Opinion
No. 110,845.
2014-12-19
STATE of Kansas, Appellee, v. Travis SHARP, Appellant.
Appeal from Johnson District Court; Kevin P. Moriarty, Judge.Rachelle Worrall Smith, and Darrell Smith, of Law Office of Darrell Smith, of Olathe, for appellant.Jacob M. Gontesky, assistant district attorney, Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Kevin P. Moriarty, Judge.
Rachelle Worrall Smith, and Darrell Smith, of Law Office of Darrell Smith, of Olathe, for appellant. Jacob M. Gontesky, assistant district attorney, Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ATCHESON, J. and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Travis Sharp appeals his conviction for driving under the influence. First, he argues that K.S.A. 8–1565, the alleged violation of which was the basis for Sharp's initial traffic stop, is unconstitutionally vague. Next, he argues that the police lacked reasonable suspicion to stop his vehicle and therefore all evidence obtained after he was stopped should have been suppressed. For the reasons stated below, we reverse the court's decision to deny Sharp's motion to suppress, we reverse both of his convictions, we vacate any sentences or fines imposed, and we remand the case with directions.
Facts
On January 25, 2013, Lieutenant Donald Bowers of the Johnson County Sheriffs Office was traveling eastbound on Santa Fe Street in Olathe, Kansas, when he stopped at a red light. He was in the left-turn lane at the intersection of Santa Fe Street and K–7 Highway, and there was at least one vehicle in front of him. There were two lanes of eastbound traffic to his right. While stopped, Bowers heard what sounded like an engine revving. When he looked to his right, he saw heavy smoke coming from underneath the rear end of a dark-colored sport utility vehicle (SUV). The SUV was stopped at the light two lanes over and slightly in front of Bowers' vehicle. Bowers was not sure whether the SUV was the first vehicle in line at the stoplight; he could barely see the left half of the SUV. In light of the engine revving and the smoke, Bowers rolled down the passenger side window. When he did so, Bowers detected the smell of rubber. Looking to the rear end of the SUV, Bowers observed the right rear tire spinning while the SUV stayed in place. Bowers identified this tire spinning of a stationary vehicle as power braking, a technique, in his opinion, used by a driver to demonstrate a vehicle's endurance and to warm up a vehicle's tires for better traction.
Although the traffic light was still red and both the patrol car and the SUV were stationary, Bowers testified it was at this point that he decided he was going to conduct a traffic stop of the SUV. When the light turned green, the SUV proceeded east through the intersection. Bowers testified that the SUV “didn't tear out from the intersection” and did not accelerate in a manner that would have provided him with any reason other than the power braking to conduct a stop of the SUV. Although Bowers did not activate the emergency lights on his patrol car until the light turned green and the SUV proceeded forward, Bowers reiterated that he made the decision to stop the SUV before it moved from its stationary position at the red light and the sole reason for stopping the SUV was because the driver was spinning the tires.
The driver of the SUV was identified as Sharp. When Bowers asked him why he thought he had been stopped, Sharp responded, “ ‘for burning my tires.’ “ Because he believed Sharp responded strangely and slowly to some of his questions, Bowers asked whether Sharp had anything to drink that day. Sharp said, “[N]ot much, no,” and then said he only had “one Buzz Ball.” After getting Sharp's identification and insurance information, Bowers returned to his patrol car to run a routine check and to request backup based on his concern that Sharp may be an impaired driver. Sharp ultimately was arrested for driving under the influence.
Prior to trial, Sharp filed a motion to suppress any evidence of him driving under the influence of alcohol. In support of his motion, Sharp argued Bowers lacked reasonable suspicion to conduct a traffic stop in the first instance and therefore any evidence obtained as a result of the stop must be suppressed. As we have noted above, Bowers testified at the suppression hearing that although he did not initiate his front emergency lights to stop Sharp's vehicle until after the stoplight changed to green and Sharp had cleared the intersection, the sole reason Bowers stopped Sharp was the spinning of tires and he did not see Sharp accelerate in a way that would justify a traffic stop while Sharp's vehicle was moving.
The district court denied Sharp's motion to suppress. Sharp filed a motion to reconsider the motion to suppress. In addition to his previous argument that Bowers lacked reasonable suspicion to stop him, he also argued that the portion of K.S.A. 8–1565 prohibiting exhibitions of speed or acceleration was unconstitutionally vague and indefinite. Although there is no transcript of a hearing on the motion to reconsider in the record on appeal, a journal entry was filed stating that the motion was considered and denied by the district court. This journal entry was signed by both parties and the district court judge.
