State v. Thompson

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NOT DESIGNATED FOR PUBLICATION

No. 120,323

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

BRIAN M. THOMPSON,
Appellee.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed August 23, 2019. Reversed
and remanded.

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

Shannon S. Crane, of Hutchinson, for appellee.

Before GARDNER, P.J., PIERRON, J., and BURGESS, S.J.

PER CURIAM: The State filed an interlocutory appeal under K.S.A. 2018 Supp. 22-
3603, arguing the district court erred in suppressing evidence obtained during a traffic
stop of Brian M. Thompson. The State argues that the law enforcement officer had
reasonable suspicion to initiate the stop of Thompson's vehicle for failing to yield to an
authorized emergency vehicle under K.S.A. 8-1530(b). We agree and reverse and remand
for further proceedings.


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FACTUAL AND PROCEDURAL BACKGROUND

Around 2:15 a.m. on December 31, 2017, Deputy Mikel Bohringer of the Reno
County Sherriff's Department initiated a traffic stop of a truck near Main Street and
Heartland Drive in South Hutchison. The traffic stop took place on a four-lane road, with
two southbound and two northbound lanes divided by a center median. Officer Bohringer
initiated the traffic stop while driving his marked patrol vehicle, a Ford Explorer SUV,
with all his emergency lights activated. The truck fully pulled onto the shoulder and
stopped. Officer Bohringer stopped his patrol vehicle behind the truck, with about a third
to a half of his SUV offset in the eastmost, northbound lane. The video of the traffic stop
corroborates the position of the vehicles. The video of the traffic stop also shows Officer
Bohringer approach the driver's side of the truck, speak with the driver, and return to his
patrol vehicle. The truck turns on its turn signal and starts to drive away. Then, the video
ends.

After Officer Bohringer had completed the traffic stop of the truck, he began to
put his patrol vehicle back into service-ready mode. He stopped and saved the traffic stop
video recording. The officer also changed his emergency lights so only the rear
emergency lights were activated because he generally turns off the front panel of lights so
the driver knows he or she may leave. The rear emergency lights consist of two to four,
four-inch long red and blue flashing lights located in the back of the taillights. Officer
Bohringer only turned off the top front panel of emergency lights but left the top back
panel of lights flashing. Officer Bohringer confirmed the whole back end of his Ford
Explorer was flashing red and blue lights.

After stopping the video, Officer Bohringer was about to go back into service
when he saw a four-door passenger car approaching from behind in the furthest eastmost
lane. The officer's patrol vehicle still had the rear lights activated when the vehicle passed
but Officer Bohringer did not believe the lights were in emergency mode. The vehicle
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passed Officer Bohringer's vehicle in the same, eastmost lane where the patrol vehicle
was stopped. Officer Bohringer estimated the vehicle moved only six inches left of the
white-dotted centerline and about 95% of the vehicle remained in the lane. The vehicle
passed by so closely, Officer Bohringer stated the passing vehicle caused his patrol
vehicle to move. While Officer Bohringer could not testify if the vehicle was speeding,
he stated the speed limit on that portion of the road decreased from 55 miles per hour to
45 miles per hour. In addition, Officer Bohringer described the movement of his patrol
vehicle as "pretty aggressive" for a vehicle that size, explaining while a semitruck—a
larger vehicle—will cause his patrol vehicle to sway even if far enough away, a smaller
vehicle does not.

After the vehicle passed, Officer Bohringer fully turned off his patrol vehicle's
emergency lights, drove his patrol vehicle onto the road, and pursued the vehicle to
conduct a traffic stop for the driver's failure to yield to an emergency vehicle. Officer
Bohringer eventually pulled over the four-door passenger vehicle driven by Thompson.
The traffic stop ultimately led to Thompson's arrest and the State charging Thompson
with the possession of methamphetamine, possession of marijuana, and possession of
drug paraphernalia.

