Opinion
No. 106,692.
2012-11-2
STATE of Kansas, Appellee, v. Stacey WESTFAHL, Appellant.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Mark T. Schoenhofer, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Mark T. Schoenhofer, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ATCHESON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
After the district court denied her motion to suppress evidence of driving under the influence (DUI) and driving with a suspended license, Stacey Westfahl was convicted of both offenses. On appeal, Westfahl argues the district court erred in denying her motion to suppress because the sheriff's deputy who pulled her over did not have reasonable suspicion to do so and, thus, violated her constitutional right to be free from unreasonable seizures.
Facts
Sometime between 2 and 2:30 a.m. on January 11, 2009, Deputy George Bloesing of the Sedgwick County Sheriff's Office was traveling westbound on 47th Street (a two lane roadway) to provide back-up assistance at the scene of a traffic stop. While in route to the traffic stop, Bloesing noticed a car traveling 100 to 200 feet in front of him that was weaving back and forth between the fog line and the dotted center line. Based on the weaving and the time of night, Bloesing believed there was a possibility the driver was impaired. Approximately 30 seconds after he began following the car, Bloesing saw the car cross over the center line by a distance of about 6 inches to 1 foot. Bloesing did not see anything in the road that would have caused the car to cross over, so he decided to pull the car over.
Bloesing walked up to the car and made contact with the driver Westfahl. Bloesing noticed that Westfahl's eyes were watery, her speech was slurred, and she smelled of alcohol. After discovering that Westfahl's driving privileges were suspended, Bloesing asked Westfahl if she would perform some field sobriety tests. After some hesitation, Westfahl consented and the results of the tests indicated to Bloesing that Westfahl was intoxicated. Bloesing arrested Westfahl and transported her to the detention center where Westfahl submitted to a breathalyzer test. The results of this test revealed that Westfahl's blood-alcohol concentration was .261, well over the legal limit of .08. See K.S.A.2008 Supp. 8–1567(a)(2).
The State charged Westfahl with DUI (fourth or subsequent offense) and driving while her license was suspended. Prior to trial, Westfahl filed a motion to suppress evidence, arguing that Bloesing violated her constitutional right to be free from unreasonable seizures. Specifically, Westfahl asserted that she did not cross over the center line and that weaving within a single lane does not constitute a traffic offense; thus, Bloesing did not have reasonable suspicion to pull her over for a traffic infraction. Alternatively, Westfahl asserted that, even if she had crossed the center line, a single instance of crossing over the center line failed to provide Bloesing with the reasonable suspicion necessary to pull her over for violating K.S.A. 8–1522(a), which requires a vehicle driven on a roadway that has been divided into two or more clearly marked lanes to “be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”
At the suppression hearing, Bloesing testified to the facts set forth above, which he stated was the basis for pulling Westfahl over in the first place. In addition to Bloesing's testimony, a video recording of the pursuit and stop of Westfahl's car was admitted into evidence at the hearing. The depiction of Westfahl's car on the video is blurry and difficult for one viewing the video to determine whether Westfahl's car was swerving within its lane or crossed over the center line. With that said, Bloesing identified to the court that portion of the video when he observed Westfahl's car cross over the center line. Immediately after this point in the video, Bloesing utters “yeah” or “yup” and tells the officer riding with him that although the car went left of center only that one time, he thought that was enough to pull the car over. Bloesing then can be heard contacting dispatch to advise the operator that he would be performing a traffic stop. Shortly thereafter, Bloesing turned on the emergency lights of his vehicle and Westfahl pulled her car over.
Defense counsel's cross-examination of Bloesing at the hearing centered on the fact that the video did not clearly depict Westfahl's car swerving within its lane or crossing over the center line:
“Q. [By defense counsel:] Would you say that is what is being represented on that video you're driving and her driving is a fair and accurate depiction of what was going on that evening?
“A. [By Bloesing:] No.
“Q. What we actually saw and what has been introduced as evidence by the State here is unfair evidence, is that what you're saying?
