit to testing.


       We note Homolka also contends paragraph 8 of the notice given by the trooper is
also coercive because it provides: "Refusal to submit to testing may be used against you
at any trial on a charge arising out of the operation or attempted operation of a vehicle
while under the influence of alcohol or drugs, or both." The district court did not address
this point in its ruling. Homolka contends his refusal to submit to the test was an assertion
of his "'fundamental liberty interest in avoiding an unreasonable search.'" See Ryce I, 303
Kan. at 963. He further contends substantive due process under the Fourth and Fourteenth
Amendments to the United States Constitution prohibits the government from introducing
evidence of or commenting on a defendant's invocation of his constitutional right to
refuse a warrantless search. The State does not directly address this argument except by
contending the DC-70 used in this case correctly advised Homolka of all potential civil
penalties for refusal. The State's argument is unpersuasive because nothing in the
advisory limits its application to civil or administrative proceedings. We find the threat
that a defendant's exercise of a fundamental constitutional right will be used against him
or her in a criminal trial, while perhaps not dispositive, is a factor to be considered, under
the totality of the circumstances, when determining if consent was freely given or
coerced.


       The district court found the trooper to be evasive and inaccurate during his
testimony about his encounter with Homolka. The trooper denied he had handcuffed
Homolka when he took him into custody and denied placing him thereafter in the back
seat of the patrol car when transporting him away from his house. The trooper testified he


                                              8
did not consider Homolka to have ever been placed in custody or under arrest. But the
district court found Homolka was ordered to go with law enforcement, physically
escorted to the trooper's car, and handcuffed—"Defendant is told what to do and where to
go do it." The first question the trooper asked Homolka was, "'Do you need EMS help?'"
The district court found Homolka clearly said, "no." In response, the trooper said, "'Well,
then you're going to take a stroll with us.'" Homolka was handcuffed and taken away for
medical treatment. By his actions, the trooper was dismissive of Homolka's answer and
took him for medical attention even though Homolka said he did not want it. The
trooper's unwillingness to take no for an answer is supportive of the district court's
determination that Homolka was just submitting to lawful authority rather than freely
consenting to the blood test.


       Under the totality of the circumstances, the evidence shows the trooper provided
Homolka with an inaccurate and, therefore, coercive advisement, and the trooper's
testimony lacked credibility in the view of the district court. We agree the State failed to
meet its burden to show consent under Fourth Amendment standards. Had the trooper
begun his effort to obtain consent for the search of a home or car with an oral and written
statement that said, "Kansas law requires that you submit to the search," we would
unquestionably view that as unduly coercive. We see no significant difference for
purposes of Fourth Amendment analysis between that example and the present facts.
Here, a typical reasonable person would have understood that he or she was required to
submit to testing. We find substantial competent evidence supports the ruling by the
district court.


II.    DID THE DISTRICT COURT ERR IN FINDING THE GOOD-FAITH EXCEPTION TO THE
       EXCLUSIONARY RULE DID NOT APPLY?


       The trooper's collection of Homolka's blood sample without a warrant and without
consent violated the Fourth Amendment and § 15 of the Kansas Constitution Bill of


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Rights. Generally, when law enforcement officers obtain evidence in violation of a
person's Fourth Amendment rights, the evidence will not be admitted at trial in order to
deter law enforcement officers from violating a defendant's constitutional rights. State v.
Pettay, 299 Kan. 763, 771-72, 326 P.3d 1039 (2014). This exclusionary rule is a
judicially created remedy that safeguards our citizens' constitutional rights by preventing
the use of evidence obtained through illegal searches or seizures. See Illinois v. Krull,
480 U.S. 340, 347, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987); State v. Daniel, 291 Kan.
490, 496, 242 P.3d 1186 (2010).


       "But the exclusionary rule is not absolute." Pettay, 299 Kan. at 769. The good-
faith exception, beginning with United States v. Leon, 468 U.S. 897, 906, 104 S. Ct.
3405, 82 L. Ed. 2d 677, reh. denied 468 U.S. 1250 (1984), has developed over time to
permit the admission of illegally seized evidence when an officer has acted in good-faith
reliance upon a warrant or statute. See, e.g., Krull, 480 U.S. at 349-350. "The basic
insight of the Leon line of cases is that the deterrence benefits of exclusion 'var[y] with
the culpability of the law enforcement conduct' at issue. Herring, 555 U.S. at 143." Davis
v. United States, 564 U.S. 229, 238, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011). The
Davis Court noted the exclusionary rule had never been applied "to suppress evidence
obtained as a result of nonculpable, innocent police conduct." 564 U.S. at 240. The
exclusionary rule is a deterrent measure and its application is therefore "'restricted to
those situations in which its remedial purpose is effectively advanced.'" Daniel, 291 Kan.
at 496. When no remedial purpose is served by excluding evidence, the good-faith
exception will permit the admission of illegally seized evidence. See Krull, 480 U.S. at
347; Daniel, 291 Kan. at 496.


       Whether the good-faith exception applies in a particular case is reviewed under a
bifurcated standard of review. The factual underpinnings for the district court's ruling
must be supported by substantial competent evidence, "while the ultimate legal
conclusion to be drawn from those facts will be examined de novo." State v. Zwickl, 306


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Kan. 286, Syl. ¶ 4, 393 P.3d 621 (2017). "'In determining whether to apply the
exclusionary rule, a court should examine whether such application will advance the
deterrent objective of the rule.'" State v. Oram, 46 Kan. App. 2d 899, 909, 266 P.3d 1227
(2011).


       The State contends that even if the trooper illegally obtained the blood draw, the
good-faith exception should apply because the trooper was required by K.S.A. 2017
Supp. 8-1001 to read the DC-70 to Homolka. The district court found the good-faith
exception did not apply because no objective officer would have reasonably relied on the
statute: "Law enforcement had every reason to know that the advisory was incorrect and
coercive" based on the Kansas Supreme Court decision in Ryce II in June 2017. We agree
with the district court that the good-faith exception does not apply but for a different
reason. See State v. Wycoff, 303 Kan. 885, 886, 367 P.3d 1258 (2016).


       Although we have not addressed it because it is not raised as an issue on appeal,
we note the district court found the trooper violated Homolka's rights under the Fifth
Amendment to the United States Constitution during the same encounter and suppressed
all statements made by Homolka. The trooper's actions thus violated both Homolka's
Fourth and Fifth Amendment rights.


       Additionally, and significantly, the district court was justifiably concerned with
the accuracy of the trooper's testimony, finding it evasive. But for the district court's
review of the 45 minutes of video, crucial facts relevant to the violation of Homolka's
constitutional rights would have gone undetected. The accuracy of the trooper's testimony
is extraordinarily important in safeguarding the integrity of individual constitutional
rights and the fair and just functioning of the judicial system. Here, the district court
determined the trooper's testimony was inaccurate and evasive, and its finding is
supported by substantial competent evidence. In sum, there is culpable conduct here that
justifies excluding the illegally obtained evidence. The trooper violated Homolka's Fourth


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and Fifth Amendment rights, and we find his evasive and inaccurate testimony bearing on
those constitutional rights is not innocent, non-culpable conduct. We have no trouble
determining the purpose of the exclusionary rule—to deter wrongful future conduct—is
served here by not applying the good-faith exception. Under the facts, the district court
did not err in finding the good-faith exception did not apply.


       Affirmed.




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