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City of Leawood v. Puccinelli

Court of Appeals of Kansas

June 22, 2018

City of Leawood, Appellee,
Robert Puccinelli, Appellant.


         1.Standard field sobriety tests are not searches under the Fourth Amendment to the United States Constitution or Section 15 of the Kansas Constitution Bill of Rights.

         2. The voluntariness of consent to a search is a factual question that the district court determines. On appeal, we uphold its finding if it is supported by substantial evidence.

         3. In this case, even if field sobriety tests were considered a search under Fourth Amendment standards, the district court's finding that the defendant voluntarily completed them is supported by substantial evidence.

         4. While the results of horizontal gaze nystagmus (HGN) tests are not admissible in Kansas courts for any purpose unless a proper foundation for their scientific validity is made, evidence about the process of testing may be introduced if it is otherwise relevant. Here, the defendant's ability to follow simple instructions was relevant, so the district court did not err in allowing evidence about-but not including the results of-HGN testing.

          Appeal from Johnson District Court; Thomas M. Sutherland, judge.

          Thomas J. Bath Jr. and Mitch E. Biebighauser, of Bath and Edmonds, P.A., of Overland Park, for appellant.

          Marcia L. Knight, assistant city attorney, for appellee.

          Before McAnany, P.J., Leben and Schroeder, JJ.

          Leben, J.

         Robert Puccinelli appeals his conviction for driving under the influence of alcohol, raising two points. We do not find either of them persuasive.

         First, he argues that allowing a police officer to testify about how Puccinelli did on field sobriety tests violated Puccinelli's Fourth Amendment right to be free from unreasonable searches. But field sobriety tests aren't searches under the Fourth Amendment at all. For the most part, the tests simply check for physical actions associated with inebriation, something that a careful observer might learn simply from watching the defendant.

         Second, he argues that the district court shouldn't have allowed the officer to testify that he had given Puccinelli the horizontal-gaze-nystagmus (HGN) test, a test that hasn't been shown sufficiently based on science for its results to be presented in Kansas criminal trials. But the test results weren't admitted in Puccinelli's trial. Instead, the sequence of the officer giving instructions about the HGN test and Puccinelli's responses was admitted mainly because of how much difficulty Puccinelli had in following simple instructions. That evidence was relevant in determining whether Puccinelli was drunk and was properly admitted for that purpose.

         Factual and Procedural Background

         Before we look in depth at the legal issues, we need to set out some of the factual background. Because part of Puccinelli's legal argument is based on his claim that he objected to doing the field sobriety tests but was ordered to do them anyway, we will include the facts related to the voluntariness of his participation in those tests.

         Puccinelli's encounter with Leawood police officer Andrew Bacon began in what we'd generally call late on a Monday night in April 2016, though it was actually 12:45 a.m. the following morning. Bacon pulled Puccinelli over for failing to signal a turn.

         Puccinelli said he had come from a nearby Taco Bell and that he had thrown his Taco Bell trash out the window. Bacon said he didn't see Puccinelli come from the Taco Bell parking lot and asked if he'd been anywhere else. Puccinelli said he hadn't.

         Bacon then said he'd seen Puccinelli come out of the parking lot of a nearby bar, but Puccinelli denied having been there. He also denied having had anything to drink that night.

         Bacon said he was going to "have [Puccinelli] do a couple of things in the window of the car to so [Bacon could] make sure [Puccinelli was] alright to drive." Puccinelli agreed, but again denied having had anything to drink.

         Bacon first asked Puccinnelli to do a fingertip-counting test. Although Bacon explained it, Puccinelli said he didn't understand what Bacon wanted him to do. Then, after failing to do the test correctly, Puccinelli said he wasn't going to get out of the car and that he hadn't been drinking.

         Bacon then asked Puccinelli to recite the alphabet from C to N and to count backwards from 83 to 62. Puccinelli couldn't do those tests correctly, either. At that point, Bacon told Puccinelli to step out of the vehicle.

         Puccinelli said he wasn't "comfortable with this." But Bacon told him, "Okay, well, comfortable or not, you need to get out of the car." Puccinelli complied.

         Bacon then began to give Puccinelli three standard field sobriety tests-the HGN test, in which the person visually follows a moving object while the officer looks for involuntary eye movements; the walk-and-turn test, in which the driver must walk heel to toe in a line; and the one-leg-stand test, in which the driver stands on one leg while counting out loud.

         For the HGN test, Bacon told Puccinelli to stand with his feet together, arms down at his side. Bacon told him to follow a pen being moved back and forth in front of him without moving his head-only moving his eyes. Shortly after starting the test, Bacon asked, "What do you want me to do, look at the pen?" Bacon again told Puccinelli to follow the pen with his eyes, but Puccinelli quit doing that and looked directly at the officer after only a short time. Bacon asked whether he was looking at the pen or the officer. "You, now," Puccinelli replied.

         At that point, Puccinelli made the first of several references to a desire to move on to taking a breath test (using a machine called a "breathalyzer"): "Do you wanna give me a breathalyzer, I mean 'cause I'm not drunk. So ...

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