City of Dodge City v. Webb

• Decision Date: 21 October 2016
• Docket Number: No. 109,634,109,634
• Citation: 381 P.3d 464
• Parties: City of Dodge City, Appellee, v. Orie J. Webb, Appellant.
• Court: Kansas Supreme Court

381 P.3d 464

City of Dodge City, Appellee,

v.Orie J. Webb, Appellant.

No. 109,634

Supreme Court of Kansas.

Opinion filed October 21, 2016

Michael S. Holland II, of Holland and Holland, of Russell, argued the cause and was on the brief for appellant.

Terry J. Malone, of Williams, Malone & Ralph, P.A., of Dodge City, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by Stegall, J.:

Orie J. Webb was convicted of driving under the influence after his motion to suppress evidence of his blood alcohol content obtained from a breath test was denied by the district court. Webb appealed his conviction arguing, in part, that the district court had erred by not suppressing the results of the breath test. Webb contended that he had been unconstitutionally coerced into submitting to the test because officers threatened to obtain a warrant for a blood test when, according to Webb, the officers could not lawfully have obtained such a warrant.

The Court of Appeals rejected Webb's argument and held that Kansas law would have permitted law enforcement to obtain a warrant, and thus the threat to do so was not coercive. See City of Dodge City v. Webb , 50 Kan.App.2d 393, 394, 329 P.3d 515 (2014), rev. granted in part 302 Kan. 1008 (2015). We granted Webb's petition for review on this issue only in order to resolve a split between the holdings in this case and in Hoeffner v. Kansas Dept. of Revenue , 50 Kan.App.2d 878, 335 P.3d 684 (2014), rev. granted 302 Kan. 1009 (2015). We conclude that the Court of Appeals holding below was correct, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Court of Appeals panel adequately summarized the relevant facts:

“On November 24, 2011, at 1:56 a.m., Officer Justin Warkentin of the Dodge City Police Department stopped a vehicle for an insufficiently illuminated license plate; Warkentin could not read the expiration date on the plate. At the time of the stop, Warkentin did not suspect the driver was impaired.

“As he approached, Warkentin detected a strong odor of alcohol coming from inside the vehicle. Warkentin identified Webb as the driver and noted there were two passengers in the vehicle. The passengers admitted to drinking, but Webb denied having had anything to drink.

“After he checked Webb's driver's license, Warkentin asked Webb to step out of the vehicle so he could determine whether the odor of alcohol was coming from Webb or his passengers. After Webb exited the vehicle, Warkentin determined there was a moderate odor of alcohol coming from Webb's person and asked Webb a second time whether he had consumed any alcoholic beverages. Webb admitted to drinking one beer.

“Webb agreed to perform two field sobriety tests and failed both; he displayed four out of eight clues of impairment on the walk-and-turn test and three out of four clues of impairment on the one-leg-stand test. At the conclusion of the field sobriety tests, Webb agreed to take a PBT, the results of which indicated his blood-alcohol level was .127.” Webb , 50 Kan.App.2d at 394–95, 329 P.3d 515.

The panel found that probable cause supported Officer Warkentin's belief that Webb was driving under the influence and justified his request that Webb submit to the preliminary breath test. 50 Kan.App.2d at 398, 329 P.3d 515. Those findings are not under review here.

Following Webb's preliminary breath test, Warkentin arrested Webb and transported him to the Ford County Jail for further testing with an Intoxilyzer. At the jail, Warkentin gave Webb a copy of the DC–70 implied consent form and read the form to him. Warkentin then asked Webb if he wanted to submit to a breath test. Warkentin testified:

“He said he didn't really want to. I don't remember his exact words. And, I basically told him that if that was gonna be his decision, that my policy, or, what we were told at the Police Department, is that we have to apply for a search warrant if the subject refuses the Intoxilyzer 8000.”

Warkentin told Webb he would obtain a search warrant for a blood draw. Webb replied that he was scared of needles and did not want his blood taken. Given these alternatives, Webb consented to take the Intoxilyzer test, the results of which showed his blood alcohol content to be over the legal limit.

The district court denied Webb's motion to suppress the results of the breath test, reasoning that because the officers would have been legally able to obtain a warrant for a blood draw, Warkentin's statements to Webb were truthful and therefore not impermissibly coercive so as to render Webb's consent involuntary. The Court of Appeals agreed, as do we.

