State v. Flint

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NOT DESIGNATED FOR PUBLICATION

No. 119,847

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LANCE FLINT,
Appellant.

MEMORANDUM OPINION

Appeal from Geary District Court; STEVEN L. HORNBAKER, judge. Opinion filed August 30,
2019. Reversed and sentence vacated.

Paul D. Cramm, of Paul D. Cramm, Chartered, of Overland Park, for appellant.

Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., STANDRIDGE, J., and NEIL B. FOTH, District Judge, assigned.

PER CURIAM: Lance Flint appeals his convictions for possession of marijuana
with intent to distribute and not having a drug tax stamp. Flint challenges the trial court's
denial of his motion to suppress evidence seized during a search of his vehicle on
Interstate 70 in Geary County. The search was incident to a traffic stop for allegedly
failing to legally signal a lane change. The officer took Flint into his patrol car, asked
about his destination and activities, submitted Flint's information to dispatch, called for
backup, and then initiated a dog sniff on Flint's vehicle. The dog alerted to a possible
drug odor, and the subsequent search discovered approximately 40 pounds of marijuana.

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In denying Flint's motion to suppress, the district court found first that the traffic
stop was proper, based on (1) the officer's reasonable belief that he had observed an
illegal lane change and (2) that the questioning and the dog sniff did not impermissibly
extend the scope and duration of the traffic stop.

This case turns on whether the law enforcement officer had an objectively
reasonable suspicion that Flint violated K.S.A. 8-1548. The statute reads:

"(a) No person shall turn a vehicle or move right or left upon a roadway unless
and until such movement can be made with reasonable safety, nor without giving an
appropriate signal in the manner hereinafter provided.
"(b) A signal of intention to turn or move right or left when required shall be
given continuously during not less than the last one hundred (100) feet traveled by the
vehicle before turning." (Emphasis added.) K.S.A. 8-1548.

This court reverses the district court's denial of the motion to suppress. We
conclude that the officer did not have an objectively reasonable suspicion that a traffic
violation had occurred. As such, our recitation of facts, and our analysis, will be limited
to those circumstances. We need not reach the issue of whether the officer impermissibly
extended the scope and duration of the traffic stop.

Factual and Procedural Background

On October 25, 2016, Flint was driving a rental car near mile marker 314, along
eastbound I-70 in Geary County, Kansas. As he approached an on-ramp from right, a
semitruck was merging into his lane. Flint activated his left turn signal, moved to the left
lane, and passed the merging truck.

Officer Nicholas Blake, a Junction City police officer, was driving his patrol car
behind Flint's car, along with his drug dog, Barney, and witnessed the traffic maneuver.
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Officer Blake testified that he saw the car begin to cross into the left lane before the
driver activated his turn signal. He immediately activated the dashcam recording
equipment in his patrol car (preserving the previous minutes) and described what he saw
as an "improper signal." Officer Blake also moved his patrol car into the left lane, passed
the merging truck, and drove behind Flint's car for almost two more minutes before
initiating the traffic stop.

At the pretrial suppression hearing, Officer Blake testified as follows regarding
why he stopped Flint:

"Q. Okay. And can you please describe for the Court what you observed?
"A. I was in the right lane. I observed a black passenger vehicle ahead of me, also in the
right lane. As we approached the on-ramp for exit 313, there was a slower moving semi
that was coming up the on-ramp, which makes a half U-turn. I observed the vehicle in
front of me move lanes from the right to the left. It started its movement and then signal
after the movement started.
. . . .
"Q. And I believe your testimony is that the defendant's vehicle began to change lanes
before he turned on his turn signal?
"A. Correct.
"Q. Okay. Was he—did he cross the center line before he turned on the blinker?
"A. Um, just the start of. So he starts to move his vehicle out of the lane and he hadn't
crossed all the way over, and then the signal came on."

