State v. Unrau

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NOT DESIGNATED FOR PUBLICATION

No. 114,234

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

DARCY BENJAMIN FUNK UNRAU,
Appellee.


MEMORANDUM OPINION

Appeal from McPherson District Court; JOHN B. KLENDA, judge. Opinion filed April 15, 2016.
Affirmed.

Jamie L. Karasek, deputy county attorney, and Derek Schmidt, attorney general, for appellant.

J. Matthew Leavitt, of Hulnick, Stang & Gering, P.A., of Wichita, for appellee.

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

Per Curiam: The State appeals the trial court's decision to grant Darcy Benjamin
Funk Unrau's motion to suppress preliminary breath test (PBT) results. On appeal, the
State argues that the trial court erred by granting Unrau's motion for two reasons. First,
the State argues that the trial court misapplied our recently decided Supreme Court case,
City of Wichita v. Molitor, 301 Kan. 251, 341 P.3d 1275 (2015), enroute to its holding.
Second, the State argues that the trial court incorrectly ruled that the police officer lacked
reasonable suspicion to request a PBT. Nevertheless, both of the State's arguments fail.
As a result, we affirm the trial court's suppression of Unrau's PBT results.

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On Saturday, August 23, 2014, at 3:15 a.m., Officer Steve Koch was parked off
the side of the road when a truck sped past him. Using his radar, Officer Koch determined
that the truck was going 85 mph in a 55 mph zone. Officer Koch turned on his patrol car's
emergency lights and followed the truck. Officer Koch would later testify that the truck
did not pull over immediately, which he interpreted to mean that the driver was
"run[ning] from [him]." He would also testify that instead of stopping, the driver made a
wide turn onto a dirt road and then suddenly parked his truck.

After the truck stopped, Officer Koch walked up to the truck and asked the driver,
later identified as Unrau, and his passenger, later identified as Ryan Kaiser, if there was
any legal reason why they were speeding. Unrau responded, "No, not really." When
Officer Koch asked Unrau why he did not pull over immediately, Unrau told Officer
Koch that he was looking for a side road because he thought it would be safer. Then,
Officer Koch asked Unrau for his driver's license and proof of insurance. As Unrau
reached for his wallet in his back pocket, Officer Koch saw that Unrau had a holstered
gun underneath the steering wheel. Officer Koch removed the gun and asked Unrau to get
out of the truck. Unrau followed Officer Koch's instruction while telling Officer Koch
that he had another gun in his truck. After removing the gun in the truck and calling for
backup, Officer Koch let Unrau get back into his truck. Unrau had no difficulties getting
in and out of his truck. Unrau's speech was not slurred.

Next, Officer Koch asked Unrau if he had consumed any alcohol recently. Unrau
told Koch that "[he] had one or two maybe." Officer Koch noticed that Unrau's eyes were
watery, glazed, and bloodshot. Officer Koch smelled an odor of alcohol coming from the
truck but could not determine if the odor was coming from Unrau or Kaiser. When Kaiser
opened the glovebox to retrieve Unrau's proof of insurance, a closed can of beer rolled
out of the glovebox. Officer Koch asked Unrau if he was going to find any more alcohol
in the car, and Unrau said, "There shouldn't be any." Because Unrau's proof of insurance
was not in the first glovebox, Kaiser opened a second glovebox. Two more cans of beer
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rolled out of the second glovebox. One beer can had been opened. After Officer Koch
shined his flashlight into the truck cabin, Officer Koch also found a quarter-full 1.75 liter
bottle of peach margarita behind the driver's seat. When asked about the peach margarita,
Unrau told Officer Koch it had "been back there for a while."

Officer Koch asked Unrau to get out of his truck. After Unrau left his truck and
had been separated from Kaiser, Officer Koch continued to smell the odor of alcohol
coming from Unrau. Officer Koch asked Unrau if he would perform some standardized
field sobriety tests (SFSTs). Unrau agreed to perform the walk-and-turn test and the one-
leg-stand test. Under very windy conditions, Unrau passed both tests, showing zero
indicators of impairment on the walk-and-turn test and the one-leg-stand test. After
Unrau passed the tests, Officer Koch asked Unrau if he would submit to a PBT. Unrau
agreed. Unrau failed the PBT, registering a breath alcohol content of .155. As a result,
Officer Koch placed Unrau under arrest.

The State charged Unrau with one count of driving under the influence while
having an alcohol concentration higher than .08, or in the alternative, one count of
driving under the influence of alcohol to a degree that renders a person incapable of
safely driving. The State additionally charged Unrau with possession of a firearm while
under the influence of alcohol, transporting an open container, and speeding.