Thompson filed a motion to suppress, arguing Officer Bohringer lacked the
reasonable suspicion to conduct a traffic stop for failure to yield to an emergency vehicle
because the officer had turned off the emergency lights before he passed by the stopped
patrol vehicle. In addition to the above evidence, Thompson testified at the suppression
hearing that around 2:18 a.m. on December 31, 2017, he was driving his vehicle on South
Main in South Hutchison. Thompson admitted he drove past a law enforcement vehicle
stopped on the side of the road. Thompson stated:

"As I was approaching from South Hutch, I seen [sic] his vehicle stopped. I seen [sic] the
other vehicle pull off and I seen [sic] his lights go off and as I started to come over to,
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into the next lane to still yield to him, is when I noticed he pulled straight out and behind
me and up on the highway. I seen [sic] his vehicle. I just didn't see any red and blue
lights."

At the end of the hearing, the district court took the matter under advisement.
Subsequently, the district court entered a written order suppressing the evidence from the
traffic stop. The district court found that Officer Bohringer stopped Thompson's vehicle
for failure to yield to an emergency vehicle after Thompson drove past the officer's
stopped patrol vehicle on a four-lane road. Officer Bohringer's patrol vehicle was stopped
primarily on the shoulder but extended several inches into the lane of through traffic and
had the rear emergency lights activated. The district court held the State failed to prove
the traffic stop was lawful, stating:

"The State has the burden to demonstrate the officer's specific and articulable
facts creating a reasonable suspicion of violation of the law. The officer testified he felt
his vehicle shake as defendant passed. This fact alone does not support a finding of
reasonable suspicion of violation of the law. Traffic conditions, road conditions and
speed all enter in to a determination of whether a violation of K.S.A. 8-1530 has
occurred."

The State filed a timely interlocutory appeal. The analysis includes additional facts
as needed.

DID THE DISTRICT COURT ERR IN SUPPRESSING THE EVIDENCE?

Standard of Review

An appellate court reviews the district court's factual findings on a motion to
suppress for substantial competent evidence and reviews the legal conclusions drawn
from those facts de novo. An appellate court does not reweigh evidence or assess the
credibility of witnesses. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018).
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Substantial competent evidence is such legal and relevant evidence a reasonable person
could accept as adequate to support a conclusion. State v. Talkington, 301 Kan. 453, 461,
345 P.3d 258 (2015).

Fourth Amendment Traffic Stops

The Fourth Amendment to the United States Constitution protects the "right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures." Section 15 of the Kansas Constitution Bill of Rights provides the
same protections as the Fourth Amendment from unlawful searches and seizures. State v.
Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014). A traffic stop qualifies as a seizure
under the Fourth Amendment "when a law enforcement officer displays authority and
restrains an individual's liberty by stopping a vehicle on a public roadway." State v.
Jones, 300 Kan. 630, 637, 333 P.3d 886 (2014).

"The question of whether reasonable suspicion exists is a question of law and is
reviewed de novo by appellate courts." 300 Kan. 630, Syl. ¶ 8. When a defendant moves
to suppress evidence based on the legality of a traffic stop, "[t]he burden is on the State to
demonstrate the lawfulness of the stop. See K.S.A. 22-3216(2); State v. Estrada-Vital,
302 Kan. 549, 556, 356 P.3d 1058 (2015)." State v. Chapman, 305 Kan. 365, 371, 381
P.3d 458 (2016). For the State to meet its burden, "the officer must know of specific and
articulable facts that create a reasonable suspicion the seized individual is committing,
has committed, or is about to commit a crime or traffic infraction." Jones, 300 Kan. at
637.

When reviewing the State's justification for a traffic stop, "the State does not meet
its burden by simply proving that the officer believed the circumstances were sufficient to
form a reasonable suspicion." 300 Kan. at 644. Rather, the standard is objective and
requires the reviewing court to ask: "'[W]ould the facts available to the officer at the
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moment of the seizure or the search "warrant a man of reasonable caution in the belief"
that the action taken was appropriate?'" 300 Kan. at 644 (quoting Terry v. Ohio, 392 U.S.
1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 [1968]). Under a review of the totality of the
circumstances, a reviewing court must find that the officer stated a "'particularized and
objective basis' for suspecting legal wrongdoing." Jones, 300 Kan. at 644-45 (quoting
United States v. Arvizu, 534 U.S. 266, 273-74, 122 S. Ct. 744, 151 L. Ed. 2d 740 [2002]).
In other words, reasonable suspicion requires an officer to articulate more than an
inchoate and unparticularized suspicion or hunch of criminal activity. State v. Thomas,
291 Kan. 676, 688, 246 P.3d 678 (2011). Our Supreme Court has explained:

