Opinion
No. 107,249.
2012-12-28
STATE of Kansas, Appellee, v. Aaron M. BAILEY, Appellant.
Appeal from Barber District Court; Robert J. Schmisseur, Judge. Michael S. Holland II, of Holland and Holland, of Russell, for appellant. Richard N. Raleigh, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Barber District Court; Robert J. Schmisseur, Judge.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant. Richard N. Raleigh, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., BUSER, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Aaron M. Bailey seeks to suppress evidence obtained during an investigation of whether he was driving under the influence of alcohol (DUI), Bailey argues that the law enforcement officer improperly expanded the scope and length of the detention of a courtesy welfare check. Bailey's suppression motion raises the question of whether the officer had sufficient reasonable suspicion to detain Bailey for a DUI investigation. The district court concluded that the investigation was permissible because the officer smelled the odor of alcohol on Bailey's person, he admitted to consuming alcohol, and was leaning up against his vehicle during the encounter. We affirm the district court's ruling, concluding that the circumstances raised a reasonable suspicion warranting an investigation into whether Bailey was driving under the influence.
On January 8, 2010, at approximately 11:30 p.m., Deputy Mark Huftles received a call from Deputy Justin Rugg advising him that Rugg had observed the driver of a white passenger vehicle stop for longer than normal at a stop sign. Rugg's observations led him to be suspicious or have a hunch about the vehicle. Huftles located the vehicle and clocked it on radar as travelling 58 mph in a 65 mph zone. As the vehicle approached Huftles, it crossed the fog line. Huftles did not observe any traffic violations, weaving, or additional signs of impaired driving.
Huftles turned to follow the vehicle, and the driver turned off the highway and onto a rural dirt road. The driver pulled the vehicle onto the right shoulder of the road and came to a complete stop. Huftles pulled in behind the vehicle, but he did not activate his emergency lights. Huftles' intent in stopping was to conduct a courtesy stop or welfare check to make sure that the occupants were not experiencing any medical or other types of problems. Huftles claimed that he wanted to check on the health and safety of the driver and the passengers.
Bailey, the driver of the vehicle, was standing outside the vehicle as Huftles approached him. Two other occupants, Bailey's mother and Bailey's fiancee, remained inside of the vehicle. Huftles approached Bailey and asked him if everything was okay, and Bailey responded that his dog needed a break. Bailey's dog had exited the vehicle and was running around beside the road.
As Huftles spoke with Bailey, he noticed the smell of an alcoholic beverage coming from Bailey's breath. Bailey told Huftles that he had been out at Busters, a local bar and restaurant, and Bailey admitted to consuming a couple of beers. Huftles noticed that Bailey was leaning against the vehicle considerably, and this was one of the signs that he was trained to look for in determining whether a driver was impaired. Other than the odor of alcohol and the leaning, Huftles saw no other typical indicators signaling that Bailey was intoxicated.
Because the smell of alcohol on Bailey's breath raised Huftles' interest in the stop, Huftles asked Bailey for his driver's license. Huftles proceeded back to his patrol unit to run a check on Bailey's driver's license and vehicle tag. Huftles testified that the welfare check was resolved at the time that he asked for Bailey's identification; however, Huftles was suspicious that Bailey was committing the crime of DUI based primarily on the odor of alcohol.
As Huftles waited on dispatch to check on Bailey's driver's license and vehicle tag, Deputy Rugg arrived on the scene. Huftles informed Rugg that he smelled the odor of alcohol on Bailey and that Bailey had immediately lit up a cigarette. Huftles asked Rugg to speak with Bailey while they waited on dispatch in order to confirm that Bailey smelled of alcohol. Rugg confirmed a strong odor of alcohol coming from Bailey. Bailey again admitted to consuming two beers at Busters. Bailey agreed to perform some field sobriety tests and was subsequently arrested for DUI.
Bailey was charged with DUI, his second offense. On July 28, 2010, Bailey was convicted of DUI in magistrate court.
Bailey timely appealed his conviction to the district court. Bailey then filed a motion to suppress the evidence, arguing that Huftles lacked reasonable suspicion to believe that Bailey had committed or was committing a crime.
The district court conducted a hearing on Bailey's suppression motion, at which Huftles and Rugg testified as to the facts surrounding Bailey's arrest. The district court denied Bailey's motion to suppress, citing Nickelson v. Kansas Dept. of Revenue, 33 Kan.App.2d 359, 102 P.3d 490 (2004). In a written decision denying the motion, the court stated:
The evidence suggests that Deputy Huftles noted an odor of alcohol and the balance issues by Mr. Bailey upon initial contact. Deputy Huftles had previously noted the vehicle crossing the fog line and had received radio communication of unusual operation regarding a similar vehicle in the same geographic and time frame.