Unrau moved to suppress his PBT results, arguing that Officer Koch lacked
reasonable suspicion to request a PBT. Specifically, Unrau argued that "[Officer Koch's]
subjective observations of bloodshot eyes, and odor; combined with objective
observations of speeding, admission and the presence of an open container that had 'been
there a while,' [did] not reach reasonable suspicion when taken in context of the totality
of the circumstances." Unrau argued that his lack of slurred speech, lack of balance
problems, and lack of behavioral problems, along with the fact that he passed both
SFSTs, supported that Officer Koch lacked reasonable suspicion to request a PBT.
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At the suppression hearing, Officer Koch testified about the events leading up to
Unrau's arrest. Through Officer Koch's examination, the State admitted into evidence
Officer Koch's bodycam video and dashcam video of his encounter with Unrau. Both
videos were played up to the point where Officer Koch asked Unrau to submit to a PBT.

After presenting this evidence, the State argued that the trial court should deny
Unrau's motion to suppress because Officer Koch had reasonable suspicion to ask Unrau
to submit to a PBT for the following reasons: (1) Unrau was speeding in the very early
hours of Saturday morning; (2) Unrau was driving erratically; (3) Unrau had bloodshot,
watery, and glazed eyes; (4) Unrau was emitting an odor of alcohol; and (5) Unrau had
open and closed containers within the cabin of his truck. On the other hand, citing our
Supreme Court's decision in Molitor, 301 Kan. 251, Unrau argued that the trial court
should grant his motion to suppress because Officer Koch lacked reasonable suspicion to
request a PBT based on the totality of the circumstances.

In agreeing that he must draw guidance from the Molitor decision in determining
if Officer Koch lacked reasonable suspicion to ask Unrau to submit to a PBT, the trial
judge stated:

"We know through case law that reasonable suspicion is based upon the totality of the
circumstances test . . . . The whole picture is to be taken into account when determining if
there's reasonable suspicion.
"Looking back on the evidence that the court saw, from the State's position
they're arguing there is reasonable suspicion based upon unsafe driving. They're arguing
that the defendant was doing 85 in a 55 at 3:15 in the morning, that he turned too fast,
talked about that he accelerated and used possibly poor judgment. When the officer made
contact with him he tried to find out why he'd pulled off at that location. As I understand
it, he was trying to find a safe place to stop. The officer testified that he observed a strong
odor of alcohol beverage or odor coming initially from the vehicle, later determined that
to be coming from the defendant. He did note bloodshot, watery, glazed eyes. The
defendant admitted drinking, said he had one or two cans of beer . . . . The officer did
5

find open containers in the vehicle, one being a beer can and the other one being the
peach margarita. He said it was one-fourth full. . . .
"Looking at the exculpatory evidence or at least from the defendant's point of
view which was substantiated by the videos, the defendant had really no balance issues.
He had no difficulty getting in and out of the pickup and it appeared to the court this
pickup was a raised vehicle. He had no slurred speech, no mood changes. He was polite
and cooperative and, as noted, he passed the field sobriety tests. There were no clues
indicated. The court, when it saw the defendant make the turn, it did not look as bad as
what I heard from the officer. He did turn and pull off to the side and came to a stop. The
court noted he had no problems getting in and out of the vehicle. Going back and looking
at Molitor . . . . They talk about evidence of unsafe driving can suggest intoxication, but
that alleged lapse of coordination must be viewed in conjunction with what followed.
After stopping the vehicle, Molitor spoke without slurring any words, produced his
identifying documents without difficulty, exited and proceeded from his vehicle without
losing his balance, passed two admissible field sobriety tests. In other words, in the
totality of the circumstances, one could not reasonably suspect that Molitor's balance was
impaired by alcohol to the point of being legally under the influence. It goes on to say
here the subjective observations which might suggest to the officer that Molitor was
illegally intoxicated were offset by the objective indications that he was not. Then it goes
on to state the panel should not have deviated from the criteria and scoring of the field
sobriety tests to glean reasonable suspicion of D.U.I. from a successful completion of the
admissible field sobriety tests.
"The court doesn't necessarily agree with Molitor, but I believe the court has to
follow that.
"So, based upon the evidence and based upon the totality of the circumstances,
the court is going to find that the officer did not have reasonable suspicion to request a
preliminary breath test."

After the trial court granted Unrau's motion to suppress the PBT results, the State
asked the trial court to clarify its ruling. Specifically, the State asked the trial court if it
believed that the precedent set down by Molitor "overrule[d] the precedent set down by
Edgar and Pollman." The trial judge responded,

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"All I'm saying is that looking at the totality of the circumstances, looking at the
evidence presented by the state . . . I'm looking very carefully at the fact that the
defendant had no slurred speech, there was no problems with balance, he'd passed the
field sobriety test which seems to be the gold standard, although I'm also aware that that
by itself is not a reason for an officer not to be able to request a preliminary breath test.
But, just watching the defendant on the video, it did not appear he was under the
influence."

The State timely filed an interlocutory appeal.

Did the Trial Court Err by Suppressing Unrau's Preliminary Breath Test Results?

