              IN THE SUPREME COURT OF THE STATE OF KANSAS


                                        No. 112,449

                                    STATE OF KANSAS,
                                        Appellee,

                                             v.

                                  DUSTIN DEAN PERKINS,
                                       Appellant.


                              SYLLABUS BY THE COURT

1.
       Neither the Fourth Amendment to the United States Constitution nor § 15 of the
Kansas Constitution Bill of Rights addresses the proper remedy for a warrantless search;
the exclusionary rule is a judicially created remedy designed to deter unlawful searches
and seizures by prohibiting the prosecution's use of unconstitutionally obtained evidence.


2.
       Ordinarily, issues not raised before the trial court cannot be raised on appeal.
There are three exceptions to this preservation rule: (1) the newly asserted theory
involves only a question of law arising on proved or admitted facts and is determinative;
(2) consideration of the theory is necessary to serve the ends of justice or to prevent the
denial of fundamental rights; and (3) the trial court may be affirmed because it was right
for the wrong reason.


3.
       The good-faith exception to the exclusionary rule as discussed in Illinois v. Krull,
480 U.S. 340, 349-50, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987), applies when an officer
reasonably relies upon a statute to make a search and the statute is later deemed

                                              1
unconstitutional. Reliance upon a statute is not reasonable if the provisions of a statute
are such that a reasonable officer should have known that the statute was
unconstitutional.


4.
        In this case, a law enforcement officer's reliance on K.S.A. 2012 Supp. 8-1025 was
reasonable because the officer could not have reasonably been expected to have known
that the statute would later be found unconstitutional and the officer followed the law as
it existed at the time.


5.
        The Legislature did not wholly abandon its duty to pass constitutional laws when
it passed K.S.A. 2012 Supp. 8-1025; this court has held that the provisions of K.S.A.
2012 Supp. 8-1025 that criminalize withdrawal of consent to submit to a blood alcohol
content test are unconstitutional, but the entire implied consent statutory scheme has not
been invalidated.


        Review of the judgment of the Court of Appeals in 55 Kan. App. 2d 372, 415 P.3d 460 (2018).
Appeal from Ellis District Court; EDWARD E. BOUKER, judge. Opinion filed October 4, 2019. Judgment
of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.


        Michael S. Holland II, of Holland and Holland, of Russell, argued the cause and was on the briefs
for appellant.


        Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Curtis Brown, of
Glassman, Bird, Brown & Powell, L.L.P., of Hays, and Derek Schmidt, attorney general, were with him
on the briefs for appellee.


        PER CURIAM: Dustin Dean Perkins seeks review of the Court of Appeals decision
to affirm his conviction for driving under the influence. Citing this court's holdings in


                                                      2
State v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016) (Ryce I), and State v. Nece, 303 Kan.
888, 367 P.3d 1260 (2016) (Nece I), Perkins argues the results of the warrantless breath
test conducted following his arrest should have been suppressed as an unconstitutional
search.


       The Court of Appeals rejected Perkins' argument and affirmed on two bases: (1)
the search was not unconstitutional because it fit within the search incident to arrest
exception to the Fourth Amendment's warrant requirement; and (2) the good-faith
exception to the exclusionary rule permitted the State to convict Perkins with
unconstitutionally obtained evidence. State v. Perkins, 55 Kan. App. 2d 372, 415 P.3d
460 (2018). On review of that decision, we affirm the Court of Appeals panel based on
our holding that the good-faith exception to the exclusionary rule permits the State to use
evidence obtained as a result of Perkins' breath test.


                          FACTUAL AND PROCEDURAL OVERVIEW


       In July 2012, a Hays Police Department law enforcement officer (LEO) stopped
the vehicle Perkins was driving for disobeying a red traffic signal and ultimately arrested
him for driving under the influence (DUI). After the arrest, the LEO transported Perkins
to the police station and provided him with written and oral implied consent advisories.
Perkins agreed to submit to a breath test, and his breath sample registered a 0.158 percent
blood alcohol content (BAC), which is above the legal limit. The State charged Perkins
with misdemeanor DUI under K.S.A. 2012 Supp. 8-1567(a)(2), or in the alternative
K.S.A. 2012 Supp. 8-1567(a)(3) and (b)(1)(B).


