State v. Hinnenkamp

No. 119,125

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TERESA GAYLE HINNENKAMP,
Appellant.

SYLLABUS BY THE COURT

1.
Determining a statute's constitutionality is a question of law subject to unlimited
appellate review.

2.
K.S.A. 2018 Supp. 21-6607(c)(6), which requires district courts to impose random
drug and alcohol testing as a condition of probation, is exempt from the Fourth
Amendment's general warrant requirement because (1) the special needs of the probation
system make the warrant and probable cause requirement impracticable, and (2) the
primary purpose of random drug and alcohol testing for probationers is distinguishable
from the State's general interest in crime control.

3.
When we weigh a Kansas probationer's diminished expectation of privacy against
the State's interests in promoting rehabilitation and probation compliance, and we
consider the efficacy of random suspicionless drug and alcohol testing, it is reasonable to
permit a court services officer or community correctional services officer to order a

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probationer to submit to random drug and alcohol testing, even without any suspicion of
wrongdoing.

4.
K.S.A. 2018 Supp. 21-6607(c)(6) does not on its face violate the Fourth
Amendment to the United States Constitution or § 15 of the Kansas Constitution Bill of
Rights.

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed July 5, 2019.
Affirmed.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before LEBEN, P.J., MALONE and GARDNER, JJ.

MALONE, J.: Teresa Gayle Hinnenkamp appeals the district court's order that she
submit to random drug and alcohol testing as a condition of her probation for her
conviction of aggravated escape from custody. She claims that K.S.A. 2018 Supp. 21-
6607(c)(6), which requires district courts to impose random drug and alcohol testing as a
condition of probation, violates the Fourth Amendment to the United States Constitution
and § 15 of the Kansas Constitution Bill of Rights. For the reasons stated in this opinion,
we reject Hinnenkamp's claims and affirm the district court's judgment.

On October 26, 2017, pursuant to a plea agreement, Hinnenkamp pled guilty to
one count of aggravated escape from custody. She had failed to return to a work release
facility where she had been assigned as the result of her conviction in another case. The
presentence investigation report showed that Hinnenkamp had a lengthy criminal history

2
including three convictions of driving under the influence and a conviction of unlawful
possession of drug paraphernalia. She was on felony bond when she committed the new
crime. On December 8, 2017, the district court sentenced her to 18 months' imprisonment
but granted probation for 24 months to be supervised by community corrections.

As a condition of probation, the judge ordered Hinnenkamp to "not possess, use or
consume alcohol, illegal drugs or prescription drugs without a prescription." He also
ordered her to "submit to random breath, blood or urine testing, as directed by [her]
probation officer, and in any event, no less than once every 30 days." Hinnenkamp
objected to the probation condition and briefly argued that she should not be subjected to
random drug testing by her probation officer, but she did not expressly identify any
constitutional grounds to support her claim. The district court overruled the objection but
clarified that if Hinnenkamp did not test positive during her first year of probation, later
testing would "be at probation's discretion." Hinnenkamp timely appealed her sentence.

This appeal centers on the mandatory conditions of probation in K.S.A. 2018
Supp. 21-6607(c), which states, in part:

"In addition to any other conditions of probation . . . the court shall order the
defendant to comply with each of the following conditions:
....
"(6) be subject to random, but reasonable, tests for drug and alcohol consumption
as ordered by a court services officer or community correctional services officer."

Hinnenkamp argues that K.S.A. 2018 Supp. 21-6607(c)(6) violates her rights
under the Fourth Amendment to the United States Constitution and § 15 of the Kansas
Constitution Bill of Rights because it subjects her to searches unsupported by reasonable
suspicion. In response, the State argues that Hinnenkamp's argument is (1) improperly
raised for the first time on appeal; (2) not ripe, so this court lacks jurisdiction to consider
it; and (3) so inadequately briefed that Hinnenkamp has waived it. As for the merits of
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Hinnenkamp's argument, the State contends that K.S.A. 2018 Supp. 21-6607(c)(6) is
constitutional, both on its face and as applied to Hinnenkamp. We will begin by
addressing the State's reasons why we should not reach the merits of this appeal.