The parties agreed to proceed to a bench trial on stipulated facts. Sharp was convicted of driving under the influence and exhibition of speed or acceleration.
Analysis
On appeal, Sharp claims the district court erred in failing to suppress any evidence of him driving under the influence of alcohol. In support of this claim, Sharp argues the portion of K.S.A. 8–1565 prohibiting exhibitions of speed or acceleration is unconstitutionally vague and indefinite. Sharp also argues that Bowers lacked the necessary reasonable suspicion to conduct a traffic stop based on a violation of K.S.A. 8–1565. We address each of Sharp's arguments in turn. Constitutionality of KS.A. 8–1565
We note, as a preliminary matter, that the State argued in its brief that Sharp did not properly preserve the right to raise a constitutional challenge to K.S.A. 8–1565 on appeal because he failed to raise the argument before the district court. Although the State acknowledges that Sharp did challenge the constitutionality of K.S.A. 8–1565 in his motion to reconsider the district court's decision to deny his original motion to suppress, it contends Sharp's motion to reconsider was insufficient for purposes of preservation because it was untimely filed. In support of this contention, the State argues that motions to reconsider generally are treated as motions to alter or amend a judgment and therefore must be filed no later than 28 days after entry of judgment under K.S.A.2013 Supp. 60–259(f), which Sharp did not do here. But the State misinterprets K.S.A.2013 Supp. 60–259. Not every order entered by the court is an entry of judgment. A criminal judgment is defined as a pronouncement of guilt and the determination of punishment. State v. Thompson, 45 Kan.App.2d 515, 519, 250 P.3d 282 (2011). In this case, the district court did not enter a judgment until sentencing was completed on October 30, 2013. Because Sharp's motion to reconsider his initial motion to suppress was filed in June 2013, his challenge to the constitutionality of K.S.A. 8–1565 was properly preserved.
Whether a statute is unconstitutional is also a question of law over which appellate courts exercise unlimited review. Kempke v. Kansas Dept. of Revenue, 281 Kan. 770, 775, 133 P.3d 104 (2006). A criminal statute is unconstitutionally vague and indefinite if its language fails to convey a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. Enforcement of a statute violates due process if it either requires or forbids an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. State v. Watson, 273 Kan. 426, 429, 44 P .3d 357 (2002).
In City of Altamont v. Finkle, 224 Kan. 221, 224, 579 P.2d 712 (1978), the Kansas Supreme Court determined that part of a city ordinance substantially similar to K.S.A. 8–1565 was unconstitutionally vague. In that case, the defendant was convicted of violating a city ordinance that read:
‘ “Sec. 37. Racing on Highways; “Drag Race” and “Racing” Defined. (a) No person shall drive any vehicle in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, exhibition of speed or acceleration, or for the purpose of making a record, and no person shall in any manner participate in any such race, competition, contest, test or exhibition.
“ ‘(b) For the purpose of this section, the term drag race means the operation of two (2) or more vehicles from a point side by side at accelerating speeds in a competitive attempt to out-distance each other, or the operation of one (1) or more vehicles over a common selected course from the same point to the same point, for the purpose of comparing the relative speeds or power of acceleration of such vehicle or vehicles within a certain distance or time limit.
“ ‘(c) For the purpose of this section, the term racing means the use of one (1) or more vehicles in an attempt to outgain, out-distance or prevent another vehicle from passing, to arrive at a given destination ahead of another vehicle or vehicles, or to test the physical stamina or endurance of drivers over long distance driving routes.’ “ 224 Kan. at 221–22.
After being charged and convicted of unlawful “exhibition of speed” under K.S.A. 8–1565, Finkle argued on appeal that the charge of exhibition of speed lodged against him failed to state a crime and was so vague that a person charged in such terms could not be expected to understand the nature of the alleged crime. Our Supreme Court agreed: “The ordinance when considered in its entirety appears to speak primarily to racing, speed and acceleration tests, contests or competition. The mere charge of an ‘exhibition of speed’ against a driver not engaged in any such test, contest or competition fails to charge any violation of the ordinance.” 224 Kan. at 223–24.
In its analysis, the court found significant that “[n]owhere in the ordinance is there an attempt to define the words ‘exhibition of speed or acceleration’ or to delineate the proscribed conduct.” 224 Kan. at 224. The court concluded that “[a]ny interpretation of that portion of the ordinance, without additional allegations, is such that men [or women] of common intelligence must guess at its meaning and may differ as to its application and therefore the language standing alone does not meet the minimum standards required .” 224 Kan. at 224. Finding that the statutory language used in the charging document was so vague and indefinite that one charged in such terms could not be expected to understand the nature and elements of the alleged crime, the court reversed Finkle's conviction with directions to discharge him. 224 Kan. at 224.
