                                            No. 112,209

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                        STATE OF KANSAS,
                                            Appellee,

                                                   v.

                                      MICHAEL A. SCHMIDT,
                                          Appellant.


                                 SYLLABUS BY THE COURT

1.
       The Fourth Amendment to the United States Constitution permits warrantless
breath tests incident to arrests for drunk driving but not warrantless blood tests.
Moreover, motorists may not be criminally punished for refusing to submit to a
warrantless blood draw and consent to a warrantless blood test cannot be premised on a
threat of criminal penalties for refusal to submit to the test.


2.
       In this case where a law enforcement officer requested a motorist to submit to a
warrantless blood test in reliance on the Kansas Implied Consent Law prior to the United
States Supreme Court's decision in Birchfield v. North Dakota, 579 U.S. __, 136 S. Ct.
2160, 195 L. Ed. 2d 560 (2016), the results of the blood test are admissible under the
good-faith exception to the exclusionary rule.


       Appeal from Ellis District Court; GLENN R. BRAUN, judge. Opinion filed December 16, 2016.
Affirmed.


       Michael S. Holland II, of Holland and Holland, of Russell, for appellant.



                                                   1
        Christopher W.D. Lyon, assistant county attorney, Kristafer R. Ailslieger, deputy solicitor
general, and Derek Schmidt, attorney general, for appellee.


Before MALONE, C.J., GREEN and LEBEN, JJ.


        MALONE, C.J.: Following an injury accident in September 2012, Michael Schmidt
was arrested on suspicion of driving while under the influence of alcohol (DUI). In
accordance with the Kansas Implied Consent Law, K.S.A. 2012 Supp. 8-1001, the
arresting officer requested that Schmidt submit to a blood test and informed him, as
required by the implied consent advisories, that failure to submit to the test constituted a
separate crime. Schmidt acquiesced to the test, and the results showed that his blood-
alcohol content was above the legal limit. Following the denial of Schmidt's motion to
suppress the results of the warrantless blood test, the district court found Schmidt guilty
of DUI.


        This appeal raises two issues: (1) Does a warrantless blood draw authorized by
the Kansas Implied Consent Law fall under the consent exception to the warrant
requirement when the officer advised the motorist that failure to submit to the test
constituted a separate crime? (2) Can the results of the blood test in this case be admitted
under the good-faith exception to the exclusionary rule? We hold the warrantless blood
draw cannot be upheld based on Schmidt's consent, but the blood test results are still
admissible under the good-faith exception to the exclusionary rule.


                           FACTUAL AND PROCEDURAL BACKGROUND

        On September 22, 2012, at approximately 8:31 p.m., Schmidt was involved in an
injury accident on Emmeran Road in Ellis County, Kansas. At 8:46 p.m., Deputy Thomas
Garner arrived on the scene and assisted EMS, who had placed Schmidt on the backboard
in order to transport him to the Hays Medical Center Hospital. As Garner was holding a
flashlight over Schmidt to assist the EMS workers, he noticed an odor of alcohol coming
                                                    2
from Schmidt. After Schmidt was placed in the ambulance for transport to the medical
center, Garner followed the ambulance in order to obtain a blood sample as he suspected
Schmidt had been driving while intoxicated.


       Schmidt and Garner arrived at the hospital at approximately 9:11 p.m. Garner
waited in the emergency room while Schmidt was treated for his injuries. After Schmidt
was treated, Garner requested a blood sample. Prior to requesting the blood sample,
Garner provided Schmidt with the implied consent advisories, both orally and in writing
through the DC-70 form. Pursuant to K.S.A. 2012 Supp. 8-1001(k)(4), Garner informed
Schmidt that failure to submit to blood-alcohol testing constituted a separate crime that
carried criminal penalties. Schmidt acquiesced to the blood test.