Preservation

To begin with, the State asserts that Hinnenkamp's constitutional claim is
improperly raised for the first time on appeal. Although Hinnenkamp briefly objected to
the probation condition for drug testing at her sentencing hearing, she did not refer to
either the Kansas or federal Constitution to support her claim. We agree with the State
that Hinnenkamp is asserting her constitutional claim for the first time on appeal.

Generally, constitutional grounds for reversal asserted for the first time on appeal
are not properly before the appellate court for review. State v. Daniel, 307 Kan. 428, 430,
410 P.3d 877 (2018). But there are several exceptions to this general rule, including the
following: (1) the newly asserted theory involves only a question of law arising on
proved or admitted facts and is finally determinative of the case; (2) consideration of the
theory is necessary to serve the ends of justice or to prevent denial of fundamental rights;
and (3) the judgment of the district court may be upheld on appeal despite its reliance on
the wrong ground or having assigned a wrong reason for its decision. State v. Phillips,
299 Kan. 479, 493, 325 P.3d 1095 (2014).

Hinnenkamp asserts that this court should apply the first two exceptions to allow
her to assert her constitutional claim for the first time on appeal. In response, the State
argues that although the constitutionality of a statute may be a question of law, the
constitutionality of a search requires factual findings about the circumstances of the
search, and the district court has made no such factual findings in Hinnenkamp's case.

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 The State is correct. Whether Hinnenkamp can bring her constitutional claim for
the first time on appeal depends on whether she is bringing a facial challenge to the
constitutionality of the statute in question or an as-applied challenge. This is an important
distinction because although "classifying a lawsuit as facial or as-applied . . . does not
speak at all to the substantive rule of law necessary to establish a constitutional
violation," it does "affect[] the extent to which the invalidity of the challenged law must
be demonstrated and the corresponding 'breadth of the remedy.'" Bucklew v. Precythe,
587 U.S. ___, 139 S. Ct. 1112, 1127, 203 L. Ed. 2d 521 (2019).

A facial challenge is "an attack on a statute itself as opposed to a particular
application" of that law. Los Angeles v. Patel, 576 U.S. ___, 135 S. Ct. 2443, 2449, 192
L. Ed. 2d 435 (2015). In comparison, as its name suggests, an as-applied challenge
contests the application of a statute to a particular set of circumstances, so resolving an
as-applied challenge "necessarily requires findings of fact." See State v. Farmer, No.
98,997, 2008 WL 5401338, at *4 (Kan. App. 2008) (unpublished opinion); see also
Sibron v. New York, 392 U.S. 40, 59-62, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968) ("The
constitutional validity of a warrantless search is pre-eminently the sort of question which
can only be decided in the concrete factual context of the individual case.").

Hinnenkamp has not expressly articulated whether she brings her constitutional
claim as a facial challenge to the statute or an as-applied challenge. But some arguments
in her brief lead us to conclude that she is asserting a facial challenge to the
constitutionality of the statute. For instance, in setting forth the standard of review,
Hinnenkamp asserts that this court "presumes the constitutionality of a statute" and
resolves all doubts in favor of its validity. She acknowledges that courts "'must interpret a
statute'" in a manner that renders it constitutional if there is any reasonable construction
that will maintain the Legislature's apparent intent. In her prayer for relief, she
specifically asks us to "find K.S.A. 201[8] Supp. 21-6607(c)(6) unconstitutional."

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 To the extent that Hinnenkamp means to bring an as-applied challenge to K.S.A.
2018 Supp. 21-6607(c)(6), requiring findings of fact by the district court, we agree with
the State that her constitutional claim is not properly preserved for appeal. But her facial
challenge to the constitutionality of K.S.A. 2018 Supp. 21-6607(c)(6) arises on admitted
facts not dependent on the circumstances of any search she may have experienced. And
resolution of the issue is finally determinative of this case. Because a facial constitutional
challenge fits within the first exception to the general rule that we do not consider issues
for the first time on appeal, we will consider Hinnenkamp's facial challenge to K.S.A.
2018 Supp. 21-6607(c)(6).

