IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 94,033
THOMAS J.G. MARTIN,
Appellee,
v.
KANSAS DEPARTMENT OF REVENUE,
Appellant.
SYLLABUS BY THE COURT
1. Issues of statutory and constitutional interpretation raise pure questions of law subject to unlimited appellate review.
2. K.S.A. 8-1020(h)(2)(A)-(H) is clear and unambiguous; and its list of issues that may be decided in an administrative driver's license suspension hearing is exclusive.
3. K.S.A. 8-1020(h)(2)(A)'s "reasonable grounds to believe" a driver is under the influence and "reasonable suspicion" sufficient for a traffic stop under constitutional law are distinct legal concepts.
4. In the peculiar context of alcohol- and/or drug-related driver's license suspensions, delaying full argument and decision of a particular aspect of a case--preventing its pursuit at the administrative level and deferring it to later court appeal--does not run afoul of due process. In particular, the exclusion of Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights issues from the Department of Revenue decision in administrative hearings under K.S.A. 8-1020(h)(2)(A)-(H) does not violate procedural due process.
5. The rule that a constitutional issue cannot be decided by an administrative agency does not necessarily preclude a driver from raising such an issue in that forum.
6. The implications of the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights transcend the boundary of civil or administrative proceedings on the one hand and criminal proceedings on the other because those provisions delineate rights that attach to individuals in either circumstance.
7. The reasonableness of an officer's suspicion is based on the totality of circumstances and is viewed from the perspective of those versed in law enforcement. An officer's mistake of law alone may invalidate a traffic stop under the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights.
8. The exclusionary rule is a judicially created remedy, designed to deter the government from engaging in unconstitutional conduct. The United States Supreme Court has held the rule applicable only where its deterrence benefits outweigh its substantial social costs. The balance outlined by the United States Supreme Court between the benefits and costs of application of the exclusionary rule, when employed in driver's license suspension proceedings, tips in favor of the Department of Revenue and against Martin and other drivers. The deterrent effect of the rule is already accomplished in the criminal arena. Any additional deterrent effect on law enforcement violation of the Fourth Amendment and § 15 to be gleaned from extension of the rule beyond the criminal DUI setting would be minimal, and it cannot outweigh the remedial imperative of preventing alcohol- and/or drug-impaired drivers from injury or killing themselves or others.
Review of the judgment of the Court of Appeals in 36 Kan. App. 2d 561, 142 P.3d 735 (2006). Appeal from Johnson district court; KEVIN P. MORIARTY, judge. Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed. Opinion filed February 1, 2008.
John D. Shultz, of Kansas Department of Revenue, argued the cause and James G. Keller, was with him on the briefs for appellant.
Michael A. Millett, of Law Offices of Michael A. Millett, P.A., of Overland Park, argued the cause and was on the brief for appellee.
Douglas E. Wells, of Topeka, was on the brief for amicus curiae Kansas Association of Criminal Defense Lawyers.
The opinion of the court was delivered by
BEIER, J.: This case addresses whether, when, and to what effect a Kansas driver may contest an alcohol- and/or drug-based administrative license suspension arising out of a law enforcement traffic stop allegedly violating the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of rights.
Factual and Procedural Background
This case began when plaintiff Thomas J.G. Martin was pulled over by Officer Christopher Wilson of the Prairie Village Police Department in August 2002. The parties have stipulated that Martin was under the influence at the time, but there had been nothing about Martin's driving that alerted the officer to this fact. Rather, Wilson stopped Martin because of a malfunctioning rear brake light. At the time, Wilson believed the malfunctioning light to be in violation of the law, even though two other rear brake lights on Martin's vehicle were working.
After the stop, Wilson became suspicious that Martin had been drinking. Martin failed field sobriety tests, refused a preliminary breath test, and later failed a chemical breath test at the police station. The chemical breath test result led Kansas Department of Revenue (Department) to suspend Martin's driver's license. Notes from Martin's administrative hearing on the suspension show that Martin attempted unsuccessfully to argue the unconstitutionality of the traffic stop before the Department.
Martin sought review in the district court, where the judge reversed the license suspension, holding that Wilson misinterpreted the law governing brake lights and that this misinterpretation meant he lacked reasonable suspicion to initiate Martin's stop.
