Opinion
109,679.
11-21-2014
STATE of Kansas, Appellee, v. Michael D. PLUMMER, Appellant.
John W. Thurston, of Addair Thurston, Chartered, of Manhattan, for appellant. Sherri Schuck, county attorney, and Derek Schmidt, attorney general, for appellee.
John W. Thurston, of Addair Thurston, Chartered, of Manhattan, for appellant.
Sherri Schuck, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ARNOLD–BURGER, J., and DANIEL L. LOVE, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
A sheriff's deputy encountered Michael D. Plummer driving through a pasture and, when Plummer exited his vehicle, engaged him in conversation. After it was discovered Plummer smelled of alcohol, Plummer attempted sobriety testing and was arrested for DUI. Plummer moved to suppress all evidence of intoxication as the fruits of an illegal seizure. The district court denied the motion and convicted Plummer. Plummer appeals.
In April 2012, the State charged Plummer with driving under the influence, his first DUI offense. A few months later, Plummer filed two motions to suppress: one alleging that officers lacked probable cause for arrest, and the other alleging that officers lacked reasonable suspicion for the initial encounter. Only the motion alleging the lack of reasonable suspicion is relevant to this appeal.
At the hearing on the motions, Deputy Dale Rice of the Pottawatomie County Sheriff's Office explained that on the night in question, he was investigating what he called a “juvenile party” in a pasture near Flint Rock Road. When Rice arrived at the location at approximately 12:25 a.m., he noticed an unusually high amount of traffic on the road as well as a vehicle entering the pasture. Rice also noticed a closed gate, a bonfire in the distance, and a pair of headlights coming toward him. Rice pulled off onto the side of the road and shut off his headlights. When the vehicle pulled up to the closed gate, Rice turned on his headlights and moved his car closer to the field, although without blocking the gate. Rice could not recall whether he activated his emergency equipment but testified that, at most, he used only the “rear directionals.” Because the other driver had exited his vehicle and headed toward the gate, Rice did the same. Rice explained his reason for being at that location to the driver and asked him for identification; the driver, Plummer, provided his driver's license.
Rice asked Plummer about the juvenile party, and Plummer responded that he had come to the pasture to check on cattle and did not know what else was happening on the property. Plummer told Rice that he had not been drinking.
As they spoke, another vehicle drove up and pulled to a stop behind Plummer's vehicle. At approximately the same time, Sergeant Chris Schmidt arrived and informed Rice that he smelled alcohol on Plummer. Rice testified at the hearing that although he had not smelled alcohol, he noticed that Plummer's eyes were bloodshot. After his conversation with Schmidt, Rice stood at a different angle, where he too smelled alcohol on Plummer. At that time, Rice asked Plummer to step out from behind the gate and perform field sobriety testing. Due to a back problem, Plummer refused to attempt the standardized National Highway Traffic Safety Administration (NHTSA)-approved walk-and-turn or one-leg-stand tests, but he did attempt and failed two nonstandardized divided attention tests (namely, the alphabet test and the countdown test). Plummer also submitted to a preliminary breath test, which registered a breath-alcohol content of .121.
On cross-examination by Plummer, Rice admitted that when he watched Plummer drive up to the gate, he did not observe any problems with Plummer's driving. He explained that he contacted Plummer before Plummer opened the gate to leave the pasture, with Plummer on one side and Rice himself on the other. Rice stated that although he parked on the side of the field access road, he left room for vehicles to enter and exit. When asked whether Plummer could have denied the request for his identification, Rice answered, “Well, I suppose he could of [sic ].” Rice also indicated that when he originally encountered Plummer, he did not “have any reason to believe [Plummer]'d been—been under the influence of alcohol and driving” and “actually would [have] had to let him go at that point.” Rice could not recall which way the gate opened, but he did acknowledge that if it opened outward, Plummer likely might have had to hit him with the gate to open it. But Rice also testified that he would have moved out of the way if Plummer had asked. In fact, Rice stated that he only would have attempted to stop Plummer from leaving after he smelled the alcohol. Rice estimated that between 5 and 10 minutes passed between his first contact with Plummer and the point when he no longer would have allowed Plummer to leave.
Rice clarified on redirect examination that he first asked Plummer about the juvenile party, then asked Plummer whether he had been drinking, and only requested Plummer's driver's license after Plummer said he had not. Rice also noted that Plummer told him that he leased the pasture at issue.