       A phlebotomist from Quest Diagnostics obtained a blood sample from Schmidt at
11:23 p.m., within 3 hours of the accident. Garner sent Schmidt's blood to the Kansas
Bureau of Investigation where it was tested. The results of the blood test revealed that
Schmidt's blood had an alcohol concentration of .20 grams of alcohol per 100 milliliters
of blood, two and a half times the legal limit.


       On July 2, 2013, the State charged Schmidt with alternative counts of DUI in
violation of K.S.A. 2012 Supp. 8-1567(a)(2) and (a)(3). Because Schmidt had a previous
DUI diversion in Ellis County from August 2009 in case number 09TR2510, the charge
was a class A nonperson misdemeanor pursuant to K.S.A. 2012 Supp. 8-1567(b)(1)(B).


       On September 24, 2013, Schmidt filed a motion to suppress contending that
Garner lacked probable cause or reasonable grounds to request testing and that Schmidt's
consent to the blood draw was not voluntary because of the coercive nature of the implied
consent advisories. Schmidt asked the district court to suppress the results of the blood
test because they were obtained in violation of his rights under the Fourth Amendment to
the United States Constitution.

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       On November 5, 2013, Schmidt filed a memorandum in support of his motion to
suppress the blood test results. In his memorandum, Schmidt abandoned his claim that
Garner lacked probable cause to request a blood test and instead focused on his argument
that his consent to the test was not voluntarily given. He claimed that the coercive nature
of the Kansas implied consent advisories rendered any consent obtained thereunder
involuntary. Schmidt claimed that because he did not consent to the test, it did not fall
under any exception to the warrant requirement, so his Fourth Amendment rights were
violated. The State filed a response to Schmidt's motion to suppress and pointed to
various Kansas Supreme Court decisions holding that even coerced consent does not
violate the constitution given the State's compelling interest in safety on public roads.


       On February 10, 2014, the district court issued a memorandum decision denying
Schmidt's motion to suppress. The district court ruled that Schmidt's consent to the blood
draw was valid and his Fourth Amendment rights were not violated. Following the denial
of Schmidt's motion, the parties agreed to proceed with a bench trial on stipulated facts.
Based on stipulated facts consistent with the facts set forth herein, the district court found
Schmidt guilty of DUI in violation of K.S.A. 2012 Supp. 8-1567(a)(2). The district court
sentenced Schmidt to serve 1 year in the Ellis County Jail but granted him 12 months'
probation after he served 5 days in jail. Schmidt timely appealed his conviction.


 DOES A WARRANTLESS BLOOD DRAW AUTHORIZED BY THE KANSAS IMPLIED CONSENT
   LAW FALL UNDER THE CONSENT EXCEPTION TO THE WARRANT REQUIREMENT?

       Schmidt initially filed a brief with this court and claimed that subjecting him to a
blood test pursuant to the Kansas Implied Consent Law constituted an unreasonable
warrantless search in violation of the Fourth Amendment. Specifically, Schmidt claimed
that any consent given under the Kansas Implied Consent Law is not a "knowing,
intelligent, and voluntary consent free of duress or coercion." Schmidt argued that
because the United States Supreme Court held in Missouri v. McNeely, 569 U.S. __, 133


                                              4
S. Ct. 1552, 185 L. Ed. 2d 696 (2013), that the Fourth Amendment requires some
exception to the warrant requirement prior to conducting a warrantless blood test, and
because there was no valid consent here, his blood test results were illegally obtained.


       The State initially filed a brief with this court and argued that a driver's consent to
a blood test after being warned of the adverse legal consequences following a refusal
does not mean the consent was not freely and voluntarily given. The State contended that
coerced, or even forced consent, does not render consent involuntary, especially in light
of the State's compelling interest in maintaining safety on public roads. The State pointed
out that under Kansas law there is no right to refuse a blood test. The State submitted that
Schmidt's blood draw was a reasonable search under the consent exception to the warrant
requirement and did not violate Schmidt's Fourth Amendment rights.


