Appeal from Brown District Court; JAMES A. PATTON, judge.
1. Crimes are classified as felonies, misdemeanors, traffic infractions, and cigarette or tobacco infractions. Some violations of the Uniform Act Regulating Traffic do constitute misdemeanors, such as reckless driving, driving under the influence, and fleeing or attempting to elude. However, improperly crossing the center line in violation of K.S.A. 8-1514 is a traffic infraction which is neither a felony nor a misdemeanor. Thus, a defendant cannot be charged under K.S.A. 21-3808 with obstructing officers in their official duty of conducting a stop for such a traffic infraction.
2. When the facts material to a suppression motion are not in dispute, whether to suppress the evidence becomes a question of law over which an appellate court has unlimited review.
3. A traffic violation, even if pretextual, provides an objectively valid reason to effect a traffic stop. Once the driver is stopped, the officer is entitled to request a driver's license and vehicle registration and to run a computer check.
4. The use of a narcotics dog to sniff the exterior of a vehicle did not constitute a search for Fourth Amendment purposes.
The opinion of the court was delivered by: McANANY, J.
Affirmed in part and reversed in part.
Before HILL, P.J., McANANY, J., and BRAZIL, S.J.
Sheriff's deputies posted signs for southbound traffic on U.S. Highway 75 in Brown County stating "Drug dog working ahead" and "Narcotics officers working ahead." Officer Mickey Gruber sat in a lawn chair at the side of the road watching southbound motorists as they approached these signs. Two other officers, Corey Lay and Justin Koontz, were positioned approximately 1/2 mile south of Gruber's position.
Gruber observed Roger Kelley driving southbound on 75 Highway. Upon approaching the signs Kelley leaned over toward the passenger's side of his car and began moving around frantically. Kelley's vehicle drifted left of the highway centerline and Gruber alerted Lay and Koontz by radio of Kelley's traffic infraction.
Lay signaled Kelley to stop his car at the side of the road. Koontz checked out Kelley's driver's license with the police dispatcher while Lay used his narcotics dog, Memo, to sniff the exterior of Kelley's car. Memo alerted Lay to the front passenger's side door of Kelley's car. When Lay directed Kelley to step out of the car, Kelley yelled "No" and drove away.
Lay pursued in his patrol car. Kelley ultimately pulled into a parking lot where Lay placed him under arrest. Lay then used Memo to search the interior of Kelley's car. Memo alerted Lay to a case on the passenger's side floorboard which was later determined to contain marijuana and methamphetamine. Lay also found approximately $4,060 in cash on the passenger's side seat and in Kelley's wallet.
Kelley was charged with possession of methamphetamine, possession of marijuana, felony obstruction of official duty, possession of drug paraphernalia, and fleeing or attempting to elude a police officer.
Kelley filed a motion to suppress the evidence obtained from his arrest, which the district court denied. Kelley was found guilty at trial of felony obstruction of official duty, possession of drug ...