Opinion
No. 106,035.
2012-06-1
STATE of Kansas, Appellee, v. Benjamin E. ROSS, Appellant.
Appeal from Johnson District Court; John P. Bennett, Judge. Joseph L. Dioszeghy, of Olathe, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, Andrew J. Dufour, legal intern, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; John P. Bennett, Judge.
Joseph L. Dioszeghy, of Olathe, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, Andrew J. Dufour, legal intern, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., MALONE and McANANY, JJ.
MEMORANDUM OPINION
PER CURIAM.
Benjamin Ross appeals his convictions of driving under the influence of alcohol (DUI) and driving while his driver's license was suspended (DWS). Ross claims the district court erred by denying his motion to suppress the evidence based on an unlawful traffic stop. The sheriff's deputy who initiated the traffic stop testified that he pulled Ross over solely for violating K.S.A. 8–1555. Because we conclude that the sheriff's deputy did not have an objectively reasonable belief that Ross violated K.S.A. 8–1555, we reverse Ross' convictions and remand to district court with directions to grant the motion to suppress.
On June 16, 2010, at approximately 11:41 p.m., Johnson County Deputy Sheriff John Klingele was on duty when he saw Ross drive a white truck from the parking lot of Bonita Flats Saloon (Bonita Flats) and turn onto 175th Street. The parking lot did not have curbs or other clear boundaries abutting 175th Street. According to Klingele, Ross failed to stop before leaving the parking lot and driving onto the road. Klingele followed Ross west on 175th Street and saw him turn north onto U.S. 169 Highway. Once Klingele reached U.S. 169 Highway, he activated his emergency lights and siren. After continuing to drive a short distance, Ross pulled over to the side of the highway.
Klingele approached the truck and informed Ross that he pulled him over for failure to stop as he was leaving the Bonita Flats parking lot. After obtaining Ross' driver's license, Klingele discovered that Ross was driving on a suspended driver's license. While talking to Ross, Klingele noticed indicators that Ross had been drinking. Klingele administered field sobriety tests and a preliminary breath test to Ross and, as a result, arrested Ross for DUI.
On August 17, 2010, the State charged Ross with one count of DUI and one count of DWS. Ross filed a motion to suppress the evidence, arguing that Klingele lacked reasonable suspicion to stop Ross' vehicle. The district court held a hearing on the motion on November 24, 2010. At the hearing, Klingele testified that the sole reason he stopped Ross' vehicle was because Ross failed to stop as he exited the Bonita Flats parking lot and turned onto 175th Street, in violation of K.S.A. 8–1555. The State also played the DVD recording from Klingele's in-car camera and submitted aerial photographs of the Bonita Flats parking lot and the surrounding area.
Ross also testified at the hearing, stating that he did stop in the parking lot, but that he did not do so immediately prior to exiting the parking lot. Ross argued that he was not required to stop when exiting the parking lot because the parking lot did not constitute an alley, building, private road, or driveway within a business or residence district; therefore, K.S.A. 8–1555 was inapplicable to his actions. Ross argued that Klingele, with his 9 years of experience as a law enforcement officer, should have known that such a failure to stop did not violate the statute; therefore, Klingele did not have a reasonable suspicion to stop Ross' vehicle.
After hearing the evidence, the district court denied the motion to suppress. The district court did not make a specific finding as to whether Ross' failure to stop before leaving the parking lot was an act prohibited by K.S.A. 8–1555. In fact, the district court concluded that Klingele “might have been wrong about it.... This may be one where you actually don't have to stop. I don't know.” Nevertheless, the district court concluded that Klingele had a “reasonable belief” that Ross violated the statute which constituted a sufficient basis for the stop.
The district court held a bench trial on January 25, 2011. At the trial, Ross renewed his objection to the admission of the evidence. The district court found Ross guilty on both counts. Ross timely appealed his convictions.
On appeal, Ross claims the district court erred by denying his motion to suppress. Ross renews his argument that K.S.A. 8–1555 did not require him to stop his truck as he was exiting the Bonita Flats parking lot. Thus, Ross argues that the traffic stop could not have been based on a violation of the statute. Ross also argues that Klingele did not have any other legal basis to justify the stop. In response, the State first contends that Ross' failure to stop before emerging onto 175th Street from the parking lot violated K.S.A. 8–1555. The State further contends that even if Ross' failure to stop before leaving the parking lot was not an act prohibited by K.S .A. 8–1555, Klingele had an objectively reasonable belief that Ross violated the statute which constituted a sufficient basis for the stop. Finally, as an alternative basis for the stop, the State argues that Klingele had reasonable suspicion to believe that Ross failed to yield to an emergency vehicle as required by K.S.A. 8–1530.
