Opinion
No. 107,090.
2013-05-3
CITY OF LENEXA, Appellee, v. Travis DONELL, Appellant.
Appeal from Johnson District Court; Stephen R. Tatum, Judge. Carl E. Cornwell, of Olathe, for appellant. Corey F. Kenney, city prosecutor, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Stephen R. Tatum, Judge.
Carl E. Cornwell, of Olathe, for appellant. Corey F. Kenney, city prosecutor, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
The Lenexa Municipal Court convicted Travis Donell of driving under the influence of alcohol (DUI) and transporting an open container. Donell appealed his convictions to the Johnson County District Court, where he filed a motion to suppress all evidence obtained from the traffic stop. The district court denied his motion, and the case proceeded to a bench trial. The district court convicted Donell of driving under the influence of alcohol and transporting an open container. On appeal, Donell contends that Officer Robert Schluben initiated the traffic stop based upon a mistake of law and, thus, had no reasonable suspicion that Donell was committing a crime. Donell asserts the evidence should have been suppressed and the charges dismissed. We disagree and affirm his convictions.
Factual and Procedural History
On February 7, 2010, at 4 a.m., in Lenexa, Kansas, Officer Robert Schluben observed a pick-up truck with an illegible expiration sticker. Officer Schluben checked the tag number in the Kansas Department of Revenue (KDR) database, which controls registration and renewal of license plates. The KDR search indicated that the tag was expired. Based on this information, the officer stopped the vehicle.
As soon as Officer Schluben contacted the driver of the pick-up truck, later identified as Donell, he smelled the odor of alcohol. In addition to this odor, Officer Schluben noticed that Donell's eyes were bloodshot; there was an unopened case of beer in the truck; and Donell was argumentative and not very respectful or polite. The officer advised Donell of the reason for the stop. Donell advised the officer that his tag was not expired and provided a registration receipt from the KDR, which indicated enforcement for any expired tag was to begin March 1.
Despite reviewing the receipt provided, Officer Schluben conducted multiple field sobriety tests and ultimately concluded that Donell was DUI and could not safely operate a vehicle. The officer then searched Donell's vehicle and located an open can of beer underneath the driver's seat.
The Lenexa Municipal Court convicted Donell of DUI and transporting an open container. Donell appealed his convictions to the Johnson County District Court, where he filed a motion to suppress all evidence obtained from the stop. The district court held an evidentiary hearing and subsequently denied the motion. The district court found Officer Schluben could rely on the information provided by the KDR database, even if the information later turned out to be incorrect. Further, the district court held, based on his observations during his initial contact with Donell, that Officer Schluben had a good faith, probable cause basis to investigate whether Donell was impaired by alcohol.
Following a bench trial, the district court found Donell guilty of DUI and transporting an open container.
Donell appeals.
Did Officer Schluben Have Reasonable and Articulable Suspicion To Conduct a Traffic Stop?
Donell contends that Officer Schluben did not have reasonable and articulable suspicion to conduct a traffic stop. The State contends that the officer did have reasonable suspicion that Donell was in violation of K.S.A.2009 Supp. 8–133, driving with an illegible license plate, and K.S.A.2009 Supp. 8–134, driving with an expired registration. Standard of Review
When reviewing a motion to suppress, an appellate court reviews the factual underpinnings of a district court's decision by a substantial competent evidence standard and the ultimate legal conclusions drawn from those facts by a de novo standard of review. State v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009). This court does not reweigh the evidence or reassess credibility. 289 Kan. at 380. This court must accept all inferences that can be drawn from the evidence that tend to support the district court's findings as true, unless the record does not support such a presumption. State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009).
“Whether reasonable suspicion exists is a question of law and is reviewed de novo. In reviewing an officer's belief of reasonable suspicion, an appellate court determines whether the totality of the circumstances justifies the detention.” State v. Coleman, 292 Kan. 813, 817, 257 P.3d 320 (2011); see State v. Johnson, 293 Kan. 1, 6, 259 P.3d 719 (2011) (officer must be able to articulate reasonable suspicion beyond hunch of criminal activity). When reviewing totality of the circumstances, this court should accord reasonable deference to a law enforcement officer's ability to distinguish between innocent and suspicious activity. Coleman, 292 Kan. at 818. The State bears the burden of proving the lawfulness of the search or seizure by a preponderance of the evidence. State v. Pollman, 286 Kan. 881, 886, 190 P.3d 234 (2008). Analysis
“A traffic stop is an investigatory detention and is a seizure implicating the Fourth Amendment.” State v. Diaz–Ruiz, 42 Kan.App.2d 325, 329, 211 P.3d 836 (2009). “ ‘To lawfully stop a moving vehicle ..., a law enforcement officer must ‘ “have a reasonable and articulable suspicion, based on fact, that the person stopped has committed, is committing, or is about to commit a crime.” ‘ “ “ State v. Hess, 37 Kan.App.2d 188, 191, 153 P .3d 557 (2006).
