“Breathing New Life” into Section 15 of the Kansas Bill of Rights

By: Chris Birzer, Executive Comment Editor

“Breathing new life into Kansas constitutional law may be challenging, but it is the responsibility of the Kansas Bar and the Kansas courts in a federal system.”[1]

I. Introduction

The Kansas Bill of Rights Section 15 guarantees that the right against unreasonable searches and seizures “shall be inviolate.”[2] Despite this guarantee, the Kansas Supreme Court has interpreted Section 15 to provide the exact same protections as the Fourth Amendment of the United States Constitution.[3] But because the Supreme Court has incorporated the Fourth Amendment against the states,[4] the Kansas Supreme Court’s lock-step interpretation strips Section 15 of any independent meaning. The Kansas Supreme Court should interrogate the history and meaning of Section 15 of the Kansas Bill of Rights and interpret it independently of the Fourth Amendment. This process of independently determining the meaning of the Kansas Constitution is necessary to safeguard bedrock principles of state sovereignty[5] and vital civil liberties that founding Kansans secured. This process also satisfies the framework that the Kansas Supreme Court has established for giving independent meaning to Kansas Constitutional provisions; namely, that Section 15 is textually, historically, and jurisprudentially distinct from the Fourth Amendment[6] and recent Supreme Court caselaw has “retreat[ed] from the philosophy” of foundational search-and-seizure principles.[7] This Article does not attempt to elucidate the precise meaning of Section 15; rather, it argues that litigants should raise—and the Kansas Supreme Court should review—the argument that Section 15 protects rights broader than and distinct from the Fourth Amendment.  

II. Background

Some historical tracing is helpful to understand the relationship between Section 15 and the Fourth Amendment. The Wyandotte Constitution—drafted in 1859—was the document under which Kansas was admitted to the Union in 1861.[8] The Kansas Supreme Court has relied on the minutes from the Wyandotte Convention (where the Wyandotte Constitution was drafted) to discern the intent of the Wyandotte Constitution’s drafters.[9] These minutes contain little discussion of Section 15.[10] But the broader discussions recorded in the debates of the Wyandotte Convention reveal that the framers of the Kansas Constitution intended to liberally enshrine individual rights.

In two cases in the 1960s, the United States Supreme Court “incorporated” the Fourth Amendment and made its provisions applicable against the states. The Kansas Supreme Court subsequently noted—with virtually no analysis—that the Fourth Amendment’s command “is identical to the command of Section 15 of the Kansas Bill of Rights.”[11] Since then, the Kansas Supreme Court has frequently noted the rights guaranteed by Section 15 and the Fourth Amendment are coextensive.[12] Notably, however, the Kansas Supreme Court has not conducted the sort of robust historical analysis in coming to this conclusion that it has for other constitutional provisions like Section 1 and Section 9.[13] The majority of other state supreme courts have conducted their own constitutional inquiries and concluded that their respective constitutions afford greater protections—at least in some ways—than does the Fourth Amendment.[14] And recently, the Chief Justice of the Kansas Supreme Court has indicated her willingness to revisit the court’s Section 15 jurisprudence.[15] The time is ripe then for litigants to raise arguments about Section 15 of the Kansas Constitution.

III. Analysis

Text

The texts of Section 15 and the Fourth Amendment are similar. Differences between them include Section 15’s use of “inviolate” compared to the Fourth Amendment’s use of “not violated,” and Section 15’s omission of “papers” and “effects.”[16] The Kansas Supreme Court would probably conclude that these distinctions are not legally significant. But several caveats are worth noting.

First, the founders of the Kansas Constitution knew about the federal wording—which was included verbatim in the earlier proposed and rejected Topeka Constitution—and still chose to write Section 15 as is.[17] Given Kansas’s presumption that the framers of the Kansas Constitution “carefully weighed every word and neither inserted nor omitted any ‘without a design for so doing,’”[18] the Kansas Supreme Court should interrogate these differences in wording, no matter how minimal they appear.