Ripeness

Next, the State asserts that this issue is not ripe for decision, so this court lacks
jurisdiction to consider it. Hinnenkamp filed no reply brief and has not addressed
ripeness. The State first points out that the district court ordered random drug and alcohol
testing at least every 30 days, but only during the first year of Hinnenkamp's probation
which she has already completed. The State asserts "there is no indication that this
condition was ever applied to [Hinnenkamp]." But the State's argument misconstrues the
district court's probation order. The district court ordered Hinnenkamp to submit to
random drug testing at least once every 30 days during the first year of her probation. If
Hinnenkamp did not test positive during her first year of probation, later testing would be
at the probation officer's discretion. So although Hinnenkamp may no longer need to
submit to drug testing at least every 30 days, she is still subject to random testing at her
probation officer's discretion as required by K.S.A. 2018 Supp. 21-6607(c)(6).

The State also contends that this appeal is not properly before us because there are
"other avenues through which random testing could have been proper," including (1) the
probable conditions of probation imposed upon Hinnenkamp in another case not before
this court, (2) the supposition that she "also may have been subject" to random testing

6
because of her signing a probation agreement, and (3) the assertion that she may have
been subject to drug testing "through the development of reasonable suspicion or even
probable cause to request testing." But the State's argument is speculative and the record
before us contains no evidence that any of these "other avenues" occurred. And our
Supreme Court recently rejected a similar argument to the constitutionality of K.S.A.
2014 Supp. 8-1025, finding that such an argument to the facial challenge of a statute
"use[s] too wide a lens." See State v. Ryce, 303 Kan. 899, 915, 368 P.3d 342 (2016)
("[W]e do not consider the entire universe of possible scenarios, we must instead look to
the circumstances actually affected by the challenged statute. [Citation omitted.]").

Finally, as we have already discussed, a facial challenge to the constitutionality of
a statute is "an attack on a statute itself" and thus is a pure question of law. See Patel, 135
S. Ct. at 2447, 2449; Board of Johnson County Comm'rs v. Jordan, 303 Kan. 844, 852,
370 P.3d 1170 (2016). K.S.A. 2018 Supp. 21-6607(c)(6) is currently effective, and
analysis of its facial constitutionality requires no additional factual development. As a
result, we conclude that Hinnenkamp's facial challenge to the statute is ripe for appeal.
See KNEA v. State, 305 Kan. 739, 748, 387 P.3d 795 (2017).

Adequacy of briefing

The State also asserts that Hinnenkamp has waived her constitutional claim by
inadequate briefing. Inadequate briefing—by the failure to establish jurisdiction, to
specify a constitutional provision underlying a challenge, to provide or discuss pertinent
legal authority, or to tie analysis to the specific question before the court—may lead
Kansas appellate courts to deem an issue waived and abandoned. See State v. Gonzalez,
307 Kan. 575, 592, 412 P.3d 968 (2018). The State argues that Hinnenkamp's briefing is
so inadequate that this court should do the same. To show the inadequacy, the State
distinguishes the caselaw that Hinnenkamp cites, it points out intervening legislation, and
it asserts that Hinnenkamp does not argue the specifics of her own case.

7
 The State's arguments miss the point of inadequate briefing. First, Hinnenkamp
need not argue the specifics of any drug testing administered to her in asserting her claim
that K.S.A. 2018 Supp. 21-6607(c)(6) is unconstitutional on its face. The remainder of
the State's assertions challenge the substance of Hinnenkamp's brief, rather than its
adequacy. Put another way, the State does not claim that Hinnenkamp makes no
arguments at all; it merely asserts that her arguments are wrong or are not framed to
address the points the State believes are salient. We conclude that Hinnenkamp has not
waived or abandoned her constitutional claim based on inadequate briefing.