The evidence before the Court does not indicate the exact duration of the traffic stop. However, it has been the experience of the Court that brief conversation and a computer check through dispatch takes only a few minutes.
In the absence of evidence that Deputy Huftles was unreasonably extending the matter to afford Deputy Rugg the opportunity to arrive, the Court would decline to make such a finding.
The welfare check was both consensual and appropriate. The brief detention after smelling alcohol and observing the driver lean on his vehicle was completely justified.
The parties subsequently submitted the case for a bench trial on stipulated facts. Bailey stipulated that he consented to a breath test, which indicated a blood-alcohol concentration of 0.12. The district court found Bailey guilty as charged. Bailey timely appeals.
Bailey's argument on appeal is that the district court erred in denying his motion to suppress the evidence because Huftles lacked reasonable suspicion to further detain Bailey after Huftles had completed the welfare check under the belief that Bailey had committed or was committing a crime.
When reviewing a district court's decision on a motion to suppress, we review the factual underpinnings by substantial competent evidence without reweighing the evidence. Our review of the ultimate legal conclusion on the suppression issue is unlimited. See State v. Sanchez–Loredo, 294 Kan. 50, 54, 272 P.3d 34 (2012). The State has the burden of proving the lawfulness of the detention by a preponderance of the evidence. See State v. Marx, 289 Kan. 657, 660, 215 P.3d 601 (2009).
Importantly, Bailey does not challenge the validity of the initial encounter with the officer. The parties agree that Huftles had a basis for conducting a public safety stop after Bailey pulled off the highway and stopped his vehicle on a rural road at approximately 11:30 p.m. See State v. Gonzales, 36 Kan.App.2d 446, 451, 141 P.3d 501 (2006). The scope and duration of a seizure must be strictly tied to and justified by the circumstances which rendered its initiation proper. Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Damm, 246 Kan. 220, 224, 787 P.2d 1185 (1990). City of Norton v. Stewart, 31 Kan.App.2d 645, 647, 70 P.3d 707 (2003).
An officer should not request an individual's driver's license or supporting documentation after the purpose of the stop is completed absent establishing independent reasonable suspicion to believe that a crime has been or is being committed. However, if during the course of a public safety stop the officer gains reasonable suspicion that a crime has been committed or is being committed, the officer may further detain an individual for investigation. See Nickelson, 33 Kan.App.2d at 367, 102 P.3d 490. Reasonable suspicion is a particularized and objective basis for suspecting the person stopped is involved in criminal activity. State v. Pollman, 286 Kan. 881, Syl. ¶¶ 3–4, 190 P.3d 234 (2008). Significantly, reasonable suspicion to detain for further investigation is a less-demanding standard than probable cause to search or arrest. 286 Kan. 881, Syl. ¶ 6, 190 P.3d 234.
The question in this case is whether the officer had reasonable suspicion to detain Bailey beyond the reason for the initial encounter. The officer's initial encounter with Bailey was a welfare check or public safety stop. The officer's contact with Bailey was not based on the officer's belief that Bailey had committed, was committing, or was about to commit a crime. However, investigatory detentions are permitted under K.S.A. 22–2402 and the Fourth Amendment to the United States Constitution if an objective officer would have a reasonable and articulable suspicion that the detainee committed, is committing, or is about to commit a crime. Pollman, 286 Kan. 881, Syl. ¶ 3, 190 P.3d 234. Bailey asserts that the officer had no legitimate basis for extending the stop. In contrast, the State asserts that the odor of alcohol—coupled with observations of Bailey leaning against the vehicle, Bailey's admission of drinking, and the observation of suspicious driving patterns—provided reasonable suspicion to detain Bailey and begin an investigation for DUI.
Bailey relies on City of Hutchinson v. Davenport, 30 Kan.App.2d 1097, 54 P.3d 532 (2002), to support his position that the odor of alcohol on a person, standing alone, does not constitute reasonable suspicion to detain that individual for a DUI investigation. However, in Davenport, the officer spoke with Davenport and detected the odor of alcohol prior to seeing him drive. He advised Davenport not to drive, and Davenport responded that he was on foot. The officer then saw Davenport leave the police station, get into his vehicle, and drive away. The Court of Appeals upheld the district court's suppression of evidence on the basis that the odor of alcohol on the defendant's breath and the fact that Davenport reported that he was walking did not provide reasonable suspicion to support a stop. 30 Kan.App.2d at 1101, 54 P.3d 532. The court found the district court properly determined that there were no articulable facts which create a suspicion that Davenport was driving while under the influence or was involved in any other criminal activity. 30 Kan.App.2d at 1101, 54 P.3d 532.
