State v. Knight

• Decision Date: 06 November 2009
• Docket Number: No. 100,167.,100,167.
• Citation: 218 P.3d 1177
• Parties: STATE of Kansas, Appellee v. Michael Lorenzo KNIGHT, Jr., Appellant.
• Court: Kansas Supreme Court

218 P.3d 1177

STATE of Kansas, Appellee v. Michael Lorenzo KNIGHT, Jr., Appellant.

No. 100,167.

Supreme Court of Kansas.

November 6, 2009.

Carl Folsom, III, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant district attorney, Sara Pfeiffer, legal intern, Stephen M. Howe, district attorney, and Steve Six, attorney general, for appellee.

Before GREENE, P.J., GREEN and STANDRIDGE, JJ.

GREEN, J.

Michael Lorenzo Knight, Jr., appeals his convictions after a bench trial for criminal possession of a firearm and carrying a concealed firearm. On appeal, Knight contends that the trial court improperly denied his motion to suppress evidence arising from a car stop. We disagree and affirm. Knight also asserts that his conviction for criminal possession of a firearm is inappropriate, because the statute, K.S.A. 21-4204(a)(4)(A), under which he was convicted does not apply to his prior felony for an attempt crime. We agree. Accordingly, we reverse and remand with directions to dismiss this conviction. Knight further maintains that his conviction for carrying a concealed firearm violates his constitutional right to bear arms. We disagree and affirm. Finally, Knight contends that the trial court erred in ordering him to reimburse the Board of Indigents' Defense Services for attorney fees without first considering his ability to pay the fees and determining the financial burden that payment of these fees would impose on him. We agree. Accordingly, we vacate the trial court's imposition of attorney fees against Knight and remand for further consideration of this matter.

In October 2007, Knight was charged with misdemeanor carrying of a firearm in violation of K.S.A. 21-4201 and felony possession of a firearm in violation of K.S.A. 21-4204(a)(4). The felony possession of a firearm charge was based on Knight's prior conviction of attempted possession of cocaine.

Before trial, Knight moved to suppress evidence seized from the traffic stop. During the hearing on the motion, Kansas Highway Patrol Trooper Davon Brame testified that at approximately 11:24 p.m. on a summer night, he saw Knight driving a maroon Chevy Monte Carlo southbound on I-35 in Johnson County, Kansas. Brame noticed that Knight was unable to keep his car within its proper lane of travel. The car crossed approximately 3 feet over the line separating the left lane of the highway from the shoulder. While following him, Brame also witnessed Knight weave within his proper lane of travel two or three times. Additionally, Knight crossed approximately 1 foot over the dotted line on the right side of the lane. After following Knight for approximately 1/2 mile, Brame initiated a traffic stop based upon Knight's inability to maintain a single lane of travel. Brame also testified that, as he walked up to the stopped car, he thought Knight was intoxicated.

At the conclusion of the hearing, the trial court denied Knight's motion to suppress. The court found that, independent of Brame's suspicion that Knight was driving while intoxicated, Knight had committed actual traffic infractions sufficient to justify Brame's stop. After Knight's motion to suppress was denied, he moved the trial court to reconsider its decision based on this court's recent holding in State v. Ross, 37 Kan. App.2d 126, 149 P.3d 876, rev. denied 284 Kan. 950 (2007).

At the hearing on the motion to reconsider, Brame was again called to testify. Brame's testimony was substantially similar to the testimony he gave at the suppression hearing, with a few exceptions. Brame noted that there were no parked cars on the shoulder when Knight crossed onto it and that the shoulder was paved. Brame further stated that there were no cars in the lane to the right of Knight when he crossed over the dotted line on the right side of the left lane. He also characterized the traffic flow as "light" as he followed Knight. Brame again acknowledged, as he had in his prior suppression hearing testimony, that his justification for stopping Knight was because Knight had failed to maintain a single lane of travel.

When questioned about his in-car video camera, Brame stated that he had not activated it until after he initially noticed Knight was unable to maintain a single lane of travel. During the hearing, the video tape of Knight's alleged infractions was shown. After viewing the tape, Brame acknowledged that Knight's initial failure to maintain a single lane of travel, when he drove over the left solid line on to the shoulder from the left lane, was not recorded on the video tape. Brame stated that he had not turned on the video camera until after that alleged infraction had occurred.

