Opinion
No. 110,873.
2015-03-15
STATE of Kansas, Appellee, v. David Michael HAGAN, Appellant.
Appeal from Ellis District Court; Edward E. Bouker, Judge.Michael S. Holland II, of Holland and Holland, of Russell, for appellant.Carol M. Park, special prosecutor, of Glassman, Bird, Schwartz & Park, L.L.P., of Hays, and Derek Schmidt, attorney general, for appellee.
Appeal from Ellis District Court; Edward E. Bouker, Judge.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant. Carol M. Park, special prosecutor, of Glassman, Bird, Schwartz & Park, L.L.P., of Hays, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., GREEN, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
David Michael Hagan was charged with driving under the influence of alcohol (DUI), a class B misdemeanor. Hagan filed a pretrial motion to suppress to evidence, which the district court denied after an evidentiary hearing and argument by counsel. The parties submitted the matter to the district court for a bench trial based on stipulated facts. The district court found Hagan guilty and imposed a sentence of 90 days in jail and ordered that he serve 6 months' probation after serving 48 hours in jail and pay a $750 fine. Hagan appeals the district court's denial of his motion to suppress, arguing that law enforcement lacked probable cause to arrest him. We affirm.
Factual and Procedural Background
On June 16, 2012, Sergeant Tim Greenwood of the Hays Police Department was on duty in his patrol vehicle. Greenwood was driving northbound on Vine Street when he came to a red light at the intersection of Vine and 22nd Streets. As he was pulling to a stop, Greenwood observed a black limousine party bus sputtering across the intersection as it attempted to make a left turn to head southbound on Vine Street. The party bus was apparently struggling to get through the intersection. Greenwood also observed Hagan, who was operating a motorcycle and following close behind the bus. Hagan braked multiple times to avoid running into the back of the party bus.
The party bus was a long vehicle, so it completed its left turn in the outside lane of traffic. Hagan “hit the throttle” on his motorcycle, veered to the left of the party bus, passed it via the inside lane, and then drove back in front of the party bus, cutting it off. Hagan then “hammered” southbound on Vine Street. The posted speed limit on Vine Street is 35 miles per hour. Greenwood visually estimated that Hagan was driving between 50–55 miles per hour but could not use the radar detection device in his patrol vehicle because of his location relative to Hagan.
Greenwood activated his overhead lights and siren, entering the intersection and driving south on Vine Street. Greenwood had to “rush” to catch up to Hagan. Hagan did not immediately respond to Greenwood's emergency equipment. Instead Hagan continued to drive for about 5 blocks before abruptly stopping in the roadway. The traffic stop commenced at about 11:40 p.m. on a Saturday night.
Greenwood walked up to Hagan as he sat on his motorcycle. As Greenwood spoke with Hagan and explained the reason for the stop, he observed that Hagan “had an odor of alcohol about him” and also had bloodshot, watery eyes. Greenwood noted that Hagan's speech was “fair.” Greenwood later testified that when Hagan spoke, he could tell that he was impaired. Greenwood asked Hagan if he had been drinking, and Hagan responded that he had had a few beers earlier. Greenwood then asked Hagan to step off of his motorcycle in order to perform some field sobriety tests. Hagan agreed, and the two men moved to a level sidewalk.
Greenwood first administered the walk-and-turn test. Hagan exhibited one clue of impairment out of a possible eight. Greenwood next administered the one-legged-stand test. Hagan exhibited one clue of impairment out of a possible four. Greenwood testified that two or more clues of impairment indicate a greater probability that the individual taking the field sobriety test is impaired. He rejected the assertion that the exhibition of only one clue indicates that the test-taker is not impaired.
Finally, Greenwood asked Hagan to submit to a preliminary breath test (PBT). After receiving the standard oral notice, Hagan agreed. Greenwood testified that he. waited the mandated 15–minute deprivation period before administering the PBT. Greenwood noted in his report the time he began the deprivation period but did not note the time at which the period ended. The result of Hagan's PBT was .114—above the legal limit. Greenwood wrote Hagan a ticket for exhibition of speed and placed him under arrest for DUI.
On May 2, 2013, the State charged Hagan with DUI, a class B nonperson misdemeanor, and exhibition of speed, a traffic infraction. On July 3, 2013, Hagan filed a motion to suppress evidence. He argued that “[a]bsent the illegally and improperly obtained preliminary breath test results the officer lacked probable cause to arrest [him] for driving under the influence of alcohol.”
On September 13, 2013, the district court conducted an evidentiary hearing on Hagan's motion to suppress. The State called Greenwood as its sole witness. Hagan argued not only that the PBT was unconstitutional, but that the State had failed to prove that Greenwood properly observed the 15–minute deprivation period before administering the test. Hagan seemingly dismissed Greenwood's testimony that Hagan had bloodshot, watery eyes, and an odor of alcohol about him and his admission that he had consumed alcohol as evidence of impairment. Hagan claimed that the only “objective” pieces of evidence were his performances of the two field sobriety tests administered by Greenwood. He concluded, “It is logically impossible for the court to disregard that objective evidence presented by the city or by the State here and determine there was probable cause because in order to do, so [ sic ] you would have to ignore the only objective evidence that exists.”
