City of Leawood v. Lee

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NOT DESIGNATED FOR PUBLICATION

No. 117,252

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CITY OF LEAWOOD,
Appellee,

v.

JENNI J. LEE,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed April 20,
2018. Affirmed.

Megan L. Harrington, of Overland Park, for appellant.

Andrew Karl Hall, assistant city attorney, for appellee.

Before STANDRIDGE, P.J., HILL and BUSER, JJ.

PER CURIAM: A concerned citizen's tip to the Leawood Police Department
regarding an erratic and dangerous driver led to the arrest of Jenni J. Lee for first-offense
driving under the influence (DUI) and preliminary screening test refusal. Lee was
convicted as charged in the municipal court and after a trial de novo on appeal to the
district court. In this appeal, Lee argues the district court erred (1) by denying her motion
to suppress, (2) by considering her preliminary breath test (PBT) refusal as evidence of
guilt for the crime of DUI, and (3) by denying her motion for judgment of acquittal.
Finding no error, we affirm.

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FACTS

On February 3, 2015, the City of Leawood charged Lee with first-offense DUI and
preliminary screening refusal. Lee was convicted as charged following a bench trial in the
Leawood Municipal Court. She subsequently appealed to the Johnson County District
Court. Lee filed a motion to suppress, alleging that law enforcement lacked reasonable
suspicion to stop and detain her. The district court held a combined suppression hearing
and bench trial, where the following evidence was presented.

Richard Baxter Cray III

Richard Baxter Cray III testified that on February 3, 2015, he was driving south on
State Line Road near 91st or 92nd Street in Leawood, Kansas, when he observed a silver
Mercedes driving erratically in front of him. According to Cray, he was stopped at a
stoplight behind the Mercedes when the car suddenly reversed and almost backed up into
his car, only stopping when Cray honked his horn. Cray said he followed the Mercedes
through the stoplight and witnessed the car weave in and out of its lane and swerve into
the opposite lane, all while traveling at a very low rate of speed. Concerned about this
erratic and dangerous car on the road, Cray called the police to report the driver as he
continued to follow the Mercedes. Cray testified the Mercedes ultimately stopped at a
cul-de-sac near 97th Terrace and Lee Boulevard. Cray parked down the street from the
Mercedes and stayed on the phone until the police arrived approximately five minutes
later. Cray did not speak to the police on the scene directly but later provided an official
statement via e-mail. Cray could not identify Lee as the driver of the Mercedes and
admitted that he could not recall whether he had identified the driver as male or female or
whether he had been able to identify the driver's race.



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Officer Tony Woollen

Leawood Police Officer Tony Woollen testified that around 8 p.m. on February 3,
2015, he was dispatched to 97th Terrace and Lee Boulevard regarding a possible
intoxicated driver. Upon arrival, Woollen located a silver Mercedes car that matched the
description provided to dispatch. Woollen turned on his police vehicle's rear flashers and
made contact with Lee, who was sitting in the driver's seat of the Mercedes with a dog in
her lap. Woollen said that he asked Lee for her driver's license and that he asked where
she was going. According to Woollen, Lee responded she was trying to get home and
pointed to a nearby house, whose address did not match the home address Lee had
provided to Woollen. Woollen noted that Lee appeared to be very disoriented and distant,
that her speech and mannerisms were slow, and that her responses were delayed. Woollen
testified that he spoke with Officer Andrew Maxwell, who had also arrived at the scene,
about whether to conduct field sobriety testing based on Lee's obvious disorientation and
the report of erratic driving. Woollen did not detect an odor of alcohol on Lee's person
and admitted that any erratic driving could have been caused by the dog on her lap. While
Woollen ran Lee's driver's license through dispatch, Maxwell spoke with Lee.

