State v. Byard

473 P.3d 959 (Table)

STATE of Kansas, Appellee,

v.Maegan R. BYARD, Appellant.

No. 121,703

Court of Appeals of Kansas.

Opinion filed October 9, 2020.

Jacob Nowak, of Kansas Appellate Defender Office, for appellant.

Natasha Esau, assistant district attorney, Keith Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Hill, P.J., Malone, J., and Walker, S.J.

MEMORANDUM OPINION

Per Curiam:

Maegen R. Byard appeals her convictions for possession of methamphetamine, drug paraphernalia, and marijuana. Byard challenges the district court's denial of her motion to suppress evidence seized during a vehicle search after a traffic stop. After a thorough review of Byard's claims, we find they lack merit and affirm the district court's refusal to suppress the evidence.

FACTS

On an evening in April 2018, Officer Cory Schmidt of the Hutchinson Police Department initiated a traffic stop of a black Kia Optima driven by Byard. Upon contacting Byard, Officer Schmidt detected the odor of unburnt marijuana. Relying on this odor for their probable cause, Officers Schmidt and Scott Finster searched the car, finding marijuana, methamphetamine, and multiple items of drug paraphernalia in the center console and inside Byard's purse. When the officers asked Byard about the items, she admitted using methamphetamine the previous weekend and said that anything in the vehicle was probably leftover from that time. Byard also said she had bought some marijuana earlier that day, but the marijuana in the car was from a previous day.

After the officers arrested Byard, the State later charged her with one count each of possession of methamphetamine, possession of drug paraphernalia, possession of marijuana, and driving while declared a habitual violator. At the preliminary hearing, Officer Schmidt testified that Byard's vehicle was failing to maintain its lane, so he conducted a traffic stop. When he contacted her, he detected the smell of unburnt marijuana. That prompted Schmidt to ask her to exit the vehicle and he "proceeded to search the vehicle under the Carroll doctrine." See Carroll v. United States , 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925) (first recognizing "automobile exception," which allows warrantless search of vehicle based on probable cause); State v. Howard , 305 Kan. 984, 990, 389 P.3d 1280 (2017) (search of automobile permitted if there is probable cause; mobility of vehicle provides exigent circumstances without necessity of proving anything more).

Byard moved to suppress the evidence

As a pretrial matter, Byard moved to suppress the evidence from the search, arguing that Officer Schmidt lacked reasonable suspicion of a traffic violation to justify the traffic stop. She contended the district court should suppress the evidence because it was obtained through an unlawful and unconstitutional search and seizure.

The district court held a hearing on the motion in January 2019, at which Officers Schmidt and Daniel Nowlan testified. The court also viewed a dash cam video from Officer Schmidt's patrol car and Officer Nowlan's body cam video. Because the testimony of the officers and the video evidence are critical in resolving the issues, we will review them in some detail.

Testimony of Officers Schmidt and Nowlan

Officer Schmidt testified that on that evening he was patrolling near the intersection of 17th and Severance in Hutchinson. While doing so, he noticed a black Kia travelling westbound that sped up to get through the traffic light at that intersection. He began following the vehicle "to make sure that no more traffic infractions were committed." Schmidt acknowledged "[t]hat itself wasn't a traffic infraction, but it was just enough to catch [his] attention." A few blocks later, at 17th and Cleveland, he noticed the vehicle's left tires go into a left turn lane without signaling and then continue to go straight through the intersection. The tires "completely went over the line" into the turn lane and Schmidt estimated "a quarter to a fifth of the vehicle" was in the turn lane. Traffic in the area was moderate to light, and there were no obstacles in the road that required Byard to move into the turn lane. Schmidt recognized that failing to maintain a single lane was a possible clue of impairment, so he continued following the Kia.

From there, Officer Schmidt testified the Kia continued traveling west. Then, just past the intersection of 17th and Plum the vehicle's left tires slightly crossed the double yellow line separating the westbound lane from oncoming traffic. There was an oncoming vehicle slowing down with its turn signal on, but Schmidt did not see where that vehicle turned because he was focusing on the Kia. Schmidt said he did not manually activate his dash cam at that time because he "was still trying to determine, gather reasonable suspicion to stop the vehicle." Once he activated the emergency lights, the dash cam automatically began recording 30 seconds from that activation, which meant the very beginning of the dash cam video captured only the second incident at the intersection of 17th and Plum. The district court then admitted Officer Schmidt's dash cam video and viewed it during the hearing.

