Nickelson v. Kansas Dept. of Revenue

• Decision Date: 17 December 2004
• Docket Number: No. 92,164.,92,164.
• Citation: 33 Kan.App.2d 359,102 P.3d 490
• Parties: ALLEN J. NICKELSON, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
• Court: Kansas Court of Appeals

33 Kan.App.2d 359

102 P.3d 490

ALLEN J. NICKELSON, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.

No. 92,164.

Court of Appeals of Kansas.

Opinion filed December 17, 2004.

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

Ted E. Smith, of Kansas Department of Revenue Legal Services Bureau, of Topeka, for appellee.

Before MCANANY, P.J., MALONE, J., and LARSON, S.J.

MALONE, J.:

Allen J. Nickelson appeals the district court's judgment affirming the Kansas Department of Revenue's (KDR) suspension of his driver's license resulting from Nickelson's blood alcohol breath test failure. Nickelson claims that the arresting officer had no lawful grounds to approach Nickelson's vehicle which had pulled off the highway. Nickelson further claims that even if the initial encounter was justified for public safety, the arresting officer improperly expanded the scope and length of the detention. We affirm.

Factual and procedural background

On November 10, 2002, at approximately 1 a.m., Kansas Highway Patrol (KHP) Trooper Andrew Schippers was on patrol on Highway 24 in Thomas County. Schippers was finishing a traffic stop of another vehicle when he saw Nickelson's vehicle approximately ¼ mile away. Schippers observed Nickelson's vehicle driving east on Highway 24 and observed the vehicle turn south into a "farm plug" or driveway. The vehicle then made a circle and stopped, facing north toward Highway 24. There were no farm buildings, outbuildings, businesses, or residences in the area where Nickelson parked his vehicle. After turning into the driveway from Highway 24, Nickelson turned off the vehicle's lights. The weather was cold but clear. Schippers noticed no traffic violations, driving irregularities, or deviations. However, Schippers was concerned that Nickelson might be in distress because Nickelson had turned into the "middle of nowhere" and turned off his vehicle's lights. Schippers testified that it was KHP policy to check on the welfare of any stranded motorist and that his supervisors had given him instructions to stop and assist people on the highways. Schippers testified that if somebody has pulled off the side of the road, he always checks on them, as he did the night in question. Schippers claimed that the purpose of approaching Nickelson's vehicle was to check on his welfare, "but also in the back of my mind, too, I — I mean I — I felt that activity was suspicious."

Schippers stopped his patrol vehicle next to Nickelson's which blocked Nickelson's vehicle from the highway. Schippers turned on his spotlight and observed that Nickelson's vehicle was occupied by Nickelson and a passenger. Schippers approached the vehicle and asked Nickelson if he was okay. Nickelson responded affirmatively. Schippers testified that when Nickelson rolled down the window in order to respond, Schippers immediately smelled alcohol. Schippers testified "[the alcohol odor] was pretty strong. . . and when he rolled down the window, it just — it just all hit me." That prompted Schippers to ask Nickelson if he had been drinking. Nickelson responded that he had not been drinking; his speech was not slurred. Schippers did not know whether the alcohol odor was coming from Nickelson or the passenger, so Schippers asked Nickelson to step out of the vehicle. Schippers distinctly smelled alcohol on Nickelson, and Schippers informed Nickelson that he was going to conduct field sobriety tests.

Nickelson was ultimately arrested for driving under the influence of alcohol (DUI). Nickelson was transported to the Colby Law Enforcement Center and submitted to testing on the Intoxilyzer 5000. The test result was .147, exceeding the legal limit of .08. The test failure was certified to the KDR, and Nickelson received notice of his driver's license suspension. Nickelson requested a hearing, and the administrative hearing officer upheld the suspension. Nickelson timely filed a petition for review in the Thomas County District Court. After a trial, the district court denied Nickelson's petition for review and upheld the driver's license suspension. Nickelson timely appeals.

Scope of review

The district court's review in driver's license suspension cases is governed by K.S.A. 8-259(a), which provides in pertinent part:

"The action for review shall be by trial de novo to the court. The court shall take testimony, examine the facts of the case and determine whether the petitioner is entitled to driving privileges or whether the petitioner's driving privileges are subject to suspension, cancellation or revocation under the provisions of this act."