Because none of the State's arguments persuade us to dispose of this case on the
threshold issues of preservation, ripeness, or inadequate briefing, we turn to the merits of
Hinnenkamp's constitutional challenge.

The facial constitutionality of K.S.A. 2018 Supp. 21-6607(c)(6)

Hinnenkamp claims that K.S.A. 2018 Supp. 21-6607(c)(6), which requires district
courts to impose random drug and alcohol testing as a condition of probation, violates the
Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution
Bill of Rights. Determining a statute's constitutionality is a question of law subject to
unlimited appellate review. Solomon v. State, 303 Kan. 512, 523, 364 P.3d 536 (2015).

"'We presume statutes are constitutional and must resolve all doubts in favor of a
statute's validity. Further, we must interpret a statute in a manner that renders it
constitutional if there is any reasonable construction that will maintain the legislature's
apparent intent.' [Citations omitted.]" Gonzalez, 307 Kan. at 579. As the party
challenging the constitutionality of K.S.A. 2018 Supp. 21-6607(c)(6), Hinnenkamp must
overcome its presumptive constitutionality. 307 Kan. at 579.

8
 We begin our analysis by turning to the text of the applicable constitutional
provisions. The Fourth Amendment to the United States Constitution provides: "The
right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated." Section 15 of the Kansas
Constitution Bill of Rights contains similar language and provides "the same protection
from unlawful government searches and seizures as the Fourth Amendment." See State v.
Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014).

Hinnenkamp asserts—and the State does not contest her assertion—that the
probation condition required by K.S.A. 2018 Supp. 21-6607(c)(6) allows a suspicionless
search of a probationer. Both the United States Supreme Court and the Kansas Supreme
Court have held that breath, blood, and urine tests are searches under the Fourth
Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of
Rights. See Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2173, 195 L. Ed.
2d 560 (2016) ("[O]ur cases establish that the taking of a blood sample or the
administration of a breath test is a search."); Skinner v. Railway Labor Executives' Assn,
489 U.S. 602, 617, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989) (holding that the collection
and testing of urine constitutes a search under the Fourth Amendment); Ryce, 303 Kan. at
912 ("[A] breath, blood, or urine test is . . . a search.").

Any warrantless search is per se unreasonable unless it falls within one of the
exceptions to the search warrant requirement recognized in Kansas. Neighbors, 299 Kan.
at 239. Those exceptions include: consent; search incident to lawful arrest; stop and
frisk; probable cause with exigent circumstances, of which hot pursuit is one example;
emergency doctrine; inventory searches; plain view/plain feel; and administrative
searches of closely regulated businesses. 299 Kan. at 239. And in State v. Toliver, 307
Kan. 945, Syl. ¶ 5, 417 P.3d 253 (2018), our Supreme Court held that under the facts of
that case, "the warrantless and suspicionless search of a parolee's home did not violate the

9
Fourth Amendment of the United States Constitution or Section 15 of the Kansas
Constitution Bill of Rights."

Hinnenkamp points out that under K.S.A. 2018 Supp. 21-6607(c)(5), the court
shall order the defendant, as a condition of probation, to be subject to searches of the
defendant's person, effects, vehicle, residence, and property by a probation officer "based
on reasonable suspicion of the defendant violating conditions of probation or criminal
activity." Hinnenkamp argues that K.S.A. 2018 Supp. 21-6607(c)(6) is unconstitutional
because it provides that the court shall order the defendant, as a condition of probation, to
be subject to random drug and alcohol testing by a probation officer without reasonable
suspicion of the defendant violating the conditions of probation or engaging in criminal
activity. Thus, the narrow question before us is whether subjecting probationers to
suspicionless drug and alcohol testing, as required by K.S.A. 2018 Supp. 21-6607(c)(6),
violates the protections guaranteed by the Fourth Amendment to the United States
Constitution and § 15 of the Kansas Constitution Bill of Rights.