Plummer testified next, first explaining that the gate opened outward—namely, toward Rice and the road. By standing in front of the gate, Plummer explained, Rice blocked his ability to open the gate. Additionally, Plummer stated that the gate, if opened, would have hit one of the police vehicles. Plummer testified that he did not feel as though he was free to leave or that he could ignore the request for identification. On cross-examination, Plummer explained that he did not feel free to leave because Rice both asked for his driver's license and asked him a number of questions. He also explained that he felt that the gate was blocked by the police vehicles because he would have had to hit one to open the gate. But he did acknowledge that Rice's questions involved only a juvenile party, not Plummer's own behavior.
After hearing argument from the parties on the legality of the stop, the district court took the motion to suppress under advisement. The district court went on to hear testimony concerning the other motion to suppress, but it denied that motion at the hearing. Not long after, the district court submitted a written order denying the motion to suppress based on lack of reasonable suspicion. The district court determined that the initial encounter between Plummer and Rice was a voluntary one that concerned only the possible juvenile party in the pasture. The district court reasoned that the encounter only became involuntary after Rice “started inquiring whether [Plummer] had been drinking ... and sobriety tests were requested.” Additionally, the district court determined that the circumstances surrounding the encounter, including Plummer's bloodshot eyes and the odor of alcohol, provided reasonable suspicion sufficient to stop and then investigate Plummer.
The parties ultimately agreed to a trial on stipulated facts, including that a blood test after arrest indicated that Plummer's blood-alcohol content was .15. After Plummer renewed his objection to the admissibility of the evidence stemming from the initial stop, the district court found Plummer guilty of driving under the influence. The district court later sentenced Plummer to a controlling jail sentence of 6 months with a minimum jail sentence of 48 hours as well as 12 months' probation, a fine, and KBI lab fee. However, the district court agreed to stay the sentence if Plummer appealed within 7 days of sentencing, and Plummer so appealed.
Did the District Court Err in Denying the Motion to Suppress?
The primary issue on appeal is whether Plummer's initial contact with law enforcement constituted a voluntary encounter. Plummer contends that Rice seized him by positioning himself in such a way as to effectively prevent Plummer from exiting the pasture. The parties do not disagree on any of the facts significant to this case but instead focus solely on the legal question of whether the initial conversation between Rice and Plummer constituted a voluntary encounter or a seizure.
The standard of review of a district court's decision on a motion to suppress is a bifurcated one. This court reviews the district court's factual findings to determine whether they are supported by substantial competent evidence. However, when the material facts underlying the district court's decision are not in dispute, the question of whether to suppress is a question of law over which this court exercises unlimited review. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013).
Both the Fourth Amendment to United States Constitution and § 15 of the Kansas Constitution Bill of Rights protects individuals and their property against unreasonable searches and seizures. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). Under this general umbrella of protection, then
“[t]he question of whether there is a seizure arises in the context of one of four types of encounters with law enforcement officers: consensual encounters, which are not considered seizures; investigatory detentions, commonly known as Terry stops (see Terry v. Ohio, 392 U.S. 1, 18, 88 S.Ct. 1868, 20 L.Ed.2d 889 [1968], and K.S.A. 22–2402 ); public safety stops; and arrests.” 284 Kan. at 772.
Because voluntary encounters are not considered seizures, they do not trigger the protections of the Fourth Amendment. Moreover, a voluntary encounter is not transfonned into a seizure simply because an individual responds to questions or provides identification when approached or questioned by an officer. State v. Williams, 297 Kan. 370, 376, 300 P.3d 1072 (2013). Instead, an encounter between law enforcement and an individual will be deemed consensual—and therefore not a seizure—if the totality of the circumstances and the officer's conduct conveys to a reasonable person that he or she is free to terminate the encounter. State v. Murphy, 296 Kan. 490, 492, 293 P.3d 703 (2013).
