Opinion
No. 110,496.
2015-02-6
STATE of Kansas, Appellee, v. Jeffrey REESOR, Appellant.
Appeal from Wabaunsee District Court; Gary L. Nafziger, Judge.Kevin P. Shepherd, of Topeka, for appellant.Norbert C. Marek, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wabaunsee District Court; Gary L. Nafziger, Judge.
Kevin P. Shepherd, of Topeka, for appellant. Norbert C. Marek, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
Jefferey A. Reesor appeals his conviction of driving under the influence of alcohol. He contends that Officer Sam Hamilton of the Wabaunsee County Sheriff's Office did not have reasonable suspicion to conduct a traffic stop. Accordingly, Reesor argues that all evidence obtained as a result of the stop should have been suppressed. Based on the totality of the circumstances, we find that the officer had reasonable suspicion to stop Reesor for allegedly violating two traffic laws. We also find no merit in Reesor's argument that his deficient sample breath test result was inadmissible. Lastly, we find that there was sufficient evidence to support Reesor's conviction. Thus, we affirm.
Facts
Around 7 p.m. on January 20, 2012, Officer Hamilton was monitoring traffic near the intersection of Keene–Eskridge Road and South Boundary Road in Wabaunsee County. Keene–Eskridge Road—which runs north and south—is a paved road, and South Boundary Road—running east and west—is a gravel road. While the officer was in his patrol vehicle sitting on the west side of Keene–Eskridge Road facing south, he observed a pickup truck with two occupants pass him and turn east onto South Boundary Road.
Using binoculars, Officer Hamilton observed the truck travel slowly about 1/2 mile down the road before it turned around and began heading back west. He then observed the truck turn around again and start heading east. After about 20 minutes, the officer drove in the truck's direction on South Boundary Road to investigate further. When he drove over the crest of a hill, Officer Hamilton observed the truck parked on the north side of the road facing east with both doors open. Shortly thereafter, the occupants closed the truck's doors and it pulled to the right side of the road and continued travelling east.
Officer Hamilton then stopped the truck. As he approached the driver, the officer smelled a strong odor of alcohol coming from the vehicle. He also noticed a red plastic cup on the floorboard as well as one in a cup holder. Officer Hamilton observed that the driver, Reesor, had red, glassy eyes, and that his speech was slurred. The officer also noticed that Reesor fumbled looking for his driver's license and proof of insurance. Officer Hamilton asked Reesor if he had been drinking, and he admitted that he had consumed a couple drinks.
After Officer Hamilton asked Reesor to step out of his vehicle and follow him to the rear of the vehicle, Reesor had to use the door and side of the truck to steady himself. When Reesor reached the rear of the truck, he leaned against the tailgate, so Officer Hamilton asked him to stand up straight. When he did so, Officer Hamilton noticed that Reesor continued to sway.
Initially, Officer Hamilton asked Reesor to recite his ABC's and count backwards from 90 to 60. Reesor again slurred his speech and missed a few numbers while counting backwards. Because they were on a gravel road and it was a cold and windy night, the officer did not have Reesor perform the one-leg-stand or the walk-and-turn field sobriety tests on the road. A video recorded the events, but the microphone on Officer Hamilton was unable to record their conversation because the battery was dead.
After placing Reesor under arrest, Officer Hamilton searched the vehicle. He discovered that the two red cups he had previously noticed contained a small amount of liquid but not enough for him to test for alcohol. Next, the officer found an open bottle of margarita mix on the floorboard below the passenger seat. Using his preliminary breath tester, he determined that the bottle contained alcohol.
Afterwards, Officer Hamilton transported Reesor back to the Sheriff's office at the Wabaunsee County Courthouse for additional testing. Once at the Sheriff's office, Reesor was unable to keep his balance during the walk-and-turn test and the one-leg-stand test. Once again, Reesor slurred his speech as he recited the ABC's and repeated several numbers when counting backwards. After Reesor gave his consent, Officer Hamilton administered a breath test using an Intoxilyzer 8000. The machine recorded a deficient sample blood-alcohol content of .187.
Reesor was charged with driving under the influence of alcohol—his second offense—and transporting an open container. Prior to trial, Reesor filed a motion to suppress any evidence obtained after Officer Hamilton stopped him. A magistrate judge denied Reesor's motion and subsequently found him guilty of both counts. Reesor timely appealed to the district court and renewed his motion to suppress.
