City of Wichita v. Johnson

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NOT DESIGNATED FOR PUBLICATION

No. 113,392

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CITY OF WICHITA,
Appellee,

v.

ROBERT JOHNSON,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DAVID L. DAHL, judge. Opinion filed June 17, 2016.
Affirmed.

Carl F.A. Maughan and Sean M.A. Hatfield, of Maughan Law Group LC, of Wichita, for
appellant.

Jan Jarman, assistant city attorney, for appellee.

Before MALONE, C.J., LEBEN, J., and JOHNSON, S.J.

Per Curiam: Robert E. Johnson appeals his conviction of one count of driving on
a suspended license. The only issue on appeal is whether the district court erred when it
denied Johnson's motion to suppress evidence. Specifically, Johnson argues that the
district court erred in denying his suppression motion because the law enforcement
officer who stopped Johnson's vehicle lacked reasonable suspicion of a traffic violation.
We find that because the officer observed Johnson fail to signal continuously for 100 feet
before turning his vehicle—a violation of a Wichita traffic ordinance—the stop was
proper. Thus, we affirm the district court's judgment.
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On January 23, 2013, at approximately 1 a.m., Officer Ryan Schomaker was on
patrol when he observed Johnson enter a known drug house. Johnson emerged from the
house about 2 minutes later and entered a car parked outside the house. Johnson pulled
away from the curb, drove approximately half a standard city block to an intersection,
and turned left at the intersection. There was some dispute about when Johnson engaged
his turn signal before reaching the intersection. Schomaker testified that Johnson signaled
12 feet prior turning at the intersection. Johnson testified that he activated the turn signal
to pull the car away from the curb, after which the signal automatically disengaged, and
then he reactivated the signal prior to reaching the intersection.

Schomaker stopped Johnson for failure to signal 100 feet before turning, in
violation of Wichita ordinance 11.28.040. After Schomaker approached the vehicle, he
observed Johnson "flick" an item out of the window, which later was identified as a pipe
used for illegal drugs. Schomaker ticketed Johnson for possession of drug paraphernalia
and failure to properly signal a turn. The City of Wichita later discovered that Johnson's
license was suspended at the time of the stop and amended the charge for failure to signal
a turn to driving on a suspended license. Johnson was convicted of possession of drug
paraphernalia and driving on a suspended license in municipal court and appealed his
convictions to the district court.

In district court, Johnson filed a motion to suppress evidence, claiming the stop
was illegal because Johnson did not fail to properly signal his turn. By agreement of the
parties, the district court combined the hearing on the suppression motion with the bench
trial. After hearing testimony, the district court denied the motion to suppress. The district
court found that even if Johnson's turn signal shut off when he pulled away from the curb,
he was still a half block away from the intersection and had the opportunity to properly
signal. The district court found Johnson guilty of driving on a suspended license but
found him not guilty of possession of drug paraphernalia. Johnson timely appealed.

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The only issue on appeal is whether the district court erred in denying Johnson's
motion to suppress. Johnson claims that Schomaker lacked reasonable suspicion to stop
his vehicle and therefore all evidence stemming from the stop must be suppressed. The
City argues that the stop was proper because Schomaker observed Johnson violate a
traffic ordinance by failing to signal within 100 feet prior to turning his vehicle.

An appellate court bifurcates its review of the district court's ruling on a motion to
suppress: the factual findings are reviewed to determine whether they are supported by
substantial competent evidence, and the legal conclusions are reviewed using a de novo
standard. State v. Brittingham, 296 Kan. 597, 601, 294 P.3d 263 (2013). The prosecution
bears the burden of proof to demonstrate that a search or seizure was lawful. K.S.A. 22-
3216(2); State v. Ibarra, 282 Kan. 530, 533, 147 P.3d 842 (2006).

The Fourth Amendment to the United States Constitution guarantees "the right of
the people to be secure in their persons, houses, papers and effects, against unreasonable
searches and seizures." Section 15 of the Kansas Constitution Bill of Rights provides
identical protection. State v. Anderson, 281 Kan. 896, 901, 136 P.3d 406 (2006). Without
making an arrest, a law enforcement officer may stop any person in a public place whom
the officer reasonably suspects is committing, has committed, or is about to commit a
crime. See K.S.A. 22-2402(1); State v. Thomas, 291 Kan. 676, 687, 246 P.3d 678 (2011).
The Kansas Supreme Court has held that if an officer observes a traffic violation, the
officer has reasonable suspicion to justify stopping the driver of that vehicle. See State v.
Coleman, 292 Kan. 813, 818, 257 P.3d 320 (2011) ("A traffic violation provides an
objectively valid reason for conducting a traffic stop.").

Wichita ordinance 11.28.040 requires a driver to signal continuously for 100 feet
before turning his or her vehicle. Johnson does not contend that he complied with the
ordinance. Rather, he argues that there should be an exception for his circumstances,
under which he claims it was impossible for him to signal 100 feet before turning his
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vehicle. Specifically, Johnson claims he was parked on a curb "pretty close" to 100 feet
from an intersection, he engaged his turn signal while pulling away from the curb, his
turn signal automatically shut off after he pulled away from the curb, and then he
reengaged the signal prior to turning at the intersection. Johnson argues that it was
impossible for him to signal continuously for 100 feet before turning; thus, the stop for
failing to comply with the ordinance was illegal.

Johnson's argument is not persuasive. Our Kansas Supreme Court has held that the
failure to signal a turn is an absolute liability offense and, therefore, a motorist may
violate the statute without intending to commit a violation. State v. Greever, 286 Kan.
124, 136-40, 184 P.3d 788 (2008) (interpreting K.S.A. 8-1548, which prohibits the same
conduct as the Wichita ordinance at issue). In Greever, our Supreme Court held:

"The plain language of K.S.A. 8-1548 provides that anyone turning a vehicle
must provide 'an appropriate signal'—namely, a turn signal given continuously for at least
100 feet before the turn. The statute does not provide any exception to this rule, nor does
it indicate that a person must possess a particular criminal intent in order to be found
guilty of the infraction described." 286 Kan. at 138.

Here, Schomaker testified that he observed Johnson fail to signal a turn until 12
feet before making the turn. Based on this testimony, Schomaker was justified in
stopping Johnson for violating the ordinance. But even based on Johnson's version of the
facts, Schomaker had reasonable suspicion for the stop. Johnson acknowledges that he
failed to continuously signal his turn for 100 feet, which constitutes a violation of the
ordinance. The fact that Johnson did not intend for his turn signal to shut off after he
pulled away from the curb does not matter. A violation of the ordinance is a strict liability
offense and does not require a particular criminal intent. Greever, 286 Kan. at 136-40.

Johnson urges this court to follow the dissent in Greever and recognize an
exception when it may be impossible to comply with the ordinance. However, the Court
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of Appeals is duty bound to follow Kansas Supreme Court precedent absent some
indication that the court is departing from its previous position. See State v. Jones, 44
Kan. App. 2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). As there is
no indication that the Kansas Supreme Court intends to depart from Greever, we are
bound to follow that precedent. See State v. Natale, No. 106,426, 2012 WL 3966538
(Kan. App. 2012) (unpublished opinion) (declining to follow Greever dissent where
defendant argued that it was impossible to comply with K.S.A. 8-1548 because of short
distance before he turned at intersection), rev. denied 297 Kan. 1253 (2013).

Based on Greever, Schomaker observed Johnson commit a traffic violation by
failing to signal within 100 feet prior to turning his vehicle. Thus, the traffic stop was
legal and the district court did not err in denying Johnson's motion to suppress.

Affirmed.