State v. Driskell
| Decision Date | 18 May 2012 |
| Docket Number | No. 105,126.,105,126. |
| Citation | 276 P.3d 838 |
| Parties | STATE of Kansas, Appellee, v. Bryan DRISKELL, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Reno District Court; Richard J. Rome, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Daniel D. Gilligan, assistant district attorney, and Derek Schmidt, attorney general, for appellees.
Before BRUNS, P.J., McANANY and BUSER, JJ.
Bryan Driskell appeals after he was found guilty on stipulated facts of four counts of possession of illegal substances, one count of possession of drug paraphernalia, and one count of illegal transportation of an alcoholic beverage. We find that it was appropriate for a sheriff's deputy to stop Driskell's Jeep for the purpose of serving Driskell with a protection from abuse (PFA) order. But we find that Driskell did not violate K.S.A.2008 Supp. 8–1599(b)(1) by transporting an open Bud Light box containing unopened cans of beer. Further, because it was not a crime for Driskell to transport a box containing unopened cans of beer, the evidence seized as a result of his arrest must be suppressed and his convictions must be reversed.
On May 19, 2009, Reno County Sheriff's Deputies Tony Cook and Travis Vogt were assigned the task of serving Driskell with a PFA order. The record reflects that the PFA order was entered against Driskell by the district court for the protection of Kara Bartholomew. Moreover, the record reflects that the deputies were assigned the task of serving the PFA order because the sheriff's office had been informed that Driskell was using methamphetamine and was possibly carrying a firearm.
After first going to Driskell's apartment in an attempt to serve the PFA, Deputy Cook recognized Driskell as he was driving his red Jeep on a public street. Deputy Cook initiated a traffic stop and personally served Driskell with the PFA order. While speaking with Driskell, Deputy Cook observed a cardboard Bud Light box sitting on the passenger-side floorboard. Deputy Vogt, who arrived at the scene shortly after Driskell was stopped, also observed the Bud Light box on the floorboard.
The Bud Light box, which was within Driskell's reach, had been torn open and 4 of the 12 cans were missing. The deputies noted, however, that none of the 8 cans remaining in the box had been opened, and no open beer cans were found in the Jeep. Because the deputies believed that the Bud Light box constituted an open package, Driskell was placed under arrest for illegal transportation of an alcoholic beverage.
Following the arrest, Deputy Cook asked Driskell whether he had anything on him he did not want to go to jail with, and Driskell stated that he had “weed” in his pocket. Upon searching Driskell's pockets, Deputy Cook found marijuana, a metal pipe containing marijuana residue, and a baggie containing methamphetamine. Deputy Cook then searched Driskell's Jeep and found two pill bottles containing hydrocodone and a pill bottle containing codeine.
Driskell was ultimately charged with possession of methamphetamine, possession of marijuana, possession of drug paraphernalia, possession of codeine, possession of hydrocodone, and illegal transportation of an alcoholic beverage. Regarding the illegal transportation charge, the State alleged that Driskell “unlawfully and intentionally transported alcoholic liquor, to wit: Bud Light Beer in an opened package while operating a vehicle on a highway or street.”
Prior to trial, Driskell filed a motion to suppress the evidence seized as a result of the traffic stop. Driskell argued that the evidence should be suppressed because his constitutional rights were violated when he was stopped by Deputy Cook for the sole purpose of serving him with a PFA order. Moreover, Driskell argued that the Bud Light box did not constitute a package or container under K.S.A.2008 Supp. 8–1599(b)(1).
In denying the motion to suppress, the district court found that Deputy Cook had the authority to lawfully stop Driskell's Jeep to serve the PFA order. In so ruling, the district court noted that the PFA order had been entered by a judge “to protect [the victim] who is asking for protection of the courts” and that the deputies had been “ordered to personally serve ... the defendant in [this] case.” The district court also found that Driskell's arrest was legal because the deputies reasonably believed that Driskell was illegally transporting an alcoholic beverage at the time he was stopped.