A panel of our Court of Appeals overturned the district court decision, agreeing with the Department that the propriety of a traffic stop is irrelevant in a driver's license suspension hearing. Martin v. Kansas Dept. of Revenue, 36 Kan. App. 2d 561, 567, 142 P.3d 735 (2006). The panel focused on the fundamental differences between such an administrative proceeding and a criminal prosecution, noting in particular that the purpose of the former is remedial and the latter, punishment. 36 Kan. App. 2d at 564-65 (citing Huelsman v. Kansas Dept. of Revenue, 267 Kan. 456, 457, 980 P.2d 1022 [1999]; Meehan v. Kansas Dept. of Revenue, 25 Kan. App. 2d 183, 188, 959 P.2d 940, rev. denied 265 Kan. 885 [1998]).
The panel then turned to the language of K.S.A. 8-1020(h)(2), evaluating it "[a]gainst this backdrop." 36 Kan. App. 2d at 565. This portion of the statute reads:
"If the officer certifies that the person failed a breath test, the scope of the hearing shall be limited to whether:
(A) A law enforcement officer had reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person's system;
(B) the person was in custody or arrested for an alcohol or drug related offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death;
(C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto;
(D) the testing equipment used was certified by the Kansas department of health and environment;
(E) the person who operated the testing equipment was certified by the Kansas department of health and environment;
(F) the testing procedures used substantially complied with the procedures set out by the Kansas department of health and environment;
(G) the test result determined that the person had an alcohol concentration of .08 or greater in such person's breath; and
(H) the person was operating or attempting to operate a vehicle." K.S.A. 8-1020(h)(2).
The panel concluded that this list clearly and unambiguously expresses the legislature's intention to limit the issues that can be raised at an administrative license suspension hearing. Had the legislature intended to allow a more expansive inquiry before the Department, it would have said so. 36 Kan. App. 2d at 565-66.
The panel also rejected Martin's constitutional challenge to its reading of the statute, because driving is not a right but a privilege; and administrative suspension of a driver's license for the holder's failure of a chemical breath test, to which every driver gives implied consent, is supported by government's legitimate promotion of public health, safety, and welfare. 36 Kan. App. 2d at 566. In support of this holding, the panel noted several cases from other jurisdictions. 36 Kan. App. 2d at 566-67 (citing Tornabene v. Bonine ex rel. Highway Dept., 203 Ariz. 326, 333, 54 P.3d 355 [Ct. App. 2002]; Powell v. Secretary of State, 614 A.2d 1303, 1305-06 [Me. 1992]; Beavers v. State Dept. of Mtr. Vehicles, 109 Nev. 435, 438, 851 P.2d 432, cert. denied 510 U.S. 946 [1993]).
This court granted Martin's petition for review. To resolve this case, after reference to our standard of review, it is necessary for us to address whether the Department is permitted to decide the merits of a driver's constitutional challenge in an administrative hearing on license suspension; whether, even if a decision by the Department is precluded in an administrative setting, a driver may raise such a claim there; whether the limitations on searches and seizures of the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights are implicated when the driver's license suspension rather than criminal sanction is at issue; and whether a meritorious constitutional challenge to an underlying traffic stop requires a district court to apply the exclusionary rule and reverse license suspension.
Standard of Review
Although generally an appellate court applies a substantial competent evidence standard of review when examining a district court's ruling in a driver's license suspension case, see Schoen v. Kansas Dept. of Revenue, 31 Kan. App. 2d 820, Syl. ¶ 1, 74 P.3d 588 (2003), the issues before us here require statutory and constitutional interpretation. These raise pure questions of law subject to unlimited review. See, e.g., Johnson v. Brooks Plumbing, 281 Kan. 1212, 1213-14, 135 P.3d 1203 (2006); Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).
When we are called upon to interpret a statute, we first attempt to give effect to the intent of the legislature as expressed through its language. When a statute is plain and unambiguous, we do not attempt to determine what the law should or should not be; nor do we attempt to divine the legislative intent behind it. We will not read or rewrite such a statute to add something not readily found within it. If a statute is clear as written, there is no need to resort to statutory construction. Williamson v. Amrani, 283 Kan. 227, 231, 152 P.3d 60 (2007); State v. Robinson, 281 Kan. 538, 539-40, 132 P.3d 934 (2006). In short, statutory interpretation begins with the language selected by the legislature. If that language is clear, if it is unambiguous, then statutory interpretation ends there as well. Graham v. Dokter Trucking Group, 284 Kan. 547, 161 P.3d 695 (2007).
