State v. Thompson

• Decision Date: 10 September 2021
• Docket Number: 122,959
• Court: Kansas Court of Appeals
• Parties: State of Kansas, Appellee, v. Brian M. Thompson, Appellant.

State of Kansas, Appellee, v. Brian M. Thompson, Appellant.

No. 122, 959

Court of Appeals of Kansas

September 10, 2021

NOT DESIGNATED FOR PUBLICATION

Appeal from Reno District Court; TRISH ROSE, judge.

Randall L. Hodgkinson, of Kansas Appellate Defender Office for appellant.

Natasha Esau, assistant district attorney, Thomas R. Stanton district attorney, and Derek Schmidt, attorney general, for appellee.

Before WARNER, P.J., CLINE, J., and WALKER, S.J.

MEMORANDUM OPINION

PER CURIAM:

While Deputy Mikel Bohringer parked alongside the road at night, Brian M. Thompson passed him in the adjacent lane. The deputy claimed his emergency lights were activated when Thompson passed him. The deputy pulled Thompson over for failure to yield to an emergency vehicle, found drugs in his vehicle, and arrested him.

Thompson moved to suppress the drug evidence, based on his assertion that the deputy's emergency lights were not activated when Thompson passed. The district court granted the motion, but another panel of this court reversed that decision and remanded the matter to the district court. On remand, Thompson renewed his motion after discovering the video of the traffic stop just before Thompson's traffic stop contained a 360-degree view which showed the deputy de-activated his emergency lights after the stop. In denying the motion, the district court mistakenly found it could not consider this new information based on this court's mandate after the first appeal. The district court also denied the motion because Thompson did not file a new motion to suppress on remand, which the district court found was required by K.S.A. 22-3216(3). The district court misinterpreted the mandate and statutory requirements, so we reverse and remand for the district court to re-entertain Thompson's motion to suppress, given the 360-degree camera view in Defendant's Exhibit A.

FACTS

The State charged Thompson with possession of methamphetamine possession of marijuana, and possession of drug paraphernalia in January 2018. Deputy Bohringer found the drugs and paraphernalia after stopping Thompson for failing to yield to an emergency vehicle pursuant to K.S.A. 2017 Supp. 8-1530. This statute provided in relevant part:

"(b) The driver of a motor vehicle upon approaching a stationary authorized emergency vehicle, when the authorized emergency vehicle is making use of visual signals meeting the requirements of K.S.A. 8-1720, and amendments thereto, or subsection (d) of K.S.A. 8-1722, and amendments thereto, shall do either of the following:

(1) If the driver of the motor vehicle is traveling on a highway that consists of at least two lanes that carry traffic in the same direction of travel as that of the driver's motor vehicle, the driver shall proceed with due caution and, if possible and with due regard to the road, weather and traffic conditions, shall change lanes into a lane that is not adjacent to that of the stationary authorized emergency vehicle; or

(2) if the driver is not traveling on a highway of a type described in paragraph (1), or if the driver is traveling on a highway of that type but it is not possible to change lanes or if to do so would be unsafe, the driver shall proceed with due caution, reduce the speed of the motor vehicle and maintain a safe speed for the road, weather and traffic conditions." K.S.A. 2017 Supp. 8-1530.

The visual signals set forth in K.S.A. 2017 Supp. 8-1720 are as follows:

"(a) Except as provided in subsection (b), every authorized emergency vehicle, in addition to any other equipment required by this act, shall be equipped with signal lamps mounted as high and as widely spaced laterally as practicable, which shall be capable of displaying to the front two alternately flashing red lights located at the same level and to the rear two alternately flashing red lights located at the same level, or in lieu thereof, any such authorized emergency vehicle shall be equipped with at least one rotating or oscillating light, which shall be mounted as high as practicable on such vehicle and which shall display to the front and rear of such vehicle a flashing red light or alternate flashes of red and white lights or red and blue lights in combination. All lights required or authorized by this subsection shall have sufficient intensity to be visible at 500 feet in normal sunlight. Every authorized emergency vehicle may, but need not, be equipped with head lamps which alternately flash or simultaneously flash.