The totality of the circumstances test essentially questions the coercive effect of the encounter. See Thompson, 284 Kan. at 811. This coercive effect can be achieved by “show[s] of authority” such as “ ‘the presence of more than one officer, the display of a weapon, physical contact by the officer, use of a commanding tone of voice, activation of sirens or flashers, a command to halt or approach, and an attempt to control the ability to flee.’ “ Williams, 297 Kan. at 377. Other factors in determining the voluntariness of the encounter include “the prolonged retention of a person's personal effects” by officers, the “absence of other members of the public” during the interaction, and “physical disengagement before further questioning.” Thompson, 284 Kan. at 811. However, the above-mentioned list of factors is “neither exhaustive nor exclusive,” and no factor standing alone “ ‘ “is legally determinative, dispositive, or paramount.” ‘ “ Williams, 297 Kan. at 377. Instead, a court must carefully scrutinize all of the circumstances surrounding the encounter to determine whether it is indeed a voluntary one. 297 Kan. at 377.
In crafting his argument, Plummer focuses primarily on a single factor—namely, Rice's attempt to control Plummer's ability to flee. In fact, Plummer alleges that Rice's position in front of the gate wholly eliminated his only means of egress from the pasture. However, Kansas precedent suggests that the mere fact of Rice's position is not wholly determinative of whether Plummer was seized.
For example, in State v. Parker, 282 Kan. 584, 585, 147 P.3d 115 (2006), an officer received a report about “some guys [who] were hanging out in a garage at an apartment complex” and decided to look in on the situation. The officer pulled into the driveway and parked behind two cars there. One of the men—Parker—approached the car as the officer exited, and the officer engaged Parker and another man in conversation. On appeal, Parker argued in part that the officer's act in parking his car in the driveway and blocking Parker's own vehicle constituted a show of authority that rendered the encounter a seizure. However, our Supreme Court observed that the officer “did not know Parker or recognize Parker's car when he pulled into the driveway.” 282 Kan. at 592. In fact, the officer could not recall where he parked his car or whether he blocked the driveway. Our Supreme Court determined that absent some showing of intent by the officer to block Parker and prevent him from leaving, placement of the car alone could not constitute a show of authority. 282 Kan. at 592. Our Supreme Court reasoned similarly in another case in which an officer who was investigating a possible stolen vehicle parked his car on a gravel road “two to three car lengths” behind the defendant's car. State v. McGinnis, 290 Kan. 547, 549, 233 P.3d 246 (2010). The court observed that the district court “found McGinnis was not blocked; he could have maneuvered and driven away” and emphasized that even if the officer “intended to prevent McGinnis' departure ... there is no evidence in the record indicating his intent was communicated to McGinnis.” 290 Kan. at 560. Moreover, the court noted that the Tenth Circuit Court of Appeals has held that an officer's act in blocking an individual's car when the individual may still move around freely on foot “is not dispositive of the voluntariness of the encounter.” 290 Kan. at 561.
Somewhat similarly, the police officer in State v. Young, 37 Kan.App.2d 700, 157 P.3d 644 (2007), observed the defendant participating in an exchange that he believed to be a drug transaction. Before Young left the public park in which the exchange occurred, the officer approached him on foot and proceeded to ask him a handful of questions. On appeal, Young argued that the officer blocked his path and “demanded that Young answer questions.” 37 Kan.App.2d at 714. This court determined that the officer's behavior was “possibly even less characteristic of a seizure than [in an earlier case] because Young was approached in a park by only one officer” who neither activated his vehicle's emergency lights nor commanded him to stop and answer questions. 37 Kan.App.2d at 715. Moreover, the court found no indication that the officer “attempt[ed] to control Young's ability to flee, or otherwise indicate[d] to Young that he was not free to leave.” 37 Kan.App.2d at 715. As such, this court determined that the encounter was voluntary. 37 Kan.App.2d at 716.
Fairly recently, this court considered a case in which an officer drove past a man and a woman who were talking near an alley. State v. McCarthy, No. 108,958, 2014 WL 702400 (Kan.App.2014) (unpublished opinion). As the officer continued to drive, he noticed that the man, who he recognized as McCarthy, had started running in the same general direction that the officer was driving. The officer drove ahead of McCarthy and parked and exited his vehicle, and McCarthy greeted him from the street. As they began to talk, the officer asked McCarthy to step out of the street and behind the patrol car. During a brief conversation, McCarthy agreed to empty his pockets; when he voluntarily removed his shoes, a bag of methamphetamine fell out of one of the shoes. McCarthy argued on appeal that the encounter was voluntary only up to the point when the officer requested that they talk behind the patrol car. Drawing on Young, this court determined that the officer “never restricted McCarthy's ability to continue running” and that even if the officer “strategically parked his patrol vehicle in McCarthy's eventual path,” McCarthy began the conversation. 2014 WL 702400, at *7.
