Laub v. Kansas Dept. of Revenue

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NOT DESIGNATED FOR PUBLICATION

No. 120,982

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JOEL LAUB,
Appellant,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee.


MEMORANDUM OPINION

Appeal from Riley District Court; GRANT D. BANNISTER, judge. Opinion filed November 27,
2019. Affirmed.

John W. Thurston, of Addair Thurston, Chtd., of Manhattan, for appellant.

Ted E. Smith, of Legal Services Bureau, Kansas Department of Revenue, for appellee.

Before HILL, P.J., MALONE and POWELL, JJ.

PER CURIAM: Joel Laub appeals the district court's decision to uphold the
suspension of his driver's license, claiming the officer lacked reasonable suspicion to stop
him. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At 1 a.m. on April 1, 2018, while Officer Brian Dow was on routine traffic patrol
near the Aggieville business district in Manhattan, Dow witnessed Laub turn right from
11th Street onto Bluemont Avenue. As Laub turned, the vehicle's right rear tire drove
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over the curb and up onto the sidewalk. Dow initiated a traffic stop and, after Laub failed
a preliminary breath test, arrested Laub for driving under the influence. Due to Laub's
subsequent evidentiary breath test failure, Dow provided Laub with notice of
administrative procedures to suspend his driver's license. Laub requested an
administrative hearing on his license suspension.

After a hearing, the KDOR hearing officer affirmed the suspension of Laub's
driver's license. Laub then sought judicial review by the district court. The district court
held a de novo hearing in which Dow's testimony was the only evidence presented.
According to Dow, Laub's right rear tire "completely left the roadway up on to the
sidewalk, crosswalk area, and then back down onto the roadway." Dow recognized the
action probably fit a number of different ordinances but could not point to a specific
violation at that time. Dow testified that, in retrospect, Laub's driving would have fallen
under the inattentive driving ordinance as Laub had admitted to Dow that he was
distracted. Dow also indicated that safety was a concern because that area usually has
heavy pedestrian traffic at that time of night.

The district court recognized that time and place were contributing factors to
determining reasonable suspicion and found it was not unusual for Dow not to know the
specific violation but that the activity could violate several different ordinances. The
district court held that—based on Dow's training and understanding of the law—there
was reasonable and articulable suspicion to make the stop.

Laub timely appeals.

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DID THE DISTRICT COURT ERR BY FINDING REASONABLE SUSPICION EXISTED?

On appeal, Laub argues the district court erred when it found reasonable suspicion
existed for Dow to stop him. Laub argues a single curb-check is not enough to constitute
reasonable, articulable suspicion to support a traffic stop.

We review "a district court's decision in a driver's license suspension case to
determine whether it is supported by substantial competent evidence." Swank v. Kansas
Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012). "'Substantial competent
evidence is legal and relevant evidence a reasonable person could accept to support a
conclusion.' . . . [We do] not reweigh the evidence, assess the credibility of witnesses, or
resolve conflicts in evidence." State v. Talkington, 301 Kan. 453, 461, 345 P.3d 258
(2015). If sufficient evidence exists to support the district court's decision, "we do not
consider other evidence that might support a different result." Poteet v. Kansas Dept. of
Revenue, 43 Kan. App. 2d 412, 414, 233 P.3d 286 (2010). Legal conclusions drawn from
the evidence are subject to unlimited review. See State v. Miller, 293 Kan. 535, 547, 264
P.3d 461 (2011). In a driver's license suspension case, the licensee has "the burden to
show that the decision of the agency should be set aside." K.S.A. 2018 Supp. 8-1020(q).

The Fourth Amendment to the United States Constitution requires "'some minimal
level of objective justification'" for an officer to make a stop, and the officer "must be
able to articulate something more than an 'inchoate and unparticularized suspicion or
"hunch."'" United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 104 L. Ed. 2d 1
(1989). Facts are sufficient when articulable and supported by the training and experience
of the officer. State v. Field, 252 Kan. 657, 664, 847 P.2d 1280 (1993). "'What is
reasonable is based on the totality of the circumstances and is viewed in terms as
understood by those versed in the field of law enforcement.'" State v. DeMarco, 263 Kan.
727, 734, 952 P.2d 1276 (1998).