"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.' In determining whether reasonable suspicion exists, the court must
judge the officer's conduct in light of common sense and ordinary human experience
under the totality of the circumstances. This determination is made with deference to a
trained officer's 'ability to distinguish between innocent and suspicious circumstances,'
while recognizing that it represents a 'minimum level of objective justification' and is
'considerably less than proof of wrongdoing by a preponderance of the evidence.' On
appeal,
"'[t]he reviewing court does not "pigeonhole" each factor as to innocent
or suspicious appearances, but instead determines whether the totality of
the circumstances justifies the detention. The relevant inquiry is not
whether particular conduct is "innocent" or "guilty," but whether a
sufficient degree of suspicion attaches to particular types of noncriminal
acts. The totality of the circumstances standard precludes a "divide-and-
conquer analysis" under which factors that are "readily susceptible to an
innocent explanation [are] entitled to 'no weight."'' [Citations omitted]"
State v. Sharp, 305 Kan. 1076, 1081-82, 390 P.3d 542 (2017).




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Analysis

On appeal, the State argues the district court erred in finding Officer Bohringer
lacked the reasonable suspicion to initiate a traffic stop of Thompson's vehicle for failure
to yield to an authorized emergency vehicle under K.S.A. 8-1530(b). In response,
Thompson argues the district court found his testimony more credible—that he saw no
emergency lights flashing when approaching the officer's stopped patrol vehicle—over
Officer Bohringer's testimony that he thought he left the rear emergency lights on.

Appellate courts review issues of statutory interpretation de novo. See State v.
Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).

"When interpreting statutes, we begin with '"the fundamental rule that [courts]
give effect to the legislature's intent as it is expressed in the statute. Courts must apply a
statute's language when it is clear and unambiguous, rather than determining what the law
should be, speculating about legislative intent, or consulting legislative history."' We
derive legislative intent by first applying the meaning of the statute's text to determine its
effect in a specific situation. 'It is only when the language is unclear or ambiguous that
the court employs the canons of statutory construction, consults legislative history, or
considers other background information to ascertain the statute's meaning.' [Citations
omitted.]" 303 Kan. at 474.

K.S.A. 8-1530(b) states:

"The driver of a motor vehicle upon approaching a stationary authorized
emergency vehicle, when the authorized emergency vehicle is making use of visual
signals meeting the requirements of K.S.A. 8-1720, and amendments thereto, or
subsection (d) of K.S.A. 8-1722, and amendments thereto, shall do either of the
following:
"(1) If the driver of the motor vehicle is traveling on a highway that consists of at
least two lanes that carry traffic in the same direction of travel as that of the driver's
motor vehicle, the driver shall proceed with due caution and, if possible and with due
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regard to the road, weather and traffic conditions, shall change lanes into a lane that is not
adjacent to that of the stationary authorized emergency vehicle; or
"(2) if the driver is not traveling on a highway of a type described in paragraph
(1), or if the driver is traveling on a highway of that type but it is not possible to change
lanes or if to do so would be unsafe, the driver shall proceed with due caution, reduce the
speed of the motor vehicle and maintain a safe speed for the road, weather and traffic
conditions."

Thompson's argument that there were no visible emergency lights lacks merit. The
district court did not base its ruling on whether Thompson could see the emergency lights
or whether Officer Bohringer did not have his emergency lights turned on. While
Thompson argued in his motion to suppress that the officer's patrol vehicle had no
emergency lights turned on when he drove past, the district court held that the stopped
patrol vehicle's rear emergency lights were activated. And substantial evidence supports
the district court's finding. Although Officer Bohringer admitted his vehicle was not in
"emergency mode," he testified he only turned off the top, front light bar of emergency
lights to indicate to the first driver he or she was free to leave. Officer Bohringer testified
he left the rear emergency lights activated, describing these lights as located behind the
taillights and consisting of two to four, four-inch LED flashing blue and red lights. The
officer later testified that while he turned off the front portion of the top, exterior
emergency lights, he left the back portion of the light bar activated. The whole back of
the SUV was flashing red and blue lights.