Here, Sharp was charged with an unlawful “exhibition of speed” under K.S.A. 8–1565. K.S.A. 8–1565 reads as follows:
“(a) No person shall drive any vehicle in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, exhibition of speed or acceleration, or for the purpose of making a speed record, and no person shall in any manner participate in any such race, competition, contest, test or exhibition.
“(b) As used in this section, ‘drag race’ means the operation of two or more vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other, or the operation of one or more vehicles over a common selected course, from the same point to the same point, for the purpose of comparing the relative speeds or power of acceleration of such vehicle or vehicles within a certain distance or time limit.
“(c) As used in this section, ‘racing’ means the use of one or more vehicles in an attempt to out-gain, out-distance or prevent another vehicle from passing, to arrive at a given destination ahead of another vehicle or vehicles, or to test the physical stamina or endurance of drivers over long distance driving routes.
“(d) Violation of this section is a misdemeanor.”
K.S.A. 8–1565 is identical to the ordinance at issue in Finkle in all relevant respects. This court is duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Acevedo, 49 Kan.App.2d 655, 670, 315 P.3d 261 (2013). Therefore, in accordance with the court's holding in Finkle, we conclude the provision in K.S.A. 8–1565 making it unlawful to exhibit speed or acceleration uses language that is so vague and indefinite that one charged in such terms could not be expected to understand the nature and elements of prohibited conduct.
In so concluding, we do not find persuasive the State's argument that the vague and indefinite language in K.S.A. 8–1565 is rendered constitutional because Sharp was arrested in Olathe, which has adopted a more detailed definition in its ordinance prohibiting exhibitions of speed and acceleration. See Olathe Municipal Code § 10.01.001 (2001) (defining exhibitions of speed or acceleration, in part, as acts which cause “unnecessary tire squeal, skid, smoke, or slide upon acceleration or stopping” or “acts that cause the vehicle to unnecessarily ... lose traction with the road surface”). In deciding a motion to suppress, a district court may only consider the evidence in light of the statute the State claims was violated. This is true even if more than one statute could have applied to the defendant. State v. Garza, 295 Kan. 326, 334, 286 P.3d 554 (2012). In this case, there is no evidence in the record to support a conclusion that Bowers relied on Sharp's violation of the Olathe ordinance—as opposed to K.S.A. 8–1565—to support his suspicion that Sharp was committing, had committed, or was about to commit a crime. The Uniform Notice to Appear and Complaint, which was handwritten by Bowers, charged Sharp with violating K.S.A. 8–1565. The prosecutor specifically argued at the suppression hearing that power braking at a red light “certainly constitutes exhibition driving and speed—of speed in violation of 8–1565(a).” And finally, K.S.A. 8–1565 is the statute Sharp ultimately was convicted of violating. Thus, although the Olathe Municipal Code provides a more precise definition of what it means to engage in an exhibition of speed or acceleration, this ordinance is not relevant to the issue presented on appeal.
Because the provision within K.S.A. 8–1565 making it unlawful to exhibit speed or acceleration is unconstitutionally vague and indefinite, we conclude Officer Bowers lacked reasonable suspicion to conduct a traffic stop based on what he perceived was a violation of that statute. But this does not end the inquiry. Typically, evidence obtained in violation of a person's rights under the Fourth Amendment to the United States Constitution may not be used against a defendant in a criminal proceeding. However, the Kansas Supreme Court has recognized a good-faith exception to the exclusionary rule in certain situations. Under this exception, if an officer acts in objectively reasonable reliance upon a statute that was subsequently found to be unconstitutional, the exclusionary rule does not apply and evidence obtained as a result of the reasonable reliance will not be suppressed. State v. Daniel, 291 Kan. 490, 496, 498–500, 242 P.3d 1186 (2010), cert. denied 131 S.Ct. 2114 (2011). Accordingly, we must decide whether it was objectively reasonable for Bowers to believe that spinning tires while stopped at a traffic light was conduct that violated K.S.A. 8–1565. On this issue, we again are bound by the legal precedent set by our Supreme Court in Finkle, where the court specifically held that the question of an “exhibition of speed or acceleration” is a matter for subjective determination lacking any objective standards. 224 Kan. at 224. Given that there are no objective standards by which a court could evaluate an officer's reliance on this statutory language, we find it improper to apply the good-faith exception to the exclusionary rule in this case.
