Opinion
No. 107,320.
2012-07-27
STATE of Kansas, Appellant, v. Jeffrey Leroy GROSS Sr., Appellee.
Appeal from Saline District Court; Jerome P. Hellmer, Judge. Amy E. Taylor, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellant.
Appeal from Saline District Court; Jerome P. Hellmer, Judge. Amy E. Taylor, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellant.
Wm. Rex Lorson, of Salina, for appellee.
Before PIERRON, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
The State appeals the district court's decision to grant Jeffrey Leroy Gross' motion to suppress evidence based on lack of reasonable suspicion for a traffic stop. We affirm
Gross was charged with driving under the influence (DUI), in violation of K.S.A. 8–1567(a); transporting an open container, in violation of K.S.A. 8–1599; and failing to maintain a single lane, in violation of K.S.A. 8–1522. Before trial, Gross filed a motion to suppress the evidence seized as a result of his alleged illegal stop, detention, and arrest. Gross argued that his driving actions “did not constitute a violation of law” and the stop of his truck “was not based on sufficient reasonable suspicion of a violation of law.” On September 30, 2011, the district court held an evidentiary hearing on the motion.
At the suppression hearing, Deputy Scott Anderson of the Saline County Sheriff's Department testified that on August 17, 2010, at 9:30 p.m., he was travelling east on Old Highway 40. There was no inclement weather. Old Highway 40 is a paved road with a centerline and fog line. It drops off onto a gravel shoulder. A pickup truck was travelling in the same direction about 100 yards in front of his patrol car. The truck caught his attention when its passenger tires crossed the fog line, left the road, and “caused rocks and gravel to kick up.” Deputy Anderson followed the truck for 2 to 3 miles or “a couple of minutes.” During that time, he saw the truck “weave in its lane,” touch the centerline, and travel onto the shoulder three or four times, sometimes completely crossing the fog line and other times leaving the road and “kick [ing] up the dust and dirt.”
Deputy Anderson initiated a traffic stop at 9:32 p.m. because “it appeared not to be an isolated incident” and there could have been “something wrong that was causing the driving behavior.” After he activated the emergency lights on his patrol car, the truck immediately pulled over. Deputy Anderson made contact with the driver, whom he identified as Gross. He had Gross perform various field sobriety tests and take a preliminary breath test before arresting him for DUI and transporting an open container.
Deputy Anderson's patrol car video was also admitted into evidence at the suppression hearing. The video captured just over 3 minutes of Gross' driving before the emergency light activation. The footage shows Gross' truck driving on the fog line twice when navigating bends in the narrow road; touching the fog line twice; and touching the centerline once. It does not show the truck crossing the fog line or kicking up any gravel.
The district court granted Gross' motion to suppress “because the deputy lacked reasonable suspicion to stop the defendant's vehicle.” The State filed a timely notice of interlocutory appeal, which read: “Notice is hereby given that the State of Kansas, pursuant to K.S.A. 22–3602(d) and K.S.A. 22–3603, appeals from the decision of the District Court to grant the defendant's Motion to Suppress entered on the Friday, September 30, 2011, to the District Court of Saline County, Kansas.” (Emphasis added.)
Gross argues the appellate court lacks jurisdiction because the State's notice of appeal named the wrong court to which it was appealing. The State does not respond this argument. Jurisdiction is a question of law over which this court exercises unlimited review. State v. Ballard, 289 Kan. 1000, 1005, 218 P.3d 432 (2009).
“The State's right to appeal in a criminal case is strictly statutory, and the appellate court has jurisdiction to entertain a State's appeal only if it is taken within time limitations and in the manner prescribed by the applicable statutes. [Citations omitted.]” State v. Sales, 290 Kan. 130, 134–35, 224 P.3d 546 (2010).
K.S.A. 60–2103(b) states in relevant part: “The notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from, and shall name the appellate court to which the appeal is taken.” (Emphasis added.)
