State v. Hardin

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No. 107,558

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

PAUL HARDIN,
Appellant.


SYLLABUS BY THE COURT

1.
In order to make a lawful investigatory stop of a vehicle on a public roadway, a
law enforcement officer must have a reasonable suspicion that criminal activity has
occurred, is occurring, or is about to occur.

2.
The mere possibility that activity observed by a law enforcement officer may have
a lawful explanation does not negate his or her reasonable suspicion of other equally
plausible and unlawful scenarios.

3.
When a law enforcement officer has information that a license plate observed on
one vehicle is registered to another vehicle, the proper inquiry is whether the officer
would reasonably suspect a motorist of criminal activity for driving with an improper
license plate.



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4.
Evidence of other crimes discovered as a result of a lawful vehicle stop based on
reasonable suspicion of a license plate violation may be admissible even though the
license plate is subsequently determined to be proper.

5.
A party may not object to the admission of evidence on one ground at trial and
then assert another ground on appeal.

Appeal from Sedgwick District Court; GREGORY L. WALLER, judge. Opinion filed June 21, 2013.
Affirmed.

Christopher S. O'Hara, of O'Hara & O'Hara, LLC, of Wichita, for appellant.

Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before LEBEN, P.J., BRUNS, J., and HEBERT, S.J.

HEBERT, J.: Paul Hardin appeals his conviction of driving under the influence,
second offense. Specifically, Hardin appeals the district court's denial of his motion to
suppress evidence obtained as a result of an allegedly illegal stop of his vehicle, which
ultimately led to his arrest and conviction.

Hardin argues that the law enforcement officer did not have a reasonable suspicion
to justify stopping him because, even though the license plate displayed on his car was
registered to another car, he had lawfully transferred the license plate from a previously
owned vehicle.

For the reasons set forth herein, we affirm the judgments of the district court.
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FACTS

On December 8, 2009, Hardin purchased a Volkswagen from a car dealership,
trading in his previous vehicle, a Pontiac, as part of the transaction. He then affixed the
license plate from the Pontiac to the Volkswagen.

Eleven days later, Sedgwick County Sheriff's Deputy Jared Bliss observed
Hardin's Volkswagen and ran a computer check on the car's license plate. Although the
computer program did not report that the car had been stolen, the program reported that
the license plate was registered to a Pontiac. Bliss could not determine the reason for the
registration discrepancy, and he stopped Hardin's car.

During the stop, Hardin exhibited several signs of intoxication, including an odor
of alcohol, slurred speech, and bloodshot eyes. Hardin indicated that he had had "a few
beers," and he performed poorly on field sobriety tests. Bliss arrested Hardin and
transported him to the county jail, where he refused to take the evidentiary breath test.
The State filed two charges against Hardin: DUI, second offense, in violation of K.S.A.
2009 Supp. 8-1567(a)(3), (e), and driving a vehicle with a nonregistered license plate, in
violation of K.S.A. 2009 Supp. 8-142 First. The State subsequently dropped the license
plate charge after determining that Hardin had complied with the transfer provisions set
forth in K.S.A. 8-127(c).

After the State filed the charges, Hardin filed his motion to suppress arguing that
Bliss did not have a reasonable suspicion to stop his car. At the conclusion of the
suppression hearing, the district court denied the motion ruling from the bench:

"It's the opinion of the Court, based upon the circumstances that I have heard today, that
the officer acted properly. The statute does not require that an officer cannot stop an
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individual who has a tag not assigned to the vehicle. This is part and parcel of the
investigation.

"This is an investigatory stop that occurred based upon reasonable suspicion that
this tag was not assigned to the vehicle. That reasonable suspicion arose because of motor
vehicle records which the officer accessed by way of the computer in his car.

"Once he was able to ascertain that this vehicle was a result of a trade or sale,
then no violation occurred, and the driver of the vehicle would be free to go. But this
does not preclude the officer from stopping the vehicle, and yes, people who purchase
vehicles and place their tag from their prior vehicle on to that new vehicle are subject to
being stopped. I will therefore deny the defendant's motion to suppress."