Before addressing Hinnenkamp's claims, we note that another panel of this court,
in two separate opinions filed on the same day, examined arguments very similar to those
now before us, and in each case the panel upheld the constitutionality of random drug and
alcohol testing. See State v. Nwoji, No. 117,721, 2018 WL 4039406 (Kan. App. 2018)
(unpublished opinion), rev. denied 309 Kan. ___ (February 28, 2019); State v. Tran, No.
117,880, 2018 WL 4039192 (Kan. App. 2018) (unpublished opinion), petition for rev.
filed September 21, 2018. Hinnenkamp acknowledges the Tran opinion but argues that
the court erred in holding that random drug and alcohol testing is constitutional.

The similarities between the arguments presented here and those decided in Nwoji
and Tran are striking. The Sedgwick County District Court convicted Wilfred M. Nwoji
Jr. and Hau T. Tran in unrelated criminal cases and sentenced each to probation. At their
sentencing hearings, the district court ordered the probation condition that Nwoji and

10
Tran, at their own expense, would "'submit to random breath, blood or urine testing, as
directed by probation and at [a] minimum once every 30 days.'" Nwoji, 2018 WL
4039406, at *1; see Tran, 2018 WL 4039192, at *1. Nwoji and Tran each objected to the
condition and argued for the first time on appeal that the statute requiring imposition of
the condition, K.S.A. 2017 Supp. 21-6607(c)(6), violates the Fourth Amendment to the
United States Constitution and § 15 of the Kansas Constitution Bill of Rights. Because
K.S.A. 2017 Supp. 21-6607(c)(6) addressed by the court in Nwoji and Tran is identical to
K.S.A. 2018 Supp. 21-6607(c)(6) at issue here, we will address only K.S.A. 2018 Supp.
21-6607(c)(6) for the rest of this opinion.

In Nwoji's and Tran's appeals, as it does now in Hinnenkamp's appeal, the State
argued that (1) this court should not consider the constitutional claim for the first time on
appeal; (2) the issue was not ripe for decision and therefore the appellant lacked standing
and this court lacked jurisdiction over the appeal; and (3) the appellant had waived the
argument by inadequate briefing. The Nwoji and Tran panel addressed these threshold
arguments before reaching the merits. Nwoji, 2018 WL 4039406, at *2-5; Tran, 2018 WL
4039192, at *2-5.

In reaching the merits of the constitutional claim, the Nwoji and Tran panel
determined that random drug and alcohol testing by probation officers is exempt from the
general warrant requirement under the "special needs" exception to the warrant
requirement. Nwoji, 2018 WL 4039406, at *6; Tran, 2018 WL 4039192, at *6. The Nwoji
and Tran panel performed a balancing test under the totality of the circumstances and
weighed the probationers' privacy interests at stake against the government's interest in
conducting random drug and alcohol testing of probationers. Nwoji, 2018 WL 4039406,
at *6-8; Tran, 2018 WL 4039192, at *6-8. The Nwoji and Tran panel concluded that the
balancing test weighed in favor of the State to permit the random drug and alcohol testing
of probationers. Nwoji, 2018 WL 4039406, at *8; Tran; 2018 WL 4039192, at *8.

11
 We now return to Hinnenkamp's claims. She argues that random drug and alcohol
testing by probation officers as required by K.S.A. 2018 Supp. 21-6607(c)(6) violates the
federal and Kansas Constitutions and that Tran was wrongly decided. She refers us to
State v. Bennett, 288 Kan. 86, 98, 200 P.3d 455 (2009), a case decided before K.S.A.
2018 Supp. 21-6607(c)(6) was enacted, which held that because the Kansas Legislature
had not authorized suspicionless searches of probationers, a condition of probation
requiring a probationer to submit to such a search violated the probationer's constitutional
rights under the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights.

The State asserts that random drug and alcohol testing by probation officers is
exempt from the general warrant requirement under the "special needs" exception to the
warrant requirement. In the alternative, the State argues that K.S.A. 2018 Supp. 21-
6607(c)(6) is exempt from the general warrant requirement because it is a "limited
administrative search." The State also points out that the Kansas Legislature enacted
K.S.A. 2018 Supp. 21-6607(c)(6) after our Supreme Court decided Bennett, so the
holding in that case does not control here.

