State v. Wagner

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NOT DESIGNATED FOR PUBLICATION

No. 112,730

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

AMANDA E. WAGNER,
Appellant.


MEMORANDUM OPINION

Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed October 30, 2015.
Affirmed.

John W. Thurston, of Addair Thurston, Chtd., of Manhattan, for appellant.

James W. Garrison, assistant county attorney, Barry R. Wilkerson, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before HILL, P.J., PIERRON and ARNOLD-BURGER, JJ.

Per Curiam: Amanda E. Wagner led police on a high speed chase through
Manhattan before she abandoned her car and texted a coworker to pick her up. The
coworker picked Wagner up, and she concealed herself in the front passenger seat. While
leaving the area, the coworker encountered the police—who were looking for Wagner—
and told an officer he was lost and needed directions. The officer saw Wagner attempting
to hide in the front seat and asked her, by name, if she was alright. She was then asked to
step from the car, where it became apparent she was intoxicated. She was arrested and
taken to the police station for an intoxilyzer test. In the meantime, her car was located and
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searched based on the officer's observation of open containers of alcohol in the vehicle
and a purse that would provide them with identification. On appeal, she challenges the
stop of her coworker's car by police, her arrest for driving under the influence (DUI)
which led to her submitting to an intoxilyzer test, and the search of her car. Because the
police encounter with the coworker was both based upon reasonable suspicion and
voluntary, there was probable cause to believe she was operating under the influence of
alcohol, and the search of her vehicle was supported by probable cause and exigent
circumstances, we affirm the district court's denial of her motions to suppress.

FACTUAL AND PROCEDURAL HISTORY

One winter evening, the Riley County Police Department received a call reporting
a vehicle driving erratically, including swerving and crossing the center line. Police
officers located the vehicle and attempted to pull it over. Rather than pulling over, the car
fled, leading police on a chase through Manhattan.

During the chase, the driver committed numerous traffic violations including
speeding at speeds in excess of 90 miles per hour, driving the wrong way through a
roundabout, driving over curbs, driving after dark with the vehicle's lights off, failing to
stop at a stop sign, and failing to use a turn signal. At one point during the chase, the
vehicle made a U-turn which gave the officers involved an opportunity to clearly see the
driver so that they were later able to identify her.

After some time, the chase was terminated because officers were concerned for
public safety. Police lost sight of the vehicle, but it was located again within 30 minutes.
When the car was located, it was parked in the parking lot of an apartment complex and
was unoccupied. The vehicle was registered to Wagner.

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Shortly after the vehicle was located, police began a search of the surrounding area
in an attempt to locate the driver. While the search was underway a car drove slowly
down a dead end road near where the vehicle involved in the chase was parked.
Lieutenant Erin Freidline approached the vehicle on foot as it completed a U-turn at the
end of the road. The driver of the vehicle, Nicholas Hagnauer, rolled down the window as
Freidline approached and told the officer he was lost and wanted to know how to get out
of the area. As Freidline got closer to the vehicle she saw a woman curled up on the
passenger seat. Suspecting it might be the woman they were looking for and to whom the
vehicle was registered, she said, "Amanda, are you ok?" The passenger raised her head
and made eye contact with Freidline. At that point, Freidline asked the driver to shut off
the car.

After she made contact with Hagnauer, additional officers came to assist Freidline.
One of the officers was Officer Adam Peterson. Peterson had been involved in the car
chase and had seen the driver of the car. As a result, he was able to identify the woman in
the passenger seat as the driver of the car involved in the chase, Wagner.

As Hagnauer would testify at the suppression hearing, he was a coworker of
Wagner's who had known her for about 2 1/2 years. She sent a text message to him
asking him to give her a ride home because "[s]he couldn't drive" because she was "too
drunk." She also mentioned that she was running from the police. He confirmed that
when he picked her up she was drunk. He stated he had seen her sober in the past. He
estimated that she was "fairly" drunk, a 7 or 8 on a scale of 1 to 10. The police asked him
that evening if Wagner appeared drunk to him, and Hagnauer told them that she did.