The external dash video capturing Flint's lane change was admitted into evidence
at the suppression hearing, was viewed by the district court, and is part of the record on
appeal. After reviewing the video, Officer Blake testified on cross-examination as
follows:

"Q: All right. Can you stop right there. How—how did you determine at that exact
moment, that my client didn't wait 100 feet before he got into the passing lane?
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"A. Because he started to change lanes before the signal ever came on. So he gave zero
feet of notice before moving his vehicle out of the lane.
"Q. So you saw his turn signal, his left turn signal come on?
"A. It did come on.
"Q. And did it come on while he was in the right or slow lane?
"A. Yes.
"Q. All right. And so he had to go some number of feet, correct, before he turned left? If
the signal is on in his lane, which you just indicated, he had to, then, go some number of
feet before he got into the passing lane?
"A. Before he completely got into the passing lane, yes, I would agree with that.
"Q. All right. And you've done the math on this; correct? Takes about 100 feet at 75 miles
an hour?
"A. Yes. I believe it's 102 at 70.
"Q. Right. But my client wasn't speeding?
"A. He was not.
. . . .
"Q. Would you agree with me that when you look at that video, my client could have
waited 100 feet before he turned left?
"A. Was it possible that he could have done that? Is that [what] you're asking?
"Q. Yes.
"A. Sure, it is."

The district court denied Flint's motion to suppress, ruling that Officer Blake
observed a traffic violation, or at least believed that he did. The totality of the court's
written order denying the motion to suppress on the unlawful seizure issue states:

"K.S.A. 8-1548 provides '(b) A signal of intention to turn or move right or left
when required shall be given continuously not less than the last [100] feet traveled by the
vehicle before turning.' Off[icer] Blake observed the defendant's vehicle begin its lane
change without signaling at least 100 feet before changing lanes. This would violate the
100 foot minimum distance requirements. See State v. Greever, 286 Kan. 124, 183 P.3d
788 (2008). Good Faith Applies To The Erroneous Stopping Of A Vehicle."
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The district court conducted a bench trial after Flint waived his right to a jury.
During the State's presentation of evidence, the district court admitted several exhibits,
over Flint's continued objection, consisting of several items found in the trunk of Flint's
rental car including: a large black suitcase; 1 of 13 total marijuana packages; 1 of 35 total
packages of suspected marijuana; and a KBI lab report identifying packages of suspected
marijuana as containing THC.

The district court found Flint guilty of one count of possession of marijuana with
intent to distribute, a drug severity level 2 nonperson felony, in violation of K.S.A. 2016
Supp. 21-5707; and one count of no drug tax stamp, in violation of K.S.A. 2016 Supp.
79-5204(a) and K.S.A. 79-5208. The trial court found Flint's criminal history score to be
an E and sentenced him to a downward durational departure of 60 months' imprisonment
with 36 months' postrelease supervision.

Analysis

Flint contends that the district court erroneously denied his motion to suppress by
relying on Officer Blake's testimony that he observed a traffic violation. Flint argues that
the dashcam video clearly shows him traveling more than 100 feet with his signal on
before beginning his lane change and therefore there was no objective factual basis for
the stop. The State responds by arguing that the district court did not err because Officer
Blake had a reasonable suspicion that Flint had committed an improper signal violation
and, in the alternative, that if Officer Blake's suspicion was based on any mistakes of fact,
those mistakes were objectively reasonable.

When a defendant moves to suppress evidence, the State bears the burden of
establishing the lawfulness of a warrantless search and seizure. K.S.A. 22-3216(2); see
State v. Gray, 306 Kan. 1287, 1302, 403 P.3d 1220 (2017). In reviewing a trial court's
denial of a motion to suppress evidence, this court determines whether the factual
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findings underlying the trial court's suppression decision are supported by substantial
competent evidence. This court reviews the ultimate legal conclusions drawn from the
trial court's factual findings under a de novo standard. State v. Hanke, 307 Kan. 823, 827,
415 P.3d 966 (2018).

Substantial evidence refers to legal and relevant evidence that a reasonable person
could accept as being adequate to support a conclusion. State v. Talkington, 301 Kan.
453, 461, 345 P.3d 258 (2015). Appellate courts give great deference to a trial court's
factual findings, meaning they do not reweigh the evidence, make credibility
determinations, or resolve conflicting evidence. White v. State, 308 Kan. 491, 504, 421
P.3d 718 (2018).

