City of Junction City v. Franklin

CITY OF JUNCTION CITY, Appellant, v. GLEN FRANKLIN, Appellee.

No. 121,120

COURT OF APPEALS OF THE STATE OF KANSAS

February 21, 2020

NOT DESIGNATED FOR PUBLICATION

MEMORANDUM OPINION

Appeal from Geary District Court; STEVEN L. HORNBAKER, judge. Opinion filed February 21, 2020. Affirmed.

Britain D. Stites, city attorney, for appellant.

Betsy K. Edwards and Richard A. Pinaire, of Hoover, Schermerhorn, Edwards, Pinaire & Rombold, of Junction City, for appellee.

Before ARNOLD-BURGER, C.J., HILL and GARDNER, JJ.

PER CURIAM: Glen Franklin was arrested in Junction City for driving under the influence (DUI) and was also charged with possession of a firearm while under the influence, a violation of a Junction City ordinance. Before trial, the district court granted Franklin's motion to suppress evidence of the DUI arrest and the firearm, then dismissed the City's case. Junction City appeals, arguing that the district court erred in finding no probable cause to arrest Franklin for DUI, in suppressing the gun, and in dismissing the case. Finding no error, we affirm.

Factual and Procedural Background

Around 2 a.m. one night in February 2017, Officer Ondre Miles stopped Franklin for a suspected DUI. In an amended complaint, the City charged Franklin with a second offense DUI, refusal of a preliminary breath test (PBT), failure to maintain a lane, and possession of a firearm while under the influence. Junction City's municipal court convicted Franklin of his second DUI offense and possession of a firearm while under the influence. Franklin then appealed to the district court and moved to suppress evidence of his arrest and the gun in his car.

In his suppression motion, Franklin argued that the Kansas Supreme Court's decision in City of Wichita v. Molitor, 301 Kan. 251, 263, 341 P.3d 1275 (2015), required suppression of Miles' request and Franklin's refusal to take a PBT. He contended that Miles' request for a PBT was based on Franklin's horizontal gaze nystagmus (HGN) test, which the Molitor court had likened to a Ouija Board and a Magic 8 Ball. Franklin also argued that his arrest was based on his refusal to take a PBT so it too was inadmissible. Franklin also challenged the validity of the traffic stop, arguing it was based only on the minor infraction of failing to signal his exit from a roundabout. Finally, Franklin asserted that the gun police seized from his vehicle after his arrest should be suppressed as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

At the evidentiary hearing on Franklin's motion to suppress, the district court—citing Molitor—agreed with Franklin and suppressed the PBT test because Miles had requested it as a result of the HGN test results. The district court, however, allowed the hearing to continue to consider whether Franklin's initial stop was legal.

The City called Miles to establish reasonable suspicion for the initial stop and probable cause for the DUI arrest. Miles was the only person called to testify at thesuppression hearing. During Miles' testimony, the district court admitted the dashboard camera and body camera footage of the stop and arrest.

Miles testified that he had recently received a call from dispatch of shots fired in an area of Junction City. While patrolling that area sometime after 2 a.m., Miles drove past Franklin's car, the only vehicle in the area. While driving behind Franklin, Miles noticed that Franklin was driving erratically. Franklin rode in the middle of a two-lane road although no line demarked the lanes. Franklin swerved within his lane, entered a lane without signaling, exited a roundabout without signaling, then drifted over the center line of the road. And he failed to signal whether he was entering the left lane or the right lane after exiting the roundabout. Miles pulled Franklin over as a result of these traffic violations.

Miles testified that after he turned on his emergency lights, Franklin complied with the stop. Once Franklin was stopped, Miles approached the driver's side window. Miles first noticed that Franklin's eyes were bloodshot and watery and that Franklin's vehicle had a strong odor of alcohol. Later, Miles determined that because Franklin did not appear to have spills, wet marks, or stains on his clothing, the alcohol smell was likely coming from Franklin's mouth. Miles also noted that Franklin's speech was not slurred but was abnormal. While still in his car, Franklin told Miles that he had a 40 caliber firearm in his armrest. After that admission, Miles asked Franklin to get out of his vehicle.