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An officer can initiate a traffic stop based on the reasonable suspicion that a traffic
violation occurred. Rodriquez v. United States, 575 U.S. ___, 135 S. Ct. 1609, 1621, 191
L. Ed. 2d 492 (2015). A law enforcement officer may stop a person in a public place if
the officer reasonably suspects the person "is committing, has committed or is about to
commit a crime." K.S.A. 22-2402(1). "Reasonable suspicion is a lower standard than
probable cause . . . [and] 'represents a "minimum level of objective justification" which is
"considerably less than proof of wrongdoing by a preponderance of the evidence."'" City
of Atwood v. Pianalto, 301 Kan. 1008, 1011, 350 P.3d 1048 (2015). A concern for public
safety is an important factor to consider when analyzing reasonable suspicion. See City of
Dodge City v. Hadley, 262 Kan. 234, 247, 936 P.2d 1347 (1997).

Under Kansas law, a person may not drive a vehicle on a sidewalk or sidewalk
area except when using a permanent driveway or an authorized temporary driveway.
K.S.A. 8-1575. Manhattan Municipal Code §31-18 also prohibits unsafe and inattentive
driving. Laub was driving in the early morning hours in an area with several bars which
was frequently busy with pedestrians at that time of night. When he turned right, Laub's
right rear tire drove over the curb, onto the sidewalk, and across the crosswalk area
before returning to the street. Although nobody was harmed or almost harmed when Laub
drove over the curb, Dow was concerned that pedestrians could be at risk. In light of both
the statute and the city ordinance, Laub's actions gave Dow the reasonable suspicion he
needed to stop Laub's vehicle.

Laub tries to persuade us otherwise by relying on two Kansas Court of Appeals
cases to support his argument that a single curb or fog-line touch will not constitute
reasonable suspicion alone to justify a stop. In State v. Hess, 37 Kan. App. 2d 188, 153
P.3d 557 (2006), Hess was stopped after the officer observed him driving close to the
lane divider lines and the officer believed the vehicle occasionally drove upon or touched
the lines. The officer's justification for the stop was Hess was "'hugging the line.'" 37
Kan. App. 2d at 192. The panel held the traffic stop was not lawful, noting hugging the
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line was not sufficient to support reasonable suspicion and ultimately finding the officer
only had "an unparticularized hunch" that was not objectively reasonable. 37 Kan. App.
2d at 193-94.

Laub also relies on State v. Ross, 37 Kan. App. 2d 126, 149 P.3d 876, rev. denied
284 Kan. 950 (2007), where Ross was stopped after the officer witnessed his car cross
over the fog line once. The panel found K.S.A. 8-1522(a) only required Ross to maintain
his lane "'as nearly as practicable.'" 37 Kan. App. 2d at 129. The panel stated the officer
was not just required to believe that Ross' vehicle moved from his lane of travel, but also
that the vehicle left its lane when it was not safe to do so. 37 Kan. App. 2d at 130.
Because the officer could not point to any facts beyond the tire crossing the fog line once,
the officer did not have reasonable suspicion Ross "mov[ed his] vehicle from its lane of
travel without first ascertaining that it could be done safely." 37 Kan. App. 2d at 131.

But Hess and Ross are distinguishable. Hess approached the lane divider line and
possibly touched it without crossing the line; Ross crossed the fog line once. Neither case
describes Laub's driving. Laub did not approach the curb or touch it with his tire. Instead,
Laub's right rear tire drove over the curb and onto the sidewalk. Laub's actions are more
than the single curb-check that Laub describes in his brief.

Finally, Laub cites to City of Wichita v. Molitor, 301 Kan. 251, 341 P.3d 1275
(2015), to suggest running over a curb does not amount to reasonable suspicion of
intoxication that would warrant a request for a preliminary breath test. But, Molitor did
not challenge the initial justification for the stop; instead, the issue was whether
reasonable suspicion existed to request a preliminary breath test. Here, Laub only
challenges the initial justification for his traffic stop, not whether reasonable suspicion
existed for Dow to request a preliminary breath test.

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Based on Dow's observations, he was able to point to several specific factors that
led him to a reasonable suspicion that Laub had violated traffic ordinances and was
driving inattentively. Under the circumstances of the case, the district court did not err in
finding Dow had reasonable suspicion to stop Laub.

Affirmed.