Opinion
No. 112051.
05-08-2015
STATE of Kansas, Appellant, v. Michael A. QUINN, Appellee.
Brett Richman, Assistant District Attorney, Jerome A. Gorman, District Attorney, and Derek Schmidt, Attorney General, for appellant. John M. Duma and Michael C. Duma, of Duma Law Offices, LLC, of Olathe, for appellee.
Brett Richman, Assistant District Attorney, Jerome A. Gorman, District Attorney, and Derek Schmidt, Attorney General, for appellant.
John M. Duma and Michael C. Duma, of Duma Law Offices, LLC, of Olathe, for appellee.
Before ARNOLD–BURGER, P.J., PIERRON and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
The State of Kansas appeals an order of the Wyandotte County District Court suppressing the incriminating results of a blood-alcohol test performed on Michael A. Quinn who was later charged with driving under the influence of alcohol (DUI). We affirm the suppression order.
Factual and Procedural Background
The State filed a complaint alleging that on July 27, 2013, Quinn had operated a vehicle “while the alcohol concentration in the defendant's blood or breath, at the time or within three (3) hours after the defendant operated or attempted to operate the vehicle, was .08 or more, in violation of K.S.A. 8–1567.” In a supporting affidavit, Officer Kenneth Garrett, of the Kansas City Kansas Police Department (KCKPD), swore that about 10:37 p.m. on July 27, 2013, Quinn was driving a fire department vehicle “when he lost control and struck the curb, and multiple parked vehicles.” Quinn was then taken to the University of Kansas Medical Center (KU Medical Center) by emergency services.
Officer Garrett stated:
“[Officer] Rios with the Kansas City Kansas Police Department ... responded to KU Medical Center to question Quinn. Quinn stated he was at the Kansas City T–Bones games doing the flag ceremony for the Fire Department and prior to leaving spent time talking to co-workers in the parking lot. When asked if had gone anywhere or consumed alcohol before or after the event, he responded, ‘I would rather not say.’ He stated he was driving around 45 mph and a deer ran out in front of him.”
However, according to Officer Garrett:
“Witness Wanda Green stated she was travelling south on 55th street and was in front of Quinn's vehicle when she noticed the vehicle approaching at what appeared to be a high rate of speed in her rearview mirror. She stated the vehicle swerved all over the road and eventually spun out of control striking a parked truck.”
After the accident, a search warrant was executed and the control module located within the vehicle Quinn was driving was seized. The module showed Quinn was driving 78 miles per hour at the time of the airbag deployment with no indication of braking. Officer Garrett noted that the Kansas Highway Patrol (KHP) assisted in the investigation. In particular, Trooper Ricky Dilks obtained a blood sample from Quinn while he was in the hospital at 1:14 a.m. The result of the test was .09.
On April 24, 2014, Quinn filed a motion to suppress the results of the bloodalcohol test. Quinn argued the search was not supported by probable cause and that under the recent case of State v. Declerck, 49 Kan.App.2d 908, 317 P.3d 794, rev. denied 299 Kan. –––– (June 20, 2014), “the fact that someone is severely injured or killed in an automobile accident is not enough without separate probable cause to arrest someone for DUI to allow an implied consent blood draw.”
A hearing on Quinn's motion to suppress was held on June 24, 2014. Curtis Nicholson (a captain in the KCKPD and the commander of its traffic unit), Officer Garrett, and Trooper Dilks testified.
Captain Nicholson testified that he lives near the accident scene and “heard ... continual sirens for 5 or 10 minutes.” After being contacted by the dispatcher, he went to the scene. Captain Nicholson testified he was probably the first law enforcement officer to arrive. At the scene, the captain found “multiple fire trucks all up along [and] down both lanes of 55th Street.” Quinn was already gone, and the captain did not know his whereabouts. Captain Nicholson said a decision was made to turn the accident investigation over to the KHP:
“My boss, Major Henry Horn, and I discussed that because it was a Unified Government employee that we should consider having an outside agency investigate it rather than ... us. A lot of us know fire department employees, including Mr. Quinn, and we thought rather than give any appearance of impropriety, we'd have some outside investigative function [sic ] look into it rather than us.”