Peterson asked Wagner to get out of the car. As she got out, Peterson noticed that
she was unsteady, used the vehicle for assistance, smelled strongly of alcohol, and had
red bloodshot eyes. When Peterson began speaking to Wagner, he also noticed her speech
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was slurred. Peterson arrested Wagner without performing any field sobriety tests and
took her to jail.

After Wagner was arrested, police conducted a full search of her car. The search
turned up open containers of alcohol, Wagner's driver's license, and a small amount of
marijuana.

Prior to trial, Wagner filed three motions to suppress. The first motion sought
suppression of all evidence gathered out of the stop of Hagnauer's vehicle. The second
was a motion to suppress for lack of probable cause to arrest her. The third was a motion
to suppress evidence gathered during the search of her vehicle. The district court denied
all three motions.

Wagner proceeded to a bench trial at which she stipulated to the facts and was
found guilty of fleeing and eluding, DUI, circumvention of an ignition interlock device,
possession of marijuana, and transportation of liquor in an open container.

On appeal, Wagner challenges the denial of each of her motions to suppress. After
setting forth our standard of review, we will examine each in turn.

When reviewing a district court's denial of a motion to suppress, appellate courts
utilize a bifurcated standard. Appellate courts review district courts' factual findings to
determine whether they are supported by substantial competent evidence. In making this
determination, appellate courts do not reweigh evidence or asses the credibility of
witnesses. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014). Substantial competent
evidence "is that which possesses both relevance and substance and which furnishes a
substantial basis in fact from which the issues can be reasonably resolved." State v.
Sharp, 289 Kan. 72, 88, 210 P.3d 590 (2009). The ultimate legal conclusions drawn from
the application of the law to the facts are reviewed de novo. Reiss, 299 Kan. at 296.
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THE POLICE ENCOUNTER WITH HAGNAUER'S VEHICLE

Wagner moved to suppress all evidence obtained as a result of the stop of
Hagnauer's car because she believed the police lacked reasonable suspicion to conduct
the stop. She renews this argument on appeal. The State responds with two arguments.
First, the State contends that, if the officer's conduct resulted in a stop, then the police had
reasonable suspicion so that the stop was legal. Second, the State argues the issue of
suspicion is irrelevant because the encounter between Freidline and Hagnauer was
voluntary.

Both the Fourth Amendment to the United States Constitution and §15 of the
Kansas Constitution Bill of Rights protect citizens from unreasonable searches and
seizures. Courts have interpreted this protection as requiring police to have some
minimum level of reasonableness or articulable suspicion before they engage citizens in
involuntary encounters, because such interactions amount to seizures. State v. Parker,
282 Kan. 584, 588, 147 P.3d 115 (2006). The exact level of suspicion required to initiate
an encounter varies based upon the type of interaction taking place.

Courts have distinguished between four different types of law enforcement-citizen
encounters: voluntary encounters, investigatory detentions or Terry stops, public safety
stops, and arrests. 282 Kan. at 588. Voluntary encounters are unique from the other three
because police can engage a citizen in a voluntary encounter without first having any
suspicion that the citizen has committed, is, or is planning on committing a crime (or in
the case of public safety stops, without suspicion that the person or vehicle poses a public
safety risk) because the citizen freely consents to the interaction. 282 Kan. at 588. An
officer may engage a citizen in a short, investigatory detention or stop if the officer has
"'prior knowledge of facts or observe[s] conduct of a person which causes the officer to
reasonably suspect that such person is committing, has committed, or is about to commit
a crime.'" State v. Epperson, 237 Kan. 707, 711, 703 P.2d 761 (1985). When an officer
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stops a moving vehicle, the resulting traffic stop is viewed as an investigatory detention.
State v. Thompson, 284 Kan. 763, 773, 166 P.3d 1015 (2007).

The encounter between police and Hagnauer was based upon reasonable suspicion.