A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional, if the same can be done within the apparent intent of the legislature in passing the statute. Kempke v. Kansas Dept. of Revenue, 281 Kan. 770, Syl. ¶ 1, 133 P.3d 104 (2006). However, we may not rewrite a clear and unambiguous statute to make it pass constitutional muster. See State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004), rev'd on other grounds, Kansas v. Marsh, 548 U.S. 163, 165 L. Ed. 2d 429, 126 S. Ct. 2516 (2006).
May the Department Decide a Constitutional Claim?
In the administrative hearing, Martin sought a decision on the merits of his constitutional challenge to Wilson's decision to pull him over. Martin alleged that the traffic stop was not supported by reasonable suspicion, as it must be under both the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights. See K.S.A. 22-2402(1); Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993) (§ 15 of the Kansas Constitution Bill of Rights identical in scope to Fourth Amendment).
In Cross v. Kansas Dept. of Revenue, 279 Kan. 501, 110 P.3d 438 (2005), this court set out a comprehensive overview of the provisions of Kansas' Implied Consent Law, K.S.A. 8-1001 et seq., of which K.S.A. 8-1020(h)(2)(A)-(H) is a part. We need not repeat that overview here. Rather, we note only that, when a driver refuses or fails a test to determine the presence of alcohol or drugs in the driver's body, a law enforcement certification must be prepared and signed by one or more officers. Cross, 279 Kan. at 504-05 (citing K.S.A. 8-1002[a][2]). The Department's Division of Vehicles reviews the certification to ensure that all requirements were met; if so, it will suspend the driver's license. K.S.A. 8-1002(e), (f); K.S.A. 8-1013(c); Cross, 279 Kan. at 505. The driver may then request an administrative hearing to determine whether suspension is appropriate. K.S.A. 8-1020(a)-(d); Cross, 279 Kan. at 505.
K.S.A. 8-1020 governs the administrative hearing. Cross, 279 Kan. at 505. Subsections (e) and (f) limit the documents and materials subject to discovery; subsection (g) limits the witnesses who may testify; and subsection (h), as quoted above, lists the issues for decision. Under subsection (k), the driver bears the burden of proving, by a preponderance of the evidence, that the facts set out in the certification are false or insufficient and that the suspension should therefore be dismissed.
If a driver is unsuccessful in challenging a license suspension at the administrative level, he or she may petition the district court for trial de novo, as Martin did in this case. K.S.A. 8-1020(p); see Cross, 279 Kan. at 506-07. The driver bears the burden of proving to the court that the agency decision should be set aside. K.S.A. 8-1020(q).
If the Department can decide the merits of a Fourth Amendment or § 15 claim such as that raised by Martin here, it must be empowered to do so either because K.S.A. 8-1020(h)(2) permits it or, failing that, because the federal or state constitution demands it. We turn first to the statute.
We agree with the Court of Appeals panel that K.S.A. 8-1020(h)(2)(A)-(H) is clear and unambiguous and that its list is exclusive. To the extent this is so, Martin attempts to persuade us that the issue of whether "reasonable grounds to believe" a driver was under the influence under K.S.A. 8-1020(h)(2)(A) is equivalent to the issue of whether "reasonable suspicion" existed to support the traffic stop. In other words, he asserts, the issue he wished to have decided in the administrative hearing was among those the statute permitted to be pursued there and then.
We are unmoved by this argument. "Reasonable grounds to believe" a driver is under the influence and "reasonable suspicion" sufficient under constitutional law are distinct legal concepts. The first demands consideration of the behavior of a driver before, during, and after he or she is behind the wheel. The relevant time period for determination of "reasonable suspicion," in contrast, ends at the moment the stop is effected. In addition, we observe that K.S.A. 8-1020(h)(2)(A) was enacted in 2001, long after the "reasonable suspicion" standard arose in United States Supreme Court constitutional analysis and long after we employed it in Kansas. See Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); State v. Boone, 220 Kan. 758, 556 P.2d 864 (1976). Because we presume our legislature knows the law in existence at the time of an enactment, see In re Tax Appeal of American Restaurant Operations, 264 Kan. 518, 524, 957 P.2d 473 (1998), we consider it significant that it did not choose to mimic the "reasonable suspicion" language from cases when it drafted K.S.A. 8-1020(h)(2)(A). Instead, it deliberately decided to enunciate a different standard.