While the district court made no findings of which subsection of K.S.A. 8-1530(b)
applied, the district court found Thompson passed the stopped patrol vehicle on a four-
lane road. The parties also agree on appeal that K.S.A. 8-1530(b)(1) applied. Under
K.S.A. 8-1530(b)(1), Thompson was required to proceed with due caution when
approaching Officer Bohringer's stationary authorized emergency vehicle and to change
lanes into a lane not adjacent to the stationary emergency vehicle, if possible, with due
regard to road, weather, and traffic conditions.
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The district court held the State did not prove the vehicle stop was lawful because
Officer Bohringer only testified that "he felt his vehicle shake as defendant passed. This
fact alone does not support a finding of reasonable suspicion of violation of the law.
Traffic conditions, road conditions and speed all enter in to a determination of whether a
violation of K.S.A. 8-1530 has occurred." The State argues the district court erred in
granting the motion to suppress because other evidence and facts showed Officer
Bohringer had reasonable suspicion Thompson committed a K.S.A. 8-1530(b) violation.

At the suppression hearing, Officer Bohringer stated:

"[OFFICER BOHRINGER:] I noticed the vehicle was extremely close to my patrol
vehicle. You noticed on the video that the truck was completely off the right side of the
shoulder. My car was offset to the left approximately a third to a half of my vehicle and
that is to create a safety lane for while I'm outside of the vehicle, just in case somebody
did not see my vehicle. So I was actually in the furthest east-most lane of traffic for the
northbound lanes. My patrol vehicle was offset into that eastbound lane. I'm sorry. The
east side of that roadway. So I noticed that when that vehicle passed by me it had passed
by me so close, that it actually moved my vehicle as I was sitting inside of it.
"[THE STATE:] Okay. And where was that vehicle on the roadway?
"[OFFICER BOHRINGER:] It was in the furthest east lane for the northbound traffic.
"[THE STATE:] Okay.
"[OFFICER BOHRINGER:] So it was in the same lane of travel that my patrol vehicle
was occupying, approximately a third to half of it.
"[THE STATE:] Okay. Was the other vehicle entirely in that lane, or part of the vehicle
was in that lane?
"[OFFICER BOHRINGER:] About 95 percent in that lane. It had only moved over
approximately six inches left of the white dotted centerline."

Officer Bohringer expanded in cross-examination on how Thompson's passing
vehicle caused his stopped patrol vehicle to move.

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"[DEFENSE COUNSEL:] So you wait for the car to pass. It moves approximately six
inches?
"[OFFICER BOHRINGER:] That's correct.
"[DEFENSE COUNSEL:] Moves your car somewhat?
"[OFFICER BOHRINGER:] It was not—I wouldn't say somewhat. It was pretty
aggressive. It was a big shake to where it's not something normal for a passing vehicle.
"[DEFENSE COUNSEL:] Were you injured?
"[OFFICER BOHRINGER:] I was not injured.
"[DEFENSE COUNSEL:] Okay. So you wait for the car to pass and you're not in an
emergency mode?
"[OFFICER BOHRINGER:] That's correct. My—
"[DEFENSE COUNSEL:] And you decide to stop him?
"[OFFICER BOHRINGER:] That's correct.
. . . .
"[DEFENSE COUNSEL:] Isn't it true that a semi-truck passing you will cause your car to
sway?
"[OFFICER BOHRINGER:] That's correct.
"[DEFENSE COUNSEL:] Anybody passing you will cause your car to sway?
"[OFFICER BOHRINGER:] I would not say that's an accurate statement.
"[DEFENSE COUNSEL:] Really?
"[OFFICER BOHRINGER:] The—and the reason why I would say that is semis are a
larger vehicle, so even if it is enough away from my vehicle it definitely will cause a
vehicle to shake or move. A smaller vehicle does not.
"[DEFENSE COUNSEL:] Your car wasn't shaking, was it?
"[OFFICER BOHRINGER:] It moved.
. . . .
"[DEFENSE COUNSEL:] It's not illegal for somebody to pass you on the highway and
cause your patrol car to shake or move, is it, Deputy Bohringer?
"[OFFICER BOHRINGER:] It is not."