       In reviewing a district court's decision on a motion to suppress, the appellate court
reviews the district court's factual findings to determine whether they are supported by
substantial competent evidence. We have unlimited review of the district court's ultimate
legal conclusion. State v. Patterson, 304 Kan. 272, 274, 371 P.3d 893 (2016). When the
material facts to the district court's decision on a motion to suppress evidence are not in
dispute, the question of whether to suppress is a question of law over which an appellate
court has unlimited review. State v. Stevenson, 299 Kan. 53, 57, 321 P.3d 754 (2014).


       After the parties submitted their initial briefs, the United States Supreme Court
issued its decision in Birchfield v. North Dakota, 579 U.S. __, 136 S. Ct. 2160, 195 L.
Ed. 2d 560 (2016). In Birchfield, the United States Supreme Court held that the Fourth
Amendment permits warrantless breath tests incident to arrests for drunk driving but not
warrantless blood tests. 136 S. Ct. at 2184-85. The Court also determined that motorists
may not be criminally punished for refusing to submit to a warrantless blood draw. 136 S.
Ct. at 2185-86. Noting that it was not addressing the constitutionality of various state
implied consent laws, the Court ultimately held:

                                              5
       "Our prior opinions have referred approvingly to the general concept of implied-consent
       laws that impose civil penalties and evidentiary consequences on motorists who refuse to
       comply. . . .
               "It is another matter, however, for a State not only to insist upon an intrusive
       blood test, but also to impose criminal penalties on the refusal to submit to such a test.
       There must be a limit to the consequences to which motorists may be deemed to have
       consented by virtue of a decision to drive on public roads.
               ". . . [W]e conclude that motorists cannot be deemed to have consented to submit
       to a blood test on pain of committing a criminal offense." 136 S. Ct. at 2185-86.


       Also, after the parties submitted their initial briefs in this case but before the
United States Supreme Court filed its decision in Birchfield, the Kansas Supreme Court
issued decisions in State v. Nece, 303 Kan. 888, 367 P.3d 1260 (2016), and State v. Ryce,
303 Kan. 899, 368 P.3d 342 (2016). In Ryce, the court held that K.S.A. 2014 Supp. 8-
1025, which imposes criminal penalties upon a motorist for refusing to submit to any
method of blood-alcohol testing, is facially unconstitutional because the statute is not
narrowly tailored to serve a compelling state interest. 303 Kan. at 963. In Nece, the court
held that a driver's consent to a breath test premised on the threat of criminal prosecution
for test refusal "was unduly coerced because, contrary to the informed consent advisory,
the State could not have constitutionally imposed criminal penalties if [the driver] had
refused to submit to breath-alcohol testing. Thus, because [the] consent was premised on
the inaccurate information in the advisory, [the] consent was involuntary." 303 Kan. at
889.


       Our Supreme Court has granted the State's motion for rehearing in both Ryce and
Nece; neither decision is final. However, the rulings in Ryce and Nece, at least as they
apply to warrantless blood tests in contrast to warrantless breath tests, are reinforced by
the holding in Birchfield that motorists may not be criminally punished for refusing to
submit to a warrantless blood draw and that consent to a warrantless blood test cannot be
premised on a threat of criminal penalties for refusal to submit to the test.

                                                     6
       Here, Schmidt submitted to a warrantless blood test and his case is controlled by
Birchfield. The Fourth Amendment permits warrantless breath tests incident to arrests for
drunk driving but not warrantless blood tests. Birchfield, 136 S. Ct. at 2184-85.
Moreover, "motorists cannot be deemed to have consented to submit to a blood test on
pain of committing a criminal offense." 136 S. Ct. at 2186. Based on Birchfield, the
warrantless blood draw of Schmidt cannot be upheld based on either search incident to
arrest or consent. Thus, we reject the State's claim that Schmidt's warrantless blood test
authorized by the Kansas Implied Consent Law falls under the consent exception to the
warrant requirement when Garner advised Schmidt that failure to submit to the test
constituted a separate crime. Although Garner may have inadvertently done so, he
violated Schmidt's constitutional rights by asking Schmidt to submit to a blood test and
advising him that refusal to submit to the test constituted a separate crime.


