State v. Crum

• Decision Date: 16 March 2001
• Docket Number: No. 83,574.,83,574.
• Citation: 270 Kan. 870,19 P.3d 172
• Parties: STATE OF KANSAS, Appellee, v. ROBERT LEE CRUM, Appellant.
• Court: Kansas Supreme Court

270 Kan. 870

19 P.3d 172

STATE OF KANSAS, Appellee, v. ROBERT LEE CRUM, Appellant.

No. 83,574.

Supreme Court of Kansas.

Opinion filed March 16, 2001.

John Jenab, of Jenab & Kuchar, argued the cause, and Alice A. Craig, of the same firm, was on the brief for appellant.

Lee J. Davidson, deputy county attorney, argued the cause, and Carla J. Stovall, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by

LARSON, J.:

This is Robert Lee Crum's direct appeal of his conviction of driving as a habitual violator, K.S.A. 1998 Supp. 8-287, a severity level 9 nonperson felony.

Crum contends that the random stop of his commercial vehicle violates the Fourth Amendment to the United States Constitution and there was insufficient evidence to establish that he had been notified of his status as a habitual violator. Our jurisdiction is under K.S.A. 20-3018(c) (transfer on our own motion).

While the legal effect is contested, the facts are not in dispute.

Kansas Highway Patrol Motor Carrier Inspector Alan Boyle, while on patrol on U.S. Highway 81, near South Haven, Kansas, stopped a truck hauling an empty auto trailer. Inspector Boyle noticed the truck had a logo on the cab and Kansas apportioned license plates. He testified he was absolutely certain he was dealing with a commercial motor carrier.

Inspector Boyle did not observe any traffic infractions, nor did he have any particularized suspicion that the driver was committing any crimes. He activated his emergency lights and stopped the truck solely to determine if the truck and driver complied with the state and federal rules and regulations applicable to motor carriers.

Inspector Boyle requested the driver's log and permits. The driver did not have a log book but stated he had delivered a load of cars to Oklahoma City and was returning to Valley Center. The driver provided all other necessary permits. When Inspector Boyle asked for the driver's license, the driver responded, "I'll just tell you right now. It's suspended." The driver was identified as Robert Lee Crum.

Inspector Boyle ran Crum's information through the dispatcher and learned that his driving privileges were revoked as a habitual violator. Inspector Boyle then arrested Crum and charged him with driving while his license was revoked as a habitual violator.

Prior to a preliminary hearing, Crum moved to suppress evidence, claiming the stop of his vehicle was invalid. After an evidentiary hearing, the court overruled the motion to suppress.

When the matter came for trial, the State asked the court to consider Inspector Boyle's testimony given during the motion to suppress, as well as a certified copy of Crum's driving record that showed his K.S.A. 1998 Supp. 8-286 habitual violator notice. Crum objected based upon the arguments presented in his motion to suppress evidence. The court allowed the evidence and found Crum guilty of the offense of driving while his license was revoked as a habitual violator. Subsequently, after determining Crum's criminal history to be category F, the court sentenced him to 9 months in the custody of the Secretary of the Department of Corrections and placed him on probation for a period of 24 months. As a condition of probation, Crum was ordered to serve 10 days in the county jail. Crum appeals.

We first consider whether the random stops of commercial vehicles violates the Fourth Amendment to the United States Constitution. Our scope of review was set forth in State v. Toothman, 267 Kan. 412, 416, 985 P.2d 701 (1999), where we stated:

"An appellate court reviews the factual underpinnings of a district court's decision `by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. An appellate court does not reweigh the evidence. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review.'"

The specific wording of K.S.A. 74-2108, which is challenged herein, states:

"(a) The superintendent and members of the Kansas highway patrol are hereby vested with the power and authority of peace, police and law enforcement officers anywhere within this state irrespective of county lines.

"(b) In addition to the general power and authority prescribed by subsection (a), the superintendent and members of the Kansas highway patrol are hereby authorized and directed to execute and enforce the laws of this state relating to public and private motor carriers of passengers or property, including any rules and regulations relating to such laws, and shall have the power and authority to require the driver of any motor vehicle owned or operated by any such carrier to stop and submit such vehicle to an inspection to determine compliance with such laws and rules and regulations."