The district court held Officer Bohringer lacked a reasonable suspicion, in part,
because Officer Bohringer's testimony lacked specific, articulable facts about the traffic
conditions, road conditions, and speed. But Officer Bohringer stated the specific fact that
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Thompson did not change lanes into a lane not adjacent to the stopped patrol vehicle
under K.S.A. 8-1530(b)(1). Officer Bohringer also described some of the traffic and road
conditions. The officer's stopped patrol vehicle occupied a portion of the same lane as
Thompson's passing vehicle on a four-lane roadway. Thompson's vehicle moved only six
inches over the white-dotted centerline and about 95% of his vehicle was in the same lane
as the stopped patrol vehicle when it passed the officer's patrol vehicle.

On appeal, the State argues this court should find the district court erred based on
two cases: State v. McLarty, No. 117,392, 2018 WL 1546282 (Kan. App. 2018)
(unpublished opinion), and State v. Ward, No. 93,191, 2006 WL 44386 (Kan. App. 2006)
(unpublished opinion). Each decision is addressed in turn.

In Ward, Shawnee Police Officer John Larson stopped a vehicle on a highway
entrance ramp at about 1:30 a.m. with the patrol vehicle's emergency lights activated.
Officer Larson stopped his patrol vehicle with about two to three feet of the vehicle
inside of the lane of traffic. Officer Larson had returned to his stopped patrol vehicle with
the first driver's information, when a second vehicle—driven by Ward—came within
three to four inches of hitting the stopped patrol vehicle's driver's side mirror, causing
Officer Larson to say, "'Whoa.'" 2006 WL 44386, at *1. On returning the first driver's
information, Officer Larson pursued and stopped Ward for failure to yield to an
authorized emergency vehicle under K.S.A. 8-1530(b).

On appeal, our court held Officer Larson articulated a reasonable suspicion Ward
failed to exercise "'due caution'" because he described Ward's vehicle as coming within
three to four inches of the stopped patrol vehicle's driver's side mirror and as travelling
nearly four to five feet closer than the previous passing car. 2006 WL 44386, at *2. The
traffic stop video corroborated Officer Larson's statements. Our court also considered
how the road had solid white lines marking the shoulder, which made the width of the
lane 19.5 feet. Because Officer Larson had stopped his patrol vehicle with about three to
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four feet of the vehicle in the lane, our court found Ward still had 16.5 feet to pass the
officer's stopped patrol vehicle without driving on the opposite shoulder. Thus, our court
held the officer articulated a reasonable suspicion to support a K.S.A. 8-1530(b)
violation. 2006 WL 44386, at *2.

In McLarty, Douglas County Sheriff's Deputy Brad Williams pulled over a vehicle
with his emergency lights activated on Sixth Street in Lawrence. The street had two lanes
of traffic in each direction, divided by a center turn lane, with no shoulder. The vehicle
stopped in the outside, westbound lane. Deputy Williams stopped his patrol vehicle in the
center of the westbound lane, so the patrol vehicle took up about 6 feet of the 12-foot
lane. As Deputy Williams exited his patrol vehicle with his driver's side door open and
extending three feet outwards, he saw a second vehicle—driven by Breanna McLarty—
approaching from behind in the lane closest to the center turn lane. From Deputy
Williams' observations, McLarty's vehicle did not appear to slow down and may have
been travelling over the speed limit. As McLarty's vehicle passed, Deputy Williams
testified that it drifted towards his patrol vehicle and came very close to hitting him but
then immediately swerved back to the left and continued traveling westbound. Deputy
Williams estimated McLarty's vehicle was separated from him by only about 6 to 12
inches.