K.S.A.2009 Supp. 8–133 provides in relevant part: “Every license plate ... shall be maintained free from foreign materials and in a condition to be clearly legible.” Lenexa City Code Sec. 198(a)(4), incorporated by reference under the procedure prescribed in K.S.A. 12–3009 to K.S.A. 12–3012 and K.S.A. 12–3301 to K.S.A. 12–3302, states: “License plates shall be kept clean and they shall be placed on all vehicles within the city as required by law so as to be plainly legible.”
K.S.A.2009 Supp. 8–134(a) provides in part:
“Every vehicle registration under this act shall expire December 31 of each year, ... the renewal shall take effect on January 1 of each year but the owner of the vehicle shall have until and including the last day of February of each year within which to make application for such renewal.... Criminal sanctions ... for failure to display any license plate or plates or any registration decal required to be affixed to any such license plate for the current registration year shall not be enforced until March 1 of each year.”
Donell, relying on Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 639, 176 P.3d 938 (2008), and K.S.A.2009 Supp. 8–134, argues that because he was still in his grace period for his vehicle registration, his registration was still valid, making the officer's traffic stop based upon a mistake of law and, therefore, improper. However, our court has already resolved this question.
In City of Manhattan v. Larson, 26 Kan.App.2d 851, 852, 994 P.2d 1087 (2000), an officer stopped a truck with an expired license plate. When the officer approached the truck, he “immediately smelled alcohol, and observed [the defendant's] glossy and bloodshot eyes and slurred speech.” 26 Kan.App.2d at 852. Based on these observations, the officer conducted field sobriety tests and arrested the driver for driving under the influence. The defendant filed a motion to suppress the evidence supporting the charge of DUI, alleging the officer wrongly interpreted K.S.A. 8–134 because the officer failed to account for the statutory grace period provided in the statute, which at that time prohibited enforcement of criminal sanctions until after February 15 of each year. The court found the defendant's tags technically expired on December 31 and that the defendant “merely had a grace period in which to renew his tags before he was subject to criminal sanctions for driving with an expired tag.” 26 Kan.App.2d at 853. The court held: “The statutory grace period for renewing an expired license tag does not invalidate an officer's reasonable suspicion that a statute was being violated.” 26 Kan.App.2d at 854.
At the suppression hearing in this case, Officer Schluben testified:
“A .... [t]he license plate was dirty and I was unable to read the expiration sticker.
“Q. So then how did you proceed?
“A. I checked the license plate in the computer and it showed that it was expired.
“Q. Okay. And when you checked it in the computer what—what data base does that check with?
“A. It's the Kansas Department of Revenue data base that controls or regulates the registration and renewal of the license plates.
“Q. Okay. And that gives you a return of whether or not the license plate—or whether or not the license plate is valid or expired?
“A. Yes.
“Q. And it showed that it was expired. How did you proceed?
“A. Based upon all that information, I did conduct a traffic stop of that vehicle.”
Further, on cross-examination at the suppression hearing, Officer Schluben testified:
“Q. And so that we're clear and the record's clear, when you made this stop of Mr. Donell's vehicle, the only reason that you made the stop was because you indicated you could not read the expiration sticker on the tag; is that right?
“A. No.
“Q. Why?
“A. Because the license plate, it was dirty and I couldn't read the sticker. But also because I checked the computer and the computer showed it was expired also.”
The record is clear that Officer Schluben conducted a traffic stop because he believed Donell was in violation of (1) K.S.A.2009 Supp. 8–133 and Lenexa City Code Sec. 198(a)(4), failure to display a clearly legible license plate, and (2) K.S.A.2009 Supp. 8–134, having an expired tag. In light of our court's holding in Larson, Officer Schluben did not misunderstand or misapply the law. The officer was unable to read the expiration sticker on Donell's license plate, so he ran the tag number through the KDR database and the tag came back as not current on registration. Based on his inability to read the expiration sticker and the information received from KDR, he initiated a traffic stop.
Officer Schluben had reasonable suspicion that Donell was in violation of (1) K.S.A.2009 Supp. 8–133 and Lenexa City Code Sec. 198(a)(4) and (2) K.S.A.2009 Supp. 8–134. Consequently, the district court did not err in finding the initial stop of Donell's vehicle was lawful. See United States v. Lyons, 510 F.3d 1225, 1234 (10th Cir.2007) (officer's stop of defendant for dirty license plate justified as violative of K.S.A. 8–133).
Affirmed.