State v. Pollman

• Decision Date: 08 August 2008
• Docket Number: No. 93,947.,93,947.
• Citation: 190 P.3d 234
• Parties: STATE of Kansas, Appellee, v. Leonard POLLMAN, Appellant.
• Court: Kansas Supreme Court

190 P.3d 234

STATE of Kansas, Appellee, v. Leonard POLLMAN, Appellant.

No. 93,947.

Supreme Court of Kansas.

August 8, 2008.

Sam S. Kepfield, of Hutchinson, argued the cause and was on the brief for appellant.

Gary L. Price, Jr., assistant county attorney, argued the cause, and David A. Page, assistant county attorney, Ty Kaufman, county attorney, Phill Kline, former attorney general, and Paul J. Morrison, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by LUCKERT, J.:

Leonard Pollman seeks to suppress evidence obtained during an investigation of whether he was driving under the influence of alcohol (DUI). His suppression motion raises the question of what level of "reasonable suspicion" is necessary before a motorist may be detained for a DUI investigation. The trial court concluded an investigation was permissible because Pollman had been observed driving his motorcycle, and then he allegedly obstructed the officer's official duties, admitted to drinking, and smelled of alcohol. The Court of Appeals disagreed and concluded these factors were not sufficient because the investigating officer had not observed any signs of impaired driving, did not immediately detect the smell of alcohol, did not know how much or when Pollman had been drinking, and did not observe typical signs of intoxication such as blurry eyes, slurred speech, or difficulty in walking or standing. State v. Pollman, No. 93,947, 2007 WL 1239251, unpublished opinion filed April 27, 2007.

Upon our review, we conclude the Court of Appeals imposed too high a burden and the circumstances raised a reasonable suspicion that Pollman was DUI.

Facts and Procedural History

On the evening of June 26, 2004, Leonard Pollman (Pollman) and his wife Vida Pollman (Vida) were traveling together in McPherson, Kansas, each driving a motorcycle. Officer Michael Walline observed the couple for about 10 blocks. During that time, the only traffic violation the officer saw was Vida's failure to use a turn signal on her motorcycle. As a result, Officer Walline stopped Vida. Pollman also pulled over. Although Walline informed Pollman that he was not being stopped and needed to "move along," Pollman lingered. At one point, Walline told Pollman that if he wanted to stay in the area, he should take his motorcycle to a nearby parking lot. Instead, Pollman stood next to his motorcycle after parking it about one car length ahead of Vida's.

While asking Vida for her identification during the traffic stop, Officer Walline smelled an odor of alcohol on her breath, which prompted him to conduct a DUI investigation on Vida. A reserve officer was present with Officer Walline, and because Walline did not want Pollman to obstruct his wife's traffic stop, Walline asked the reserve officer to have Pollman step away. After Pollman refused to leave the vicinity of the traffic stop, Officer Walline called for back-up assistance. Walline's superior, Captain Allcock, arrived and stood with Pollman.

According to Allcock's testimony at the suppression hearing, he smelled alcohol on Pollman's breath. When asked, Pollman admitted to Allcock that he had been drinking. Allcock did not know how much alcohol Pollman had consumed or how long ago the drinking had occurred, but he observed Pollman to be coherent and cooperative. Other than the odor of alcohol, Allcock saw no other typical indicators signaling that Pollman had been drinking.

Meanwhile, Officer Walline was conducting Vida's traffic stop. Although he smelled an odor of alcohol on Vida's breath, Walline ultimately determined that she did not qualify for a DUI arrest. After issuing a warning about the traffic infraction, Walline told Vida she was free to go.

After that, Officer Walline walked with Vida to her motorcycle and made contact with Pollman, who was still standing with Captain Allcock. According to Walline's suppression hearing testimony, he spoke to Pollman because "I had already talked to him about getting away from my traffic stop and I wanted to speak with him about obstruction and future charges if he were ever in that situation again."

Officer Walline asked Pollman for his driver's license, and Pollman handed it over. Walline was planning to talk to Pollman about his behavior as it related to his wife's traffic stop when Captain Allcock told Walline something like, "He's been drinking, you need to check him." Then Allcock had to leave the scene on other police business. When Walline asked Pollman if he had consumed any alcohol, Pollman replied that he had consumed "a few" beers.