The next day, the parties submitted a stipulation of facts to the district court. Although the stipulation preserved Driskell's objection to the admission of the evidence seized during the traffic stop, Driskell acknowledged that there were sufficient facts to support a finding of guilt on all of the charges if the evidence was not suppressed. Relying upon the stipulation, the district court found Driskell guilty on all counts and sentenced him to 12 months of probation. Thereafter, Driskell timely appealed.
Driskell contends that the traffic stop was illegal because law enforcement officers may not pull over a vehicle in order to serve civil process. In response, the State contends that the traffic stop was appropriate based on a legitimate public safety concern. Under the circumstances presented, we agree with the State.
“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.” Nickelson v. Kansas Dept. of Revenue, 33 Kan.App.2d 359, 364, 102 P.3d 490 (2004). Public safety stops are justified because of the mobility of the automobile and the danger to the public. State v. Tucker, 19 Kan.App.2d 920, 925, 878 P.2d 855,rev. denied 255 Kan. 1007 (1994). Accordingly, “to justify a public safety stop, the officer must have objective, specific, and articulable facts to suspect that a citizen is in need of help or is in peril.” (Emphasis added.) State v. Marx, 289 Kan. 657, 662, 215 P.3d 601(2009); accord State v. Gonzales, 36 Kan.App.2d 446, 456, 141 P.3d 501 (2006).
In the present case, it is undisputed that Deputy Cook stopped Driskell's Jeep to serve Driskell with a PFA order. “[O]rders issued under the Protection from Abuse Act, K.S.A. 60–3101 et seq., are normally transitory in nature, frequently develop in emergency situations, and may involve risk to the lives of some or all of the parties involved.” Trolinger v. Trolinger, 30 Kan.App.2d 192, Syl. ¶ 1, 42 P.3d 157 (2001), rev. denied 273 Kan. 1040 (2002). “The statutory scheme is designed to promote protection of the victims and make access to the court easy and prompt.” 30 Kan.App.2d at 198. Thus, PFA orders serve an important public interest and must be “liberally construed to promote the protection of victims of domestic violence from bodily injury or threats of bodily injury and to facilitate access to judicial protection for the victims....” K.S.A. 60–3101(b); accord Crim v. Crim, 40 Kan.App.2d 367, Syl. ¶ 1, 196 P.3d 375 (2008).
We find substantial evidence in the record of “objective, specific, and articulable facts” that led the deputies to suspect that a citizen was in need of help or was in danger. Specifically, the record reflects that the deputies were assigned the task of serving a PFA order entered against Driskell by the district court in an attempt to protect a victim of domestic violence from bodily injury or threats of bodily injury. Additionally, the record reflects that the sheriff's office had received information that Driskell was using methamphetamine and was possibly carrying a firearm. Under these circumstances, we find that it was reasonable for the deputies to believe that the PFA order needed to be served on Driskell without delay. Thus, we conclude that Deputy Cook performed a valid public safety stop to protect a citizen in need of help or peril.
Driskell next contends that it is not illegal to transport an open box containing unopened cans of beer. He further argues that the cardboard Bud Light box the deputies observed on the floorboard of his Jeep did not constitute a package or container pursuant to K.S.A.2008 Supp. 8–1599(b)(1). According to Driskell, only the individual beer cans—all of which were unopened—were packages or containers under the statute.
The issue before us is primarily one of statutory interpretation, over which we exercise unlimited review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
When there is a reasonable doubt about a criminal statute's meaning, appellate courts apply the rule of lenity. See State v. Chavez, 292 Kan. 464, 468, 254 P.3d 539 (2011). Under the rule of lenity, State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001). In other words, if “there are two reasonable and sensible interpretations of a criminal statute, the rule of lenity requires the court to interpret its meaning in favor of the accused.” State v. Coman, 294 Kan. ––––, 273 P.3d 701, 709 (2012).
“The rule of lenity is based on the notion that people should have...
To continue reading
Request your trial