“A. No.
“Q. The weaving that you witnessed with your eyes is different than the weaving that is actually appearing in that video?
“A. No.
“Q. So the weaving is a fair and accurate depiction that is the weaving that appears on the video?
“A. I wouldn't call it a fair and accurate depiction because the video is not as clear as my vision would have been in terms of what is recorded on the video. It happened the way it happened. It's a fair and accurate depiction what was occurring, however, the view on the video is not as good as what my vision was seeing.
“Q. So what you're saying is that you saw that evening is a little different than what is appearing on that video?
“A. That's correct.
“Q. So you saw the vehicle ahead of you hundred to two hundred feet or yards?
“A. Feet.
“Q. Very well. You stopped her because of weaving that you saw within the lane and you also say you caught her one time left of center, is that correct?
“A. That's correct.”
Nothing other than Bloesing's testimony and the video were presented as evidence at the hearing. After the presentation of evidence, the district court heard arguments from the parties. The State argued that under State v. Marx, 289 Kan. 657, Syl. ¶ 4, 215 P.3d 601 (2009), Bloesing had reasonable suspicion to pull Westfahl over for violating K.S.A. 8–1522(a). In support of this argument, the State pointed out that before pulling Westfahl over, Bloesing saw her swerving within her lane and then crossing over the center line. The State also pointed out that when Bloesing observed this, it was late at night, it was clear outside, and there were no obstructions in the road causing Westfahl to swerve.
Defense counsel argued that the State failed to prove that Westfahl's conduct violated K.S.A. 8–1522(a) because the best evidence of the incident was the video, which indisputably established that she did not cross over the center line. Alternatively, defense counsel argued that if Westfahl did cross over the center line a single time, this conduct did not constitute failing to drive “as nearly as practicable entirely within a single lane,” as proscribed by K.S.A. 8–1522(a).
After hearing arguments from the parties, the district judge concluded:
“I have looked at the video. I have listened to the testimony. I can't tell from the video or not whether [Westfahl] crossed the center line as testified to by [Bloesing]. So therefore I have to listen to [Bloesing's] testimony and make a determination whether, all things considered, he had reasonable suspicion to initiate a traffic stop.
“I understand [Westfahl's] position and testimony in that the circumstances surrounding the traffic stop, but 1 didn't hear from [Westfahl] as to what those circumstances were. I just heard from [Bloesing] as to what he observed. Did the deputy have reasonable suspicion to believe that she crossed the center line?
“Based on his testimony and his testimony alone, I find that he did. I don't have any other, I can draw inferences but I don't have any other testimony or any other evidence to suggest that what she did was, if she did cross the center line, whether there was a plausible explanation as to why she did that.
“At this point during the testimony, we're just drawing inferences. I can't make a determination on inferences. I can only go off what [Bloesing] testified to. He believes the particular statute of [K.S.A.] 8–1522 is violated. There is sufficient testimony to that effect.
“I'm going to deny the motion to quash and suppress based on [Bloesing's] testimony.
....
“... My decision is that based on the circumstances that [Bloesing] testified to, he believed that [Westfahl] violated that statute, therefore he had reasonable suspicion at that point to initiate a traffic stop. Thank you.”
After her motion to suppress was denied, Westfahl filed a motion to reconsider, which was based solely on the arguments raised in her original suppression motion. The district court denied this motion. Westfahl's case proceeded to a bench trial on stipulated facts, and the district court ultimately found her guilty of DUI (fourth or subsequent offense) and driving while suspended. The court sentenced Westfahl to concurrent 90–day jail sentences.
Analysis
Westfahl argues the district court erred in concluding that Deputy Bloesing had reasonable suspicion to pull her over for violating K.S.A. 8–1522(a). In support of this argument, Westfahl contends that the video of Bloesing's pursuit and traffic stop indisputably establishes her car did not weave within its lane or cross over the center line, that the video therefore discredits Bloesing's testimony at the suppression hearing to the contrary, and that the district court improperly relied on Bloesing's legally flawed testimony to conclude that Bloesing had reasonable suspicion to pull her over for violating K.S.A. 8–1522(a).
