Sweeney v. Kan. Dep't of Revenue

• Decision Date: 30 December 2022
• Docket Number: 124,409
• Citation: 522 P.3d 398 (Table)
• Parties: Stephan Michael SWEENEY, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
• Court: Kansas Court of Appeals

522 P.3d 398 (Table)

Stephan Michael SWEENEY, Appellant,

v.KANSAS DEPARTMENT OF REVENUE, Appellee.

No. 124,409

Court of Appeals of Kansas.

Opinion Filed December 30, 2022.

MEMORANDUM OPINION

Per Curiam:

Stephan Michael Sweeney appeals the district court's decision affirming the Kansas Department of Revenue's (KDOR) suspension of his driver's license, arguing the suspension arose from an unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution. On appeal, we find that the minimally prolonged traffic stop precipitating the suspension of Sweeney's driver's license was constitutional and, therefore, affirm the district court's decision upholding the suspension order.

FACTUAL AND PROCEDURAL BACKGROUND

On August 23, 2019, after 11 p.m., Sweeney left the Paramount Bar after consuming at least a couple of alcoholic drinks and began driving. At that time, Saline County Sheriff's Deputy Jay Rector and a reserve deputy were on patrol in Saline County when Deputy Rector observed Sweeney commit two traffic violations: rolling through a stop sign and making an unlawfully wide turn. Deputy Rector then activated his lights, and Sweeney properly pulled over.

As Deputy Rector approached Sweeney's vehicle, he noticed that all the windows were rolled down. When the deputy reached Sweeney's driver-side window, Sweeney already had his driver's license ready without the deputy requesting it. When Deputy Rector informed Sweeney that he was being stopped for the unlawful stop and turn, Sweeney responded, " ‘I'm sorry.’ " During this initial encounter, Deputy Rector did not observe any alcoholic beverages in Sweeney's vehicle, any odor of alcohol coming from Sweeney, anything unusual about Sweeney's vehicle coming to a stop while being pulled over, or any problems with Sweeney's finger dexterity. Nor did Deputy Rector observe—at this point in the stop—that Sweeney had watery, bloodshot eyes, or slurred speech. Deputy Rector then returned to his patrol car to verify Sweeney's identity and the validity of his license.

Upon returning to his patrol car, Deputy Rector commented to the other deputy that all of Sweeney's windows were rolled down and that he wanted to "find out what [Sweeney is] doing." After confirming that Sweeney's license was valid, Deputy Rector did not prepare a citation for the unlawful turn or stop. Rather, he returned to Sweeney's driver-side window and, without returning the driver's license, began to question him. Upon arriving at Sweeney's vehicle for this second encounter and initiating conversation, Deputy Rector observed that Sweeney had watery, bloodshot eyes and slurred speech. The deputy also smelled the odor of alcohol coming from Sweeney's breath. Deputy Rector asked Sweeney multiple times if he had been consuming alcohol and Sweeney repeatedly denied having done so.

Deputy Rector then asked Sweeney to perform several field sobriety tests—an alphabet test, a counting test, and a finger-dexterity test—and Sweeney performed poorly on all of them. The deputy then administered a preliminary breath test which indicated that Sweeney had a blood alcohol content of 0.122, which exceeds the legal limit in Kansas. Deputy Rector then arrested Sweeney for driving under the influence (DUI).

Sweeney was personally served with the "Officer's Certification and Notice of [Driver's License] Suspension." Sweeney requested an administrative hearing with the KDOR, and the administrative hearing officer affirmed the suspension of Sweeney's driver's license. Sweeney filed a petition for review of the KDOR's administrative suspension order in the Saline County District Court pursuant to K.S.A. 8-259(a). The district court held a de novo bench trial for the case, at which both Sweeney and Deputy Rector testified.

At trial, Sweeney disputed that he had made an improper stop, but he did not deny that he had made an unlawfully wide turn. Sweeney's attorney conceded at trial that Sweeney did not challenge either alleged traffic violation during the stop.

Deputy Rector testified that, at the time of the traffic stop, he had approximately nine years of law enforcement experience with various police departments in Kansas, which included being trained in DUI stops and investigations. The deputy further testified that over the course of his career, he had conducted over 100 DUI investigations.

Regarding all of Sweeney's windows being rolled down, Deputy Rector testified that, in his experience and training, "people who have been consuming alcoholic beverages will generally roll windows down to try to air that vehicle out pretty rapidly." Sweeney testified that he had rolled all the windows down to air out the smell of a bag of hamburgers from a notoriously odorous restaurant, but Deputy Rector testified he did not recall smelling any such odor emanating from Sweeney's vehicle despite his familiarity with the notorious odor.

