State v. Meitler

ATCHESON, J.,

dissenting:

I.

State legislatures may not override decisions of the United States Supreme Court construing federal constitutional rights by passing statutes designed to thwart those decisions and dilute those rights. That is a fundamental precept of our system of governance integrating the dual sovereignty of state and federal authorities. The search and seizure at issue in this criminal case tests a particular aspect of how that integration ought to work and, in turn, the manner in which the courts must protect citizens against egregious legislative encroachment of their rights secured in the Fourth *320Amendment to the United States Constitution. The majority declines to deploy die full measure of that protection. I respectfully dissent.

When a state legislature passes a measure plainly aimed at constricting an established application of the Fourth Amendment, thereby authorizing constitutionally unreasonable government searches and seizures, the enactment cannot be judicially enforced and things law enforcement officers seize in reliance on that enactment should not be used as evidence in any criminal prosecution of the person from whom they were taken. The irrebuttable presumption of probable cause written into K.S.A. 2011 Supp. 8-1001(b)(2) allowing government agents to extract blood samples from drivers if they have been involved accidents resulting in death or serious injuiy and might be guilty of traffic violations contravenes basic Fourth Amendment protections and was promoted to accomplish precisely that objective. The statute, thus, represents the rare enactment so dramatically at odds with proper legislative purpose and function that the exclusionary rule should be applied regardless of a government agent’s good-faith reliance on it. See Illinois v. Krull, 480 U.S. 340, 355, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987).

Accordingly, any evidence derived from the blood sample unconstitutionally taken from Defendant Troy Meitler should not be admitted as evidence in the criminal case against him for involuntary manslaughter and related charges. On that basis, I would affirm the ruling of the Reno County District Court granting M eider’s motion to suppress that evidence.

Meitler raised and briefly argued the principle recognized in Krull that when a legislature “wholly abandons its responsibility to enact constitutional laws,” the good-faith exception does not extend to government searches or seizures made in reliance on that law. 480 U.S. at 355. Although the principle has been routinely acknowledged in appellate decisions dealing with other aspects of Krull, I have found no case in which a court has weighed its application in any detail. See, e.g., State v. Daniel, 291 Kan. 490, 504-05, 242 P.3d 1186 (2010), cert. denied 131 S. Ct. 2114 (2011); accord United States v. Vanness, 342 F.3d 1093, 1097-98 (10th Cir. *3212003); United States v. Gambrell, 178 F.3d 927, 929-30 (7th Cir. 1999); United States v. Ashburn, 76 F. Supp. 3d 401 (E.D.N.Y. 2014); State v. Fierro, 853 N.W.2d 235, 244 n.6 (S.D. 2014); Weems v. State, 434 S.W.3d 655, 666 (Tex. App. 2014). The Illinois Court of Appeals has described that aspect of Krull as “cryptic and difficult.” People v. McGee, 268 Ill. App. 3d 32, 36, 644 N.E.2d 439 (1994). I would generally agree. The boundaries of the requisite legislative abandonment are murky at best. Nonetheless, the circumstances here would seem to be a paradigmatic example for the principle’s application. The legislative amendment of K.S.A. 2011 Supp. 8-1001(b)(2) redefined “probable cause”—a phrase taken from the Fourth Amendment itself—in a way that contradicts its settled meaning. If the principle applies at all, it ought to apply in this case.

II.

The issue requires a brief recapitulation of some essential Fourth Amendment law. The Fourth Amendment itself guarantees citizens the right “to be secure in their persons . . . against unreasonable searches and seizures” and requires any warrant issue only “upon probable cause.” Those protections have been incorporated through the Fourteenth Amendment and constrain agents of state and local governments. Mapp v. Ohio, 367 U.S. 643, 654-55, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). Although warrantless searches are presumed unreasonable under the Fourth Amendment, the United States Supreme Court has recognized searches based on probable cause coupled with particularized exigent circumstances maybe constitutionally permissible. See Groh v. Ramirez, 540 U.S. 551, 559, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004).

