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City of Norton v. Stewart6/13/2003
Affirmed.
Dustin R. Stewart appeals his convictions for driving under the influence of alcohol (DUI) and transporting an open container, based upon the trial court's denial of his suppression motion. Finding Stewart's detention did not extend beyond that which is permissible for a lawful traffic stop, we affirm.
Thad Brown, a City of Norton law enforcement officer, stopped Stewart's vehicle for an inoperable headlight. In the process of effecting the stop, Brown ran a radio check of the vehicle license tag. As Brown approached the stopped vehicle, he saw Stewart putting Copenhagen tobacco in his mouth. Upon making contact with Stewart, Brown noticed a strong odor of alcohol emanating from inside the vehicle, which also contained a passenger. Brown asked for Stewart's driver's license and insurance information. Stewart produced his license and the vehicle registration; he could not produce an insurance card. Brown's normal procedure would have been to call on the radio to check the driver's license.
Brown then asked Stewart to step out of the vehicle and accompany Brown to the patrol car. Brown had Stewart remove the tobacco from his mouth. Inside the patrol car, Brown detected a strong odor of alcohol coming from Stewart. During a brief conversation in the patrol car, Stewart admitted that he had consumed beer at a rodeo in Nebraska, as well as drinking a few on the drive home. Brown asked Stewart to perform a preliminary breath test (PBT), which he did. When the test indicated the presence of alcohol, Brown had Stewart exit the patrol car and perform field sobriety tests (FST). Based on Stewart's FST performance, Brown administered another PBT, which Stewart failed. After arresting Stewart for DUI, Brown seized beer from Stewart's vehicle, including an open can.
Stewart was charged in municipal court with DUI, transporting an open container, and no proof of liability insurance. The no proof of insurance charge was dismissed, but Stewart was convicted of the remaining charges. He appealed to the district court and filed a motion to suppress, claiming the scope and duration of his detention violated his Fourth Amendment rights. The district court denied the motion, finding "that the officer's detection of an odor of alcoholic beverage in dealing with the defendant gave the officer reasonable, articulable suspicion to believe there existed an alcohol-related violation and expand the scope of his detention of the defendant to investigate further." The trial then proceeded upon stipulated facts, and Stewart was convicted of DUI and transporting an open container.
The sole issue on appeal is the denial of Stewart's suppression motion. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review. State v. Alvidrez, 271 Kan. 143, 145, 20 P.3d 1264 (2001).
Stewart contends that when he was required to exit his vehicle, his detention was expanded beyond that which is permissible for a routine traffic stop. Stewart relies on Brown's candid statements that he always issues a warning ticket for a defective headlight violation and that he removed Stewart from the vehicle to ascertain whether the odor of alcohol was coming from Stewart, rather than from the passenger or another source within the vehicle. However, the United States Supreme Court has taught us that a law enforcement officer's subjective motive or deviation from normal procedure is not determinative of an unlawful detention claim so long as the officer was justified in his or her actions because of a traffic infraction. See Whren v. United States, 517 U.S. 806, 135 L. Ed. 2d 89, 116 S. Ct. 1769 (1996) (permitting evidence obtained th
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