State v. Blake

1

State of Kansas, Appellant, v. Elizabeth Diane Blake, Appellee.

No. 125,824

Court of Appeals of Kansas

February 23, 2024

NOT DESIGNATED FOR PUBLICATION

Oral argument held July 11, 2023.

Appeal from Johnson District Court; ROBERT G. SCOTT, magistrate judge.

Jacob M. Gontesky, assistant district attorney, Stephen M. Howe district attorney, and Kris W. Kobach, attorney general, for appellant.

Russell L. Powell, of Monaco Sanders, et al., of Leawood, for appellee. Before ATCHESON, P.J., MALONE and PICKERING, JJ.

MEMORANDUM OPINION

PICKERING, J.

The State appeals the district court's decision to grant Elizabeth Diane Blake's motion to suppress evidence in a prosecution for driving under the influence (DUI). The district court ruled there was too much uncertainty that the car law enforcement ultimately stopped was the same car that left the scene of an accident because the officer lost sight of the car for a minute or two on a desolate two-lane road between 2 and 3 a.m.

Under the totality of circumstances, we disagree that losing sight of the car for a minute or two when there was no other traffic on the road invalidated the stop. Therefore, we find the district court erred in granting Blake's motion to suppress. Accordingly, we reverse the order suppressing the evidence and remand for additional proceedings.

FACTS

In March 2021, the State charged Blake with leaving the scene of an accident, DUI, and transporting an open container. Blake filed a motion to suppress, claiming "the evidence [was] illegally obtained in violation of Defendant's rights under the Fourth and Fourteenth Amendments to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights." The facts of the case were set forth at the hearing on Blake's suppression motion.

On a Sunday in February 2021, between 2 and 3 a.m., Sergeant David Rolfe and Corporal Zachary Roberts, both with the City of Gardner Police Department, were dispatched to answer a grass fire and suspicious activity call. They arrived at the intersection of 175th Street and Four Corners Road in Johnson County, which is just outside Gardner's city limits. Rolfe arrived first and saw that the fire was caused by downed power lines. The damaged power pole appeared to have been struck by a pickup truck, which was located further down the road.

There were two other vehicles in the area. One was traveling westbound on 175th Street and was quickly out of sight. The other was stopped in the westbound lane about 50 yards away from the scene, with its hazard lights blinking. Rolfe activated his vehicle's red and blue flashing emergency lights. Within three seconds the parked car turned off its hazard lights.

Rolfe then got out to investigate the crash and shortly discovered that there were no occupants in the wrecked pickup. At that moment, the nearby parked car pulled away. Rolfe directed Roberts, who was still in his vehicle back by the fire, to stop the car. Rolfe testified that, based on his experience he thought the car was either directly involved in the collision or it had possibly picked up the driver of the crashed pickup.

The car leaving the scene of the accident disappeared over the hill before Roberts stopped it. Roberts testified that it took him a mile to catch up. In that mile, he saw no other vehicles in either direction. Rolfe's dashcam, presented at the suppression hearing, also indicated that no other vehicles were on the road at the time.

Roberts stopped the car and ultimately detained the passenger, Blake, on suspicion of DUI and leaving the scene of an accident. On cross-examination, Roberts admitted that he was not certain that the car he stopped was the car that had left the scene. He reiterated that no other vehicles had passed. He testified that he did not see the car that he stopped commit any traffic violations.

At the conclusion of the hearing, the district court ruled that reasonable suspicion existed to stop the car that left the scene of the accident, but because the State could not establish that the car stopped was exactly the same car that left the scene, it granted Blake's motion to suppress.

The State moved to reconsider under K.S.A. 2022 Supp. 60-259(f), arguing that the district court used the incorrect legal standard when it suppressed the evidence. The State contended that because the stop was an investigatory detention, the officers needed mere reasonable suspicion to stop the car, not a higher standard of "certainty" that the district court seemed to require.

The district court denied the State's motion to reconsider. The court ruled that stopping Blake's car was based on no more than "a hunch" because officers failed to maintain visual contact with the car between the scene of the accident and the seizure.

ANALYSIS

The State challenges the district court's order suppressing evidence, including Blake's statements to law enforcement, results of her blood alcohol test, observations of the arresting officer, officer testimony, and all fruits thereof.

"On a motion to suppress, an appellate court generally reviews the district court's findings of fact to determine whether they are supported by substantial competent evidence and reviews the ultimate legal conclusion de novo." State v. Cash, 313 Kan. 121, 125-26, 483 P.3d 1047 (2021); see also State v. Talkington, 301 Kan. 453 461, 345 P.3d 258 (2015) (applying this standard of review on State's appeal after district court granted defendant's motion to suppress).

Both parties agree that the district court's factual findings were supported by substantial competent evidence. We are therefore left with the sole issue of determining whether the district court's legal conclusion was correct.

The Fourth Amendment to the United States Constitution protects the people from unreasonable searches and seizures. U.S. Const. amend. IV. Under this context, an officer is permitted "to initiate a brief investigative traffic stop when he has 'a particularized and objective basis for suspecting the particular person stopped of criminal activity.' United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)." Kansas v. Glover, 589 U.S., 140 S.Ct. 1183, 1187, 206 L.Ed.2d 412 (2020). "[I]investigatory detentions are constitutionally permissible if an objective officer would have a reasonable and articulable suspicion that the detainee committed, is about to commit, or is committing a crime." State v. Hanke, 307 Kan. 823, 828, 415 P.3d 966 (2018). "To have reasonable suspicion to detain an individual, '[a] police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'" State v. Sanders, 310 Kan. 279, 286, 445 P.3d 1144 (2019).

"Although a mere '"hunch"' does not create reasonable suspicion, the level of suspicion the standard requires is 'considerably less than proof of wrongdoing by a preponderance of the evidence,' and 'obviously less' than is necessary for probable cause. [Citation omitted.]" Navarette v. California, 572 U.S. 393, 397, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014); State v. Sharp, 305 Kan. 1076, 1081, 390 P.3d 542 (2017). "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.'" 305 Kan. at 1081.

In its brief, the State contends that the district court erred as a matter of law by requiring proof far beyond the applicable legal standard of reasonable suspicion-that of certainty. The district court appears to have required certainty that the car stopped was the same car that officers reasonably suspected of criminal activity. Responding, Blake argues that even if the car that was ultimately stopped was, in fact, the same car near the accident scene, there still would not be reasonable suspicion of criminal activity to stop it. In other words, she suggests that no evidence supported the conclusion that any occupant of the vehicle parked at the scene of the accident with its hazard lights blinking was committing or had committed any crime.

In Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), the United States Supreme Court considered whether there was reasonable suspicion to support a Terry stop of an individual, Wardlow, who-"unprovoked"-took off running when he saw a patrol car driving through a known heavy narcotics trafficking area. See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Wardlow was pursued, was found with a firearm, and was arrested. Wardlow challenged his seizure, contending that the officers lacked reasonable suspicion to justify his seizure.

In determining whether there was reasonable suspicion to support Wardlow's seizure, the Court found that "[a]n individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime." 528 U.S. at 124. The Court also found that "there are innocent reasons for flight from police and that . . . flight is not necessarily indicative of ongoing criminal activity." 528 U.S. at 125. However, the Court concluded that the combination of Wardlow's "presence in an area of heavy narcotics trafficking" and "his unprovoked flight upon noticing the police" provided officers with reasonable suspicion to detain Wardlow. 528 U.S. at 124. The Court continued:

"Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Headlong flight-wherever it occurs-is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is

...