Opinion
No. 105,464.
2012-09-28
STATE of Kansas, Appellee, v. Michael Allen LaRUE, Appellant.
Appeal from Ellis District Court; Thomas L. Toepfer, judge. Caleb Boone, of Hays, for appellant. Glenn R. Braun and Carol M. Park, special prosecutors, of Hays, and Derek Schmidt, attorney general, for appellee.
Appeal from Ellis District Court; Thomas L. Toepfer, judge.
Caleb Boone, of Hays, for appellant. Glenn R. Braun and Carol M. Park, special prosecutors, of Hays, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
An Ellis County District Court jury convicted Defendant Michael Allen LaRue of three misdemeanors—driving under the influence, in violation of K.S.A.2008 Supp. 8–1567; obstruction of official duty, in violation of K.S.A. 21–3808(a); and battery of a law enforcement officer, in violation of K.S.A. 21–3413—arising from a confrontation he had with a Hays police officer in the driveway of his home. The State failed to prove the elements of the obstruction offense; so notwithstanding the jury verdict, we reverse that conviction and enter a judgment of acquittal. Finding no other errors in the proceedings in the district court, we affirm LaRue's convictions for DUI and battery of a law enforcement officer.
On January 21, 2009, Hays Police Officer Joshua Burkholder made several trips to LaRue's home to serve him with notice regarding the City's intention to remove a dilapidated outbuilding from his property if he did not take it down himself within 30 days. Burkholder did not find LaRue there and had not served the abatement notice. Just after 10 p.m., as his shift was ending, Burkholder made a final trip to LaRue's house. He did not have the notice with him at that time. Upon arriving, Burkholder saw a pickup truck in the driveway with the engine running and the brake lights on. Burkholder checked the tag on the truck and confirmed the vehicle was registered to LaRue. He then walked up the driveway toward the truck and saw a single occupant sitting in the driver's seat. But Burkholder could not identify the individual because of the truck's tinted windows.
Burkholder saw the backup lights on the truck come on, indicating the driver was shifting gears. Burkholder approached the driver's side door and indicated the occupant should roll down the window. The driver did so and, in response to Burkholder's question, identified himself as LaRue. Burkholder intended to call the police department and have his supervisor or another officer deliver the notice so he could serve LaRue. But when LaRue rolled down the window, Burkholder smelled a strong odor of alcohol coming from inside the cab. Burkholder continued to speak with LaRue as he waited for backup officers to arrive. LaRue displayed common characteristics of someone who had been drinking to the point of intoxication—slurred and mumbled speech and bloodshot, watery eyes. Without explanation or apparent purpose, LaRue repeated the phrase “January 28” several times, suggesting to Burkholder disorganized thinking indicative of excessive consumption of alcohol. Because LaRue is very large, Burkholder planned to wait for additional officers before making an arrest for DUI.
But LaRue got out of his truck and headed toward his front door. Burkholder told him to stop because he was under arrest for driving under the influence. LaRue attempted to push past Burkholder. Burkholder tried to restrain LaRue and ultimately knocked LaRue's legs out from under him. While on the ground, LaRue refused to comply with Burkholder's commands that he lie on his stomach and put his hands behind his back. LaRue kicked Burkholder in his right thigh. Burkholder then deployed his Taser in an effort to temporarily debilitate LaRue. A second officer arrived about that time. But LaRue continued to defy their commands and ignored Burkholder's warning that he would again use the Taser. Burkholder did so. The officers then got LaRue handcuffed and into a patrol car. In the car, LaRue began kicking and thrashing, so the officers applied leg restraints to him.
LaRue was taken to the law enforcement center where he was informed of his rights and obligations under the statutes governing implied consent to blood-alcohol testing. LaRue refused to perform any field sobriety tests or to provide an evidentiary breath sample for testing.
Before trial, LaRue filed a motion to suppress evidence on the grounds Burkholder violated his constitutional right to be free of unreasonable searches and seizures as provided in the Fourth Amendment to the United States Constitution. The district court denied the motion and set the case for trial. The jurors heard evidence in the case on August 17, 2010, and convicted LaRue of each of the three charges submitted to them. The district court sentenced LaRue in due course to fines and jail time but placed him on probation after he served a mandatory 48 hours in custody on the DUI conviction. LaRue has timely appealed.
On appeal, LaRue argues the district court erred in denying the motion to suppress and the evidence was insufficient to support the convictions for battery of a law enforcement officer and for obstruction of official duty. He does not challenge the sufficiency of the evidence for the DUI conviction. We take the points raised in that order.
In reviewing a district judge's ruling on a motion to suppress, an appellate court applies a bifurcated standard. The appellate court accepts the factual findings of the district judge if they are supported by competent evidence having some substance. The appellate court exercises plenary review over legal conclusions based upon those findings, including the ultimate ruling on the motion. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007); see State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). The prosecution bears the burden of proving a search or seizure to be constitutional by a preponderance of the evidence. State v. Pollman, 286 Kan. 881, 886, 190 P.3d 234 (2008) (allocation of burden; quantum of evidence); Thompson, 284 Kan. at 772 (allocation of burden).
