Opinion
No. 106,742.
2012-08-10
STATE of Kansas, Appellee, v. Eddie SAUCEDO, Appellant.
Appeal from Wyandotte District Court; John J. McNally, Judge. Michael Redmon, of Kansas City, for appellant. Christopher Mann, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; John J. McNally, Judge.
Michael Redmon, of Kansas City, for appellant. Christopher Mann, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., MARQUARDT, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Eddie Saucedo appeals his convictions of one count of driving while suspended and one count of possession of cocaine. Saucedo claims the district court erred by denying his motion to suppress the evidence. We agree with Saucedo that the law enforcement officer did not have reasonable suspicion to initiate a traffic stop and detain Saucedo. Thus, we reverse Saucedo's convictions and remand with directions to suppress all evidence seized after the illegal stop.
On January 3, 2010, at approximately 11:22 pm, Officer David Hopkins of the Kansas City, Kansas, Police Department was on patrol. While driving through his assigned district, Hopkins stopped at a stop sign, looked down the street to his right, and saw a vehicle stopped in the roadway facing north on Bethany Street. Hopkins later testified that the vehicle was about 3 feet from the curb in the left lane of the road. Hopkins watched the vehicle for approximately 15 seconds and, when the vehicle did not move, he turned onto Bethany Street and drove toward the car. Hopkins testified that as he pulled in behind the car he noticed an “obstructed windshield.” At that point, Hopkins activated his emergency lights.
Hopkins approached the car and talked with the driver, later identified as Saucedo. According to Saucedo's later testimony, he and his passenger, Joshua Wright, were stopped in front of a residence waiting to pick up someone at the residence. The car belonged to Wright's girlfriend, Ashley Mack. Saucedo testified that they were stopped there for no more than 5 minutes and were within 6 inches of the curb.
Officer Joseph Reed arrived as backup, and Hopkins ran a warrants check on both Saucedo and Wright, discovering that Saucedo had a suspended driver's license and that Wright had an outstanding warrant. Hopkins and Reed removed Wright from the car first and placed him into a police car and then approached the car again to arrest Saucedo. When Hopkins took Saucedo out of the car, Reed, who was standing next to Hopkins, noticed a clear plastic bag protruding from between the center console and the driver's seat. Reed retrieved the bag, which contained crack cocaine. Reed was later unable to remember if he could see the drugs in the bag before he removed the bag from the car.
The car was towed and an inventory search was performed prior to the tow. Reed later testified that they had the car towed “[b]ecause it was a traffic hazard.” Hopkins concurred, stating that the car was a traffic hazard and there was no one to move or take the car as both Wright and Saucedo were in custody. Further, Hopkins testified that the police department's policy is to tow a vehicle under these circumstances. Saucedo and Wright later testified that Wright asked the officers if he could call Mack to retrieve her car, but the officers denied his request.
On April 26, 2010, the State charged Saucedo with one count of driving while suspended and one count of possession of cocaine. On January 6, 2011, Saucedo filed a motion to suppress the evidence, alleging that the vehicle search was illegal. Later, Saucedo filed an amended motion to suppress, arguing that Hopkins did not have reasonable suspicion to initiate the traffic stop. At the suppression hearing, Hopkins testified about the events as he remembered them, including the fact that he believed Bethany Street was a two-way street and that Saucedo was stopped on the wrong side of the street. Saucedo called David Northrup, a city traffic engineer for Kansas City, Kansas, who testified that the portion of Bethany Street on which Saucedo had stopped was a one-way street. Mack also testified on Saucedo's behalf, stating that she owned the car in question and that at the time of Saucedo and Wright's encounter with the police, she was no more than 10 minutes away and would have come to retrieve her car had she been called. Mack also testified that although there was a crack in the car's windshield, it was on the passenger's side, toward the bottom right-hand corner, and was no more than 3 inches long. Finally, Saucedo testified on his own behalf.
