Opinion
No. 106,839.
2012-12-14
STATE of Kansas, Appellee, v. Lonny R. DAUER, Appellant.
Appeal from McPherson District Court; Carl B. Anderson, Jr., Judge. Julie McKenna, of McKenna Law Office, P.A., of Salina, for appellant. Gary Luke Foiles, deputy county attorney, David Aaron Page, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from McPherson District Court; Carl B. Anderson, Jr., Judge.
Julie McKenna, of McKenna Law Office, P.A., of Salina, for appellant. Gary Luke Foiles, deputy county attorney, David Aaron Page, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Lonny R. Dauer appeals his conviction for driving under the influence (DUI) by challenging the district court's denial of his motion to suppress. He argues that the deputy who stopped him lacked jurisdiction and reasonable suspicion to detain him for a DUI investigation. We affirm.
Dauer was charged with failing to signal a turn, in violation of K.S.A. 8–1548, driving under the influence, in violation of K.S.A. 8–1567, and transporting an open container, in violation of K.S.A. 8–1599. Before trial, Dauer filed a motion to suppress the evidence obtained during his “illegal detention and arrest.” Dauer argued that “the deputy lacked reasonable grounds to continue to detain the defendant following the stop; the deputy did not [have] jurisdiction to detain and arrest the defendant.” The district court held an evidentiary hearing on the motion.
At the suppression hearing, Deputy Lee Froese of the McPherson County Sheriff's Department testified to the following facts. On August 18, 2010, at around 10:45 p.m., the deputy was travelling west, patrolling the area just south of the northern McPherson County line. A pickup truck was travelling in the same direction “about a half mile” in front of his patrol car. The truck caught his attention when it turned right onto 12th Street without signaling. So Deputy Froese activated his patrol car camera, drove north on 12th Street, and caught up with the truck at the Winchester Road intersection. Winchester Road runs east and west and represents the northern border of McPherson County and the southern border of Saline County. After the truck executed a proper left turn onto Winchester Road, Deputy Froese initiated a traffic stop for failure to signal. Once he activated his patrol car's emergency lights, the truck responded immediately by pulling over to the right. There was 1 mile between where Deputy Froese was when he observed the traffic violation and where he stopped the truck.
Deputy Froese made contact with the driver, who he later identified as Dauer. While explaining the reason for the traffic stop, Deputy Froese observed that Dauer “had bloodshot, watery, droopy” eyes. When the issue of registration came up, Dauer hurriedly explained that he had recently purchased the truck. Dauer voluntarily exited the truck to uncover the temporary tag, which was not visible through the back window. While Dauer was locating the tag, Deputy Froese smelled “a heavy odor of cigarette smoke,” which, according to his training and experience, was used as a masking agent. He also observed a 12–pack of cold, unopened beer bottles in the bed of the truck and “detected the faint odor of an alcoholic beverage coming from somewhere.” Deputy Froese can be heard on the patrol car video asking Dauer for his driver's license and telling him, “I can smell booze.” Dauer adamantly denied that he had been drinking. So Deputy Froese asked him if he would submit to a preliminary breath test (PBT) to verify that he had not been drinking.
Ten days after taking the matter under advisement, the district court denied Dauer's motion to suppress. The court made the following relevant findings:
“I have no problem with the stop of [Dauer] by Deputy Froese. He witnessed an infraction taking place in McPherson County, i.e. failure to use turn signals, and he pursued [Dauer] without losing sight of [Dauer's] vehicle out of McPherson County and into Saline County where the stop was made. As already stated, I believe the stop was in compliance of Kansas law and properly done.
“Likewise, I find that Deputy Froese articulated sufficient facts to constitute reasonable suspicion that justified his turning a routine traffic stop into a further investigation. Deputy Froese testified not only about the infraction committed by [Dauer], but also about his observations of [Dauer] once he approached [him] in his vehicle. He stated [Dauer] had blood shot and watery eyes; he noticed a smell of alcoholic beverage coming from [Dauer] once [he] had stepped out of his vehicle (by his own choice); and he noticed the presence of beer in the back of the pickup. These facts justified an expansion of the officer's investigation in this case.”
Dauer's case proceeded to a bench trial on stipulated facts. Defense counsel lodged a continuing objection to the admission of the traffic stop evidence. The district court found Dauer guilty on all counts. Dauer was placed on probation for 1 year, subject to a mandatory 10–day jail term, and fined $500 for the DUI, $200 for the open container, and $75 for the failure to signal. He timely appeals.