     CAN SCHMIDT'S BLOOD TEST RESULTS BE ADMITTED UNDER THE GOOD-FAITH
                    EXCEPTION TO THE EXCLUSIONARY RULE?

       After the United States Supreme Court decided Birchfield, this court issued a show
cause order as to why Schmidt's case should not be summarily reversed and remanded for
a new trial in light of the Court's holding about warrantless blood tests. In response, the
State asserted that the results of Schmidt's blood test should be admissible under the
good-faith exception to the exclusionary rule. After receiving the State's response to the
show cause order, this court ordered the parties to file supplemental briefs on two issues:
(1) Should the State be allowed to assert a good-faith exception to the exclusionary rule
for the first time on appeal? (2) Does the good-faith exception to the exclusionary rule
apply under the facts of this case, and, if so, can this court make that determination
without remanding the case to the district court to hear additional evidence?




                                              7
Can a claim invoking the good-faith exception to the exclusionary rule be raised for the
first time on appeal?

       The State explains that it did not raise the good-faith exception in the district court
for the obvious reason that when the case was before the district court, Kansas caselaw
clearly permitted warrantless blood draws pursuant to the Kansas Implied Consent Law.
The State argues that it was not until "new case law . . . fundamentally altered the legal
landscape regarding warrantless blood draws" that the State even needed to consider the
applicability of the good-faith exception to the exclusionary rule. The State asserts that it
should be permitted to invoke the good-faith exception to the exclusionary rule for the
first time on appeal because the newly asserted theory involves only a question of law
based on proved or admitted facts and is determinative of the case.


        Schmidt urges this court not to consider the applicability of the good-faith
exception for the first time on appeal. In support of his argument, he notes that our
Supreme Court in Nece declined to consider the issue of the good-faith exception for the
first time on appeal. See 303 Kan. at 897. However, the procedural facts in Nece were
significantly different from the facts herein. In Nece, the State not only failed to file a
supplemental brief presenting the good-faith argument to the Supreme Court, but at oral
argument the attorney for the State conceded that the State was not seeking application of
the exception. 303 Kan. at 897. Under these circumstances, our Supreme Court declined
to consider the potential application of the good-faith exception, noting that an argument
not briefed is deemed waived and abandoned. 303 Kan. at 897. Here, the State has
asserted the application of the good-faith exception to the exclusionary rule and the
parties have filed supplemental briefs addressing this issue.


       Although generally a new legal theory cannot be raised for the first time on
appeal, there are three recognized exceptions to this rule: (1) The newly asserted theory
involves only questions of law based on proved or admitted facts and is determinative of


                                               8
the case; (2) consideration of the theory is necessary to serve the ends of justice or
prevent a denial of fundamental rights; and (3) the judgment of the trial court was correct
but based on the wrong grounds or reasoning. State v. Jones, 302 Kan. 111, 117, 351 P.3d
1228 (2015). If a party seeks to raise a new issue on appeal, Supreme Court Rule
6.02(a)(5) (2015 Kan. Ct. R. Annot. 41) requires an explanation of why an issue not
raised below should be considered for the first time on appeal.


       There is no factual dispute here as the relevant facts were stipulated in district
court. Based on the stipulated facts, Schmidt's consent to the blood test is deemed
involuntary only because it was obtained as a result of the incorrect and coercive implied
consent advisories that threatened criminal prosecution as a consequence of refusing to
submit to the test. Schmidt is not claiming that his consent was otherwise involuntary. In
ordering the parties to file supplemental briefs on whether the good-faith exception
applied in this case, we directed the parties to address whether this court can make that
determination without remanding the case to the district court to hear additional evidence.
In his response, Schmidt has pointed to no disputed facts and he has made no argument as
to why the case must be remanded to the district court to hear additional evidence.


