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KS: Gant makes state SI statute unconstitutional

By John Wesley Hall, Jr.

K.S.A. 22-2501(c) which permits a search of a vehicle incident to an occupant's or recent occupant's arrest, even if the purpose of the search is not focused on uncovering evidence only of the crime of arrest, is facially unconstitutional under the Fourth Amendment and under Section 15 of the Kansas Constitution Bill of Rights under Gant. State v. Henning, 2009 Kan. LEXIS 192 (June 26, 2009). The statute provides: 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. Factually, this case is more similar to Gant than to Belton but, analytically, a factual comparison is unnecessary...continue to full post

Full post as published by Fourth Amendment on July 09, 2009 (boomark / email).