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CITY OF DODGE CITY v. NORTON4/18/1997
would mind doing a few sobriety tests. Norton cooperated. Rose and Norton went to a flat, level area between the vehicles. Rose asked Norton if he had any trouble with his legs, feet, or hips and Norton said that he had had both legs operated on a few times in the past. Norton was asked to do the heel-to-toe test. He was wearing western style boots with low, flat heels. Rose asked Norton to take five or six steps, turn, and come back. Rose demonstrated for Norton. Norton was using his arms a little bit for balance. He did the five steps. He was missing his heel and toe, but was not doing "too bad," except for the turn. He was slightly off balance on the turn and missed three touches on the way back. At that point, Rose believed that Norton was intoxicated and "under a condition not to be driving." Norton did not do the required heel-to-toe touches. Rose did not know to what extent Norton's surgery had created problems in the test. When Norton was having trouble walking after the sobriety test was completed, Rose decided to move closer. As Rose walked up to Norton
to tell him that he was under the influence and would be arrested and given the breath test, Rose got close enough to smell a faint to moderate, but noticeable, odor of alcohol on Norton's breath. The alcoholic odor further solidified Rose's assessment of Norton's condition, and it played into Rose's decision to make the arrest. Norton was arrested and told he would be given a breath test. He was handcuffed and taken to the hospital. Rose did not give Norton a ticket for driving left of center or disorderly conduct, but told him that he would have to contact Officer Addison in the morning.
Norton testified that the construction barrels took up 2 feet of the right edge of the new concrete, and there was no way to drive in that lane and not go left of center, without going close to the barrels. According to Norton, there was little traffic, and he was taking it easy, driving a little bit further away from the barrels, a little further to the left than he normally drives. Norton did not remember seeing the two yellow lines in the center of the road that evening. Instead, he contended, the tape was wadded up over onto the south side of the road. The vacant lot where Norton took the sobriety test was muddy, and he was wearing regular cowboy boots, not low-heeled boots. Norton told Rose that his knees had been operated on several times and he was not very steady on them. His legs were crooked, so he had trouble walking any straight line. He was waiting to have his knees replaced. Norton has had six major and four minor surgeries on his right knee and two minor surgeries on his left knee. Norton also testified that the pickup he was driving belonged to his brother and was not registered in Norton's name. Norton denied telling Rose that he was coming back to the bar or that he had been there earlier. Norton admitted having four or five beers that evening at the V.F.W.
The District Court Decision
In granting the motion to dismiss for lack of probable cause, the judge said:
" t's clear to me that there was a reasonable suspicion to stop the defendant. There was a radio transmission indicating that there had been some problems from another officer. Officer Rose was on watch for the defendant. When Officer
Rose began to follow him, he saw the defendant almost hit some barrels, as reported."
The judge found no problem with the stop. However, he did not find probable cause to make the arrest because the surgeries Norton told Rose about could cause walking problems, and the only sobriety test administered was the walking type of test.
Based on the physical con
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