The State disagreed with Hagan's characterization that the exhibition of only one clue of impairment on each of the two field sobriety tests meant that he was not impaired. Based on all of the other factors cited by Greenwood, the State contended that a consideration of the totality of the circumstances showed there was sufficient probable cause to arrest Hagan for DUI.
After taking a recess to review relevant caselaw, including Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 290 P.3d 555 (2012), and Campbell v. Kansas Dept. of Revenue, 25 Kan.App.2d 430, 962 P.2d 1150, rev. denied 266 Kan. 1107 (1998), the district court announced its ruling. It first noted Greenwood's testimony that Hagan was following the party bus too closely and that Hagan swerved into the inside lane, passed the bus, and then cut off the bus. Greenwood said he did this at a high rate of speed—somewhere between 50–55 miles per hour in a 30 miles per hour zone. The district court further observed that Hagan drove 5 blocks before responding to Greenwood's emergency equipment and that Greenwood detected an odor of alcohol on Hagan's person, as well as bloodshot eyes. Finally, Hagan admitted drinking, although there was no evidence indicating how much or when.
The district court agreed with Hagan that the field sobriety tests require a certain number of clues of impairment before there is an indication of intoxication but rejected any contention that “the fact [Hagan] passed them is definitive on whether or not the officer had probable cause.” It stated that the tests were just one factor that it must take into consideration. The district judge also clarified that he would not be considering Hagan's “fair” speech abilities at the time of the traffic stop as a sign of impairment, because “I don't think that's been established well enough that I can say one way or the other what that means.” The district court admitted this was a close case but ultimately found that Greenwood had probable cause to believe that Hagan had committed the offense of DUI. It explicitly stated that it did not consider the PBT result in arriving at this decision.
On October 31, 2013, Hagan filed a stipulation of fact and waiver of jury trial. The parties agreed to the stipulated facts therein and asked the district court to determine Hagan's guilt or innocence in a bench trial. Hagan preserved his objection to any portion of the stipulated facts which would have been suppressed had his motion to suppress been granted. The parties' stipulation of fact read as follows:
“A. On June 16, 2012, at 12:39 o'clock p.m., Hays Police Officer Tim Greenwood stopped the motorcycle defendant, David M. Hagan, was driving for an alleged violation.
“B. Officer Greenwood has previously testified in regard to the facts and circumstances which he believes led to the traffic stop, the parties stipulate and agree, the Court may consider and refer to said motion to suppress transcript previously conducted on September 13, 2013, or additionally, the Court may listen to any tape recording made of the motion to suppress hearing, if necessary.
“C. Defendant cannot stipulate to the specific facts and circumstances as the facts and circumstances, and what led to the stop of defendant's motorcycle are the primary subject to defendant's motion to suppress.
“D. The parties will stipulate and agree that Officer Greenwood testified that he estimated the speed of defendant's motorcycle to be between 50 and 55 mph in a 35 mph speed zone but that he did not clock defendant's motorcycle on radar.
“E. After stopping defendant's motorcycle Officer Greenwood began a DUI investigation and ultimately arrested defendant for driving under the influence of alcohol. Defendant was transported to the Law Enforcement Center where he was provided with his Implied Consent Advisories and Notices, both in oral and written form, and requested to submit to an Intoxilyzer 8000 breath test.
“F. The Intoxilyzer 8000 breath test was administered at 12:28 o'clock a.m. on June 16, 2012, and indicated a breath alcohol level of 0.108 grams of alcohol per 210 liters of breath.
“G. The parties stipulate and agree that the breath test occurred within 3 hours of the last time defendant operated a motor vehicle and that the test result was above the legal limit of 0.08 grams of alcohol per 210 liters of breath.
“H. The parties additionally stipulate and agree that all of the above events occurred in the City of Hays, Ellis County, Kansas, on June 16, 2012, carrying over on to June 17, 2012.”
Based on the parties' stipulation of fact, the district court found Hagan guilty of DUI. The district court sentenced Hagan to 90 days in jail but ordered that he be placed on probation for 6 months after serving 48 consecutive hours. Hagan was also ordered to pay a fine of $750.
Hagan timely appeals.
Analysis
Did the district court err in denying Hagan's motion to suppress?
Hagan's sole argument on appeal is that the district court erred in denying his motion to suppress evidence. He contends that the district court incorrectly determined that Greenwood had probable cause to arrest him. The State disagrees, asserting that the district court relied upon “the many indicators of impairment” that existed in finding that Greenwood possessed sufficient probable cause to arrest Hagan for DUI.
The standard of review of a district court's decision on a motion to suppress 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).
