Opinion
No. 111, 618.
03-27-2015
STATE of Kansas, Appellee, v. David R. GREEN, Appellant.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant. Andrew R. Davidson, assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant.
Andrew R. Davidson, assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
David R. Green appeals the denial of his motion to suppress and his convictions for driving under the influence (DUI) pursuant to K.S.A.2014 Supp. 8–1567(a)(3), refusal to submit to a chemical test in violation of K.S.A.2014 Supp. 8–1025(a)(2), and refusal to take a preliminary breath test in violation of K.S.A.2014 Supp. 8–1012. On appeal, Green claims the officer lacked probable cause to stop his vehicle based on an informant's tip. We find the information from the informant was reasonably reliable, thus the officer had reasonable suspicion to stop Green. We affirm the district court's denial of Green's motion to suppress and his convictions.
Facts
On April 2, 2013, Deputy Darrin Morgan was dispatched to investigate an alleged drunk driver. An anonymous customer at Kwik Shop called 911 to report that his friend admitted he had been drinking and appeared to be very drunk.
The anonymous caller provided the following information:
• He was concerned for his friend's wellbeing since he was driving;
• The driver was David Green;
• Green was driving a white Chevy Silverado truck;
• The tag number on the truck was DXXXXC; and
• Green was inside the Kwik Shop.
When Deputy Morgan arrived at the Kwik Shop about 17 minutes after the anonymous tip was received, he observed a white Chevrolet truck turning into the Kwik Shop parking lot. Deputy Morgan also turned into the parking lot and observed the driver park his vehicle and go inside the store. Deputy Morgan then ran the vehicle's tag to confirm it was the vehicle reported by the anonymous caller. Deputy Morgan waited until the driver exited the store, returned to the vehicle, and turned on the engine before activating his lights and approaching the vehicle. When Deputy Morgan approached the vehicle, he noticed the smell of alcohol and the driver's bloodshot eyes. Deputy Morgan did not notice any indications of impairment as he watched the driver go into the Kwik Shop and come back out. Deputy Morgan identified Green as the driver as he processed the stop.
Green was ticketed for: (1) driving under the influence; (2) refusal to submit to a test to determine the presence of alcohol or drugs; and (3) refusal to submit to a preliminary breath or saliva test (PBT) for the presence of alcohol or drugs. The magistrate judge found Green guilty on all three counts and sentenced him. Green appealed to the district court requesting a jury trial.
Pending trial, Green filed a motion to suppress all evidence obtained as a result of the stop. Green argued Deputy Morgan lacked reasonable suspicion to stop his vehicle and failed to comply with the Kansas Implied Consent Law. Prior to the hearing, Green withdrew his implied consent challenge, leaving the sole question for determination by the district court at the suppression hearing whether Deputy Morgan had reasonable suspicion to stop Green's vehicle.
Green argued the anonymous tip was not reliable. Green claimed he was not in the Kwik Shop as reported, but rather, he was just pulling into the Kwik Shop parking lot when Deputy Morgan first observed him. In response, the State argued there was no evidence Green had not been at the Kwik Shop earlier, left, and came back.
The district court considered the reliability of the anonymous tip and stated that when dealing with anonymous tips, the “Supreme Court has indicated three factors are to be considered. One, the nature of the informant; two, the detail of the activities of the informant; and then the personal observations of the officer, whether they corroborate it.” The district court found the tip was reliable and Deputy Morgan had reasonable and articulable suspicion to initiate the stop. Green's motion to suppress was denied.
Following the denial of his motion to suppress, Green waived his right to a jury trial and proceed to a bench trial on stipulated facts. The stipulation of facts preserved Green's right to appeal the denial of his motion to suppress. The parties stipulated to the following facts:
“A. On April 2, 2013, defendant, David R. Green, was seen driving into the Kwik Shop parking lot in Nickerson, Reno County, Kansas, at 3:33 o'clock a.m.
“B. Deputy Morgan of the Reno County Sherriff's Department made contact with defendant and ultimately placed him under arrest for driving under the influence of alcohol. Prior to arrest defendant was subjected to a series of field sobriety tests which indicated he was too impaired to safely operate a motor vehicle.
“C. Additionally, the parties stipulate and agree at the time of the defendant's arrest he was impaired to the extent that he could not drive safely, as defined by Kansas statute and in violation of K.S.A. 8–1567(a)(3).”
The district court found Green guilty of all three counts and imposed his sentence. Green timely appealed.
Analysis
Did the district court err in denying Green's motion to suppress?
On appeal, Green argues the district court erred when it denied his motion to suppress because the anonymous tip received by dispatch was insufficient to provide Deputy Morgan reasonable suspicion to stop his vehicle.
When reviewing a district court's decision on a motion to suppress, the appellate court applies a bifurcated standard. The appellate court reviews the district court's factual findings to determine whether they are supported by substantial competent evidence. The ultimate legal conclusion is reviewed using a de novo standard. In reviewing the factual findings, the appellate court does not reweigh the evidence or assess the credibility of witnesses. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (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). When the material facts are not in dispute, the question of whether to suppress evidence is a question of law over which an appellate court has unlimited review. State v. Stevenson, 299 Kan. 53, 57, 321 P.3d 754 (2014). The State bears the burden of proof for a suppression motion. It must prove to the trial court the lawfulness of the search and seizure. Reiss, 299 Kan. at 296.
