Kansas Attorney General Opinion 2014-009

April 10, 2014
ATTORNEY GENERAL OPINION NO. 2014- 09
The Honorable Jim Howell
State Representative, 81st District
State Capitol, Room 459-W
300 S.W. 10th Avenue
Topeka, Kansas 66612
The Honorable Brett Hildabrand
State Representative, 17th District
State Capitol, Room 274-W
300 S.W. 10th Avenue
Topeka, Kansas 66612
Re: 	Constitution 	of 	the 	United 	States—Amendment 	4; 	Searches 	and
Seizures—Plain View Exception
Constitution of the State of Kansas—Bill of Rights—Search and Seizure;
Plain View Exception
Wildlife, Parks and Recreation—Enforcement—Unlawful Acts—Seizure of
Wildlife, Devices, Equipment, and Firearms; Wildlife Checkpoint
Synopsis: 	The use of a flashlight or spotlight by a law enforcement officer at an
intersection from a public vantage point to see if the occupants of a motor
vehicle are wearing seatbelts is not a search and does not violate the
Fourth Amendment.
Roadway checkpoints may be constitutional if they serve a purpose other
than detecting evidence of ordinary criminal wrongdoing. 	If a checkpoint
serves an acceptable purpose, its constitutionality depends on how it is
conducted. 	Cited herein: K.S.A. 8-2501; Kan. Const., Bill of Rights, § 15;
U.S. Const., Amend. 4.

Representatives Howell and Hildabrand
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Dear Representatives Howell and Hildabrand:
As Representatives for the 81 st and 17th Districts, respectively, you ask for our opinion
on whether the Nighttime Seatbelt Enforcement Program is an unreasonable search in
violation of the Fourth Amendment of the United States Constitution or § 15 of the Bill of
Rights of the Constitution of the State of Kansas. 	You state in your request letter that
during the nighttime, law enforcement officers position themselves at intersections, and
when a motor vehicle stops at a traffic light, the law enforcement officer uses a flashlight
or spotlight to see if the occupants of the motor vehicle are wearing seatbelts. 	If the
officer witnesses a violation of the primary seatbelt law by the front seat occupants, he
or she informs another officer, who then stops the motor vehicle to issue a citation for a
violation of the Safety Belt Use Act.1 Specifically, you ask whether the use of a
flashlight or a spotlight makes this viewing an unconstitutional search.
Additionally, 	you 	ask 	generally 	whether 	“saturation 	patrol 	checkpoints” 	are 	an
unreasonable search and seizure in violation of the same constitutional provisions. 	In
your specific question, you ask whether a checkpoint by the Kansas Department of
Wildlife, Parks and Tourism (KDWPT) to check and verify hunters’ compliance with
hunting regulations, similar to a saturation patrol checkpoint, is constitutional. 	Before
addressing your questions, we review the constitutional provisions you cited.
Constitutional Provisions
The Fourth Amendment of 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, 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. 2
Section 15 of the Kansas Constitution Bill of Rights provides:
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. 3
1 K.S.A. 8-2501 et seq.
2 Emphasis added.
3 Emphasis added.

Representatives Howell and Hildabrand
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While the language is clearly not identical, the Kansas Supreme Court has held that the
protections provided by the Fourth Amendment of the United States Constitution and
§ 15 of the Kansas Constitution Bill of Rights are identical. 4 Both of the provisions
prohibit unreasonable searches and seizures. 5 Although the Kansas Supreme Court
has recognized that it could extend state constitutional protections of § 15 beyond the
federal guarantees provided by the Fourth Amendment, it has declined to do so. 6
Therefore, if a search or seizure does not violate the Fourth Amendment, it also will not
violate § 15 of the Kansas Constitution Bill of Rights.
The threshold question in search and seizure analysis is whether a search or seizure
has occurred. 	A search occurs for the purposes of the Fourth Amendment when the
government 	violates 	a 	person’s 	subjective 	expectation 	of 	privacy, 	which 	society
recognizes as an objectively reasonable expectation of privacy. 7 A Fourth Amendment
seizure of a person occurs when, in view of all of the circumstances surrounding the
incident, a reasonable person would believe that person is not free to leave. 8 If a
search or seizure occurs, the question that remains is whether the search or seizure
was reasonable under the Fourth Amendment.
Having laid the foundation for an understanding of search and seizure jurisprudence, we
now address your specific questions.
Nighttime Seatbelt Enforcement Program
According to the information that you provided, the Nighttime Seatbelt Enforcement
Program is a grant program developed by the Kansas Department of Transportation
(KDOT). 	The program is designed to enforce nighttime seatbelt use throughout the
State. 	Its purpose is to reduce unrestrained passenger motor vehicle deaths occuring
during the evening and nighttime hours, especially on Friday and Saturday evenings.
The law enforcement officers of a participating law enforcement agency are deployed to
carry out the program objectives pursuant to the enforcement protocol recommended by
KDOT.
You ask whether a Fourth Amendment violation occurs when a law enforcement officer
uses a sense-enhancing device such as a flashlight or a spotlight to illuminate the
interior of a motor vehicle at an intersection from a public vantage point. 	That question
was answered by the United States Supreme Court in United States v. Lee. 9 In Lee, a
crewmember of a Coast Guard patrol boat used a search light to look at the deck of the
4 See State v. Johnson, 253 Kan. 356, 362 (1993).
5 Id.
6 State v. Hoeck, 284 Kan. 441, 463 (2007).
7 Katz v. United States, 389 U.S. 347, 353 (1967); Id. at 360-61 (Harlan, J., concurring); Smith v.
Maryland, 442 U.S. 735 (1979). But see United States v. Jones, ___ U.S. ___, 132 S. Ct. 945, 950-52
(2012) (“[T]he Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the
common-law trespassory test.”).
8 United States v. Mendenhall, 446 U.S. 544, 554 (1980).
9 274 U.S. 559 (1927).