Sweeney testified that he was not slurring his speech during the traffic stop and that he just has naturally slow speech and was speaking as he normally does. However, Sweeney admitted that he had indeed been drinking alcohol that evening and that he lied to Deputy Rector when asked if he had consumed alcohol.

In his testimony, Deputy Rector explained that he decided to start a DUI investigation based upon the odor of alcohol, the obvious signs of impairment that he had been trained to identify, and his observation of Sweeney's driving. Deputy Rector further testified that his belief that Sweeney might be driving under the influence was based upon: (1) Sweeney's watery, bloodshot eyes; (2) Sweeney's slurred speech; (3) the unlawful stop and turn; (4) all the windows being rolled down; and (5) Sweeney's response of " ‘I'm sorry’ " rather than an immediate denial of the alleged traffic infractions.

After the trial, both parties filed posttrial briefs addressing the issue of whether the traffic stop as prolonged by the deputy was constitutional. Sweeney's position was that, although the initial traffic stop was uncontested, at the point in time where the deputy reapproached the vehicle after checking Sweeney's identity, he should have been given either a ticket or warning, given his license back, and released rather than the stop being prolonged for the DUI investigation. The KDOR's position was that, during the traffic stop, the deputy gained a reasonable suspicion that Sweeney was engaged in illegal activity.

In a hearing on August 24, 2021, the district court announced its judgment from the bench. The district court upheld the KDOR's administrative suspension order, stating:

"A review of the record and the briefs that have been filed by the respondent parties, Petitioner and Respondent in this matter though, give the Court the following findings of fact which has been articulated in the Post Trial Brief of the Respondent in this matter.

"The traffic stop no one at this point in time seriously contends was not valid.

"It's simply the point in which time Deputy Rector received the driver's license, the proof of insurance, went back to this patrol car and had further comment with the reserve deputy.

"It was upon his return to the vehicle that has now been clarified in fact he did not return the driver's license to Mr. Sweeney, and he continued at that point in time with the investigation based upon slurred speech, bloodshot and watery eyes, odor of alcohol that seemed to continue to increase in spite of all four windows being rolled down.

"Further inquiry of Mr. Sweeney relative to his alcohol consumption which he denied. Later determined that at trial that in fact he had consumed alcohol at the Paramount Bar. Under the totality of the circumstances, the Court finds that the determination of the hearing examiner relative to the reasonable basis for the stop and the reasonable suspicion continued. The DUI investigation would be affirmed...."

On September 14, 2021, the district court filed the journal entry of judgment, stating:

"After reviewing the file, the testimony presented, the arguments of counsel, post-trial briefs and authorities submitted, the Court finds the officer lawfully stopped Petitioner for a traffic violation, and the officer did have probable cause or reasonable grounds to believe the Petitioner was operating a motor vehicle under the influence of alcohol. The Court finds for the Respondent on this petition."

Sweeney filed a timely notice of appeal.

DISCUSSION

Preservation

As a threshold issue, we address whether Sweeney's claim that his encounter with Deputy Rector violated the Fourth Amendment to the United States Constitution is properly preserved for appeal. Sweeney preserved the issue for appeal to the district court following the adverse ruling in the administrative hearing. Sweeney then asserted this claim in the district court and the district court directly ruled on the claim. Accordingly, Sweeney's constitutional claim is properly preserved for review by this court.

Standard of review

Appeals from the administrative suspension of driver's licenses are subject to review under the Kansas Judicial Review Act. Rosendahl v. Kansas Dept. of Revenue , 310 Kan. 474, 480, 447 P.3d 347 (2019) ; see K.S.A. 2021 Supp. 8-259(a) ; K.S.A. 77-601 et seq. On appeal, the burden of proving the invalidity of the agency action rests on Sweeney as the party asserting the invalidity. See K.S.A. 77-621(a)(1). K.S.A. 2021 Supp. 8-1020(q) further provides that "[u]pon review, the licensee shall have the burden to show that the decision of the agency should be set aside."

"A district court's factual findings in a license suspension matter are reviewed for substantial competent evidence," while the district court's legal conclusions derived from those factual findings are reviewed de novo. Creecy v. Kansas Dept. of Revenue , 310 Kan. 454, 469, 447 P.3d 959 (2019) ; Johnson v. Kansas Dept. of Revenue , 58 Kan. App. 2d 431, 436, 472 P.3d 92 (2020) ("When reviewing a district court's decision in a...