State v. Sharp

• Decision Date: 17 March 2017
• Docket Number: No. 110,845,110,845
• Citation: 390 P.3d 542,305 Kan. 1076
• Parties: STATE of Kansas, Appellee, v. Travis SHARP, Appellant.
• Court: Kansas Supreme Court

305 Kan. 1076

390 P.3d 542

STATE of Kansas, Appellee,

v.Travis SHARP, Appellant.

No. 110,845

Supreme Court of Kansas.

Opinion filed March 17, 2017

Richard P. Klein, of Olathe, Darrell Smith, of Law Office of Darrell Smith, of Olathe, and Rachelle Worrall Smith, of the same firm, were on the briefs for appellant.

Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

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

Travis Sharp was convicted of driving under the influence and unlawful exhibition of speed. In an unpublished opinion, the Court of Appeals reversed these convictions and the district court's denial of Sharp's motion to suppress evidence of his driving under the influence. State v. Sharp , No. 110845, 2014 WL 7566576, at *7 (Kan. App. 2014) (unpublished opinion). The panel held K.S.A. 8-1565, which prohibits an unlawful "exhibition of speed or acceleration," was unconstitutionally vague and indefinite, the good faith exception was inapplicable, and the officer lacked reasonable suspicion to conduct a traffic stop based on a violation of K.S.A. 8-1565. 2014 WL 7566576, at *4–5.

The State petitioned for review arguing the panel misapplied the good faith exception, substantial competent evidence supports the denial of the motion to suppress, and K.S.A. 8-1565 is not unconstitutionally vague as applied to Sharp. The case was placed on summary calendar pursuant to Kansas Supreme Court Rule 7.01(c)(2) (2015 Kan. Ct. R. Annot. 59). We affirm the Court of Appeals decision holding the officer lacked reasonable suspicion to conduct the traffic stop but vacate its holding regarding the constitutionality of the statute. See State ex rel. Schmidt v. City of Wichita , 303 Kan. 650, Syl. ¶ 3, 367 P.3d 282 (2016) ("Appellate courts generally avoid making unnecessary constitutional decisions. ... [W]here there is a valid alternative ground for relief, an appellate court need not reach a constitutional challenge.").

On January 25, 2013, at approximately 5:30 p.m., Officer Donald Bowers was in a marked police car sitting at a traffic light, in a left turn lane, next to two lanes of eastbound traffic. Bowers' attention was drawn to a dark-colored SUV two lanes to his right and slightly ahead of his car when he heard an engine revving and saw a heavy cloud of smoke coming from underneath the vehicle. Bowers smelled rubber and saw the right rear tire spinning and smoking while the vehicle was stationary. Bowers explained this was called "power braking" and is accomplished by applying the brake and the gas at the same time. Bowers described it as a show of "physical endurance of a vehicle" and was to him "a preparation of a drag race warming the tires."

Bowers decided to stop the vehicle after the light changed. Because he was surrounded by stationary traffic, Bowers turned on his rear flashing lights to alert the drivers in back of him of his intention to change lanes so he could move behind the SUV. When the light turned green, the SUV did not "tear out from the intersection" nor accelerate in any manner that would provide another justification for stopping him. Bowers followed the vehicle through the intersection, and once Bowers had cleared the intersection, he activated "lights that [the driver of the SUV, Travis Sharp] was able to see" and conducted a traffic stop.

When Bowers asked Sharp if he knew why he had been stopped, Sharp responded "for burning my tires." Sharp responded strangely and slowly to Bowers' initial questions, admitted to drinking "one Buzz Ball," and proceeded to exhibit multiple indications of impairment on field sobriety testing. His preliminary breath test and breath test indicated the presence of alcohol over the legal limit.

Sharp was charged with exhibition of speed under K.S.A. 8-1565 and misdemeanor driving under the influence under K.S.A. 8-1567. Sharp moved to suppress all evidence, reasoning the officer lacked reasonable suspicion to conduct the traffic stop. At the suppression hearing, Bowers testified the sole reason he made the traffic stop was because Sharp was spinning his tires at the stoplight. Defense counsel argued the evidence did not establish an exhibition of speed or acceleration under a strict construction of K.S.A. 8-1565(a). The State countered that burning tires at a red light is an exhibition of the power, endurance, and capabilities of the vehicle, such as the ability to accelerate off the stop or to speed.

