State v. LaRue
| Decision Date | 28 September 2012 |
| Docket Number | No. 105,464.,105,464. |
| Citation | 285 P.3d 1045 |
| Parties | STATE of Kansas, Appellee, v. Michael Allen LaRUE, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Ellis District Court; Thomas L. Toepfer, judge.
Caleb Boone, of Hays, for appellant.
Glenn R. Braun and Carol M. Park, special prosecutors, of Hays, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J., and KNUDSON, S.J.
An Ellis County District Court jury convicted Defendant Michael Allen LaRue of three misdemeanors—driving under the influence, in violation of K.S.A.2008 Supp. 8–1567; obstruction of official duty, in violation of K.S.A. 21–3808(a); and battery of a law enforcement officer, in violation of K.S.A. 21–3413—arising from a confrontation he had with a Hays police officer in the driveway of his home. The State failed to prove the elements of the obstruction offense; so notwithstanding the jury verdict, we reverse that conviction and enter a judgment of acquittal. Finding no other errors in the proceedings in the district court, we affirm LaRue's convictions for DUI and battery of a law enforcement officer.
On January 21, 2009, Hays Police Officer Joshua Burkholder made several trips to LaRue's home to serve him with notice regarding the City's intention to remove a dilapidated outbuilding from his property if he did not take it down himself within 30 days. Burkholder did not find LaRue there and had not served the abatement notice. Just after 10 p.m., as his shift was ending, Burkholder made a final trip to LaRue's house. He did not have the notice with him at that time. Upon arriving, Burkholder saw a pickup truck in the driveway with the engine running and the brake lights on. Burkholder checked the tag on the truck and confirmed the vehicle was registered to LaRue. He then walked up the driveway toward the truck and saw a single occupant sitting in the driver's seat. But Burkholder could not identify the individual because of the truck's tinted windows.
Burkholder saw the backup lights on the truck come on, indicating the driver was shifting gears. Burkholder approached the driver's side door and indicated the occupant should roll down the window. The driver did so and, in response to Burkholder's question, identified himself as LaRue. Burkholder intended to call the police department and have his supervisor or another officer deliver the notice so he could serve LaRue. But when LaRue rolled down the window, Burkholder smelled a strong odor of alcohol coming from inside the cab. Burkholder continued to speak with LaRue as he waited for backup officers to arrive. LaRue displayed common characteristics of someone who had been drinking to the point of intoxication—slurred and mumbled speech and bloodshot, watery eyes. Without explanation or apparent purpose, LaRue repeated the phrase “January 28” several times, suggesting to Burkholder disorganized thinking indicative of excessive consumption of alcohol. Because LaRue is very large, Burkholder planned to wait for additional officers before making an arrest for DUI.
But LaRue got out of his truck and headed toward his front door. Burkholder told him to stop because he was under arrest for driving under the influence. LaRue attempted to push past Burkholder. Burkholder tried to restrain LaRue and ultimately knocked LaRue's legs out from under him. While on the ground, LaRue refused to comply with Burkholder's commands that he lie on his stomach and put his hands behind his back. LaRue kicked Burkholder in his right thigh. Burkholder then deployed his Taser in an effort to temporarily debilitate LaRue. A second officer arrived about that time. But LaRue continued to defy their commands and ignored Burkholder's warning that he would again use the Taser. Burkholder did so. The officers then got LaRue handcuffed and into a patrol car. In the car, LaRue began kicking and thrashing, so the officers applied leg restraints to him.
LaRue was taken to the law enforcement center where he was informed of his rights and obligations under the statutes governing implied consent to blood-alcohol testing. LaRue refused to perform any field sobriety tests or to provide an evidentiary breath sample for testing.
Before trial, LaRue filed a motion to suppress evidence on the grounds Burkholder violated his constitutional right to be free of unreasonable searches and seizures as provided in the Fourth Amendment to the United States Constitution. The district court denied the motion and set the case for trial. The jurors heard evidence in the case on August 17, 2010, and convicted LaRue of each of the three charges submitted to them. The district court sentenced LaRue in due course to fines and jail time but placed him on probation after he served a mandatory 48 hours in custody on the DUI conviction. LaRue has timely appealed.