The statute's exclusion of Martin's issues from the list that may be decided by the Department by means of an administrative hearing also is consistent with several of our cases arising out of challenges to Board of Tax Appeals decisions and other agency actions. In those cases, we have repeatedly recognized that administrative agencies are not empowered to decide constitutional questions; courts are. See In re Appeal of Weisgerber, 285 Kan. 98, Syl. 1, 169 P.3d 321 (2007); In re Tax Appeal of CIG Field Services Co., 279 Kan. 857, 864, 112 P.3d 138 (2005); In re Tax Appeal of Sprint Communications Co., 278 Kan. 690, 700-02, 101 P.3d 1239 (2004); U.S.D. No. 443 v. Kansas State Board of Education, 266 Kan. 75, 81-82, 966 P.2d 68 (1998); Zarda v. State, 250 Kan. 364, 370, 826 P.2d 1365 (1992); In re Residency Application of Bybee, 236 Kan. 443, Syl. ¶ 4, 691 P.2d 37 (1984).
Does due process otherwise demand that the Department be empowered to decide a Fourth Amendment or § 15 claim raised by a driver subject to license suspension? We have previously recognized that limited due process applies in such matters. See Barnes v. Kansas Dept. of Revenue, 238 Kan. 820, 824, 714 P.2d 975 (1986) (possession of driver's license regulated privilege; "deprivation . . . by the State constitutes a deprivation of property sufficient to necessitate application of the due process clause," citing Mackey v. Montrym, 443 U.S. 1, 61 L. Ed. 2d 321, 99 S. Ct. 2612 [1979]; Dixon v. Love, 431 U.S. 105, 52 L. Ed. 2d 172, 97 S. Ct. 1723 [1977]); compare State v. Heironimus, 262 Kan. 796, 803, 941 P.2d 1356 (1997) (license not inherent fundamental right); Popp v. Motor Vehicle Dept., 211 Kan. 763, 766, 508 P.2d 991 (1973) ("The driver's license . . . privilege is granted to those who are qualified, who comply with reasonable police power requirements in the interest of public safety and welfare, and is withheld from those who do not."); Agee v. Kansas Highway Commission, 198 Kan. 173, 180, 422 P.2d 949 (1967) (license to drive motor vehicle on public streets not natural right but privilege, subject to reasonable regulation in public interest); Lee v. State, 187 Kan. 566, 358 P.2d 765 (1961) (driver's license not natural, unrestrained right; license privilege subject to reasonable regulations by State under police power in interest of public safety, welfare). But the outcomes in the administrative agency cases cited above suggest the answer to this question is no. In addition, in the peculiar context of alcohol- and/or drug-related driver's license suspensions, we have recently held more than once that delaying full argument and decision of a particular aspect of a case--preventing its pursuit at the administrative level and deferring it to later court appeal--does not run afoul of due process. See Kempke v. Kansas Dept. of Revenue, 281 Kan. 770, 133 P.3d 104 (2006); Cross, 279 Kan. 501.
In Kempke, the driver argued that due process was offended because he was not permitted to call the officer who administered the preliminary breath test as a witness at the administrative license suspension hearing. We disagreed, holding that suspension did not finally take place until after de novo appeal to district court and that the driver's ability to call the officer as a witness on appeal satisfied due process. 281 Kan. at 799-800. In Cross, we rebuffed an as-applied due process challenge to the statute limiting witnesses at administrative hearings on driver's license suspensions. 279 Kan. at 513.
In view of the fact that a driver's license is a privilege rather than a right, and in view of our approach in Kempke, we hold that the exclusion of Fourth Amendment and § 15 issues from Department decision in administrative suspension hearings under K.S.A. 8-1020(h)(2)(A)-(H) does not violate procedural due process.
May a Driver Raise a Fourth Amendment Claim in an Administrative Hearing?
The rule that a constitutional issue cannot be decided by an administrative agency does not necessarily preclude a driver from raising such an issue in that forum. Our previous cases do not preclude Martin's effort to raise his Fourth Amendment claim before the Department. See, e.g., CIG, 279 Kan. at 864; Sprint, 278 Kan. at 700-02; see also Mudd v. Neosho Memorial Regional Med. Center, 275 Kan. 187, 197-200, 62 P.3d 236 (2003) (workers compensation case; merits of constitutional question addressed, even though issue not decided below).