The precise question presented to us was before the Kansas Court of Appeals in State v. Williams, 8 Kan. App.2d 14, Syl., 648 P.2d 1156, rev. denied 231 Kan. 802 (1982), which held:

"A warrantless inspection of a motor vehicle authorized to transport property for hire and subject to regulations of the State of Kansas, which was stopped by an officer of the Kansas Highway patrol solely to conduct an inspection pursuant to K.S.A. 74-2108(b) without any suspicion on the part of the officer that there was a violation of any laws of the State of Kansas, does not violate either the Fourth Amendment to the United States Constitution or Section 15 of the Bill of Rights of the Kansas Constitution."

The Williams decision, which is not factually distinguishable from our facts, was later relied on by our court in State v. Moore, 237 Kan. 523, 528, 701 P.2d 684 (1985), as authority for the Kansas Department of Revenue to stop motor carriers or trucks for the purpose of conducting spot checks to determine compliance with statutory vehicle weight limitations.

Crum's argument is that although Kansas has previously allowed random stops of commercial motor carriers, our law is now unconstitutional under the test announced in New York v. Burger, 482 U.S. 691, 96 L. Ed.2d 601, 107 S. Ct. 2636 (1987), a case decided subsequent to Williams and Moore.

In an analysis closely mirroring that of Williams, the United States Supreme Court in Burger considered whether a statute authorizing random searches of New York automobile junkyards was violative of the Fourth Amendment. In upholding the constitutionality of the statute, the Court pronounced the following test:

"This warrantless inspection, however, even in the context of a pervasively regulated business, will be deemed to be reasonable only so long as three criteria are met. First, there must be a `substantial' government interest that informs the regulatory scheme pursuant to which the inspection is made. [Citations omitted.]

"Second, the warrantless inspections must be `necessary to further [the] regulatory scheme.'...

"Finally, `the statute's inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.' ... In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. [Citations omitted.] To perform this first function the statute must be `sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that this property will be subject to periodic inspections undertaken for specific purposes.' [Citation omitted.] In addition, in defining how a statute limits the discretion of the inspectors, we have observed that it must be `carefully limited in time, place, and scope.' [Citation omitted.]" (Emphasis added.) 482 U.S. at 702-03.

Crum conceded at the suppression hearing and on appeal that the current Kansas statute met all the elements of the Burger test except for the requirement that the inspection be "carefully limited in time, place, and scope." Crum argues that he is only challenging random stops without any probable cause or reasonable articulable suspicion.

The State concedes that Inspector Boyle did not have any reasonable suspicion of any law violation when he stopped Crum's motor vehicle. Crum was stopped and asked for his driver's log and driver's license, and the search was in no matter invasive. Because Crum has conceded all elements of the constitutionality of K.S.A. 74-2108(b), save one, only that issue is properly before the court.

In Burger, the Supreme Court made the following analysis of the New York automobile junkyard law, specifically concerning the "time, place, and scope" limitations:

"Finally, the `time, place, and scope, of the inspection is limited, United States v Biswell, 406 U.S. [311], at 315, [32 L. Ed.2d 87, 92 S. Ct. 1593 (1972)] to place appropriate restraints upon the discretion of the inspecting officers. See Donovan v. Dewey, 452 U.S. [594], at 605 [, 69 L. Ed.2d 262, 101 S. Ct. 2534 (1981)]. The officers are allowed to conduct an inspection only `during [the] regular and usual business hours.' § 415-a5. The inspection can be made only of vehicledismantling and related industries. And the permissible scope of these searches is narrowly defined: the inspectors may examine the records, as well as `any vehicles or parts of vehicles which are subject to the record keeping requirement of this section and which are on the premises.' [Citation omitted.]" 482 U.S. at 711-12.

Crum's argument that because K.S.A. 74-2108(b) allows stops of commercial vehicles at any time, at any place, and under any circumstances could easily become unconstitutionally invasive, while not shown factually in our case, was discussed in footnotes 21 and 22 of the Burger opinion as follows:

"Respondent contends that § 415-a5 is unconstitutional because it

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