       We note that our Supreme Court considered the applicability of the good-faith
exception to the exclusionary rule for the first time on appeal in State v. Daniel, 291 Kan.
490, 242 P.3d 1186 (2010), cert. denied 563 U.S. 945 (2011). In that case the defendant
was convicted of possession of methadone, which was found during a warrantless search
of her vehicle following her arrest for driving with a suspended license. The district court
determined the search was lawful under K.S.A. 22-2501(c), which at the time authorized
a vehicle search incident to an arrest for the purpose of discovering the fruits,
instrumentalities, or evidence of any crime.


       While the defendant in Daniel was appealing her conviction, K.S.A. 22-2501(c)
was declared unconstitutional in State v. Henning, 289 Kan. 136, 148-49, 209 P.3d 711

                                               9
(2009), which applied Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485
(2009). Daniel, 291 Kan. at 491-92. Our Supreme Court in Daniel allowed the State to
argue for the first time on appeal that the exclusionary rule does not apply to evidence
obtained by police who acted in objectively reasonable reliance upon a statute that was
subsequently declared unconstitutional. 291 Kan. at 492-93. The court ultimately held
that the good-faith exception applied and upheld the vehicle search. 291 Kan. at 505.


       Schmidt's case is procedurally similar to the situation presented in Daniel. Here,
the State's good-faith argument involves only a question of law: namely, whether the
good-faith exception to the exclusionary rule should apply to warrantless blood tests as
authorized by the Kansas Implied Consent Law prior to the holding in Birchfield that
motorists cannot be deemed to have consented to submit to a blood test on pain of
committing a criminal offense. The underlying facts were stipulated by the parties in
district court, and Schmidt has offered no reason why this court cannot address the good-
faith exception without remanding the case to the district court to hear additional
evidence. Thus, we conclude that the State can invoke the good-faith exception to the
exclusionary rule for the first time on appeal because the newly asserted theory involves
only a question of law based on proved or admitted facts and is determinative of the case.


Does the good-faith exception apply here?

       The State urges this court to apply the good-faith exception to the exclusionary
rule here because at the time of the warrantless blood draw, Garner's actions were legal.
Therefore, the State asserts that suppressing the results of Schmidt's blood-alcohol test
would not serve the purpose of the exclusionary rule which is to deter police misconduct.
The State points out that decisions casting doubt on the constitutionality of warrantless
blood draws did not begin to come out until nearly 4 years after Schmidt's arrest. Thus,
the State argues that "[e]xcluding the evidence obtained by [the officer] based on changes
in the law that occurred nearly four years later 'cannot logically contribute to the

                                             10
deterrence of Fourth Amendment violations.'" (Quoting Illinois v. Krull, 480 U.S. 340,
350, 107 S. Ct. 1160, 94 L. Ed. 3d 364 [1987].)


       In response, Schmidt claims that applying the good-faith exception to the
exclusionary rule here would have a "chilling effect" on an individual's constitutional
rights. Specifically, he points to Justice Sandra Day O'Connor's admonitions in Krull, 480
U.S. at 366 (O'Connor, J., dissenting), that "'[p]roviding legislatures a grace period during
which the police may freely perform unreasonable searches in order to convict those who
might have otherwise escaped creates a positive incentive to promulgate unconstitutional
laws.'" Schmidt argues that the exclusionary rule must be applied here in order to prevent
the legislature from "curtail[ing], limit[ing], or even violat[ing] an individual's
constitutional rights through the passage of some new, experimental legislation."


       Whether the good-faith exception applies is a question of law over which an
appellate court has unlimited review. See State v. Carlton, 297 Kan. 642, 645, 304 P.3d
323 (2013) ("The only remaining inquiry is whether the appropriate remedy is to suppress
the evidence seized. This is a question of law."); Daniel, 291 Kan. at 496.