After hearing the evidence, the district court denied the motion to suppress. The district court found that Hopkins had reasonable suspicion to stop and detain Saucedo because the vehicle was impeding traffic. The district court also found that once the officers discovered that Saucedo had a suspended driver's license, they had grounds to arrest Saucedo and have the vehicle towed. Finally, the district court found that the cocaine would have been inevitably discovered in an inventory search prior to the tow.
The district court held a bench trial based on stipulated facts to which Saucedo renewed his objection to the admission of the evidence. The district court found Saucedo guilty as charged. Saucedo timely appealed his convictions.
On appeal, Saucedo claims the district court erred by denying his motion to suppress the evidence. First, Saucedo claims that Hopkins did not have reasonable suspicion to initiate the traffic stop. Second, Saucedo argues that Reed was not entitled to enter the vehicle and seize the plastic bag based on plain view because he only saw a partial clear plastic bag in the car and he did not know there were drugs in the bag. Third, Saucedo claims the police did not legally impound the vehicle; thus, the evidence was inadmissible under the inevitable discovery rule.
The State concedes there was not probable cause to support a plain view search of the vehicle based on Reed seeing the partial clear plastic bag. But the State claims the district court correctly ruled that the police had reasonable suspicion to initiate a traffic stop and detain Saucedo. The State also claims the police properly impounded the vehicle and conducted an inventory search that led to the inevitable discovery of the drugs.
“We apply a dual standard when reviewing the trial court's decision on a motion to suppress. First, we review the factual underpinnings of the decision under a substantial competent evidence standard. Next, we review the trial court's legal conclusion drawn from those facts de novo. We do not reweigh evidence, assess the credibility of the witnesses, or resolve conflicting evidence. [Citation omitted.]” State v. Robinson, 293 Kan. 1002, 1017, 270 P.3d 1183 (2012).
Saucedo first claims the district court erred in finding that Hopkins had reasonable suspicion to initiate the traffic stop. The State asserts that the traffic stop was justified because (1) Saucedo was parked 3 feet from the curb and was illegally impeding traffic and (2) the car had a cracked windshield.
Under the Fourth Amendment to the United States Constitution, a traffic stop is considered a seizure. Seizures are generally permissible if an objective law enforcement officer would have a reasonable and articulable suspicion that the detainee committed, is about to commit, or is committing a crime. State v. Johnson, 293 Kan. 1, 5, 259 P.3d 719 (2011); see K.S.A. 22–2402(1). “The officer must be able to articulate more than an ‘inchoate and unparticularized suspicion’ or ‘hunch’ of possible criminal activity. [Citations omitted.]” State v. Coleman, 292 Kan. 813, 817, 257 P.3d 320 (2011). The State bears the burden of proof for a suppression motion; it must prove to the district court the lawfulness of the search and seizure. K.S.A. 22–3216(2); State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009). A traffic infraction is an objectively valid reason to initiate a traffic stop. State v. Moore, 283 Kan. 344, 350, 154 P.3d 1 (2007). Impeding traffic
The State argues that Hopkins had reasonable suspicion to believe that the car was illegally impeding traffic, based on the current Unified Government of Wyandotte County/Kansas City, Kansas, Code of Ordinances § 35–475 (2009), which contains language substantially mirroring K.S.A. 8–1569 that states:
“(a) Outside a business or residence district no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the roadway when it is practicable to stop, park or so leave such vehicle off the roadway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle shall be available from a distance of two hundred (200) feet in each direction upon such highway.
“(b) This section ... shall not apply to the driver of any vehicle which is disabled in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving the vehicle in such position.”
