State v. Pollman, No. 93,947.

Decision Date21 November 2008
Docket NumberNo. 93,947.
Citation204 P.3d 630
PartiesSTATE of Kansas, Appellee, v. Leonard POLLMAN, Appellant.
CourtKansas Court of Appeals

Sam S. Kepfield, of Hutchinson, for appellant.

Gary L. Price, Jr., and David A. Page, assistant county attorneys, Ty Kaufman, county attorney, and Phill Kline and Paul J. Morrison, former attorneys general, for appellee.

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

BUSER, J.

This case returns to our court upon remand from the Supreme Court. See State v. Pollman, 286 Kan. 881, 190 P.3d 234 (2008). After consideration of the remanded questions, we again reverse Leonard Pollman's conviction of driving under the influence of alcohol (DUI) and vacate his sentence.

Factual and Procedural Background

Leonard Pollman was convicted of DUI in violation of K.S.A.2005 Supp. 8-1567(a)(2). On appeal, Pollman contended the district court erred in overruling his motion to suppress evidence obtained by Officer Michael Walline because the officer did not have reasonable suspicion to detain him or probable cause to arrest him for DUI. Pollman also contended that K.S.A.2005 Supp. 8-1567(a)(2) was unconstitutionally overbroad and void for vagueness.

In State v. Pollman, No. 93,947, unpublished opinion filed April 27, 2007, we reversed the conviction, stating: "Our review of the evidence in the present case convinces us that at the time Walline commenced his investigative detention of Pollman the totality of circumstances would not have provided an objective law enforcement officer with a reasonable suspicion that Pollman had committed a DUI." Slip op. at ___. Given our ruling we declined to address the additional issues raised by Pollman on appeal. Slip op. at ___.

The Supreme Court granted the State's petition for review and reversed our decision holding:

"[W]e conclude the totality of the circumstances-including criminal obstruction of official duty, admission to drinking, and smell of alcohol-provided reasonable suspicion sufficient to justify an investigation into whether Pollman, who was observed driving, was operating his motorcycle while under the influence of alcohol. In other words, there existed a minimum level of objective justification sufficient for the investigative detention of Pollman." 286 Kan. at 897, 190 P.3d 234.

Given its decision, the Supreme Court remanded the case to our court to "address the questions of whether K.S.A.2005 Supp. 8-1567(a)(2) is unconstitutionally overbroad and void for vagueness and whether the arrest was supported by probable cause." 286 Kan. at 897, 190 P.3d 234.

Because the determination of whether probable cause existed to arrest Pollman for DUI turns on the totality of circumstances known to Officer Walline at the time of the arrest, we reprise the Supreme Court's recitation of the facts:

"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." 286 Kan. at 882-84, 190 P.3d 234.

Probable Cause to Arrest Pollman for DUI

Pollman contends the district court erred in overruling his motion to suppress evidence because Officer Walline did not have probable cause to arrest him for DUI. In particular, Pollman argues the State failed to establish a sufficient foundation for admission of the preliminary breath test (PBT) result which comprised part of the totality of circumstances establishing probable cause to arrest Pollman for DUI.

On review of a district court's suppression of evidence, this court considers whether the factual findings are supported by substantial competent evidence. The ultimate legal conclusion, however, is reviewed de novo. State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006). The State bears the burden of proof on a suppression issue; it must prove the lawfulness of the search and seizure to the court. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). This court will not reweigh evidence, determine witnesses' credibility, or resolve conflicts in evidence. Ackward, 281 Kan. at 8, 128 P.3d 382. Finally, the admission or exclusion of evidence, subject to exclusionary rules, is within the district court's discretion. State v. Bishop, 264 Kan. 717, 725, 957 P.2d 369 (1998).

At the hearing on Pollman's motion to suppress evidence, the State presented the testimony of Walline and Allcock regarding their encounter with Pollman prior to his arrest. In addition to this testimony, the State sought to offer the incriminating evidence of the .11 test result from the PBT administered by Walline to Pollman.

Pollman's counsel contemporaneously objected to admission of the PBT result:

"I'm going to object, Your Honor, based upon foundation. We don't have any showing of what unit is being used here. We don't have any showing as to whether a waiting period is in fact required and if there is, no foundation for the admission of this PBT. We don't know how reliable it is and whether the instructions were followed."

After a colloquy with defense counsel, the district judge advised the prosecutor, "You're going to have to show me more foundation as to what was done on the preliminary breath test."

The prosecutor then elicited the following testimony from Officer Walline:

"Q. Okay. Did you, what type of machine do you use for your preliminary breath test?

"A. It's a digital preliminary breath test, PBT. I, I don't know what else to say about it.

"Q. Do you know the manufacturer name?

"A. Not right offhand. I believe it's possibly CMI is the company name I believe, but I'm not sure right offhand."

Pollman's counsel renewed his objection:

"Well, I'm going to object again. Your Honor, because the Department, KAR 28, the KAR require that there are four types of preliminary breath tests which are admissible into evidence and there are others which can be if there is a showing of reliability. That has not been done here. We don't know what type of testing we're using."

The prosecutor continued his examination, establishing that although Officer Walline had some on-the-job training on the PBT from the police department and had read the user's manual, no certification was required to operate it. Officer Walline also testified that because he had used the PBT numerous times he did not read the operating instructions on the PBT itself, which "state basically what to do; have the subject blow into it, which buttons to push on it to make it operate."

Pollman's counsel objected a third time to admission of the PBT test result: "Again, Your Honor, I'm going to object. There is no foundation as to whether...

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