After hearing arguments on Wagner's motion to suppress, the district court
determined that a stop had occurred and that the motion to suppress evidence gathered
out of that stop should be denied because the police had reasonable suspicion for the stop.
As discussed above, police must have some minimum level of reasonableness or
articulable suspicion before they engage a citizen in an involuntary encounter, because
such interactions amount to seizures. Thompson, 284 Kan. at 772-73. The exact level of
suspicion required to initiate an encounter varies based upon the type of interaction
taking place. 284 Kan. at 772. Traffic stops are generally viewed as investigatory
detentions and require officers to have reasonable suspicion that a crime has been, is
being, or will be committed at the time the stop is initiated. 284 Kan. at 773.

Although reasonable suspicion is not a high bar, it does require an officer to
articulate "[s]omething more than an unparticularized suspicion or hunch." State v.
DeMarco, 263 Kan. 727, 735, 952 P.2d 1276 (1998). To determine whether reasonable
suspicion existed, a court looks at the totality of the circumstances, considering both the
quantity and quality of the information an officer possessed, at the time he or she initiated
contact, to see whether the officer had "'"a particularized and objective basis" for
suspecting the person stopped of criminal activity.'" 263 Kan. at 735. However, we do
view the evidence in light of a trained law enforcement officer's ability to distinguish
between innocent and suspicious circumstances. 263 Kan. at 735. Reasonable suspicion
represents a "'minimal level of objective justification'" which is "considerably less than
proof of wrongdoing by a preponderance of the evidence." United States v. Sokolow, 490
U.S. 1, 7, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989). Whether reasonable suspicion exists is
a question of law. State v. Moore, 283 Kan. 344, 350, 154 P.3d 1 (2007).
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Here, at the hearing on the motion to suppress, Freidline testified that she was
suspicious of the vehicle because "it just—it was traveling slowly. Due to the
construction area it just didn't seem to fit. It was the one and only vehicle in the amount
of time that I had been there that had traveled down that street, and it just raised my
suspicion about it." The officer also testified that she had been involved in fleeing and
eluding cases before where the driver had abandoned the vehicle and had someone pick
him or her up. Because it was a cold evening, she was concerned that that driver was
doing just that. Wagner's car was located in the parking lot of an existing apartment
building approximately 100 yards from where Hagnauer was stopped. So it would not be
unusual for her to call someone to pick her up in the vicinity. This was the only car in the
vicinity where officers believed Wagner was hiding and were in fact actively searching
for her, it was driving slowly, and it drove into an area that dead ended into a dirt road.
We agree with the district court that Freidline had a reasonable basis to believe that
Wagner may be concealed in the car. Accordingly, the district court's decision denying
the motion to suppress is affirmed.

Even if there were not reasonable grounds to stop the vehicle, the encounter between
police and Hagnauer was voluntary.

Here, the district court arrived at the conclusion that a stop had occurred, citing
evidence that Hagnauer was "[f]lagged down by an officer. The individual testified he
wasn't going to leave, and there was an officer in front of him that he would have had to
drive over if he had tried to leave, and he wasn't going to do that." Although the State did
not cross-appeal on this issue, it did argue the voluntariness of the stop as an alternative
basis to support the district court's ruling.

Freidline testified that she was on foot in the area near where Wagner's car had
been found when a dark-colored vehicle drove slowly past her, hit the point where the
road dead ended into the construction site, then made a U-turn to come back toward her.
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Freidline approached the vehicle after it completed its turn. As Freidline approached, the
driver of the vehicle, Hagnauer, rolled down his window, told her he was lost, and asked
for directions.

Hagnauer's testimony was substantially the same as Freidline's testimony. He
testified that he was completing a U-turn when an officer approached his vehicle on foot.
As the officer approached the car, Hagnauer rolled down his window and told her he was
lost and needed directions.

Neither party to the alleged stop testified that Hagnauer was, as the district court
said, "flagged down." One officer testified that he wrote in his report that Freidline
"waved the car down," but then indicated that was a figure of speech and he did not
actually see Freidline do anything other than approach the car. Accordingly, this factual
finding by the district court was not justified by the evidence.

The Kansas Supreme Court has recognized a number of factors to look at when
determining whether an interaction is a voluntary encounter or an investigatory detention.