Second, in other constitutional contexts, the Kansas Supreme Court has interpreted the word “inviolate” as a term of art that preserves whatever common-law right existed when the Kansas Constitution was drafted.[19] Although the extent of differences between current Fourth Amendment jurisprudence and search-and-seizure common law is debatable, there are at least some differences that justify the attention of the Kansas Supreme Court.[20]

Third, even if there is no textual difference between these constitutional provisions, that does not bind the Kansas Supreme Court to a lock-step interpretation. Sister states have derived independent meaning from their state constitutions even when the text of the provisions is similar or identical to the United States Constitution.[21] And the Kansas Supreme Court has implied that historical or jurisprudential differences could sufficiently justify interpreting the Kansas Constitution differently than the federal constitution.[22] In short, the text of Section 15 may justify an interpretation independent of the Fourth Amendment. But even if it doesn’t, the text of Section 15 does not compel the Kansas Supreme Court to interpret it in lockstep with the Fourth Amendment.

History

The historical context in which the framers drafted the Kansas Constitution also differs in meaningful ways from the historical context in which the United States Constitution was drafted. This differing historical context should inform the way that the Kansas Bill of Rights—including Section 15—is interpreted.

First, although the debates at the Wyandotte Convention do not specifically illuminate the framers’ intent in adopting Section 15, the broader discussions from that convention reveal an intent by the framers to aggressively protect individual rights. For instance, one delegate declared that the rights enshrined in the Kansas Constitution “were not to ‘come down to any narrow, contracted conception’” and that instead “the founders ‘would look on the bright side’ and ‘take a fair and independent view of the rights of men.’”[23] In fact, the Kansas Constitution—viewed as a whole—is “a far more progressive declaration of rights” than the federal constitution and an implicit rejection of the federal constitutional model.[24] In its recent Hodes decision, the Kansas Supreme Court—in its discussion of Section 1 of the Kansas Bill of Rights—concluded that “the historical record overwhelmingly shows an intent to broadly and robustly protect natural rights and to impose limitations on government intrusion into individual’s rights.”[25]

Second, some historical evidence suggests that among the top priorities for early Kansans was being “left alone.”[26] This desire for privacy may explain why “Kansas was one of the earliest states to recognize the common-law right of privacy: a constellation of rights collectively known as the right to be let alone.”[27] After all, defense of privacy is the “touchstone” of search-and-seizure protections.[28] In short, Kansas’s history—both from the debates at the Wyandotte Convention and based on the larger historical backdrop—suggests that the framers intended to enshrine robust and liberal rights that protected the right to be left alone.

Jurisprudential Differences

Early Kansas caselaw—which the Kansas Supreme Court has indicated deserves deference in interpreting the Kansas Constitution[29]—diverges from current Fourth Amendment jurisprudence in at least one meaningful respect. In one of the first cases interpreting Section 15, the Kansas Supreme Court held that hearsay was insufficient to fulfill the probable cause necessary for the issuance of a warrant.[30] The court, in State v. Gleason, opined that “[i]f a warrant . . . may issue upon a mere hearsay or belief, then all the guards of the common law and of the bill of rights of our own constitution to protect the liberty and property of the citizen against arbitrary power are swept away.”[31] But the United States Supreme Court has held otherwise. So long as there is a “substantial basis for crediting the hearsay,” the Supreme Court says, a court may issue a warrant based on hearsay.[32] Presumably, Kansas courts would defer to the United States Supreme Court given the Kansas Supreme Court’s holding that Section 15 is coextensive with the Fourth Amendment. That result, however, effectively erodes state sovereignty by allowing the United States Supreme Court to interpret Kansas Constitutional provisions. Gleason at least suggests that early Kansans’ understanding of Section 15 differed from the modern Supreme Court’s understanding of the Fourth Amendment.

Additionally, there is a colorable argument that current Supreme Court precedent is both ahistorical and contrary to Fourth Amendment (and Section 15) text. For instance, in United States v. Leon, the Supreme Court adopted the “good faith” exception to the exclusionary rule.[33] The exclusionary rule “prevents the government from using most evidence gathered in violation of the United States Constitution.”[34] The good-faith exception allows the government to use illegally obtained evidence when the officers had an “objectively reasonable” good-faith belief that they were acting in accordance with the law.[35] Justice Stevens, dissenting in part from Leon, laid out a compelling historical argument against adoption of the good-faith exception:

