Opinion
112,080.
08-14-2015
STATE of Kansas, Appellee, v. David COLE, Appellant.
Christina M. Kerls, of Kansas Appellant Defender Office, for appellant. Susan Alig, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Christina M. Kerls, of Kansas Appellant Defender Office, for appellant.
Susan Alig, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., BUSER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
David Cole appeals his conviction of one count of driving with a suspended license and one count of posses sion of cocaine. Cole alleges the district court improperly denied his motion to suppress evidence and improperly enhanced his sentence based on his criminal history. Finding no error, we affirm.
On July 13, 2012, Cole and a passenger were pulled over by police while driving through a Kansas City, Kansas, neighborhood. The stated reason for the stop was that the passenger was not wearing his seat belt. The officer admitted, however, that he was patrolling a narcotics hot spot at the time and was in the area for narcotic stops.
When officers asked Cole for his driver's license, Cole told them he did not have one because his license had been suspended. After verifying that statement, the officers placed Cole in custody, conducted a search incident to arrest, and discovered a rock of crack cocaine in Cole's pocket.
Cole was charged with one count of possession of cocaine and one count of driving with a suspended license. Cole pled not guilty to both counts and then filed a motion to suppress all evidence gathered as a result of the traffic stop, claiming that the officers had lacked reasonable suspicion to conduct the initial stop. After an evidentiary hearing, the district court disagreed and denied the motion.
The jury found Cole guilty on both counts. The district court sentenced Cole to 18 months' probation with an underlying prison sentence of 13 months. Cole timely appeals.
Did the district court err in denying Cole's motion to suppress?
Cole first argues that the district court erred when it denied his motion to suppress because the police lacked reasonable suspicion to stop his vehicle.
In reviewing a district court's denial of a motion to suppress evidence, we review the factual underpinnings of the decision under a substantial competent evidence standard. The ultimate legal conclusion drawn from those facts, however, is reviewed de novo. State v. Gibson, 299 Kan. 207, 215–16, 322 P.3d 389 (2014). Substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). In determining whether there is substantial evidence in the record to support a district court's decision, we do not reweigh the evidence, assess the credibility of the witnesses, or resolve evidentiary conflicts. State v. Ransom, 288 Kan. 697, 705, 207 P.3d 208 (2009).
In reviewing traffic stops, we determine whether the officer had a reasonable suspicion that the person stopped had committed, was committing, or was about to commit a violation of the law.
“The Fourth Amendment to the United States Constitution guarantees ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures....' See also Kan. Const. Bill of Rights § 15. A traffic stop is considered a seizure of the driver. State v. Thompson, 284 Kan. 763, 773, 166 P.3d 1015 (2007). To comply with the Fourth Amendment, the officer conducting the stop ‘must’ “ have a reasonable and articulable suspicion, based on fact, that the person stopped has committed, is committing, or is about to commit a crime.' [Citation omitted.]' “ 284 Kan. at 773.
“Reasonable suspicion is a lower standard than probable cause. ‘What is reasonable depends on the totality of circumstances in the view of a trained law enforcement officer.’ State v. Martinez, 296 Kan. 482, 487, 293 P.3d 718 (2013). In determining whether reasonable suspicion exists, the court must:
“ “ “[J]udge the officer's conduct in light of common sense and ordinary human experience. [Citation omitted.] “Our task ... is ...” ... to determine whether the totality of the circumstances justify the detention. [Citation omitted.] We make our determination with deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious circumstances, [citation omitted], remembering that reasonable suspicion represents a “minimum level of objective justification” which is “considerably less than proof of wrongdoing by a preporderance of the evidence.' “ “ [Citations omitted.] 296 Kan. at 487.” City of Atwood v. Pianalto, No. 301 Kan. 1008, 1011, 350 P3d 1048 (2015).
A passenger's failure to wear a seat belt when the car is in motion violates Kansas law. See K.S.A.2014 Supp. 8–2503. An officer's observation of a traffic infraction may provide sufficient reasonable suspicion to conduct a car stop. See State v. Moore, 283 Kan. 344, 350, 154 P.3d 1 (2007).