The district court denied the motion, reasoning the officer had reasonable suspicion to stop the vehicle which was showing it could drag race based on the racing engine, the smell of the tires, and the back tires squealing. In so doing, the district court stated: "Even if the officer only saw what he saw, and I think it meets the statute, there is some room for interpretation as both attorneys have done as to what the—what the exact words mean. But clearly, I think that the intent of the legislature was to prohibit this type of behavior."

Sharp filed a motion to reconsider additionally arguing K.S.A. 8-1565 is unconstitutional because exhibition of speed or acceleration is not adequately defined and requires a person of common intelligence to guess at its meaning. The district court summarily denied the motion to reconsider. The parties agreed to a bench trial based on stipulated facts in order to preserve Sharp's motion to suppress. Sharp was convicted of second offense driving under the influence under K.S.A. 8-1567 and exhibition of speed under K.S.A. 8-1565.

Sharp appealed claiming the district court erred in denying his motion to suppress because the portion of K.S.A. 8-1565 prohibiting exhibitions of speed or acceleration is unconstitutionally vague and indefinite, and Bowers lacked the necessary reasonable suspicion to conduct a traffic stop based on a violation of the statute.

The Sharp panel held K.S.A. 8-1565 was substantially similar to a city ordinance prohibiting an unlawful "exhibition of speed" which this court held was unconstitutionally vague in City of Altamont v. Finkle , 224 Kan. 221, 224, 579 P.2d 712 (1978). Applying Finkle , the Sharp panel held the provision in K.S.A. 8-1565"making it unlawful to exhibit speed or acceleration uses language that is so vague and indefinite that one charged in such terms could not be expected to understand the nature and elements of the prohibited conduct." 2014 WL 7566576, at *4. The panel also rejected the State's reliance on both an Olathe ordinance to provide a more precise definition of what it means to engage in "exhibition of speed or acceleration" and the good faith exception to the exclusionary rule. 2014 WL 7566576, at *4–5.

Alternatively, the panel held that even if the statute was constitutional, Bowers lacked reasonable suspicion to conduct a traffic stop. The panel reasoned that under a strict construction of the statute in favor of the accused, "speed and acceleration are both words that denote movement of some kind," and all of the actions identified by Bowers as justification to stop Sharp happened while the vehicle was stationary. 2014 WL 7566576, at *6. Additionally, it found no facts in the record to support a reasonable suspicion that Sharp was about to participate in a drag race. Although Bowers believed Sharp was warming his tires to participate in a race, Sharp did not accelerate in a manner that would justify a stop for drag racing. Under the totality of the circumstances, the panel concluded Sharp's actions did not rise to the level of a particularized and objective basis for suspecting prior, current, or future criminal activity. 2014 WL 7566576, at *6.

The panel reversed the district court's denial of the motion to suppress and both of Sharp's convictions, vacated the sentences and fines imposed, and remanded with directions to grant the motion to suppress. Sharp , 2014 WL 7566576, at *7. This court granted the State's petition for review which argued the panel misapplied the good faith exception, substantial competent evidence supports the denial of the motion to suppress, and K.S.A. 8-1565 is not unconstitutionally vague as applied to Sharp.

We first address the State's reasonable suspicion argument as it is dispositive of the case. The State argues the panel erred by reversing the district court's decision denying the motion to suppress because reasonable suspicion did not exist to support the traffic stop. "The district court's factual findings on a motion to suppress evidence are reviewed for substantial competent evidence. The legal conclusions drawn from that evidence are reviewed de novo." State v. Pettay , 299 Kan. 763, 768, 326 P.3d 1039 (2014).

Similarly, "[w]hether reasonable suspicion exists is a question of law, and appellate courts review this question with a mixed standard of review, determining whether substantial competent evidence supports the district court's factual findings, while the legal conclusion is reviewed de novo." City of Wichita v. Molitor , 301 Kan. 251, 264–65, 341 P.3d 1275 (2015).

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," and a traffic stop is considered a seizure of the driver. City of Atwood v. Pianalto , 301 Kan. 1008, 1011, 350 P.3d 1048 (2015). Compliance with the Fourth Amendment requires the officer conducting the stop to "have a reasonable and articulable suspicion, based on fact, that the person stopped has committed, is committing, or is about to commit a crime." 301 Kan. at 1011, 350 P.3d 1048.

Reasonable suspicion is a lower standard than probable cause, and "[w]hat is reasonable depends on the totality of circumstances in the view of a trained law enforcement officer." State v. Martinez , 296 Kan. 482, 487, 293 P.3d 718 (2013). In determining whether reasonable suspicion exists, the...