In Schmerber v. California, 384 U.S. 757, 770-71, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), the Court held that law enforcement officers may have medical personnel extract blood from a driver suspected of being under the influence without getting a search warrant because alcohol or other intoxicants in the driver s system would be metabolized fairly quickly. The Court found that potential loss of evidence could create an exigency excusing tire need for *322a search warrant. But the Court required the officer have probable cause to believe the person to be intoxicated and, therefore, that the blood seized and then tested would show the presence of intoxicants. 384 U.S. at 770. The rule has been recently stated this way:

“The Court in Schmerber held that probable cause to believe an arrested driver was intoxicated, together with the likelihood that delay in taking blood from the driver would result in the loss of evidence as alcohol dissipated, justified not only the drawing of blood, but also the introduction of the subsequent ‘chemical analysis’ into evidence.” Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010) (citing Schmerber, 384 U.S. at 766-67).

In State v. Murry, 271 Kan. 223, 227, 21 P.3d 528 (2001), the Kansas Supreme Court distilled Schmerber into three requirements permitting a warrantless blood test for intoxicants: (1) the delay in obtaining a warrant would threaten the loss of the evidence; (2) “the officer must have probable cause to believe the suspect has been driving under the influence”; and (3) the procedures for extracting the blood sample must be reasonable. This is a common formulation of the Schmerber holding. See, e.g., Dale v. State, 209 P.3d 1038, 1039 n.7 (Alaska App. 2009); State v. Geiss, 70 So. 3d 642, 646 (Fla. Dist. App. 2011); State v. Tullberg, 359 Wis. 2d 421, 438, 857 N.W.2d 120 (2014).

In short, the Schmerber Court rested its ruling on the exigent circumstances arising when a law enforcement officer has probable cause to believe that a person’s blood contains intoxicants that would be lost as evidence of a crime if a search and seizure in the form of a blood draw were not conducted promptly. The Court specifically recognized that the separate exception for warrantless searches incident to arrests would not suffice to justify a bodily intrusion of the sort necessary to extract blood. 384 U.S. at 769-70. Accordingly, a law enforcement officer arresting a driver for a simple traffic violation—speeding or failing to signal a turn, for example—could not then constitutionally obtain a blood sample from that individual absent additional facts establishing probable cause to believe the individual to be intoxicated. See United States v. Chapel, 55 F.3d 1416, 1419 (9th Cir. 1995); People v. Trotman, 214 Cal. App. 3d 430, 436, 262 Cal. Rptr. 640 (1989).

*323Probable cause remains an essential constitutional requirement to search for and seize evidence from within a person’s body, consistent with the words of the Fourth Amendment. That’s the point of Schmerber, 384 U.S. at 769-71. And Schmerber continues to be sound Fourth Amendment law. See Missouri v. McNeely, 569 U.S. _, 133 S. Ct. 1552, 1557-58, 185 L. Ed. 2d 696 (2013) (acknowledging Fourth Amendment rule of Schmerber); People v. Youn, 229 Cal. App. 4th 571, 576, 176 Cal. Rptr. 3d 652 (2014); State v. Foster, 360 Wis. 2d 12, 30-31, 856 N.W.2d 847 (2014) (applying Schmerber).[1]

A warrantless search based on exigency requires the same constitutional “probable cause” as a judicially issued search warrant. Kirk v. Louisiana, 536 U.S. 635, 637, 122 S. Ct. 2458, 153 L. Ed. 2d 599 (2002); Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996); United States v. Camou, 773 F.3d 932, 940 (9th Cir. 2014). In the context of a search, probable cause requires that government agents know specific facts that would lead a reasonable person to conclude evidence of a crime may be found in a particular place. Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996) (“[Pjrobable cause to search ... exist[s] where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in tire belief that contraband or evidence of a crime will be found.”); Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (probable cause for search warrant must establish “a fair probability that contraband or evidence of a crime will be found in a particular place”). This definition of probable cause is neither new nor especially controversial. See Carroll v. *324United States, 267 U.S. 132, 162, 45 S. Ct. 280, 69 L. Ed. 543 (1925) (Government agents had sufficient cause to search for illegal liquor when “the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in die belief that intoxicating liquor was being transported in the automobile in which they were stopped and searched.”). Probable cause for a search warrant or a warrantless search based on exigent conditions must be derived from the case-specific “totality” of circumstances. See Gates, 462 U.S. at 230-31; State v. Sanchez-Loredo, 294 Kan. 50, Syl. ¶ 2, 272 P.3d 34 (2012); accord United States v. Williams, 224 F.3d 530, 533-34 (6th Cir. 2000) (Cole, J., dissenting); Coronado v. State, 148 So. 3d 502,505 (Fla. Dist. App. 2014).