       In the district court, Perkins filed a motion to suppress the results of the breath test
and submitted the matter to the district court based upon a stipulation of facts and waiver
of jury trial. The district court denied the motion to suppress in June 2014 and convicted
Perkins of DUI. Perkins appealed.

                                               3
         Before the Court of Appeals considered Perkins' appeal, this court published its
decisions in Ryce I and Nece I. Those decisions declared K.S.A. 8-1025's criminalization
of a driver's refusal to submit to BAC testing to be unconstitutional under the Fourth
Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of
Rights. See Nece I, 303 Kan. 888, Syl. Consequently, a consent to submit to BAC testing
after being advised that a refusal was a criminal act rendered the consent unduly coerced
and invalid.


         Subsequent to Ryce I and Nece I, the United States Supreme Court decided
Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016).
That decision held that the Fourth Amendment prohibits warrantless blood tests pursuant
to DUI arrests and that motorists cannot be deemed to have consented to such a test based
on a threat of criminal penalty. 136 S. Ct. at 2186. But in contrast, the Birchfield Court
also held that warrantless breath tests can be permissible under the Fourth Amendment.
136 S. Ct. at 2184.


         Upon rehearing to consider the impact of Birchfield, this court reaffirmed the
results reached in Ryce I and Nece I. State v. Nece, 306 Kan. 679, 396 P.3d 709 (2017)
(Nece II); State v. Ryce, 306 Kan. 682, 396 P.3d 711 (2017) (Ryce II).


         The Court of Appeals issued a show cause order in Perkins' case, directing the
State to explain why the matter should not be summarily reversed per Nece I and II. The
State responded, acknowledging that the consent in this case was rendered involuntary
per Nece I but that other exceptions to the exclusionary rule should apply and the State
should be given an opportunity to raise those exceptions because its initial briefing
predated Nece I. The State specifically argued that the search incident to arrest exception
to the warrant requirement and the good-faith exception to the exclusionary rule might
apply.

                                              4
       The Court of Appeals then ordered supplemental briefing from both parties
addressing the impact of Nece I and II and "whether any exceptions to the warrant
requirement of the Fourth Amendment [to the United States Constitution] should be
applied" to this case. Perkins, 55 Kan. App. 2d at 378.


       After supplemental briefing from both parties, the Court of Appeals issued a
published opinion in which it affirmed the district court, finding that: (1) the search
incident to arrest exception to the warrant requirement allows a warrantless breath test;
and (2) in this case, the good-faith exception would apply to save the evidence from the
exclusionary rule because at the time of arrest the officer acted with an objectively
reasonable reliance on a statute that was later determined to be unconstitutional. Perkins,
55 Kan. App. 2d at 380-83.


       We granted Perkins' timely petition for review in which he argues that the Court of
Appeals blatantly ignored this court's opinions in the Nece and Ryce decisions, that the
State failed to preserve its search incident to arrest theory, that the State's good-faith
exception theory was implicitly rejected in our Nece II decision and is inapplicable
because the officer was not relying on an unconstitutional statute as authority to conduct
the search, and that the Legislature abandoned its duty to pass constitutional laws.


                                          ANALYSIS


       The Fourth Amendment to the United States Constitution and § 15 of the Kansas
Constitution Bill of Rights prohibit unreasonable searches. A warrantless search is per se
unreasonable unless a valid exception to the Fourth Amendment applies. Arizona v. Gant,
556 U.S. 332, 338, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009); State v. Neighbors, 299
Kan. 234, 239, 328 P.3d 1081 (2014). Neither the Fourth Amendment nor § 15 of the
Kansas Constitution Bill of Rights addresses the proper remedy for a warrantless search;

                                               5
the exclusionary rule is a judicially created remedy designed to deter unlawful searches
and seizures by prohibiting the prosecution's use of unconstitutionally obtained evidence.
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).


       Before the district court, the State argued Perkins had consented to the search. The
district court found the consent was voluntary and within the consent exception to the
warrant requirement. The district court thus did not discuss a remedy. On appeal, the
State pivoted to asserting two new reasons the invalid consensual search of Perkins' deep
lung air was nevertheless admissible as evidence against him in the DUI prosecution. In
one argument, the State argued the officer could have relied on another exception to the
warrant requirement—the search incident to arrest exception. In the second argument, the
State focused on the remedy that applies if the search is unreasonable—that is, whether
the evidence is admissible because the officer relied in good faith on a statute. The panel
acknowledged that the State did not present either issue to the trial court and,
"[o]rdinarily, issues not raised before the trial court cannot be raised on appeal. See State
v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014)." Perkins, 55 Kan. App. 2d at 378.