As we said before, the Fourth Amendment protects against "unreasonable searches
and seizures" and provides that "no Warrants shall issue, but upon probable cause."
Although a warrantless search is presumed unreasonable, there are "'a few specifically
established and well-delineated exceptions'" to the warrant requirement. Patel, 135 S. Ct.
at 2452. Applicable here is the "special needs" exception, which applies when "'"special
needs . . . make the warrant and probable-cause requirement impracticable,"' [citations
omitted] and where the 'primary purpose' of the searches is '[d]istinguishable from the
general interest in crime control.'" See Patel, 135 S. Ct. at 2452. Stated differently, this
exception applies when (1) the special needs of the probation system make the warrant
and probable cause requirement impracticable, and (2) the primary purpose of the random
drug and alcohol testing for probationers is distinguishable from the State's general
interest in crime control. We will examine these two elements in reverse order.

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 As to the second element, the Nwoji and Tran panel addressed whether the
primary purpose of K.S.A. 2018 Supp. 21-6607(c)(6) is crime control:

"Drug and alcohol testing under K.S.A. 201[8] Supp. 21-6607(c)(6) is part of a statutory
scheme for the supervision of probationers. See [Griffin v. Wisconsin, 483 U.S. 868, 873-
74, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987)]; see also K.S.A. 201[8] Supp. 21-6607
generally. In addition, its plain language only authorizes probation officers to order drug
and alcohol testing, not law enforcement officers. It therefore likely qualifies as a special
need beyond law enforcement." Nwoji, 2018 WL 4039406, at *6; Tran, 2018 WL
4039192, at *6.

In addition, the Nwoji and Tran panel recognized that "[d]rug and alcohol testing
is a tool for monitoring probationers" and "[t]he State's reason for random, suspicionless
drug and alcohol testing of probationers is the successful rehabilitation of the offender."
Nwoji, 2018 WL 4039406, at *8; Tran, 2018 WL 4039192, at *8. The same reasoning
applies to Hinnenkamp. She is subject to random drug and alcohol testing only by her
community correctional services officer, not by any other type of law enforcement
officer. The failure of a random drug and alcohol test may lead to the revocation of
Hinnenkamp's probation, but nothing in the record suggests that such a test failure would
lead to the State filing new criminal charges against Hinnenkamp. Thus, the primary
purpose of K.S.A. 2018 Supp. 21-6607(c)(6) is not to control crime.

As for the first element of this exception, Hinnenkamp does not explicitly dispute
that the statutory scheme controlling probationers has "'special needs [that] make the
warrant and probable-cause requirement impracticable."' See Patel, 135 S. Ct. at 2452.
Rather, she argues that the Tran panel "unjustifiably extended the rationale and holding
in Griffin, which merely upheld a lower standard of reasonableness than that of probable
cause and did not endorse suspicionless searches of probationers by probation officers."
But in Griffin, the United States Supreme Court was clear: "A State's operation of a
probation system, like its operation of a school, government office or prison, or its

13
supervision of a regulated industry, likewise presents 'special needs' beyond normal law
enforcement that may justify departures from the usual warrant and probable-cause
requirements." Griffin v. Wisconsin, 483 U.S. 868, 873-74, 107 S. Ct. 3164, 97 L. Ed. 2d
709 (1987). The Griffin Court held:

"A warrant requirement would interfere to an appreciable degree with the
probation system, setting up a magistrate rather than the probation officer as the judge of
how close a supervision the probationer requires. Moreover, the delay inherent in
obtaining a warrant would make it more difficult for probation officials to respond
quickly to evidence of misconduct and would reduce the deterrent effect that the
possibility of expeditious searches would otherwise create. [Citations omitted.]" 483 U.S.
at 876.

