Opinion
No. 106,491.
2012-07-13
CITY OF PRAIRIE VILLAGE, Appellant, v. Nathan HOF, Appellee.
Appeal from Johnson District Court; John P. Bennett, Judge. Debra A. Vermillion, of Vermillion Morrison, LLC, of Leawood, for appellant. John J. Benge, of Benge Law Firm, of Lenexa, for appellee.
Appeal from Johnson District Court; John P. Bennett, Judge.
Debra A. Vermillion, of Vermillion Morrison, LLC, of Leawood, for appellant. John J. Benge, of Benge Law Firm, of Lenexa, for appellee.
Before GREENE, C.J., PIERRON and GREEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
The City of Prairie Village (City) appeals the district court's decision to grant Nathan Hof's motion to suppress based on a lack of reasonable suspicion for a traffic stop. We affirm.
Hof was ticketed for violating two Prairie Village traffic ordinances: “failure to maintain a lane, Sect. 46” and “D.U.I., Sect. 30.” The municipal court denied Hof's motion to suppress evidence obtained after his traffic stop and found him guilty of “Illegal Lane Usage” and “Driving under the Influence of Intoxicating Liquor or Drugs.” As this was his second DUI, Hof was sentenced to 180 days in jail, was ordered to pay a $1000 fine and $150 in fees, and was ordered to pay a $100 fine for his illegal lane usage. Hof timely appealed to the district court.
Hof filed another motion to suppress in the district court, claiming reasonable suspicion for his traffic stop was lacking. Hof also filed a memorandum in support, arguing that he did not cross the centerline or commit any other traffic violations, and even if he did cross the centerline, he did not violate the single lane ordinance under State v. Ross, 37 Kan.App.2d 126, 149 P.3d 876 (2007).
The district court held a suppression hearing on March 15 and 16, 2011. Officer Adam Taylor was the sole witness. He testified he had stopped Hof's vehicle on February 14, 2009, at 2:48 a.m. in Prairie Village. The following excerpt is Officer Taylor's only discussion of prestop events:
“Q. [Prosecutor]: Was your attention drawn to a black 2008 Honda that was also travelling westbound on 75th Street?
“A. Yes, it was.
“Q. What initially drew your attention to this black 2008 Honda?
“A. My first observation of the vehicle was, it was in front of me. We both were in the curb lane traveling westbound. The vehicle was in its lane, however, to me, driving, it appeared there might have been some weaving within a lane. And at that time, I then tried to focus on the vehicle to see if there might be an infraction or a reason that I should stop the vehicle. At that time, we started to continue westbound. When I was watching the vehicle, in the curb lane, started to swerve over to the outside lane. Then the vehicle turned the left blinker on, proceeded into the outside lane, and as we topped a hill, when the vehicle went to the left in the outside lane, the driver's side tires crossed over the—or moved over onto the double yellow lines for westbound traffic and maintained that lane in the 4500 block of 75th Street going westbound.
“Q. Okay. Now I want to describe the setup there in this area of 75th Street in Prairie Village, Kansas. There's [ sic ] eastbound traffic lanes and westbound traffic lanes, correct?
“A. Correct. It's four lanes total.
“Q. So we have two lanes going eastbound and two lanes going westbound?
“A. Correct.
“Q. How are the west and eastbound lanes divided for drivers to know that they can't go into the opposite or opposing lanes?
“A. In between both lanes in the middle, there is a double yellow line and there is a passing lane between the two lanes that are going in each direction.
“Q. Okay. So in this particular case as you observed this black Honda, you observed this black Honda topping a hill there [ sic ] westbound Mission Road, you observed its tires go onto or over the double yellow line or yellow line that divided eastbound and westbound traffic?
“A. Correct. That was right at—going down right before Fontana in the 4500 block.
“Q. From your observation that you had—you are behind this particular vehicle in a police car; is that right?
“A. Yes.
“Q. Okay. And from your observation, did it appear that any portion of the vehicle, the black Honda, actually went into the eastbound lanes of traffic?
“A. There was a portion of it that went into the eastbound lanes because the tires were on the center line.
“Q. Okay. And from your observation, that portion that—of the vehicle that actually went—would have been into the eastbound lane of traffic, would that have been a situation that could have been dangerous to drivers coming eastbound on Mission Road?
