Opinion
No. 110,510.
2014-12-12
STATE of Kansas, Appellee, v. Issac BELL, Appellant.
Appeal from Shawnee District Court; Steven R. Ebberts, Judge.Kevin Shepherd, of Topeka, for appellant.Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Steven R. Ebberts, Judge.
Kevin Shepherd, of Topeka, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Issac Ross Bell was arrested for driving under the influence (DUI) and failure to maintain a single lane of traffic. Bell filed a motion to suppress alleging he had not committed a traffic infraction justifying the traffic stop. The district court held an evidentiary hearing on the motion to suppress. Based on the evidence presented, the court denied Bell's motion. Bell went to trial on stipulated facts, and the court convicted him. He now appeals the denial of his motion to suppress his convictions and his sentence imposed—which was stayed on appeal; but he only argues the suppression issue. We affirm and remand with directions to vacate the stay of sentence.
The State charged Bell in an amended complaint with possession of a controlled substance, DUI first offense, unlawful use of drug paraphernalia, and failure to maintain a single lane. The charges stemmed from a traffic stop on March 3, 2012.
Bell filed a motion to suppress all evidence gathered as a result of the traffic stop. He alleged that Deputy Sean Swords lacked reasonable suspicion to justify the traffic stop and ensuing investigation for DUI. The district court held an evidentiary hearing on Bell's motion to suppress. Deputy Swords testified, and the parties played the videotape of the stop. Deputy Sword's dash cam captured the majority of his interaction with Bell, and his testimony filled in the gaps of the video.
Deputy Swords testified that on March 3, 2012, he was on duty around 2 a.m. The following was not recorded on the videotape because the deputy had not turned it on yet. As Deputy Swords exited east bound I–70, he observed a car sitting at a stop sign. No other cars were around. He later identified the driver as Bell. Although Bell was stopped before Deputy Swords came upon the intersection, he did not pull out of the stop sign until after Deputy Swords pulled away. Deputy Swords thought this was odd, so he slowed down and allowed Bell's vehicle to pass his. Before Bell's vehicle passed Deputy Swords' vehicle, Bell slowed down, acting as if it-did not want to pass the deputy's vehicle. Deputy Swords then engaged his dash cam. The videotape generally corroborates his testimony. Deputy Swords testified he saw Bell make a very wide left turn from the right lane onto the westbound I–70 on ramp. Deputy Swords followed Bell's vehicle on I–70. He saw Bell's vehicle fail to maintain a single lane of travel and weaved within its lanes, at times it even touched the lane markers. He also saw Bell's vehicle cross the fog line for approximately 20 feet before returning to the proper lane. There were no obstacles in the roadway prohibiting Bell from staying within his own lane.
The traffic stop occurred in the middle of the night, and the street and car lights created a glare. The glare and the distance between the patrol car and Bell's car make it difficult to see the exact location of the fog line and centerline at times on the videotape. Deputy Swords acknowledged it was difficult to see the infractions on the video, but he testified he could see them more clearly in person. However, the footage shows Bell's vehicle traveling down a two-lane road. In under 2 minutes at a minimum the vehicle: (1) took a wide left turn from the right lane; (2) weaved within its lane on two separate occasions; (3) appeared to drive on the fog line three times; (4) crossed over the fog line once for approximately 5 seconds; and (5) touched the centerline at least once. There were no obstructions on the roadway. Based on Bell's failure to maintain a single lane of traffic as required by K.S.A.2011 Supp. 8–1522, Deputy Swords activated his emergency signals and initiated a traffic stop.
Deputy Swords testified he immediately noticed that Bell had watery, bloodshot eyes. He asked Bell to perform a series of field sobriety tests, which Bell failed. Based on Bell's performance of the tests, Deputy Swords placed him under arrest for DUI and took him to the jail for breath testing. The breath sample Bell provided indicated a .128 blood-alcohol concentration (BAC), well over the legal limit of .08 BAC.
At the suppression hearing, Deputy Swords testified his basis for the traffic stop was the sum of the following factors: (1) the wide turn; (2) the weaving within the line; (3) crossing the fog line; and (4) that it was 2 a.m. Deputy Swords' arrest report indicated the arrest was based on Bell's failure to maintain a single lane of traffic. His arrest report referred to the wide turn but did not mention it as a basis for the arrest.