When reviewing the trial court's ruling on a motion to suppress, an appellate court
uses a bifurcated standard. "The trial court's findings are first reviewed to determine
whether they are supported by substantial competent evidence. Appellate courts do not
reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting
evidence. The ultimate legal conclusion regarding the suppression of evidence is then
reviewed de novo." State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013).

Under K.S.A. 2015 Supp. 8-1012(b),

"[a] law enforcement officer may request a person who is operating or attempting
to operate a vehicle within this state to submit to a preliminary screening test of the
person's breath or saliva, or both, if the officer has reasonable suspicion to believe the
person has been operating or attempting to operate a vehicle while under the influence of
alcohol or drugs or both alcohol and drugs."

"Whether reasonable suspicion exists is a question of law, and appellate courts review
this question with a mixed standard of review, determining whether substantial competent
evidence supports the district court's factual findings, while the legal conclusion is
reviewed de novo." Molitor, 301 Kan. at 264-65. The existence of reasonable suspicion is
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determined by examining the totality of the circumstances. See Molitor, 301 Kan. 251,
Syl. ¶ 3; State v. Edgar, 296 Kan. 513, 525, 294 P.3d 251 (2013); State v. Pollman, 286
Kan. 881, 890, 190 P.3d 234 (2008). The State bears the burden of proof on a motion to
suppress. Martinez, 296 Kan. at 485.

On appeal, the State argues that the trial court erred by granting Unrau's motion to
suppress by attacking the trial court's application of Molitor. The State argues that the
trial court incorrectly "construed Molitor to create a rule that if a suspect exhibits no
slurred speak [sic] or problems with balance and passes field sobriety test[s] then an
officer lacks reasonable suspicion to request a preliminary breath test even if that officer
has made observations indicating the suspect is under the influence." The State also
argues that the trial court incorrectly construed Molitor as overruling our Supreme
Court's holdings in Edgar and Pollman. Finally, the State argues that under the totality of
the circumstances, Officer Koch had reasonable suspicion to request a PBT. The State
contends that the trial court failed to recognize that Officer Koch had a "minimum level
of objective justification" necessary to request that Unrau submit to a PBT because: (1)
Officer Koch witnessed Unrau driving unsafely; (2) Officer Koch smelled a strong odor
of alcohol coming from Unrau; (3) Officer Koch observed that Unrau's eyes were watery,
glazed, and bloodshot; (4) Officer Koch discovered both open and closed containers
inside the truck cabin despite Unrau's assurance that there was only one closed beer can
inside the truck; and (5) Unrau admitted to drinking earlier in the evening. Based on those
arguments, the State requests that this court reverse the trial court's order suppressing
Unrau's PBT results.

First, the State's contention hinges on a supposed distorted reading of Molitor by
the trial court. For example: The trial court incorrectly construed Molitor to hold that
officers lack reasonable suspicion to request a PBT if drivers do not have slurred speech,
do not have balance problems, and have passed SFSTs. The State, however, takes a
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myopic view of the trial court's reading of Molitor. All things considered, the facts in this
case are very similar to the facts in Molitor.

In Molitor, our Supreme Court held that in determining whether an officer had
reasonable suspicion to request a driver to submit to a PBT, the court must consider the
totality of the circumstances, including inculpatory and exculpatory evidence. See 301
Kan. 251, Syl. ¶ 3. Under a totality of the circumstances test, no one fact automatically
results in an officer lacking reasonable suspicion to request a PBT. Consequently, if the
trial court granted Unrau's motion because it believed that Molitor automatically requires
suppression of PBT results when the driver's speech and ability to balance are not
impaired and that driver passed SFSTs, the trial court would have undoubtedly erred.

Yet, the trial court did not construe Molitor in this manner. In granting Unrau's
motion to suppress, the State fails to take into account that the trial judge stated that he
was considering whether Officer Koch had reasonable suspicion to request a PBT under
the totality of the circumstances. Then, the trial court considered both the inculpatory and
exculpatory evidence presented. Next, the trial court explained the Molitor decision. Last,
the trial court determined that it must grant Unrau's motion to suppress because the
evidence as a whole did not indicate that Unrau was driving under the influence. None of
the trial judge's statements support the position that he believed the Molitor decision
required him to suppress the PBT results. In fact, when the State asked for clarification
on the trial judge's ruling, the trial judge told the State that he was aware that no single
fact automatically meant that Officer Koch lacked reasonable suspicion to request a PBT.
Consequently, the State's assertion that the trial court incorrectly misconstrued Molitor is
out of step with the record.

Second, the trial judge never stated that the Molitor decision overruled the
standards set out in the Edgar and Pollman decisions, as the State suggests in its brief.
Moreover, the Molitor court did not overrule the holdings of Edgar and Pollman. See
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Molitor, 301 Kan. at 265, 268 (where our Supreme Court relies on Edgar and Pollman to
support its decision). When the State asked the trial judge to clarify its ruling, the State
asked the trial judge if he was implying that Molitor overruled Edgar and Pollman. The
trial judge rebuffed this question by emphasizing that he was grounding his ruling—that
Officer Koch lacked reasonable suspicion to request a PBT—based on the totality of the
circumstances. Therefore, the State has mischaracterized the trial judge's statements.