       The panel then noted that "there are several exceptions to this [preservation] rule"
and recited the three exceptions this court has recognized: (1) the newly asserted theory
involves only a question of law arising on proved or admitted facts and is determinative;
(2) consideration of the theory is necessary to serve the ends of justice or to prevent the
denial of fundamental rights; and (3) the trial court may be affirmed because it was right
for the wrong reason. 55 Kan. App. 2d at 378 (citing State v. Phillips, 299 Kan. 479, 493,
325 P.3d 1095 [2014]).


       The panel also cited to the parties' stipulated facts, holding that because the facts
were undisputed the two new theories presented only questions of law. As such, the
panel concluded the first preservation exception applied and declared that, therefore, it

                                              6
could consider the new theories for the first time on appeal. 55 Kan. App. 2d at 378, 381
(citing State v. Cleverly, 305 Kan. 598, 604, 385 P.3d 512 [2016]; Daniel, 291 Kan. at
496). The panel did not clarify whether it selected the first preservation exception before
or after it ordered supplemental briefing in which the State argued the applicability of all
three preservation exceptions. Cf. State v. Williams, 298 Kan. 1075, 1085-86, 319 P.3d
528 (2014) (warning litigants to explain why an issue is properly before the court or risk
having the issue deemed abandoned).


       This case, however, differs significantly from the normal situation on appeal.
Here, it was the Court of Appeals that requested the State to brief new arguments on
appeal, akin to the panel raising the issue sua sponte. When an appellate court raises an
issue, the parties should be afforded an opportunity to present their positions to the court.
See Lumry v. State, 305 Kan. 545, 566, 385 P.3d 479 (2016) (citing State v. Puckett, 230
Kan. 596, 640 P.2d 1198 [1982]).


       Lumry concerned a dispute over wage and hour laws and retaliatory discharge; a
Court of Appeals panel sua sponte raised an issue regarding adequate alternative
remedies under the Fair Labor Standards Act and then did not address the issue, but
"arbitrarily invoked the waiver rule." 305 Kan. at 566. This court said the failure to afford
the parties a chance to argue the issue was error. 305 Kan. at 566. Conversely, the
Perkins panel followed the procedure we suggested in Lumry and gave the parties the
chance to address the newly raised issues.


       We agree that this preservation exception applies, allowing us to consider the
State's arguments. This appeal differs in this regard with the situation we faced in Nece.
There, we declined to consider the good-faith exception because the State did not present
any argument to us on that point, despite the suggestion from the Court of Appeals that
the exception may be applicable. Nece I, 303 Kan. at 897. The State did not make that
omission here. Because of this distinction, we disagree with Perkins' argument that this

                                              7
court foreclosed the applicability of the good-faith exception in Nece I. We simply did
not reach that issue because the State failed to preserve it. Here, without a preservation
impediment, we can analyze whether the good-faith exception to the exclusionary rule
would operate to save the evidence obtained from the testing of Perkins' breath, even if it
was unconstitutionally obtained through an impermissible search. Perkins, 55 Kan. App.
2d at 381.


       The good-faith exception to the exclusionary rule was first recognized by the
United States Supreme Court in United States v. Leon, 468 U.S. 897, 920-21, 104 S. Ct.
3405, 82 L. Ed. 2d 677 (1984). There, the Court found that if exclusion of
unconstitutionally obtained evidence would not have a deterrent effect, the evidence
should not be excluded, and if law enforcement obtains evidence in reliance on a warrant
that is later determined to be invalid, the evidence should not be excluded.


       Later, the United States Supreme Court extended the Leon good-faith exception to
the exclusionary rule to include reasonable reliance upon a statute, even if the statute is
later found to be unconstitutional. Krull, 480 U.S. at 349-50; Daniel, 291 Kan. at 500.


       Daniel is analogous to the present case: police arrested Candy S. Daniel and
searched her car pursuant to K.S.A. 22-2501(c), which, at the time, allowed a search of a
vehicle pursuant to an arrest. 291 Kan. at 491. Later, after Daniel appealed her
conviction, K.S.A. 22-2501(c) was found to be unconstitutional under Gant, 556 U.S. at
344. Daniel, 291 Kan. at 491-92 (citing State v. Henning, 289 Kan. 136, 148-49, 209 P.3d
711 [2009]).


