State v. Barriger

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No. 102,741

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RICHARD A. BARRIGER,
Appellant.


SYLLABUS BY THE COURT

When required for the safety of the officer or suspect, a suspect may be moved a
short distance during an investigatory detention if that is consistent with the purposes of
the investigation, does not unduly prolong the duration of the detention, and does not
otherwise turn the situation into the equivalent of a formal arrest.

Appeal from Pratt District Court; ROBERT J. SCHMISSEUR, judge. Opinion filed October 1, 2010.
Affirmed.

Michael S. Holland II, of Holland and Holland, of Russell, for appellant.

Gaten T. Wood, assistant county attorney, and Steve Six, attorney general, for appellee.

Before STANDRIDGE, P.J., MARQUARDT and LEBEN, JJ.

LEBEN, J.: Highway Patrol Trooper Mitch Clark found Richard Barriger's truck
parked partially blocking traffic on a state highway at night with Barriger relieving
himself by the side of the truck. Clark stopped and found that Barriger had bloodshot,
watery eyes, smelled of alcohol, admitted to drinking earlier that night, and had trouble

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locating his driver's license in his wallet. Because this two-lane highway had no paved
shoulders, was poorly lit, and the truck had stopped near an intersection and a curve,
Clark took Barriger 1 mile down the road to a parking lot to conduct standard field-
sobriety tests. Based on those tests, Clark determined that Barriger had been driving
while intoxicated and arrested him. A test then showed Barriger's blood-alcohol level as
.15, over the legal limit of .08. Barriger was convicted of driving under the influence of
alcohol; it was his third DUI offense.

Barriger appeals his conviction based on the claim that taking him away from the
scene to do the field-sobriety tests converted his detention into an arrest, one that was not
yet justified. We find nothing improper about taking him to a nearby parking lot when it
would clearly have been unsafe to proceed at the original location.

Before we consider more of the facts of Barriger's encounter with Trooper Clark,
let's provide the legal context of why any of this might matter. All of us are protected by
the Fourth Amendment from unreasonable searches and seizures, and court decisions
about what's reasonable in various situations guide what the police may do. Police may
stop and detain us briefly on the roadways based on reasonable suspicion, meaning an
objective and specific basis for believing that the person being detained is involved in
criminal activity. See State v. Pollman, 286 Kan. 881, Syl. && 3-5, 190 P.3d 234 (2008).
But to arrest a person, the officer must meet a higher standard: probable cause, which
exists when a person of reasonable caution could conclude from the known facts that an
offense has been or is being committed. State v. Fewell, 286 Kan. 370, Syl. & 4, 184 P.3d
903 (2008); see Pollman, 286 Kan. 881, Syl. & 6.

No facts are disputed. Trooper Clark came across Barriger urinating on the
roadway outside his pickup truck at about 11:20 p.m. the night after Christmas. The truck

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was parked partially on K-61 highway about where that highway intersects Northeast
20th Street in Pratt. According to Clark's testimony, there are no paved shoulders, the
pickup was near the intersection, it's on a curve, and there's a train track next to the
highway. When Clark pulled his patrol car behind the pickup, Barriger went into the
pickup and turned it off. Clark approached and was greeted by the smell of alcohol. He
noticed that Barriger's eyes were bloodshot and watery and that Barriger's pants were
unzipped and wet in the crotch area. When Clark asked Barriger for his license, Barriger
fumbled in his wallet, initially passing over the driver's license, before he located it and
handed it to Clark.

From these observations, Clark suspected that Barriger had been driving under the
influence of alcohol. Clark explained that because the pickup was on the roadway, Clark
wanted permission to move it off the roadway. Clark also said he'd like to take Barriger
to a nearby location to conduct field-sobriety tests to see whether Barriger could safely
drive away. Barriger agreed to these requests. Clark parked the pickup off the roadway
surface and took Barriger to the parking lot of Pratt Community College, about a mile
away.

In Clark's judgment, Barriger showed several indicators of impairment in the field-
sobriety tests. Clark concluded them by administering a preliminary breath test with a
portable breath-test unit; it too indicated impairment. Clark then arrested Barriger at
11:46 p.m. Clark then gave Barriger the required advisories about further testing.
Barriger agreed to a blood test, which was drawn at the local hospital.