The district court also denied the motion to suppress, and the case proceeded to a jury trial. At trial, Officer Hamilton testified at length as to the proper operation of the Intoxilyzer 8000. He produced the testing equipment's certification as well as his certifications to operate the machine. In addition, the officer explained what constitutes a deficient sample. At the conclusion of the trial, the jury found Reesor guilty of driving under the influence of alcohol and transporting an open container. He was sentenced to 48 hours of confinement and 6 months of probation.
Analysis
Reasonable Suspicion to Initiate a Stop
On appeal, Reesor contends that the district court erred in denying the motion to suppress because Officer Hamilton did not have reasonable suspicion to stop his vehicle. We use a bifurcated standard to review a district court's decision on a motion to suppress. The review of a district court's legal conclusions is unlimited. But we review a district court's factual findings to determine whether they are supported by substantial evidence. See State v. Sanchez–Loredo, 294 Kan. 50, 54, 272 P.3d 34 (2012). “Substantial evidence is such evidence that a reasonable person might accept as sufficient to support a conclusion.” State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). Whether reasonable suspicion existed is a question of law that is reviewed de novo. State v. Coleman, 292 Kan. 813, 817, 257 P.3d 320 (2011).
The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Section 15 of the Kansas Constitution Bill of Rights provides the same protection. State v. Moore, 283 Kan. 344, 349, 154 P.3d 1 (2007). It is well settled that a traffic stop is a seizure under the purview of the Fourth Amendment. See K.S.A. 22–2402(1); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Field, 252 Kan. 657, 664, 847 P.2d 1280 (1993). An officer, therefore, may conduct a traffic stop when (1) the officer knows of specific and articulable facts that create a reasonable suspicion that a person has violated a traffic law or (2) when the officer has probable cause. See State v. Greever, 286 Kan. 124, 136–37, 183 P.3d 788 (2008); State v. Miller, 49 Kan.App.2d 491, Syl. ¶ 1, 308 P.3d 24, rev. denied 298 Kan. –––– (December 27, 2013).
Whether an officer's suspicion is reasonable must be determined based on the totality of the circumstances. State v. Coleman, 292 Kan. 813, 817–18, 257 P.3d 320 (2011). “In considering the totality of the circumstances, a reviewing court should employ common sense and ordinary human experience and should accord reasonable deference to a law enforcement officer's ability to distinguish between innocent and suspicious actions.” 292 Kan. at 818, 257 P.3d 320.
“A traffic violation provides an objectively valid reason for conducting a traffic stop.” 292 Kan. at 818, 257 P.3d 320 (citing Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331 [1977] ). Further, “[t]he United States Supreme Court has specifically held that a traffic stop is not rendered invalid by the mere fact is it is a ‘mere pretext.’ “ State v. Jones, 300 Kan. 630, 638, 333 P.3d 886 (2014) (quoting United States v. Robinson, 414 U.S. 218, 221 n. 1, 94 S.Ct. 467, 38 L.Ed.2d 427 [1973] ); see Greever, 286 Kan. at 140, 183 P.3d 788.
Here, a review of the record reveals that Officer Hamilton had reasonable suspicion to stop Reesor's vehicle for both driving on the left side of the road and for parking his vehicle on the wrong side of the road. K.S.A. 8–1514(a) plainly provides: “Upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway, except [as provided].” Violation of K.S .A. 8–1514 is an absolute liability offense. State v. Chavez–Zbarra, 42 Kan.App.2d 1074, 1076, 221 P.3d 606 (2009). In addition, K.S.A. 8–1572(a) provides that a driver must ensure—when parking on a two-way road—that the right-hand wheels are as close to the right edge of the right-hand shoulder as is practicable. Furthermore, the fact that the road was made out of gravel with no clear dividing line is irrelevant because the plain and unambiguous language of these statutes make no such distinction.
We conclude that Officer Hamilton articulated specific facts that created a reasonable suspicion that Reesor violated one or more traffic laws. Furthermore, we conclude that the fact that the stop may have been pretextual does not render it invalid.
