State v. Pangburn

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NOT DESIGNATED FOR PUBLICATION

No. 114,414


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRANDON DEAN PANGBURN,
Appellant.


MEMORANDUM OPINION

Appeal from Barton District Court; RON SVATY, judge. Opinion filed July 1, 2016. Affirmed.

Michael S. Holland II, of Holland and Holland, of Russell, for appellant.

Douglas A. Matthews, county attorney, and Derek Schmidt, attorney general, for appellee.

Before BUSER, P.J., HILL, J., and WALKER, S.J.

Per Curiam: After his conviction of driving under the influence of alcohol,
Brandon Dean Pangburn appealed the district court's denial of his motion to suppress
evidence. He claims that the deputy who initiated the traffic stop did not have reasonable
suspicion to do so, as required by the Fourth Amendment to the United States
Constitution. Because the State showed a reasonable suspicion to justify the stop, we hold
that the district court did not err in denying his motion to suppress. We affirm.

At about 2:35 a.m. on May 27, 2012, Barton County Sheriff's Department Deputy
Travis Doze was on duty in Great Bend. The dispatcher told Doze that there had been a
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"driving complaint" in the part of the county to which he was assigned that night. Doze
drove to the area, which was near Ellinwood, where the driving complaint arose. When
he turned east onto an unpaved road that was approximately 12 to 15 feet wide, he saw a
set of headlights coming toward him, approximately one-tenth of a mile away. The
oncoming vehicle crested a hill and "to avoid a collision," Doze drove into the ditch on
the south side of the road. When later asked how close the other vehicle was to him, Doze
said it was "in the center to my side of the road," stating, "It was not safe for two
vehicles. We could not occupy the same space at the same time." On cross-examination,
Doze acknowledged that the road was not wide enough for both cars; one of them would
have had to pull over to let the other pass. He also agreed that he had not at any point
seen Pangburn speed, leave the roadway, or leave his lane of travel.

Doze drove out of the ditch, turned around, and followed the vehicle, but did not
turn on his emergency lights. He saw the other vehicle stop, turn left onto another road,
and slow down "for no apparent reason." After turning right onto U-56 Highway, Doze
saw the vehicle "weaving within its lane, touching the fog line and then back to the center
line." He followed the vehicle for another 1 1/2 miles, then activated his emergency lights
and stopped the vehicle. In total, Doze followed the vehicle for approximately 4 miles.

Lieutenant Steve Billinger of the Kansas Highway Patrol was also on duty that
night and when he heard on the radio that Doze had stopped a vehicle, he joined Doze at
the stop location. The driver produced a driving license that identified him as Brandon
Pangburn. After Pangburn performed sobriety tests and was arrested, a breath test
indicated a breath alcohol level of 0.161. The State charged him with DUI under K.S.A.
2011 Supp. 8-1567, and Pangburn filed a motion to suppress, arguing that when Doze
stopped him, he did not have reasonable suspicion to believe Pangburn had committed or
was committing a crime or traffic infraction. Pangburn claimed that the stop violated his
constitutional rights and the court should suppress all the evidence obtained after it.

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Doze and Billinger testified at the hearing on the motion to suppress. The State
argued that Pangburn's failure to yield the center of the road or slow down when he
encountered Doze, causing Doze to drive into the ditch, and Pangburn's failure to slow
down after Doze drove into the ditch were because Pangburn "was totally oblivious to
those things that were happening around him." The State argued further that Pangburn's
lack of action to avoid a possible collision "suggests either reckless driving or a failure to
yield to an oncoming vehicle or a failure to maintain [a] lane. Whatever we want to call
it, it suggests someone who has no regard for the rules of the road, and that gives the
officer an articulable suspicion." Thus, the State concluded, the stop was permissible.

In response, Pangburn pointed out that Doze never testified that Pangburn
committed any traffic infraction or that he initiated the stop because of something
inappropriate when the vehicles passed each other on the unpaved road. Pangburn argued
that because the road was too narrow for two cars to pass in opposite directions, one of
the vehicles had to slow down and pull over and that is what happened—not reckless
driving. Moreover, there was no testimony that Doze had a description of the vehicle
involved in the driving complaint, so the stop could not have been caused by the
complaint. Pangburn claimed that the State had failed to show that the stop was
permissible, so the court should suppress the evidence.

The district court judge denied the motion, stating:

"Unfortunately, I'm all too familiar with this kind of scenario out in the country
where the road is not wide enough for two to pass or almost not to pass when you are.
However, the testimony was that the officer saw the car approach in the middle of the
road, and the approaching vehicle was in the same situation obviously that the officer
was, that he would have seen the approaching headlights toward him also, and he did not
do anything. He did not slow down. He did not move. He continued to drive. He didn't—
he just simply passed the officer who had to go into the ditch to avoid a collision. No
matter how you look at this, in this kind of situation, both drivers would slow down and
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at least to make sure that they're not running into the other vehicle, and the defendant did
not do that. When the officer followed him, according to my notes, the testimony was the
driver was driving weaving in the lane, going over the fog—the fog line when then the
vehicle was stopped. So I am going to determine that the officer had sufficient reason to
stop him . . . ."

After this ruling, Pangburn waived his right to a jury trial and agreed to submit the
case to the district court on a stipulation of facts. The district court found Pangburn guilty
of DUI and sentenced him to 12 months in jail with all but 5 hours suspended, 12 months
of supervised probation, and a $1,250 fine.

In his sole issue on appeal, Pangburn claims that the district court erred when it
denied his motion to suppress. By including in the stipulation of facts that he
contemporaneously objected to any evidence that would have been suppressed if the
motion to suppress had been successful, Pangburn preserved this issue for appellate
review. See State v. Hernandez, 294 Kan. 200, 212, 273 P.3d 774 (2012).

Where, as here, the parties do not dispute the material facts underlying the denial
of the motion to suppress, whether to suppress evidence is a question of law subject to de
novo review. City of Atwood v. Pianalto, 301 Kan. 1008, 1012, 350 P.3d 1048 (2015). In
the district court, the State bore the burden to prove by a preponderance of the evidence
that Pangburn's stop was lawful. See State v. Talkington, 301 Kan. 453, 476, 345 P.3d
258 (2015). Pangburn asserts that the State failed to meet this burden.

K.S.A. 8-1566 defines reckless driving as "driv[ing] any vehicle in willful or
wanton disregard for the safety of persons or property." Pangburn's action that forced
Doze to drive into the ditch caused him to form reasonable suspicion that Pangburn was
committing reckless driving.

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This was an early morning encounter on a narrow roadway where Pangburn
clearly would have seen the approaching headlights of Doze's car. He did not slow his car
or take any action to avoid a collision, which forced Doze to drive into the ditch. We
must agree with the district court's conclusions that Doze had a good reason to stop
Pangburn.

Affirmed.