Officer Walline asked Pollman to get in the patrol car. At that point, for the first time, Walline smelled an odor of alcohol on Pollman's breath. After that, Walline administered a preliminary breath test (PBT) which registered a breath alcohol concentration of .11. Walline also conducted field sobriety tests, including the walk-and-turn test and the one-legged-stand test. He was dissatisfied with Pollman's performance on both of these tests. Walline arrested Pollman, gave him a copy of the implied consent advisory form, and read it to him. In addition, Pollman consented to a blood test which revealed a blood alcohol concentration (BAC) of .10.

Based upon this evidence, the State charged Pollman with operating or attempting to operate a motor vehicle while the alcohol concentration in his blood or breath, as measured within 2 hours of the time of operating his vehicle, was .08 or more, after having two prior DUI convictions, in violation of K.S.A.2005 Supp. 8-1567(a)(2), (f).

Pollman responded by filing two motions. In one motion, he sought to suppress the results of the PBT and BAC tests, arguing that law enforcement officers had neither reasonable suspicion to detain him nor probable cause to arrest him for DUI. The trial court denied Pollman's motion, finding there was no stop or detention because Pollman was told he could leave but chose to stay in the vicinity of his wife's traffic stop. Further, the trial court found that the combination of Pollman's admission to drinking, Captain Allcock's statement that Pollman smelled of alcohol, and Officer Walline's observance of Pollman operating a vehicle was sufficient reasonable suspicion to conduct a PBT. Further, the court found the PBT result provided grounds for Pollman's arrest.

In the second motion, Pollman sought dismissal of the case, arguing K.S.A.2005 Supp. 8-1567(b), clarified at arguments on the motion to be K.S.A.2005 Supp. 8-1567(a)(2), is overbroad and void for vagueness. The trial court denied that motion as well.

At trial, Pollman renewed his motion to suppress, but the court again denied the motion. As a result, the evidence of Pollman's PBT and BAC was admitted. Based upon this evidence, the jury found Pollman guilty of operating a motor vehicle while his BAC was .08 or more. Pollman's motions for a new trial and judgment of acquittal were denied. He was sentenced to 1 year in the county jail, but the court granted probation for 18 months.

Pollman timely appealed from his conviction, arguing (1) officers did not have reasonable suspicion to detain him for a DUI investigation, (2) officers did not have probable cause to arrest him for DUI, and (3) K.S.A. 2005 Supp. 8-1567(a)(2) is overbroad and void for vagueness.

The Court of Appeals panel addressed only the first of these arguments, determining the evidence should have been suppressed because there was not a constitutional basis for the prolonged detention and search of Pollman. Slip op. at 11-12. In reaching that ultimate conclusion, the panel made several preliminary determinations. First, in the panel's view, substantial competent evidence supported the trial court's finding that Pollman initially stopped of his own accord and voluntarily remained at the scene while Officer Walline completed the traffic stop involving his wife, Vida. Next, the panel determined that the initial voluntary encounter evolved into an investigatory detention when Walline retained possession of Pollman's driver's license. Slip op. at 7.

In light of this second determination, the panel considered whether, at the time the initial voluntary encounter evolved into an investigative detention, an objective law enforcement officer would have had a reasonable suspicion that Pollman had operated his motorcycle while under the influence of alcohol. The panel held that the totality of the circumstances did not provide the officer with such reasonable suspicion. Slip op. at 11.

The Court of Appeals honed in on several facts in reaching this conclusion:

"[I]t is clear that Pollman did not have a strong odor of alcohol about him when Officer Walline first approached him. Although Allcock noted an odor, Walline testified that during the entire time he stood with Pollman by the street he never detected an odor of alcohol. Second, although Pollman admitted to drinking a few beers there was no indication he recently had drunk to excess. Third, both Walline and Allcock confirmed that Pollman did not exhibit typical indicators of intoxication — bloodshot eyes, slurred speech, unsteady footing, or agitation. Fourth, the fact that Walline had followed Pollman and his wife for about 10 blocks without observing Pollman violate any traffic laws or engage in unusual driving also mitigated against a reasonable suspicion that Pollman was driving under the influence." Slip op. at 11-12.

The panel stated the totality of the circumstances in this case mirrored those discussed in City of Hutchinson v. Davenport, 30 Kan. App.2d 1097, 54 P.3d 532 (2002), where a different Court of Appeals panel found an insufficient factual basis to constitute a reasonable suspicion that the driver was violating the DUI statute. Pollman, slip op. at 11-12.

The Court of Appeals panel reversed the trial court's order denying Pollman's motion to suppress the results of the PBT and BAC tests and remanded the case. Given its...