In fact, our decision in similar circumstances in Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 148 P.3d 538 (2006), makes raising any potentially controlling constitutional issue at the time of the administrative hearing the wise course for a driver who wishes to preserve the issue for judicial review in the district court and beyond. 282 Kan. at 776. In Bruch, we stated that the district court lacked jurisdiction to consider whether an officer possessed probable cause to arrest based on results of a driver's preliminary breath test, because the driver had failed to raise the issue first in the administrative tribunal. 282 Kan. at 776.
Do Driver's License Suspensions Implicate the Fourth Amendment and § 15?
Previous Kansas cases have not squarely addressed whether or how the Fourth Amendment and § 15 apply to traffic stops that precede an alcohol- or drug-related driver's license suspension. See Butcher v. Kansas Dept. of Revenue, 34 Kan. App. 2d 826, 124 P.3d 1078 (2005) (Court of Appeals holds officer had cause to make traffic stop; no discussion of whether Fourth Amendment applies in suspension proceedings); Pywell v. Kansas Dept. of Revenue, No. 95,598, unpublished opinion filed February 16, 2007 (Court of Appeals panel declines to reach issue); Hinton v. Kansas Dept. of Revenue, No. 90,806, unpublished opinion filed October 8, 2004 (Court of Appeals holds district court lacked jurisdiction to decide whether pretextual traffic stop violated Fourth Amendment when licensee had failed to comply with specific pleading requirements). Since the Court of Appeals panel issued its decision in this case, another panel has decided that the limited scope of an administrative driver's license suspension hearing does not implicate the Fourth Amendment. See Bray v. Kansas Dept. of Revenue, No. 95,702, unpublished opinion filed March 2, 2007. Another panel, merely noting the issue and the decision in Martin, addressed the merits of the driver's claim that a traffic stop was unconstitutional. See Kruser v. Kansas Dept. of Revenue, No. 95,517, unpublished opinion filed April 13, 2007.
Generally the Fourth Amendment applies to all governmental action, not just actions in criminal investigation; and its protections apply to all people, not just criminal defendants.
"'[T]he Fourth Amendment prohibition against unreasonable searches protects against warrantless intrusions during civil as well as criminal investigations. [Citation omitted.] The reason is found in the "basic purpose of this Amendment . . . [which] is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." [Citation omitted.] If the government intrudes on a person's property, the privacy interest suffers, whether the government's motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards.'" State v. Smith, 243 Kan. 715, 720-721, 763 P.2d 632 (1988) (citing Marshall v. Barlow's, Inc., 436 U.S. 307, 56 L. Ed. 2d 305, 98 S. Ct. 1816 [1978]).
A breath, blood, or urine test for alcohol or drugs can constitute a search for purposes of the Fourth Amendment. See State v. Jones, 279 Kan. 71, 106 P.3d 1 (2005) (preliminary breath test [PBT] performed on driver after accident qualifies as search; deep lung air, extractable only by requiring driver to forcibly blow into device for 3 to 5 seconds, not normally held out to public).
Yet compulsory testing for alcohol or drugs through drivers' implied, even coerced, consent does not violate the Constitution; it is reasonable in light of the State's compelling interest in safety on the public roads. See Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 835, 888 P.2d 832 (1995); Standish v. Department of Revenue, 235 Kan. 900, 904, 683 P.2d 1276 (1984); Popp v. Motor Vehicle Dept., 211 Kan. 763, 767, 508 P.2d 991 (1973); see also South Dakota v. Neville, 459 U.S. 553, 559-65, 74 L. Ed. 2d 748, 103 S. Ct. 916 (1983) (implied consent law permits licensee to submit to or refuse blood test with caveat that evidence of refusal admissible in any related criminal case; upheld against Fifth Amendment self-incrimination challenge and due process); Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966) (state-compelled blood test under implied consent law upheld on Fifth Amendment self-incrimination challenge, rejecting related arguments premised on due process, right to counsel, prohibition of unreasonable searches); compare State v. Jones, 279 Kan. 71, 79, 106 P.3d 1 (2005) (PBT results cannot be admitted in criminal DUI case absent evidence of voluntary consent; statutory implied consent does not apply to PBT; its purpose to help law enforcement ascertain whether to request test covered by implied consent rule).