Dauer argues that Deputy Froese had neither jurisdiction nor reasonable suspicion to detain him for a DUI investigation.
Once Dauer filed his motion to suppress, the State bore the burden of proving the legality of the traffic stop. See State v. Fitzgerald, 286 Kan. 1124, 1126, 192 P.3d 171 (2008). In reviewing a district court's decision on a motion to suppress, an appellate court reviews the record to determine whether the district court's factual findings are supported by substantial competent evidence but reviews de novo the ultimate legal conclusion regarding suppression. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).
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 a seizure of the driver under the purview of the Fourth Amendment. State v. Moore, 283 Kan. 344, 349, 154 P.3d 1 (2007). Here, the legality of the initial stop is not contested because Deputy Froese observed Dauer commit a traffic violation, i.e., failing to signal. See K.S.A. 8–1548; Moore, 283 Kan. at 349 (traffic violation provides requisite reasonable suspicion to initiate traffic stop). Therefore, we must decide whether Dauer was legally detained. See State v. Thompson, 284 Kan. 763, 773, 810, 812, 166 P.3d 1015 (2007). The district court found that he was and refused to suppress the DUI evidence.
“[S]heriffs and their deputies may exercise their powers as law enforcement officers ... [a]nywhere within their county; and ... when in fresh pursuit of a person.” K.S.A.2010 Supp. 22–2401a(l); see K.S.A.2010 Supp. 22–2401a(11)(d) (“ ‘Fresh pursuit’ means pursuit, without unnecessary delay, of a person who has committed a crime, or who is reasonably suspected of having committed a crime.”). Appellate courts apply a three-factor test to determine whether an officer was in fresh pursuit: (1) whether the officer acted without unnecessary delay; (2) whether the pursuit was continuous and uninterrupted; and (3) the relationship in time of the commission of the offense, commencement of the pursuit, and apprehension of the suspect. State v. Green, 257 Kan. 444, 454–55, 901 P.2d 1350 (1995).
Here, the record shows that Deputy Froese exercised his law enforcement power: He observed a truck fail to signal in McPherson County; pursued the truck for 1 mile; and stopped the truck in Saline County. These facts reveal that the deputy acted without any delay and continuously pursued the truck from the time it committed a traffic violation until it was stopped. Therefore, Deputy Froese had jurisdiction to stop Dauer.
“In Kansas, a detention may not exceed the scope or duration necessary to carry out the purpose of the traffic stop.” Thompson, 284 Kan. at 774; see State v. Coleman, 292 Kan. 813, 816, 257 P.3d 320 (2011) (during a routine traffic stop, an officer may request a driver's license and vehicle registration). “[A]n officer may expand the investigative detention beyond the purpose of the initial stop only if there is an objectively reasonable and articulable suspicion that criminal activity was or is taking place.” Coleman, 292 Kan. at 816–17; see K.S.A.2010 Supp. 8–1012(b) (“A law enforcement officer may request a person who is operating ... a vehicle within this state to submit to a preliminary screening test of the person's breath ... if the officer has reasonable suspicion to believe the person has been operating ... a vehicle while under the influence of alcohol.”). “A ‘masking agent,’ despite having legitimate retail purposes, may also be used to conceal drugs and certainly may be considered in the reasonable suspicion calculus.” Moore, 283 Kan. at 358.
Here, the record shows that Deputy Froese knew the following facts before he asked Dauer to submit to a PBT: Dauer had committed a traffic violation in the late evening; he had bloodshot, droopy, and watery eyes; there were odors of cigarette smoke and alcohol; and Dauer had bottles of cold beer in the bed of his truck. These facts reveal that the deputy had more than a hunch that drunk driving was afoot. Therefore, Deputy Froese had reasonable suspicion to detain Dauer for a DUI investigation. See State v. Pollman, 286 Kan. 881, 894–97, 190 P.3d 234 (2008) (officer had reasonable suspicion of DUI to request PBT based on defendant's failure to follow directions, odor of alcohol, and drinking admission). See also State v. Edgar, 45 Kan.App.2d 340, 344–47, 246 P.3d 1103 (2011) (officer had reasonable suspicion of DUI to request PBT based on defendant's odor of alcohol and drinking admission), petition for review granted May 31, 2011.
The district court did not err in denying Dauer's motion to suppress the evidence obtained during the traffic stop.
Affirmed.