At the hearing on the motion to suppress, Hopkins stated that the vehicle “was probably three feet from the left curb facing northbound.” Hopkins testified that normally vehicles park on the right-hand side of the road, whereas this vehicle was parked on the left-hand side. Bethany Street, where the stop occurred, was a one-way street; it appears from the record that Hopkins mistakenly thought it was a two-way street, as the State concedes in its brief. Regarding how far Saucedo was stopped from the curb, the district judge stated:
“Well, I think the—I think the officers had a reasonable suspicion here to approach this car. The testimony of the officers was that the car was about three feet from the curb. The testimony from the defendant [and] Mr. Wright, that it was legally parked. But I think probably more believable is that it was some distance from the curb and I think gave them a reason to approach. The fact of whether or not it impeded the traffic wouldn't really have to be established then if there wasn't any traffic coming by. If you put a vehicle stopped in any lane on State Avenue, even though it's a wide street, it's still going to impede traffic, even though people clearly could get by it. And that would be the situation here. So I think there was a reason for them to approach the vehicle.”
Although Saucedo testified the car was parked within 6 inches of the curb, the district court specifically found that the car was about 3 feet from the curb. This finding of fact is supported by substantial competent evidence through Hopkins' testimony, and this court will not reweigh the evidence. However, based on other undisputed facts in this case, there are multiple reasons why the fact that Saucedo's car was parked 3 feet from the curb does not create reasonable suspicion that Saucedo's car was impeding traffic.
First, as the parties conceded at oral argument, it does not appear that K.S.A. 8–1569 is applicable to the facts of this case. The statute only applies “outside a business or residence district .” K.S.A. 8–1569(a). The undisputed evidence in this case indicates that Saucedo's car was parked in a residence district and he was parked directly in front of someone's house.
Second, even if the statute applied, the State failed to present any evidence whether it was practicable for Saucedo “to stop, park or leave such vehicle off the roadway.” See K.S.A. 8–1569(a). For instance, the State failed to establish if there was a driveway that Saucedo could have pulled into rather than parking on the street.
Third, the State failed to present any evidence that Saucedo's car was impeding traffic on the roadway. In fact, when asked if there was enough room for another vehicle to go around the stopped car, Hopkins replied, “Possibly on the right-hand side.” On cross-examination, Hopkins agreed that “a car could have gone on the right-hand side ... in that right lane and passed him without any trouble.” (Emphasis added.) Finally, the State failed to present any evidence whether Saucedo's car could be seen from 200 feet away. See K.S.A. 8–1569(a).
The State bears the burden of proof for a suppression motion. K.S.A. 22–3216(2); Morlock, 289 Kan. at 985. Here, the State's evidence failed to establish a reasonable belief that Saucedo was parked in violation of the ordinance or that his car was illegally impeding traffic on the roadway in any manner. We conclude the State failed to prove that Hopkins had reasonable suspicion to stop and detain Saucedo for impeding traffic. Cracked windshield
The State also argues that the stop was justified by a crack in the car's windshield. Hopkins testified that as he pulled in behind the car, he “noticed from where [he] was sitting in [his] patrol car an obstructed windshield.” Mack, who owned the car, testified there was a crack in the bottom corner of the windshield, on the passenger's side, no more than 3 inches long. The State did not articulate at the suppression hearing any further details on what caused Hopkins to characterize the windshield as “obstructed” or how the 3–inch crack gave rise to reasonable suspicion that Saucedo was committing, had committed, or was about to commit a crime.
The district court did not address this issue on its merits. Instead, after finding there was reasonable suspicion to initiate the traffic stop based on the car being stopped 3 feet from the curb, the district judge stated: “[O]bviously, I think that makes the issue of the windshield unimportant.” The district court did not make factual findings about the size or location of the crack in the windshield or come to a legal conclusion about whether the crack was large enough to support a reasonable suspicion that Saucedo was driving with an illegally obstructed windshield.