The State did not question Captain Nichols about the investigation generally.
Officer Garrett testified he was dispatched almost 1 hour after the accident. When he arrived on the scene, Quinn had been transported to KU Medical Center. The officer said he saw no empty containers of alcohol inside Quinn's vehicle and “all I could smell was gasoline.” Officer Garrett generally reconstructed the accident:
“[T]he first collision I was able to backtrack to started at Woodend and then hit the medians there at Vista and then it rode along on top of the median ... bouncing off or on all the way down ‘till it came off the road and ... came to a crash ... in the residence there at 2626 South 26th Street is where it hit [a] rock and then ... hit ... the pickup truck that somebody was rebuilding and then pushed that and everything over to another truck that was parked in the ... driveway at 2828 South 55th.”
Officer Garrett did not testify about other facts he had alleged in the affidavit in support of the complaint.
Trooper Dilks testified he was dispatched to the scene about 1 hour after the accident and he arrived just after midnight. According to the trooper, Captain Nicholson asked him to complete a blood draw on Quinn. Trooper Dilks did not examine Quinn's vehicle because it had been removed from the scene. Trooper Dilks went to KU Medical Center. The trooper testified he provided Quinn with oral and written notice (as required under K.S.A.2014 Supp. 8–1001 [k] ) using the standard implied consent form. After being appropriately advised, Quinn consented to the blood draw. The State did not question Trooper Dilks about the investigation generally.
Ruling from the bench, the district court noted that “there does need to be some kind of evidence that alcohol was involved.” The district court found Trooper Dilks did not know “whether Mr. Quinn swerved to avoid a dog or a child in the road or whether he drove into some motor oil or slick spot or there was mechanical failure in his car or what happened.” The district court found Quinn “did give consent,” but the district court believed that for Trooper Dilks “to even be there, there had to be some kind of evidence—and nobody at the hospital smelled any alcohol on his breath, there [were] no admissions, anything like that.” The district judge concluded, “Mr. Quinn, you're really lucky that the law changed and this case [Declerck ] came out and clarified the law as it did. I am going to suppress the State's evidence.”
The State filed a timely appeal.
Discussion
On appeal, the State contends the district court erred in suppressing the results of Quinn's blood test because he consented to the procedure. For his part, Quinn responds that the district court should be affirmed because the State did not brief the district court's primary grounds for suppression—that the State had failed to establish that Quinn could be cited for a traffic infraction, a vital element in requesting a test pursuant to K.S.A.2014 Supp. 8–1001(b)(2). Quinn also argues that Declerck is dispositive of this appeal given the facts of this case and the applicability of K.S.A.2014 Supp. 8–1001(b)(2).
We begin with a summary of our standards of review. Appellate courts use a bifurcated standard in reviewing a district court's ruling on a motion to suppress. First, we review the district court's findings to determine if they are supported by substantial evidence. Then, we evaluate de novo the district court's legal conclusion. State v. Johnson, 297 Kan. 210, 221, 301 P.3d 287 (2013). As in this case, when the material facts are not disputed, the question of whether to suppress is a question of law for which we have unlimited review. Whether reasonable grounds exist to believe that a person has been operating a vehicle under the influence of alcohol is also a question of law. Finally, our review of the constitutionality of statutes is a question of law subject to unlimited review. 297 Kan. at 221.
The statute at issue is the implied consent statute, K.S.A.2014 Supp. 8–1001. It provides in relevant part:
“(b) A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a): (1) If, at the time of the request, the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, ... and one of the following conditions exists: ... (B) the person has been involved in a vehicle accident or collision resulting in property damage or personal injury other than serious injury; or (2) if the person was operating or attempting to operate a vehicle and such vehicle has been involved in an accident or collision resulting in serious injury or death of any person and the operator could be cited for any traffic offense, as defined in K.S.A. 8–2117, and amendments thereto. The traffic offense violation shall constitute probable cause for purposes of paragraph (2).”
