State v. Janssen

Decision Date05 December 2014
Docket Number110,816.
Citation339 P.3d 412 (Table)
PartiesSTATE of Kansas, Appellee, v. Scott A. JANSSEN, Appellant.
CourtKansas Court of Appeals

Edward C. Gillette, Michael Mogenson, and Grant M. Reichert, of Gillette Law Firm, P.A., of Mission, for appellant.

Darrell Miller, county attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., GREEN and BUSER, JJ.

MEMORANDUM OPINION

PER CURIAM.

Scott Janssen appeals from his jury trial conviction of driving under the influence of alcohol (DUI). On appeal, Janssen raises three issues: (1) Did the trial court err in denying his motion to suppress; (2) did the trial court err in admitting evidence; and (3) did the trial judge commit judicial misconduct. Finding no error, we affirm Janssen's conviction.

On November 9, 2012, John Johnson was hunting in Jewell County, Kansas. While he was leaving the location where he had been hunting, he came across a van parked in the middle of the road. Johnson then saw the van swerve into a ditch, back out of the ditch, and eventually pull over on the side of the road. Johnson pulled up next to the van and asked the driver and passenger if they were safe to drive.” The driver of the van, who appeared incoherent, did not orally respond; he simply nodded his head a bit. Johnson then got out of his car and again tried to speak to the individuals in the van. Johnson could smell alcohol as he got closer to the van. Based on these events, Johnson called the undersheriff, who was an acquaintance of his, to tell him that he was “sitting next to a vehicle alongside the road and these guys were drunk.” After Johnson called the undersheriff, he said the van “took off like a rocket.” Those events occurred about 4:25 p.m.

Undersheriff Donald Jacobs was off duty when he received Johnson's call. When Johnson told Jacobs that the van's driver had been driving erratically and that the van smelled of alcohol, Jacobs decided to look for the van. Jacobs and Johnson exchanged several calls while Jacobs tried to locate the van. When Jacobs located the van, he followed it for a short distance. He turned on his emergency lights. The van continued down the road another 1/2 mile before coming to a stop. Those events occurred around 4:42 p.m.

After stopping the van, Undersheriff Jacobs spoke with Janssen, the driver of the van, and explained why he had stopped him. Janssen admitted that he was aware that a complaint had been called in against him. Jacobs asked Janssen if he had been drinking. Janssen responded that he had been drinking “Miller Light” beers but that he had stopped drinking about an hour before the stop. Jacobs asked Janssen to get out of the van. In doing so, Janssen stumbled. Moreover, Jacobs saw that Janssen's eyes were “bloodshot” and “watery.” Jacobs asked Janssen to perform field sobriety tests.

When doing the walk-and-turn test, Janssen displayed two signs that indicated that he was intoxicated, but he did not display any signs on the one-leg stand. Undersheriff Jacobs had Janssen take a preliminary breath test (PBT). The test showed an alcohol content of .154. Officers then searched Janssen's van and found three empty Miller Light cans. Janssen was then transported to the jail for further testing. Those events occurred about 5:17 p.m.

Once at the jail, Undersheriff Jacobs read the implied consent form to Janssen and began the 20–minute observation period at 5:25 p .m. The results of Janssen's breath test were .136. The breath test was taken at 5:47 p.m.

A jury found Janssen guilty of operating a vehicle while the alcohol concentration in blood or breath was at least .08 but not guilty of driving under the influence of alcohol to a degree that rendered him incapable of safely driving.

Did the Trial Court Err in Denying Janssen's Motion to Suppress?

Janssen appeals from an order of the trial court denying his motion to suppress evidence. The evidence that Janssen complains about was discovered during the traffic stop. He contends that this evidence was illegally seized.

The standard of review of a trial court's decision on a motion to suppress uses a bifurcated standard. An appellate court reviews the trial court's findings to determine whether they are supported by substantial competent evidence. In reviewing the factual findings, an appellate court does not reweigh the evidence or assess the credibility of witnesses. The ultimate legal conclusion is reviewed using a de novo standard. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013) (reasonable suspicion to stop and search defendant). The State bears the burden of proof on a suppression motion and must prove to the trial court the lawfulness of the search and seizure. State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009).