Officer Andrew Maxwell

Officer Maxwell testified that when he made contact with Lee, she was
standoffish, quiet, and appeared to be shielding herself behind her dog. After engaging in
conversation with Lee, Maxwell said he smelled an odor of alcohol coming from the car.
Maxwell noted that Lee's explanation about where she had come from and where she was
going did not coincide with her location. Maxwell testified that when he asked Lee if she
had been drinking, she admitted to having a glass of wine about four hours earlier. After
asking Lee to exit the Mercedes to speak with him outside, Maxwell said Lee had a hard
time placing her dog inside a kennel on the passenger seat, even though the dog was not
resisting. According to Maxwell, Lee then flung open the door, used both hands to
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"catapult" herself out of the car, and had difficulty maintaining her balance once outside.
Maxwell testified he again smelled an odor of alcohol. Based on his suspicion that Lee
was intoxicated, Maxwell conducted field sobriety tests. Maxwell testified that Lee could
not keep her balance while he was instructing her on the nine-step walk-and-turn test. Lee
failed the test, exhibiting seven out of eight clues of impairment. Maxwell further
testified that Lee also failed the one-leg-stand test by exhibiting two out of four clues of
impairment. Based on his experience and Lee's performance on the tests, Maxwell
believed Lee was under the influence of alcohol. Maxwell asked Lee to take a PBT, but
she refused. Lee was then arrested and transported to the police station, where she also
refused to take an evidentiary Intoxilyzer breath test. Maxwell admitted that he did not
see Lee driving the car, and he could not say for sure whether the car was running during
his interaction with her.

Following this testimony, the district court denied Lee's motion for judgment of
acquittal and motion to suppress and found Lee guilty of DUI and refusing a preliminary
screening test. The court subsequently denied Lee's motion for new trial or judgment of
acquittal. The district court sentenced Lee to 30 days in jail, but granted her 12 months'
probation following compliance with a 48-hour minimum mandatory jail term and
ordered Lee to pay fines in the amount of $950.

ANALYSIS

Lee raises three issues on appeal. First, Lee argues the district court erred by
denying her motion to suppress. Second, Lee claims the district court improperly
considered her PBT refusal as evidence of her guilt for the crime of DUI. Third, Lee
contends the district court erred by denying her motion for judgment of acquittal. We
address each of Lee's allegations in turn.


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Motion to suppress

Lee argues the district court erred by denying her motion to suppress. Specifically,
Lee contends her initial seizure and continued detention after Officer Woollen's contact
were unsupported by reasonable suspicion of criminal activity.

A district court's decision on a motion to suppress is subject to a bifurcated
standard of review. The appellate court reviews the district court's factual findings to
determine whether they are supported by substantial competent evidence. State v.
Patterson, 304 Kan. 272, 274, 371 P.3d 893 (2016). Substantial competent evidence is
evidence that is both factually and legally relevant and sufficient for a reasonable person
to rely upon it to support a conclusion. State v. Talkington, 301 Kan. 453, 461, 345 P.3d
258 (2015). In reviewing the factual findings, the appellate court does not reweigh the
evidence or assess the credibility of witnesses. Patterson, 304 Kan. at 274. If the
appellate court affirms the district court's factual findings, the appellate court will then
review the district court's ultimate legal conclusion using a de novo standard. State v.
Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).

In denying Lee's motion to suppress, the district court judge stated:

"So what we have is we have a citizen following a vehicle with a description that matches
the description—well, makes a call to—observes certain driving behavior. The citizen
calls the police. The police arrive on the scene in the exact vicinity. I mean, I think the
citizen was maybe a street over, but he saw the vehicle turn into the street where actually
in this case the defendant's vehicle was situated and so the—and the vehicle was stopped.
I think that's one of the important facts, is that the officer did not, in fact, pull this vehicle
over, the defendant's vehicle.
"The defendant was at the—in the driver's seat of the vehicle that matches the
description of Mr. Cray, Mr. Cray's description. There is no lights and sirens. The car is
not blocked in.
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"The officer approaches the vehicle and inquires of the defendant as to where she
was coming or where she was going. It fits all of the factual situations that the citizen has
reported coming from the direction in which he said he saw this erratic driving behavior.
"There is a detention of sorts, I guess, to find out more information but mainly
because here's the defendant sitting in the driver's seat in some way or another with the
vehicle functioning. I don't think we ever got to whether the engine was running or the
lights were on, but she also has her dog sitting on her lap which would be something that
would alarm an officer if, in fact, that driver was going to drive off and so that's when
everything starts to come together at least in the investigation and then officer—the
second officer arrives and he smells the odor of alcohol, Officer Maxwell, who is
evidently the DUI officer at the time. There is no other vehicles around. I mean, we're not
talking about going through rush hour traffic and somebody trying to pick out one
Mercedes within that neighborhood, that was the only Mercedes in the neighborhood.
"So the Court is going to find that the officer had sufficient articulable suspicion,
that at least some sort of investigation needed to proceed and that as the investigation did
proceed, then he developed sufficient evidence to become reasonably suspicious of a—of
the violations of the law and then developed that even further through the field sobriety
testing, all the other interviews that took place.
"So the Court is going to deny the motion to suppress and consider the evidence
that was presented here at trial."