An appellate court applies the substantial competent evidence standard when reviewing a district court's ruling in a driver's license suspension case. Zurawski v. Kansas Dept. of Revenue, 18 Kan. App. 2d 325, 328, 851 P.2d 1385, rev. denied, 253 Kan. 864 (1993). "Substantial evidence is that which possess both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. [Citation omitted.]" U.S.D. No. 233 v. Kansas Ass'n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003).

Public safety stop

Nickelson initially claims that Schippers lacked any lawful grounds to approach Nickelson's vehicle. As a result, Nickelson claims that Schippers lacked reasonable grounds to believe that Nickelson had been operating a vehicle while impaired by alcohol and, therefore, Schippers' request that Nickelson submit to additional chemical testing was illegitimate. Whether Nickelson's argument has merit depends upon the nature of the initial encounter between Schippers and Nickelson.

There are four types of police-citizen encounters: investigatory stops, voluntary encounters, public safety stops, and arrests. The most common police-citizen encounter is probably the investigatory stop or Terry stop. A law enforcement officer, without making an arrest, may stop any person in a public place whom such officer reasonably suspects is committing, has committed, or is about to commit a crime. When a law enforcement officer has stopped a person for questioning based upon a suspicion of criminal activity, the officer may frisk the person for firearms or other dangerous weapons if required for personal safety of the officer. Terry v. Ohio, 392 U.S. 1, 24, 30-31, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The United States Supreme Court's ruling in Terry is codified at K.S.A. 22-2402. Here, the State does not assert that Schippers had any reasonable suspicion of criminal activity in order to justify approaching Nickelson's vehicle.

Kansas courts also recognize the existence of lawful voluntary encounters between police and citizens. "An officer who does not have reasonable suspicion to justify a Terry stop may, however, approach an individual on the street for investigative purposes. [Citations omitted.] The officer can ask the individual's name and request identification but cannot force the individual to answer. The individual is free to leave." State v. McKeown, 249 Kan. 506, 509, 819 P.2d 644 (1991). Voluntary encounters are not considered seizures and are not covered by the Fourth Amendment to the United States Constitution. State v. Crowder, 20 Kan. App. 2d 117, 119, 887 P.2d 698 (1994). Since we do not believe a reasonable person in Nickelson's position would have felt free to leave after being approached by Schippers, the contact between Schippers and Nickelson cannot be justified as a voluntary encounter.

The State's primary argument, which was adopted by the district court, is that the initial encounter between Schippers and Nickelson was justified as a public safety stop or public welfare stop. The concept of a lawful safety stop was first recognized by the Kansas Supreme Court in State v. Vistuba, 251 Kan. 821, 840 P.2d 511 (1992). In Vistuba, a deputy stopped a vehicle due to concern that the driver might be falling asleep. The driver was ultimately arrested for DUI. The driver attacked the validity of the stop, and the district court dismissed the complaint. The Kansas Supreme Court reversed the dismissal of the charge and held: "A civil or criminal infraction is not always essential to justify a vehicle stop. Safety reasons alone may justify the stop if the safety reasons are based upon specific and articulable facts." (Emphasis added.) 251 Kan. 821, Syl ¶ 1. The court ruled that the deputy stated adequate grounds to believe that the driver was falling asleep and that this reason alone justified stopping the vehicle. 251 Kan. at 824. Thus, Kansas courts recognize the validity of a public safety stop by a law enforcement officer if the safety reasons are based upon specific and articulable facts. Nevertheless, the potential for abuse in allowing such stops must be recognized by the courts. Unless a public safety stop is based upon specific and articulable facts, the concept could "emasculate the constitutional protection afforded a motorist's privacy under Terry." State v. Ludes, 27 Kan. App. 2d 1030, 1035, 11 P.3d 72 (2000); see State v. Crawford, 30 Kan. App. 2d 977, 984, 52 P.3d 353 (2002),rev'd on other grounds275 Kan. 492, 67 P.3d 115 (2003).

Nickelson cites State v. Morris, 276 Kan. 11, 72 P.3d 570 (2003), in asserting that Schippers' actions were unlawful. In Morris, Douglas County Sheriff's officers were investigating a possible methamphetamine lab in Eudora. Officers were conducting surveillance of an apartment when a female left the apartment and drove to Lawrence. The officers followed the female and saw her stop and briefly speak with the defendant, who was driving a pickup truck. The officers attempted to follow the defendant but were unsuccessful due to traffic.

The officers later located the defendant in his pickup truck parked near the Douglas County State Lake. Officers pulled up behind the pickup, activated their red lights, and illuminated the back of the pickup with spotlights. While...