LaRue contends Burkholder violated the Fourth Amendment when he walked up the driveway to his house and approached his truck because Burkholder did not have the abatement notice and, therefore, had no lawful reason to enter the property. By its express language, the Fourth Amendment guarantees “[t]he right of the people to be secure in their persons [and] houses ... against unreasonable searches and seizures.” To remedy a Fourth Amendment violation, a court may prohibit the State from offering evidence obtained as the result of an improper search or seizure in a criminal prosecution. United States v. Leon, 468 U.S. 897, 908–09, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (“The Court has, to be sure, not seriously questioned, ‘in the absence of a more efficacious sanction, the continued application of the rule to suppress evidence from the [prosecution's] case where a Fourth Amendment violation has been substantial and deliberate.’ “; Mapp v. Ohio, 367 U.S. 643, 654–55, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (In holding the exclusionary rule should apply to state and local government agents, the Court recognizes that without the rule, the protections of the Fourth Amendment would be reduced to “ ‘a form of words,’ valueless and undeserving of a place in the Constitution.
For Fourth Amendment purposes, the courts have identified four common types of police-citizen encounters: voluntary or consensual contacts, investigative detentions, public safety stops, and arrests. Thompson, 284 Kan. at 772. A voluntary or consensual contact does not implicate the Fourth Amendment because a person who voluntarily interacts with law enforcement officers has not been seized and may terminate the encounter at any time. State v. Tatum, 40 Kan.App.2d 846, 852, 196 P.3d 441 (2008). Without any suspicion of criminal activity, a law enforcement officer may approach a residence using a route generally available to members of the public, knock on the door, and speak with any occupant who answers the door. State v. Fisher, 283 Kan. 272, 296, 154 P.3d 455 (2007). That sort of encounter, commonly known as a “knock-and-talk,” is considered consensual or voluntary and, therefore, does not implicate the Fourth Amendment. Tatum, 40 Kan.App.2d at 852; see United States v. Parker, 594 F.3d 1243, 1244 n. 1 (10th Cir.2010). More generally, government agents may approach a house using a route a private party might, such as an ungated front walkway, without violating the Fourth Amendment. See United States v. Galaviz, 645 F.3d 347, 355–56 (6th Cir.2011); Nikolas v. City of Omaha, 605 F.3d 539, 545–46 (8th Cir.2010) (cases cited). An officer likewise may approach a stopped vehicle without implicating the occupant's Fourth Amendment rights. See State v. Morris, 276 Kan. 11, 19–20, 72 P.3d 570 (2003); State v. Reason, 263 Kan. 405, 412, 951 P.2d 538 (1997), overruled on other grounds by State v. Berreth, 294 Kan. 98, 273 P.3d 752 (2012) (characterizing officers' approach to a parked vehicle as a voluntary encounter).
The crux of LaRue's argument rests on the notion that Burkholder had to have a legitimate, articulable law enforcement purpose to walk up the driveway to the truck to satisfy the requirements of the Fourth Amendment. But, as the caselaw demonstrates, that is a false notion. And it undercuts his claimed error in the district court's ruling on his motion to suppress. Even if the law were as LaRue contends (though it plainly is not), Burkholder had a good reason for approaching the truck. He had determined that the truck was registered to LaRue and someone—quite possibly LaRue—was in it. Burkholder properly could have come up the driveway, a minor intrusion, to see if LaRue were, in fact, the driver and, if so, to ask if he would accept the abatement notice, which could have been delivered in short order.
Burkholder, therefore, did not violate the Fourth Amendment in approaching the truck. The district court correctly denied LaRue's motion to suppress. Accordingly, the evidence arising from the encounter between Burkholder and LaRue was properly admitted at trial. Because LaRue does not otherwise challenge the DUI conviction, we affirm that verdict and the resulting judgment.
LaRue challenges the sufficiency of the evidence supporting the convictions for battery of a law enforcement officer and obstruction of official duty. In reviewing a sufficiency challenge, an appellate court construes the evidence in a light most favorable to the party prevailing below, here the State, and in support of the jury's verdict. An appellate court will neither reweigh the evidence generally nor make credibility determinations specifically. State v. Trautloff, 289 Kan. 793, 800, 217 P.3d 15 (2009); State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006). The issue for review is simply whether rational jurors could have found the defendant guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
LaRue argues that the battery conviction was deficient because Burkholder sought to serve the abatement notice without having a copy in hand. But that misconstrues both the offense and the facts. Battery of a law enforcement officer is defined as battery against “[a] uniformed or properly identified state, county, or city law enforcement officer ... while such officer is engaged in the performance of such officer's duty.” K.S.A. 21–3413(a)(l)(B). As charged here, the battery entailed LaRue's “intentionally causing physical contact with another person [Burkholder] when done in a rude, insulting or angry manner.” K.S.A. 21–3412(a)(2). Burkholder's testimony that LaRue kicked him in the thigh satisfied the element requiring a rude or angry touching. LaRue tacitly agrees Burkholder was uniformed or otherwise properly identified to him as a law enforcement officer.