Throughout the evidentiary hearing, both parties played the videotape of the stop multiple times for the district court. The court took a recess to review the record prior to ruling. In ruling, the court considered the videotape and Deputy Swords' testimony. The court found: (1) Deputy Swords' testimony was credible; (2) Bell's vehicle crossed the line at least twice on the videotape and other times according to the deputy's testimony; (3) the vehicle also straddled the line for a period of time that raised reasonable suspicion; and (4) based on the totality of the circumstances, the weight of the evidence indicated there was reasonable suspicion that a crime had been committed. The court denied Bell's motion to suppress.
Bell waived his right to a jury trial. On June 25, 2013, Bell had a bench trial. The State agreed to drop the drug possession and paraphernalia charges in return for Bell proceeding on stipulated facts. He preserved his grounds for appeal on the motion to suppress. Bell stipulated to the “sufficiency of the evidence filed—after the stop, it would be sufficient for counts 2 and 4.” The court found Bell guilty of DUI under K.S.A.2011 Supp. 8–1567, which was applicable at the time of his offenses, and failure to maintain a single lane.
On July 10, 2013, the district court sentenced Bell to 6 months in jail followed by 12 months' supervised release. On July 11, 2013, Bell timely appealed the trial court's denial of his motion to suppress, his convictions, and sentence imposed. On appeal, Bell continues to argue he did not commit a traffic infraction in violation of K.S.A.2011 Supp. 8–1522 and, therefore Deputy Swords lacked reasonable suspicion to pull him over.
Standard of Review
“When reviewing a district court's decision on a motion to suppress, an appellate court first examines the district court's findings to determine whether they are supported by substantial competent evidence. The district court's legal conclusions based on those findings are then reviewed de novo.” State v. Powell, 299 Kan. 690, 700 325 P.3d 1162 (2014). Substantial evidence is relevant, provides substance, and “furnishes a substantial basis of fact” for this court to resolve the issues. Nickelson v. Kansas Dept. of Revenue, 33 Kan.App.2d 359, 362, 102 P.3d 490 (2004). An appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. State v. Johnson, 293 Kan. 1, 4, 259 P.3d 719 (2011). “As such, an appellate court may consider whether a videotape of a traffic stop supports the district court's factual findings, but the appellate court cannot review the videotape for purposes of determining witness credibility or weighing the evidence.” State v. Westfahl, No. 106,692, 2012 WL 5392119, at *4 (Kan.App.2012) (unpublished opinion) (citing State v. Diaz–Ruiz, 42 Kan.App.2d 325, 329, 211 P.3d 836 [2009] ).
However, when the “material facts are not in dispute of a decision on a motion to suppress evidence is a question of law subject to de novo review.” State v. Julian, 300 Kan. ––––, 333 P.3d 172, 174 (2014).
Reasonable Suspicion
In this case, Deputy Swords stopped Bell for failing to maintain a single lane of traffic in violation of K.S.A.2011 Supp. 8–1522 which applies “[w]henever any roadway has been divided into two (2) or more clearly marked lanes for traffic.” K.S.A.2011 Supp. 8–1522(a) requires that “[a] vehicle shall be driven as nearly as practicable entirely within a single lane....”
A traffic stop is a seizure within the meaning of the Fourth Amendment of the United States Constitution. State v. Mitchell, 265 Kan. 238, 241, 960 P.2d 200 (1998) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 [1968] ). The State must prove that a search or seizure was lawful. State v. McGinnis, 290 Kan. 547, 551, 233 P.3d 246 (2010). Kansas has codified the Fourth Amendment requirements of Terry in K.S.A. 22–2402(1). K.S .A. 22–2402 and the Fourth Amendment prohibits unreasonable governmental searches and seizures. Therefore, to initiate a traffic stop of a vehicle, an officer must have a reasonable suspicion supported by articulable facts that a crime has been, is being, or is about to be committed. State v. Thompson, 284 Kan. 763, Syl. ¶ 6, 166 P.3d 1015 (2007). Put another way, the “officer making the stop must be able to articulate the basis for his reasonable suspicion.” State v. Toney, 253 Kan. 651, 656, 862 P.2d 350 (1993).
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 v. Kansas Dept. of Revenue, 285 Kan. 625, Syl. ¶ 7, 176 P.3d 938 (2008). “[T]he officer must be able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity.” State v. Moore, 283 Kan. 344, Syl. ¶ 8, 154 P.3d 1 (2007). “A traffic violation provides an objectively valid reason for conducting a traffic stop.” State v. Coleman, 292 Kan. 813, 818, 257 P.3d 320 (2011) (citing Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331 [1977] ). Further, “[t]he United States Supreme Court has specifically held that a traffic stop is not rendered invalid by the mere fact is it is a ‘mere pretext.’ “ State v. Jones, 300 Kan. ––––, 333 P.3d 886, 893 (2014) (citing United States v. Robinson, 414 U.S. 218, 221 n.1, 94 S.Ct. 467, 38 L.Ed.2d 427 [1973] ).