Third, the State has failed to establish that the trial court erred by ruling that
Officer Koch lacked reasonable suspicion to request a PBT. In making its decision, the
trial court relied heavily on our Supreme Court's decision in Molitor. Because the trial
court relied on Molitor, it is necessary to review Molitor before addressing the trial
court's ruling.

In Molitor, a police officer requested that Molitor submit to a PBT based on the
following factors: (1) that Molitor failed to use a turn signal in the late evening; (2) that
Molitor struck the curb while parking his car; (3) that Molitor told the officer that he had
consumed two or three beers; (4) that the officer noticed that Molitor's eyes were watery
and bloodshot; and (5) that the officer noticed that Molitor smelled of alcohol. Molitor
moved to suppress his PBT results because he believed the officer did not have
reasonable suspicion to request a PBT given (1) that he passed the walk-and-turn test and
(2) that he passed the one-leg-stand test. Other exculpatory evidence suggesting Molitor
was not illegally driving while intoxicated included the following: (3) that he spoke
without slurring his speech, (4) that he got his identifying documents without difficulty,
and (5) that he had good balance. The trial court denied Molitor's motion. On appeal, the
Court of Appeals affirmed, but our Supreme Court granted a petition for review and
reversed. Molitor, 301 Kan. at 252.

Leading to its holding in Molitor, our Supreme Court emphasized that a reviewing
court must not assess each piece of evidence in isolation. Instead, a reviewing court must
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look at both the inculpatory and exculpatory evidence together in determining whether
reasonable suspicion exists under the totality of the circumstances. Indeed, the Molitor
court declared: "The determination that reasonable suspicion existed obtains only after
the interaction of all factors is assessed." Molitor, 301 Kan. at 266.

Moreover, regarding the relative strength of factors indicating that a driver is
illegally intoxicated, the Molitor court explained that "an officer's sensory perceptions,
such as the strength of the alcohol odor or the condition of the driver's eyes, are subject to
an imprecise personal opinion." 301 Kan. at 267. The Molitor court continued: "[T]hat
subjective assessment [of the officer] might be influenced by the subsequent discovery
that the driver failed the PBT." 301 Kan. at 267. On the other hand, the Molitor court
pointed out that the SFSTs were developed to "provide an objective assessment as to the
probability that the driver's alcohol concentration was at an unlawful level." Molitor, 301
Kan. at 267.

Based on the preceding analysis, the Molitor court determined that although
Molitor hit the curb as he pulled over, "under the totality of circumstances, one could not
reasonably suspect that Molitor's balance was impaired by alcohol to the point of being
legally under the influence of alcohol" because "Molitor spoke without slurring his
words, produced his identifying documents without difficulty, exited and proceeded from
his vehicle without losing his balance, and, most importantly, passed the two admissible
SFSTs." 301 Kan. at 268. The Molitor court further held that any subjective observations
by the officer suggesting that "Molitor was illegally intoxicated were offset by the
objective indications that he was not." 301 Kan. at 268.

Returning to the facts of this case, we note that Unrau told Officer Koch that he
had consumed maybe one or two drinks. Unrau's admission could be considered
exculpatory evidence because, as the Molitor majority aptly observed: whether one or
two drinks would raise Unrau's alcohol concentration in his breath or blood past the legal
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limit is questionable. See Molitor, 301 Kan. at 267. Moreover, substantial competent
evidence supports the trial court's finding that Unrau was not driving erratically.

For example, the trial judge watched Officer Koch's bodycam and dashcam
videos, in which he observed Unrau's driving and heard Unrau tell Officer Koch that he
did not stop immediately because he thought it would be safer to park on a side road.
After watching those videos, the trial judge stated: "When [I] saw [Unrau] make the turn,
it did not look as bad as what I heard from the officer. [Unrau] did turn and pull off to the
side and came to a stop." The trial judge stated that as he understood it, Unrau "was
trying to find a safe place to stop." An appellate court cannot determine the credibility of
witnesses or weigh conflicting evidence. State v. Brooks, 297 Kan. 945, 951, 305 P.3d
634 (2013). Because we cannot second guess the credibility finding of the trial court and
we cannot reweigh evidence or resolve conflicting evidence, this court must accept the
trial judge's findings that Unrau was not driving erratically and that Unrau did not stop
immediately because he was concerned about safety. See Brooks, 297 Kan. at 951.

Relying on Officer Koch's statements, the dissent emphasizes that this case is
distinguishable from Molitor based on Unrau's erratic driving. Whether Unrau was
driving his vehicle to such a degree as would indicate that he was an impaired driver,
however, presents a pure question of fact. An answer to such question depends upon an
evaluation of testimony presented at the trial, which itself often revolves around the
credibility of the witnesses. Thus, in reaching its conclusion that Molitor is
distinguishable the dissent necessarily reweighs the trial court's factual findings regarding
Unrau's driving.