Here, Martin does not challenge the constitutional legitimacy of the expectation that he will submit to testing under the Implied Consent Law or of the consequences flowing from a test failure or refusal. His Fourth Amendment and § 15 claims focus instead on whether Wilson's initial decision to pull him over was supported by reasonable suspicion. If it was not, he asserts, then Wilson's subsequent observation of him and resulting conclusion that there were "reasonable grounds to believe" Martin was driving under the influence as well as the results of the chemical breath test must be suppressed; they simply cannot be used to support license suspension.
If this were a criminal proceeding, there is no doubt that a traffic stop would be considered a seizure under constitutional law. State v. Morris, 276 Kan. 11, Syl. ¶¶ 3-6, 72 P.3d 570 (2003); State v. Slater, 267 Kan. 694, 696-97, 986 P.2d 1038 (1999); State v. Mitchell, 265 Kan. 238, 241, 960 P.2d 200 (1998); State v. McKeown, 249 Kan. 506, 510, 819 P.2d 644 (1991). To stop a moving vehicle, an officer must have a reasonable suspicion based on articulable facts that a crime has been, is being, or is about to be committed. See K.S.A. 22-2402(1); Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); McKeown, 249 Kan. at 510. A traffic violation provides an objectively valid reason to effect a traffic stop, even if the stop is pretextual. See Whren v. United States, 517 U.S. 806, 813, 135 L. Ed. 2d 89, 116 S. Ct. 1769 (1996); State v. DeMarco, 263 Kan. 727, 733, 952 P.2d 1276 (1998). A traffic stop is not magically converted to a "nonseizure" when it leads to a civil or administrative rather than a criminal proceeding. Fourth Amendment and § 15 implications transcend this boundary because those provisions delineate rights that attach to individuals in either circumstance.
Even if constitutional rights to be free from unreasonable searches and seizures are implicated here, the Department asserts that the articulable facts in Wilson's possession were adequate to support reasonable suspicion that Martin was committing, had committed, or was about to commit a crime. See State v. Toothman, 267 Kan. 412, Syl. ¶ 3, 985 P.2d 701 (1999). Martin responds that Wilson made a mistake of law in interpreting the ordinance governing how many rear brake lights on a vehicle must be functioning. In his view, such a mistake of law makes any suspicion Wilson may have harbored inherently unreasonable and constitutionally inadequate to support the traffic stop.
K.S.A. 8-1708(a) requires that "[e]very motor vehicle . . . shall be equipped with two (2) or more stop lamps meeting the requirements of subsection (a) of K.S.A. 8-1721." K.S.A. 8-1721 requires every vehicle to be "equipped with a stop lamp or lamps on the rear of the vehicle . . . which shall be actuated upon application of the service or foot brake" and sets forth the colors of the "lamp or lamps" and the distance from which they must be visible. The city ordinance that formed the basis for Wilson's stop of Martin contains provisions identical to K.S.A. 8-1708 and K.S.A. 8-1721.
Before the stop, Wilson observed that only two of the three brake lights on the rear of Martin's vehicle were operating properly. Believing the ordinance required all three to be functioning, Wilson pulled Martin over. We agree with Martin that Wilson misunderstood and misapplied the ordinance. Two functioning rear brake "lamps" were sufficient under the law.
The reasonableness of an officer's suspicion is based on the totality of circumstances and is viewed from the perspective of those versed in law enforcement. See Toothman, 267 Kan. at 418 (citing State v. DeMarco, 263 Kan. 727, 734-35, 952 P.2d 1276 [1998], citing State v. Toney, 253 Kan. 651, 656, 862 P.2d 350 [1993]). In light of common sense and ordinary human experience, "reasonable suspicion represents a 'minimum level of objective justification.'" Toothman, 267 Kan. at 418 (quoting United States v. Mendez, 118 F.3d 1426, 1431 [10th Cir. 1997], citing United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 109 S. Ct. 1581 [1989]).
We have not previously decided whether an officer's mistake of law alone may invalidate a traffic stop. Decisions from various panels of our Court of Appeals appear to be inconsistent on this point. Compare State v. Ross, 37 Kan. App. 2d 126, 131, 149 P.3d 876 (2007) (officer lacked reasonable suspicion when defendant crossed fog line; failure to maintain single lane not necessarily violation of statute); State v. Kotas, 35