Representatives Howell and Hildabrand
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motorboat and found numerous cases of liquor. 	The Court found, “Such use of a
searchlight is comparable to the use of a marine glass or a field glass. It is not
prohibited by the Constitution.” 10 The Court has consistently found that use of a
flashlight or a spotlight does not constitute a search because it does not intrude upon a
legitimate expectation of privacy recognized by the public as reasonable. 11
The Kansas Supreme Court also has held that the use of a flashlight to look into a
vehicle’s windows is not a search with the meaning of the Fourth Amendment:
A search implies prying into hidden places for that which is concealed and it
is not a search to observe that which is in open view. Looking into a parked
car through the windows does not constitute a search, even though it is
nighttime and the items can be seen only with the aid of a flashlight. 12
The fact that the motor vehicle has occupants and is stationary at an intersection rather
than parked in a parking lot does not transform the viewing into a search in violation of
the Fourth Amendment. 	Even if the occupants held a subjective expectation of privacy
in not being viewed while in a motor vehicle, this expectation is not 	objectively
reasonable under governing Supreme Court precedents. 	The motor vehicle’s windows
are made of glass and are meant to be seen through. 	Thus, the determination of
whether the occupants are wearing a seatbelt is made by observing what is in open
view and does not require prying into hidden places or opening doors of the motor
vehicle. 	We conclude, therefore, that the use of a flashlight or spotlight by a law
enforcement 	officer 	at 	an 	intersection 	from 	a 	public 	vantage 	point 	to 	see 	if 	the
occupants of a motor vehicle are wearing a seatbelt is not a search and does not trigger
a Fourth Amendment violation.
Wildlife Checkpoints
Turning to your question about KDWPT wildlife checkpoints, “[i]t is well established that
a vehicle stop at a highway checkpoint effectuates a seizure within the meaning of the
Fourth Amendment.”13 While “[a] search or seizure is ordinarily unreasonable in the
absence of individualized suspicion of wrongdoing,” the United States Supreme Court
has recognized several limited exceptions to this general rule, one of which involves
certain roadway checkpoints. 14
10 United States v. Lee, 274 U.S. at 563.
11 See also United States v. Dunn, 480 U.S. 294, 305 (1987); Texas v. Brown, 460 U.S. 730, 739 (1983).
12 State v. McMillin, 206 Kan. 3, 7-8 (1970). See also State v. Doile, 244 Kan. 493, 497(1989),
disapproved on other grounds by State v. Hoeck, 284 Kan. 441 (2007) (officer's use of flashlight to
illuminate interior of car in parking lot to which officer had been summoned on official business was not
“search,” within meaning of Fourth Amendment).
13 Indianapolis v. Edmond, 531 U.S. 32, 40 (2000).
14 Id. at 37-39.

Representatives Howell and Hildabrand
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A suspicionless roadway checkpoint such as a drug interdiction checkpoint violates the
Fourth 	Amendment 	when 	designed 	to 	“detect 	evidence 	of 	ordinary 	criminal
wrongdoing.”15 However, 	the 	United 	States 	Supreme 	Court 	has 	approved 	the
constitutionality of Border Patrol and field sobriety checkpoints because they “serve
purposes closely related to the problems of policing the border or the necessity of
ensuring roadway safety” rather than a “general interest in crime control.” 16 If a
checkpoint serves an acceptable purpose, courts “will judge its reasonableness, hence,
its constitutionality, on the basis of the individual circumstances.”17
Wildlife checkpoints arguably serve a special purpose other than detecting evidence of
ordinary criminal wrongdoing, namely protecting the wildlife of the state from being
illegally taken. 	Even if the purpose of a wildlife checkpoint is acceptable, however,
whether a checkpoint is constitutional will depend on how it is conducted. Because this
will depend on the facts of each case, we decline to provide an opinion on this question.
Sincerely,
Derek Schmidt
Attorney General
Athena Andaya
Deputy Attorney General
DS:AA:sb
15 Id. at 41-42.
16 Id. at 41; Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 455 (1990) (field sobriety checkpoints);
United States v. Martinez-Fuerte, 428 U.S. 543, 561-67 (1976) (Border Patrol checkpoints). The
Supreme Court has also suggested that checkpoints to check for driver’s licenses and vehicle
registrations may be constitutional based on roadway safety concerns. See Delaware v. Prouse, 440
U.S. 648, 663 (1979).
17 Illinois v. Lidster, 540 U.S. 419, 426 (2004). See also State v. Deskins, 234 Kan. 529 (1983).