Nevertheless, the dissent attempts to question the majority's argument that the
dissent is reweighing evidence and reassessing the trial judge's credibility determinations
by arguing that the majority has misinterpreted the trial judge's factual findings in two
ways. First, the dissent asserts that the majority has incorrectly determined that the trial
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judge made a finding that Unrau was not driving erratically because the trial judge's
statement that Unrau's driving "did not look as bad as [it] heard from the officer" was
limited to Unrau's turn. Although the trial judge made this comment in respect to Unrau's
turn, the dissent's interpretation of this evidence takes a myopic view of the trial judge's
factual findings. The trial judge's statement clearly spoke to whether he believed Unrau
was driving erratically and therefore DUI. Moreover, the fact the trial judge explicitly
noted that the State presented evidence that Unrau turned too fast, accelerated, and "used
possibly poor judgment," yet ultimately found that the videos showed that Unrau did not
appear to be under the influence further supports this conclusion.

Next, the dissent asserts that the majority has incorrectly determined that Officer
Koch's testimony was not credible. The dissent concludes that it is apparent that the trial
judge must have found Officer Koch's testimony "credible . . . with regard to all of the
evidence presented" because he "was the only source of all the evidence" and nothing in
the record suggests that the trial judge discounted Officer Koch's credibility. Slip op. at
19. Nevertheless, in making this argument, the dissent is unwilling to acknowledge
several pertinent facts.

First, the trial judge watched Officer Koch's bodycam and dashcam videos in
addition to hearing Officer Koch's testimony. Thus, Officer Koch was not the only source
of all the evidence presented at the hearing. Second, and more importantly, based upon
the bodycam and dashcam videos, the trial judge was able to gauge the accuracy of
Officer Koch's testimony and to observe Officer Koch's demeanor to determine if he was
exaggerating. The trial judge explicitly told the State that it had reached its ruling because
after "watching [Unrau] on the video, it did not appear he was under the influence."
Moreover, it is clear that the trial judge disagreed with Officer Koch's testimony
regarding Unrau's driving and regarding Officer Koch's belief that Unrau was trying to
"run from [him]" based on the videos. Accordingly, despite the dissent's contention to the
contrary, it is readily apparent that the trial judge discounted some of Officer Koch's
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testimony. Third, it is important to point out that we do not hold as the dissent asserts that
the trial judge made a finding that none of Officer Koch's testimony was credible.
Instead, we hold that the trial court specifically discredited Officer Koch's testimony
regarding the erratic driving based on the preceding factual findings.

To summarize, the dissent ignores the fact that the trial judge watched Officer
Koch's bodycam and dashcam videos and found that Unrau's "turn . . . did not look as bad
as what [he] heard from the officer." The dissent further ignores the fact that the trial
judge further found that Unrau continued to drive after Officer Koch turned on his
emergency lights because he "was trying to find a safe place to stop." Given the trial
judge's findings, it is clear that the trial judge believed that Officer Koch was
exaggerating the extent or the degree of Unrau's unsafe driving. In other words, the trial
court made a credibility finding. Obviously, the dissent cannot second-guess the
credibility finding of the trial judge. Because this is what the dissent is asking us to do,
the dissent's argument is unconvincing.

As a result, the evidence supporting the existence of reasonable suspicion to
request a PBT is Unrau's traffic violation in early morning hours, Unrau's bloodshot,
watery, and glazed eyes, Unrau's odor of alcohol, Unrau's statement that there should be
only one closed can of beer in the truck, and the presence of multiple open and closed
containers in the truck. By contrast, the evidence supporting the lack of reasonable
suspicion to request a PBT is Unrau's statement that he had only had one or two drinks,
Unrau's lack of slurred speech, Unrau's lack of balance problems, Unrau's polite and
normal demeanor, and Unrau's passing scores on both the walk-and-turn and the one-leg-
stand tests under very windy conditions.

Thus, the only differences between the inculpatory evidence in this case and in
Molitor is that in this case, Unrau told Officer Koch that he believed there was only one
closed container of beer when there were actually multiple closed and open containers in
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his truck. Although the trial court did not watch this part of Officer Koch's bodycam
video, it is worth noting that Kaiser, Unrau's passenger, ultimately admitted that the open
beer can in the second glovebox was his beer, not Unrau's beer. Kaiser also received a
ticket for having an open container and drinking in the car. Regardless, more exculpatory
evidence exists in Unrau's case than in Molitor. First, unlike in Molitor, the trial judge
pointed out that Unrau had a polite and normal demeanor. Second, Unrau showed zero
indicators of impairment on the walk-and-turn and the one-leg-stand tests while Molitor
showed one indicator of impairment on both tests. Third, Unrau stated that he had
consumed maybe one or two drinks, while Molitor stated that he had consumed two or
three drinks. Clearly, the factual similarities between Molitor and Unrau's case, along
with the fact that more exculpatory evidence exists in Unrau's case, supports the trial
court's decision to suppress the PBT results.