The parties appear to agree that the encounter between Lee and law enforcement
was an investigatory stop. At issue is whether the officers had reasonable suspicion to
conduct this investigatory stop. A law enforcement officer may stop any person in a
public place based upon specific and articulable facts raising a reasonable suspicion that
the person has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 21, 88
S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Crawford, 275 Kan. 492, 496, 67 P.3d 115
(2003). The Kansas Legislature codified the Fourth Amendment search and seizure
principles expressed in Terry in K.S.A. 22-2402(1). That provision provides that a law
enforcement officer may only perform an investigatory stop if "there is reasonable
suspicion the person [subject to the stop] is committing, has committed, or is about to
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commit a crime." State v. Martinez, 296 Kan. 482, Syl. ¶ 3, 293 P.3d 718 (2013); see
K.S.A. 22-2402(1).

An investigatory stop without reasonable suspicion is illegal. See Terry, 392 U.S.
at 9; Crawford, 275 Kan. at 496-97. If police officers acquire evidence as the result of an
illegal stop, the "fruit of the poisonous tree" doctrine generally bars admission of that
evidence. State v. Poulton, 286 Kan. 1, 5-6, 179 P.3d 1145 (2008). Here, Lee contends
that Officer Woollen did not have reasonable suspicion under K.S.A. 22-2402(1) when he
performed the investigatory stop and that any evidence obtained as a result of the stop
should be suppressed.

Whether an officer had reasonable suspicion to perform an investigatory stop
depends on the totality of the circumstances in the view of a trained law enforcement
officer. Martinez, 296 Kan. at 487. Reasonable suspicion is a lower standard than
probable cause. Under this standard, law enforcement officers may draw inferences based
on their own experiences and training, but an officer may not base his or her reasonable
suspicion solely on a hunch. Navarette v. California, 572 U.S. __, 134 S. Ct. 1683, 1687,
188 L. Ed. 2d 680 (2014). Instead, an officer must base reasonable suspicion on "'a
particularized and objective basis for suspecting the particular person stopped of criminal
activity.'" 134 S. Ct. at 1687. The officer must also be able to articulate the specific facts
that created the officer's reasonable suspicion for the stop. State v. Marx, 289 Kan. 657,
674, 215 P.3d 601 (2009).

In this case, Officer Woollen's articulated reason for making contact with Lee was
Cray's report of an erratic driver in a silver Mercedes. But Lee argues that Cray's tip was
insufficient to provide reasonable suspicion because Cray only gave minimal details
about the car and was unable to identify the gender or race of the driver. Lee also notes
that almost five minutes elapsed prior to the officers' arrival at the scene, during which
time Cray did not have the Mercedes in his sight continuously. By noting this fact, Lee
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seems to suggest that someone else could have entered or exited the car prior to the
officers' arrival. Finally, Lee asserts that she should have been permitted to leave after
Officer Woollen made the initial contact because he did not detect an odor of alcohol and
he observed the dog on her lap, which could have explained the reports of erratic driving.

The reliability of information provided to law enforcement in the form of a tip can
vary greatly. The type of tips that are generally the most reliable are those involving
informants who completely identify themselves and provide specific actionable
information. See State v. Slater, 267 Kan. 694, 700, 986 P.2d 1038 (1999).