       Warrantless searches are per se unreasonable, and thus unlawful, unless they fall
within one of the established exceptions to the warrant requirement. Daniel, 291 Kan. at
496. There is no express constitutional prohibition against using illegally obtained
evidence; however, the exclusionary rule, which is a judicially created remedy, prohibits
"the use of unconstitutionally obtained evidence in a criminal proceeding against the
victim of an illegal search." 291 Kan. at 496 (citing Krull, 480 U.S. at 347). The purpose
of the exclusionary rule is to protect Fourth Amendment rights through deterrence, but it
is not a personal constitutional right of a defendant. United States v. Leon, 468 U.S. 897,
906, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).




                                              11
       The United States Supreme Court in Krull carved out an exception to the
exclusionary rule when a law enforcement officer, in good faith, reasonably relies on an
unconstitutional statute because suppression does not further the rule's deterrent intent:


       "Unless a statute is clearly unconstitutional, an officer cannot be expected to question the
       judgment of the legislature that passed the law. If the statute is subsequently declared
       unconstitutional, excluding evidence obtained pursuant to it prior to such a judicial
       declaration will not deter future Fourth Amendment violations by an officer who has
       simply fulfilled his responsibility to enforce the statute as written." 480 U.S. at 349-50.


       Our Supreme Court recognized and applied the good-faith exception as articulated
in Krull for the first time in Daniel. Noting that the good-faith exception is not unlimited,
our Supreme Court echoed the United States Supreme Court's admonition in Krull that in
order for the good-faith exception to apply, an officer's reliance on a statute must be
objectively reasonable. Daniel, 291 Kan. at 500 (citing Krull, 480 U.S. at 355). A law
enforcement officer cannot claim good-faith reliance on a statute if a reasonable officer
should have known that the statute was unconstitutional. 291 Kan. at 500 (citing Krull,
480 U.S. at 355). Additionally, reliance on a statute is not objectively reasonable if the
legislature "'wholly abandoned its responsibility to enact constitutional laws'" when
passing the statute. 291 Kan. at 500 (quoting Krull, 480 U.S. at 355).


       In Birchfield, the United States Supreme Court noted that it was not addressing the
constitutionality of various state implied consent laws. 136 S. Ct. at 2185. Nevertheless,
the Birchfield Court held that motorists cannot be criminally punished for refusing to
submit to a warrantless blood draw and that motorists cannot be deemed to have
consented to submit to a blood test on the pain of committing a criminal offense. 136 S.
Ct. at 2185-86. In Ryce, 303 Kan. at 963, our Supreme Court held that K.S.A. 2014 Supp.
8-1025 was facially unconstitutional, and in Nece, 303 Kan. at 896-97, our Supreme
Court ruled that the implied consent advisories in K.S.A. 2014 Supp. 8-1001 were
impermissibly coercive. Although the decisions in Ryce and Nece are not final, the
                                                    12
United States Supreme Court's decision in Birchfield makes it clear that K.S.A. 2012
Supp. 8-1025 and the implied consent advisories in K.S.A. 2012 Supp. 8-1001(k)(4) are
no longer enforceable at least as to blood tests. The issue here is whether Garner
objectively and reasonably relied on these statutes when he provided Schmidt with the
implied consent advisories and asked him to consent to a blood test.


       At the time of Schmidt's arrest, Garner was required by K.S.A. 2012 Supp. 8-
1001(k)(4) to inform Schmidt that he could face criminal penalties if he refused to submit
to any method of blood-alcohol testing. Also, at the time of Schmidt's arrest, Kansas
courts had consistently upheld the constitutionality of warrantless blood draws
undertaken pursuant to K.S.A. 8-1001. See, e.g., Martin v. Kansas Dept. of Revenue, 285
Kan. 625, 635, 176 P.3d 938 (2008); Furthmyer v. Kansas Dept. of Revenue, 256 Kan.
825, 835, 888 P.2d 832 (1995); Popp v. Motor Vehicle Department, 211 Kan. 763, 767,
508 P.2d 991 (1973).