Once Franklin got out of the vehicle, Miles patted him down for weapons, noted the cane in Franklin's backseat, and asked Franklin about his physical health. Franklin responded that he walked with a cane and had surgery on both knees. Franklin also told Miles that he was a disabled veteran and was taking four types of medications, including oxycodone. He admitted that he had just left a bar but said he had been there for only 10minutes and only had water. And Franklin told Miles he was on his way to Clay Center, which Miles noted was in the opposite direction that Franklin was traveling.

Miles then decided to test for intoxication. To accommodate Franklin's physical needs, Miles determined it would be best to forgo the standard walk-and-turn and one-leg standard test sobriety tests. Instead, Miles asked Franklin to perform three non-standard tests. First, Miles conducted the HGN test. Miles testified that this test was still in the National Highway Traffic Safety Administration (NHTSA) manual and his department manual and that he would continue to use it until it was taken out. But in keeping with Molitor, Miles did not testify to the results of Franklin's HGN test.

Miles also had Franklin recite the alphabet from "C to Y". Miles testified that Franklin failed this test:

"He started, and he went all—it's a lot of alphabets. And I'm not going to be able to remember every alphabet how he put it. He went from C to Q, and then he said U-T-Q, U-T-U, F, mm-mm, T, dang, C-U-D, C-U-D, E-F-G, H-I-J-K-L-M-N-O-P-Q-R-S-T-U-V, mm-mm, X-Y-Z. I then asked Mr. Franklin if he remember what alphabet I asked him to end with. . . He said, [X]."

Miles also conducted a counting test, asking Franklin to count backwards from "97-71." Franklin passed that test. Miles also asked Franklin to take a PBT but Franklin declined. After these tests, Miles placed Franklin under arrest.

An officer then moved Franklin's car to a nearby parking lot as Franklin had requested and seized the gun from Franklin's armrest. But the officers never sought or obtained a search warrant.

At the close of the suppression hearing, the district court denied Franklin's motion to suppress evidence of the traffic stop or the arrest. It granted Franklin's request tosuppress the firearm, reasoning that the police had failed to get a warrant before seizing it.

Later, the district court called the parties to notify them of its sua sponte decision to reconsider its suppression decision. At this second evidentiary hearing, as before, Miles was the only person to testify. The parties' questions mostly focused on Miles' use of the HGN test and why Miles had not used the standard walk-and-turn or one-leg turn tests. Miles admitted that the HGN test affected his DUI investigation because it showed Franklin was possibly impaired by alcohol. Miles also testified that the HGN test led him to perform the non-standard counting and alphabet tests on Franklin.

The district court's memorandum decision was broader than its earlier decision. It found that because the HGN test was inadmissible under Molitor, Miles' request for a PBT was unsupported by reasonable suspicion. The district court then found that "everything [Miles] did after the HGN is tainted and inadmissible." The district court then considered the circumstances before the HGN test and the request for a PBT and found that they failed to establish probable cause for Miles to arrest Franklin for DUI. The district court also held that the seizure of Franklin's gun was illegal:

"When the officers decided to drive the car to a public parking lot and lock it up instead of having it towed, they lost the ability to search the car without a warrant. Had the police taken the car to impoundment, it could have been searched for inventory. But they chose not to."

As a result, the district court dismissed Franklin's case.

The City timely appeals.

Did the District Court Err in Suppressing Franklin's DUI Arrest?

The City first argues that the district court erred in suppressing evidence of Franklin's DUI arrest because Miles had probable cause to arrest Franklin. The City also asserts that the district court misapplied our Supreme Court's decision in Molitor.

Our standard of review for a district court's decision on a motion to suppress has two components. We review the district court's factual findings to determine whether they are supported by substantial competent evidence. We review the ultimate legal conclusion, however, using a de novo standard. In reviewing the factual findings, the appellate court does not reweigh the evidence or assess the credibility of witnesses. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018).

The City bears the burden of proving the lawfulness of a search and seizure. State v. Keenan, 304 Kan. 986, 993, 377 P.3d 439 (2016). "To be lawful, a warrantless arrest must be supported by probable cause." Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 20, 290 P.3d 555 (2012). The probable cause required to justify a warrantless arrest is "'the reasonable belief that a specific crime has been or is being committed and that the defendant committed the crime.'" 296 Kan. at 20. Our Supreme Court has given us guidance when considering whether this reasonable belief exists:

"'Existence of probable cause must be determined by consideration of the information and fair inferences therefrom, known to

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