Hardin's case then proceeded to a bench trial on a stipulation of facts in which
Hardin renewed his objection to the admission of evidence resulting from the stop of his
vehicle, thus preserving his argument for appellate review. The district court then
convicted Hardin on the DUI charge, resulting in this appeal.

DETERMINATION OF REASONABLE SUSPICION

Hardin argues on appeal that the district court erred in denying his motion to
suppress the evidence obtained as a result of Bliss' stop of his Volkswagen. The district
court ruled that Bliss had a reasonable suspicion upon which to base his stop, even
though it was ultimately determined that the suspicious license plate was displayed in
conformity with Kansas law.

Standard of Review

An appellate court reviews the district court's decision on a motion to suppress
using a bifurcated standard. Without reweighing the evidence, the district court's findings
are reviewed to determine whether they are supported by substantial competent evidence.
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Then the ultimate legal conclusion regarding the suppression of evidence is reviewed
using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).

The State bears the burden of proof for a suppression motion, and it must prove to
the trial court the lawfulness of the search and seizure. State v. Morlock, 289 Kan. 980,
985, 218 P.3d 801 (2009).

Analysis

Hardin's principal argument on appeal is that Bliss did not have a reasonable
suspicion to stop him and therefore the evidence obtained should be suppressed, resulting
in a reversal of his DUI conviction.

The stop of a vehicle on a public roadway constitutes a seizure. Consequently, in
order to make a lawful investigatory stop of a vehicle, an officer must have a reasonable
suspicion that criminal activity has occurred, is occurring, or is about to occur. K.S.A. 22-
2402(1); State v. Marx, 289 Kan. 657, 661, 251 P.3d 601 (2009) (citing Terry v. Ohio,
392 U.S. 1, 20, 88 S. Ct. 1868, 20 L. Ed. 2d 889 [1968]). Our appellate courts have
adopted a working definition of reasonable suspicion:

"'Reasonable suspicion means a particularized and objective basis for suspecting
the person stopped is involved in criminal activity. Something more than an
unparticularized suspicion or hunch must be articulated. Reasonable suspicion can arise
from information that is less reliable than that required to show probable cause. Both
reasonable suspicion and probable cause are dependent upon the content of information
possessed by the detaining authority and the information's degree of reliability. Quantity
and quality are considered in the totality of the circumstances—the whole picture that
must be taken into account when evaluating whether there is reasonable suspicion.'" State
v. Glass, 40 Kan. App. 2d 379, 382, 192 P.3d 651 (2008) (quoting State v. Toothman, 267
Kan. 412, Syl. ¶ 5, 985 P.2d 701 [1999]).
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In the instant case, Bliss stopped Hardin because a computer check indicated that
the license plate was registered to a Pontiac rather than to a Volkswagen. Under K.S.A.
2009 Supp. 8-142, which pertains to the registration of vehicles, prohibited acts include:

"First: To operate, or for the owner thereof knowingly to permit the operation, upon a
highway of any vehicle, as defined in K.S.A. 8-126, and amendments thereto, which is
not registered, or for which a certificate of title has not been issued or which does not
have attached thereto and displayed thereon the license plate or plates assigned thereto by
the division for the current registration year, including any registration decal required to
be affixed to any such license plate."

Violation of this statute constitutes an unclassified misdemeanor punishable by a
fine not less than $500. K.S.A. 8-127(c) serves as an exception to this general rule. Under
this statute, a person may drive a passenger vehicle with the license plate from the
person's previous vehicle—for up to 30 days after acquiring the new vehicle—if the
person has sold, traded, or otherwise disposed of the previous vehicle and the person
complies with the remaining requirements specified by the statute. The Kansas
Legislature amended this statute in 2012 to extend the 30-day period to 60 days. See
K.S.A. 2012 Supp. 8-127(c).