Given the clear language in Griffin, we conclude, as did the Nwoji and Tran panel,
that K.S.A. 2018 Supp. 21-6607(c)(6) is exempt from the Fourth Amendment's general
warrant requirement because (1) the special needs of the probation system make the
warrant and probable cause requirement impracticable, and (2) the primary purpose of
random drug and alcohol testing for probationers is distinguishable from the State's
general interest in crime control. Because we so hold, we do not address the State's
alternative argument that K.S.A. 2018 Supp. 21-6607(c)(6) is exempt from the general
warrant requirement because it is a "limited administrative search."

But our analysis does not end here. As the Nwoji and Tran panel recognized, once
a statute meets the requirements of the special needs exception, "the court then performs
a balancing test," considering the totality of the circumstances to determine whether the
authorized search is reasonable. See Nwoji, 2018 WL 4039406, at *6; Tran, 2018 WL
4039192, at *6; see also United States v. Knights, 534 U.S. 112, 118-19, 122 S. Ct. 587,
151 L. Ed. 2d 497 (2001) (setting forth balancing test). The court weighs "the privacy
interest at stake and the degree of intrusion on that privacy interest . . . against the

14
government's interests and the efficacy of the scheme in meeting those interests." Nwoji,
2018 WL 4039406, at *6; Tran, 2018 WL 4039192, at *6.

As Hinnenkamp concedes, a person's reasonable expectation of privacy is less if
he or she is under state control. See Knights, 534 U.S. at 119; Griffin, 483 U.S. at 875.
K.S.A. 2018 Supp. 21-6607(c)(6) applies only to probationers, so we must focus only on
probationers' privacy interests. "Inherent in the very nature of probation is that
probationers 'do not enjoy "the absolute liberty to which every citizen is entitled."'"
Knights, 534 U.S. at 119.

Moreover, both the United States Supreme Court and the Kansas Supreme Court
have recognized that knowledge of status-based privacy limitations matters in evaluating
a reasonable expectation of privacy. In Samson v. California, 547 U.S. 843, 851-52, 126
S. Ct. 2193, 165 L. Ed. 2d 250 (2006), the United States Supreme Court held that "the
extent and reach" of state statutes and regulations limiting parolees' privacy "clearly
demonstrate that parolees like petitioner have severely diminished expectations of
privacy by virtue of their status alone." And in Knights, the United States Supreme Court
held that a probation search condition of which Knights was "unambiguously informed
. . . significantly diminished Knights' reasonable expectation of privacy." 534 U.S. at 119-
20. Even more broadly, the Kansas Supreme Court has held that "an authorizing state
statute (or administrative regulation) presents one way in which a suspicionless search
can withstand Fourth Amendment scrutiny." Toliver, 307 Kan. at 956-57. Although these
cases were as-applied challenges to specific searches, unlike the facial challenge here,
that distinction does not diminish the applicability of the broader premise that the
knowledge of a diminished privacy right negates, at least to some extent, the
reasonableness of any related expectation of privacy.

As the Nwoji and Tran panel noted, in 2012, the Kansas Legislature amended
K.S.A. 21-6607 to allow suspicionless drug and alcohol testing of probationers. Nwoji,

15
2018 WL 4039406, at *7; Tran, 2018 WL 4039192, at *7. Thus, since 2012, K.S.A. 21-
6607 has clearly stated that Kansas probationers will face "random, but reasonable,"
suspicionless drug and alcohol testing. The Legislature's action requiring probationers in
Kansas to submit to random suspicionless drug and alcohol testing significantly
diminishes a probationer's reasonable expectation of privacy about such searches.