Because there are no disputed facts, we judge the reasonableness of the officer's
actions independently, without any required deference to the district court, which upheld
the officer's actions. See State v. Hill, 281 Kan. 136, Syl. & 2, 130 P.3d 1 (2006). The

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entire encounter took 26 minutes from the trooper's arrival until the officer formally
arrested Barriger after the field-sobriety tests.

Barriger contends that the officer didn't have probable cause to arrest him before
the field-sobriety tests were conducted. He concedes that the officer could properly
investigate and ask him questions at the scene where his truck had initially stopped, but
he contends that the officer arrested him—without probable cause—when he took him 1
mile away to do further investigation. Because the arrest was illegal, Barriger argues, all
evidence obtained after that, including his blood-test result, must be thrown out.

Courts elsewhere have faced this general question frequently enough that
Professor Wayne LaFave has concluded that "it seems clear that some movement of the
suspect in the general vicinity of the stop is permissible without converting what would
otherwise be a temporary seizure into an arrest." 4 LaFave, Search & Seizure: A Treatise
on the Fourth Amendment § 9.2(g), at 348 (4th ed. 2004). For example, the United States
Court of Appeals for the Tenth Circuit upheld the movement of a person suspected of
drug trafficking 8 or 9 miles down the road to facilitate having a drug dog sniff the
exterior of the suspect's rented car. United States v. White, 584 F.3d 935, 952-56 (10th
Cir. 2009). In White, rather than holding the suspect at the scene, the officer had him
follow the patrol car down the road to a parking lot next to a state transportation
department field office where an officer with a drug dog coming from the other direction
could meet them. The field office was in the same direction the suspect had been
travelling, going there shortened the time needed to have a drug dog sniff the car, and
other cases have held that a suspect may be detained for some time to await the arrival of
a drug dog when there's reasonable suspicion of drugs in the vehicle. Thus, the court held
that the investigatory detention was not converted into an arrest, even though the suspect
was moved 8 or 9 miles at the officer's request. 584 F.3d at 954-56.

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The White case differs from Barriger's in that the suspect in White was moved to
expedite the investigation, while Barriger was moved for safety reasons. But that's a
reason the United States Supreme Court has explicitly said is a valid one: "[T]here are
undoubtedly reasons of safety and security that would justify moving a suspect from one
location to another during an investigatory detention." Florida v. Royer, 460 U.S. 491,
504, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983) (plurality opinion). In a case quite similar
to Barriger's, the United States Court of Appeals for the Sixth Circuit held that moving a
suspect from alongside a freeway to a location under the freeway overpass during heavy
rain did not convert an investigatory detention into an arrest. United States v. Pino, 855
F.2d 357, 361-63 (6th Cir. 1988). The trial court in Pino concluded that the move to the
underpass was necessary to shield the officer and the suspect from the heavy rain and to
promote the safety of vehicles passing by on the interstate. The Sixth Circuit agreed,
concluding that the move was appropriate because it was no more intrusive than
reasonably necessary, did not result in a more institutional setting that could have led the
suspect to feel that he was under arrest, and did not so lengthen the detention as to
become unnecessarily intrusive. 855 F.2d at 362.

Because the Fourth Amendment prohibits unreasonable searches and seizures, the
central question in all Fourth Amendment cases is what is reasonable. Michigan v.
Fisher, ___ U.S. ___, 175 L. Ed. 2d 410, 130 S. Ct. 546, 548 (2009); State v. Smith, 286
Kan. 402, 407, 184 P.3d 890 (2008). Courts consider an investigatory detention
acceptable when based only on reasonable suspicion—rather than the probable-cause
standard needed for an arrest—largely because it is assumed that an investigatory
detention will be relatively brief and no longer than reasonably necessary. Thus, an
investigatory detention must be temporary and last no longer than is necessary under the
circumstances. Royer, 460 U.S. at 500; White, 584 F.3d at 953-54; State v. Thompson,