In sum, to justify a search of a person’s body by taking blood, consistent with Schmerber and the Fourth Amendment, a law enforcement officer must be aware of specific facts indicating that person to be under the influence of alcohol or other intoxicants. Those facts would then suggest that the person had ingested intoxicants that would be revealed in the testing of the seized blood. See Gates, 462 U.S. at 232 (Probable cause turns on “assess[ing] probabilities in particular factual contexts,” so “[rjigid legal rules are ill-suited” to that determination.).

III.

Those constitutional markers guide the analysis of K.S.A. 2011 Supp. 8-1001, governing the authority of law enforcement officers to conduct blood, breath, and other tests to determine if a driver is under the influence of alcohol or other intoxicants. In this case, Highway Patrol Trooper Stephen A. Morris relied on K.S.A. 2011 Supp. 8-1001(b)(2) permitting a law enforcement officer to obtain a blood draw from a driver who has been “involved in an accident or collision resulting in serious injury or death to another person” when the driver “could be cited for any traffic offense.” That subsection of the statute states the evidence supporting the traffic offense furnishes “probable cause” for the seizure of a blood sample. Here, the physical evidence showed Meitler’s vehicle crossed *325the centerline and struck another vehicle in its traffic lane. The other driver died. Neither Trooper Morris nor any other investigator had any evidence suggesting Meitler had been drinking or was under the influence of alcohol or drugs at the time of the crash. When his blood was taken, Meitler was unconscious and receiving medical treatment for his injuries. Trooper Morris did not attempt to get a search warrant, and Meitler never gave actual consent for the blood draw. [2]

The constitutional failing of K.S.A. 2011 Supp. 8-1001(b)(2) seems plain. It creates an irrebuttable presumption of probable cause based solely on a driver’s involvement in a motor vehicle mishap resulting in death or serious injuiy when the driver could be cited for a traffic violation. But a driving error leading to a death or serious injury does not establish specific facts suggesting a search of the driver’s body through the extraction of blood will yield evidence of intoxication. There are all lands of scenarios where those circumstances may occur without a driver being under tire influence. The statute effectively rejects the constitutional standard for probable cause to search in favor of a substantially broader standard and directly conflicts with the requirements of Schmerber. As a result, the statute substantively dilutes the Fourth Amendment.

State statutes that constrict protections afforded citizens in the United States Constitution, including the Fourth Amendment, are themselves unconstitutional and unenforceable. See Berger v. New York, 388 U.S. 41, 63-64, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967); State v. Henning, 289 Kan. 136, 148-49, 209 P.3d 711 (2009). Those enactments violate the Supremacy Clause of the United States Constitution. U.S. Const., art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the *326Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.”); see Younger v. Harris, 401 U.S. 37, 52, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). The Supremacy Clause renders state statutes and common law ineffective to the extent they materially conflict with or impede federal law. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992); Hillsborough County v. Automated Medical Labs., 471 U.S. 707, 712-13, 105 S. Ct. 2371, 85 L. Ed. 2d 714 (1985) (“It is a familiar and well-established principle that the Supremacy Clause, U.S. Const., Art. VI, cl. 2, invalidates state laws that ‘interfere with, or are contrary to,’ federal law.” [quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211, 6 L. Ed. 23 (1824)]). Given those principles, this court correctly held K.S.A. 2011 Supp. 8-1001(b)(2) unconstitutional and a search conducted in reliance on it a violation of the Fourth Amendment. State v. Declerck, 49 Kan. App. 2d 908, 919, 317 P.3d 794, rev. denied 299 Kan. 1271 (2014). The same is true here, as tire majority more or less acknowledges.

The district court, therefore, rightly concluded tire blood draw— an intrusive search of and seizure from Meitler’s person, a place explicitly protected in tire language of tire Fourth Amendment—■ to be constitutionally infirm. No particularized facts known to Trooper Morris or any other government agents at the time of the blood draw suggested Meitler to have been intoxicated, let alone established probable cause for such a belief. The State has only the impermissible statutory presumption of K.S.A. 2011 Supp. 8-1002(b)(2) to justify the blood draw. That’s not constitutionally good enough.

IV.

A.

