Opinion
No. 108,445.
2013-11-22
STATE of Kansas, Appellee, v. Branden CLENTSCALE, Appellant.
Appeal from Ford District Court; Daniel L. Love, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Kevin B. Salzman, assistant county attorney, Natalie K. Randall, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Ford District Court; Daniel L. Love, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Kevin B. Salzman, assistant county attorney, Natalie K. Randall, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Branden Clentscale appeals following his convictions for driving under the influence of alcohol (DUI) and driving while suspended (DWS). In his first claim on appeal, Clentscale argues the district court erred in denying his motion to suppress because the officer did not have reasonable suspicion to stop him. In his second claim, Clentscale argues the DWS charge was duplicitous because the complaint alleged he had committed the crime of driving while suspended and the crime of driving while revoked, which are separate and distinct crimes.
Facts
In the early morning hours of May 22, 2011, a dispatcher at the Ford County Communications Center notified Corporal Thad Brown of the Dodge City Police Department that Clentscale had just been at the county jail trying to get his girlfriend out of jail. The dispatcher advised Brown that Clentscale was drunk and had gotten into a silver Buick and driven south. Brown knew Clentscale by sight and thereafter saw him driving a silver Buick. Brown followed the Buick approximately four blocks until it pulled into the Taco Jalisco's parking lot and came to a stop in a parking stall. While following the Buick, Brown did not observe Clentscale commit any traffic infractions or otherwise notice anything suspicious about the car. After the Buick came to a stop, Brown watched Clentscale exit the driver's side door of the car and attempt to enter the restaurant. Brown did not see any other occupants inside the car. Brown parked his car and asked Clentscale to come talk to him, and Clentscale complied.
While speaking with Brown, Clentscale exhibited several signs of intoxication, including an odor of alcohol, slurred speech, and bloodshot eyes. Clentscale admitted to consuming alcohol at some earlier time. Brown administered field sobriety tests, and Clentscale exhibited several clues of impairment. Brown arrested Clentscale and transported him to the county jail, where Clentscale submitted to a breath test that indicated a breath alcohol level over twice the legal limit. Clentscale was subsequently charged with driving while his license was canceled, suspended, or revoked and alternative counts of third offense DUI.
Before trial, Clentscale filed a motion to suppress, arguing that Brown did not have reasonable suspicion to stop him in the parking lot. At the suppression hearing, Brown testified, in relevant part, that he first came into contact with Clentscale after receiving a report from the Ford County Communications Center that Clentscale had been at the jail and had driven south in a light-colored Buick. The report indicated that Officer Sanchez had been in the jail parking lot when Clentscale left and believed that Clentscale was drunk. Brown testified that he observed a light-colored Buick and began following it. Brown knew Clentscale from previous encounters and believed that Clentscale was driving the Buick, though he “wasn't 100 percent sure” Clentscale was the driver until he saw Clentscale get out of the car. Brown did not observe Clentscale commit any traffic violations. Brown never activated his lights, turned on his siren, or otherwise indicated that Clentscale should stop the car. Brown also testified that at some point before making contact with Clentscale, he learned Clentscale had a suspended driver's license. Brown believed that he learned this information over the radio.
At the conclusion of the hearing, the district court denied the motion to suppress, based in part on a finding that Brown's stop of Clentscale was lawful because Brown had received information that Clentscale was driving under the influence of alcohol and Brown had learned that Clentscale's driver's license had been suspended.
At trial, Clentscale defended on the theory that he had not actually been driving the Buick but had been a passenger while a friend was driving the car. A jury found Clentscale guilty of DUI and DWS. The district court sentenced Clentscale to a 12–month jail term and ordered him to serve 6 months of that jail sentence followed by a 12–month term of probation on the remaining underlying 6–month sentence.
Analysis
On appeal, Clentscale argues: (1) The district court erred in denying his motion to suppress because Brown did not have reasonable suspicion to stop him and (2) the DWS charge was duplicitous because the complaint alleged that he had committed the crime of driving while suspended and the crime of driving while revoked, which are separate and distinct crimes. Each of these allegations will be addressed in turn. No error in denying motion to suppress
Clentscale argues that because Brown lacked the necessary reasonable suspicion to Stop him in the parking lot, the district court erred in not suppressing the evidence of his intoxication, which was obtained as a direct result of the unreasonable seizure.