"(b) A police vehicle when used as an authorized emergency vehicle may, but need not, be equipped with:

(1) Head lamps which alternately flash or simultaneously flash;

(2) flashing lights specified in subsection (a), but any flashing lights, used on a police vehicle, other than the flashing lights specified in K.S.A. 8-1722, and amendments thereto, rotating or oscillating lights or alternately flashing head lamps or simultaneously flashing head lamps, shall be red in color; or

(3) rotating or oscillating lights, which may display a flashing red light or alternate flashes of red and blue lights in combination."

Before trial, Thompson moved to suppress the drug evidence, arguing Deputy Bohringer did not have reasonable suspicion that he violated K.S.A. 2017 Supp. 8-1530. According to Thompson, he passed Bohringer around 2:18 a.m. in South Hutchinson, Kansas. The area was dark with no illuminating lights. Thompson alleged that "[a] review of the video from Deputy Bohringer's patrol vehicle of the traffic stop prior to him pulling over Mr. Thompson clearly shows that Deputy Bohringer was back in his patrol car and turned off his emergency lights prior to Mr. Thompson's vehicle driving past Deputy Bohringer." Because the emergency lights on the deputy's patrol vehicle were not activated when Thompson drove past, Thompson argued he had no basis to initiate the traffic stop.

Deputy Bohringer and Thompson both testified at the hearing on Thompson's motion. Bohringer testified his patrol vehicle was a Ford Explorer SUV with a light bar on the top of the vehicle and several lights around the vehicle. The lights in the front and back of the vehicle flashed red and blue. He testified he had his top light bar activated as well as two to four lights on his bumper while conducting the traffic stop. After concluding the traffic stop and returning to his patrol vehicle, he testified that he "turned [his] sequence of lights to just where the rear lights were activated." He explained this included red and blue blinking lights in his taillights and in the back portion of the light bar on top of his patrol vehicle. The front portion of the light bar was not activated.

Deputy Bohringer testified Thompson drove past him so closely that it shook his patrol vehicle. They were on a four-lane road with two northbound and two southbound lanes. About one-third or one-half of the deputy's patrol vehicle protruded into the easternmost lane. Thompson was driving in that lane as he approached Bohringer. As Thompson passed Bohringer, he only moved his vehicle six inches left of the white dotted centerline of the road, leaving about 95 percent of his vehicle in the deputy's lane. Bohringer initiated a traffic stop of Thompson for failing to yield to an emergency vehicle. After stopping Thompson, Bohringer discovered drugs and drug paraphernalia.

A copy of Deputy Bohringer's dash camera footage, which covered the time between initiating the first traffic stop and changing the active emergency lights on his car, was introduced into evidence. The camera captured what happened in front of the deputy's vehicle but not behind it. Blue and red flashing lights were visible during Bohringer's stop of the motorist. Once Bohringer returned to his vehicle and changed the lights, the red and blue flashes were no longer visible in the front camera view. Bohringer admitted that no red and blue flashing lights were visible in his dash camera footage but explained they simply were not visible from the front of the video despite it being "pitch black outside."

Thompson testified that he saw Deputy Bohringer's patrol car as he approached it from behind, but there were no red and blue lights activated on the vehicle.

In closing argument, Thompson's counsel argued the video showed the blue and red lights stopped blinking before Thompson passed Deputy Bohringer. Defense counsel stated:

"Apparently it's the State's argument that the blue and red lights from behind the vehicle was still flashing. That just does not prove to be true in the video. It could be Deputy Bohringer was mistaken but it's pitch black on the side of that road. You could see red and blue lights flashing if they were in fact flashing."

The district court later granted the motion, after taking it under advisement. The court found that Deputy Bohringer's rear emergency lights were activated. Even so, it held: "The officer testified he felt his vehicle shake as defendant passed. This fact alone does not support a finding of reasonable suspicion of violation of the law. Traffic conditions, road conditions and speed all enter into a determination of whether a violation of K.S.A. 8-1530 has occurred." The State filed an interlocutory appeal.

A panel of this court reversed the district court's decision. State v. Thompson, No. 120, 323, 2019 WL 3977964 (Kan. App. 2019) (unpublished opinion). On appeal, Thompson argued "the district court found his testimony more credible-that he saw no emergency lights flashing when approaching the officer's stopped patrol vehicle-over Officer Bohringer's testimony that he thought he left the rear emergency lights on." 2019 WL 3977964, at *3. This court rejected that argument, noting the district court found Deputy Bohringer's rear emergency lights were...