Furthermore, as the trial judge noted in his findings, in Molitor, our Supreme
Court emphasized the importance of the objective results of SFSTs compared to the
subjective observations of an officer that might indicate a driver is illegally intoxicated.
Although Officer Koch is an experienced police officer, no matter how much training an
officer has, that "officer's sensory perceptions . . . are subject to an imprecise personal
opinion." Molitor, 301 Kan. at 267. Meanwhile, SFSTs are scientific and above such
subjective imprecision. See Molitor, 301 Kan. at 267. Thus, the fact Officer Koch
believed Unrau's watery, bloodshot, and glazed eyes and odor of alcohol indicated he had
been drinking is offset by Unrau's passing standardized field sobriety scores.
Additionally, while evidence of the traffic infraction and open and closed containers in
Unrau's truck certainly can suggest intoxication, considering that Unrau did not have
slurred speech, did not have balance issues, did not have mood issues, and passed his
SFSTs, the trial court properly ruled that Officer Koch could not reasonably suspect that
Unrau was illegally intoxicated.

15

The dissent counters that in comparing Unrau's case to Molitor, the majority has
not properly considered the presence of open and closed containers in Unrau's car despite
his statement to the contrary. The dissent notes that the presence of open containers
inside a car cabin is not only a crime under K.S.A. 2015 Supp. 8-1599 but also indicative
of recent consumption of alcohol. In making this argument, however, the dissent ignores
that courts must consider whether reasonable suspicion exists based on the totality of the
circumstances. The presence of open containers is one factor in determining if an officer
has reasonable suspicion to request a breath test.

Indeed, this court cannot ignore exculpatory evidence simply because one factor
tends to support that a driver was DUI. Instead, this court must consider all the evidence
before it, both inculpatory and exculpatory, to determine if an officer had reasonable
suspicion under the totality of the circumstances. Molitor, 301 Kan. 251, Syl. ¶ 3. Here,
the dissent has disregarded this rule, focusing solely on the fact Unrau had open and
closed containers in his car despite his statement to the contrary. Nevertheless, as
previously detailed, a review of all the evidence under the totality of the circumstances
reveals: (1) that there were even more factors in this case supporting that the police
lacked reasonable suspicion to request a PBT than in Molitor; and (2) the factors
indicating Unrau was not DUI outweighed the factors indicating Unrau was DUI for
reasonable suspicion purposes. Thus, because the dissent wants to substitute its judgment
on the facts for that of the trial judge, the dissent's argument is unpersuasive.

As a final note, it seems that the State recognizes that it cannot succeed on appeal
given the Molitor decision. In its brief, the State asserts that "[t]he Molitor majority was
wrong." The State asks this court to follow the Molitor dissent and "the precedent and
standards outlined in Edgar and Pollman." Nevertheless, unless there is some indication
that our Supreme Court is departing from its previous position, this court is duty bound to
follow our Supreme Court precedent. State v. Belone, 51 Kan. App. 2d 179, 211, 343
P.3d 128, rev. denied 302 Kan. ___ (2015). Furthermore, despite the fact the Molitor
16

court was split, as of now, there is no indication that our Supreme Court is departing from
its positions in Molitor. Consequently, the State's argument fails.

Affirmed.

* * *

* * *
BUSER, J., dissenting: Upon my de novo review, I would find the district court
erred in its legal conclusion that Deputy Koch did not have reasonable suspicion to
believe that Unrau was driving his vehicle while under the influence of alcohol (DUI).

INTRODUCTION

As set out verbatim in the majority opinion, the district court anchored its legal
conclusion that Deputy Koch did not have reasonable suspicion to request the PBT based
on our Supreme Court's opinion in City of Wichita v. Molitor, 301 Kan. 251, 341 P.3d
1275 (2015). In particular, the district court compared the factors indicating and negating
intoxication found in Molitor with the factors present in the case on appeal. Finding those
factors to be equivalent, the district court reached the legal conclusion that, like Molitor,
the PBT evidence should be suppressed in this case. Similarly, my colleagues conclude:
"All things considered, the facts in this case are very similar to the facts in Molitor." Slip
op. at 8.

I strongly disagree that the facts in Molitor are very similar to the facts of the
present case. Although some incriminating and exculpatory facts in the two cases share
similarities, two important factors in this case—indicative of an intoxicated driver—were
not present in Molitor. As a result, I would find the district court misapplied Molitor's
precedent which resulted in the erroneous legal conclusion that Deputy Koch did not
17

have reasonable suspicion that Unrau was DUI. I will address the two factors
individually.