       This court adopted Krull's expansion of the Leon good-faith exception to excuse a
police officer's reasonable reliance on a statute. Daniel, 291 Kan. at 499-500. In Krull,
the Supreme Court said that reliance on a statute would not be reasonable if "its
provisions are such that a reasonable officer should have known that the statute was

                                              8
unconstitutional." 480 U.S. at 355. In Daniel, the court found the officer's reliance on
K.S.A. 22-2501(c) was reasonable because of pre-Gant caselaw which supported such
searches and affirmed the district court's denial of the motion to suppress. 291 Kan. at
505; see also State v. Dennis, 297 Kan. 229, 230, 300 P.3d 81 (2013) (officer need not
specifically articulate statute authorizing search if an objectively reasonable officer could
rely upon a statute).


       Similarly, here, there was no reason for the officer to know that K.S.A. 2012 Supp.
8-1025 would later be found unconstitutional or that the implied consent advisory based
on that law was coercive. The LEO followed the law as it existed at that time and could
not reasonably be expected to know that the statute later would be found unconstitutional.
Nor did the Legislature wholly abandon its duty to pass constitutional laws, as argued by
Perkins. We have held that the provisions in K.S.A. 8-1025 which criminalized test
refusal were unconstitutional, but we have not invalidated the entire implied consent
statutory scheme. Perkins' arguments to this effect are unavailing, and we find that the
good-faith exception to the exclusionary rule would save the evidence in this case even
though Perkins' consent to search was invalid.


       Because we reach this holding, we need not discuss the State's alternative
argument about the search incident to arrest exception. In sum, the holding of the Court
of Appeals affirming the district court's refusal to suppress the result of the breath test is
affirmed.


       Judgment of the Court of Appeals affirming the district court is affirmed.
Judgment of the district court is affirmed.




                                               9
       NUSS, C.J., and JOHNSON, J., not participating.
       MICHAEL J. MALONE, Senior Judge, assigned.1




                                           ***


       LUCKERT, J., concurring: I agree with the majority's decision to apply the good-
faith exception as it is recognized by the United States Supreme Court in cases decided
under the Fourth Amendment to the United States Constitution. And I concur with the
majority's implicit application of the United States Supreme Court's caselaw to § 15 of
the Kansas Constitution Bill of Rights. I do so even though I question whether Kansas
should continue to apply the good-faith exception in lockstep with federal caselaw.
Instead, I am open to reexamining our decision in State v. Daniel, 291 Kan. 490, 242 P.3d
1186 (2010), which adopted the holdings in Illinois v. Krull, 480 U.S. 340, 349-50, 107
S. Ct. 1160, 94 L. Ed. 2d 364 (1987).


       I decline to conduct that reexamination here, however, because Dustin Dean
Perkins has not asked us to overrule Daniel and has not argued that the result under the
Kansas Constitution should differ from that reached by application of United States
Supreme Court caselaw. But in a future case, I am willing to revisit our holding in Daniel
because the passage of time and the evolution of federal caselaw reveals that, as predicted
by Justice Johnson in his dissent in Daniel, the Krull exception has greatly weakened the
exclusionary rule. See Daniel, 291 Kan. at 505-09 (Johnson, J., dissenting); see also State




1
 REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 112,449
vice Justice Nuss under the authority vested in the Supreme Court by K.S.A. 20-2616.
Justice Lee A. Johnson retired on September 6, 2019, and did not participate in the
decision of No. 112,449.

                                            10
v. Jordan, 303 Kan. 1017, 1022, 370 P.3d 417 (2016) (Johnson, J., dissenting) ("[T]he
doctrine of stare decisis was never designed to perpetuate law that was originally
erroneous.").