At a suppression hearing, the prosecution must prove reasonable suspicion by a preponderance of the evidence and can do so by showing the officer saw a prestop traffic violation. See Coleman, 292 Kan. at 817–18. In a close case, appellate courts should “give appropriate deference to the opinions of a particular law enforcement officer on the scene who, with thousands of traffic stops, is highly experienced in roadside searches and seizures and determinations of reasonable suspicion.” Moore, 283 Kan. at 360.
Deputy Swords stopped Bell for failing to maintain a single lane of traffic in violation of K.S.A. 8–1522. The State argues the evidence indicated the vehicle weaved within its lane, touched the center and fog lines more than once, and crossed over the fog line for 20 feet. Bell argues the evidence does not support a violation of K.S.A 2011 Supp. 8–1522. Because the facts are disputed, we must first determine if substantial competent evidence supports the district court's findings. Powell, 300 Kan. at ––––, 325 P.3d at 1170.
In support of his argument, Bell attempts to analogize his case to State v. Ross, 37 Kan.App.2d 126, 149 P.3d 876, rev. denied Kan. 950 (2007), to support his claim that the facts do not support a finding of reasonable suspicion. However, Ross is distinguishable on the facts. In Ross, the court found the driver was not weaving back and forth and crossed the fog line only briefly, only for a short distance, and only once. 37 Kan.App.2d at 131. Additionally, in Ross, there was no testimony regarding the absence or presence of obstructions in the roadway. Therefore, Bell's analogy is unpersuasive because we are not presented with similar facts.
In arguing that he only crossed the line briefly one time, Bell essentially asks us to reweigh the evidence, find his interpretation of the videotape more credible, and discredit the deputy's testimony. Although we may consider whether a videotape of a traffic stop supports the district court's findings, but we will not invade the district court's providence of determining witness credibility and weighing the evidence. State v. Campbell, No. 109,109, 2013 WL 6726167, at *4 (Kan.App.2013) (unpublished opinion) (citing State v. Hess, 37 Kan.App.2d 188, 191, 153 P.3d 557 [2006] ).
Here the district court found credible the deputy's testimony that Bell crossed the lines more than once. The judge further found the videotape showed Bell's car clearly straddling the line for “a period of duration I think raises suspicion.” The facts shoed that “this was not just one touching of a line at one time. There ... were other clues of impaired driving from the wide turn, [crossing the centerline into] the wrong lane and then ultimately crossing over for ... what Deputy Swords said maybe 20 ... feet of the ... fog line when that car came around the curve there towards the exit.”
The district court found Bell had made a wide turn that appeared to be an illegal turn, crossed the line at least once viewable on the videotape and other times according to the deputy's testimony, weaved within his lane, and there were no obstructions that would have cause Bell to leave his lane. The court found, based on the totality of the circumstances, there was a reasonable suspicion to pull Bell over. This finding is supported by the record. Therefore, the court's factual findings are supported by substantial competent evidence, including the videotape and the testimony of Deputy Swords.
Next, we must review the district court's legal conclusions using a de novo standard. Powell, 300 Kan. at ––––, 325 P.3d at 1170. Our Supreme Court has interpreted K.S.A. 8–1522 as requiring a driver to keep as nearly as practicable entirely within a single lane while traveling on a roadway with two or more clearly marked lanes. State v. Marx, 289 Kan. 657, 672–73, 215 P.3d 601 (2009). However, “K.S.A. 8–1522(a) is not a strict liability offense.” 289 Kan. at 674. A violation requires “more than an incidental and minimal lane breach.” 289 Kan. at 674. An “officer must articulate something more than an observation of one instance of a momentary lane breach.” 289 Kan. at 675. Since Marx, this court has held that crossing the fog line twice provides sufficient reasonable suspicion. State v. Shepard, No. 102,653, 2011 WL 1814711, at *3 (Kan.App.2011) (unpublished opinion).
Here, the State presented evidence to the district court from which it could conclude that Deputy Swords reasonably believed Bell was not driving within the lane markers “as nearly as practicable.” First, Deputy Swords testified there were no obstructions in the roadway. Second, the State presented the videotape from Deputy Swords' car, which showed Bell's car weaving within his own lane of travel and crossing the lane marker for his lane of travel and the fog line. There is nothing portrayed in the videotape showing that it was impracticable for Bell to maintain a single lane of travel. Accordingly, the record indicates the State carried its burden of establishing Deputy Swords had a reasonable suspicion that Bell was violating the provisions of K.S.A.2011 Supp. 8–1522(a). The district court's denial of Bell's motion to suppress is affirmed.