UNSAFE DRIVING

In Molitor, the driver was stopped for making a turn without using a turn signal,
although the majority emphasized that "the officer noted that Molitor had made a
complete stop at the sign, had turned appropriately into the correct traffic lane, and had
driven straight down the street." 301 Kan. at 252. Moreover, there was no suggestion that
Molitor did not promptly stop his vehicle in response to the officer's signal to stop. In
making the stop it was also noted that Molitor "ran into or onto the curb." 301 Kan. at
268. In short, there was evidence that Molitor drove as any ordinary, unimpaired driver
would operate a vehicle with no evidence of unsafe driving.

In the present case, the district court characterized "the State's position" as
"reasonable suspicion based upon unsafe driving" which the court described as "the
defendant was doing 85 in a 55 at 3:15 in the morning, that he turned too fast, talked
about that he accelerated and used possibly poor judgment." But the evidence presented
at the suppression hearing was more serious and more extensive than as briefly
summarized by the district court.

According to Deputy Koch, radar indicated that Unrau was excessively speeding
30 miles an hour over the posted 55 mph speed limit in nighttime conditions. Before
Unrau's vehicle sped past Deputy Koch's vehicle located alongside the road, Unrau
braked and as he passed the deputy he began slowing down. But upon Deputy Koch
activating his emergency lights, flashing his headlights, and pursuing Unrau, the deputy
observed Unrau's vehicle "actually began to speed up as it got near Pawnee Road and
continued southbound from there. When I say speed up, that's—it slowed down to
approximately 55 miles an hour and it began to speed up from that again."
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Based on this unusual driving behavior, Deputy Koch surmised the driver was
"probably someone that was going to run from me." As a result, the deputy activated his
siren and called in his location in anticipation of a pursuit. Unrau traveled a short
distance, turned onto Pathfinder Lane, and accelerated again which caused his vehicle's
rear end to slide "slightly out from underneath him." According to Deputy Koch, "I
thought he was trying to take off on me again. At that point I called out on the radio I was
involved in a chase. Just shortly after calling that out, [Unrau] stopped and pulled over on
the right side of the road there." According to the deputy, "[i]t was unexpected. I thought
he was running and he just suddenly just stopped right there." Deputy Koch testified that
Unrau's driving was "unusual." In his experience, "[n]ormally when you make a traffic
stop, someone—they either just go or they just stop. Rarely do they slow down and speed
up like he had been doing."

Deputy Koch is a law enforcement officer with 8 years' experience as a deputy
sheriff for McPherson County. He testified to completing DUI training at the Kansas Law
Enforcement Training Center in 2005 and having refresher courses in 2007 and 2012.
This training included certification in standardized field sobriety testing.

Deputy Koch testified that, based on his training, factors indicating an impaired
driver include "speed sometimes can be a concern, whether too fast or too slow;
inappropriate braking; [and] reaction to emergency equipment." The deputy's concern
about Unrau's strange driving was corroborated by the fact that just before he exited his
patrol vehicle to approach Unrau's stopped vehicle, Deputy Koch is heard saying to
himself, "What is your deal, dude?" Then, as the deputy cautiously approached Unrau's
vehicle he can be seen with his hand on his holstered service weapon.

My colleagues state that the trial court made a finding "that Unrau was not driving
erratically." Slip op. at 11. On the contrary, I cannot find anywhere in the record where
the district court made such a finding. While the district court commented that Unrau's
19

turn onto Pathfinder Lane at the end of the pursuit "did not look as bad as I heard from
the officer," there is no hint the district court rejected (or even questioned) the numerous
uncontroverted facts testified to by Deputy Koch that proved Unrau's unsafe driving
leading up to the turn. These undisputed facts included speeding 85 miles per hour in a 55
miles per hour zone in the nighttime, suddenly braking at high speed, decreasing his
vehicle's speed from 85 miles per hour to 55 miles per hour then accelerating upon
Deputy Koch's activation of emergency lights and flashing headlights, and only yielding
to Deputy Koch's pursuit upon the activation of the police vehicle's siren. These
uncontroverted facts of unsafe driving—regardless of whether the turn onto Pathfinder
Lane at the end of the pursuit caused the rear end of Unrau's vehicle to slide "slightly out
from underneath [Unrau]" as testified to by Deputy Koch—were important evidence of
unsafe driving that, from the record, the district court accepted as being truthful
testimony.

The majority also states the district court made a finding that Deputy Koch's
testimony was not credible. I disagree. Once again, I find nothing in the record to suggest
the district court discounted Deputy Koch's credibility. On the contrary, the district court
analyzed all the evidence "from the State's position" and compared and contrasted it by
"looking at the exculpatory evidence or at least from the defendant's point of view." Of
course, Unrau did not testify. As a result, Deputy Koch was the only source of all the
evidence—both incriminating and exculpatory—presented at the suppression hearing
regarding whether the deputy had a reasonable belief that Unrau was DUI. In short, it is
apparent the district court considered Deputy Koch to be a credible witness with regard to
all of the evidence presented. Taking all of the evidence as true, the district court then
considered the evidence from the differing perspectives of the State and Unrau in
reaching its legal conclusion.

