State v. Behnken

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NOT DESIGNATED FOR PUBLICATION

No. 113,340

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOHN JACOB BEHNKEN,
Appellant.


MEMORANDUM OPINION

Appeal from Cowley District Court; NICHOLAS M. ST. PETER, judge. Opinion filed April 1, 2016.
Affirmed.

Jennifer Anne Passiglia, of Law Office of Jennifer Passiglia, of Winfield, for appellant.

Christopher E. Smith, county attorney, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., BUSER, J., and HEBERT, S.J.

Per Curiam: John Jacob Behnken appeals from his conviction of driving under the
influence (DUI) after a bench trial on stipulated facts. He argues that the district court
erred by denying his motion to suppress evidence, particularly the results of an
Intoxilyzer breath test.

We find no reversible error and affirm the judgment of the district court.



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Factual and Procedural Background

At about 2 a.m. on February 25, 2014, Officer Phillip Lynch of the Winfield
Police Department stopped a vehicle traveling without using its headlights. Officer Lynch
approached the vehicle and spoke with the driver, subsequently identified as Behnken,
who was the only person in the vehicle. When he told Behnken that he pulled him over
because his headlights were not on, Behnken turned on the windshield wipers in an
apparent attempt to turn on the headlights. Behnken tried to explain his mistake by telling
Officer Lynch that he just got his pickup back.

Officer Lynch smelled alcohol on Behnken's breath and asked Behnken for his
driver's license and insurance information. When Behnken tried to hand his driver's
license to Officer Lynch, he fumbled and dropped it between the seats. After using
Officer Lynch's flashlight to retrieve the driver's license, Officer Lynch returned to his
vehicle, wrote down Behnken's personal information, checked his license, and returned to
Behnken's vehicle. Officer Lynch testified that he suspected Behnken had been drinking
because Behnken slurred his speech, fumbled and dropped his driver's license, turned on
the windshield wipers instead of the headlights, and because he could smell alcohol on
Behnken's breath. Officer Lynch then asked Behnken to perform some standard field
sobriety tests.

After Officer Lynch explained and demonstrated the walk-and-turn test, Behnken
attempted the test. Officer Lynch noted that Behnken was unable to keep his balance
before beginning the test, he missed heel-to-toe on three steps, stepped off the line while
walking, and used his arms for balance. All-in-all, Behnken exhibited four clues of
impairment. Next, Behnken performed the one-leg-stand test, during which he put his
foot back on the ground twice in a 30-second period and used his arms for balance.

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After completing the field sobriety tests, Officer Lynch "explained to [Behnken]
that [he] was going to take him to the Police Department" to have him tested on an
Intoxilyzer 8000. At this point, Officer Lynch did not tell Behnken that he was under
arrest. Behnken rode to the police department in the front seat of Officer Lynch's patrol
car, without his hands cuffed. Once at the station, Behnken submitted a breath sample,
which indicated his blood-alcohol content was .192. After Officer Lynch received the test
results, he told Behnken he was under arrest.

On March 11, 2014, the State charged Behnken with one count each of driving
with a suspended license, driving without headlamps when required, and driving under
the influence of alcohol or drugs. On July 11, 2014, Behnken filed a motion to suppress
all evidence obtained from the traffic stop, including the results of the evidentiary breath
test. In his motion to dismiss, Behnken argued that Officer Lynch's interaction with him
was more akin to a Terry stop than an arrest. To that end, he argued he was not "under
arrest or otherwise taken into custody," which he contended was a prerequisite to a
request for a breath test under K.S.A. 2013 Supp. 8-1001. He also argued that even if the
court found that he was under arrest, Officer Lynch lacked probable cause to make such
an arrest. The State filed a response in which it asserted Behnken was under arrest at the
time he was placed into Officer Lynch's patrol vehicle and that probable cause existed to
justify the arrest.

On July 22, 2014, the district court held an evidentiary hearing on the motion to
suppress, during which only Officer Lynch testified. After direct and cross-examination,
the district court judge examined Officer Lynch. Officer Lynch told the district court
judge that when he transported Behnken to the police department, he was not free to
leave at that point.