       As the majority notes, in Daniel, 291 Kan. 499-500, this court followed the United
States Supreme Court's decision in Krull, 480 U.S. at 349-50, which expanded the United
States v. Leon, 468 U.S. 897, 922-23, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), good-
faith exception to the exclusionary rule. Slip op. at 8. Leon held evidence could be
admitted even if an unconstitutional search occurred as long as the law enforcement
officers conducting the search relied in good faith on the fact a neutral magistrate had
signed a search warrant. Leon, 468 U.S. at 922, 926. Krull then extended the exception to
situations where officers conduct an unconstitutional search in good-faith reliance on a
statute. Krull, 480 U.S. at 349-50. When we adopted Krull, we noted that our court has
typically interpreted the protections of the Kansas Constitution as being coextensive with
the United States Constitution. Daniel, 291 Kan. at 498 (citing State v. Hoeck, 284 Kan.
441, 463, 163 P.3d 252 [2007], and State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818
[1993]). But, as Justice Johnson pointed out in his Daniel dissent, simply because our
caselaw has, thus far, interpreted § 15 as affording no greater protections than the Fourth
Amendment does not mean that this court is compelled to always do so. 291 Kan. at 506
(Johnson, J., dissenting). And legitimate arguments can be made that we should
independently determine the remedies Kansas should impose when law enforcement
officers violate the Kansas Constitution.


       Primarily, passage of time has shown how the Krull exception appears to have
swallowed the exclusionary rule. The "linchpin" of the exclusionary rule "is its deterrent
effect upon law enforcement." 291 Kan. 490, Syl. ¶ 4. But the caselaw since Krull has
validated Justice Johnson's point that the expansion of the good-faith exception to allow
an arresting law enforcement officer to interpret and apply statutory law puts the fox in
charge of the henhouse. See Daniel, 291 Kan. at 507 (Johnson, J., dissenting) ("[T]he

                                             11
majority would permit a law enforcement officer to perform the judicial function of
interpreting a statute and applying the statutory provisions to the facts as they are being
encountered by the officer.").


       Further, our Court of Appeals has noted that "in the 28 years since Krull was
issued, there does not appear to be any reported cases wherein a federal or state appellate
court declined to apply the good-faith exception because a legislative body wholly
abandoned its responsibility to enact constitutional laws." State v. Meitler, 51 Kan. App.
2d 308, 317, 347 P.3d 670 (2015). This conclusion causes me to question: How does the
exclusionary rule deter unconstitutional conduct, including legislative action in adopting
unconstitutional statutes, if a court fails to provide a remedy simply because a law
enforcement officer can claim reliance on a statute?


       I recognize that in Krull, 480 U.S. at 352-53, the United States Supreme Court
determined, "to the extent that application of the exclusionary rule could provide some
incremental deterrent, that possible benefit must be weighed against [its] 'substantial
social costs.'" The United States Supreme Court has thus held the exclusionary rule
should be applied only as a "last resort." See Hudson v. Michigan, 547 U.S. 586, 591,
596, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006). As a result, applying the United States
Constitution, the United States Supreme Court has limited the application of the
exclusionary rule to the following rare situation:


       "When the police exhibit 'deliberate,' 'reckless,' or 'grossly negligent' disregard for Fourth
       Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the
       resulting costs. But when the police act with an objectively 'reasonable good-faith belief'
       that their conduct is lawful, or when their conduct involves only simple, 'isolated'
       negligence, the '"deterrence rationale loses much of its force,"' and exclusion cannot 'pay
       its way.' [Citations omitted.]" Davis v. United States, 564 U.S. 229, 238, 131 S. Ct. 2419,
       180 L. Ed. 2d 285 (2011).



                                                    12
       But I question the notion that the only purpose of the exclusionary rule is to deter
police misconduct. It also functions to preserve the integrity of the judicial system; to
prevent the government from profiting from the fruits of lawless behavior, whether
intentional or inadvertent; and to preserve the rights of citizens guaranteed by our
founding fathers in the Bill of Rights. Cf. State v. Pettay, 299 Kan. 763, 772-73, 326 P.3d
1039 (2014) (Johnson, J., concurring) (discussing other purposes served by the
exclusionary rule). In Webb, Justice Johnson quoted Thomas Jefferson, to-wit: "'[A] bill
of rights is what the people are entitled to against every government on earth, general or
particular, and what no just government should refuse.' United States v. Emerson, 270
F.3d 203, 266 (5th Cir. 2001) (citing 'The Origin of the Second Amendment' [2d ed.
1995] [Golden Oaks Books])." City of Dodge City v. Webb, 305 Kan. 351, 358-59, 381
P.3d 464 (2016) (Johnson, J., dissenting).


       In my view, the application of Krull by federal and state courts warrants our
reconsideration of whether its exception leaves Kansans without the protection
guaranteed by § 15 of the Kansas Constitution Bill of Rights.




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