The question, then, becomes what relief, if any, must be extended to Meitler because of that constitutional violation. The courts commonly apply the exclusionary rule to bar the government from using things seized in violation of a person’s Fourth Amendment rights as evidence against that person in a criminal prosecution. See Herring v. United States, 555 U.S. 135, 139-40, 129 S. *327Ct. 695, 172 L. Ed. 2d 496 (2009); United States v. Leon, 468 U.S. 897, 908-09, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). This court recently outlined the evolution of the exclusionary rule from its inception a century ago. See State v. Althaus, 49 Kan. App. 2d 210, 219-24, 305 P.3d 716 (2013). The doctrinal development of the rule, though contextual background for the issue here, is not essential, so I do not repeat that discussion.

The Leon decision marked a deep retrenchment of the exclusionary rule. The Court held that the rule generally should not apply if law enforcement officers conduct a search in good-faith rebanee on warrant signed by a judge. 468 U.S. at 913. Thus was bom “the good-faith exception” to the exclusionary rule. The Court reasoned that tire exclusionary rule ought to be applied when it would deter police conduct violating the Fourth Amendment, so a judge’s error in signing a search warrant later found to be constitutionally deficient shouldn’t require the exclusion of evidence. Invoking the exclusionary rule for the judicial mistake wouldn’t improve police behavior in future cases. 468 U.S. at 918-21. In Leon, however, the Court identified several circumstances in which tire good-faith exception should not apply, including when the judicial officer signing a warrant has “wholly abandoned” the role of a detached and neutral official. 468 U.S. at 923.

In Krull, the Court extended the good-faith exception to the exclusionary rule to law enforcement officers making warrantless searches in reasonable reliance on statutes later found to violate the Fourth Amendment, rendering those searches unconstitutional. 480 U.S. at 349 (“The approach used in Leon is equally applicable to the present case [involving an administrative search of a regulated business authorized by state statute].”). So courts generally should admit evidence law enforcement officers have seized before a statute has been held constitutionally infirm. Borrowing further from Leon, the Court, however, recognized two situations rendering the good-faith exception inapplicable: (1) if a reasonably trained law enforcement officer would recognize the statute to be constitutionally defective on its face; or (2) “if, in passing the statute, tire legislature wholly abandoned its responsibility to enact constitutional laws.” 480 U.S. at 355.

*328The Kmll majority explained in detail why legislators presumably will commonly act to pass constitutional legislation and, therefore, typically need not face the deterrent spur of the exclusionary rule to keep them from overreaching. And law enforcement officers operating within statutoiy boundaries, therefore, should be afforded good-faith protection for doing so. In summary, the majority suggested: “Legislators enact statutes for broad, programmatic purposes, not for the purpose of procuring evidence in particular criminal investigations.” 480 U.S. at 352. The majority, in turn, concluded a judicial determination that a statute violates the Fourth Amendment sufficiently protects those constitutional interests without invoicing the exclusionary rule, save for the rare situations when a measure facially contravenes the Fourth Amendment or the legislature has been derelict. 480 U.S. at 352.

The four dissenters in Kmll, led by Justice O’Connor, sharply disagreed and submitted the constitutional framers had intended the Fourth Amendment as a check on both legislative and law enforcement excesses, thereby warranting suppression of evidence in that case through the exclusionary rule. 480 U.S. at 362-64 (O’Connor, J., dissenting, joined by Brennan, Marshall, and Stevens, JJ.). Justice O’Connor, herself a former state legislator, argued members of the legislative branch, far more so than judicial officers, are prone to yield to political pressures and the vicissitudes of vocal constituencies especially in clipping constitutional rights, such as the Fourth Amendment, that are often publically reviled. 480 U.S. at 365-66. The exclusionaiy rule would rein in those impulses and preserve the integrity of the Fourth Amendment’s checks on impermissible government searches and seizures.

The Kansas Supreme Court has endorsed and applied the rule of Krull to expand the good-faith exception from search warrants to statutes. Daniel, 291 Kan. at 500. And the court has construed the protections in § 15 of the Kansas Constitution Bill of Rights to be no more extensive than those in the Fourth Amendment. 291 Kan. at 500; but see 291 Kan. at 506 (Johnson, J., dissenting). As a result, the scope of the good-faith exception is not open for further consideration, at least not in this forum.