Officer Lynch also told the district court judge that not long before this incident,
he had investigated a vehicle accident Behnken had in a Wal-Mart parking lot. Officer
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Lynch testified that Behnken's speech during that prior investigation was "clear and easy
to understand"; but on the night of the traffic stop, Behnken spoke slower than normal
and his words "smeared together."

After hearing closing arguments, the district court denied Behnken's motion to
suppress. It found that a person in Behnken's situation would not believe that he or she
was free to leave. The district court stated that Behnken submitted to Officer Lynch's
show of authority and was under arrest when he was directed to the patrol car. It further
found that Officer Lynch possessed reasonable suspicion to request Behnken take field
sobriety tests and, eventually, probable cause to place him under arrest.

On July 23, 2014, the district court filed a journal entry of its order denying
Behnken's motion to suppress. On December 17, 2014, the parties stipulated to the facts
presented in the suppression hearing for the purposes of a bench trial on the DUI charge.
They also stipulated that (1) on February 25, 2014, Behnken was operating a motor
vehicle at 2:10 a.m. without headlamps; (2) the breath sample submitted indicated a
blood-alcohol content of .192; and (3) Behnken had entered into a previous DUI
diversion in 2012. In exchange, the State agreed to dismiss the remaining counts.

The district court ultimately found Behnken guilty of his second DUI offense and
on February 4, 2015, it imposed an underlying 1-year prison sentence and fine of $1,250.
However, the district court ordered Behnken to serve 5 days in jail and then be released
on probation for 1 year. Behnken thereafter filed a timely notice of appeal.

The District Court Properly Denied Behnken's Motion to Suppress

Behnken's argument on appeal is two-fold. He first argues the evidentiary breath
test should have been suppressed because he was not under arrest at the time he was
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taken to the police department and submitted to the test. He further argues that, even if he
was under arrest at that time, the officer lacked probable cause to arrest him.

In reviewing a district court's decision on a motion to suppress, we apply a
bifurcated standard. We review the district court's factual findings to determine whether
they are supported by substantial competent evidence. Then we review the ultimate legal
conclusion de novo. See State v. Reiss, 299 Kan. 291, 296, 298, 326 P.3d 367 (2014).
Substantial evidence is legal and relevant evidence that a reasonable person could accept
as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d
1260 (2012).

Behnken Was Under Arrest

Behnken's first argument is that he was not "under arrest" when he was placed in a
patrol car to be transported to the police station for the Intoxilyzer test. He would, rather,
characterize his situation as simply a continuation of the investigatory detention and,
thus, insufficient to support the administration of an evidentiary breath test. In Sloop v.
Kansas Dept. of Revenue, 296 Kan. 13, 20, 290 P.3d 555 (2012), our Supreme Court
determined that a request for evidentiary testing under K.S.A. 2008 Supp. 8-
1001(b)(1)(A) must be predicated upon a valid arrest.

An arrest is the taking of a person into custody to answer for a crime. See K.S.A.
22-2202(4). A seizure generally occurs when, pursuant to a show of police authority, a
reasonable person would not feel free to leave or to terminate the encounter and submits
to the show of authority. See State v. Moralez, 297 Kan. 397, Syl. ¶¶ 3-4, 300 P.3d 1090
(2013). That determination is to be made by reviewing the totality of the circumstances in
each case. See State v. Thompson, 284 Kan. 763, Syl. ¶¶ 19-20, 166 P.3d 1015 (2007).

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"Pursuant to K.S.A. 22-2202(4) and K.S.A. 22-2405(1), a person is considered
under arrest by a law enforcement officer when the person is physically restrained or
otherwise deprived of his freedom of action in any significant way or when he or she
submits to the officer's custody for the purpose of answering for the commission of a
crime. See State v. Hill, 281 Kan. 136, 143, 130 P.3d 1 (2006). The test for determining
whether a person was placed under arrest . . . 'is based on what a reasonable person would
believe under the totality of the circumstances surrounding the incident. [Citation
omitted.]' Hill, 281 Kan. at 145." City of Norton v. Wonderly, 38 Kan. App. 2d 797, 804-
05, 172 P.3d 1205 (2007), rev. denied 286 Kan. 1176 (2008).