Although the majority in Molitor did not make a finding of unsafe driving in that
case, it did observe: "Obviously, evidence of unsafe driving can suggest intoxication."
20

301 Kan. at 268. There is no equivalence, however, between Molitor's driving behavior—
which was ordinary and uneventful—and Unrau's patently unsafe driving. This unusual
driving behavior, which Deputy Koch believed was an attempt to elude him, was not only
unsafe but also indicative of an impaired driver.

OPEN AND CLOSED CONTAINERS OF ALCOHOL IN THE VEHICLE

In Molitor, there was no evidence of any open or closed containers of alcohol in
the vehicle at the time of the stop. There was also no evidence that Molitor, when
specifically asked, lied to the officer about having alcohol in the vehicle.

In the present case, however, the district court determined, "[t]he officer did find
open containers in the vehicle, one being a beer can and the other one being the peach
margarita. He said it was one-fourth full." Evidence at the suppression hearing was more
incriminating of DUI than as mentioned by the district court.

When Unrau's passenger opened the top glove box to search for proof of insurance
for the vehicle, Deputy Koch observed an unopened Coors Light beer can. When the
deputy asked Unrau if there was any other alcohol in the vehicle, Unrau "said that should
be the only one, while pointing to that can." When the second glove box was opened,
however, two more beer cans were found, one "completely full and unopened and the
other was opened and partial." Additionally, directly behind Unrau's seat was a 1.75 liter
bottle of peach margarita about a one quarter full.

It is an understatement to observe that the presence of open and closed containers
of alcohol in the passenger compartment of a vehicle within reach of the driver is not
only a violation of Kansas law, but it is indicative of recent consumption of alcohol in the
vehicle. Given Deputy Koch's plain view observation of the open containers within reach
of Unrau, the deputy issued him a citation for transportation of an open container of
21

alcohol, in violation of K.S.A. 2015 Supp. 8-1599. Moreover, Unrau's false statement to
Deputy Koch about more alcohol not being in the vehicle certainly suggests his
knowledge of wrongdoing involving consumption of alcohol while in a motor vehicle. It
also suggests that other statements made by Unrau in response to the deputy's questions
may have been less than truthful.

CONCLUSION

Well-settled Kansas law provides: "Reasonable suspicion is a less demanding
standard than probable cause and requires considerably less than a preponderance of the
evidence." State v. Edgar, 296 Kan. 513, 521, 294 P.3d 251 (2013) (citing State v.
Pollman, 286 Kan. 881, Syl. ¶ 6, 190 P.3d 234 [2008]). Our Supreme Court has defined
reasonable suspicion as

"'"a particularized and objective basis for suspecting the person stopped is involved in
criminal activity. Something more than an unparticularized suspicion or hunch must be
articulated. Reasonable suspicion can arise from information that is less reliable than that
required to show probable cause. Both reasonable suspicion and probable cause are
dependent upon the content of information possessed by the detaining authority and the
information's degree of reliability. Quantity and quality are considered in the totality of
circumstances—the whole picture that must be taken into account when evaluating
whether there is reasonable suspicion."' [Citations omitted.]" 296 Kan. at 521.

Our Supreme Court has also instructed that courts should review reasonable
suspicion determinations by considering the totality of the circumstances from the point
of view of a reasonable law enforcement officer. In other words, courts determine
"whether reasonable suspicion exists 'with deference to a trained law enforcement
officer's ability to distinguish innocent and suspicious circumstances [citation omitted],
remembering that reasonable suspicion represents a "minimum level of objective
justification" which is "considerably less than proof of wrongdoing by a preponderance
22

of the evidence."'" State v. Morlock, 289 Kan. 980, 995, 218 P.3d 801 (2009) (quoting
State v. Moore, 283 Kan. 344, 354, 154 P.3d 1 [2007]).

As discussed above, the facts indicating that Unrau was DUI were more serious
and more prevalent than those exhibited in Molitor. Based on the district court's
statements suppressing the incriminating results, it appears the district court may have
placed an over-emphasis on Unrau's successful performance on the two field sobriety
tests. But Molitor does not stand for the proposition that the successful completion of
field sobriety tests necessarily dissipates an officer's reasonable suspicion of intoxication.
See Edgar, 296 Kan. at 524 (citing cases holding reasonable suspicion was not dispelled
by the driver's perfect or adequate performance on field sobriety tests). As the facts in
this case prove, an intoxicated driver with a PBT result almost twice the legal limit may
have normal coordination and balance but still exhibit diminished mental acuity leading
to poor decision making and unsafe driving.

After a careful evaluation of the totality of circumstances shown by the
uncontroverted evidence considered by the district court, I would hold as a matter of law
that the district court erred in its legal conclusion that Deputy Koch did not have
reasonable suspicion to believe that Unrau was driving while DUI. Accordingly, I would
reverse the district court's suppression of the PBT results and remand for further
proceedings.