*329Here, the majority holds that Trooper Morris relied in good faith on K.S.A. 2011 Supp. 8-1001(b)(2) in ordering the blood draw and, therefore, declines to apply the exclusionaiy rule to bar the State from using the resulting evidence against Meitler. I have no real quarrel with the majority’s finding that Trooper Morris acted in good faith, since the blood draw comported with the requirements of K.S.A. 2011 Supp. 8-1002(b)(2). That’s true even though Trooper Morris’ subjective understanding of the statute was amiss. The district court, therefore, erred in declining to apply the good-faith exception because Trooper Morris misunderstood the statute.

But the inquiiy doesn’t end there. The good-faith exception should not neutralize the exclusionary rule if either of the exceptional grounds recognized in Krull applies. I suppose the reasonable law enforcement officer, hypothecated for forensic purposes, would not recoil upon reading K.S.A. 2011 Supp. 8-1002 and exclaim subsection (b)(2) to be a patent violation of the Fourth Amendment. So the first ground in Krull for rejecting the good-faith exception doesn’t apply. What remains is the enigmatic limitation on the good-faith exception when a legislature abdicates its responsibility to enact measures consonant with the protections afforded citizens in the Fourth Amendment.

B.

Beyond recognizing legislative abdication as a reason to withhold the good-faith exception, the Krull decision offers little in the way of guidance. The Court, of course, analogizes to the provision in Leon forjudges and to Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-27, 99 S. Ct. 2319, 60 L. Ed. 2d 920 (1979), cited there as illustrative. See Krull, 480 U.S. at 355. But the reference affords little help. Apart from citing Lo-Ji Sales, the Leon Court didn’t elaborate on how to determine when judges abandon their duties in reviewing warrant requests. In Lo-Ji Sales, a state magistrate judge issued what amounted to an impermissible general warrant to search a business selling pornographic films, magazines, and books and then accompanied government agents as they executed the warrant. The judge spent several hours on the premises reviewing materials brought to him and determining whether there *330was probable cause to believe they were obscene and, thus, illegal under New York law. The Leon Court obviously found that to be judicial conduct going too far. See 468 U.S. at 914, 923.

I see no clear lesson in the facts of Lo-Ji Sales in assessing legislative abdication under Krull—I wouldn’t expect senators or representatives singularly or collectively to turn up at the scenes of traffic fatalities to advise law enforcement officers as to their authority to conduct blood draws. Nor do I think the Krull majority could have been contemplating the sort of interaction that took place in Lo-Ji Sales. I presume, rather, the circumstances of Lo-Ji Sales are to be considered qualitatively, meaning the legislative action would have to be pretty egregious within the context of what legislators do.

In this respect, the two grounds recognized in Krull for withholding the good-faith exception operate independently of each other. The first depends on the readily identifiable unconstitutionality of the statute itself—something a reasonable law enforcement officer would recognize on reading the measure. The other, however, imputes greater discernment to legislators and requires they refrain from passing measures that redefine constitutional language in ways that erode Fourth Amendment rights. In this case, for example, the legislation consisted of a narrow amendment to a broader existing statute. Legislators see proposed changes in the law in that context. Most outsiders, including law enforcement officers, don’t. They see only the end product. As a result, a law enforcement officer might not recognize the constitutional shortcomings of an amended statute. But that recognition is irrelevant to the legislative-abdication ground. Were Krull read otherwise, the two bases for withholding tire good-faith exception would effectively collapse into a single one turning on what a reasonable law enforcement officer would glean from reviewing the overall statute. In State v. Daniel, 291 Kan. 490, 504, 242 P.3d 1186 (2010), cert. denied 131 S. Ct. 2114 (2011), the Kansas Supreme Court looked at the two bases separately, consistent with Krull.

