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City of Pratt v. Stover10/19/2001
Appeal from Pratt district court; ROBERT J. SCHMISSEUR, judge.
Affirmed.
Stuart Stover appeals his K.S.A. 2000 Supp. 8-1567(a)(3) driving under the influence (DUI) conviction. The only issue is whether Florida v. J.L., 529 U.S. 266, 146 L. Ed. 2d 254, 120 S. Ct. 1375 (2000), an anonymous tip case, characterizes the informant's tip here as lacking sufficient indicia of reliability to justify the officer's investigatory stop.
We hold that J.L. does not control here. The phone tip relied on to stop Stover was not anonymous. The officer's investigatory stop was justified. Finding no error, we affirm.
Our jurisdiction is under K.S.A. 20-3018(c) (transfer on our own motion).
FACTS
On June 24, 2000, at 10:16 p.m., the City of Pratt Police Department received a call from Susan Barnes. Barnes reported that someone had been repeatedly driving by her house at 401 N. Jackson in Pratt, honking a car horn, and yelling profanities. She said the driver would either do a u-turn or go around on Main Street and then drive back by her house. Barnes told the dispatcher that she thought the driver was drunk. She described the car as an older model, large, white, four-door car. She said, except for the center light, the three-light taillight on the passenger side was out.
In response to the telephone tip, Officer McGee was notified of the nature and location of the call. He drove to the 100 block of N. Jackson, parked, and turned off his headlights. A large, white, four-door car approached the 400 block of N. Jackson. The car slowed down at the intersection and turned left toward Main Street. Officer McGee did not observe any honking, yelling, cursing, or erratic driving associated with the car.
After running a check on the car's license tag, Officer McGee turned on his emergency lights and stopped the car. He asked Stover for his driver's license and proof of insurance. Officer McGee smelled a strong odor of alcohol on Stover's breath and administered field sobriety tests.
Stover was found guilty of DUI in municipal court. On appeal to the district court, Stover stipulated to Officer McGee's observations in the investigative report and report on the field sobriety tests. Stover's stipulation included the facts that he was driving the car and had: (1) a strong odor of alcohol, (2) slurred and soft speech, (3) bloodshot eyes, and (4) dirty clothes. He filed a motion to suppress all evidence seized after the stop. He argued that under J.L., 529 U.S. 266, Officer McGee performed an illegal stop based upon an uncorroborated telephone tip. After hearing testimony and considering the evidence, the district court denied Stover's motion and found him guilty of DUI. See K.S.A. 2000 Supp. 8-1567(a)(3).
DISCUSSION
Stover contends that Barnes' call to the dispatcher lacked sufficient indicia of reliability to justify Officer McGee's investigatory stop under J.L., 529 U.S. 266. He argues that the district court erred in failing to grant his motion to suppress. His contention lacks merit.
The question here is whether Officer McGee, acting upon a tip given by Barnes, an identified caller, could reasonably detain Stover's vehicle without personally observing some indicia of intoxication. Our resolution involves a question of law; thus, we have unlimited review. State v. Muck, 262 Kan. 459, 464, 939 P.2d 896 (1997). Barnes' tip accurately described the car, accurately predicted its route and location, and reported that it was behaving in a manner indicative of drunk driving .
Stover states that the issue on appeal is whether J.L. overrules State v. Slater, 267 Kan. 694, 986 P
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