“A. Yes.
“Q. When you saw the vehicle with its tires on—or a portion of the vehicle in eastbound traffic, did you determine that that was actually a traffic violation, in and of itself?
“A. Yes.
“Q. What section of the Prairie Village, Kansas, ordinances were violated when you observed that particular behavior by the driver of that car?
“A. Section 46.
“Q. Okay. And based upon your observations, did you then conduct a traffic stop?
“A. Yes.
“Q. And that was for failure to maintain a single lane?
“A. Correct.”
Defense counsel had the entire patrol car video admitted into evidence but did not cross-examine Officer Taylor about Hof's driving actions.
On March 29, 2011, after reviewing the hearing transcript, video, and relevant caselaw, the district judge granted Hof's motion to suppress:
“I looked at the transcript and found no testimony from the officer regarding the conditions of the lane or that he thought the lane was clear or anything like that. It was just omitted and, therefore, I can't find that there was reasonable suspicion of the lane violation, the stop is illegal. The evidence thereafter is suppressed.”
On May 16, 2011, over defense counsel's objection, the district court granted the City's motion to present additional evidence on the road-condition issue; the court also characterized the motion as calling for reconsideration of the motion to suppress. The judge likened the situation to a second summary judgment motion containing additional evidence and ruled this way:
“I don't know what [the City is] going to present. But if it's a change of testimony, I can judge credibility. I can see whether it's just conveniently made up.... If the City finds it could have done a better job and has some additional evidence ... just one of those things that people can't always do what they needed to do the first time. They weren't thinking of that. In this case, there is some assertion by the City that they didn't understand the full extent of your motion because it didn't mention that. So I'm going to allow it.”
The City recalled Officer Taylor. Officer Taylor testified that on the night in question, he first observed Hof's vehicle weaving within its lane. He did not see any obstructions that would have caused the weaving, nor did he notice any potholes after driving over the same portion of the road. Next, Officer Taylor observed Hof's vehicle swerve from the curb lane to the outside lane. Again, he did not see any obstructions or potholes that would have caused the swerve. Then, Officer Taylor observed the tires of Hof's vehicle move onto the centerline, causing a portion of his car to protrude into the oncoming lane. Once again, he did not see any obstructions or potholes that would have caused the crossing.
On cross-examination, Officer Taylor clarified that he only saw Hof's vehicle weave once and did not see Hof's vehicle swerve. Although his patrol car remained in the curb lane when Hof's vehicle signaled, changed lanes, and protruded into the oncoming lane, Officer Taylor could still see the left side of Hof's vehicle. At 2:46:54 on the video, Officer Taylor saw the tires of Hof's vehicle cross 6 inches over the northernmost (first) yellow line for 2 seconds. He stated his view from the driver's seat was superior to that of the video. He did not see any pedestrians or bicycle riders, and he was not concerned that Hof was falling asleep at the wheel. Finally, he did not observe Hof commit any other traffic violations.
On July 5, 2011, the district judge regranted Hof's motion to suppress, based on a combination of State v. Marx, 289 Kan. 657, 215 P.3d 601 (2009), and Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 176 P.3d 938 (2008):
“I tend to agree with [defense counsel] that the testimony, while not in conflict, and while it clarified that there were no obstructions, which is another element of the traffic violation that was alleged, it wasn't clear. I still have some question as to what the Officer knew at the time.
“And, therefore, I am going to sustain the—continue to sustain, I guess, the suppression motion, and find that the stop was not based upon reasonable suspicion that the Officer did not—I think he misunderstood the law, and don't think he tried to come in here and say that he's forgot to say that.”
The City filed a timely interlocutory appeal.
We must first determine whether the evidence presented at the second suppression hearing was properly considered by the district court. Hof argues it was improper for the district court to let the City present additional evidence on his motion to suppress.
A district court can reentertain an earlier motion to suppress which has been denied. State v. Jackson, 213 Kan. 219, Syl. ¶ 1, 515 P.2d 1108 (1973). The decision to rehear an earlier motion is a matter which lies within the sound discretion of the district court. State v. Riedel, 242 Kan. 834, 837, 752 P.2d 115 (1988). Discretion is abused when no reasonable person would agree with the district court. State v. Holmes, 278 Kan. 603, 620, 102 P.3d 406 (2004).