The legislative abandonment of purpose recognized in Krull cannot be a complete analog to the judge suggested in Leon who wholly abandons his or her neutral role in issuing a search warrant. *331The brief reference in Leon at least suggests the law enforcement officers relying on the warrant would have to be aware of and presumably appreciate the character of the judge’s conduct to be stripped of the good-faith exception. Leon, 468 U.S. at 923. That makes some sense. A judge’s review of a search warrant application and the approval of the warrant entail a discrete, immediate function to which the individual presenting the papers typically will be privy. The legislative process is altogether different; it is anything hut discrete and immediate. A typical bill goes through committee review and healings in both houses of the legislature. It may be amended multiple times and only then comes up for a vote in each house. The Krull majority cannot have intended the exclusionary rule to apply only if the law enforcement officers conducting a search in reliance on an unconstitutional statute were somehow aware of the way the legislature abandoned’its responsibility in enacting the statute. Such a rule could never be applied in practice. The Court actually intended to check especially egregious legislative excess impairing Fourth Amendment rights—a check to be applied independently of a law enforcement officer’s good faith in later acting on the statute. In short, the Court did not completely insulate the legislative process from the exclusionary rule.

C.

As I have said, I have found no appellate cases delving into when the good-faith exception should be withheld because of legislative abdication. The most detailed discussion appears in two paragraphs in Daniel, 291 Kan. at 504-05, indicating the court reviewed the legislative history pertaining to K.S.A. 22-2501(c), governing searches incident to arrest, and found no indication the legislature sought to do anything other than codify existing constitutional law. The court, therefore, saw no abandonment of legislative purpose.[3]

*332The legislative history for K.S.A. 2011 Supp. 8-1001(b)(2) tells quite a different story. The language that became subsection (b)(2) of K.S.A. 2011 Supp. 8-1001 was promoted to and passed by the Kansas Legislature in 2008 as a narrow, targeted amendment modifying Schmerber to allow law enforcement officers to conduct blood draws without constitutionally required probable cause. The original bill contained a second component clarifying the duties of designated medical professionals in drawing blood at the direction of law enforcement officers. The amendment did not reflect the sort of broad programmatic measures the Krull majority contemplated in transplanting the good-faith exception to legislative actions. It was, rather, designed to evade constitutional restrictions on gathering evidence in a particular type of criminal investigation—very much the counterpoint the Krull majority suggested shouldn’t be feared in generally extending the good-faith exception to legislation presumably because the exclusionary rule would still apply in that circumstance.

The 2008 amendment to K.S.A. 2011 Supp. 8-1001 imposed a statutory definition of probable cause applicable without regard to the facts of a given motor vehicle accident and created an irre-buttable presumption of probable cause to search for evidence of intoxication even when the facts of the accident suggested none. The amendment, therefore, clashed with established constitutional principles defining probable cause based on the language of the Fourth Amendment and controlling United States Supreme Court decisions. A legislature cannot undercut constitutional protections that way.

In a written submission to the Senate Judiciary Committee in 2008, Karen C. Wittman, then an assistant district attorney in Shawnee County, identified the three-factor test in State v. Murry, 271 Kan. 223, Syl. ¶ 1, 21 P.3d 528 (2001), as the law governing the search of drivers and the seizure of blood samples from them. *333Minutes, Sen. Judiciary Comm., March 5, 2008, attach. 7, p. 1. As I have pointed out, that test outlines the requirements laid down in Schmerber for a blood draw comporting with the Fourth Amendment. The prosecutor told the committee that a law enforcement officer at the scene of a motor vehicle accident “sometimes does not have enough information... to determine probable cause’ required for a blood draw.” Minutes, Sen. Judiciary Comm., March 5, 2008, attach. 7, p. 1. The amendment, according to the prosecutor, would cure that problem, making it easier to get a blood sample. But the cure also violated the constitutional rights of the driver. The amendment plainly aimed to legislatively overrule Murry and, necessarily, Schmerber.

The prosecutor reported to the committee that Oklahoma and Maine courts had found similar measures to be constitutional. The representation itself wasn’t entirely accurate and appears sufficiently incomplete as to be misleading. In Guest v. State, 2002 OK CR 5, ¶ 8, 42 P.3d 289 (2002), a panel of the Oklahoma Court of Appeals upheld a similar statute but offered no more than a bare conclusion that it conformed to the Fourth Amendment. See Declerck, 49 Kan. App. 2d at 917-18 (discounting Guest as persuasive authority for want of any reasoned analysis). The Maine Supreme Court upheld a statute admitting blood-test results in a criminal prosecution arising from a fatal motor vehicle accident if evidence independent of the test gathered at any time during the investigation established probable cause to believe the defendant was intoxicated. State v. Roche, 681 A.2d 472 (Me. 1996). Just how Roche props up the 2008 amendment to K.S.A. 2011 Supp. 8-1001 that became subsection (b)(2) and its diminution of probable cause is less than clear. [4] By 2008, when the Kansas Legislature adopted the amendment, courts in other states had consistently found comparable statutes to be unconstitutional. See State v. Blank, 90 P.3d 156, 161-62 (Alaska 2004); King v. Ryan, 153 Ill. 2d 449, 463-64, 607 N.E.2d 154 (1992); Hannoy v. State, 789 N.E.2d 977, 992 (Ind. App. 2003); McDuff v. State, 763 So. 2d 850, 855 (Miss. 2000); Com. v. Kohl, 532 Pa. 152, 164, 615 A. 2d 308 (1992); see also Declerck, 49 Kan. App. 2d at 918-19 (discussing caselaw in these and other states).

