Opinion
No. 106,137.
2012-07-27
STATE of Kansas, Appellee, v. Latisha M. LONG, Appellant.
Appeal from Harvey District Court; Joe Dickinson, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Russell A. Coleman, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Harvey District Court; Joe Dickinson, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Russell A. Coleman, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
LEBEN, J.
Latisha Long appeals her DUI conviction, which occurred after an unusual car stop. A Newton police officer saw a white, four-door Nissan pass by, followed by another vehicle whose driver was flashing his headlights and waving his arm out the window. When the officer stopped to talk to that driver, the man said that his wife was driving the Nissan and that she was too drunk to drive. The officer left to try to find the Nissan, but he lost sight of it. Another officer noted a white, four-door Nissan nearby, and the first officer located that vehicle again about 60 to 90 seconds after he had initially seen it. The officer stopped the car, beginning an encounter that resulted in Latisha's DUI charges.
Latisha rightly notes that an officer needs reasonable suspicion to believe a crime is being committed to stop a moving car, and she claims that the officer didn't have probable cause to stop her because he had lost contact with her car and even had briefly followed a different car before he realized it wasn't the white Nissan. But reasonable suspicion is a relatively lax standard, requiring only a minimum level of objective justification, something that is much less than the preponderance-of-the-evidence standard. State v. Moore, 283 Kan. 344, Syl. ¶ 8, 154 P.3d 1 (2007). We do not believe that the brief period of time in which the officer was out of contact with the white Nissan eliminated his reasonable suspicion that its driver was drunk.
Factual and Procedural Background
Shortly after midnight on March 15, 2010, Newton police officer Brian Rousseau saw two cars pass him from the opposite direction. The first was a white, four-door Nissan; the second car's driver was flashing his headlights and waving his arm out the window. Rousseau stopped to talk with the driver, a man he later learned was Charles Robert Long, Jr., Latisha's husband.
Charles told Rosseau that his wife was driving the first car and was too drunk to drive. Rosseau didn't stay at that time to ask for Charles' name or other information, but he recognized Charles from a traffic stop earlier that week. Rosseau immediately turned his car around and tried to locate the white Nissan.
Rosseau quickly caught up with a car going south on a nearby street but found that it was a dark-colored car. Rosseau then advised other officers of the car he was looking for. Another officer responded that he had seen a white Nissan nearby, and Rosseau headed toward that location. He spotted a white, four-door Nissan and stopped it. According to Rosseau, this took place about 60 to 90 seconds after he had initially been flagged down by Charles.
The parties stipulated that Latisha was driving the white Nissan and that she had registered a blood-alcohol level of .093—over the legal limit for driving—within 2 hours of the stop. Latisha's defense rested upon her motion to suppress evidence, which claimed that the car stop violated her constitutional rights.
In response to that motion, the State presented evidence in support of its claim that the stop was proper. Rosseau was the only witness. After that, Latisha's attorney made a single argument to the district court—that Rosseau didn't have reasonable suspicion to stop Latisha because he had lost sight of the white Nissan for a brief period of time:
“Your Honor, I guess the one thing that the officer didn't testify to was that it was the same vehicle. He didn't testify that the same vehicle he saw that [went] past him was the one that he stopped. He testified that he saw a white Nissan or a white four-door car. That does not give him the ability to drive around Newton and stop every ... white vehicle he sees, and that's what the stop was based on. If he had immediately gone after the car and had never lost sight of the car, I think then he would have had a justifiable stop, but clearly he lost sight of the car. Clearly other officers lost sight of the car.
“What happened was he goes after another vehicle altogether and then turns around and comes back and was told, well, we saw another white vehicle over here. That officer doesn't know whether it's the same vehicle. He just knows there's a white vehicle. And then they go and they follow it and they stop it. There was no traffic violation and there is no reasonable suspicion to believe that that white vehicle was the same white vehicle.”
The district court rejected this argument. The court noted that Rosseau had initially seen a white, four-door Nissan and that he had stopped a car matching that description within less than 90 seconds. The court also noted that this occurred at about 12:30 a.m. in the Newton business district and that there were “no other cars around” except for the dark-colored car Rosseau initially followed and the white Nissan he later stopped only “a very short couple of blocks [from] where the car was last seen.”