This court has held that a district court did not abuse its discretion by holding a second suppression hearing and granting a previously denied motion to suppress. State v. Owen, No. 105,197, 2011 WL 4035782, at *3 (Kan.App.2011) (unpublished opinion). Or by refusing to hold a second suppression hearing. State v. Bieker, 35 Kan.App.2d 427, 434, 132 P.3d 478 (2006) (same). The district court did not commit error by holding a second suppression motion.
Prairie Village's Standard Traffic Ordinance mirrors the Kansas Uniform Act Regulating Traffic.
“Driving on Roadways Laned for Traffic [single lane violation]:
“Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply:
“(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” Art. 8, § 46 (identical to K.S.A. 8–1522[a] ).
“Driving on Right Side of Roadway; Exceptions [right of center violation]:
“(a) Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:
(1) When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movements;
(2) When an obstruction exists making it necessary to drive to the left of center of the highway; except that any person so doing shall yield the right-of-way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard;
(3) Upon a roadway divided into three marked lanes for traffic under the rules applicable thereon; or
(4) Upon a roadway restricted to one-way traffic.” Art. 8, § 38 (identical to K.S.A. 8–1514[a] ).
....
“(c) Upon any roadway having four (4) or more lanes for moving traffic and providing for two-way movement of traffic, no vehicle shall be driven to the left of the center line of the roadway, except when authorized by official traffic-control devices designating certain lanes to the left side of the center of the roadway for use by traffic not otherwise permitted to use such lances, or except as permitted under subsection (a)(2) hereof. However, this subsection shall not be construed as prohibiting the crossing of the center line in making a left turn into or from an alley, private road or driveway.” (Identical to K.S.A. 8–1514[c] ).
An appellate court reviews a district court's decision on a motion to suppress using a bifurcated standard of review. We review the factual findings underlying the district court's suppression decision by a substantial competent evidence standard. Then we review the ultimate legal conclusion using a de novo standard. State v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009).
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit unreasonable governmental searches and seizures. A traffic stop is considered a seizure of the driver. Marx, 289 Kan. at 661. A police officer can lawfully stop a moving vehicle if he or she has reasonable suspicion—supported by specific, articulable facts—that a crime has been, is being, or is about to be committed. K.S.A. 22–2402(1) (codifies Terry v. Ohio, 392 U.S. 1, 20–21, 88 S.Ct. 1868, 20 L . Ed.2d 889 [1968] );Marx, 289 Kan. at 661.
Reasonable suspicion represents a minimum level of objective justification. It is partially a result of common sense and ordinary human experience. “The reasonableness of an officer's suspicion is based on the totality of circumstances and is viewed from the perspective of those versed in law enforcement.” Martin, 285 Kan. at 637. At a suppression hearing, the prosecution must prove reasonable suspicion by a preponderance of the evidence and can do so by showing that the officer saw a prestop traffic violation. Marx, 289 Kan. at 660–62.
Throughout this case, the parties' main bone of contention has been whether Officer Taylor had reasonable suspicion of a single lane violation under Marx. But Kansas Supreme Court precedent reveals they have improperly framed the issue.
Our Supreme Court interpreted K.S.A. 8–1522(a), the single lane statute, in Marx. In that case, a motor home was travelling in the curbside lane of a two-lane, one-way road when it crossed the solid curb line, overcorrected, and crossed the dotted lane line. The Marx court interpreted K.S.A. 8–1522(a) as requiring “a driver to keep entirely within a single lane while traveling on a roadway with two or more clearly marked lanes,” unless “it becomes impracticable to stay within the lane markers.” 289 Kan. at 673. The court explained that because failure to maintain a single lane is not an absolute liability offense, “a detaining officer must articulate something more than an observation of one instance of a momentary lane breach.” 289 Kan. at 675. Ultimately, the court held that the State had failed to prove reasonable suspicion because the officer “only observed one instance where the motor home did not maintain a single lane” and “gave no testimony from which the court could even infer that it was practicable to maintain a single lane.” 289 Kan. at 675–76.
