Opinion
No. 110,385.
2014-10-24
STATE of Kansas, Appellee, v. Darren RHOTEN, Appellant.
Appeal from Ford District Court; Daniel L. Love, Judge.Michael J. Giardine, of Curtis E. Campbell, Chrtd., of Cimarron, for appellant.David Belling and Kevin B. Salzman, assistant county attorneys, Natalie K. Randall, county attorney, and Derek Schmidt, attorney general, for appellee.
MEMORANDUM OPINION
Appeal from Ford District Court; Daniel L. Love, Judge.
Michael J. Giardine, of Curtis E. Campbell, Chrtd., of Cimarron, for appellant. David Belling and Kevin B. Salzman, assistant county attorneys, Natalie K. Randall, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., PIERRON and POWELL, JJ. PER CURIAM:
Darren Rhoten appeals his conviction for driving while under the influence of alcohol (DUI). Rhoten argues the arresting officer did not have a reasonable suspicion of the commission of a crime in order to justify the stop of Rhoten's truck. He argues the district court should have granted his motion to suppress the evidence obtained during the stop. We affirm.
The parties stipulated to the following facts:
“1. On February 4, 2013, at approximately 8:15 p.m., officers were dispatched to the area of 117 Road and the Arkansas River riverbed in Ford County, Kansas, in reference to a report of a possible criminal trespass. Deputy Bill Simmons with the Ford County Sheriff's Office responded to this area and at approximately 9:30 p.m. observed a pick-up truck exiting the riverbed. The pick-up truck was stopped and officers made contact with the driver, who was identified to be Darren Rhoten.
“2. This Court previously found that Deputy Simmons had reasonable suspicion to stop the pick-up truck as it exited the riverbed. The defendant renews his objection to the district court's finding and is overruled. The defendant announces his wish to ensure this issue is preserved for appeal and this Court so notes.
“3. Upon making contact with Mr. Rhoten, Deputy Simmons noted a strong odor of an alcoholic beverage coming from Mr. Rhoten's person. Mr. Rhoten attempted to hand Dep. Simmons a credit card when asked for his driver's license. Deputy Simmons also observed that Mr. Rhoten's eyes were bloodshot and watery. Mr. Rhoten indicated to Dep. Simmons that he had had “some” to drink.
“4. Mr. Rhoten was assisted by deputies from his vehicle to perform standardized field sobriety tests. Mr. Rhoten performed the walk and turn test in a manner consistent with an individual under the influence of alcohol. Mr. Rhoten refused to perform the one leg stand test.
“5. Mr. Rhoten was placed under arrest and transported to the Ford County Sheriff's Office for further testing. After being read his Implied Consent Advisory, Mr. Rhoten indicated he would not submit to breath testing. At the conclusion of the 20–minute deprivation period, officers asked Mr. Rhoten again if he would provide a breath sample. Mr. Rhoten declined to do so.
“6. A warrant was obtained for a blood sample from Mr. Rhoten. This blood sample was drawn by Rob Boyd, an individual qualified by statute to draw blood samples. This blood sample was properly drawn at 11:20 p.m., properly packaged and sent to the Kansas Bureau of Investigation for further testing.
“7. On April 1, 2013, a laboratory report from Kayla D. Horst was returned. This report indicated that the sample of blood taken from Mr. Rhoten by Mr. Boyd and delivered to the KBI showed an alcohol concentration of 0.22 grams of alcohol per 100 milliliters of blood.”
Rhoten filed a motion to suppress the evidence, claiming Deputy Simmons illegally stopped his truck and any evidence obtained in the DUI investigation should be thrown out. Rhoten argued there was no evidence he had committed any traffic violation, he had permission from the property owner to access the riverbed and Deputy Simmons did not contact the reporting party to verify the alleged trespass, the details given about the alleged criminal activity were not observed by the reporting party, and no efforts were made to determine if there were tracks of a vehicle on private property. The State responded that the encounter was voluntary because Deputy Simmons came upon Rhoten's truck already stopped on the side of the road; no emergency equipment was activated; and Deputy Simmons did not brandish a weapon, threaten Rhoten, or demand that Rhoten answer any questions. Alternatively, the State argued Deputy Simmons had reasonable suspicion of trespassing based on a tip from an identifiable informant and Rhoten's vehicle was the only vehicle in the vicinity of the area in which the alleged criminal behavior had occurred.