The parties proceeded to try the case to the judge based upon stipulated facts and the evidence heard on the suppression motion. The district court found Latisha guilty of a third-offense DUI. She appealed to this court.
Analysis
Latisha again argues on appeal that the officer didn't have legal cause to stop her car because he lost contact with her for a period of time. After providing a legal definition for reasonable suspicion, Latisha's argument in her appellate brief consisted of these four paragraphs:
“In this case, Officer Rousseau was notified that a person in a white four-door car was driving while intoxicated. Rousseau turned around and attempted to locate the vehicle,
“Rousseau must have necessarily lost sight of the car because he ended up following the wrong vehicle. After realizing that it was the wrong vehicle, Rousseau turned around and headed back toward Main Street.
“It was only after Rousseau chased the wrong vehicle, that he received a call from a fellow officer [informing him] that a white four-door car was spotted in the area. Rousseau drove to the location and caught up with this white four-door car.
“Rousseau testified that one and [a] half minutes transpired between the time that he was told about the drunk driver and stopping Ms. Long. In this situation, where the police officer lost sight of the vehicle, actually followed the wrong vehicle, and then was informed by another police officer that he saw a white four-door car in the vicinity, it does not amount to reasonable suspicion to pull Ms. Long over. This Court should vacate Ms. Long's conviction and suppress the fruits of the illegal stop.”
In sum, Latisha has pursued a single argument both in the district court and on appeal—that Rosseau didn't have reasonable suspicion to stop Latisha's car because he had briefly lost contact with it.
We review the district court's decision on a motion to suppress evidence in two steps. First, we review the district court's factual findings; to the extent they are supported by substantial evidence, we must accept them. Second, once the facts are determined, we review the ultimate legal conclusion—here, whether there was reasonable suspicion to stop Latisha's car—independently, without any required deference to the district court. See State v.. Bogguess, 293 Kan. 743, 752, 268 P.3d 481 (2012).
The facts we recited in the first section of this opinion all are supported by substantial evidence. This includes the district court's conclusion that Rosseau stopped Latisha within 90 seconds of having first seen her car, that the stop occurred at around 12:30 a.m. in the Newton business district, and that there were “no other cars around” except for the dark-colored car Rosseau briefly followed.
With these facts in mind, we must determine whether Rosseau had reasonable suspicion to stop Latisha's car. A traffic stop is considered a seizure for purposes of the Fourth Amendment to the United States Constitution, and an officer generally must have reasonable suspicion based on articulable facts that a crime has been, is being, or is about to be committed to stop the car. See Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 636, 176 P.3d 938 (2008). Reasonable suspicion under the Fourth Amendment requires a minimal level of objective justification, which is something more than a hunch of criminal activity. See State v. Johnson, 293 Kan. 1, 6, 259 P.3d 719 (2011) (citing Illinois v. Wardlow, 528 U.S. 119, 123–24, 120 S.Ct. 673, 145 L.Ed.2d 570 [2000] ).
Latisha's attorney conceded in the district court that had Rosseau “immediately gone after the car and never lost sight” of it, then it would have been a “justifiable stop.” Latisha argues, however, that when the officer lost contact with the car, he lost the reasonable suspicion needed to lawfully stop a moving car. We disagree.
None of the information the officer already knew before he lost contact with her car had changed—a man who said he was Latisha's husband had been trying to stop her from driving and had flagged down the officer to report that Latisha was driving drunk. Other than police cars, there were very few cars in downtown Newton after midnight that night, and Rosseau regained contact with what appeared to be the same car in less than 90 seconds. He still had objective facts suggesting that Latisha was driving drunk, and he had objective facts suggesting that the second white Nissan he spotted was the same one he had seen shortly before.
When considering whether Rosseau had reasonable suspicion to stop Latisha's car in this case, it's appropriate to consider that the officer had to make a quick decision in which the potential danger to the public was urgent and immediate. See State v. Slater, 267 Kan. 694, Syl. ¶ 6, 986 P.2d 1038 (1999); State v. Tucker, 19 Kan.App.2d 920, 927, 878 P.2d 855,rev. denied 255 Kan. 1007 (1994). We find no fault with Rosseau's stop of Latisha based on the brief time period that Rosseau lost sight of her car, and that is the only argument Latisha has made in this case that the stop was improper.
The district court's judgment is affirmed.