The current Unified Government of Wyandotte County/Kansas City, Kansas, Code of Ordinances § 35–816(b) (2009) states that “[n]o person shall drive any motor vehicle with a damaged front windshield ... which substantially obstructs the driver's clear view of the highway or any intersecting highway.” (Emphasis added.) See K .S.A. 8–1741(b). Saucedo correctly points out that the ordinance does not prohibit a cracked windshield unless the crack substantially obstructs the driver's clear view of the highway. Further, Saucedo notes that the State did not provide photographs or video of the windshield, and neither officer provided specific details about the nature of the cracked windshield. Thus, Saucedo argues that the State failed to present sufficient evidence to establish that there was reasonable suspicion to believe the cracked windshield was illegally obstructing the driver's view.
The State cites State v. Tingen, No. 93,836, 2006 WL 1460623 (Kan.App.2006) (unpublished opinion), rev. denied 282 Kan. 796 (2006), for the proposition that the cracked windshield sufficiently provided reasonable suspicion to justify the stop. In Tingen, a store security officer reported to Wichita police an unusual purchase of pseudoephedrine; the security officer saw the man taking the pills from their blister packaging as he walked to a car driven by the defendant. While driving north on Rock Road, Officer Long Nguyen heard a dispatch about the suspicious purchase and spotted the car. Nguyen noticed the car had a cracked windshield and initiated a traffic stop. Ultimately, the defendant was convicted of one count of illegal possession of pseudoepehedrine.
On appeal, the defendant argued that Nguyen did not have reasonable suspicion to initiate the traffic stop, challenging both reasons the officer gave for the stop: (1) the report from the security officer and (2) the crack in the windshield was a traffic infraction. The Wichita City Code § 11.60.260(d) (1998) prohibited operating a vehicle with a windshield that “ ‘is cracked or shattered in any manner which obstructs the operator's vision.’ “ 2006 WL 1460623, at *4. This court upheld the stop based on the cracked windshield and specifically noted that “the crack in the windshield was large enough that Officer Nguyen noticed it while driving in the opposite direction of [the defendant's] vehicle on Rock Road.” 2006 WL 1460623, at *4.
Tingen is distinguishable from the instant case because the facts in Tingen were undisputed that the crack in the windshield was across the driver's side. Here, however, the only specific evidence in the record is Mack's description of the windshield crack as no more than 3 inches long on the bottom corner of the passenger's side. Tingen does not support the proposition, as the State argues, that a vehicle stop is justified any time a law enforcement officer is able to observe any crack in a windshield. See also United States v. Callarman, 273 F.3d 1284, 1287 (10th Cir.2001) (cracked windshield that was “12 inches across and 6 inches high” justified vehicle stop) (citing K.S.A. 8–1741[b] ).
As previously stated, the State bears the burden of proof for a suppression motion. K.S.A. 22–3216(2); Morlock, 289 Kan. at 985. Here, the State's only evidence of a cracked windshield was Hopkins' testimony that, as he pulled in behind Saucedo's car, he noticed “an obstructed windshield.” The State made no attempt to dispute Mack's testimony that the crack in the car's windshield was 3 inches long toward the bottom right-hand corner of the passenger's side of the windshield. The county ordinance provides that no person shall drive a vehicle with a damaged front windshield which “substantially” obstructs the driver's clear view of the roadway. We conclude that the State failed to meet its burden that Hopkins had reasonable suspicion to stop and detain Saucedo based on a damaged windshield that substantially obstructed the driver's view.
In summary, we conclude the district court erred in finding that Hopkins had reasonable suspicion to initiate a traffic stop and detain Saucedo. As previously noted, the State concedes there was not probable cause sufficient to support a plain view search of the vehicle based on Reed seeing the partial clear plastic bag. The only other basis to admit the evidence is through inevitable discovery prior to the tow, but the State acknowledges that the inevitable discovery rule does not apply if the initial stop was unlawful. Thus, we conclude the district court erred by denying Saucedo's motion to suppress the evidence. Accordingly, we reverse Saucedo's convictions and remand with directions to suppress all evidence seized after the illegal stop.
Reversed and remanded with directions.