State v. Williams

• Decision Date: 29 July 1982
• Docket Number: No. 53391,53391
• Citation: 8 Kan.App.2d 14,648 P.2d 1156
• Parties: STATE of Kansas, Appellee, v. Michael Robert WILLIAMS, Appellant.
• Court: Kansas Court of Appeals

Page 1156

648 P.2d 1156

8 Kan.App.2d 14

STATE of Kansas, Appellee, v. Michael Robert WILLIAMS, Appellant.

No. 53391.

Court of Appeals of Kansas.

July 29, 1982.

Review Denied Sept. 24, 1982.

Syllabus by the Court

A warrantless inspection of a motor vehicle authorized to transport property for hire and subject to regulations of the State of Kansas, which was stopped by an officer of the Kansas Highway Patrol solely to conduct an inspection pursuant to K.S.A. 74-2108(b ) without any suspicion on the part of the officer that there was a violation of any laws of the State of Kansas, does not violate either the Fourth Amendment to the United States Constitution or Section 15 of the Bill of Rights of the Kansas Constitution.

Edward W. Dosh, Parsons, for appellant.

Charles S. Gray, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before SPENCER, P. J., and ABBOTT and SWINEHART, JJ.

ABBOTT, Judge:

The defendant, Michael Robert Williams, appeals from a judgment of guilty for failing to present a current driver's daily log to a highway patrolman when requested to do so pursuant to K.S.A. 66-1,129 and K.A.R. 1980 Supp. 82-4-6.

The issue before us is whether a member of the highway patrol may stop a motor vehicle, which is subject to statutes, rules and regulations promulgated by the State of Kansas and its authorized agencies, to check the driver's daily log. Regulations require that a daily log be maintained in the truck cab and presented upon request to any law enforcement officer. K.A.R. 1980 Supp. 82-4-6(c)(1)(B), now K.A.R. 1981 Supp. 82-4-7a(t ).

The defendant, while traveling on U. S. Highway 160 in Labette County, Kansas, during daylight hours, was stopped by a Kansas Highway Patrolman. The trooper requested defendant's daily log and defendant declined to present it because it was not properly filled out. Apparently the defendant had made no entries in the log since the preceding day. The trooper stopped the defendant solely to make an inspection to insure that the carrier, vehicle and driver were in compliance with Kansas Corporation Commission (KCC) regulations. The trooper had no reason to suspect that the carrier, driver or truck was not operating in compliance with KCC regulations or was in violation of any law when he selected the truck at random to be checked.

The defendant was found guilty, fined $20 and ordered to pay $14.50 costs. This appeal followed.

We deem several cases of particular significance and will briefly review them in chronological order. The United States Supreme Court considered "licensing programs" requiring inspections in Colonnade Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970). There, the Court stated that the liquor industry has traditionally been subject to close supervision and inspection, and that Congress has broad authority to fashion standards of reasonableness for search and seizure. The Court acknowledged that Congress has broad authority to design reasonable inspection powers as part of "licensing programs" involving licensed dealers in alcoholic beverages; however, when Congress authorizes inspections but makes no rules governing the procedure to follow, the Fourth Amendment standard of reasonableness applies. The Court concluded that since Congress made it an offense punishable by a $500 fine to refuse entry by inspectors to examine taxable items, Congress by implication denied authority for warrantless entries under the law being considered.

Colonnade was distinguished in United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972). In Biswell, the Supreme Court considered that part of the Gun Control Act of 1968 authorizing warrantless inspections of business premises in which federally licensed businesses sold firearms. The Court held that the seizure of the guns in question was not unreasonable, for if inspections authorized by the Gun Control Act are to be effective, they must of necessity be unannounced and frequent. The Court stated that such warrantless inspections pose only a limited threat to a dealer's expectation of privacy, because one who engages in that business knows it is "pervasively regulated." Apparently of equal importance is that every year a licensee is furnished copies of applicable rules and regulations which describe the licensee's obligations and define an inspector's authority. Thus, it is reasoned, the licensee knows the purpose of the inspection and its limits, thereby minimizing the possibility of abuse and the threat to privacy.