It is clear that Trooper Dilks requested the blood draw from Quinn based upon the implied consent provisions detailed in K.S.A.2014 Supp. 8–1001. In its ruling, the district court found that prior to Trooper Dilk's request for a blood draw under K.S.A.2014 Supp. 8–1001 there was no evidence that Quinn was intoxicated at the time of the vehicle collision. See K.S.A.2014 Supp. 8–1001(b)(1)(B). Moreover, the district court found that at the time Quinn was involved in the collision, there was no showing that he could be cited for any traffic violation. See K.S.A.2014 Supp. 8–1001(b)(2)(B). On appeal, the State does not dispute either factual finding, and our review of the record confirms the district court's determination.
On appeal, the State does not contest the district court's finding that the bloodalcohol test results were inadmissible because the requirements of the implied consent law, K.S.A.2014 Supp. 8–1001(b), were not met prior to Quinn's consent. But the district court's ruling that the implied consent law was violated in this case was central to the district court's basis for suppressing the incriminating evidence. When a district court provides alternative bases to support its ultimate ruling on an issue and an appellant fails to challenge the validity of each alternative basis on appeal, an appellate court may decline to address the appellant's challenge to the district court's ruling. State v. Novotny, 297 Kan. 1174, 1180, 307 P.3d 1278 (2013). Moreover, an issue not briefed by an appellant is deemed waived and abandoned. State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013). We conclude the State has waived and abandoned this issue which formed the primary reason for the district court's suppression order.
The district court also determined that Declerck was dispositive of the suppression issue. In Declerck, our court held:
“K.S.A.2011 Supp. 8–1001(b)(2) is unconstitutional to the extent it requires a search and seizure absent probable cause that the person was operating or attempting to operate a vehicle under the influence of drugs or alcohol. A traffic infraction, plus an injury or fatality, without more, does not constitute probable cause that drugs or alcohol were involved in the accident.” 49 Kan.App.2d. 908, Syl. ¶ 6.
As applied to the present case, the district court essentially found that without any evidence of alcohol intoxication, even if there had been evidence presented that Quinn committed a traffic violation which caused the collision, under Declerck, the blood draw would have been violative of the Fourth Amendment to the United States Constitution.
The State attempts to distinguish Declerck by noting that, unlike the present case, Declerck did not consent to the blood draw. In particular, the State argues that in Declerck, the defendant “did not consent to the blood draw whereas [in] this case Mr. Quinn did consent and ... it should not be suppressed for that reason.” In the State's view, the blood draw was simply the result of Quinn's consent, which is an acknowledged exception to the Fourth Amendment's warrant requirement. See 49 Kan.App.2d. at 915. The State is, therefore, arguing voluntary consent under the Fourth Amendment separate and apart from the implied consent provisions of K.S.A.2014 Supp. 8–1001.
Our Supreme Court has noted the constitutional validity of the Kansas implied consent statute is grounded in the consent exception to the Fourth Amendment: “The search resulting from a test listed in K.S.A.2007 Supp. 8–1001(a) is the product of the consent exception to the warrant requirement.” Johnson, 297 Kan. 210, Syl. ¶ 8. Quite simply, Trooper Dilks relied on the provisions of the Kansas implied consent statute when he sought Quinn's consent. As designed, K.S.A.2014 Supp. 8–1001 is the statutory implementation of the consent exception to the Fourth Amendment. The State's argument that the implied consent provisions of K.S.A.2014 Supp. 8–1001 are separate and apart from the general consent exception to the Fourth Amendment is not persuasive.
In conclusion, for all of the reasons discussed, we hold that the State has not shown the district court erred in suppressing the results of Quinn's blood-alcohol test. There was substantial competent evidence for the district court's factual findings and its ultimate legal conclusions were not erroneous. See State v. Powell, 299 Kan. 690, Syl. ¶ 3, 325 P.3d 1162 (2014).
Affirmed.