"[W]here a motorist calls a law enforcement agency, identifies [himself or] herself, and
gives firsthand information [he or] she is following a car being driven at that very
moment on a public highway in such a manner as to endanger the lives of the caller and
other motorists, there is an adequate showing of the informant's basis of knowledge and
veracity to support reasonable suspicion justifying the stop for further investigation."
State v. Partridge, 29 Kan. App. 2d 887, 891, 33 P.3d 862 (2001).

Cray gave firsthand information to law enforcement that a reckless driver was on a
public roadway. He identified himself and, at the very least, provided information
relating to the vehicle's make, color, and body type and detailed the vehicle's direction of
travel and its final location. Cray stayed at the scene until the police arrived and later
provided an official statement to the police via e-mail. When Officer Woollen arrived at
the reported location, he saw a car matching Cray's description. Thus, Cray's tip provided
a valid basis for Woollen's reasonable suspicion at that point. Upon making contact with
Lee, Woollen found her to be disoriented, slow, and confused about where she was.
Notably, Lee never denied that she had been driving the car. Given that Cray's tip
indicated a possible intoxicated driver, Lee's continued detention for further investigation
was valid and continued to be supported by reasonable suspicion. See Slater, 267 Kan. at
699 ("[D]etermination of whether reasonable suspicion existed under the totality of the
circumstances is affected by the threat a possible drunk driver poses to public safety.").
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Lee's arguments are no more than an invitation to reweigh the evidence, which we
cannot do. See Patterson, 304 Kan. at 274. We find substantial competent evidence
supports the district court's finding of facts and that those facts support the legal
conclusion drawn by the court that the officers had reasonable suspicion to detain Lee.
The district court did not err in denying Lee's motion to suppress.

Preliminary breath test refusal

Next, Lee argues the district court erroneously relied on her refusal to submit to a
PBT as evidence of her guilt for the crime of DUI. Lee contends that without evidence of
her PBT refusal, the evidence was insufficient to support her DUI conviction.

"'When the sufficiency of the evidence is challenged in a criminal case, this court
reviews the evidence in a light most favorable to the State to determine whether a rational
fact-finder could have found the defendant guilty beyond a reasonable doubt.'" State v.
Rosa, 304 Kan. 429, 432-33, 371 P.3d 915 (2016). "'In making a sufficiency
determination, the appellate court does not reweigh evidence, resolve evidentiary
conflicts, or make determinations regarding witness credibility.'" State v. Dunn, 304 Kan.
773, 822, 375 P.3d 332 (2016).

In finding Lee guilty of the charged crimes, the district court stated, in relevant
part:

"[Lee] refused the PBT. The Court could find and would indicate that the case
law certainly allows for the Court to consider the refusal of a PBT as some test of
admission that there may be a reason to refuse that, mainly the person has consumed
alcohol to the extent that they are over the legal limit."

As support for her argument that the district court erroneously relied on her PBT
refusal to find her guilty of DUI, Lee cites this court's opinions in State v. Hardesty, 42
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Kan. App. 2d 431, 437-38, 213 P.3d 745 (2009), and State v. Wahweotten, 36 Kan. App.
2d 568, 575-76, 143 P.3d 58 (2006), where panels of our court held that evidence
regarding a defendant's refusal to submit to a PBT is admissible to prove the traffic
infraction of refusal to submit to a PBT but is not admissible to prove a charge of DUI. In
both of these cases, the panels found that the district court had erred by not giving a
limiting instruction directing the jury to consider evidence of the defendant's PBT refusal
as it related to the charge of refusal to submit to a PBT and to disregard the refusal as it
related to the DUI charge. Nevertheless, the erroneous admission of this evidence did not
affect the trial's outcome in either case because the remaining evidence of guilt on the
DUI charge was overwhelming in both cases. Hardesty, 42 Kan. App. 2d at 438;
Wahweotten, 36 Kan. App. 2d at 577.

Lee argues that, unlike in Hardesty and Wahweotten, the district court's improper
consideration of the PBT refusal affected the outcome of her case because the remaining
evidence of guilt was not overwhelming.