The Kansas Supreme Court has emphasized: “ ‘The right to appeal should not be unduly restricted,’ “ and has “ ‘generally held that a notice of appeal should be liberally construed and a defect in the notice should not be a basis for relief unless the defect results in prejudice to a party.’ “ State v. Berreth, 294 Kan. 98, 131–32, 273 P.3d 752 (2012) (quoting State v. Martin, 232 Kan. 778, 780, 658 P.2d 1024 (1983). See Associcated Wholesale Grocers, Inc. v. Americold Corporation, 293 Kan. 633, 637–40, 270 P.3d 1074 (2011) (liberally construing notice of appeal that had incomplete caption and failed to list all district court rulings).
In Alliance Mutual Casualty Co. v. Boston Insurance Co., 196 Kan. 323, 326–27, 411 P.2d 616 (1966), our Supreme Court held that the omission of the phrase “to the Supreme Court” in a notice of appeal was not a ground for dismissal, but an irregularity to be disregarded unless the appellee was misled thereby. See State v. Tahirkheli, No. 105,191, 2011 WL 5027126, at *1 (Kan.App.2011) (unpublished opinion) (Generic reference to “appellate courts” not jurisdictional defect because the State “was plainly put on notice of what case was being appealed,” and “was in no way misled or disadvantaged by the language of the notice ... [nor did] it claim to have been.”).
Here, the notice of appeal inaccurately stated that the State's appeal was being taken to “the District Court of Saline County, Kansas” rather than “the Court of Appeals of the State of Kansas.” The fact that there was only one Kansas appellate court at the time of Alliance Mutual made it nearly impossible for the appellee to prove it was misled. But in this case, the State could have been appealing to either the Kansas Court of Appeals or the Kansas Supreme Court. Gross does not argue that he was misled by the State's notice of appeal.
Therefore, the State's use of the phrase “District Court of Saline County, Kansas” does not amount to a jurisdictional defect because it does not appear that Gross was misled by the language. Accordingly, the notice of appeal was adequate to provide this court with jurisdiction to review the suppression issue.
The State also argues that Deputy Anderson had reasonable suspicion to initiate a traffic stop because he observed Gross commit a single lane violation and a right of center violation.
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit unreasonable governmental searches and seizures. A traffic stop is considered a seizure of the driver. State v. Marx, 289 Kan. 657, 661, 215 P.3d 601 (2009). To lawfully stop a moving vehicle, an officer must have reasonable suspicion, supported by specific, articulable facts, that a crime has been, is being, or is about to be committed. K.S.A. 22–2402(1) (codifies Terry v. Ohio, 392 U.S. 1, 20–21, 88 S.Ct. 1868, 20 L.Ed.2d 889 [1968] );Marx, 289 Kan. at 661, 215 P.3d 601. At a suppression hearing, the prosecution must prove reasonable suspicion by a preponderance of the evidence, and can do so by showing that the officer saw a prestop traffic violation. Marx, 289 Kan. at 660–62, 215 P.3d 601.
We note that findings such as those made here by the district court are negative findings and will not be disturbed on appeal absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. Marx, 289 Kan. at 661, 215 P.3d 601.
An appellate court reviews a district court's decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, it reviews the district court's factual findings to determine whether they are supported by substantial competent evidence. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007); see State v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009) (“An appellate court does not weigh evidence to find facts.”). Then it reviews the ultimate legal conclusion regarding the suppression of evidence using a de novo standard. Woolverton, 284 Kan. at 70, 159 P.3d 985.
In this case, the State presented two types of evidence at the suppression hearing: Deputy Anderson's testimony and a video of the traffic stop. After granting Gross' motion to suppress, the district court explained that it considered the deputy's testimony but believed the video to be “the clearest evidence.” The court's legal conclusion—Deputy Anderson lacked reasonable suspicion to stop Gross—was based on the following factual findings: (1) Gross' truck “had only two indicators of some either inattentiveness or unknown activity that caused it to come into contact with the fog line”; (2) over the next “three-quarter[s] of a mile if not longer ... [the truck had no] problems at all maintaining its driving path,” except “one time when it came close to the center line and maybe touched it”; and (3) the video did not show the “gravel spray” about which the deputy testified, or “the other ... erratic driving that would cause one to be concerned in this matter.”
