City of Norton v. Stewart

• Decision Date: 13 June 2003
• Docket Number: No. 89,430,89,430
• Citation: 70 P.3d 707,31 Kan.App.2d 645
• Parties: CITY OF NORTON, Appellee, v. DUSTIN R. STEWART, Appellant.
• Court: Kansas Court of Appeals

31 Kan.App.2d 645

70 P.3d 707

CITY OF NORTON, Appellee, v. DUSTIN R. STEWART, Appellant.

No. 89,430

Court of Appeals of Kansas

Opinion filed June 13, 2003.

Daniel C. Walter, of Ryan, Walter & McClymont, Chtd., of Norton, for appellant.

R. Douglas Sebelius, Norton City Prosecutor, of Norton, for appellee.

Before BEIER, P.J., JOHNSON, J., and WAHL, S.J.

JOHNSON, J.:

Dustin R. Stewart appeals his convictions for driving under the influence of alcohol (DUI) and transporting an open container, based upon the trial court's denial of his suppression motion. Finding Stewart's detention did not extend beyond that which is permissible for a lawful traffic stop, we affirm.

Thad Brown, a City of Norton law enforcement officer, stopped Stewart's vehicle for an inoperable headlight. In the process of effecting the stop, Brown ran a radio check of the vehicle license tag. As Brown approached the stopped vehicle, he saw Stewart putting Copenhagen tobacco in his mouth. Upon making contact with Stewart, Brown noticed a strong odor of alcohol emanating from inside the vehicle, which also contained a passenger. Brown asked for Stewart's driver's license and insurance information. Stewart produced his license and the vehicle registration; he could not produce an insurance card. Brown's normal procedure would have been to call on the radio to check the driver's license.

Brown then asked Stewart to step out of the vehicle and accompany Brown to the patrol car. Brown had Stewart remove the tobacco from his mouth. Inside the patrol car, Brown detected a strong odor of alcohol coming from Stewart. During a brief conversation in the patrol car, Stewart admitted that he had consumed beer at a rodeo in Nebraska, as well as drinking a few on the drive home. Brown asked Stewart to perform a preliminary breath test (PBT), which he did. When the test indicated the presence of alcohol, Brown had Stewart exit the patrol car and perform field sobriety tests (FST). Based on Stewart's FST performance, Brown administered another PBT, which Stewart failed. After arresting Stewart for DUI, Brown seized beer from Stewart's vehicle, including an open can.

Stewart was charged in municipal court with DUI, transporting an open container, and no proof of liability insurance. The no proof of insurance charge was dismissed, but Stewart was convicted of the remaining charges. He appealed to the district court and filed a motion to suppress, claiming the scope and duration of his detention violated his Fourth Amendment rights. The district court denied the motion, finding "that the officer's detection of an odor of alcoholic beverage in dealing with the defendant gave the officer reasonable, articulable suspicion to believe there existed an alcohol-related violation and expand the scope of his detention of the defendant to investigate further." The trial then proceeded upon stipulated facts, and Stewart was convicted of DUI and transporting an open container.

The sole issue on appeal is the denial of Stewart's suppression motion. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review. State v. Alvidrez, 271 Kan. 143, 145, 20 P.3d 1264 (2001).

Stewart contends that when he was required to exit his vehicle, his detention was expanded beyond that which is permissible for a routine traffic stop. Stewart relies on Brown's candid statements that he always issues a warning ticket for a defective headlight violation and that he removed Stewart from the vehicle to ascertain whether the odor of alcohol was coming from Stewart rather than from the passenger or another source within the vehicle. However, the United States Supreme Court has taught us that a law enforcement officer's subjective motive or deviation from normal procedure is not determinative of an unlawful detention claim so long as the officer was justified in his or her actions because of a traffic infraction. See Whren v. United States, 517 U.S. 806, 135 L. Ed. 2d 89, 116 S. Ct. 1769 (1996) (permitting evidence obtained through pretextual stop based upon traffic infraction). Therefore, the question should be whether Brown's detention of Stewart exceeded the scope of a routine traffic stop, when viewed objectively.

The stop of a moving vehicle always constitutes a seizure. State v. McKeown, 249 Kan. 506, 510, 819 P.2d 644 (1991). 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, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); State v. Damm, 246 Kan. 220, 224, 787 P.2d 1185 (1990).

"`A traffic stop is a seizure within the meaning of the Fourth Amendment, "even though the purpose of the stop is limited and the resulting detention quite brief." [Citation omitted.] An ordinary traffic stop is, however, more analogous to an investigative detention than a custodial arrest. We therefore analyze such stops under the principles pertaining to investigative detentions set forth in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). To determine the reasonableness of an investigative detention, we make a dual inquiry, asking first "whether the officer's action was justified at its inception," and second "whether it was reasonably related in scope to the circumstances which justified the interference in the first place." [Citations omitted.]'" State v. Mitchell, 265 Kan. 238, 241, 960 P.2d 200 (1998).

Stewart concedes that the initial stop was lawful, but suggests that Brown was only authorized to detain him for the few minutes required to...