An appellate court reviews a district court's decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, the appellate court reviews the district court's findings to determine whether they are supported by substantial competent evidence. Substantial evidence refers to legal and relevant evidence that a reasonable person could accept as sufficient to support a conclusion. The ultimate legal conclusion is reviewed using a de novo standard. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). The State bears the burden of proof for a suppression motion. It must prove to the district court the lawfulness of the search or seizure. State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009).
As a preliminary matter, we have some question regarding whether Clentscale has properly preserved this issue for appeal. When the trial court has denied a motion to suppress, the moving party must object to the introduction of that evidence at the time it is offered at trial to preserve the issue for appeal. State v. McCaslin, 291 Kan. 697, 726, 245 P.3d 1030 (2011). Although neither party addresses the question of whether Clentscale objected at trial to the admission of any of the evidence relating to the stop, a review of the record reveals that no such objection was made. As a result, it appears this issue is not properly before us for review. But even if it was, Clentscale still would not be entitled to relief.
The parties agree that Brown's encounter with Clentscale constituted a seizure within the meaning of the Fourth Amendment to the United States Constitution. The Fourth Amendment's guarantee against unreasonable seizures relates not only to a person's rights upon arrest, but also to “whenever a police officer accosts an individual and restrains his freedom to walk away.” Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under K.S.A. 22–2402(1), a law enforcement officer may stop any person in a public place based upon specific and articulable facts raising a reasonable suspicion that such person is committing, has committed, or is about to commit a crime. Kansas courts have defined reasonable suspicion as a particularized and objective basis for suspecting the person stopped is involved in criminal activity. Reasonable suspicion involves more than an unparticularized suspicion or hunch; however, the level of certainty is less than that of probable cause. Reasonable suspicion depends on the content of the information possessed by the detaining authority and the information's degree of reliability. Both quality and quantity of information are considered in the totality of the circumstances. State v. Toothman, 267 Kan. 412, Syl. ¶ 5, 985 P.2d 701 (1999).
In denying the motion to suppress, the district court found that Brown had reasonable suspicion to stop Clentscale based on the information that Clentscale was driving drunk and had a suspended driver's license.
Clentscale argues that Brown lacked sufficient information to make a valid stop because: (1) The source of Brown's information that Clentscale was intoxicated was an unnamed dispatcher, which amounted to little more than an anonymous tip because the source was unknown; (2) Brown admitted he was not completely sure that Clentscale was the driver of the Buick until he saw Clentscale get out of the car; and (3) Brown did not observe Clentscale commit any traffic violations.
Clentscale's argument lacks merit for multiple reasons. First, an anonymous tip containing conclusory allegations of reckless or drunk driving can justify a stop where other facts in the tip were corroborated by observation. State v. Crawford, 275 Kan. 492, 498, 67 P.3d 115 (2003); State v. Slater, 267 Kan. 694, 704–05, 986 P.2d 1038 (1999). In both Crawford and Slater, the court applied the “totality of the circumstances” model from Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), utilizing a three-part test to analyze the tip's reliability: (1) the type of tip or informant involved; (2) the detail given about the observed criminal activity; and (3) whether the police officer's personal observations corroborate the information supplied in the tip. Crawford, 275 Kan. at 498;Slater, 267 Kan. at 700.
The facts in this case are similar to those in Crawford and Slater, with the notable exception that it was not an anonymous informant who notified the dispatcher of the possibility that Clentscale was a possible drunk driver, but a police officer identified by name in the police report and at the suppression hearing. Because the report to the dispatcher was made by an identified police officer, the information is more reliable than the anonymous tips discussed in Crawford and Slater. As the Slater court recognized,
“the most favored of the tips are those which are in fact not really anonymous at all. These tips occur when the person giving the tip gives the police his or her name and address or identifies himself or herself in such a way that he or she can be held accountable for the tip. Courts have consistently held that such a tip may support a traffic stop. [Citations omitted.]” Slater, 267 Kan. at 700.
Applying the three-part totality of the circumstances test here, the informant, Officer Sanchez, was reliable and accountable; the detail given regarding the criminal activity was adequate; and Brown's observations corroborated all aspects of that detail.