This legislative action also undermines the applicability of Bennett, on which
Hinnenkamp relies. In Bennett, the Kansas Supreme Court held that a condition of
probation requiring a probationer to submit to random, suspicionless searches violated the
probationer's constitutional rights under the Fourth Amendment and § 15 of the Kansas
Constitution Bill of Rights. 288 Kan. 86, Syl. ¶ 6. But central to the holding in Bennett
was the fact that when the case was decided, the Kansas Legislature had not authorized
suspicionless searches of probationers and parolees in order to place these persons on
notice that they could be subjected to such a search. 288 Kan. at 98. As the court stated:

"The Kansas Legislature has not authorized suspicionless searches of probationers and
parolees. Kansas' procedures for parole supervision specifically inform parolees that they
have an expectation that searches will not be conducted unless an officer has a
(reasonable) suspicion that such a search is necessary to enforce the conditions of parole.
Put another way, parolees in Kansas have an expectation that they will not be subjected to
suspicionless searches.
It logically follows from this conclusion that because probationers have a greater
expectation of privacy than parolees, searches of probationers in Kansas must also be
based on a reasonable suspicion. Thus, the condition of Bennett's probation subjecting
him to random, nonconsensual, suspicionless searches violates his rights under the Fourth
Amendment and the Kansas Constitution Bill of Rights." 288 Kan. at 98.

But since Bennett, the Kansas Legislature has enacted law requiring both
probationers and parolees to submit to suspicionless searches. In addition to K.S.A. 2018
Supp. 21-6607(c)(6) at issue here, K.S.A. 2018 Supp. 22-3717(k)(2) provides that

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parolees and persons on postrelease supervision "are, and shall agree in writing to be,
subject to searches of the person and the person's . . . property . . . with or without cause."
Now, in Kansas, probationers and parolees are on notice that an authorizing statute
subjects them to suspicionless searches, including random drug and alcohol testing,
which "presents one way in which a suspicionless search can withstand Fourth
Amendment scrutiny." Toliver, 307 Kan. at 956-57. Thus, the legal landscape that led to
the result in Bennett no longer exists, and Bennett does not control here.

Turning to the State's interest and the efficacy of K.S.A. 2018 Supp. 21-6607(c)(6)
in satisfying that interest, the Nwoji and Tran panel soundly reasoned:

"The State . . . has a substantial interest in monitoring probationers to promote their
rehabilitation and compliance with probation conditions.
"Drug and alcohol testing is a tool for monitoring probationers, but its efficacy
relies heavily on being random. Random testing deters probationers from drug and
alcohol use because a probation officer could discover this use at any time. It also
provides the probation officer with important information to determine whether
rehabilitation is taking place. Imposing a reasonable suspicion standard would hurt the
efficacy of this testing, because detecting drug and alcohol use simply through
observation can be difficult.
"The State's reason for random, suspicionless drug and alcohol testing of
probationers is the successful rehabilitation of the offender. This significant State interest
outweighs a probationer's reduced privacy rights. As a result, drug and alcohol testing
under K.S.A. 201[8] Supp. 21-6607(c)(6) is constitutional under the Fourth Amendment
and § 15. [Citations omitted.]" Nwoji, 2018 WL 4039406, at *8; Tran, 2018 WL
4039192, at *8.

We agree. The State has a substantial interest in monitoring probationers to
promote their rehabilitation and compliance with probation conditions. And an important
part of the job is making sure that probationers abstain from using alcohol when ordered
by the court and that they always abstain from the illegal use of drugs. The only way to

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ensure compliance with these orders is through reasonable testing. Drug and alcohol
testing is most effective when the tests are administered randomly. That way, the
probationer knows that he or she must completely abstain from the use of alcohol or
illegal drugs because the probationer can be tested at any time for a violation.

In sum, when we weigh a Kansas probationer's diminished expectation of privacy
against the State's interests in promoting rehabilitation and probation compliance, and we
consider the efficacy of random suspicionless drug and alcohol testing, it is reasonable to
permit a court services officer or community correctional services officer to order a
probationer to submit to random drug and alcohol testing, even without any suspicion of
wrongdoing. Thus, we conclude that K.S.A. 2018 Supp. 21-6607(c)(6), which requires
district courts to impose random drug and alcohol testing as a condition of probation,
does not on its face violate the Fourth Amendment to the United States Constitution or
§ 15 of the Kansas Constitution Bill of Rights.

Affirmed.

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