The State claims Deputy Anderson saw Gross violate K.S.A. 8–1522(a), which provides: “A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”
In Marx, our Supreme Court interpreted K.S.A. 8–1522(a) as requiring “a driver to keep entirely within a single lane while traveling on a roadway with two or more clearly marked lanes,” unless “it becomes impracticable to stay within the lane markers.” 289 Kan. at 673, 215 P.3d 601. The court explained that because failure to maintain a single lane is not an absolute liability offense, “a detaining officer must articulate something more than an observation of one instance of a momentary lane breach.” 289 Kan. at 675, 215 P.3d 601. Ultimately, the court held that the State failed to prove reasonable suspicion because the officer had “only observed one instance where the motor home did not maintain a single lane” (crossed fog line, overcorrected, and crossed dotted lane line), and the officer “gave no testimony from which the court could even infer that it was practicable to maintain a single lane.” 289 Kan. at 675–76, 215 P.3d 601 (affirming suppression of evidence).
Here, the district court's factual findings that Gross' truck touched the fog line on two occasions and the centerline on one occasion is supported by substantial competent evidence—the video—which does not corroborate Deputy Anderson's testimony about weaving and repeated crossings of the fog line. The court likely found Gross' driving on the fog line around bends to be normal. Although the State asserts that Gross' initial crossing of the fog line, gravel spray and all, was not captured on the video, the deputy did not indicate when he activated his patrol car camera. We do not reweigh the evidence, and the district court's conclusion that the video was “the clearest evidence” is not contrary to any uncontested testimony.
This court has held that crossing a lane marker once constitutes reasonable suspicion of a single lane violation. See State v. Rudolph, No. 101,169, 2010 WL 348274, at *4 (Kan.App.2010) (unpublished opinion). But see State v. Sullivan, No. 101,850, 2009 WL 3378215, at *3 (Kan.App.2009) (unpublished opinion) (crossing lane marker once is not enough). This court has also held that crossing the fog line on two occasions amounts to reasonable suspicion. See State v. Shepard, No. 102,653, 2011 WL 1814711, at *3 (Kan.App.2011) (unpublished opinion). And so does repeatedly touching the fog line and crossing it four to six times. See State v. Pollman, No. 105,227, 2012 WL 309072, at *3 (Kan.App.2012) (unpublished opinion) ( petition for review filed February 24, 2012). Here, Gross' truck touched the fog line twice. Deputy Anderson did not have reasonable suspicion that Gross committed a single lane violation because his truck never crossed the fog line.
The State also suggests Deputy Anderson saw Gross violate K.S.A. 8–1514, which provides that “a vehicle shall be driven upon the right half of the roadway, except” when (1) passing, (2) there is an obstruction, (3) the road has three lanes, or (4) the road is restricted to one-way traffic. See State v. Hopper, 260 Kan. 66, 70–71, 917 P.2d 872 (1996) (deeming failure to stay right of centerline an absolute liability offense).
This court has held that crossing the centerline once constitutes reasonable suspicion of a right of center violation. See State v. Taylor, No. 104,783, 2011 WL 6943105, at *4–5 (Kan.App.2011) (unpublished opinion) (driver's side wheels crossed into oncoming lane); State v. Garza, No. 102,953, 2010 WL 3853222, at *6 (Kan.App.2010) (unpublished opinion). Here, Gross' truck touched the centerline once. Deputy Anderson did not have reasonable suspicion that Gross committed a right of center violation because his truck never crossed the centerline.
Furthermore, the district court's factual finding that Gross did not otherwise drive erratically is also supported by substantial competent evidence—again, the video. This forecloses any argument that Deputy Anderson had reasonable suspicion of DUI under State v. Field, 252 Kan. 657, 664, 847 P.2d 1280 (1993) (holding that “the repeated weaving of a vehicle within its own lane may constitute sufficient reasonable suspicion for an officer to stop and investigate the driver of the vehicle”).
The State's sole claim on appeal is that Deputy Anderson had reasonable suspicion to stop Gross' truck. The district court correctly ruled to the contrary based on the evidence before it as reasonably interpreted by the court.
Affirmed.