Additionally, reasonable suspicion is judged from the totality of the information known to the officer prior to the investigatory detention. See Terry, 392 U.S. at 21–22. “The critical time that a law enforcement officer must have knowledge of facts giving rise to a reasonable and articulable suspicion that a person is committing, has committed, or is about to commit a crime is at the time of the actual stop, not when the officer makes a determination to stop a person.” State v. Weaver, 259 Kan. 844, Syl. ¶ 4, 915 P.2d 746 (1996). A stop occurs when the person actually submits to an officer's show of authority. See, e.g., State v. Neuman, 266 Kan. 319, 319–21, 970 P.2d 988 (1998) (stop did not occur until defendant submitted to police authority by stopping his car about half a mile after police activated flashing lights on patrol car); Weaver, 259 Kan. at 849 (stop did not occur until defendant submitted to officer's authority by halting in a wheat field, after he had exited his car in an attempt to flee).
Here, Brown testified that he began following Clentscale after observing the light-colored Buick that had been described by the dispatcher. Brown believed Clentscale was driving the car, but he “wasn't 100 percent sure” until after he saw Clentscale exit the car. Brown never activated his lights, turned on his siren, or otherwise indicated that Clentscale should stop the car. Clentscale parked the Buick in the Taco Jalisco's parking lot, exited the car, and attempted to enter the restaurant. It was at this time that Brown asked Clentscale to come talk to him, and Clentscale complied. Thus, Clentscale only submitted to Brown's authority when he complied with Brown's request to talk. Because Brown was sure that Clentscale was the driver of the Buick at the time Clentscale submitted to Brown's authority, Brown properly could rely on this information in forming reasonable suspicion.
In sum, prior to actually stopping Clentscale, Brown: (1) received a reliable tip from another officer identified by name that Clentscale was driving a light-colored Buick and appeared to be drunk; (2) observed a light-colored Buick that Brown believed Clentscale was driving; (3) learned that Clentscale's driver's license was suspended; and (4) confirmed that Clentscale was the driver of the Buick. We find substantial competent evidence to support the district court's findings that Brown had reasonable suspicion of criminal activity to support his stop of Clentscale. As a result, the district court did not err in denying Clentscale's motion to suppress. Duplicitous crimes not charged
For the first time on appeal, Clentscale seeks reversal of his conviction for driving while suspended, which resulted from a charging document that alleged in Count II that on May 22, 2011, Clentscale had “unlawfully operate[d] a motor vehicle, in Ford County, Kansas, while having a canceled, revoked or suspended driver's license.” See K.S.A.2010 Supp. 8–262(a)(l). Specifically, Clentscale claims the crime of driving while suspended and the crime of driving while revoked are separate and distinct crimes; thus, Count II was duplicitous and violated his right to a fair trial in that it charged two separate and distinct offenses in a single count.
Clentscale concedes he failed to raise this issue below. As a general rule, constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). Nevertheless, Clentscale suggests that consideration of this issue is necessary to serve the ends of justice or to prevent the denial of fundamental rights. See State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010) (stating three exceptions to rule prohibiting consideration of issues raised for first time on appeal). Assuming without deciding that an exception applies to allow Clentscale to raise this argument on appeal, his argument would fail because it has no merit.
A complaint which charges two separate and distinct offenses in a single count is duplicitous. Duplicitous charging is bad practice because it confuses the defendant as to how he or she must prepare a defense, and it confuses the jury. State v. Anthony, 242 Kan. 493, 497, 749 P.2d 37 (1988). The problem with duplicitous charging is that jurors are unable to convict of one offense and acquit of another offense when both are contained within the same count. State v. Campbell, 217 Kan. 756, 778, 539 P.2d 329,cert. denied423 U.S. 1017 (1975).
In this case, however, the charge of driving while suspended lodged against Clentscale as set forth in Count II of the First Amended Information was not duplicitous because the crime of driving while suspended and the crime of driving while revoked are not separate and distinct crimes. In the context of an alternative means challenge, the Kansas Supreme Court recently held that K.S.A.2008 Supp. 8–262 does not create three separate and distinct means of violating the statute, concluding: “[T]he actus reas of the crime of [driving while suspended] is driving without a privilege to do so. Thus, the phrase ‘canceled, suspended or revoked’ simply describes the different factual circumstances that can prove that material element of the crime.” State v. Suter, 296 Kan. 137, 149, 290 P.3d 620 (2012). In this case, the First Amended Information charged Clentscale with unlawfully operating a motor vehicle on May 22, 2011, which is one crime. As such, Clentscale's duplicity argument necessarily fails.
Affirmed.