An appellate court reviews the district court's decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, this court reviews the district court's findings to determine whether they are supported by substantial competent evidence. This court then reviews the ultimate legal conclusion regarding the suppression of evidence under a de novo standard. State v. Thomas, 291 Kan. 676, 682, 246 P.3d 678 (2011).
Substantial evidence is legal and relevant evidence a reasonable person could accept as being adequate to support a conclusion. State v. Walker, 283 Kan. 587, 594–95, 153 P.3d 1257 (2007). We do not reweigh evidence, resolve conflicts in the evidence, or reassess witness credibility. State v. Johnson, 286 Kan. 824, 835–36, 190 P.3d 207 (2008); State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006). As such, an appellate court may consider whether a videotape of a traffic stop supports the district court's factual findings, but the appellate court cannot review the videotape for purposes of determining witness credibility or weighing the evidence. State v. Diaz–Ruiz, 42 Kan.App.2d 325, 329, 211 P.3d 836 (2009); State v. Hess, 37 Kan.App.2d 188, 191, 153 P.3d 557 (2006).
I. Reasonable Suspicion of a K.S.A. 8–1522(a) Violation
Bloesing testified at trial that he saw Westfahl's car weave within its lane before crossing over the center line of 47th Street by a distance of about 6 inches to 1 foot. Bloesing also testified that he did not see anything in the road that would have caused the car to cross over. The district court reviewed the video and concluded that the video was inconclusive as to whether Westfahl's car crossed the center line. Thus, the district court accepted Bloesing's testimony as credible evidence and found that the deputy did in fact see Westfahl's car cross over the center line. A. The District Court's Factual Findings
After hearing Bloesing's testimony and looking at the video, the district court made two findings, both of which we must review to determine whether they are supported by substantial competent evidence in the record.
First, the court found the video inconclusive as to whether Westfahl's car crossed the center line. The video recording was included in the record on appeal, and we have reviewed it. The video starts out by showing the taillights of Westfahl's car in the distance. Because the definition of the video is so poor, the taillights are very blurry, making it difficult to tell whether Westfahl's car was swerving within its lane. As Bloesing's patrol vehicle gets closer to Westfahl's car, the video shows that Westfahl's car (based on the position of its taillight in relation to the street) drifted toward the center line of the street. Nevertheless, the blurriness of the video prevents the viewer from seeing whether the car did, in fact, cross over the center line. Based upon our independent review of the video, we find substantial competent evidence supports the district court's finding that the video was inconclusive as to whether Westfahl's car crossed the center line.
Second, the court found Westfahl did, in fact, cross the center line and that there was nothing in the road that would have caused the car to cross over. We find substantial competent evidence to support these findings as well. Bloesing testified at trial that he saw Westfahl's car weave within its lane before crossing over the center line of 47th Street by a distance of about 6 inches to 1 foot and that he did not see anything in the road that would have caused the car to cross over. At the hearing, Bloesing identified that portion of the video depicting Westfahl's car drifting toward the center line as the point at which Westfahl crossed over the line. Although the blurriness of the video prevents the viewer from seeing whether the car did, in fact, cross over the center line, Bloesing's comments on the video corroborate his testimony that Westfahl's car crossed the center line at that time. Specifically, Bloesing can be heard on the video saying “yeah” or “yup” immediately after the car drifted toward the center line. Bloesing then told the officer riding with him that although he only saw the car go left of center once, he thought that was enough to pull the car over. Finally, Bloesing testified that although the video was an accurate depiction of the events as they transpired, it was a blurry depiction, and he was able to more clearly observe the infraction in person on the night of the incident. B. The District Court did not Err in Denying Westfahl's Motion to Suppress
Based on the findings of fact set forth above, the district court concluded that Bloesing had reasonable suspicion to pull Westfahl over for violating K.S.A. 8–1522(a).