Probable Cause to Arrest
Reesor next argues that the district court erred in denying his motion to suppress because Officer Hamilton lacked probable cause to arrest him. “ ‘Probable cause is the reasonable belief that a specific crime has been or is being committed and that the defendant committed the crime.’ “ Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 20, 290 P.3d 555 (2012). It exists when the facts and circumstances within the arresting officer's knowledge are sufficient to assure a person of a reasonable caution that an offense has been or is being committed and the person being arrested is or was involved in a crime. State v. Hill, 281 Kan. 136, 146, 130 P.3d 1 (2006).
Probable cause is more than a mere suspicion but less than proof beyond a reasonable doubt. Moreover, it is the State's burden to justify a warrantless arrest. See State v. Oliver, 280 Kan. 681, 691, 124 P.3d 493 (2005), cert. denied 547 U.S. 1183, 126 S.Ct. 2361, 165 L.Ed.2d 286 (2006). Similar to reasonable suspicion, we must objectively look at the totality of the circumstances by evaluating the information a law enforcement officer had at the time of the warrantless arrest to determine whether probable cause existed. See State v. Ramirez, 278 Kan. 402, 406–07, 100 P.3d 94 (2004).
Here, a review of the record reveals that Officer Hamilton had probable cause to arrest Reesor. When the officer approached Reesor's vehicle, he smelled a strong alcoholic odor and observed a red plastic cup on the floorboard and one in a cup holder. He also noticed that Reesor had red and glassy eyes, used slurred speech, and fumbled with his driver's license and proof of insurance. Likewise, Reesor used the door and side of the truck to steady himself when walking to the rear of the vehicle, and he swayed after being asked to not lean against the tailgate. In addition, Reesor repeated several numbers when counting backward and even admitted to consuming alcohol before driving.
Reesor correctly states that it is not necessarily illegal to operate a motor vehicle after consuming alcohol as long as it does not unlawfully impair the driver. Reesor cites City of Hutchinson v. Davenport, 30 Kan.App.2d 1097, 54 P.3d 532 (2002), and State v. Arehart, 19 Kan.App.2d 879, 882, 879 P.2d 227 (1994), to support this contention. The record in this case reveals evidence of multiple factors upon which a reasonable law enforcement officer could believe that Reesor had illegally driven a motor vehicle while under the influence of alcohol. Whereas in Davenport, 30 Kan.App.2d at 1101, 54 P.3d 532, a panel of this court found that merely the smell of alcohol on a driver's breath was insufficient to establish reasonable suspicion; and in Arehart, 19 Kan.App.2d at 882, 878 P.2d 227, a panel of this court found that a driver's admission that he had one drink before driving was insufficient—by itself—to support a conviction.
Reesor also attempts to analogize his case to State v. Pollman, 41 Kan.App.2d 20, 204 P.3d 630 (2008), and City of Norton v. Wonderly, 38 Kan.App.2d 797, 172 P.3d 1205 (2007), rev. denied 286 Kan. 1176 (2008). But these cases are distinguishable from the present case. In Pollman, a panel of this court found that there was not probable cause to arrest a suspect when he passed three of four field sobriety tests and the suspect did not exhibit any usual physical manifestations of intoxication such as bloodshot eyes or slurred speech. See 41 Kan.App.2d at 29–32, 204 P.3d 630. Likewise, the defendant in Wonderly exhibited “ ‘fair’ and ‘not particularly slurred’ “ speech, did not fumble with his driver's license, and had no problems getting out of his vehicle and walking to the police car. 38 Kan.App.2d at 808, 172 P.3d 1205. In the present case, however, the totality of the circumstances indicates that Officer Hamilton had probable cause to arrest Reesor.
We, therefore, conclude that the district court did not err in denying Reesor's motion to suppress.
Admission of the Deficient Sample
Reesor argues that there was an insufficient foundation for the district court to admit evidence of the deficient sample test results obtained from the Intoxilyzer 8000. Specifically, Reesor argues that in order to admit evidence from an Intoxilyzer 8000, an expert in science must testify that the testing is accepted as reliable within the relevant field. Because this issue involves a question of law, our review is unlimited. See State v. Miller, 293 Kan. 535, 547, 264 P.3d 461 (2011).