But Davenport can be distinguished from the facts of the present case in two significant ways. First, the circumstances of the police encounter differ from Davenport because Bailey was not stopped due to an officer's detection of the odor of alcohol. Rather, Bailey was approached by Huftles for a welfare check, and the issue was whether the officer had reasonable suspicion to extend the detention beyond the reason for the initial encounter. Second, and most important, is the fact that there are more facts supporting reasonable suspicion in the present case. In addition to the odor of alcohol, Bailey was leaning against his vehicle for support while he spoke with the officer. Bailey also admitted to both officers that he had been drinking.
The State likens this case to Nickelson. In that case, at approximately 1 a.m., an officer saw Nickelson's car pull off the highway into a ‘farm plug’ turnaround and turn off its lights. 33 Kan.App.2d at 360, 102 P.3d 490. The officer had not observed any traffic violations, driving irregularities, or deviations. The officer pulled next to the vehicle to conduct a welfare check. While conducting the check, the officer noticed an odor of alcohol coming from the vehicle, which prompted him to ask the driver to step out of the vehicle. Once out of the vehicle, the officer could tell that the odor was coming from Nickelson. Based on this observation, the officer told Nickelson that he was going to perform field sobriety tests, and Nickelson was subsequently arrested for DUI.
In Nickelson, this court held that the smell of alcohol from a driver or a vehicle discovered during the course of a public safety stop provides sufficient justification to extend the scope and duration of the stop. 33 Kan.App.2d at 367, 102 P.3d 490. The Nickelson court distinguished Davenport because Nickelson was not initially stopped on the basis that the officer had detected the odor of alcohol. The Nickelson court found a distinction between basing a stop on the odor of alcohol and extending a stop for further investigation based on the odor of alcohol. 33 Kan.App.2d at 366–67, 102 P.3d 490. The court found that further detention for investigation was appropriate. 33 Kan.App.2d 367–68; see Pollman, 286 Kan. at 897, 190 P.3d 234 (totality of circumstances—including defendant's criminal obstruction of official duty, admission to drinking, and odor of alcohol—provided reasonable suspicion to justify investigation for DUI); Stewart, 31 Kan.App.2d 645, 649, 70 P.3d 707 (strong odor of alcohol coming from driver provided reasonable suspicion for further investigation); Pasek v. Kansas Dept. of Revenue, No. 91,933, 2004 WL 2694279 (Kan.App.2004) (unpublished opinion) (odor of alcohol sufficient to provide officer with reasonable suspicion that defendant had been operating his vehicle under influence of alcohol and provided sufficient justification for further investigation); State v. Haselhorst, No. 104,203, 2011 WL 3891869 (Kan.App.2011) (unpublished opinion) (officer gained reasonable suspicion to detain driver for further investigation after smelling odor of alcohol on his breath and observing his watery eyes).
In Stewart, the officer stopped the defendant's vehicle for an in operable headlight. The officer detected an odor of alcohol coming from the vehicle and ultimately determined that an odor was coming from Stewart's person. Stewart argued that being asked to exit his vehicle and accompany the officer to the patrol car was beyond the permissible scope of the traffic stop. However, the Court of Appeals found that the officer was not obligated to ignore the odor of alcohol and concluded that it provided sufficient reason to extend the scope and duration of the routine traffic stop. 31 Kan.App.2d at 649, 70 P.3d 707.
Huftles testified that he became suspicious when he smelled alcohol on Bailey. Additionally, Huftles observed Bailey leaning against the vehicle considerably during their encounter, which he knew was a sign of impairment. Bailey admitted to drinking a couple of beers prior to driving. Bailey asserts that it would not be unusual for an individual to lean against a vehicle while waiting for one's dog; similarly, he contends that the admission of drinking does not necessarily indicate that he was driving under the influence. However, our Supreme Court has said that courts should analyze all of the circumstances and not eliminate from consideration factors that might have an innocent explanation. See State v. Coleman, 292 Kan. 813, 817–18, 257 P.3d 320 (2011). In our view the aforementioned factors—which were all observed prior to Huftles' request for Bailey's driver's license—provide the particularized, objective facts sufficient to justify Huftles' decision to extend the scope and duration of Bailey's detention for further investigation.
During the course of a valid welfare check, the officer gained reasonable suspicion that Bailey had operated his vehicle while under the influence of alcohol. Accordingly, we find the district court did not err in denying Bailey's motion to suppress.
Affirmed.