"This nonexhaustive and nonexclusive list includes: the presence of more than one
officer, the display of a weapon, physical contact by the officer, use of a commanding
tone of voice, activation of sirens or flashers, a command to halt or to approach, and an
attempt to control the ability to flee." State v. McGinnis, 290 Kan. 547, 553, 233 P.3d
246 (2010).

When evaluating the presence or absence of these factors in a given case, the court has
instructed that the analysis should not be rigid. Instead, courts should look at the totality
of the circumstances, recognizing that no one factor alone is determinative, although
some factors may be more indicative of an involuntary encounter than others. 290 Kan. at
553. The key question is whether a reasonable person, under the circumstances, would
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feel free to refuse the officer's request or end the encounter. Where an encounter is
initiated through the use of physical force or an overt show of authority it is appropriate
to conclude that a stop has occurred. 290 Kan. at 552.

Here, Freidline made no show of authority; she did not utilize lights or sirens to
effectuate the stop; Freidline did not yell at or even orally ask Hagnauer to stop; she did
not wave the car down or otherwise signal the driver to stop; Freidline approached the
vehicle alone while no other officers were in the immediate vicinity; and Freidline did not
utilize her weapon to force the car to stop. In short, none of the factors the Kansas
Supreme Court has provided for guidance in determining that a stop occurred were
present in this case. The only evidence contained in the record that a stop occurred is
Hagnauer's testimony that Freidline was standing in the road in front of him. See
McGinnis, 290 Kan. at 560 (fact that officer's car appeared to be blocking defendant, not
determinative, when defendant could have maneuvered around it). Here, the only thing
standing between Hagnauer and the open road was one female officer on foot. If the court
in McGinnis found that an officer and his car were an insufficient barrier to give rise to
the finding of a stop, it would be hard to convincingly argue a stop occurred based on the
facts here. Evidence that this was a stop is further diminished by Hagnauer's testimony
that, contemporaneously with Freidline approaching the car, Hagnauer rolled down his
window to ask her for directions. This fact points to the stop actually being a mutual,
voluntary encounter.

Even if Hagnauer truly believed that he had no choice but to stop when Freidline
approached him, his subjective belief is somewhat irrelevant. The crucial question in
evaluating whether a stop has occurred and a person has been seized is not whether he or
she subjectively felt free to leave, but whether a reasonable person in his or her situation
would have felt free not to engage with the officer. Courts have consistently held that "a
seizure does not occur simply because a police officer approaches an individual . . . .
'Only when the officer, by means of physical force or show of authority, has in some way
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restrained the liberty of a citizen may we conclude that a "seizure" has occurred.'"
Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991).
Accordingly, we agree with the State that even if there were not reasonable grounds to
stop the vehicle, the encounter between police and Hagnauer was nevertheless voluntary.

PROBABLE CAUSE FOR WAGNER'S ARREST

Wagner next contends that the police lacked probable cause to arrest her for
driving under the influence of alcohol. Consequently, she contends, there was no basis to
request a breath test and the evidence of the results should be suppressed.

Prior to July 1, 2013, the law was clear. A person was required to be lawfully
under arrest for an alcohol or drug related offense before an arresting officer is authorized
to request a test of breath, blood, or urine to determine the presence of alcohol or drugs.
See Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 18-19, 290 P.3d 555 (2012). This
was based on the clear language of K.S.A. 2008 Supp. 8-1001(b)(1)(A) at the time Sloop
was decided, which required that the driver be under arrest for DUI at the time the
request was made. In response to Sloop, the legislature amended K.S.A. 8-1001(b)(1)(A)
to provide in pertinent part:

"(b) A law enforcement officer shall request a person to submit to a test or tests
deemed consented to under subsection (a): (1) If, at the time of the request, the officer
has reasonable grounds to believe the person was operating or attempting to operate a
vehicle while under the influence of alcohol or drugs, or both, . . . and one of the
following conditions exists: (A) The person has been arrested or otherwise taken into
custody for any violation of any state statute, county resolution or city ordinance . . . ."
L. 2013, ch. 122, sec. 2.