When the trial court has denied a motion to suppress, the moving party must object to the introduction of that evidence at the time it was offered at trial to preserve the issue for appeal. State v.. McCaslin, 291 Kan. 697, 726, 245 P.3d 1030 (2011). However, in a bench trial consisting solely of stipulated facts, the; lack of contemporaneous objection does not prevent review of the suppression issue. State v. Bogguess, 293 Kan. 743, 746–47, 268 P.3d 481 (2012). Here, both parties in the stipulation of facts and waiver of jury trial acknowledged Green was preserving his objection to the denial of his suppression motion. Thus, this issue has been properly preserved for appeal.
“The traffic stop of a vehicle by a law enforcement officer is a seizure under the Fourth Amendment to the United State[s] Constitution. State v. Hopper, 260 Kan. 66, 69, 917 P.2d 872 (1996). A law enforcement officer may stop any person in a public place based upon a specific and articulable facts raising a reasonable suspicion that such person has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). K.S.A 22–2402(1), the Kansas stop and frisk statute is a codification of the Fourth Amendment search and seizure principles expressed in Terry. ” State v. Slater, 267 Kan. 694, 696–97, 986 P.2d 1038 (1999).
Green contends the anonymous tip received by dispatch was insufficient when Deputy Morgan failed to corroborate the tip to support reasonable suspicion to stop Green. The United States Supreme Court defined the standard for reasonable suspicion in Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) :
“Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.... Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors—quantity and quality-are considered in the ‘totality of the circumstances—the whole picture,’ [citation omitted] that must be taken into account when evaluating whether there is reasonable suspicion.”
Our Supreme Court adopted the Alabama standard for reasonable suspicion in State v. DeMarco, 263 Kan. 727, 735, 952 P.2d 1276 (1998).
Now that we have defined reasonable suspicion, we must determine if the anonymous tip provided Deputy Morgan with reasonable suspicion given the totality of the circumstances. In Slater, our Supreme Court went on to clarify what was needed for corroboration to add credibility to an anonymous tip as follows:
“In Alabama v. White, the United States Supreme Court noted that an anonymous tip alone will seldom demonstrate the informant's basis of knowledge or veracity and, thus, is seldom sufficient, standing alone to provide a reasonable suspicion to make a stop. 496 U.S. at 329. However, where the anonymous tip is sufficiently corroborated, it may provide a basis for reasonable suspicion. 496 U.S. at 330. The Court stated: ‘Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.’ 496 U.S. at 330.” 267 Kan. at 699.
In addition, our Supreme Court has expanded its support of anonymous tips involving a danger to the public that is clear, urgent, and immediate, such as a drunk driver. The “determination of whether reasonable suspicion existed under the totality of circumstances is affected by the threat a possible drunk driver poses to public safety.”Slater, 267 Kan. at 699.
Based on a synthesis of cases, the Kansas Supreme Court in Slater designed three factors the court could focus on in determining whether a stop based on an anonymous tip is lawful: “(1) the type of tip or informant involved; (2) the detail given about the observed criminal activity; and (3) whether the police officer's personal observations corroborate the information supplied in the tip. [Citation omitted.]” 267 Kan. at 700.
Here, when Deputy Morgan approached Green's vehicle, he knew he was initiating the stop based on an anonymous tip. The anonymous caller stated that Green was at the Kwik Shop and gave a detailed description of his vehicle and its tag number. Deputy Morgan found Green's vehicle returning to the Kwik Shop and was able to verify the anonymous tip based on the vehicle description of type and color, along with the tag number. A truly anonymous tip is considered the least reliable type of tip; however, “even where the tip is truly anonymous and the veracity of the informant cannot be determined, courts have upheld traffic stops where the information given by the informant is detailed and corroborated by the officer's subsequent observation with regard to the details in the tip.” Slater, 267 Kan. at 702.
The second Slater factor is whether the detail given about the observed criminal activity gives enough detail to support a stop. “A tip is more reliable if it is apparent that the informant observed the details personally instead of simply relying on information from a third party.” Slater, 267 Kan. at 702. The anonymous caller stated Green had told him he had been drinking and he appeared very drunk. Thus, the anonymous caller had personally observed Green, thereby creating a more reliable tip.
The final factor is whether the police officer's personal observations corroborate the information supplied in the anonymous tip. “An officer may corroborate the tip by observing illegal activity or by finding the person and vehicle and the location as substantially described by the informant.” Slater, 267 Kan. at 702–03. Deputy Morgan personally observed a vehicle matching the anonymous tip's description turning into the Kwik Shop and was able to confirm the vehicle was the one referenced in the anonymous tip by running the vehicle's tag number. The fact the vehicle appears to have left and come back during the 17 minutes it took Deputy Morgan to arrive does not take away from the other facts Deputy Morgan was able to corroborate before initiating the stop.
Finally, we note the anonymous tip involved an impaired driver, and we look to Slater for its additional guidance on this point:
‘ “ “A motor vehicle in the hands of a drunken driver is an instrument of death. It is deadly, it threatens the safety of the public, and that threat must be eliminated as quickly as possible.” [Citation omitted.] ... ‘[A]n investigatory ... stop of a suspected drunken driver is a [comparatively] minimal intrusion upon that driver's freedom of movement or privacy.’ “ 267 Kan. at 699.
“While a tip which provides more specific details regarding the objective reasons for the conclusion that the suspect was intoxicated might rank higher on the reliability scale, the mere fact that the tip includes only the conclusory statement that the suspect was drunk would not necessarily foreclose the prospect of the tip's reliability, especially where other information contained in the tip is corroborated.” 267 Kan. at 705.
Conclusion
Thus, given our instruction from Slater and Deputy Morgan's corroboration of the anonymous tip, the anonymous tip was sufficiently reliable to provide Deputy Morgan with a reasonable suspicion of a criminal activity that posed a clear and immediate danger to the public. The district court did not err in denying Green's motion to suppress.
Affirmed.