Under the Fourth Amendment to the United States Constitution, a traffic stop is considered a seizure. Seizures are generally permissible if an objective officer would have a reasonable and articulable suspicion that the detainee committed, is about to commit, or is committing a crime. State v. Johnson, 293 Kan. 1, 5, 259 P.3d 719 (2011); see K.S.A. 22–2402(1). “The officer must be able to articulate more than an ‘inchoate and unparticularized suspicion’ or ‘hunch’ of possible criminal activity. [Citations omitted.]” State v. Coleman, 292 Kan. 813, 817, 257 P.3d 320 (2011). “A traffic violation provides an objectively valid reason to effectuate a traffic stop, i.e., articulable facts sufficient to constitute reasonable suspicion.” State v. Morlock, 289 Kan. 980, Syl. ¶ 2, 218 P.3d 801 (2009).
We begin our review of the district court's decision with K.S.A. 8–1522, the interpretation of which became the focus of the suppression hearing.
“Whenever any roadway has been divided into two (2) or more clearly marked lanes for traffic, the following rules in addition to all others consistent herewith shall apply.
“(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”
Our Supreme Court most recently interpreted the language of this statute in Marx. In that case, a motor home was traveling in the right lane of a two-lane, one-way road when it crossed the solid fog line on the right, overcorrected, and crossed the dotted lane line on the left. The Marx court interpreted K.S.A. 8–1522(a) as requiring “a driver to keep entirely within a single lane while traveling on a roadway with two or more clearly marked lanes,” unless “it becomes impracticable to stay within the lane markers.” 289 Kan. at 673. The court explained that because failure to maintain a single lane is not an absolute liability offense, “a detaining officer must articulate something more than an observation of one instance of a momentary lane breach.” 289 Kan. at 675. Ultimately, the court held that the State had failed to prove reasonable suspicion because the officer “only observed one instance where the motor home did not maintain a single lane” and “gave no testimony from which the court could even infer that it was practicable to maintain a single lane.” 289 Kan. at 675–76.
At the suppression hearing, the parties here framed the issue for the district court as a question regarding the proper interpretation of K.S.A. 8–1522(a). The State cited Marx as controlling precedent that requires drivers to stay entirely within a single lane unless it is impracticable to do so or unless the driver is properly effecting a lane change. Applying the language of K.S.A. 8–1522(a) as interpreted by Marx, the State argued the facts to which Bloesing testified at the suppression hearing provided reasonable suspicion to believe a violation of K.S.A. 8–1522(a) occurred because Westfahl failed to stay entirely within a single lane and there was nothing in the road that would have made it impracticable for Westfahl to stay in her lane. The State maintained that, unlike this case, there was no evidence presented from which the court could infer that it was practicable for the driver in Marx to maintain a single lane. We note that, although relying heavily on the analysis in Marx, the State failed to acknowledge in its argument that the traffic stop in this case occurred before the Supreme Court issued its decision in Marx .
Westfahl did not rely on Marx at all in making her argument. Instead, Westfahl relied solely on the plain language of the statute to argue that even if she did cross over the center line a single time, doing so did not constitute failing to drive “as nearly as practicable entirely within a single lane” under K.S.A. 8–1522(a). By way of example, defense counsel suggested that being followed by a patrol vehicle may have distracted Westfahl, triggered her to repeatedly look in her rearview mirror, and caused her to cross over the center line.
As they did at the suppression hearing, the parties frame the issue on appeal as a question of whether Bloesing had reasonable suspicion to believe that Westfahl violated K.S.A. 8–1522(a). Based on the statutory scheme enacted by the legislature, however, it appears that the parties improperly framed the issue from the outset. Specifically, it appears that K.S.A. 8–1514(a), which requires that a vehicle “be driven upon the right half of the roadway,” applies to the facts of this case rather than K.S.A. 8–1522(a).