Cole argues that the court should have credited his testimony over the conflicting testimony of the officer. At the suppression motion, Cole testified that his passenger was wearing a seat belt while the car was moving before the police stopped it. In contrast, Officer David Hopkins testified that he stopped the car because the passenger in the front seat was not wearing his seat belt. He stated that he first noticed that the passenger was not wearing a seat belt when Cole's car passed in front of his parked car when he was approximately 8–10 feet away. Officer Hopkins again saw that the passenger was not wearing his seat belt when he pulled behind Cole's car. This occurred at 6:41 p.m. on a clear day when it was light outside.
The district court heard the conflicting evidence, assessed the credibility of the witnesses, believed the officer, and stated why he found him credible. As an appellate court, we are in no position to reweigh the evidence or assess the credibility of the witnesses, so we decline Cole's invitation to do so in this case.
Cole also contends that the officers never told him the reason for the stop and never gave his passenger a ticket for not wearing his seat belt. But those facts, even if true, do not negate the officers' reasonable suspicion that Cole had committed a traffic violation. They go to the weight of the evidence, which we do not reweigh.
Cole also alleges that the real reason he was stopped was because officers were looking for drugs in that neighborhood. Officer Hopkins testified that he and his partner were “patrolling a narcotics hot spot” in Kansas City, Kansas, and were “in the area for narcotic stops” when he saw Cole's car.
But even assuming Cole is correct, we find the traffic stop no less valid.
“The United States Supreme Court has specifically held that a traffic stop is not rendered invalid by the fact it is ‘a mere pretext for a narcotics search.’ United States v. Robinson, 414 U.S. 218, 221 n. 1, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) ; see Whren v. United States, 517 U.S. 806, 812, 116 S.Ct. 1769 135 L.Ed.2d 89 (1996) (‘an officer's motive [does not] invalidate [ ] objectively justifiable behavior under the Fourth Amendment’). This court has adopted the same view. See, e.g., Garza, 295 Kan. at 332 ; Marx, 289 Kan. at 662 ; Moore, 283 Kan. at 350 ; Anderson, 281 Kan. at 901 ; State v. DeMarco, 263 Kan. 727, 733, 952 P.2d 1276 (1998).” State v. Jones, 300 Kan. 630, 638, 333 P.3d 886 (2014).
We find substantial evidence supposing the district court's finding that the officer reasonably suspected that Cole had violated one of the multitude of applicable traffic laws of the jurisdiction. The officer's initial stop was thus objectively reasonable under the Fourth Amendment, despite the subjective intent of the officers. Accordingly, we find no error in the district court's denial of the suppression motion.
Did the district court err in using Cole's prior convictions to increase his sentence without requiring them to be proved beyond a reasonable doubt to a jury?
Cole next contends the district court violated his Sixth and Fourteenth Amendment rights as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the State did not prove his prior convictions to a jury beyond a reasonable doubt. Instead, the judge determined his prior convictions at sentencing.
Cole misconstrues Apprendi. That case held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Emphasis added) 530 U.S. at 490 Apprendi approved a judge's use of prior convictions as a sentence-enhancing factor. 530 U.S. at 490.
Additionally, Cole concedes that the Kansas Supreme Court rejected a similar argument in State v. Ivory, 273 Kan. 44, 41 P .3d 781 (2002), and states he includes this issue to preserve it for federal review. We are bound to follow the precedent established by our Supreme Court unless there is an indication that it is departing from the precedent. State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014). Ivory has often been followed and we find nothing to suggest any departure from it. See e.g., State v. Castleberry, 301 Kan. 170, 191, 339 P.3d 795 (2014) ; State v. Smith–Parker, 301 Kan. 132, 135, 340 P.3d 485 (2014) ; State v. McCune, 299 Kan. 1216, 1234–35, 330 P.3d 1107, cert. denied 135 S.Ct. 457 (2014).
Affirmed.