When, as here, the material facts relied on by a trial court in making its decision on a motion to suppress evidence are not in dispute, the question of whether to suppress 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).
Hagan contends that under the totality of the circumstances, Greenwood “lacked objective facts and circumstances sufficient to establish probable cause to believe that” he was committing the crime of DUI. Hagan admits that his driving prior to the traffic stop may have been overly aggressive but denies that it indicated impairment. He gives no weight to Greenwood's testimony regarding his bloodshot, watery eyes, and the odor of alcohol on his person, pointing to Greenwood's testimony that these are indications of alcohol consumption, not impairment. Finally, Hagan focuses on his performance of both field sobriety tests—which he argues are the only objective items of evidence relating to the issue of impairment. He argues that he “passed” these tests, thus supporting the conclusion that he was not impaired to the extent that he could not safely operate a motor vehicle at the time of the traffic stop.
The State responds that under the facts of this case, the district court's denial of Hagan's motion to suppress should be affirmed. It relies on the following evidence elicited in Greenwood's testimony: Hagan was following the party bus too closely; he swerved into the inside lane to pass the party bus before swerving back to cut it off; he was traveling at a high rate of speed—between 50–55 miles per hour in a 35 miles per hour zone; it took 5 blocks for Hagan to respond to Greenwood's emergency equipment; Greenwood detected an odor of alcohol on Hagan's person and observed that his eyes were bloodshot and watery; and Hagan admitted having had a few beers. The State acknowledges that Hagan's performance of the field sobriety tests is a factor to be considered but argues that Hagan's good performance on the tests is not definitive as to whether probable cause existed.
In Sloop, our Supreme Court clarified the probable cause standard applicable in this case:
“To be lawful, a warrantless arrest must be supported by probable cause. See K.S.A. 22–2401(c); State v. Ramirez, 278 Kan. 402, 405, 100 P.3d 94 (2004). We have defined probable cause as follows:
“ ‘Probable cause is the reasonable belief that a specific crime has been or is being committed and that the defendant committed the crime. State v. Abbott, 277 Kan. 161, 164, 83 P.3d 794 (2004). Existence of probable cause must be determined by consideration of the information and fair inferences therefrom, known to the officer at the time of the arrest. Bruch [ v. Kansas Dept. of Revenue ], 282 Kan. [764,] 775–76[, 148 P.3d 538 (2006) ]. Probable cause is determined by evaluating the totality of the circumstances. State v. Hill, 281 Kan. 136, 146, 130 P.3d 1 (2006). As in other totality of the circumstances tests, there is no rigid application of factors and courts should not merely count the facts or factors that support one side of the determination or the other. State v. McGinnis, 290 Kan. 547, 552–53, 233 P.3d 246 (2010); see Smith [ v. Kansas Dept. of Revenue ], 291 Kan. [510,] 515[, 242 P.3d 1179 (2010) ] (holding that the defendant's list of facts did not negate the other factors presented).’ Allen v. Kansas Dept. of Revenue, 292 Kan. 653, 656–57, 256 P.3d 845 (2011).'
“We have attempted to further explain probable cause by placing its required quantum of proof lower on the evidentiary ladder than the amount of proof needed for a criminal conviction and lower than the amount needed for a civil judgment.” Sloop, 296 Kan. at 20.
The facts in this case are remarkably similar to those in Campbell. Campbell was approached by the arresting officer after being observed driving his vehicle 72 miles per hour in a 55 miles per hour zone at approximately 1:10 a.m. Upon approaching Campbell, the officer could smell liquor on his breath, and Campbell admitted having had a few drinks. His eyes appeared glazed and bloodshot. Upon appeal of his conviction for DUI, Campbell argued that the arresting officer lacked probable cause to believe he had been driving under the influence based on these factors. This court disagreed, finding that the arresting officer's observations were more than sufficient to satisfy a reasonably prudent police officer that Campbell had been driving under the influence. It determined that the district court did not err in holding that the arresting officer had probable cause to arrest Campbell. 25 Kan.App.2d at 431–32.
Like Campbell, Hagan was observed driving well over the speed limit late at night. Upon making contact with Hagan, Greenwood detected the odor of alcohol on his person. Hagan admitted having had a few beers, and his eyes were bloodshot and watery. Contrary to Hagan's argument that these are mere signs of alcohol consumption and not impairment, this court in Campbell found that these same factors were sufficient to establish probable cause to arrest an individual for DUI. Additionally, it took Hagan 5 blocks to respond to Greenwood's emergency equipment, and Greenwood observed Hagan driving aggressively. The fact that Hagan only displayed one clue of impairment while performing each of the two field sobriety tests administered by Greenwood does not negate all of the other factors presented.
Greenwood's observations were more than sufficient to satisfy a reasonably prudent police officer that Hagan had been driving under the influence. Greenwood had probable cause to arrest Hagan prior to administering the PBT.
Affirmed.