In short, the Framers of the Fourth Amendment were deeply suspicious of warrants; in their minds the paradigm of an abusive search was the execution of a warrant not based on probable cause. The fact that colonial officers had magisterial authorization for their conduct when they engaged in general searches surely did not make their conduct “reasonable.” The Court’s view that it is consistent with our Constitution to adopt a rule that it is presumptively reasonable to rely on a defective warrant is the product of constitutional amnesia.[36]

Likewise, the New Jersey Supreme Court noted the tension between the good-faith exception and the strict textual command that “search warrants ‘shall not issue except upon probable cause.’”[37] The good-faith exception is just one example in a litany of controversial Supreme Court criminal-procedure decisions that constrain the scope of Fourth Amendment protections.[38] But this example demonstrates why it is problematic for Kansas to delegate constitutional interpretation to the Supreme Court. Such delegation allows the Supreme Court to erode progressive guarantees that the Kansas Bill of Rights contains. That not only leaves Kansans worse off, with fewer rights—it violates basic federalism principles of state sovereignty. 

The Kansas Supreme Court has indicated a particular willingness to reassess state constitutional law when the Supreme Court has “retreated” from previously held philosophies.[39] And there is no question that Fourth Amendment jurisprudence looks far different today than in 1963, when the Kansas Supreme Court first declared Section 15 and the Fourth Amendment coextensive.[40] In the more than 50 years since the end of the Warren Court, the Supreme Court has significantly eroded Fourth Amendment civil liberties.[41] The Rehnquist and Roberts Courts have fundamentally overhauled Fourth Amendment jurisprudence.[42] Accordingly, the Kansas Supreme Court should conduct an independent constitutional analysis and determine the scope of Section 15 of the Kansas Constitution.

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[1] Steve McAllister, Comment, Interpreting the State Constitution: A Survey and Assessment of Current Methodology, 35 U. Kan. L. Rev. 593, 622 (1987).

[2] Kan. Const. Bill of Rights, § 15. The full text of Section 15 of the Kansas Bill of Rights is: “§ 15. Search and seizure. The right of the people to be secure in their persons and property against unreasonable searches and seizures shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized.” Id.

[3] State v. Daniel, 242 P.3d 1186, 1191 (Kan. 2010) (“We interpret § 15 of the Kansas Constitution Bill of Rights to provide the same protection from unlawful government searches and seizures as the Fourth Amendment to the federal Constitution.”). The full text of the Fourth Amendment of the United States Constitution is: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.

[4] See Mapp v. Ohio, 367 U.S. 643 (1961). Incorporation refers to the process whereby federal constitutional doctrine is “made applicable to the states through the Due Process clause of the Fourteenth Amendment.” Incorporation Doctrine, Cornell L. Sch.: Legal Info. Institute, https://www.law.cornell.edu/wex/incorporation_doctrine (last visited oct. 4, 2023).

[5] See State v. Lawson, 297 P.3d 1164, 1169–70 (Kan. 2013) (“[A]llowing the federal courts to interpret the Kansas Constitution seems inconsistent with the notion of state sovereignty.”).

[6] See id. at 1169 (“[T]his court has generally adopted the United States Supreme Court’s interpretation of corresponding federal constitutional provisions as the meaning of the Kansas Constitution, notwithstanding any textual, historical, or jurisprudential differences.”); accord State v. Albano, 587 P.3d 750, 756 (Kan. 2021).

[7] See Daniel E. Monnat & Paige A. Nichols, The Loneliness of the Kansas Constitution, 34 J. Kan. Ass’n for J. 10, 12 (2010) (“[The Kansas Supreme Court] has hinted that it will only resort to state constitutionalism if and when the United States Supreme Court has ‘retreated’ from a protective position previously held by that Court.”). For some examples of the Supreme Court’s retreat from Fourth Amendment protections, see infra note 35 and accompanying text.

[8] Hodes & Nauser v. Schmidt, 440 P.3d 461, 475–76 (Kan. 2019).

[9] See id. at 472–79.

[10] See generally Kansas Constitutional Convention: A Reprint of the Proceedings and Debates of the Convention Which Framed the Constitution of Kansas at Wyandotte in July, 1859 (Harry G. Larimer, James L. King & Winfield Freeman, compilers, 1920) [hereinafter Kansas Constitutional Convention], https://archive.org/details/kansasconstituti00kans/page/136/mode/2up.

