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City of Norton v. Stewart6/13/2003
rough pretextual stop based upon traffic infraction). Therefore, the question should be whether Brown's detention of Stewart exceeded the scope of a routine traffic stop, when viewed objectively.
The stop of a moving vehicle always constitutes a seizure. State v. McKeown, 249 Kan. 506, 510, 819 P.2d 644 (1991). The scope and duration of a seizure must be strictly tied to and justified by the circumstances which rendered its initiation proper. Terry v. Ohio, 392 U.S. 1, 19, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); State v. Damm, 246 Kan. 220, 224, 787 P.2d 1185 (1990).
"'A traffic stop is a seizure within the meaning of the Fourth Amendment, "even though the purpose of the stop is limited and the resulting detention quite brief." [Citation omitted.] An ordinary traffic stop is, however, more analogous to an investigative detention than a custodial arrest. We therefore analyze such stops under the principles pertaining to investigative detentions set forth in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). To determine the reasonableness of an investigative detention, we make a dual inquiry, asking first "whether the officer's action was justified at its inception," and second "whether it was reasonably related in scope to the circumstances which justified the interference in the first place." [Citations omitted.]' [Citations omitted.]" State v. Mitchell, 265 Kan. 238, 241, 960 P.2d 200 (1998).
Stewart concedes that the initial stop was lawful, but suggests that Brown was only authorized to detain him for the few minutes required to issue a warning ticket. Stewart argues that Brown had to allow him to leave after writing the warning ticket unless Brown had reasonable suspicion that Stewart was driving under the influence . Continuing the argument, Stewart asserts that the smell of alcohol, alone, is insufficient suspicion of DUI because it is not unlawful to drink and drive; it is only unlawful to drive while under the influence. Curiously, in arguing his detention exceeded the permissible scope and duration of a traffic stop, Stewart sets forth the following quote from State v. Schmitter, 23 Kan. App. 2d 547, Syl. 5, 933 P.2d 762 (1997):
"While conducting a routine traffic stop, a law enforcement officer may request the driver's license and vehicle registration, run a computer check, and issue a citation. Once the driver has complied and produced his or her license and registration, if no information is obtained in the computer check, he or she must be allowed to leave without further delay. In order to justify a further detention for questioning on matters not related to the original stop, the officer must have reasonable suspicion that the individual has committed, is committing, or is about to commit some other crime."
Stewart's own cited authority establishes that his traffic stop, standing alone, justified an investigative detention beyond the time required to write a defective headlight warning ticket; he could be detained for at least the time required to run a driver's license computer check. Inexplicably, neither party discusses the no proof of insurance charge and whether Brown could have arrested, or at least further detained, Stewart for that violation. Nevertheless, Brown was permitted to call in the driver's license. If he had returned to his patrol car with Stewart's driver's license to effect the computer check from the patrol car radio, we would not find that to be an unreasonable delay. Stewart would continue to be detained during this process, albeit normally seated in his vehicle. Therefore, the total length of time Stewart was detained prior to Brown's initial request for a PBT was not beyond the permissible time of
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