Officer Schmidt then testified that he contacted the driver of the Kia, who identified herself as Byard. Schmidt said he ran her name and information through dispatch and discovered she had a suspended Kansas driver's license and an outstanding warrant. Schmidt estimated he made that discovery "[w]ithin the first 5 to 10 minutes, probably."

On cross-examination, Officer Schmidt clarified that he activated his emergency lights only after he felt that there was reasonable suspicion of impaired driving. He said Byard's driving pattern resembled what he had seen of intoxicated drivers in the past. He believed that the two incidents of failing to maintain a lane could have led to an accident if he did not stop the vehicle.

As for the actions that first caught his attention, Officer Schmidt said he believed Byard was driving over the speed limit but did not have a functioning radar to verify his belief. He did not feel comfortable stopping her for speeding. Schmidt acknowledged that neither his initial report nor his testimony at the preliminary hearing included his observation that Byard initially sped up to get through the light.

As for the first instance of a potential lane violation, Officer Schmidt testified this instance was "minimal" as compared to "the grand scheme of things of criminal wrongdoing." He said it was a traffic infraction but did not stop Byard at this point because he was still gathering reasonable suspicion for driving under the influence. As for the second instance of a potential lane violation, Officer Schmidt said he now believed Byard was putting others at risk, so he activated his emergency lights to begin the traffic stop.

Officer Nowlan, one of the backup officers who assisted with the traffic stop, also testified. He arrived after Officer Schmidt had already begun the stop and had his body cam activated upon arrival. Over Byard's objection, the district court admitted and viewed Officer Nowlan's body cam video as evidence.

Dash cam video summary

Officer Schmidt's dash cam video began at around 8:02 p.m., when the left tires of the Kia were already approaching the double yellow line separating the lanes. Within the first two seconds, the vehicle's left tires were fully over the yellow lines as an oncoming vehicle approached from the other lane moderately close to the Kia. About 10 seconds later, as Officer Schmidt continued following the Kia, he activated the emergency lights on his patrol car. Byard continued driving for about 20 more seconds before eventually turning and pulling off onto a side street, where Officer Schmidt finally contacted her.

Schmidt's dash cam video does not contain an audio track. Following the stop, Officer Schmidt can be seen on the video talking to Byard at the driver's side window, reviewing paperwork she handed him, and questioning her for several minutes after she stepped out of the Kia. About seven minutes into the stop Officer Nowlan and other backup officers arrived, and Schmidt and Nowlan are shown on the dash cam video searching Byard's vehicle.

Body cam video summary

Officer Nowlan's body cam video, which included audio, began at about 8:10 p.m. as he arrived at the traffic stop. As he walked up, Officer Schmidt could be heard explaining to Byard that they were going to search her vehicle. At the beginning of the search, Schmidt told Nowlan they were searching for marijuana and asked Nowlan, "Can you smell it?" Schmidt said, "It's not as strong now cause she's rolled down this window," and that he "smelled it when [unintelligible]."

The rest of the video showed the officers searching the vehicle and discovering small containers of methamphetamine and marijuana, as well as a burnt one-hitter pipe. After the search, Officer Schmidt could be seen Mirandizing and interrogating Byard, who eventually disclosed that she used methamphetamine that weekend, that she had bought marijuana earlier in the day, and admitting the contents of the vehicle belonged to her.

District court's ruling

After reviewing the testimony and videos and considering the parties' arguments on the motion to suppress, the district court ultimately denied the motion. The court began by noting that Officer Schmidt's testimony that he observed the Kia speed up to get through the intersection at 17th and Severance—presumably because of a yellow traffic light—"doesn't quite make sense because if the officer was behind her and he didn't see an infraction then that means he would have went through the red light." The court also pointed out that despite not mentioning it in his report or at the preliminary hearing, Schmidt testified he did not consider this initial incident to be a traffic violation.

As for the first instance in which Byard's vehicle briefly moved into the turn...