22-3216.
Motion to suppress illegally seized evidence.
(1) Prior to the trial a defendant aggrieved by an unlawful search and seizure may move for the return of property and to suppress as evidence anything so obtained.
(2) The motion shall be in writing and state facts showing wherein the search and seizure were unlawful. The judge shall receive evidence on any issue of fact necessary to determine the motion and the burden of proving that the search and seizure were lawful shall be on the prosecution. If the motion is granted then at the final conclusion of the case, the court shall order the suppressed evidence restored to the party entitled thereto, unless it is otherwise subject to lawful detention.
(3) The motion shall be made before trial, in the court having jurisdiction to try the case, unless opportunity therefor did not exist or the defendant was not aware of the ground for the motion, but the court in its discretion may entertain the motion at the trial.
(4) A motion to suppress illegally seized evidence may be made before or during a preliminary examination. If the motion is granted the suppressed evidence shall be held subject to further order of the magistrate. If the defendant is bound over for trial, the suppressed evidence shall thereupon become subject to the orders of the district court. If the defendant is not bound over and if no further proceedings are instituted on the particular charge or involving the particular suppressed evidence within ninety (90) days after the granting of the order, then the magistrate shall order the suppressed evidence restored to the party entitled thereto, unless it is otherwise subject to lawful detention.
History:
L. 1970, ch. 129, § 22-3216; L. 1971, ch. 114, § 5; July 1.
Notes of Decisions
Cited in
97
cases (
22 in the last 5 years), 1972–2026 · leading case:
State v. Robinson, 363 P.3d 875 (Kan. 2015).
State v. Robinson, 363 P.3d 875 (Kan. 2015).
· cites it 6× “Neither the exclusionary rule, applicable to unconstitutional searches or seizures, nor the statutory provision for suppressing illegally seized evidence, K.S.A. 22-3216, applied because officers did not conduct an illegal search or seizure.”
State v. Boggess, 425 P.3d 324 (Kan. 2018).
· cites it 4× “Instead, the State contends, as the driver of the vehicle, Motley possessed apparent authority to consent.”
State v. Estrada-Vital, 356 P.3d 1058 (Kan. 2015).
· cites it 4× “That burden is codified in K.S.A. 22-3216(2), which provides that, at a hearing upon a defendant’s written motion to suppress evidence, “the burden of proving that the search and seizure were lawful shall be on the prosecution.”
State v. Smith, 268 P.3d 1206 (Kan. Ct. App. 2011).
· cites it 9× “Accordingly, we conclude that Smith is not entitled to the relief contemplated in K.S.A. 22-3216, which governs motions to suppress, and that the State did not have the burden to lay a foundation for the admission of the results of the breath test at the suppression hearing.”
State v. Lowery, 420 P.3d 456 (Kan. 2018).
· cites it 2× “K.S.A. 22-3216(2); State v. Gray, 306 Kan.”
State v. Guein, 444 P.3d 340 (Kan. 2019).
· cites it 2× “22-3215(4); K.S.A. 22-3216(2). Issue 1: Was the pre-Miranda statement Guein made surrounding the initial pat-down of him admissible as evidence? Guein argues his statements made surrounding his pat-down, e.”
State v. Kelly, 285 P.3d 1026 (Kan. 2012).
· cites it 4× “” In considering the motion to suppress illegally seized evidence, the “judge shall receive evidence on any issue of fact necessary to determine the motion.”
State v. Schooler, 419 P.3d 1164 (Kan. 2018).
· cites it 2× “K.S.A. 22-3216(2); State v. Gray, 306 Kan.”
State v. Holman, 284 P.3d 251 (Kan. 2012).
· cites it 2× “” Moreover, K.S.A. 22-3216(2) directs that the “judge shall receive evidence on any issue of fact necessary to determine the motion.”
State v. Vrabel, 347 P.3d 201 (Kan. 2015).
· cites it 3× “That motion to suppress illegally seized property would have been governed by K.S.A. 22-3216, which says in subsection (1): “Prior to the trial a defendant aggrieved by an unlawful search and seizure may move for the return of property and to suppress as evidence anything so…”
State v. Holmes, 102 P.3d 406 (Kan. 2004).
“[K.S.A. 22-3216] authorizes reentertainment of the motion in the court’s discretion.”
State v. Buckner, 574 P.2d 918 (Kan. 1977).
· cites it 2× “The court erred in overruling defendant's motion, pursuant to K.S.A. 22-3216, to suppress as evidence certain hair samples.”
— K.S.A. § 22-3216(1) — 10 cases
State v. Robinson, 363 P.3d 875 (Kan. 2015).
“Neither the exclusionary rule, applicable to unconstitutional searches or seizures, nor the statutory provision for suppressing illegally seized evidence, K.S.A. 22-3216, applied because officers did not conduct an illegal search or seizure.”
State v. Smith, 268 P.3d 1206 (Kan. Ct. App. 2011).
“Accordingly, we conclude that Smith is not entitled to the relief contemplated in K.S.A. 22-3216, which governs motions to suppress, and that the State did not have the burden to lay a foundation for the admission of the results of the breath test at the suppression hearing.”
— K.S.A. § 22-3216(2) — 64 cases
State v. Estrada-Vital, 356 P.3d 1058 (Kan. 2015).
“That burden is codified in K.S.A. 22-3216(2), which provides that, at a hearing upon a defendant’s written motion to suppress evidence, “the burden of proving that the search and seizure were lawful shall be on the prosecution.”
State v. Lowery, 420 P.3d 456 (Kan. 2018).
“K.S.A. 22-3216(2); State v. Gray, 306 Kan.”
State v. Guein, 444 P.3d 340 (Kan. 2019).
“22-3215(4); K.S.A. 22-3216(2). Issue 1: Was the pre-Miranda statement Guein made surrounding the initial pat-down of him admissible as evidence? Guein argues his statements made surrounding his pat-down, e.”
State v. Schooler, 419 P.3d 1164 (Kan. 2018).
“K.S.A. 22-3216(2); State v. Gray, 306 Kan.”
State v. Boggess, 425 P.3d 324 (Kan. 2018).
“Instead, the State contends, as the driver of the vehicle, Motley possessed apparent authority to consent.”
— K.S.A. § 22-3216(3) — 9 cases
State v. Kelly, 285 P.3d 1026 (Kan. 2012).
“” In considering the motion to suppress illegally seized evidence, the “judge shall receive evidence on any issue of fact necessary to determine the motion.”
State v. Holman, 284 P.3d 251 (Kan. 2012).
“” Moreover, K.S.A. 22-3216(2) directs that the “judge shall receive evidence on any issue of fact necessary to determine the motion.”
— K.S.A. § 22-3216(4) — 1 case
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