*334In a written submission to the Senate Judiciary Committee, Peter Bodyk, then chief of traffic safety for the Kansas Department of Transportation, stated the agency supported the amendment as “providing law enforcement personnel tire increased ability to test drivers involved in crashes when an injury or fatality has occurred.” Minutes, Sen. Judiciary Comm., March 5, 2008, attach. 10, p. 1. Similarly, in written testimony on behalf of the Kansas Peace Officers’ Association and the Kansas Association of Chiefs of Police, Ed Klumpp told the committee that the “probable cause” standard for blood draws was “problematic in some cases” and the amendment would avoid “the current restrictions.” Minutes, Sen. Judi-ciaiy Comm., March 5, 2008, attach. 3, p. 1. and attach. 4, p. 1.

The legislative history, then, reveals a chorus calling for a specific change in K.S.A. 8-1001 designed to make law enforcement more efficient by legislating away protections central to the Fourth Amendment. But tire Fourth Amendment is not so evanescent and cannot be eclipsed to promote government efficiency even in the name of aiding police investigations that may otherwise be cumbersome or less than wholly effective. As this court has said, “[a] citizen’s Fourth Amendment rights do not rise or fall on the schedules of government agents or their predilections for expediency.” State v. Dugan, 47 Kan. App. 2d 582, 607, 276 P.3d 819 (2012).

Moreover, a state legislature may not enact statutes defining the words and ideas of the Bill of Rights—here, probable cause—to suit its view of what the United States Constitution ought to be. Doing so evinces a patent abandonment of legislative purpose to pass constitutional measures. A court need not locate some formal declaration of such intent to satisfy the ground identified in Illinois v. Krull, 480 U.S. 340, 355, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987). Nor do legislators have to be deliberately so motivated. As lawmakers, they must be expected to have some collective under*335standing of basic constitutional language, principles, and protections. Their willful blindness to or indifferent ignorance of basic Fourth Amendment concepts cannot support an application of the good-faith exception to the exclusionary rule under Rrutt.

Here, the amendment that became K.S.A. 2011 Supp. 8-1001(b)(2) purposefully redefined operative language in the Fourth Amendment, contrary to clearly established law, to dilute protections against government searches and seizures. The Kansas Legislature abdicated its responsibility as the lawmaking branch of a state government in failing or refusing to recognize the plain purpose and result of that measure. This was not some complex, multifaceted statute a small part of which ran afoul of a debatable or arcane aspect of constitutional jurisprudence. Legislators have a duty to appreciate what they are doing when they tinker with the words of the Bill of Rights, including the Fourth Amendment, and to avoid corrupting those rights. The Knill Court recognized tire need to deter legislators from abandoning their duty in considering and passing measures targeted for just that purpose. The Court, therefore, retained the exclusionary rule to suppress evidence seized pursuant to that rare legislative enactment targeting and shooting down Fourth Amendment rights. See 480 U.S. at 355. The 2008 amendment to K.S.A. 2011 Supp. 8-1001 reflects that sort of constitutional harm. [5]

The Kansas Legislature could not reasonably consider and pass a bill that would define sufficient probable cause for a search warrant for controlled substances or paraphernalia to be “the presence of a person as a resident of a dwelling who has been convicted of a felony drug offense within tire preceding 5 years.” Nor would a *336measure to define “religion” in the First Amendment to the United States Constitution to include only biblically based faiths for purposes of the Free Exercise Clause and to exclude them from the Establishment Clause be anything other than constitutional folly. The amendment here wasn’t qualitatively much different in light of settled Fourth Amendment law. I would find tire resulting provision in K.S.A. 2011 Supp. 8-1001(b)(2) undeserving of refuge from the exclusionary rule, consistent with Kmll. On that basis, I would affirm the ruling of the district court. [6]