Our finding in this regard is supported by the analysis conducted by our Supreme Court in Daniel, 291 Kan. at 501–05. Unlike the conclusion we reach here, the Daniel court held it was proper to apply the good-faith exception to the exclusionary rule. In so holding, the Supreme Court found persuasive the fact that appellate courts in Kansas repeatedly had relied on the statute the Daniel subsequently found to be unconstitutional. 291 Kan. at 505. But the exact opposite is true in this case. As noted above, there is no meaningful difference between the ordinance found to be unconstitutional in Finkle back in 1978 and the current version of K.S.A. 8–1565. Thus, Bowers relied on language found unconstitutional decades ago by our Supreme Court to justify Sharp's initial stop, a fact which weighs heavily against application of the good-faith exception.
Because the provision within K.S.A. 8–1565 making it unlawful to exhibit speed or acceleration is unconstitutionally vague and the good-faith exception is not applicable, the district court erred in denying Sharp's motion to suppress. Reasonable suspicion
Although this court's analysis need go no further based on our conclusion that the relevant portion of K.S.A. 8–1565 is unconstitutionally vague, we also will address Sharp's alternative argument that Bowers lacked the necessary reasonable suspicion to conduct a traffic stop based on a violation of that statute.
The Fourth Amendment protects against unreasonable searches and seizures. State v. Spagnola, 295 Kan. 1098, 1105, 289 P.3d 68 (2012). A traffic stop always constitutes a seizure under the Fourth Amendment. State v. Thompson, 284 Kan. 763, 773, 166 P.3d 1015 (2007). In order for a traffic stop to be constitutionally reasonable, a police officer must have reasonable suspicion based on articulable facts that a crime has been, is being, or is about to be committed. State v. Jones, 300 Kan. ––––, 333 P.3d 886, 893 (2014); see K.S.A. 22–2402(1). “ ‘Reasonable suspicion means a particularized and objective basis for suspecting the person stopped is involved in criminal activity.’ “ State v. Pollman, 286 Kan. 881, 890, 190 P.3d 234 (2008).
An appellate court analyzes the denial of a motion to suppress under a bifurcated standard. The appellate court reviews the district court's findings to determine whether they are supported by substantial competent evidence. The ultimate legal conclusion is then reviewed de novo. If the material facts are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013).
Assuming K.S.A. 8–1565 is constitutional, Sharp argues that Bowers lacked reasonable suspicion to stop Sharp because spinning tires while stationary is not a violation of that statute. The State disagrees, arguing in its brief that by spinning his tires and generating smoke, Sharp “was committing, had committed or was about to commit a violation of K.S.A. 8–1565.” The statute at issue prohibits exhibitions of speed or acceleration. Criminal statutes must be strictly construed in favor of the accused. State v. Coman, 294 Kan. 84, 96, 273 P.3d 701 (2012). Strictly construed, speed and acceleration are both words that denote movement of some kind. Yet, all of the actions Bowers identified as justification for his decision to stop Sharp occurred while Sharp was stationary. In order to show a violation of this statute, the State would need to prove, at a minimum, that Sharp was moving or accelerating. There are no such facts in the record.
There also are no facts in the record to support reasonable suspicion that Sharp was about to participate in a race in violation of K.S.A. 8–1565. Officer Bowers testified that he believed Sharp was power braking in order to warm Sharp's tires in preparation of a drag race. But Sharp did not actually initiate the traffic stop until after both he and Sharp had cleared the intersection. Bowers did not observe Sharp accelerating in a way that would justify a traffic stop for drag racing. A determination of reasonable suspicion is based on the totality of the circumstances from the viewpoint of those versed in the field of law enforcement. Pollman, 286 Kan. at 890. While Bowers did believe Sharp was preparing for a drag race, he also observed Sharp accelerate appropriately when the traffic light turned green and observed no other unlawful behavior prior to activating his front lights to pull Sharp over. Sharp's actions after the light turned green directly contradict Bowers' belief that Sharp was preparing for a race. Since Bowers did not initiate a stop until after he cleared the intersection, we are required to consider that fact when determining whether reasonable suspicion existed for the stop. When considering the totality of the circumstances, Sharp's actions simply do not rise to the level of a particularized and objective basis for suspecting prior, current or future criminal activity. As a result, even if the language of the statute at issue was constitutional, the district court erred by denying Sharp motion to suppress.
We reverse the district court's decision to deny Sharp's suppression motion; we reverse both of Sharp's convictions; we vacate any sentences or fines imposed; and we remand the case with directions to grant Sharp's motion to suppress.