Despite the provisions of K.S.A. 8-127(c) Bliss could still articulate a reasonable
suspicion to stop the car since he would have no way to know whether Hardin was
displaying the license plate legally or illegally. Without making the investigatory stop
there would have been no way to either confirm or dispel his suspicion. The mere
possibility that an owner could have lawfully transferred the license plate from one
vehicle to another does not negate reasonable suspicion of other equally plausible and
unlawful scenarios as to how the Pontiac plate came to be affixed to a Volkswagen.

A panel of this court reached a similar conclusion in State v. Kramer, No. 104,578,
2011 WL 768034 (Kan. App. 2011) (unpublished opinion), rev. denied 292 Kan. 968
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(2011). There, a police officer stopped the defendant because the tag to his vehicle was
"not on file," which could mean that the tag did not belong to the vehicle, the tag had since
been issued to another vehicle, or the registration had been cancelled. The stop led to the
defendant's arrest and prosecution for DUI. 2011 WL 768034, at *1-2. Although the district
court had granted the defendant's motion to suppress because he, in fact, had a legal license
tag, this court reversed finding that the police officer had a lawful basis to stop Kramer.
This court observed that the proper inquiry was whether a police officer would reasonably
suspect a motorist of criminal activity for driving with a tag not on file—not whether
Kramer's actions satisfied the statutory elements of the crime that justified the stop in the
first place. See 2011 WL 768034, at *3.

Another panel of this court relied upon the reasonable suspicion rationale set forth in
Kramer to reach the same result in two subsequent similar decisions: State v. Alvarez, No.
106,327, 2012 WL 924817 (Kan. App. 2012) (unpublished opinion) (citing Kramer for
proposition that a police officer may have a reasonable suspicion to believe that a motorist
has failed to register a vehicle because the vehicle's tag is not on file); and State v. Lee, No.
106,328, 2012 WL 924819 (Kan. App. 2012) (unpublished opinion) (stating the same).
These cases are persuasive in suggesting that Bliss had a reasonable suspicion to stop
Hardin. Much like the officer in Kramer, Bliss acknowledged that he was uncertain
whether Hardin had violated any law when the license plate on his Volkswagen was
registered to a Pontiac, but he nonetheless had a reasonable suspicion that Hardin was
involved in a criminal activity. The district court did not err in so finding.

DILIGENT PURSUIT

Hardin also raises a secondary argument that the evidence should be suppressed
and his conviction reversed because Bliss failed to diligently pursue the initial purpose of
the stop, which was investigation of the potential license plate violation. Hardin observes
that Bliss could not recall if he asked Hardin whether he purchased a new vehicle, nor did
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he ask Hardin if the vehicle or the license plate was stolen. From this scenario, Hardin
would now apparently convolute Bliss' action into a pretextual stop to investigate a DUI.

The State does not address this point, and this argument is not properly before this
court because Hardin never raised it before the district court. The suppression motion, the
evidence, and the arguments at the suppression hearing, and Hardin's reservation of a
"continuous objection" set forth in the stipulation of facts upon which he was convicted,
all focus solely upon the reason for the stop—the potential license plate violation.
Hardin's objection to admission of the evidence was specifically premised upon the
allegation that Bliss had no reasonable suspicion to support the stop.

The suggestion that Bliss had not diligently pursued or had unnecessarily
prolonged the stop was not raised before the trial court as a specific objection to the
admissibility of the evidence. The rule is well-established that "evidentiary errors shall
not be reviewed on appeal unless a party has lodged a timely and specific objection to the
alleged error at trial." State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009). Even more
to the point here, "a defendant cannot object to the introduction of evidence on one
ground at trial, then assert another ground on appeal." State v. Richmond, 289 Kan. 419,
Syl. ¶ 4, 212 P.3d 165 (2009).

CONCLUSION

We conclude that the district court's denial of Hardin's motion to suppress was
supported by substantial competent evidence and was legally correct.

Affirmed.