After viewing the video tape in court, Brame changed his testimony slightly. Brame acknowledged that although Knight had not stayed in the left lane, Knight had used his turn signal and had moved into the center lane. After he entered the center lane, Knight crossed the left dotted line once. The tires of Knight's car also touched the dotted line on the right side of the center lane. Brame considered this to be a failure to maintain a single lane of travel. Overall, Brame saw Knight drive over the left or right lane markers five times.

During this reconsideration hearing, Brame stated that he suspected Knight "was either intoxicated or a sleepy driver."

At the conclusion of the hearing, the trial court denied the motion to reconsider. The court distinguished Ross from the facts in this case, concluding that Ross did not apply because Trooper Brame testified that he stopped Knight's car to determine if Knight was intoxicated. This fact was absent in Ross.

At the bench trial, both parties agreed to a set of stipulated facts. Among the stipulated facts were the following:

"1. On August 12, 2006 Trooper Brame viewed a Maroon Chevy Monte Carlo driving on I-35 at around 11:24 p.m. in Johnson County, Kansas.

"2. Trooper Brame testified that he saw the vehicle operated by the Defendant cross the solid line on the left side of I-35 and weave within its own lane.

"3. Trooper Brame testified that he believed that the driver of the Monte Carlo may be under the influence of drugs and/or alcohol.

"4. Trooper Brame activated his emergency lights and pulled over the Monte Carlo in Johnson County, Kansas."

Knight also stipulated to possessing the handgun discovered by Brame during the stop. At the conclusion of the bench trial, the court found Knight guilty of carrying of a concealed firearm, a misdemeanor, and possession of a firearm, a felony.

At the sentencing hearing, the court inquired about the public defenders' fee. Knight's counsel told the court that the fee was $625. The trial court then asked Knight when he could start paying the fee back and how much he could pay. Knight's counsel told the court that Knight could pay "$50 a month starting March 1st." The court replied that Knight would "obviously . . . have to double up on that probably somewhere along the way." The court made no further inquiry into Knight's ability to pay the fee or as to any burden it might place on him.

DID THE TRIAL COURT ERR IN DENYING KNIGHT'S MOTION TO SUPPRESS EVIDENCE SEIZED DURING THE CAR STOP?

On appeal, Knight contends that Trooper Brame acted unlawfully in stopping his car because Brame did not have sufficient reasonable suspicion to justify the stop of Knight's car.

An appellate court reviews the trial court's decision on a motion to suppress evidence using a bifurcated standard. Without reweighing the evidence, the trial court's findings are reviewed to determine whether they are supported by substantial competent evidence. Then the ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).

Nevertheless, when the material facts to a trial court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Fitzgerald, 286 Kan. 1124, 1126, 192 P.3d 171 (2008).

Under the Fourth Amendment to the United States Constitution, a traffic stop is considered a seizure. According to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and as codified in K.S.A. 22-2402(1), a police officer must have a reasonable suspicion based on articulable facts to stop a moving vehicle. Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 636, 176 P.3d 938 (2008).

Our Supreme Court explained in State v. Toothman, 267 Kan. 412, Syl. ¶ 4, 985 P.2d 701 (1999), the role of the appellate court in reviewing whether a stop is justified by reasonable suspicion:

"When evaluating reasonable suspicion, we judge an officer's conduct in light of common sense and ordinary human experience. Our task is not to pigeonhole each purported fact as either consistent with innocent travel or manifestly suspicious, but to determine whether the totality of the circumstances justify the detention. We make our determination with deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious circumstances, remembering that reasonable suspicion represents a minimum level of objective justification which is considerably less than proof of wrongdoing by a preponderance of the evidence."

The State bears the burden of proof for a suppression motion and must prove to the trial court the lawfulness of the search and seizure. State v. Ibarra, 282 Kan. 530, 533, 147 P.3d 842 (2006).

K.S.A. 8-1522 applies "[w]henever any roadway has been divided into two (2) or more clearly marked lanes for traffic." K.S.A. 8-1522(a) requires that "[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety."

Knight argues that the State must prove his crossing of the highway line was...