In State v. Chavez–Zbarra, 42 Kan.App.2d 1074, 221 P.3d 606 (2009), a panel of this court highlighted the difference between the two statutes. This court clarified that K.S.A. 8–1522(a) applies when a driver crosses the line dividing two lanes traveling in the same direction or the fog (curb) line, whereas K.S.A. 8–1514(a) applies when a driver crosses the center line dividing two lanes traveling in the opposite direction. 42 Kan.App.2d at 1077 (reversing suppression of evidence). Our Supreme Court interpreted K.S.A. 8–1514(a), the right of center statute, in State v. Hopper, 260 Kan. 66, 917 P.2d 872 (1996). In that case, a vehicle crossed the center line. The Hopper court deemed failure to stay right of the center line an absolute liability offense; thus, even a momentary breach of the prohibition against driving left of the center line in violation of K.S.A. 8–1514(a) would constitute a violation. 260 Kan. at 70–71. The court held that the officer had reasonable suspicion of a statutory violation because there was evidence that the driver drove left of center, and no evidence that any of the four statutory exceptions applied: driver was not passing, lane was not obstructed, and road was not a three-lane or one-way street. 260 Kan. at 73.
In this case, there is no question that the road upon which Bloesing observed Westfahl driving left of center was two lanes, each traveling in the opposite direction. Therefore, K.S.A. 8–1514(a) is applicable. We already have found substantial competent evidence to support the district court's finding that Westfahl drove left of center and that there was no obstruction in the road. Moreover, there was no evidence presented to establish that Westfahl drove left of center to pass another vehicle. Based on the facts as determined by the district court, a reasonable officer would have had reasonable suspicion to believe that Westfahl failed to stay right of the center line as required by K.S.A. 8–1514(a). That Bloesing may have pulled Westfahl over based on a subjective belief that she committed a lane violation contrary to K.S.A. 8–1522(a) is immaterial to our analysis here because the standard under the Fourth Amendment is an objective one. See Devenpeck v. Afford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) (an arresting officer's “subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause”); United States v. Barnett, 505 F.3d 637, 640 (7th Cir.2007) (holding Devenpeck probable cause analysis also applied to the question of reasonable suspicion to justify a Terry stop); United States v. Laville, 480 F.3d 187, 194 (3d Cir.2007) (same); United States v. Lopez–Moreno, 420 F.3d 420, 432 (5th Cir.2005) (same).
The district court did not err in finding that Bloesing had reasonable suspicion to pull Westfahl over for a traffic infraction. See State v. Edwards, 291 Kan. 532, 544, 243 P.3d 683 (2010) (if trial court reaches the right result, its decision will be upheld even if it provided an incorrect reason or engaged in an improper legal analysis.); State v. Graham, 277 Kan. 121, 133, 83 P.3d 143 (2004) (reason given by district court for its ruling is immaterial if result is correct).
II. Reasonable Suspicion of a DUI
As an alternative basis for affirming the district court's decision, we also find sufficient evidence from which Bloesing could have found reasonable suspicion to pull Westfahl over for DUI. Bloesing testified that based on the time (between 2 and 2:30 a.m.), the car weaving within its lane, and the car crossing over the center line, he believed there was a possibility that Westfahl was impaired. Kansas courts have recognized that a sequence of erratic, though not specifically illegal, driving maneuvers can furnish reasonable suspicion for a traffic stop. See State v. Hamman, 273 Kan. 89, 91, 41 P.3d 809 (2002) (weaving within lane two or three times indicator of possibly impaired driver); State v. Field, 252 Kan. 657, 658, 664, 847 P.2d 1280 (1993) (observation that vehicle weaved within its lane several times during early morning hours furnishes reasonable suspicion to stop and investigate for possible DUI). Thus, even if Bloesing did not have reasonable suspicion to pull Westfahl over for a traffic infraction, the district court's decision to deny Westfahl's motion to suppress can still be affirmed on appeal because Bloesing articulated enough facts at the suppression hearing to establish that he had reasonable suspicion to pull Westfahl over for DUI. See Edwards, 291 Kan. at 544;Graham, 277 Kan. at 133.
Affirmed.