The remaining element under K.S.A. 21–3413(a)(l)(B) required that Burkholder be performing law enforcement duties at the time of the unlawful contact. By the time LaRue kicked Burkholder, their encounter had evolved from the simple service of the abatement notice into a combative DUI arrest. Burkholder plainly was performing a law enforcement duty in attempting to take LaRue into custody for DUI. Evidence supported each of the elements of the offense.
Although legally beside the point, the evidence well established Burkholder had probable cause to arrest LaRue. The Kansas Supreme Court recently reiterated the standard in the context of DUI-related proceedings: “Probable cause exists where the officer's knowledge of the surrounding facts and circumstances creates a reasonable belief that the defendant committed a specific crime.” Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 515, 242 P.3d 1179 (2010).
Burkholder had plenty of evidence that LaRue was operating or attempting to operate the truck. Either is sufficient to support a DUI conviction. See K.S.A.2008 Supp. 8–1567(a). LaRue was sitting behind the wheel of the truck with the engine running and the brake lights on, indicating the truck had been recently moved or was about to be moved. He was neither passed out nor asleep at the wheel. That provides probable cause to conclude LaRue, at the very least, attempted to operate the truck. See State v. Kendall, 274 Kan. 1003, 1011, 58 P.3d 660 (2002) (conviction of attempted DUI properly based on evidence defendant was sitting in a truck with its engine running in the middle of a street; no movement of the vehicle required to prove an attempt); State v. Adame, 45 Kan.App.2d 1124, 1129, 257 P.3d 1266,rev. denied 293 Kan. –––– (October 24, 2011) (sitting in driver's seat and trying to start vehicle sufficient to establish attempt under DUI statute).
A driver may be found guilty of DUI if his or her blood-alcohol level is .08 or more. K.S.A.2008 Supp. 8–1567(a)(l), (2). If the driver exceeds that level, his or her ability to operate a motor vehicle need not be degraded to any appreciable extent. In that respect, DUI is a status offense once the .08 threshold has been crossed. That is, the driver is legally deemed to be impaired if his or her blood-alcohol level is .08 or more. In turn, an officer need only have probable cause to believe a driver meets that measure of impairment to support an arrest. Here, LaRue's appearance coupled with the strong odor of alcohol in the truck cab furnished a legally adequate basis for Burkholder to conclude LaRue's blood-alcohol level could well exceed .08.
In short, Burkholder had probable cause to arrest LaRue for DUI. He, therefore, was plainly performing law enforcement duties when LaRue struck him. The jury's verdict of guilty on the charge of battery of a law enforcement officer is sufficiently supported in the trial evidence. The conviction is affirmed.
The conviction for obstruction, however, is another matter. The offense of obstruction of official duty is statutorily defined as:
“Obstructing legal process or official duty is knowingly and intentionally obstructing, resisting or opposing any person authorized by law to serve process in the service or execution or in the attempt to serve or execute any writ, warrant, process or order of a court, or in the discharge of any official duty.” K.S.A. 21–3808(a).
As the State charged the offense and as the jury was instructed, LaRue obstructed Burkholder's service of the abatement notice. But even taking the evidence in the light most favorable to the State, the jury's verdict cannot be upheld. Burkholder did not have the notice with him and, therefore, could not have been serving or attempting to serve LaRue with it. As we indicated, Burkholder was endeavoring to find and identify LaRue to determine if he would accept the notice once another officer delivered it. But those efforts must be considered preliminary to an actual attempt to serve the notice. LaRue persuasively argues Burkholder could not have been serving or attempting to serve documents he did not have in his possession. Once Burkholder received the notice, he did not attempt to serve LaRue at the house. By then, LaRue had already become belligerent and wholly uncooperative. Burkholder served LaRue with the notice, along with paperwork related to the DUI, at the law enforcement center. Nothing in the record suggests LaRue resisted or obstructed that service.
The evidence establishes LaRue resisted the efforts to arrest him for DUI. But that was not the basis for the obstruction offense, as the State charged the crime. The State may craft criminal charges as it chooses within the confines of the statutory elements of an offense. Having done so, the State is bound to prove what it has charged. Here, the State did not. The evidence fails to establish that LaRue obstructed Burkholder in serving the abatement notice.
When a conviction rests on insufficient evidence, the Kansas courts have consistently recognized the proper remedy requires entry of a judgment of acquittal. See State v. Scott, 285 Kan. 366, Syl. ¶ 2, 171 P.3d 639 (2007); State v. Hollins, 9 Kan.App.2d 487, 489–90, 681 P.2d 687 (1984). The United States Supreme Court has pointed out that a constitutional double jeopardy bar would preclude a retrial when a conviction has been reversed for insufficient evidence. United States v. Burks, 437 U.S. 1, 11, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). We, therefore, reverse LaRue's conviction for obstruction of official duty and enter a judgment of acquittal on that charge.
The judgment is affirmed in part and reversed in part.