On appeal, LaRue argues the district court erred in denying the motion to suppress and the evidence was insufficient to support the convictions for battery of a law enforcement officer and for obstruction of official duty. He does not challenge the sufficiency of the evidence for the DUI conviction. We take the points raised in that order.
In reviewing a district judge's ruling on a motion to suppress, an appellate court applies a bifurcated standard. The appellate court accepts the factual findings of the district judge if they are supported by competent evidence having some substance. The appellate court exercises plenary review over legal conclusions based upon those findings, including the ultimate ruling on the motion. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007); see State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). The prosecution bears the burden of proving a search or seizure to be constitutional by a preponderance of the evidence. State v. Pollman, 286 Kan. 881, 886, 190 P.3d 234 (2008) (); Thompson, 284 Kan. at 772 (allocation of burden).
LaRue contends Burkholder violated the Fourth Amendment when he walked up the driveway to his house and approached his truck because Burkholder did not have the abatement notice and, therefore, had no lawful reason to enter the property. By its express language, the Fourth Amendment guarantees “[t]he right of the people to be secure in their persons [and] houses ... against unreasonable searches and seizures.” To remedy a Fourth Amendment violation, a court may prohibit the State from offering evidence obtained as the result of an improper search or seizure in a criminal prosecution. United States v. Leon, 468 U.S. 897, 908–09, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (“The Court has, to be sure, not seriously questioned, ‘in the absence of a more efficacious sanction, the continued application of the rule to suppress evidence from the [prosecution's] case where a Fourth Amendment violation has been substantial and deliberate.’ “; Mapp v. Ohio, 367 U.S. 643, 654–55, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (In holding the exclusionary rule should apply to state and local government agents, the Court recognizes that without the rule, the protections of the Fourth Amendment would be reduced to “ ‘a form of words,’ valueless and undeserving of a place in the Constitution.
For Fourth Amendment purposes, the courts have identified four common types of police-citizen encounters: voluntary or consensual contacts, investigative detentions, public safety stops, and arrests. Thompson, 284 Kan. at 772. A voluntary or consensual contact does not implicate the Fourth Amendment because a person who voluntarily interacts with law enforcement officers has not been seized and may terminate the encounter at any time. State v. Tatum, 40 Kan.App.2d 846, 852, 196 P.3d 441 (2008). Without any suspicion of criminal activity, a law enforcement officer may approach a residence using a route generally available to members of the public, knock on the door, and speak with any occupant who answers the door. State v. Fisher, 283 Kan. 272, 296, 154 P.3d 455 (2007). That sort of encounter, commonly known as a “knock-and-talk,” is considered consensual or voluntary and, therefore, does not implicate the Fourth Amendment. Tatum, 40 Kan.App.2d at 852; see United States v. Parker, 594 F.3d 1243, 1244 n. 1 (10th Cir.2010). More generally, government agents may approach a house using a route a private party might, such as an ungated front walkway, without violating the Fourth Amendment. See United States v. Galaviz, 645 F.3d 347, 355–56 (6th Cir.2011); Nikolas v. City of Omaha, 605 F.3d 539, 545–46 (8th Cir.2010) (cases cited). An officer likewise may approach a stopped vehicle without implicating the occupant's Fourth Amendment rights. See State v. Morris, 276 Kan. 11, 19–20, 72 P.3d 570 (2003); State v. Reason, 263 Kan. 405, 412, 951 P.2d 538 (1997), overruled on other grounds by State v. Berreth, 294 Kan. 98, 273 P.3d 752 (2012) ().
The crux of LaRue's argument rests on the notion that Burkholder had to have a legitimate, articulable law enforcement purpose to walk up the driveway to the truck to satisfy the requirements of the Fourth Amendment. But, as the caselaw demonstrates, that is a false notion. And it undercuts his claimed error in the district court's ruling on his motion to suppress. Even if the law were as LaRue contends (though it plainly is not), Burkholder had a good reason for approaching the truck. He had determined that the truck was registered to LaRue and someone—quite possibly LaRue—was in it. Burkholder properly could have come up the driveway, a minor intrusion, to see if LaRue were, in fact, the driver and, if so, to ask if he would accept the abatement notice, which could have been delivered in short order.
Burkholder, therefore, did not violate the Fourth Amendment in approaching the truck. The district court correctly denied LaRue's motion to suppress....
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