Here, the circumstances clearly demonstrate that the conversation between Plummer and Rice constituted a voluntary encounter. Focusing first on Rice's positioning, Rice testified at the hearing that he approached Plummer as Plummer walked toward the gate. The men talked over the gate. Although Plummer knew the gate swung outward, Rice did not know how the gate opened. Rice stated that had Plummer asked, he would have moved to allow Plummer to open the gate. Rice's car did not block Plummer's exit, and nothing in the record suggests that Plummer could not have physically walked away from the encounter. Additionally, there is no indication that Rice intentionally positioned himself in front of the gate—or that Schmidt intentionally parked his car in a place that would prevent the gate from opening all the way. Neither officer informed Plummer that they intended to hem him into the pasture, either.
Moreover, the other circumstances surrounding the encounter support a finding of voluntariness. At most, Rice activated his (presumably non-emergency) headlights and “rear directional[ ]” lights but not the whole of his emergency equipment. Rice approached Plummer alone, without a commanding tone of voice or any show of authority. The conversation with Plummer primarily concerned Plummer's knowledge of an unrelated event—namely, the juvenile party in the pasture—and general information about Plummer. Nothing in the record indicates that Rice either physically restrained Plummer or displayed his weapon, and the interaction lasted only a few minutes. Although Rice took Plummer's driver's license at some point, it is unclear how long he retained it, and although Schmidt arrived during the conversation with Plummer, it appears Schmidt never interacted with Plummer aside from walking past him. In short, even if Plummer subjectively did not believe he could walk away, a reasonable person in Plummer's position would have felt free to refuse to answer Rice's questions, terminate the conversation, ask Rice to move, and leave the pasture.
On appeal, Plummer also argues that even if the encounter began voluntarily, Rice lacked reasonable suspicion to prolong the encounter and request field sobriety tests. However, Plummer never raised this issue before the district court. Instead, his motion to suppress concerned only the initial encounter without discussing the point in which the contact between Rice and Plummer transitioned into a seizure and whether reasonable suspicion supported such a seizure. At the motion hearing, Plummer tangentially mentioned whether reasonable suspicion existed based on his physical characteristics, but only in the broader context of the whole encounter constituting a seizure. However, the district court did state in its decision that reasonable suspicion to detain Plummer beyond the initial encounter existed due to “the reason the officers were at the location where the encounter started, vehicles entering the pasture, defendant observed driving, bloodshot eyes, and odor of alc[o]hol.”
Plummer's brief fails to explain why he failed to fully raise this issue below—a failure that generally precludes this court from considering the issue. See State v. Breeden, 297 Kan. 567, 574, 304 P.3d 660 (2013) (declining to consider issue because appellant failed to explain why it should be considered for the first time on appeal); State v. Johnson, 293 Kan. 959, 964, 270 P.3d 1135 (2012) (declining to consider issue for first time on appeal). However, this court is adopting the exception to this rule that an appellate court may consider a new legal theory on appeal if consideration of that theory is necessary to serve the ends of justice or prevent denial of fundamental rights. State v. Anderson, 294 Kan. 450, 464–65, 276 P.3d 200 (2012). Because this argument implicates Plummer's Fourth Amendment rights to be free from unreasonable searches and seizures, this court will address the question of whether Rice had reasonable suspicion sufficient to prolong the encounter and request sobriety tests.
Considering this issue on the merits presents two problems. First, an issue raised incidentally and not argued is deemed abandoned. State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011). Plummer only devotes a single paragraph to this argument. He simply raises the argument, supporting it with a fleeting reference to City of Hutchinson v. Davenport, 30 Kan.App.2d 1097, 54 P.3d 532 (2002). In Davenport, the defendant arrived at the local law enforcement center to check on his daughter and to locate her vehicle. An officer realized that Davenport smelled of alcohol and warned him not to drive; despite reporting that he lived in Wichita, Davenport replied that he intended to walk home. The officer then watched as Davenport left the building, crossed the street, waited outside for a few minutes, climbed into a pickup truck, and drove away. The officer alerted another officer to his suspicions, and that second officer ultimately stopped Davenport. Neither officer witnessed any signs of intoxication other than Davenport's bloodshot eyes and the smell of alcohol on his breath. On appeal, this court agreed with the district court that the officer lacked reasonable suspicion to pull Davenport over. 30 Kan.App.2d at 1101. After reiterating that reasonable suspicion is “ “ ‘specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion’ “ “ of criminal activity, this court noted that “the only facts suggestive of unusual conduct are that Davenport had alcohol on his breath and that he stated he was walking”; even considering these facts together, this court reasoned that the officers lacked any indication that Davenport was too impaired to drive. 30 Kan.App.2d at 1100–01.