[11] State v. Wood, 378 P.2d 536, 544 (Kan. 1963).

[12] See, e.g., State v. Daniel, 242 P.3d 1186, 1191 (Kan. 2010) (compiling cases).

[13] Hodes, 440 P.3d 461 (Section 1); State v. McDaniel, 612 P.2d 1231 (Kan. 1980) (Section 9); see also In re L.M., 186 P.3d 164 (Kan. 2008) (holding that Section 10 of the Kansas Constitution gives juveniles a right to a jury trial that is independent of the Sixth and Fourteenth Amendments).

[14] See, e.g., Jeffrey S. Sutton, Stephen R. McAllister, Randy J. Holland & Jeffrey M. Shaman, State Constitutional Law: The Modern Experience 437 (2022) (“The rationale in Leon has been rejected by the majority of state courts in construing state constitutions . . . .”). These states’ high courts often conclude that the plain meaning or “historic purpose” of their state constitutional provisions requires independent interpretation. See, e.g., State v. Wood, 536 A.2d 902, 904 (Vt. 1987); Commonwealth v. Edmunds, 586 A.2d 887, 895–99 (Pa. 1991).  

[15] State v. Perkins, 449 P.3d 756, 761 (Kan. 2019) (Luckert, J., concurring) (noting that she questions “whether Kansas should continue to apply the good-faith exception in lockstep with federal caselaw.”). Chief Justice Luckert was an associate justice when Perkins was decided.

[16] Supra notes 2–3.

[17] Topeka Constitution, Kansas Memory, https://www.kansasmemory.org/item/221061/text (last visited Oct. 4, 2023); cf. Hodes, 440 P.3d at 474–75 (comparing language to the Topeka Constitution is relevant to interpretation of the Wyandotte Constitution).

[18] State v. Albano, 313 Kan. 638, 645 (2021).

[19] In re Rolfs, 1 P. 525, 525–26 (1883) (“The constitutional provision that the right of trial by jury shall be inviolate, is common to many constitutions, and has received frequent interpretations. It means that a jury trial is preserved in all cases 526 in which it existed prior to the adoption of the constitution. It does not extend the right of trial by jury; it simply preserves it.”); see also State v. Gleason, 4 P. 363, 366 (Kan. 1884) (“Said section 15 is little more than the affirmation of the great constitutional doctrine of the common law.”).

[20] One difficulty with comparing the meaning of the Kansas Constitution and the U.S. Constitution is that the Supreme Court did not meaningfully interpret the Fourth Amendment until over twenty years after Kansas was admitted to the union. Fabio Arcila, Jr., In the Trenches: Searches and the Misunderstood History of Suspicion and Probable Cause, 10 J. Const. L. 1, 5 n.12 (2007). Current Fourth Amendment jurisprudence is both more and less expansive than common-law search-and-seizure protections. For instance, the exclusionary rule adopted by the Supreme Court is likely a stronger version than what existed at common law. See Warden v. Hayden, 387 U.S. 294, 304–05 (1967). But the Supreme Court has categorically excluded certain common law violations, such as knock-and-announce violations, from the exclusionary rule. Hudson v. Michigan, 547 US 586 (2006). Likewise, the Supreme Court’s holding that school-mandated drug testing for student athletes is constitutional, Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995), likely exceeds the bounds of permissible searches when the Constitution was adopted, see id. at 669–674 (O’Connor, J., dissenting) (arguing that the Framers’ primary concern was blanket searches). These types of determinations are difficult, though, because common-law history is often debatable. See, e.g., Chris Birzer, Comment, Kansas’s Unworkable Approach to Third-Party Felony Murder, 71 U. Kan. L. Rev. 773, 776 (2023) (describing the contested state of felony murder at common law). See generally Arcila, supra note 20. Still, this history merits exploration.

[21] See, e.g., Commonwealth v. Edmunds, 586 A.2d 887, 895–86 (Pa. 1991) (“Although the wording of the Pennsylvania Constitution is similar in language to the Fourth Amendment of the United States Constitution, we are not bound to interpret the two provisions as if they were mirror images, even where the text is similar or identical.” (footnote omitted)); State v. Novembrino, 519 A.2d 820, 849–50 (N.J. 1987) (“This Court has frequently resorted to our own constitution in order to afford our citizens broader protection of certain personal rights than that afforded by analogous or identical provisions of the federal Constitution. Although the language of article I, paragraph 7 of the New Jersey Constitution is virtually identical with that of the fourth amendment, we have held in other contexts that it affords our citizens greater protection against unreasonable searches and seizures than does the fourth amendment.” (citations omitted)).