A traffic stop for a suspected violation of law is a seizure under the Fourth
Amendment to the United States Constitution, so it is subject to the constitutional
requirement of reasonableness. State v. Smith, 286 Kan. 402, 406, 184 P.3d 890 (2008).
To justify this type of seizure, an officer needs only reasonable suspicion, which is "a
particularized and objective basis for suspecting the particular person stopped" of
breaking the law. Navarette v. California, 572 U.S. 393, 396, 134 S. Ct. 1683, 188 L. Ed.
2d 680 (2014). The Fourth Amendment allows searches and seizures based on a mistake
of law or fact, so long as those mistakes are reasonable. Those mistakes must be
objectively reasonable in order to justify an investigatory traffic stop. See Heien v. North
Carolina, 574 U.S. 54, 61, 66, 135 S. Ct. 530, 190 L. Ed. 2d 475 (2014).

Applying the law to the factual questions at hand, this court must decide if there
was substantial competent evidence to support the district court's conclusion that Officer
Blake had a particularized and objective basis for suspecting that Flint had committed a
driving offense, justifying his seizure by traffic stop. Further, if Officer Blake had a
particularized suspicion but seized Flint based on mistake of fact, was that mistake
objectively reasonable?
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It should be noted here that the district court's reliance on Greever is misplaced.
That case does not discuss a good-faith exception but rather reiterates the holdings of
Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 113 L. Ed. 2d 89 (1996),
regarding pretext stops. That is, the motivation for a traffic stop may be different than
citing the driver for the offense observed, but an officer still must articulate facts
demonstrating probable cause to suspect that the accused committed a crime. See
Greever, 286 Kan. at 140-41. Heien makes it clear that an officer's good faith is not
relevant unless his mistaken belief is objectively reasonable. See 574 U.S. at 66. That is,
an officer's mistakes of fact must have an understandable basis. In this case it appears that
the district court did not consider, or at least address, the dashcam video in its ruling. The
court appears to have relied on Officer Blake's stated belief that he observed a violation
and further found that if mistaken, his mistaken belief was in good faith.

While this court does not reweigh evidence or judge the subjective credibility of
witnesses, this case is somewhat rare in that there is video evidence of exactly what
Officer Blake observed. Whether he observed, or reasonably believed he observed, a
traffic infraction is subject to a completely objective measure.

The dashcam video in question is time stamped by the second. It shows Flint's turn
signal blinking twice before he begins to move left. The elapsed time from the first blink
until the car begins to move left is one and a half seconds. The car's left side wheels cross
the centerline on the third blink almost two and a half seconds after the first blink. By
Officer Blake's own calculations (102 feet per second at 70 mph), Flint traveled with his
signal on for approximately 150 feet before beginning to move left. Flint traveled close to
250 feet before any part of his car entered the left lane.

Officer Blake further testified that he knew the statute; that he knew a driver must
signal for less than 100 feet to violate the statute. However Officer Blake also testified
that his interpretation of the statute was that the signal must be on for 100 feet "before he
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got completely into the passing lane." While Officer Blake's interpretation of the statute
may not be correct, his belief highlights how objectively unreasonable his mistake was in
believing Flint committed the offense. By the time Flint was completely into the passing
lane, his signal had been on for five seconds.

Officer Blake's testimony that Flint's car began to move left before its signal came
on is not true. Neither is his testimony that "[Flint] starts to move his vehicle out of the
lane and he hadn't crossed all the way over, and then the signal came on." Flint signaled
for nearly twice the legally required distance before initiating his lane change and nearly
three times the required distance before entering the left-hand lane. No traffic patrol
officer could have reasonably concluded that Flint's lane change was somehow illegal. By
Officer Blake's own calculations he observed Flint's car travel well over the minimum
distance required before moving left or touching the centerline. Officer Blake's mistakes
of fact, whether good faith or otherwise, were not objectively reasonable.

The district court based its denial of the motion to suppress on Officer Blake's
testimony about his observations that day. The district court's misplaced reference to
Greever implies that it knew Blake's observations were factually mistaken but believed
that if the mistakes were made in good faith, the traffic stop was still justified. The
district court did not reference the dashcam video and did not make findings that Officer
Blake's observations, or mistakes of fact, were objectively reasonable. We conclude that
the district court's finding that Officer Blake observed a traffic infraction, or at least had a
good-faith belief that he did, was not supported by substantial competent evidence. Flint's
motion to suppress all evidence seized pursuant to the traffic stop should have been
granted. Since Flint's convictions are predicated on the legality of the stop, Flint's
convictions are reversed and his sentence vacated.