At least two panels of this court have previously rejected Reesor's argument:
“In this appeal, Urban maintains that his conviction should be overturned because a deficient breath test result cannot be admissible because such samples violate the principles first published in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). The Frye standard is usually considered in Kansas in cases where a party applies ‘a new or experimental scientific technique’ performed by an expert witness. [Citation omitted.] When courts speak of the Frye test, their inquiries focus on whether an expert's opinion is based on a technique that is generally accepted as reliable in that witness' scientific field. [Citation omitted.] We do not think the Frye test comes into play here. In this case the State sought to admit this test result as a partial alcohol concentration test defined in K.S.A. 8–1013(f)(2) therefore making it admissible as ‘other competent evidence’ as contemplated by the rule in K.S.A. 8–1006(a).
“Such a procedure was approved by our Supreme Court in State v. Stevens, 285 Kan. 307, 172 P.3d 570 (2007). In Stevens, a prosecution under K.S.A. 8–1567(a)(3), the court approved this court's reasoning in State v. Herrman, 33 Kan.App.2d 46, 49, 99 P.3d 632 (2004), and State v. Maze, 16 Kan.App.2d 527, 533–34, 825 P.2d 1169 (1992), that equated a deficient breath test with a partial alcohol concentration test as used in K.S.A. 8–1013(f)(2). The Stevens court concluded the plain language of the statute compelled this result. State v. Urban, No. 102,268, 2010 WL 2044945, at *1 (Kan.App.2010) (unpublished opinion).
See State v. Ward, No. 89,917, 2003 WL 22831698, at *3 (Kan.App.2003) (unpublished opinion), rev. denied 277 Kan. 927 (2004).
In this appeal, Reesor offers nothing on this issue beyond the arguments made in Urban and Ward. Here, Officer Hamilton provided an extensive foundation, including how the Intoxilyzer 8000 operates, the machine's certification, his certification, and what constitutes a deficient sample. See State v. Almond, 15 Kan.App.2d 585, 588, 811 P.2d 529 (1991) (Officer's testimony that he was certified to run the machine, and testimony from county operations secretary that officer was certified to operate machine was sufficient foundation for admission of breath test result.). Thus, finding the analysis in Urban and Ward to be persuasive, we conclude the district court did not err in admitting the deficient sample.
Sufficiency of the Evidence
Finally, Reesor contends that there was insufficient evidence presented at trial to convict him of driving under the influence of alcohol. When a defendant challenges the sufficiency of evidence, we review the evidence in the light most favorable to the prosecution and then must determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. See State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). In determining whether there is sufficient evidence to support a conviction, we generally will not reweigh the evidence or a witness' credibility. 299 Kan. at 525, 324 P.3d 1078.
“A jury that has convicted a defendant is presumed to have believed the State's evidence and to have drawn from that evidence all inferences favorable to the State.” State v. Trautloff, 289 Kan. 793, 801, 217 P.3d 15 (2009). A verdict may be supported by circumstantial evidence, if such evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. However, the evidence need not exclude every other reasonable conclusion or inference. State v. Brooks, 298 Kan. 672, 689, 317 P.3d 54 (2014). In addition, a conviction of even the gravest offense can be based entirely on circumstantial evidence. 298 Kan. at 689, 317 P.3d 54.
K.S.A.2011 Supp. 8–1567(a)(3) defines driving under the influence as “operating or attempting to operate any vehicle ... under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle.” A deficient sample breath test is admissible to prove that the driver was incapable of safely driving a vehicle. See State v. Stevens, 285 Kan. 307, 320–22, 172 P.3d 570 (2007); cf. State v. Hartman, 26 Kan.App.2d 928, 931–32, 991 P.2d 911, rev. denied 269 Kan. 937 (2000). Furthermore, a law enforcement officer need not observe erratic driving in order for a jury to convict a defendant for driving while under the influence of alcohol. See State v. Blair, 26 Kan.App.2d 7, 7–8, 974 P.2d 121 (1999).
Here, we conclude that there is more than enough evidence for a reasonable juror to find Reesor guilty beyond a reasonable doubt. In addition to Officer Hamilton's observations before he arrested Reesor, he found an open bottle of margarita mix on the floorboard, which he determined contained alcohol. During his further testing at the Sheriff's office, Reesor was unable to keep his balance during the walk-and-turn test and the one-leg-stand test. He again slurred his speech as he recited the ABC's and repeated several numbers when counting backwards. And the results from the Intoxilyzer 8000, although a deficient sample, returned a blood-alcohol content of .187.
Affirmed.