Our Supreme Court interpreted K.S.A. 8–1514(a), the right of center statute, in State v. Hopper, 260 Kan. 66, 917 P.2d 872 (1996). In that case, a vehicle crossed the centerline. The Hopper court deemed failure to stay right of the centerline an absolute liability offense. 260 Kan. at 70–71. The court held that the officer had reasonable suspicion because there was evidence that the driver drove left of center, and no evidence that any of the four statutory exceptions applied (driver was not passing, lane was not obstructed, and road was not a three-lane or one-way). 260 Kan. at 73.
State v. Chavez–Zbarra, 42 Kan.App.2d 1074, 221 P.3d 606 (2009), highlighted the difference between a single lane and a right of center violation. This court clarified that K.S.A. 8–1522(a) applies when a driver crosses the line dividing two lanes traveling in the same direction or the fog (curb) line, whereas K.S.A. 8–1514(a) applies when a driver crosses the center line dividing two lanes traveling in the opposite direction. 42 Kan.App.2d at 1077 (reversing suppression of evidence); see State v. Garza, No. 102,953, 2010 WL 3853222, at *6 (Kan.App.) (unpublished opinion), rev. granted 291 Kan. 914 (2010) (adopting Chavez–Zbarra's reasoning).
In this case we have a stretch of road which is a four-lane roadway with two lanes for westbound traffic and two lanes for eastbound traffic. Therefore, K.S.A. 8–1514(c) is applicable.
While we might devote a substantial amount of time to analyzing the legal issues raised by the parties as to whether this case is controlled by the above-mentioned statutes, Marx, Martin, Hopper, and Chavez–Zbarra, this is not necessary under the facts of this case.
The instant matter involves review of questions of law and fact. While our review of questions of law is unlimited, our review of questions of fact in this case is deferential to the findings of the district court. This is because here we have a video of the prestop actions of Hof that the court reviewed and found did not support a finding of any traffic violations suggested by the City at the suppression hearing.
After reviewing the video we also cannot find in the 1–minute sequence any action by Hof which supports a finding of any traffic violations. We therefore rule the court's findings concerning the issue of possible traffic violations are well supported by the facts and law found by the court. We therefore affirm the district court's findings.
Affirmed.
* * *
GREEN, J., concurring.
I concur with most of Judge Pierron's thoughtful discussion of the issues in this case. Yet, I believe that an important standard of review has been omitted from the majority's decision. In this case, the City argues that Officer Taylor had reasonable suspicion to stop Hof's vehicle because Hof had failed to maintain a single lane while traveling on the roadway. In granting Hof's initial motion to suppress, the trial court concluded:
“I went back and reviewed some case law, the Marx case and the Ross case, and particularly the Court of Appeals case in William Sullivan which reviewed all of those cases.
“The facts in this case showed a stop based upon a violation of a city ordinance requiring a driver to, as much as practical, to remain in a single lane. The testimony of the officer was that he observed the vehicle go out of the lane and that he stopped the vehicle. I reviewed the testimony of the officer, determined whether there was anything else that he observed that he testified about.
....
“So clearly ... the State, or tn this case the City, must present more information than an observation of lane breach in order to use that violation to justify a car stop. And the officer would have to articulate something more than that lane violation. In this case, I looked at the transcript and found no testimony from the officer regarding the conditions of the lane or that he thought the lane was clear or anything like that. It was just omitted and, therefore, I can't find that there was reasonable suspicion of the lane violation, the stop is illegal. The evidence thereafter is suppressed.”
The trial court's conclusion clearly states that the State had failed to meet its burden to prove two of the Marx factors (that “a detaining officer must articulate something more than an observation of one instance of a momentary lane breach” and “that it was practicable [for the driver] to maintain a single lane”). State v. Marx, 289 Kan. 657, 675–76, 215 P.3d 601 (2009).
In Marx, our Supreme Court stated that the standard of review for a negative finding should be applied to factual findings made by the trial court for which the State had failed to present evidence, replacing the substantial competent evidence standard. Yet, applying the negative finding standard does not undermine the de novo, standard of review of legal questions. 289 Kan. at 660–61. “Our standard of review for a negative finding of fact is that the party challenging the finding must prove arbitrary disregard of undisputed evidence or must prove some extrinsic consideration such as bias, passion, or prejudice.” Hall v. Dillon Companies, Inc., 286 Kan. 777, 189 P.3d 508 (2008).