ANALYSIS

The standard of review governing an appeal of a trial court's decision on a motion to suppress is well established:

“An appellate court generally reviews a trial court's decision on a motion to suppress using a bifurcated standard. The trial court's findings are first reviewed to determine whether they are supported by substantial competent evidence. Appellate courts do not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. The ultimate legal conclusion regarding the suppression of evidence is then reviewed de novo. If the material facts in a trial court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. [Citation omitted.]” State v. Martinez , 296 Kan. 482, 485, 293 P.3d 718 (2013).

Here, the material facts are not in dispute. The only remaining questions are questions of law over which we exercise plenary review.

“For a consent to search to be valid, two conditions must be met: (1) There must be clear and positive testimony that consent was unequivocal, specific, and freely given and (2) the consent must have been given without duress or coercion, express or implied.” State v. Thompson , 284 Kan. 763, 776, 166 P.3d 1015 (2007).

“Generally, a threat to obtain rather than a threat to seek a search warrant will invalidate a subsequent consent if there were not then grounds upon which a warrant could issue. If a law enforcement officer states that a search warrant can be obtained and, in fact, there are grounds for the issuance of a warrant, the statement is correct and does not constitute coercion. However, law enforcement officers act at their peril in threatening to obtain a search warrant unless probable cause actually exists.” State v. Brown , 245 Kan. 604, 612–13, 783 P.2d 1278 (1989).

The district court held that there existed sufficient probable cause to support a warrant for a blood draw in this case. The Court of Appeals agreed, and that holding is not before us on review. The narrow issue this appeal presents is whether Kansas law—at the time of Webb's arrest—permitted any testing of a person's blood alcohol content after that person refused a test pursuant to the terms of the implied consent rubric. Webb argues that following his refusal, the State was statutorily prohibited from obtaining any subsequent testing and that, therefore, while such testing may not have been prohibited by the Fourth Amendment to the United States Constitution, it nonetheless was legally unavailable to law enforcement in his case. Thus, Webb reasons, law enforcement officers were incorrect when they claimed they could obtain a warrant for a blood draw, and his ensuing consent was then rendered involuntary.

Webb's reasoning is valid, but it is not sound. In other words, Webb is correct that regardless of what is permissible pursuant to the Fourth Amendment, Kansas may enact statutes that place greater restrictions on law enforcement. See State v. James , 301 Kan. 898, 908, 349 P.3d 457 (2015). Webb is further correct that if such a statutory scheme exists, it would render a threat to obtain a warrant in reliance on Fourth Amendment principles factually infirm on other grounds and thus fatally undermine any subsequent consent. But while it is clear that such a statutory scheme once existed in Kansas, by the time of Webb's arrest, it no longer did.

Webb relies on the holding of State v. Adee , 241 Kan. 825, 833, 740 P.2d 611 (1987), that a search warrant cannot be obtained to compel a blood test after a defendant has refused testing pursuant to the Kansas implied consent laws. In reaching this conclusion, the Adee court relied on K.S.A. 1986 Supp. 8–1001(f)(1)(E) which stated in part: “ ‘If the person refuses to submit to ... a test as requested ... additional testing shall not be given.’ ” 241 Kan. at 831, 740 P.2d 611. “This provision is not construed to be a right of refusal but, rather, it was included in the statute ‘as a means to avoid the violence which would often attend forcible tests upon a rebellious drunk.’ ” 241 Kan. at 831, 740 P.2d 611 (quoting State v. Garner , 227 Kan. 566, 571–72, 608 P.2d 1321 [1980] ).

As the Court of Appeals panel below recognized, the implied consent laws went through numerous iterations in the 20 years following Adee, which slightly modified this outright prohibition on subsequent tests. Following revisions in 2003, 2006, and 2007, both this court and different panels of the Court of Appeals held that subsequent testing after a refusal could only be obtained when a person had been involved in an accident involving death or serious bodily injury. See, e.g. , State v. May , 293 Kan. 858, 865, 269 P.3d 1260 (2012) ; State v. Fritzemeier , No. 97016, 162 P.3d 66, 2007 WL 2080481 (Kan. App. 2007) (unpublished opinion); State v. Befort , No. 91565, 103 P.3d 993, 2005 WL 81499, at *3 (Kan. App. 2005) (unpublished opinion). But for this exception, the portions of the implied consent statute reviewed in May, Fritzemeier, and Befort were substantially identical to the language at issue in Adee, as follows:

“If the person refuses to submit to ... a test as requested pursuant to this section, additional testing shall not be given unless the certifying officer has probable cause to believe that the

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