On its face, then, Davenport supports Plummer's argument that Rice lacked reasonable suspicion to extend the stop for sobriety testing, as the only facts either party elicited about Plummer's manner and behavior concerned his bloodshot eyes and the odor of alcohol. But Plummer fails to recognize that the limited facts regarding his behavior may stem not from a lack of evidence but from the procedural posture of the hearing. The district court bifurcated the motions hearing to consider the two motions to suppress separately, considering first the issue of whether the initial encounter constituted a seizure and then the issue of whether the officers had probable cause to arrest Plummer for DUI. Neither party questioned Rice about any additional grounds for prolonging the encounter beyond the initial, voluntary conversation; therefore, nothing in the record indicates whether Plummer behaved like an individual under the influence, whether he slurred his speech or swayed while standing, or whether he displayed any evasiveness while answering questions. Had the issue of reasonable suspicion to prolong the encounter been raised below, this court might have answers to these questions. But because both parties only addressed whether the encounter began voluntarily, the facts regarding Plummer's manner that night are very sparse.
Plummer points to the lack of facts as proof that Rice lacked reasonable suspicion. But considering the facts as they exist and without lending extra weight to the unknowns, reasonable suspicion existed at the time Rice smelled alcohol on Plummer. As mentioned above, reasonable suspicion requires that an officer has “knowledge of facts giving rise to a reasonable and articulable suspicion that the person has committed, was committing, or was about to commit a crime.” State v. Morris, 276 Kan. 11, Syl. ¶ 4, 72 P.3d 570 (2003). This standard “is a less demanding standard than probable cause” and “can arise from information that is less reliable than that required to show probable cause.” 276 Kan. 11, Syl. ¶ 6. Importantly, a person's proximity to other individuals who are “independently suspected of criminal activity” only allows for a stop when the officer “has reasonable suspicion directed specifically at that person.” 276 Kan. at 25. And although the odor of alcohol alone is insufficient to support reasonable suspicion, our Kansas courts have upheld stops when the odor of alcohol is coupled with bloodshot eyes and other indicators of intoxication. See State v. Pollman, 286 Kan. 881, 894–95, 190 P .3d 234 (2008) (odor of alcohol, refusal to follow lawful requests, admission of drinking); cf. Campbell v. Kansas Dept. of Revenue, 25 Kan.App.2d 430, 431, 962 P.2d 1150 (probable cause for arrest based on odor of alcohol, bloodshot and glazed eyes, admission of drinking, driving 17 miles per hour over the speed limit, early hours of the morning), rev. denied 266 Kan. 1107 (1998).
At the point when Rice realized that Plummer smelled of alcohol and determined that he would not allow Plummer to terminate the encounter, he had already observed Plummer's bloodshot eyes. Rice also suspected at that point that Plummer had been untruthful about not drinking. Moreover, he witnessed Plummer coming from a pasture where a drinking party was taking place at 12:25 a.m. Plummer admitted that he leased the pasture and presented a strange motivation for being at the pasture (checking on cattle late at night). Although many questions about Plummer's behavior remain unanswered, these facts lead to the reasonable, articulable conclusion that Plummer was driving his truck through the pasture while under the influence of alcohol. And even if all the unanswered questions favor Plummer's position, “competing evidence of sobriety does not negate initial evidence of intoxication.” State v. Edgar, 296 Kan. 513, 524, 294 P.3d 251 (2013).
In conclusion, Plummer's initial encounter with Rice was a voluntary one because despite Rice's placement in front of the gate, a reasonable person would have felt free to terminate the encounter and walk away.
Additionally, this court finds that the limited facts provided indicate that Rice had the required reasonable suspicion to extend the stop and request sobriety testing. The district court's decision is affirmed, and Plummer's conviction is upheld.
Affirmed.