To be lawful, a warrantless arrest must be supported by probable cause. 296 Kan.
at 20. Probable cause is a higher burden of proof than reasonable suspicion, but it is less
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exacting than the standard of proof required for a criminal conviction. 296 Kan. at 20.
Probable cause exists when "'"the facts and circumstances within their [the arresting
officers'] knowledge and of which they had reasonably trustworthy information [are]
sufficient in themselves to warrant a man of reasonable caution in the belief that" an
offense has been or is being committed.'" 296 Kan. at 21.

Immediately after Wagner stepped from Hagnauer's car, she was handcuffed and
placed in his patrol vehicle and transported to jail. The arresting officer testified that
because Wagner had already fled earlier both in her vehicle and on foot, he did not want
to have to chase her down again. The officer clearly had probable cause to believe
Wagner had violated the state's fleeing and eluding statute. The car involved in the police
chase was found abandoned and registered to her. The same officer who had been
involved in the car chase and had seen the driver of the car identified Wagner at the
scene. It did not take long to also develop reasonable grounds to believe she was under
the influence of alcohol or drugs. He did not have Wagner perform any field sobriety
tests. Wagner contends because of the lack of such testing, that police lacked probable
cause to arrest her for DUI and request a breath test.

While field sobriety testing is useful for establishing probable cause that a driver is
under the influence of alcohol, it is just one tool that officers use to determine whether a
driver is capable of driving safely. See State v. Huff, 33 Kan. App. 2d 942, 945, 111 P.3d
659 (2005). Field sobriety testing, however, is not necessary to establish probable cause.
33 Kan. App. 2d at 945. A probable cause determination is made based on the totality of
the circumstances. Sloop, 296 Kan. at 20. For instance, in Huff, this court found probable
cause existed based upon Huff's "speeding and driving off the roadway, his slurred
speech, bloodshot eyes, fumbling to find his drivers license, and odor of alcohol." 33
Kan. App. 2d at 945-46.

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We have no hesitation finding that Wagner was lawfully arrested and was
subsequently lawfully requested to take a breath test. Well before the time she was
requested to take a breath test, officers had established reasonable grounds to believe she
was operating or attempting to operate a vehicle while under the influence of alcohol.
Police observed a long list of factors that gave rise to probable cause that Wagner was
DUI. At the hearing on the motion to suppress, police testified that they were alerted to
her driving due to independent reports that the vehicle was driving erratically, swerving
and crossing the center line. The officers then witnessed erratic driving that included
failing to stop for emergency vehicles displaying flashing lights and sirens, speeding in
excess of 90 miles per hour, driving at night without headlights, driving the wrong way
through a roundabout, failure to stop at a stop sign, and failure to use a turn signal. Her
driving caused such a danger to the public that police elected to call off the pursuit in
hopes she would at least slow down and turn her lights on if the police were no longer
following her. When police finally made contact with Wagner, they noticed she had
trouble getting out of the car—using the vehicle to steady herself, smelled strongly of
intoxicants, had red bloodshot eyes, and her speech was slurred. Once in the officer's
vehicle, she fell asleep. Hagnauer, who had known her for over 2 years and picked her up
following her text that evening, told officers at the scene that she appeared drunk. He
corroborated the officers' testimony that Wagner's speech was slurred, she was "wobbly,"
"[a] little bit confused," and she appeared drunk.

The totality of the circumstances provide substantial competent evidence that the
police had probable cause to arrest Wagner and request that she take a breath test.
Accordingly, the district court's decision is affirmed.





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THE SEARCH OF WAGNER'S VEHICLE

Wagner contends that the district court erred when it denied her motion to
suppress all evidence obtained from the warrantless search of her vehicle, because the
search was invalid as a search incident to arrest.

The Fourth Amendment to the United States Constitution protects citizens from
unreasonable searches and seizures by police. Whether a search is unreasonable depends
entirely on the circumstances surrounding the search—a search that would generally be
impermissible without a warrant may be allowed based on an exception to the Fourth
Amendment. State v. Sanchez-Loredo, 294 Kan. 50, 55, 272 P.3d 34 (2012). The
exceptions recognized in Kansas include: "'consent; search incident to a lawful arrest;
stop and frisk; probable cause plus exigent circumstances; the emergency doctrine;
inventory searches; plain view or feel; and administrative searches of closely regulated
businesses.'" 294 Kan. at 55.