An appellate court reviews the district court's decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, the district court's factual findings are reviewed to determine whether they are supported by substantial competent evidence. Then the ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007). Moreover, whether reasonable suspicion exists is a question of law and appellate courts review this question with a mixed standard of review, determining whether substantial competent evidence supports the district court's factual findings, while the legal conclusion is reviewed de novo. State v. Thomas, 291 Kan. 676, 688–89, 246 P.3d 678 (2011). Finally, to the extent the issue on appeal involves statutory interpretation, that is a question of law over which an appellate court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Under the Fourth Amendment to the United States Constitution, a traffic stop is considered a seizure. Seizures are generally permissible if an objective officer would have a reasonable and articulable suspicion that the detainee committed, is about to commit, or is committing a crime. State v. Johnson, 293 Kan. 1, 5, 259 P.3d 719 (2011); see K.S.A. 22–2402(1). “The officer must be able to articulate more than an ‘inchoate and unparticularized suspicion’ or ‘hunch’ of possible criminal activity. [Citations omitted.]” State v. Coleman, 292 Kan. 813, 817, 257 P.3d 320 (2011).
Klingele stopped Ross' truck solely based on his failure to stop before emerging from the Bonita Flats parking lot in violation of K.S.A. 8–1555. This statute provides:
“The driver of a vehicle emerging from an alley, building, private road or driveway within a business or residence district shall stop such vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across such alley, building entrance, road or driveway, or in the event there is no sidewalk area, shall stop at the point nearest the street to be entered where the driver has a view of approaching traffic thereon.” (Emphasis added.)
In ruling on the motion to suppress, the district court did not make a specific finding as to whether Ross' failure to stop before leaving the parking lot violated K.S.A. 8–1555. Rather, the district court concluded that Klingele had a “reasonable belief” that Ross violated the statute which constituted a sufficient basis for the stop. Ross argues that Klingele's belief that he violated the statute could not have been objectively reasonable because his failure to stop before exiting the parking lot was not prohibited by K.S.A. 8–1555, and Klingele is charged with the knowledge of correctly applying the statute.
Ross cites State v. Knight, 33 Kan, App.2d 325, 326, 104 P.3d 403 (2004), to support his argument that Klingele's mistaken belief that Ross violated K.S.A. 8–1555 invalidates the stop. In Knight, the defendant was a passenger in a car that was stopped “for the purported traffic violation of exiting from a private drive onto a public street without signaling a turn.” 33 Kan.App.2d at 326. The traffic stop led to the defendant's arrest for illegal possession of pseudoephedrine. The defendant filed a motion to suppress the evidence and her statements on the ground that the stop was illegal. The district court found that the stop of the vehicle was valid, there was probable cause to arrest the defendant, the search of the vehicle was a lawful search incident to the arrest, and the defendant's statements were admissible. 33 Kan.App.2d at 326.
On appeal, after examining the city ordinance that allegedly required the use of the turn signal upon turning from a private drive, this court found that the ordinance did not regulate entering a public street from a private drive; rather the ordinance specifically applied to turning into a driveway from a roadway. 33 Kan.App.2d at 326. This court stated that “[a]n individual such as Officer Wannow whose employment by the city specifically includes enforcing the city's traffic ordinances is charged with knowledge of those ordinances and a common sense interpretation of them.” 33 Kan.App.2d at 327. This court ultimately found that “[a]bsent a traffic infraction, there was no reasonable suspicion to stop [the defendant's] vehicle.” 33 Kan.App.2d at 327. Because the traffic stop was determined to be invalid, this court concluded that the evidence and statements should have been suppressed. 33 Kan.App.2d at 327; see also State v. Henning, No. 95,708, 2006 WL 1976788 (Kan.App.2006) (unpublished opinion) (following Knight and holding that where conduct for which the driver was stopped was not prohibited by the statute cited for the stop, the officer did not have reasonable suspicion for the stop).
Moreover, our Supreme Court has addressed the issue, albeit in an administrative law context. In Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 627, 176 P.3d 938 (2008), an officer stopped the petitioner because of a malfunctioning rear brake light; one light was not working, but two other rear brake lights were functioning. The officer believed that the applicable ordinance required all three lights to work; in reality, two functioning rear brake lamps were sufficient under the law. 285 Kan. at 637. The officer initiated a traffic stop based on his misunderstanding of the law and, due to events that transpired after the stop, the Kansas Department of Revenue suspended the petitioner's driver's license. On appeal, the Kansas Supreme Court ultimately held the stop invalid, stating that “an officer's mistake of law alone can render a traffic stop violative of the Fourth Amendment and § 15 of the Bill of Rights.” 285 Kan. at 639.