Lee's argument fails for multiple reasons. First, Hardesty and Wahweotten are
distinguishable in that both cases were tried to a jury. Lee's case was heard at a bench
trial before the district court, so we are not concerned with issues relating to improperly
admitted evidence or whether a limiting instruction should have been given. Second, it is
unclear whether the district court actually relied on Lee's PBT refusal in determining her
guilt on the DUI charge. The court never explicitly said that it was relying on this
evidence, only stating, "The Court could find . . . ." (Emphasis added.) In any event, Lee's
PBT refusal was hardly the only evidence referenced by the district court in finding Lee
guilty of DUI. The court also mentioned Lee's erratic and reckless driving, the odor of
alcohol on Lee, Lee's admission to drinking alcohol, Lee's difficulty in maintaining her
balance, Lee's failed field sobriety tests, and Lee's refusal to take the Intoxilyzer breath
test at the police station, which the court was allowed to consider. See K.S.A. 2017 Supp.
8-1001(k)(7). Significantly, the court also reviewed a dash camera video recording of
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Lee's encounter with law enforcement. Throughout the video, Lee appeared to stumble,
collapse, and was unable to keep her balance during the field sobriety tests. When viewed
in a light most favorable to the City, the evidence of Lee's guilt for DUI is overwhelming,
even without considering the PBT refusal.

Judgment of acquittal

After the close of the City's evidence, Lee moved for judgment of acquittal,
arguing that the City was required to introduce into evidence the ordinance that Lee
allegedly violated so that the district court could determine whether the City had proved
the elements of the offense. After hearing argument, the court denied the motion.
Specifically, the judge stated:

"[T]he Court is supposed to presume to know what the law is with regard to the state law
as well as the municipal court law, that's why we have a de novo appeal to the District
Court over municipal court ordinance violations. . . . [I]f this was the district attorney's
office coming in here and prosecuting a case, I don't think the district attorney is required
to present the Court the statutory framework under which the case should be found guilty
or not guilty. So I am thinking the law would be likewise with a municipal appeal that the
Court is presumed to know what the law is, when a case is brought here. . . .
. . . .
". . . I'll find that there is no obligation on the part of the City to present what the
municipal ordinance is, that the Court is presumed to know what the law is. The Court
does know so I'm not going to say that I don't know, and so I'll deny your motion on that
basis."

Lee renewed this argument in her motion for new trial, which the district court denied.

On appeal, Lee makes a different argument. Rather than challenging the City's
failure to introduce the ordinance into evidence, Lee instead argues that the district court
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erred by failing to explicitly take judicial notice of the ordinance, as required by K.S.A.
60-411.

Issues not raised before the district court cannot be raised on appeal. See State v.
Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). "Although exceptions to this general rule
exist, parties seeking to raise an issue for the first time on appeal must assert the
exceptions." State v. Beltz, 305 Kan. 773, 776, 388 P.3d 93 (2017); see Kansas Supreme
Court Rule 6.02(a)(5) (2018 Kan. S. Ct. R. 34). Litigants who fail to comply with this
rule risk a ruling that the issue is improperly briefed, and the issue will be deemed waived
or abandoned. See State v. Godfrey, 301 Kan. 1041, 1043-44, 350 P.3d 1068 (2015);
State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014). Lee does not acknowledge
her failure to raise this argument below or otherwise explain why an exception to the
general rule should apply to justify our review of the issue. Lee's failure to explain why
an exception applies is fatal to her appeal.

But even if this court were to reach the merits of Lee's argument, she is not
entitled to relief. Kansas law recognizes that, without request by a party, a district court
may take judicial notice of "duly enacted ordinances and duly published regulations of
governmental subdivisions or agencies of this state." K.S.A. 60-409(b)(1). Lee's claim of
error is premised on K.S.A. 60-411, which provides: "If a matter judicially noticed is
other than the common law or constitution or public statutes of this state, the judge shall
indicate for the record the matter which is judicially noticed." The district court's remarks
as set forth above clearly reflect that the court took judicial notice of the City's DUI
ordinance. Lee's argument necessarily fails.

Affirmed.