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State v. Smith10/22/2004
The State of Kansas filed this interlocutory appeal following the district court's order suppressing evidence in relation to Kevin G. Smith's arrest for driving under the influence (DUI) of alcohol.
Wellington police officer Lee Patterson testified that during the early morning hours of November 1, 2003, he was on patrol when he saw a Ford Ranger pickup truck traveling at "a high rate of speed." Patterson stopped at a stop sign, turned his hand-held radar on to stationary mode, and checked the speed of the truck. The radar reported that the truck was traveling 41 m.p.h. in a 30 m.p.h. zone. Patterson locked in the reading and took off after the truck.
Patterson caught up with the truck, but did not immediately stop it. Based on his training and experience he believed there was a likelihood that some drivers on the road during those early morning hours would be driving while under the influence. He waited to see if the driver of the truck gave any indication that he might be driving under the influence. Patterson saw the truck cross the center line and proceeded to stop it.
Patterson recognized the driver, Smith, from prior contacts. Smith also had worked for the City of Wellington. After questioning Smith and administering field sobriety tests, Patterson arrested him. Smith was charged with speeding and DUI. Smith moved to suppress any evidence or admissions obtained from the traffic stop contending that Patterson lacked the reasonable suspicion to stop him.
At the hearing, Patterson testified he was certified in 1997 to operate the radar equipment and he had no additional training except hands-on experience. At the beginning of his shift that night, Patterson used two tuning fork tests and an internal circuit test to determine that his radar unit was functioning properly. These tests were performed again after the stop with the same results. There were no indications that the radar was malfunctioning.
During the hearing, Patterson and Smith gave conflicting accounts of the events that led up to the stop. Patterson testified that he saw Smith drive through a green light at the intersection of 15th and Vandenburgh. Smith then drove through a second green light at the intersection of 15th and Washington. After that, Patterson saw Smith cross over the center line. Patterson activated his emergency lights and Smith, who was traveling in the inside lane, turned off of 15th on to B Street.
In contrast, Smith testified that he stopped at the traffic light at the intersection of 15th and Vandenburgh. Smith did not mention another traffic light along his route that evening. Smith testified that after passing through the intersection, he was traveling in the center lane going straight on 15th. He passed a yield area and merged into the outside lane in preparation to turn on to B Street. He testified he was never in the inside lane while traveling on 15th. Patterson stated that after he turned on to B Street, Patterson activated his emergency lights, and Smith pulled his truck over.
**2 In addition to these differing stories, Smith testified he asked Patterson twice during their encounter to see the reading on the radar--once when he was initially stopped and once after he was arrested. Patterson did not recall that Smith had ever asked to see the radar. Patterson testified that when asked, he does show the radar to those being stopped. Smith testified that when he was placed in the patrol car after his arrest the radar screen was blank. Patterson testified he and Corporal Ohler had used the radar during Smith's stop in an attempt to monitor another car.
There was a video of this incident, but it was not offered into evidence. The video did not start until after the initial stop. Ohler was driving the only patrol car equipped with an
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