In sustaining Hof's second motion to suppress based on the Marx decision, the trial court found that although Officer Taylor “clarified that there were no obstructions, which is another element of the traffic violation [single lane] that was alleged,” it concluded that Officer Taylor lacked reasonable suspicion to stop Hof's vehicle:
“All right. I previously had sustained the motion to suppress because the Officer didn't meet the—his testimony hadn't met the requirements of a traffic violation. The City asked for a rehearing to present additional testimony. Over the Defendant's objection, I allowed that additional testimony to reconsider—or, I guess, to reconsider the motion to suppress. And I have read the—I was familiar with the cases that were the main cases, the Ross case, the Marx case. I read the authorities that the parties have directed me to. I heard this additional evidence.
“On these motions to suppress, where the allegation is that there is an illegal stop—that is a stop that violates—that's not based upon a reasonable suspicion, or probable cause—the burden is on the State to show that the stop was legal. I did hear the testimony of the Officer twice, and it is the burden of the City to present testimony.
“I tend to agree with Mr. Benge [Hof's attorney] that the testimony, while not in conflict, and while it clarified that there were no obstructions, which is another element of the traffic violation that was alleged, it wasn't clear, I still have some question as to what the Officer knew at the time.
“And, therefore, I am going to sustain the—continue to sustain, I guess, the suppression motion, and find that the stop was not based upon reasonable suspicion that the Officer did not—I think he misunderstood the law. and don't think he tried to come in here and say that he's forgot to say that. So, I think—that's my ruling.”
Here, the trial court's finding that Officer Taylor lacked reasonable suspicion to stop Hof for a single lane violation is a negative finding.
A trial court's “negative finding that the State failed to carry its burden of proof is entitled to the full measure of the deferential review standard applicable to that question.” State v. Carapezza, 293 Kan. 1071, 1083, 272 P.3d 10 (2010). Although Officer Taylor testified that he did not see any obstructions in the roadway that would have caused Hof to weave his vehicle, Officer Taylor admitted that he saw Hof's vehicle weave only once. Moreover, Officer Taylor testified that he did not see Hof's vehicle swerve. Finally, Officer Taylor testified that he saw Hof's vehicle leave its lane of travel once when Hof's vehicle moved onto the center lane. In Marx, the court explained that because failure to maintain a single lane is not an absolute liability offense, “a detaining officer must articulate something more than an observation of one instance of a momentary lane breach.” 289 Kan. at 675.
Because Officer Taylor saw only one instance when Hof's vehicle did not maintain a single lane, the City failed to carry its burden of showing that Officer Taylor had reasonable suspicion that Hof's vehicle was violating the provisions of K.S.A. 8–1522(a).
In addition, the City contends that Officer Taylor had reasonable suspicion to stop Hof's vehicle because Hof had failed to stay right of center. In determining the sufficiency of the evidence, we do “not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.” State v. Moore, 283 Kan. 344, Syl. ¶ 3, 154 P.3d 1 (2007).
Officer Taylor testified that he saw the tires of Hof's vehicle on the center line. K.S.A. 8–1514(c) states that “ no vehicle shall be driven to the left of the center line of the roadway ....“ (Emphasis added.) The trial court viewed a videotape of the traffic stop and determined that the videotape did not support any of the traffic violations alleged by the City.
This court can review a videotape of a traffic stop to consider whether it supports the trial court's conclusion. But we cannot use the video “to invade the district court's province of determining witness credibility or weighing the evidence.” State v. Diaz–Ruiz, 42 Kan.App.2d 325, 329, 211 P.3d 836 (2009). Thus, the trial court is the sole judge of credibility and is free to accept or reject the testimony of witnesses.
After reviewing the videotape, along with the conflicting testimony of Officer Taylor, the record supports the trial court's finding that Officer Taylor lacked reasonable suspicion that Hof's vehicle was violating K.S.A. 8–1514(c). Thus, Officer Taylor lacked reasonable suspicion to stop Hof's vehicle for any of the alleged traffic violations.