In the instant case, it is clear Officer Lynch had initiated the encounter/seizure by
a show of police authority. He displayed emergency lights to stop Behnken's vehicle and
subsequently directed Behnken to exit his vehicle in order to perform field sobriety tests.
The record indicates the tests were not merely suggested or optional. Upon completion of
the field sobriety tests, Officer Lynch "explained" to Behnken he was going to take him
to the police department for further tests. Again, there is nothing in the record which
would suggest Behnken was free to refuse the change of location; all indications suggest
compliance was mandatory. These circumstances establish several of the factors
indicative of a coercive environment as set forth in Thompson, 284 Kan. at 811.

Behnken submitted to Officer Lynch's show of authority by riding in the patrol
car—albeit in the front seat and without handcuffs—to the police station where he
submitted to the Intoxilyzer test. Although Officer Lynch did not explicitly tell Behnken
that he was "under arrest," a reasonable person in Behnken's situation would not have felt
free to refuse Officer Lynch's directive or to otherwise terminate the custodial encounter.
Cf. Wonderly, 38 Kan. App. 2d at 805 (defendant effectively under arrest when
transported for further field sobriety tests; however he was in handcuffs). In his brief,
Behnken claims he was under the belief that if he passed the breath test he would be
returned to his vehicle and allowed to go home, but the record does not support this point.
In response to questioning by Behnken's attorney during the suppression hearing, Officer
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Lynch testified that it was not possible he would have told Behnken he could go home if
he passed the evidentiary test.

We find that the totality of the circumstances, based on the substantially
uncontroverted findings of fact made by the district court, leads to the conclusion
Behnken was under arrest at the time he was transported to the police department and
submitted to the evidentiary breath test.

Probable Cause Existed for Behnken's Arrest

We turn to Behnken's next argument that, should we agree with the district court
he was under arrest when taken to the police department, the arrest was not valid because
there was no probable cause at that point upon which to premise an arrest.

We first note that Behnken does not challenge the district court's finding Officer
Lynch had a reasonable suspicion to support the initial stop. Behnken stipulated he was
driving his vehicle at 2:30 a.m. without headlights in violation of K.S.A. 2013 Supp. 8-
1702(a)(1). See State v. Delgado, 36 Kan. App. 2d 653, 655-56, 143 P.3d 681 (2006),
rev. denied 283 Kan. 932 (2007).

While speaking with Behnken about the traffic violation, Officer Lynch noticed
Behnken's breath smelled of alcohol and observed that Behnken had turned on his
windshield wipers instead of his lights and fumbled and dropped his driver's license and
insurance information. Officer Lynch further noted Behnken's speech was slurred and
slower than normal, in contrast to a recent interaction between Officer Lynch and
Behnken. These observations supported a reasonable and articulable suspicion Behnken
was driving under the influence, thereby permitting Officer Lynch to expand the scope of
his investigation.

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Officer Lynch then directed Behnken to exit his vehicle for field sobriety tests. He
observed that Behnken was unable to maintain his balance prior to the walk-and-turn test.
During the test, Behnken missed heel-to-toe on three steps, stepped off the designated
line, and used his arms for balance, thereby exhibiting at least four clues of impairment.
While attempting the one-leg-stand test, Behnken put his foot back to the ground twice
and used his arms for balance. It was at this point that Officer Lynch told Behnken that he
was taking him to the police station.

Probable cause for arrest exists when the facts and circumstances within the
arresting officer's knowledge are sufficient to assure a person of reasonable caution an
offense has been committed or is being committed and the person being arrested is or was
involved in a crime. State v. Hill, 281 Kan. 136, 146, 130 P.3d 1 (2006); see Sloop, 296
Kan. at 21. Each case must be evaluated on the basis of the totality of the circumstances
presented. State v. Ramirez, 278 Kan. 402, 406, 100 P.3d 94 (2004).

Here, we agree with the district court that Officer Lynch made sufficient
observations and conducted sufficient field sobriety testing to support probable cause to
arrest Behnken at the scene for driving under the influence. The arrest was valid, and the
district court properly denied the motion to suppress.

Affirmed.