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284 Kan. 763, Syl. & 7, 166 P.3d 1015 (2007). Normally the scope and duration must be
reasonable in relation to the reason for the investigation. Smith, 286 Kan. at 407. But with
reasonableness as the guide and safety concerns at hand, an officer should be allowed to
act reasonably to protect the safety of both the officer and the suspect while still
following all other rules applied to an investigatory detention. We conclude, therefore,
that when required for the safety of the officer or suspect, a suspect may be moved a short
distance during an investigatory detention if that is consistent with the purposes of the
investigation, does not unduly prolong the duration of the detention, and does not
otherwise turn the situation into the equivalent of a formal arrest.

Barriger cites two decisions from our court in support of his argument that the
investigatory detention of him transformed into an arrest when he was moved to the
parking lot for field-sobriety tests. In both cases, the suspect was taken a short distance to
the local police station for field-sobriety testing. See City of Norton v. Wonderly, 38 Kan.
App. 2d 797, 800-01, 172 P.3d 1205, rev. denied 286 Kan. 1176 (2008); City of Norton v.
Schoenthaler, 2007 WL 2410122 (Kan. App. 2007) (unpublished opinion), rev. denied
February 13, 2008. In our view, each of these cases is premised on the notion that the
officer had turned the situation into the equivalent of a formal arrest by the combination
of all other factors joined with taking the suspect to the police station and by the overall
situation. In Wonderly, for example, the suspect was handcuffed for the two-block trip to
the station. Professor LaFave has noted that moving the suspect from another location to
a police station usually converts a detention into the equivalent of an arrest, 4 LaFave,
Search & Seizure § 9.2(g), at 354-55, and the Pino court specifically noted that the move
from the rainy interstate highway to a location in the underpass was acceptable in part
because it did not result in a more institutional setting and thus was "no more intrusive
than the original stop on the interstate." 855 F.2d at 362. The same is true in Barriger's
case—a parking lot next to an educational institution was substituted for a state highway

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at an intersection. The substitute location was no more intrusive yet much safer, and it
was only a short distance away.

Because the ultimate test in a Fourth Amendment case is reasonableness, there
usually is no single factor that is determinative. Instead, the court must consider all of the
facts in the case before it. See Thompson, 284 Kan. 763, Syl. & 20. Barriger had stopped
his truck on a highway near an intersection with another road, and there was no paved
shoulder on which to do field-sobriety tests. The officer's request to move to a nearby
parking lot was reasonable, did not prolong the traffic stop more than was reasonably
necessary, and did not otherwise turn the situation into the equivalent of a formal arrest.
The trooper did not use handcuffs, draw a weapon, or force compliance in any physical
way. The trooper neither searched Barriger's truck nor asked permission to do so—he
focused only on a single task of determining whether Barriger could safely drive.

While the trooper did have possession of Barriger's keys and driver's license, the
trooper needed the keys to safely move the truck out of the roadway, and the retention of
a license by itself does not turn an investigatory detention into an arrest. After all, the
significance of the retention of a license is merely that it's a factor in determining whether
a person is free to leave. See Pollman, 286 Kan. at 889. But a person is seized (i.e., is not
free to leave) whether the situation is an investigatory detention or an arrest. Thus, the
retention of the keys and license have little role in determining whether Barriger was
merely detained for a relatively brief investigation or had been arrested. See 4 LaFave,
Search & Seizure § 9.2(g), at 354.

After hearing the evidence, the district judge in this case found that the officer
hadn't converted the investigatory detention into an illegal arrest, concluding that "the
actions of the officer just seem to be appropriate to me." He concluded with a

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hypothetical situation in which the officer had been new to the job and had called the
judge at home at 11:30 p.m., saying, "What do I do? I've got this guy partially blocking
61 Highway and I don't know what to do. It's my first day on the job." The judge said he
would have replied, if he had retired and were permitted to answer, "Well, get his car off
the highway and make sure he's okay." We think the judge called it right—getting
Barriger's truck off the highway and then conducting field-sobriety tests at a convenient,
nearby parking lot was reasonable. The judgment of the district court is therefore
affirmed.