Under the guidance of Knight and Martin, it is necessary to determine whether Ross' failure to stop before leaving the Bonita Flats parking lot was an act prohibited by K.S.A. 8–1555. If Klingele mistakenly believed that Ross was required to stop before leaving the parking lot, the traffic stop was unlawful and any evidence stemming from the stop must be suppressed. “ ‘The State bears the burden to demonstrate that a challenged search or seizure was lawful. [Citation omitted.]’ “ State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009).
Ross argues that K.S.A. 8–1555 is inapplicable because he was leaving a parking lot in a rural area and not “an alley, building, private road or driveway within a business or residence district.” Klingele testified that the sole reason he stopped Ross' vehicle was because Ross failed to stop as he exited the Bonita Flats parking lot and turned onto 175th Street. Clearly, K.S.A. 8–1555 only requires a driver to stop upon exiting an alley, building, private road, or driveway. The statute does not expressly require a driver to stop before exiting a parking lot. But the State points to K.S.A. 8–1451 which defines “private road or driveway” as “every way or place in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner, but not by other persons.” The State argues that the Bonita Flats parking lot fits within the broad statutory definition of “private road or driveway,” making K.S.A. 8–1555 applicable to Ross' conduct. But even if the Bonita Flats parking lot somehow constituted a private road or driveway, K.S.A. 8–1555 only applies to a private road or driveway “within a business or residence district.” The State concedes that the parking lot in question is not located within a residence district. As to whether the parking lot is located within a business district, K.S.A 8–1407 defines “business district” as follows:
“ ‘Business district’ means the territory contiguous to and including a highway when within any six hundred (600) feet along such highway there are buildings in use for business or industrial purposes, including but not limited to hotels, banks or office buildings, railroad stations and public buildings which occupy at least three hundred (300) feet of frontage on one side or three hundred (300) feet collectively on both sides of the highway.”
On appeal, the parties concede that Bonita Flats is the only building open for business along the relevant portion of 175th Street. At the hearing on the motion to suppress, the parties focused their arguments on the amount of frontage that Bonita Flats owned on 175th Street. Ross presented an exhibit obtained from the Register of Deeds that showed the Bonita Flats property abutted 175th Street for 210.13 feet. Although the entire Bonita Flats parking lot measured more than 300 feet, the undisputed evidence established that the frontage of the building was substantially less than 300 feet, thereby failing to come within the definition of a business district. Thus, because the evidence established that Ross' truck was exiting a parking lot in a rural area and not an alley, building, private road, or driveway within a business or residence district, we conclude that K.S.A. 8–1555 was inapplicable to Ross' conduct.
The evidence at the hearing on the motion to suppress indicated that Klingele subjectively believed that it constituted a traffic infraction to drive from a parking lot onto a road without stopping first. But this was a mistake of law, as the officer made in Knight, Klingele is charged with knowledge of the traffic statutes and a common sense interpretation of them. And whether there was reasonable suspicion that Ross committed a traffic infraction is subject to an objective determination. Johnson, 293 Kan. at 5. Based upon the record, we conclude that Klingele did not have an objectively reasonable belief that Ross committed a traffic infraction in violation of K.S.A. 8–1555.
Finally, the State argues that, in addition to believing that Ross violated K.S.A. 8–1555, Klingele had reasonable suspicion to believe that Ross violated K.S.A. 8–1530 because the videotape of the traffic stop indicates that Ross did not immediately pull over when Klingele activated his emergency lights. One problem with the State's argument is that Klingele testified repeatedly that his only basis for the stop was a violation of K.S.A. 8–1555. More importantly, K.S.A. 8–1530 requires vehicles to pull over to the side of the road in order to let emergency vehicles pass by; the statute is inapplicable to a driver who is allegedly eluding a police officer trying to make a stop, as the State argues. Thus, Ross' alleged violation of K.S.A. 8–1530 does not provide an alternative basis for the stop.
In summary, Klingele did not have an objectively reasonable belief that Ross committed a traffic infraction. Absent a traffic infraction, Klingele had no reasonable suspicion to stop Ross' truck. Accordingly, we conclude the district court erred by denying Ross' motion to suppress the evidence.
Reversed and remanded with directions to grant the motion to suppress.