The district court denied Rhoten's motion to suppress. The court found Deputy Simmons' stop of Rhoten's truck was based upon specific and articulable facts from a known individual which were corroborated by the observations of Deputy Simmons. The court found the officers had no reason to believe the landowner's tip was unreliable. There had been past trespasses by motorcycles or ATVs that damaged the landowner's property. The landowner and officer both agreed the entrance to the riverbed used by Rhoten was a logical place to enter the riverbed in relation to the landowner's property.
After the parties entered the stipulation of facts, the district court found Rhoten guilty of DUI. The court sentenced Rhoten to 30 days in jail with all but 2 days suspended. Rhoten was ordered to serve 48 consecutive hours in jail, pay a $750 fine, and serve 1 year on probation. Rhoten appeals.
We first address the issue of whether the officer had a reasonable suspicion that a crime had been committed, giving the officer just cause to halt Rhoten's vehicle.
In reviewing the granting or denial of a motion to suppress evidence, appellate courts use 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. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013). The facts in this case are uncontested. When the material facts to a district court's 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. 296 Kan. at 485. The State bears the burden to establish the lawfulness of a challenged search or seizure. State v. McGinnis, 290 Kan. 547, 551, 233 P.3d 246 (2010).
“A law enforcement officer may stop any person in a public place based upon specific and articulable facts raising a reasonable suspicion that such person has committed or is about to commit a crime.” State v. Slater, 267 Kan. 694, 696–97, 986 P.2d 1038 (1999) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 [1968] ). The Fourth Amendment to the United States Constitution search and seizure principles expressed in Terry have been codified in K.S.A. 22–2402(1). Slater, 267 Kan. at 697. “Something more than an unparticularized suspicion or hunch must be articulated.” State v. DeMarco, 263 Kan. 727, 735, 952 P.2d 1276 (1998) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 [1989] ). “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 ...’ [citation omitted] that must be taken into account when evaluating whether there is reasonable suspicion.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).
Rhoten references the fact that just because he was in an area where trespasses had occurred before does not rise to a level of reasonable suspicion. In fact, being in a high crime area does not by itself create reasonable suspicion. See State v. Anguiano, 37 Kan.App.2d 202, 207, 151 P.3d 857 (2007) (citing Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 [2000] ). Nor should the time of day—or night—automatically lend itself to a finding of reasonable suspicion absent additional, particularized facts. City of Marysville v. Lake, No. 100,897, 2009 WL 2595948, at *1, 5 (Kan.App.2009) (unpublished decision) (stationary truck near chain-link fence protecting outdoor merchandise located in an Orschlen store's parking lot at 2:15 a.m. and officer “wanted to see what the truck was doing in that location and at that time” did not meet reasonable articulable suspicion standard), rev. denied 290 Kan. 1092 (2010); State v.. Mollett, No. 97,999, 2008 WL 3852167, at *10 (Kan.App.2008) (unpublished opinion) (defendant's presence at 1:22 a.m. in parked car in alley behind two businesses with multiple recent crimes did not create reasonable suspicion), rev. denied 287 Kan. 768 (2009).
The State concedes, and we agree, this was not a voluntary encounter. In State v. Morris, 276 Kan. 11, 20, 72 P.3d 570 (2003), our Supreme Court held that “activation of ... emergency lights” by police officers, “in a remote area off a roadway, was a show of authority which would communicate to a reasonable person that there was an intent to intrude upon freedom of movement.” 276 Kan. at 20. Our Supreme Court noted “it is unlawful for a driver to fail to stop when a police officer signals the driver by using emergency lights. K.S.A. 8–1568 (fleeing and eluding).” 276 Kan. at 20. Our Supreme Court also quoted the reasoning employed by a Maryland court: “ ‘Few, if any, reasonable citizens, while parked, would simply drive away and assume that the police, in turning on the emergency flashers, would be communicating something other than for them to remain.’ “ 276 Kan. at 20 (quoting Lawson v. State, 120 Md.App. 610, 617, 707 A.2d 947 [1998] ).