       Garner had no reason to know that the implied consent advisories would be found
impermissibly coercive 4 years after Schmidt's arrest, and K.S.A. 2012 Supp. 8-
1001(k)(4) was not so clearly unconstitutional at the time of Schmidt's arrest that a
reasonably well-trained officer would have known that it was unconstitutional. By giving
the advisories and informing Schmidt that he could be charged with a separate crime for
refusing to submit to a blood test, Garner was merely fulfilling his responsibility to
enforce the statute as written, and suppression would not serve the deterrent aim of the
exclusionary rule.


       Furthermore, there is no indication that in enacting either K.S.A. 2012 Supp. 8-
1025 or K.S.A. 2012 Supp. 8-1001(k)(4), the Kansas Legislature wholly abandoned its
responsibility to pass constitutional laws. Other states had statutes similar to K.S.A. 2012
Supp. 8-1025 and continued to uphold them until the United States Supreme Court ruled
in Birchfield that these types of criminal penalty laws are unenforceable as to blood tests.

                                             13
See, e.g., Wing v. State, 268 P.3d 1105, 1109-10 (Alaska App. 2012) (upholding the
constitutionality of an Alaska statute criminalizing the refusal to submit to blood-alcohol
test); State v. Bernard, 859 N.W.2d 762, 774 (Minn. 2015) (Minnesota statute that
criminalizes refusal to submit to blood-alcohol test passes rational basis review).


       Schmidt argues that applying the good-faith exception here would have a chilling
effect because it will encourage the legislature to pass unconstitutional laws. But as
discussed above, the good-faith exception is not absolute and reliance on a statute must
be reasonable; reliance is not reasonable if the legislature wholly abandoned its duty to
enact constitutional laws. Krull, 480 U.S. at 355. As the court concluded in Daniel, the
possibility of the legislature hiding behind the good-faith exception to enact blatantly
unconstitutional laws is unlikely to occur because "the safeguards required by Krull for a
court to examine whether law enforcement reliance on a particular statute was objective
and reasonable under the circumstances militate against the possibility for legislative
mischief that might seek to take unfair advantage of this exception." 291 Kan. at 500.


       Finally, Schmidt points to State v. Pettay, 299 Kan. 763, 326 P.3d 1039 (2014), as
an example of a case where the Kansas Supreme Court declined to apply the good-faith
exception to the exclusionary rule in order to uphold a vehicle search incident to the
defendant's arrest pursuant to K.S.A. 22-2501, after the statute was subsequently held to
be unconstitutional. But Pettay is distinguishable because the law enforcement officer in
that case searched the vehicle after the driver had been handcuffed and placed in the
backseat of a patrol car. The court pointed out that K.S.A. 22-2501, upon which the
officer relied to conduct the search, had always required that a search incident to an arrest
must be limited to the area within the arrestee's immediate presence. 299 Kan. at 770.
Because the law enforcement officer failed to comply with the plain language of the
statute and exceeded the permissible scope of the search set forth in K.S.A. 22-2501, the
court determined that the good-faith exception to the exclusionary rule should not be
applied to uphold the search. 299 Kan. at 771-72.

                                             14
       In sum, the good-faith exception is applicable here. There is nothing to suggest
that at the time of Schmidt's arrest, Garner should have known that the criminal penalty
statute was unconstitutional and that the Kansas implied consent advisories were
coercive, nor is there any indication that the legislature wholly abandoned its duty to
enact constitutional laws in passing either statute. When Garner advised Schmidt that
failure to submit to the blood test constituted a separate crime, Garner was only doing
what he was required by law to do. Suppressing Schmidt's blood test results would not
serve the purpose of the exclusionary rule, which is to deter police misconduct. Thus,
while the district court based its decision to deny Schmidt's motion to suppress his blood
test results on the wrong ground, we uphold the district court's decision as being correct
for the wrong reason. See State v. Overman, 301 Kan. 704, 712, 348 P.3d 516 (2015)
(district court's decision will be upheld even though it relied upon the wrong ground).


       Affirmed.




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