In McNeely, the Court held that the exigency excusing a search warrant recognized in Schmerber—the balancing of the natural, inexorable dissipation of alcohol or other intoxicants through metabolization with tire delay in getting a warrant—must be assessed under the facts of the particular case and does not reflect a categorical rule applicable in every instance. 133 S. Ct. at 1567-68. In some circumstances, a law enforcement officer may be able to obtain a search warrant without jeopardizing the recovery of such evidence and presumably, then, has to seek a search warrant to extract blood. The ruling in McNeely does not affect the issue or the analysis in this case.

At Trooper Morris’ direction, Trooper John Maier went to the hospital where Meitler had been taken. Trooper Maier had no independent information about the collision and acted on Trooper Morris’ orders to supervise the blood draw. Meitler and Trooper Maier apparently never spoke or otherwise communicated. For legal purposes, Trooper Maier functioned as an extension of Trooper Morris. His presence makes no substantive difference to the constitutional analysis or to the outcome.

For the most part, the scope of a constitutionally permissible warrantless search after arrest has been defined through decisions of the United States Supreme Court. The Kansas Legislature apparently intended to set out the essence of that law statutorily when it enacted K.S.A. 22-2501(c) in 1970 and amended it in 2006. See Daniel, 291 Kan. at 504-05. In 2009, the Court refined and limited the extent to which government agents could search a motor vehicle without a *332warrant based on an arrest of the driver or a passenger. Arizona v. Gant, 556 U.S. 332, 343-44, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). Despite remaining static since 2006, K.S.A. 22-2501(c) became unconstitutional 3 years later as the result of Gant rather than any specific legislative action. Daniel, 291 Kan. at 491-92. The legislature has since repealed K.S.A. 22-2501. See L. 2011, ch. 100, sec. 22.

The Maine Supreme Court acknowledged it relied on an argument to uphold the statute that had been discounted by the Supreme Courts of Illinois and Pennsylvania and, at least by implication, had been accepted nowhere else given the absence of citation to any directly supporting authority. Roche, 681 A.2d at 474-75. I have found no other jurisdiction citing Roche favorably and embracing its reasoning.

The majority offers no suggestion as to when the exclusionary rule ought to apply to legislative enactments under Rrutt. In my colleagues’ view, however, the exclusionary rule can’t apply here apparently because an outside proponent of the amendment possessed of a law degree told a legislative committee it was okay and the measure eventually passed by a wide margin. That the amendment took direct aim at diluting established Fourth Amendment protections—and did so— doesn’t really count, as they see it, unless some Greek chorus says as much before the final vote. I cannot turn a similarly blind eye to what Rrutt necessarily must have meant to remedy.

As an alternative ground for reversing the district court, the State has argued the implied consent to testing outlined in K.S.A. 2011 Supp. 8-1001(a) applies to Meitler and he did not withdraw that consent. A driver ostensibly gives consent to a blood test under K.S.A. 2011 Supp. 8-1001(a) simply by operating a motor vehicle in this state. The implied consent in subsection (a), however, is to testing conforming to circumstances outlined in the rest of the statute. It is not a waiver of the driver’s Fourth Amendment protection against a blood test or other bodily invasion on less than constitutionally defined probable cause; nor is it a valid consent for Fourth Amendment purposes. See Declerck, 49 Kan. App. 2d 908, Syl. ¶ 7; accord Cooper v. State, 277 Ga. 282, 290-91, 587 S.E.2d 605 (2003); Hannoy, 789 N.E.2d at 987; cf. State v. Johnson, 253 Kan. 356, 362, 856 P.2d 134 (1993) (consent to search “must be given voluntarily, intelligently, and knowingly”); see also United States v. Farnell, 701 F.3d 256, 262-63 (8th Cir. 2012) (consent to warrantless search must be “knowing and voluntary” to comport with Fourth Amendment); United States v. Buckner, 473 F.3d 551, 554 (4th Cir. 2007) (same). The State’s argument is unavailing and does not require reversal of the district court’s order.