For reasonable suspicion, officers are not required to have as much information, or as reliable information, as is necessary to support probable cause. State v. Anderson, 281 Kan. 896, 903,136 P.3d 406 (2006). A tip may be sufficiently reliable on its own to provide reasonable suspicion if the tip comes from a known informant who can be held accountable for fabricated allegations. See State v. Freel, 29 Kan.App.2d 852, 857, 32 P.3d 1219 (2001), rev. denied 273 Kan. 1037 (2002); See also Slater, 267 Kan. at 700 (the court considers three factors to determine whether an anonymous tip is sufficiently reliable to justify a traffic stop: “[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”).
Both parties cite a series of Fourth Amendment cases. We find two to be instructive— State v. Finley, 17 Kan.App.2d 246, 838 P.2d 904, rev. denied 25 Kan. 940 (1992), and State v. Johnson, 253 Kan. 75, 853 P.2d 34 (1993).
In Finley, the police were called to a motel room where a woman had been heard screaming for help. As the officer arrived, he observed a man in an automobile leaving the motel parking lot. The officer followed the vehicle for a short distance and then stopped the car and asked the driver what happened at the motel. The defendant informed the officer that he and his girlfriend had had a fight. After conducting a search of the car, the officer found drugs and paraphernalia. The Finley court found the officer had sufficient articulable facts that the defendant was involved in the motel incident to justify the stop based upon the report that a woman was screaming for help and the officer's observation of the defendant's automobile, the only one moving in the parking lot, leaving the motel by its only exit. The court found the events leading up to the stop created enough suspicion to alert a reasonable person that the individual in the car might have committed a crime. 17 Kan.App.2d at 250–52.
A similar conclusion was reached in Johnson. There, at 7:26 a.m., the officer received a dispatch concerning a suspicious cream-colored Ford Thunderbird parked behind a business with its engine running. The officer knew that none of the stores in the area was open at that hour and that there had been a number of burglaries, larcenies, and auto thefts in the area. When the officer arrived at the store, the car pulled away slowly with its trunk lid ajar, and it was being driven at a speed of 5 to 10 miles an hour. The Johnson court held that based on the totality of the circumstances, the officer had reasonable suspicion to stop the vehicle. 253 Kan. at 81.
Here, Officer Simmons responded to a known tip that persons were on motorcycles or ATVs trespassing on private property. The owner of the private property could not identify any specific driver because he was approximately 150 yards from the vehicle, but there had been prior trouble with ATVs trespassing when they were off-roading in the riverbed. Officer Simmons approached a truck and trailer in the riverbed using the most logical access pathway. There Officer Simmons saw a trailer with ramps and tie-downs and tracks coming off the ramps that appeared to be from an ATV. Officer Simmons stated in his affidavit that he saw several open cans of beer in the bed of the truck and that his Master Deputy had also informed him of reports from farmers of criminal damage to fences in the area.
Rhoten makes much of the fact that Officer Simmons did not wait by the truck for the ATV to return but instead waited nearly an hour on the country road for the vehicle to return. We are not persuaded that Officer Simmons was required to wait at the truck for the eventual return. Additionally, Officer Simmons saw the ATV come back, drive around, and then back into the riverbed. Soon thereafter, the truck and trailer came out of the riverbed, but without the ATV. Officer Simmons immediately pulled in behind the truck and initiated a stop.
Officer Simmons was not required to know that a crime had been committed prior to stopping Rhoten. He only had to have a reasonable suspicion that a crime had been committed.
Looking at all of the circumstances in connection with this incident, we agree with the district court that Officer Simmons had a reasonable suspicion sufficient to justify the stop of Rhoten's truck.
Affirmed.