Public Safety Stop
Bell also argues the State may not raise the issue of a public safety stop for the first time on appeal. A public safety stop is not for investigative purposes; instead, the focus is on safety issues. State v. Gonzalez, 36 Kan.App.2d 446, 457–58, 141 P.3d 501 (2006). In its response, the State vaguely mentions orally arguing “there was reasonable suspicion of impaired driving.” However, the State failed to cite to the record where it raised the issue below as required by Rule 6.03(1) and (3) (2013 Kan. Ct. R. Annot. 44). Factual statements in both parties' briefs are to be keyed to the record; material without such references is presumed to be without such support. Kenyon v. Kansas City Power & Light Co., 17 Kan.App.2d 205, 207, 836 P.2d 1193 (1992). Therefore, we will presume the State failed to raise the issue below.
Issues not raised before the district court cannot be raised for the first time on appeal except in limited circumstances. State v. Barnes, 293 Kan. 240, 255, 262 P.3d 297 (2011). Because the State failed to raise the safety stop issue below, and because none of the limited exceptions apply here, the issue is deemed waived.
Pretext
Finally, Bell argues Deputy Swords' belief that Bell was trying to avoid the deputy is insufficient reasonable suspicion for a stop. Bell's statement is true when viewed in a vacuum, but the facts in this case establish Deputy Swords had reasonable suspicion to pull Bell over aside from Bell's “odd” behavior.
“The United States Supreme Court has specifically held that a traffic stop is not rendered invalid by the mere fact is it is a ‘mere pretext.” ’ Jones, 300 Kan. at ––––, 333 P.3d at 893. However, merely “looking suspicious,” without articulable facts to support reasonable suspicion that a person was involved in criminal conduct, does not negate the protections of the Fourth Amendment. Brown v. Texas, 443 U.S. 47, 51–52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).
Bell attempts to analogize the facts here to those in State v. Edwards, No. 104,034, 2011 WL 5143039 (Kan.App.2011), rev. denied 294 Kan. 945 (2012). In Edwards, the officer's alleged basis for reasonable suspicion included the following
“seven factors: (1) that Edwards' car ‘slowly crossed’ 123rd Street; (2) that Edwards' car ‘accelerated quickly’; (3) that Edwards was attempting to avoid Officer Njoroge; (4) that Edwards pulled the car into a parking lot and went behind Hy–Vee; (5) that Edwards ‘blacked out’ the car and did not park within a parking stall; (6) that there had recently been a robbery at that particular Hy–Vee; and (7) that there recently had been burglaries in the ‘area .’ “ 2011 WL 5143039, at *4.
The crux of the State's argument in Edwards was the officer's belief that the driver was trying to elude her. The Edwards court determined that “none of the seven factors taken alone, or collectively, rises to the level of legally recognized reasonable suspicion.” 2011 WL 5143039, at *4. We are not presented with facts similar to Edwards.
Here, Deputy Swords' basis for reasonable suspicion included the following: (1) Bell attempted to avoid the deputy's car; (2) Bell took a wide turn; (3) Bell's car was weaving within the lane lines; (4) Bell's car crossed the lane lines; and (5) it was 2 a.m. The crux of the State's argument here is that Bell violated K.S.A.2011 Supp. 8–1522 by failing to maintain a single lane of traffic. For the reasons discussed above, substantial competent evidence supports Deputy Swords' belief that Bell had committed a traffic infraction. Though the officer in Edwards observed behavior she deemed suspicious, there was nothing criminal about the driver's activities. Here, however, substantial competent evidence supports Deputy Swords' belief that Bell had committed a traffic infraction.
As Bell notes, the record indicates Deputy Swords' attention was initially drawn to Bell based on Bell lingering at a stop sign and then slowing down so as not to pass the deputy. If this was all of Deputy Swords' observations, then Bell's argument might be persuasive as those behaviors would likely be insufficient to establish reasonable suspicion to initiate a traffic stop. However, for the multiple reasons discussed above, the record establishes that the deputy had reasonable suspicion to initiate a traffic stop. Therefore, even if Deputy Swords' initiated the stop for pretextual reasons, it did not invalidate an otherwise legal traffic stop. The State met its burden to establish articulable facts to support the deputy's belief that Bell was engaged in criminal activity. The district court properly denied Bell's motion to suppress.
Affirmed and remanded with directions to vacate the stay of the sentence imposed.