When the trial court has denied a motion to suppress, the moving party must object to the introduction of that evidence when it is offered at trial to preserve the issue for appeal. State v. McCaslin, 291 Kan. 697, 726, 245 P.3d 1030 (2011). Here, Janssen renewed his objection to the evidence at the start of trial before any testimony was given. Janssen requested a standing objection to all testimony which was previously raised and discussed. The State and the court agreed to give Janssen a standing objection. Thus, this issue has been properly preserved.

The Legality of the Stop

Janssen contends that the stop of his van was not justified because any reasonable suspicion that existed was negated by the good driving observed by Undersheriff Jacobs. Janssen maintains that Jacobs was required to consider all of the evidence in determining whether reasonable suspicion existed.

A traffic stop is considered a seizure under the Fourth Amendment to the United States Constitution. City of Norton v. Wonderly, 38 Kan.App.2d 797, 802, 172 P.3d 1205 (2007), rev. denied 286 Kan. 1176 (2008). An officer must have reasonable suspicion based on articulable facts that a crime has been, is being, or is about to be committed to stop a moving vehicle. See K.S.A. 22–2402(1) ; Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 636, 176 P.3d 938 (2008).

“Reasonable suspicion means a particularized and objective basis for suspecting the person stopped is involved in criminal activity. Something more than an unparticularized suspicion or hunch must be articulated. Reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Both reasonable suspicion and probable cause are dependent upon the content of information possessed by the detaining authority and the information's degree of reliability. Quantity and quality are considered in the totality of the circumstances—the whole picture that must be taken into account when evaluating whether there is reasonable suspicion.”State v. Toothman, 267 Kan. 412, Syl. ¶ 5, 985 P.2d 701 (1999).

The trial court determined that the stop of Janssen's van was a valid investigatory stop based on the amount and specificity of information provided by Johnson. The trial court noted that Undersheriff Jacobs knew Johnson and that Johnson described firsthand that what he had seen led him to believe the driver was under the influence of alcohol. The trial court held that [u]nder the totality of circumstances, these facts were sufficient to provide reasonable suspicion to stop the van even without observing any traffic violations.”

To determine whether a third-party telephone call may justify a traffic stop, our Supreme Court has held that a reviewing court should consider the following: (1) the type of tip or informant involved; (2) the detail given about the observed criminal activity; and (3) whether the police officer's personal observations corroborate the information supplied in the tip.” State v. Slater, 267 Kan. 694, 700, 986 P.2d 1038 (1999).

The most reliable tip is one provided by an individual who gives the police his or her name and address or identifies him or herself in such a way that he or she can be held accountable for the information. Kansas courts have consistently held that these types of tips may support a traffic stop. Tips provided by identified informants are found to be highly reliable because the informant is exposed to possible criminal and civil prosecution if the report is false. See Slater, 267 Kan. at 700–01.

Here, Johnson clearly meets the first Slater factor. In this case, Johnson called Undersheriff Jacobs, who was a friend of his; thus, the informant was clearly identified. Under the second factor, a tip is more reliable if it is apparent that the informant observed the details personally instead of simply relying on information from a third party. 267 Kan. at 702. Here, Johnson called Undersheriff Jacobs to tell him that he had seen a van, with four occupants, being operated erratically because it almost struck a guardrail. Johnson gave Jacobs specific details about the type of vehicle involved. Moreover, Johnson continued to follow the van until Undersheriff Jacobs arrived on the scene. Thus, Johnson clearly personally observed the alleged criminal activity.

Under the third Slater factor, an officer may corroborate the tip by observing illegal activity or by finding the person, vehicle, and the location as substantially described by the informant. Although it is true that Undersheriff Jacobs did not observe Janssen engaging in any erratic driving, Undersheriff Jacobs did observe other details that corroborated the information provided by Johnson.

Janssen argues that any reasonable suspicion Undersheriff Jacobs may have had when he initially saw Janssen's vehicle was negated by Undersheriff Jacobs' failure to observe Janssen commit any traffic infractions while following him for 4 miles before stopping him. A similar argument was raised and rejected in Wonderly, 38 Kan.App.2d at 803–04. In Wonderly, this court held that reasonable suspicion based on a tip existed even though the officer failed to observe any traffic infractions. The Wonderly court held that [t]hree minutes of good...

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