State v. Reesor
| Decision Date | 06 February 2015 |
| Docket Number | 110,496. |
| Citation | 342 P.3d 970 (Table) |
| Parties | STATE of Kansas, Appellee, v. Jeffrey REESOR, Appellant. |
| Court | Kansas Court of Appeals |
Kevin P. Shepherd, of Topeka, for appellant.
Norbert C. Marek, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.
Jefferey A. Reesor appeals his conviction of driving under the influence of alcohol. He contends that Officer Sam Hamilton of the Wabaunsee County Sheriff's Office did not have reasonable suspicion to conduct a traffic stop. Accordingly, Reesor argues that all evidence obtained as a result of the stop should have been suppressed. Based on the totality of the circumstances, we find that the officer had reasonable suspicion to stop Reesor for allegedly violating two traffic laws. We also find no merit in Reesor's argument that his deficient sample breath test result was inadmissible. Lastly, we find that there was sufficient evidence to support Reesor's conviction. Thus, we affirm.
Around 7 p.m. on January 20, 2012, Officer Hamilton was monitoring traffic near the intersection of Keene–Eskridge Road and South Boundary Road in Wabaunsee County. Keene–Eskridge Road—which runs north and south—is a paved road, and South Boundary Road—running east and west—is a gravel road. While the officer was in his patrol vehicle sitting on the west side of Keene–Eskridge Road facing south, he observed a pickup truck with two occupants pass him and turn east onto South Boundary Road.
Using binoculars, Officer Hamilton observed the truck travel slowly about 1/2 mile down the road before it turned around and began heading back west. He then observed the truck turn around again and start heading east. After about 20 minutes, the officer drove in the truck's direction on South Boundary Road to investigate further. When he drove over the crest of a hill, Officer Hamilton observed the truck parked on the north side of the road facing east with both doors open. Shortly thereafter, the occupants closed the truck's doors and it pulled to the right side of the road and continued travelling east.
Officer Hamilton then stopped the truck. As he approached the driver, the officer smelled a strong odor of alcohol coming from the vehicle. He also noticed a red plastic cup on the floorboard as well as one in a cup holder. Officer Hamilton observed that the driver, Reesor, had red, glassy eyes, and that his speech was slurred. The officer also noticed that Reesor fumbled looking for his driver's license and proof of insurance. Officer Hamilton asked Reesor if he had been drinking, and he admitted that he had consumed a couple drinks.
After Officer Hamilton asked Reesor to step out of his vehicle and follow him to the rear of the vehicle, Reesor had to use the door and side of the truck to steady himself. When Reesor reached the rear of the truck, he leaned against the tailgate, so Officer Hamilton asked him to stand up straight. When he did so, Officer Hamilton noticed that Reesor continued to sway.
Initially, Officer Hamilton asked Reesor to recite his ABC's and count backwards from 90 to 60. Reesor again slurred his speech and missed a few numbers while counting backwards. Because they were on a gravel road and it was a cold and windy night, the officer did not have Reesor perform the one-leg-stand or the walk-and-turn field sobriety tests on the road. A video recorded the events, but the microphone on Officer Hamilton was unable to record their conversation because the battery was dead.
After placing Reesor under arrest, Officer Hamilton searched the vehicle. He discovered that the two red cups he had previously noticed contained a small amount of liquid but not enough for him to test for alcohol. Next, the officer found an open bottle of margarita mix on the floorboard below the passenger seat. Using his preliminary breath tester, he determined that the bottle contained alcohol.
Afterwards, Officer Hamilton transported Reesor back to the Sheriff's office at the Wabaunsee County Courthouse for additional testing. Once at the Sheriff's office, Reesor was unable to keep his balance during the walk-and-turn test and the one-leg-stand test. Once again, Reesor slurred his speech as he recited the ABC's and repeated several numbers when counting backwards. After Reesor gave his consent, Officer Hamilton administered a breath test using an Intoxilyzer 8000. The machine recorded a deficient sample blood-alcohol content of .187.
Reesor was charged with driving under the influence of alcohol—his second offense—and transporting an open container. Prior to trial, Reesor filed a motion to suppress any evidence obtained after Officer Hamilton stopped him. A magistrate judge denied Reesor's motion and subsequently found him guilty of both counts. Reesor timely appealed to the district court and renewed his motion to suppress.
