Kansas Vehicle Searches: No Consent Statute, but a Profiling Bar and a Prosecution Burden

The first thing to know about vehicle searches in Kansas is what the code does not say. Kansas has not legalised adult-use cannabis, so none of the "lawful possession is not grounds for a search" clauses that other states wrote into their legalisation acts exist here. A full-text search of the Kansas Statutes Annotated returns nothing for "consent to search," nothing for "probable cause to search" as a phrase, and nothing for "search of a vehicle." There is no Kansas duty to log whether consent was requested and given, and no Kansas pretextual-stop reform package.

The second thing is the repeal. K.S.A. 22-2501 once set out when an officer could search a person and the area in reach after a lawful arrest. The Kansas Office of Revisor of Statutes still publishes the section number, but the page carries no text at all: only a history line reading "L. 1970, ch. 129, sec. 22-2501; Revived and amended, L. 2006, ch. 211, sec. 8; Repealed, L. 2011, ch. 100, sec. 22; July 1." Kansas therefore has no statutory search authority for vehicles. What governs is the Fourth Amendment and section 15 of the Kansas Bill of Rights, applied case by case.

What remains in the statute book is the Kansas profiling act, enacted in 2005 and amended in 2011. K.S.A. 22-4609 is titled "Profiling prohibited as basis for making stop, search or arrest" and is written as three separate prohibitions. Paragraph (a) covers determining probable cause to take into custody or to arrest. Paragraph (b) covers constituting the reasonable and articulable suspicion needed to justify a detention or an investigatory stop of a vehicle. Paragraph (c) is the search paragraph: it is unlawful to use racial or other biased-based policing in determining the existence of probable cause to conduct a search of an individual or a conveyance. The Revisor's annotations record State v. Gray, 306 Kan. 1287 (2017), holding that a judge must look past the ultimate justification for a traffic stop and consider whether the officer unreasonably used a listed characteristic in deciding to act, and State v. Gill, 56 Kan. App. 2d 1278 (2019), that approaching two black males because they are staring hard at an officer is an unreasonable use of race.

The enforcement route for a profiling complaint runs through K.S.A. 22-4611. A person may complain to the law enforcement agency and to the Office of the Attorney General; the Attorney General reviews and, if necessary, investigates, and may forward the complaint to the Kansas Commission on Peace Officers' Standards and Training, which can act on the officer's certification. Within 10 days of receiving a complaint the Attorney General must notify the accused officer and the head of that officer's agency and supply a copy of the complainant's documentation. Once the complaint is disposed of, 22-4611(c) gives the complainant a civil cause of action in the district court against the officer, the agency, or both, with damages if the court finds biased-based policing and discretionary attorney fees and costs for the prevailing party. The Court of Appeals held in Garcia v. Anderson, 46 Kan. App. 2d 1094 (2012), that a claimant suing a municipality on that cause of action must also comply with the notice requirements of K.S.A. 12-105b(d).

If evidence is found, the challenge is a motion to suppress under K.S.A. 22-3216. Subsection (1) lets a defendant aggrieved by an unlawful search and seizure move before trial for the return of property and to suppress anything obtained. Subsection (2) requires the motion to be in writing and to state facts showing wherein the search and seizure were unlawful, directs the judge to receive evidence on any issue of fact, and then places the burden of proving that the search and seizure were lawful on the prosecution. Subsection (3) requires the motion to be made before trial unless the opportunity did not exist or the defendant was unaware of the ground, and subsection (4) allows it to be raised at or before a preliminary examination.

One further Kansas limit is worth knowing at the roadside. K.S.A. 22-2402(2) permits a frisk during an investigatory stop only for firearms or other dangerous weapons, and only where the officer reasonably suspects that personal safety requires it. That is a pat-down of a person, not authority to search a car.

A. 22-4609(c). A. 22-4611: complaint to the agency and to the Kansas Attorney General, notification to the accused officer and agency head within 10 days under 22-4611(b), possible referral to the Kansas Commission on Peace Officers' Standards and Training with action on the officer's certification, and after disposition a civil suit in the district court under 22-4611(c) for damages, with the court able to allow the prevailing party reasonable attorney fees and court costs. A. 12-105b(d). A. 22-3216(1); the motion must be in writing and state the facts making the search unlawful, and under 22-3216(2) the prosecution then bears the burden of proving the search and seizure were lawful.

If the motion is granted, the court must order the suppressed property restored at the conclusion of the case unless it is otherwise subject to lawful detention, and where a defendant is not bound over and no further proceedings begin within 90 days the magistrate must order it restored.