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State v. Sharp

Supreme Court of Kansas

March 17, 2017

State of Kansas, Appellee,
v.
Travis Sharp, Appellant.

          SYLLABUS

         1. Appellate courts generally avoid making unnecessary constitutional decisions. Where there is a valid alternative ground for relief, an appellate court need not decide a constitutional challenge.

         2. Issues not presented to the trial court generally will not be considered for the first time on appeal.

         3. The Fourth Amendment to the United States Constitution guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, and a traffic stop is considered a seizure of the driver. Compliance with the Fourth Amendment requires the officer conducting the stop to have a reasonable and articulable suspicion, based on fact, that the person stopped has committed, is committing, or is about to commit a crime.

          4. Reasonable suspicion is a lower standard than probable cause, and what is reasonable depends on the totality of circumstances in the view of a trained law enforcement officer. In determining whether reasonable suspicion exists, the court must judge the officer's conduct in light of common sense and ordinary human experience under the totality of the circumstances. This determination is made with deference to a trained officer's ability to distinguish between innocent and suspicious circumstances, while recognizing that it represents a minimum level of objective justification and is considerably less than proof of wrongdoing by a preponderance of the evidence.

         5. The reviewing court does not pigeonhole each factor as to innocent or suspicious appearances but instead determines whether the totality of the circumstances justifies the detention. The relevant inquiry is not whether particular conduct is innocent or guilty, but whether a sufficient degree of suspicion attaches to particular types of noncriminal acts. The totality of the circumstances standard precludes a divide-and-conquer analysis under which factors that are readily susceptible to an innocent explanation are entitled to no weight.

         6. The essence of the totality of circumstances standard does not allow law enforcement officers or the courts to selectively choose the facts that would establish reasonable suspicion to justify police action. Rather, a totality of circumstances standard recognizes that events and conditions giving rise to reasonable suspicion are fluid rather than fixed and the existence of reasonable suspicion may change once new facts are observed by or become known to law enforcement.

          Review of the judgment of the Court of Appeals in an unpublished opinion filed December 19, 2014. Appeal from Johnson District Court; Kevin P. Moriarty, judge. Judgment of the Court of Appeals reversing the district court is affirmed in part and vacated in part. Judgment of the district court is reversed.

          Richard P. Klein, of Olathe, Darrell Smith, of Law Office of Darrell Smith, of Olathe, and Rachelle Worrall Smith, of the same firm, were on the briefs for appellant.

          Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

          OPINION

          Malone, J.

         Travis Sharp was convicted of driving under the influence and unlawful exhibition of speed. In an unpublished opinion, the Court of Appeals reversed these convictions and the district court's denial of Sharp's motion to suppress evidence of his driving under the influence. State v. Sharp, No. 110, 845, 2014 WL 7566576, at *7 (Kan. App. 2014) (unpublished opinion). The panel held K.S.A. 8-1565, which prohibits an unlawful "exhibition of speed or acceleration, " was unconstitutionally vague and indefinite, the good faith exception was inapplicable, and the officer lacked reasonable suspicion to conduct a traffic stop based on a violation of K.S.A. 8-1565. 2014 WL 7566576, at *4-5.

         The State petitioned for review arguing the panel misapplied the good faith exception, substantial competent evidence supports the denial of the motion to suppress, and K.S.A. 8-1565 is not unconstitutionally vague as applied to Sharp. The case was placed on summary calendar pursuant to Kansas Supreme Court Rule 7.01(c)(2) (2015 Kan. Ct. R. Annot. 59). We affirm the Court of Appeals decision holding the officer lacked reasonable suspicion to conduct the traffic stop but vacate its holding regarding the constitutionality of the statute. See State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, Syl. ¶ 3, 367 P.3d 282 (2016) ("Appellate courts generally avoid making unnecessary constitutional decisions. . . . [W]here there is a valid alternative ground for relief, an appellate court need not reach a constitutional challenge.").

         On January 25, 2013, at approximately 5:30 p.m., Officer Donald Bowers was in a marked police car sitting at a traffic light, in a left turn lane, next to two lanes of eastbound traffic. Bowers' attention was drawn to a dark-colored SUV two lanes to his right and slightly ahead of his car when he heard an engine revving and saw a heavy cloud of smoke coming from underneath the vehicle. Bowers smelled rubber and saw the right rear tire spinning and smoking while the vehicle was stationary. Bowers explained this was called "power braking" and is accomplished by applying the brake and the gas at the same time. Bowers described it as a show of "physical endurance of a vehicle" and was to him "a preparation of a drag race warming the tires."

         Bowers decided to stop the vehicle after the light changed. Because he was surrounded by stationary traffic, Bowers turned on his rear ¶ashing lights to alert the drivers in back of him of his intention to change lanes so he could move behind the SUV. When the light turned green, the SUV did not "tear out from the intersection" nor accelerate in any manner that would provide another justification for stopping him. Bowers followed the vehicle through the intersection, and once Bowers had cleared the intersection, he activated "lights that [the driver of the SUV, Travis Sharp] was able to see" and conducted a traffic stop.

         When Bowers asked Sharp if he knew why he had been stopped, Sharp responded "for burning my tires." Sharp responded strangely and slowly to Bowers' initial questions, admitted to drinking "one Buzz Ball, " and proceeded to exhibit multiple indications of impairment on field sobriety testing. His preliminary breath test and breath test indicated the presence of alcohol over the legal limit.

         Sharp was charged with exhibition of speed under K.S.A. 8-1565 and misdemeanor driving under the influence under K.S.A. 8-1567. Sharp moved to suppress all evidence, reasoning the officer lacked reasonable suspicion to conduct the traffic stop. At the suppression hearing, Bowers testified the sole reason he made the traffic stop was because Sharp was spinning his tires at the stoplight. Defense counsel argued the evidence did not establish an exhibition of speed or acceleration under a strict construction of K.S.A. 8-1565(a). The State countered that burning tires at a red light is an exhibition of the power, endurance, and capabilities of the vehicle, such as the ability to accelerate off the stop or to speed.

         The district court denied the motion, reasoning the officer had reasonable suspicion to stop the vehicle which was showing it could drag race based on the racing engine, the smell of the tires, and the back tires squealing. In so doing, the district court stated: "Even if the officer only saw what he saw, and I think it meets the statute, there is some room for interpretation as both attorneys have done as to what the-what the ...


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