On appeal, the panel from our court held Deputy Williams articulated a reasonable
suspicion to believe McLarty violated K.S.A. 8-1530(b)(1). While Deputy Williams
testified McLarty drove past the stopped patrol vehicle in the required lane, our court
held:

"K.S.A. 8-1530(b)(1) required McLarty to pay 'due regard to the road, weather
and traffic conditions,' and, although not explicitly required by the statute, even slightly
reducing her speed and getting as far left in her lane of travel as she was able to would
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have been an exercise in due caution based on the road and traffic conditions present."
2018 WL 1546282, at *5.

In all, the McLarty and Ward decisions support that the State may use an officer's
description of the proximity of the driver's passing vehicle to the stopped patrol vehicle
on a roadway to help establish whether an officer had reasonable suspicion of a K.S.A. 8-
1530(b) violation. But these decisions provide more precise descriptions of the officer's
reasonable suspicion and the roadway in question. The record here also lacks a traffic
stop video showing Thompson's vehicle passing Officer Bohringer's stopped patrol
vehicle.

The State argues that Officer Bohringer's testimony describing how Thompson's
passing vehicle caused the stopped patrol vehicle to move provided the officer with a
reasonable suspicion Thompson's vehicle did not slow down. Notably, the district court
found the State presented no evidence relating to the speed of Thompson's vehicle. At the
suppression hearing, Officer Bohringer admitted he had no evidence Thompson was
speeding. But Officer Bohringer testified that Thompson's vehicle passed by extremely
close to the stopped patrol vehicle, causing his stopped patrol vehicle to move as he was
sitting in it. Officer Bohringer provided some detail, describing the "move" as not
"somewhat" but "pretty aggressive." The officer testified the movement of his stopped
patrol vehicle "was a big shake to where it's not something normal for a passing vehicle."
Officer Bohringer also stated while semitrucks cause his patrol vehicle to sway even
when driving far enough away, smaller vehicles do not.

In reviewing the totality of the circumstances, there was sufficient evidence to
establish a reasonable suspicion that Thompson violated K.S.A. 8-1530(b). The district
court emphasized the fact that when Thompson passed the officer's patrol vehicle the
movement did not prove a violation of K.S.A. 8-1530. That may be true, but the issue to
be determined is not whether a violation of K.S.A. 8-1530(b) occurred but whether there
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was a reasonable suspicion that a violation of K.S.A. 8-1530(b) occurred. The fact that
the stopped patrol vehicle moved when Thompson passed it is not the critical issue. The
issue is the proximity of Thompson's vehicle to the patrol vehicle that would cause the
stopped patrol vehicle to move when Thompson passed. Officer Bohringer testified that a
semitruck that was some distance from another vehicle could make that vehicle move but
that a passenger vehicle would not. A passenger vehicle would have to be close to cause
another passenger vehicle to move and in particular to move it as much as Officer
Bohringer described in this case. Clearly an indication that Thompson was in the same
lane as the stopped patrol vehicle. The movement of the vehicle was not the only
observation Officer Borringer relied in deciding to stop Thompson. Officer Bohringer
testified that he observed that 95% of Thompson's vehicle was in the same lane as the
patrol vehicle.

The district court also stated that there was no evidence as to the road, weather,
and traffic conditions or the speed of Thompson's vehicle which would "all enter into
whether a violation of K.S.A. 8-1530 has occurred." That may be true in determining
whether a violation of K.S.A. 8-1530(b) occurred and those factors might ultimately
determine guilt or innocence. But those factors are not necessary as a prerequisite to
determining whether reasonable suspicion existed. Additionally, Officer Bohringer
tangentially gave evidence on those factors. He testified that Thompson moved six inches
into the left lane. This is evidence that Thompson was not blocked by traffic from moving
into the left lane.

Based on the standard of reasonable suspicion, there was sufficient evidence to
support Officer Bohringer's decision to stop Thompson for a violation of K.S.A. 8-
1530(b). We reverse the district court's order of suppression and remand the case for
further proceedings.

Reversed and remanded.