Wagner challenges the validity of the search the police conducted of her vehicle
on the theory that it was not a lawful search incident to arrest. But the State has never
argued this was a search incident to arrest. The district court did not find it was a search
incident to an arrest, but instead focused on its constitutionality based upon the plain
view exception. So there is no need to address whether this was a valid search incident to
an arrest, and our analysis could end there. However, on appeal, the parties do address the
applicability of the plain view doctrine, so we will briefly discuss the applicability of this
exception to the warrant requirement.

The State has argued that the search was justified under two separate exceptions:
plain view and the automobile exception. Under the plain view exception, "'if police are
lawfully in a position from which they view an object, if its incriminating character is
immediately apparent, and if the officers have a lawful right of access to the object, they
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may seize it without a warrant.'" State v. Wonders, 263 Kan. 582, 590, 952 P.2d 1351
(1998). The automobile exception has developed as a specific instance in which a
warrantless search will be allowed under the probable cause plus exigent circumstances
exception. Sanchez-Loredo, 294 Kan. at 56. Under this exception, police are justified in
searching a vehicle when they have probable cause to believe the vehicle contains
contraband or evidence of a crime. 294 Kan. at 56-57. This is regardless of whether the
vehicle or its occupants are already in police custody. 294 Kan. at 56-57. The automobile
exception is the broader of the two exceptions, requiring only probable cause, and fully
supports the search that took place here, so we will discuss and apply it to the search of
Wagner's vehicle.

The first step in the analysis of whether a search is valid under the automobile
exception is to determine whether there was probable cause that evidence of a crime or
contraband would be found in the vehicle searched. Probable cause exists "when the facts
and circumstances within a law enforcement officer's knowledge . . . are sufficient in
themselves to warrant a person of reasonable caution in the belief that an offense has
been or is being committed." State v. Fitzgerald, 286 Kan. 1124, 1128, 192 P.3d 171
(2008). Here, at the time of the search, police knew Wagner's vehicle was the vehicle that
had been involved in police chase. Police officers approached the vehicle, looked through
the windows, and observed open containers of alcohol. With the driver's erratic and
reckless driving, the bottles of alcohol—whether empty or full—could be evidence in a
DUI investigation or evidence of the separate crime of transporting an open container.
Although Wagner argues that the open containers could not be the basis for probable
cause because the officers did not know if there was liquid in them, whether the officers
saw liquid in the bottles before entering the vehicle simply goes to the quality of the
evidence for a subsequent conviction for transporting an open container. It does not
detract from a determination that there was probable cause to believe that the bottles were
evidence of a DUI or a transporting an open container charge. They also observed a
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purse, which could reveal evidence of the identity and location of the person driving the
abandoned car that had fled from police.

Looking at the totality of the circumstances, the record clearly supports the district
court's finding that the police had probable cause to believe they would find evidence of a
crime in Wagner's car at the time they initiated the search.

The second issue to address is the scope of the search. Once police have probable
cause to search a vehicle, the search is limited only by the nature of the evidence police
hope to find. State v. Jaso, 231 Kan. 614, 621, 648 P.2d 1 (1982). Police are justified in
searching all parts of the car and containers found therein, in which there is probable
cause to believe evidence may be found. So, for instance, "'probable cause to believe that
undocumented aliens are being transported in a van will not justify a warrantless search
of a suitcase.'" 231 Kan. at 621. Here, police testified that they were looking for evidence
related to the DUI charge as well as evidence related to the flee and elude charge, such as
a driver's license or other evidence that Wagner was the driver of the vehicle. The search
for evidence related to driver identification opened essentially the entire vehicle and all
containers therein to search.

Substantial competent evidence supported the district court's determination that
police had probable cause to conduct a search of Wagner's vehicle under the automobile
exception. The district court's denial of the motion to suppress is, therefore, affirmed.

Affirmed.