The Supreme Court considered in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), whether the Border Patrol has authority to stop automobiles in areas near the Mexican border to question the occupants about their citizenship and immigration status. The Border Patrol had stopped an automobile solely because its three occupants appeared to be of Mexican descent. Two of the occupants were illegal immigrants. The driver was charged with knowingly transporting illegal immigrants. He moved to suppress the testimony of and about the two passengers, claiming such evidence was the fruit of an illegal seizure. His motion to suppress was denied and he was convicted. The Supreme Court stated:

"As with other categories of police action subject to Fourth Amendment constraints, the reasonableness of such seizures depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." 422 U.S. at page 878, 95 S.Ct. at page 2579.

The Court agreed there is a valid public interest in traffic-checking operations to reduce the flow of illegal aliens; but since substantially all of the traffic near our borders is lawful, it would be unreasonable to permit a Border Patrol officer who had no reasonable suspicion that an automobile contained illegal aliens, to arbitrarily stop any automobile on a random basis. The Court held that an officer must reasonably suspect a particular vehicle contains aliens who are illegally in the country to satisfy the "reasonableness" requirement of the Fourth Amendment.

In United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), the Supreme Court held that it was reasonable for Border Patrol agents to stop all traffic on a particular highway and then refer vehicles chosen at the agents' discretion to an area for additional inspection, even though one factor used in selecting vehicles for the secondary inspection was that a car contained persons who appeared to be of Mexican descent. The Court said the distinction between the "reasonableness" of the seizure in Martinez-Fuerte and the "unreasonableness" of the procedure in Brignoni-Ponce was:

"(The) objective intrusion-the stop itself, the questioning, and the visual inspection-also existed in roving-patrol stops. But we view checkpoint stops in a different light because the subjective intrusion-the generating of concern or even fright on the part of the lawful travelers-is appreciably less in the case of a checkpoint stop." 428 U.S. at page 558, 96 S.Ct. at page 3083.

Administrative inspections under the Occupational Safety and Health Act of 1970 were considered in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). The Court held the inspections were unreasonable because the scope and frequency of the inspections were not limited to the particular health and safety concerns regulated by the act, and the act provided no standards to guide the inspectors regarding who and when to search. The Court again limited its holding to the inspection provisions of OSHA and stated:

"The reasonableness of a warrantless search ... will depend upon the specific enforcement needs and privacy guarantees of each statute. Some ... statutes ... apply only to a single industry, where regulations might already be so pervasive that a Colonnade-Biswell exception to the warrant requirement could apply." 436 U.S. at page 321, 98 S.Ct. at page 1825.

The question of whether a police officer can randomly stop an automobile solely to check the driver's license and the vehicle's registration was considered in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). The Supreme Court noted the police officer was not acting pursuant to any guidelines concerning spot checks promulgated by either his department or the State Attorney General. The Court specifically rejected the argument that the practice was necessary to promote public safety on the roads. In part, the Court reasoned that the random discretionary spot check of drivers' licenses is not a sufficiently productive mechanism to justify the intrusion upon a driver's Fourth Amendment interest which such stops entail, and that alternative mechanisms were available or could be adopted to meet the state's interests. The Court, relying on the justices' collective common sense as the source, stated that the percentage of unlicensed drivers on the road is small in comparison with licensed drivers, thus the possibility of discovering an unlicensed driver during a random spot check would not be sufficiently productive to qualify as a reasonable law enforcement practice under the Fourth Amendment.

As we view Delaware v. Prouse, the Supreme Court is saying that the officer must have an appropriate factual basis for the suspicion directed at a particular automobile or, where public interests otherwise justify a seizure, some other substantial and objective standard or rule must govern, at least to some extent, the exercise of discretion by the officer in the field. The Supreme Court in Prouse advised that states could develop spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion (such as questioning all oncoming traffic at roadblock-type stops). Of particular interest and a cause for some concern to the question before us is footnote...