State v. Brady ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,707
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DAVID BRADY,
Appellant.
MEMORANDUM OPINION
Appeal from Barton District Court; CAREY L. HIPP, judge. Opinion filed June 11, 2021.
Affirmed.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant.
Douglas A. Matthews, assistant county attorney, M. Levi Morris, county attorney, and Derek
Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., GARDNER and WARNER, JJ.
PER CURIAM: Defendant David Brady appeals the Barton County District Court's
denial of his motion to suppress evidence, including his breath test results, in this
prosecution for misdemeanor driving under the influence in violation of K.S.A. 2018
Supp. 8-1567(a). The district court correctly found the law enforcement officer who
stopped and then arrested Brady for driving under the influence had lawful grounds to do
both. The district court properly denied the motion to suppress. We, therefore, affirm that
ruling and, in turn, Brady's convictions and sentences for the DUI and a companion
charge of speeding.
1
Just after midnight on a Sunday in September 2018 (perhaps, in this case,
reasonably thought of as an extension of the preceding Saturday night), Barton County
Sheriff's Deputy Sierra Thorne observed Brady's pickup going 67 mph in a 55 mph zone,
so she followed. Deputy Thorne saw the westbound pickup cross the center line of the
road and move almost completely into the eastbound traffic lane. The road was clearly
marked with a center line and fog lines.
Deputy Thorne initiated a traffic stop. Brady promptly pulled over. Upon
contacting Brady in his pickup, Deputy Thorne immediately recognized a strong odor of
alcohol about him. Brady's speech was slurred, and his eyes were bloodshot. Brady had
difficulty retrieving his driver's license and insurance card in response to Deputy Thorne's
request. Brady admitted to having drunk one beer.
Deputy Thorne demonstrated and then asked Brady to perform a pair of field
sobriety tests: the walk-and-turn and the one-leg stand. Brady told Deputy Thorne he
would do poorly because he had hip replacements. True to his prediction, Brady didn't do
well on the tests. Deputy Thorne did not ask Brady to do any other tests to measure his
physical dexterity or mental acuity. At the suppression hearing, she testified that a
preliminary breath test was "unavailable," so she did not offer Brady the opportunity to
take one.
Based on those circumstances, Deputy Thorne arrested Brady for driving under the
influence and transported him to the Barton County Jail. At the jail, Brady took a
breathalyzer test that showed him to be well over the legal blood-alcohol level. The State
charged Brady with speeding and a misdemeanor violation of K.S.A. 2018 Supp. 8-
1567(a)(2) for driving under the influence based on his having a blood-alcohol level of
.08 or more within three hours after operating a motor vehicle.
2
As we have indicated, Brady filed a motion to suppress the evidence against him.
The district court held a hearing on the motion in June 2019 at which Deputy Thorne was
the only witness and testified as we have already outlined. The district court denied the
motion. The district court convicted Brady of DUI and speeding in a bench trial on
stipulated facts in October 2019 and about four months later imposed statutory
punishments on those convictions. Brady has appealed.
For his sole issue on appeal, Brady contends the district court erred in finding
Deputy Thorne had probable cause to arrest him for DUI and, therefore, should have
suppressed the breath test results—a piece of evidence critical to the conviction under
K.S.A. 2018 Supp. 8-1567(a)(2).
Typically, an arrest made without probable cause or a warrant amounts to an
unreasonable seizure violating the arrestee's rights protected in the Fourth Amendment to
the United States Constitution. See State v. Ingram, 279 Kan. 745, Syl. ¶ 2, 113 P.3d 228(2005). And, in turn, district courts commonly suppress evidence government agents
seize in violation of a defendant's Fourth Amendment rights. See United States v. Leon,
468 U.S. 897, 908-09, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) ("The Court has, to be
sure, not seriously questioned, 'in the absence of a more efficacious sanction, the
continued application of the rule to suppress evidence from the [prosecution's] case
where a Fourth Amendment violation has been substantial and deliberate.'"). Conversely,
government agents may lawfully administer breath tests to persons arrested on probable
cause to believe they have been driving under the influence. See K.S.A. 2020 Supp. 8-
1001(b)(1); Birchfield v. North Dakota, 579 U.S. __, 136 S. Ct. 2160, 2184, 195 L. Ed.
2d 560 (2016) (holding warrantless breath test constitutionally permissible if conducted
as a search incident to arrest); State v. Ryce, 306 Kan. 682, 699-700, 396 P.3d 711(2017).
3
Probable cause is a somewhat elastic measure of proof requiring sufficient
evidence to cause a person of reasonable prudence to believe a crime has been committed
and the defendant committed it. State v. Keenan, 304 Kan. 986, 994, 377 P.3d 439(2016); Ingram, 279 Kan. 745, Syl. ¶ 6. Probable cause establishes something to be more
than a reasonable suspicion but not so much as more probably true than not true. In
assessing probable cause for Fourth Amendment purposes, the district court must
consider how an objectively reasonable law enforcement officer would view the
circumstances. Keenan, 304 Kan. at 994. The subjective belief or conclusion of the
arresting officer is irrelevant.
In reviewing a district court's ruling on a motion to suppress, we apply a bifurcated
standard: We accept factual findings if they are supported by competent evidence having
some substance and exercise plenary review over legal conclusions based upon those
findings, including the ultimate ruling on the motion. State v. Patterson, 304 Kan. 272,
274, 371 P.3d 893 (2016); State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).
The State bears the burden of proving a search or seizure to be constitutionally acceptable
by a preponderance of the evidence. Patterson, 304 Kan. at 272. Here, the material facts
all derive from Deputy Thorne's testimony at the suppression hearing and are not
materially disputed. What remains for us is functionally a question of law. Patterson, 304
Kan. at 274.
With those principles in mind, we examine the evidence from the suppression
hearing. The testimony the district court credited showed Brady was driving somewhat
over the speed limit, although not remarkably so. But that alone furnished a sufficient
legal basis for Deputy Thorne to have stopped him. There was, however, more. Brady
badly navigated his pickup, traveling well into the lane for oncoming traffic—a
potentially dangerous lapse indicative of impairment.
4
Deputy Thorne's interaction with Brady only enhanced the evidence of impairment
and included his mushy speech and his inability to readily retrieve and present his driver's
license. Brady smelled of alcohol and admitted drinking, if only relatively minimally.
Deputy Thorne also properly took account of Brady's poor performance on the two field
sobriety tests notwithstanding his explanation deflecting from his apparent intoxication to
a chronic physical limitation. See City of Dodge City v. Norton, 262 Kan. 199, 204-05,
936 P.2d 1356 (1997). The constellation of evidence furnished Deputy Thorne with
probable cause to arrest Brady for DUI and to request that he take a breath test. Most of
the indicators of intoxication had nothing to do with Brady's claimed physical limitation
because of his hips.
On appeal, Brady attempts to avert that result by arguing Deputy Thorne should
have allowed him to perform what he characterizes as nonphysical tests, such as reciting
the alphabet or counting backward from 100 by some set amount, and should have
offered him a preliminary breath test. But Deputy Thorne had no obligation to do any of
that in light of the existing circumstances establishing probable cause. A law enforcement
officer with sufficient evidence for probable cause to arrest need not continue
investigating to add to that evidence or to test that evidence before making the arrest.
The district court correctly found Deputy Thorne had probable cause to arrest
Brady for DUI and to request he take a breath test. And the district court, therefore,
properly denied the motion to suppress the breath test results. We find no error and affirm
that ruling. Since Brady launches no other challenges to his convictions or sentences,
they stand, as well.
Affirmed.
5