[22] Cf. State v. Albano, 487 P.3d 750, 756 (Kan. 2021) (“When interpreting the meaning of our state Constitution, this court has frequently adopted the United States Supreme Court’s interpretation of the corresponding federal constitutional provision, notwithstanding any textual, historical, or jurisprudential differences.” (emphasis added)).

[23] Drew Davis, Comment, The Oldest Trick in the Book: Using Kansas’s Free Speech Clause to Guarantee the Freedom to Read in School Libraries, 71 U. Kan. L. Rev. 809, 828 (2023) (quoting Kansas Constitution Convention, supra note 10, at 281­–82).

[24] Id. (quoting Kirk Redmond & David Miller, The Kansas Bill of Rights: “Glittering Generalities” or Legal Authority, J. Kan. B. Ass’n, Sept. 2000, at 22).

[25] Hodes & Nauser v. Schmidt, 440 P.3d 461, 471 (Kan. 2019).

[26] Warographics, Bleeding Kansas: Prelude to the Civil War, Youtube (Jan. 4, 2022), https://youtu.be/ASM1sel–d4?si=-LDYpdZHFWQhUWua; see also J. Lyn Entrikin, The Right to Be Let Alone: the Kansas Right of Privacy, 53 Washburn L.J. 207, 207 (2014) (“By nature, Kansans value their privacy and solitude. From the state’s humble beginnings in 1861, Kansas homesteaders were an independent lot, fiercely defending the right to stake their claims on the lonely tallgrass prairie.”).

[27] Entrikin, supra note 26, at 207.

[28] Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 617 (1995) (O’Connor, J., dissenting).

[29] See Hodes, 440 P.3d at 473.

[30] State v. Gleason, 4 P. 363 (Kan. 1884).

[31] Id. at 366.

[32] Illinois v. Gates, 464 U.S. 213, 245 (quoting Jones v. United States, 362 U.S. 257, 269 (1960)). Arguably, this holding is consistent with Gleason because there was no corroborating evidence whatsoever in Gleason. 4 P. at 363 (“The question is, may a person be arrested on a warrant issued upon a complaint or information, charging a criminal offense, verified on nothing but the county attorney’s hearsay and belief, prior to a preliminary examination or waiver of the right to such an examination?”). Still, these holdings are in tension with each other.

[33] 468 U.S. 897 (1984).

[34] Exclusionary Rule, Cornell L. Sch.: Legal Info. Institute, https://www.law.cornell.edu/wex/exclusionary_rule (last visited Oct. 4, 2023). 

[35] See Leon, 468 U.S. 897; Davis v. United States, 564 U.S. 229 (2011); see also Good Faith Exception to Exclusionary Rule, Cornell L. Sch.: Legal Info. Institute, https://www.law.cornell.edu/wex/good_faith_exception_to_exclusionary_rule (last visited Oct. 4, 2023).

[36] Leon, 468 U.S. at 972 (Stevens, J., concurring in part and dissenting in part).

[37] State v. Novembrino, 519 A.2d 820, 855 (N.J. 1987).

[38] E.g., Whren v. United States, 517 U.S. 806 (1996) (holding that pretextual automobile stops are not constitutionally forbidden); Heien v. North Carolina, 574 U.S. 54 (2014) (holding that an officer’s reasonable mistake of the law does not invalidate a stop); Maryland v. King, 569 U.S. 435 (2013) (upholding a statute that permitted warrantless DNA cheek swabs of arrestees).  

[39] See Monnat & Nichols, supra note 6.

[40] State v. Wood, 378 P.2d 536, 544 (Kan. 1963).

[41] See supra note 38.

[42] See generally Tonja Jacobi & Ross Berlin, Supreme Irrelevance: The Court’s Abdication in Criminal Procedure Jurisprudence, 51 U.C. Davis L. Rev. 2055­–56 (2018).