The district court also denied the motion to suppress, and the case proceeded to a jury trial. At trial, Officer Hamilton testified at length as to the proper operation of the Intoxilyzer 8000. He produced the testing equipment's certification as well as his certifications to operate the machine. In addition, the officer explained what constitutes a deficient sample. At the conclusion of the trial, the jury found Reesor guilty of driving under the influence of alcohol and transporting an open container. He was sentenced to 48 hours of confinement and 6 months of probation.
On appeal, Reesor contends that the district court erred in denying the motion to suppress because Officer Hamilton did not have reasonable suspicion to stop his vehicle. We use a bifurcated standard to review a district court's decision on a motion to suppress. The review of a district court's legal conclusions is unlimited. But we review a district court's factual findings to determine whether they are supported by substantial evidence. See State v. Sanchez–Loredo, 294 Kan. 50, 54, 272 P.3d 34 (2012). “Substantial evidence is such evidence that a reasonable person might accept as sufficient to support a conclusion.” State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). Whether reasonable suspicion existed is a question of law that is reviewed de novo. State v. Coleman, 292 Kan. 813, 817, 257 P.3d 320 (2011).
The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Section 15 of the Kansas Constitution Bill of Rights provides the same protection. State v. Moore, 283 Kan. 344, 349, 154 P.3d 1 (2007). It is well settled that a traffic stop is a seizure under the purview of the Fourth Amendment. See K.S.A. 22–2402(1) ; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; State v. Field, 252 Kan. 657, 664, 847 P.2d 1280 (1993). An officer, therefore, may conduct a traffic stop when (1) the officer knows of specific and articulable facts that create a reasonable suspicion that a person has violated a traffic law or (2) when the officer has probable cause. See State v. Greever, 286 Kan. 124, 136–37, 183 P.3d 788 (2008) ; State v. Miller, 49 Kan.App.2d 491, Syl. ¶ 1, 308 P.3d 24, rev. denied 298 Kan. –––– (December 27, 2013).
Whether an officer's suspicion is reasonable must be determined based on the totality of the circumstances. State v. Coleman, 292 Kan. 813, 817–18, 257 P.3d 320 (2011). “In considering the totality of the circumstances, a reviewing court should employ common sense and ordinary human experience and should accord reasonable deference to a law enforcement officer's ability to distinguish between innocent and suspicious actions.” 292 Kan. at 818, 257 P.3d 320.
“A traffic violation provides an objectively valid reason for conducting a traffic stop.” 292 Kan. at 818, 257 P.3d 320 (citing Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331 [1977] ). Further, “[t]he United States Supreme Court has specifically held that a traffic stop is not rendered invalid by the mere fact is it is a ‘mere pretext.’ “ State v. Jones, 300 Kan. 630, 638, 333 P.3d 886 (2014) (quoting United States v. Robinson, 414 U.S. 218, 221 n. 1, 94 S.Ct. 467, 38 L.Ed.2d 427 [1973] ); see Greever, 286 Kan. at 140, 183 P.3d 788.
Here, a review of the record reveals that Officer Hamilton had reasonable suspicion to stop Reesor's vehicle for both driving on the left side of the road and for parking his vehicle on the wrong side of the road. K.S.A. 8–1514(a) plainly provides: “Upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway, except [as provided].” Violation of K.S .A. 8–1514 is an absolute liability offense. State v. Chavez–Zbarra, 42 Kan.App.2d 1074, 1076, 221 P.3d 606 (2009). In addition, K.S.A. 8–1572(a) provides that a driver must ensure—when parking on a two-way road—that the right-hand wheels are as close to the right edge of the right-hand shoulder as is practicable. Furthermore, the fact that the road was made out of gravel with no clear dividing line is irrelevant because the plain and unambiguous language of these statutes make no such distinction.
We conclude that Officer Hamilton articulated specific facts that created a reasonable suspicion that Reesor violated one or more traffic laws. Furthermore, we conclude that the fact that the stop may have been pretextual does not render it invalid.
Reesor next argues that the district court erred in denying his motion to suppress because Officer Hamilton lacked probable cause to arrest him. “ ‘Probable cause is the reasonable belief that a specific crime has been or is being committed and that the defendant committed the crime.’ “ Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 20, 290 P.3d 555 (2012). It exists when the facts and circumstances within the arresting officer's knowledge are...
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