Jarvis v. Kansas Dept. of Revenue

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 119,116

NATHAN A. JARVIS,
Appellee,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellant.

SYLLABUS BY THE COURT

1.
On judicial review of a hearing officer's order suspending a driver's license,
K.S.A. 2019 Supp. 8-1020(p) grants a court the authority to consider and determine any
constitutional issue, including the lawfulness of the law enforcement encounter that led to
the suspension. And under K.S.A. 2019 Supp. 8-1020(o) through (q) a court may set
aside a driver's license suspension order if the driver meets the burden of establishing the
encounter was unlawful.

2.
The record in this appeal provides substantial competent evidence supporting the
district court's conclusion that a law enforcement officer lacked reasonable suspicion to
initiate a traffic stop that led to the driver's license being suspended. Because the stop was
unlawful, the district court did not err in setting aside the suspension.

Review of the judgment of the Court of Appeals in 56 Kan. App. 2d 1081, 442 P.3d 1054 (2019).
Appeal from Johnson District Court; JAMES F. VANO, judge. Opinion filed October 9, 2020. Judgment of
the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

1
 Joanna Labastida, Adam D. King, and Ted E. Smith, of Kansas Department of Revenue, were on
the briefs for appellant.

Sheena Foye, of Wyrsch Hobbs & Mirakian, P.C., of Kansas City, Missouri, was on the brief for
appellee.

Adam D. Stolte, of Stolte Law, LLC, of Overland Park, was on the brief for amici curiae Kansas
Association of Criminal Defense Lawyers and National College of DUI Defense.

The opinion of the court was delivered by

LUCKERT, C.J.: In this appeal, we interpret and apply K.S.A. 2019 Supp. 8-
1020(p). Among other things, that provision identifies issues a court can consider when
reviewing the validity of an administrative order suspending a driver's license because a
driver failed or refused a blood alcohol test. The question presented is whether a court
can set aside a driver's license suspension because the suspension flows from a law
enforcement officer's unlawful seizure of the driver.

We hold that, on judicial review under K.S.A. 2019 Supp. 8-1020(p), a court may
"consider and determine any constitutional issue, including, but not limited to, the
lawfulness of the law enforcement encounter." And under K.S.A. 2019 Supp. 8-1020(o)
through (q) a court may set aside a driver's license suspension order if the driver meets
the burden of establishing the encounter was unlawful.

FACTS AND PROCEDURAL BACKGROUND

After following Jarvis' vehicle, a law enforcement officer initiated a traffic stop.
The officer could smell alcohol on Jarvis, and he observed that Jarvis had bloodshot eyes.

2
The officer administered field sobriety tests and then, when Jarvis exhibited signs of
intoxication, arrested Jarvis for driving under the influence.

At the police station, the officer read and presented a written implied consent
advisory that informed Jarvis his driver's license would be suspended if he failed or
refused a blood alcohol test. Jarvis refused to provide a breath sample, and the officer
prepared the DC-27 form that certified Jarvis' test refusal and notified Jarvis his driver's
license was suspended.

Jarvis administratively appealed the suspension. An administrative hearing officer
affirmed the suspension, and Jarvis petitioned for de novo review by the Johnson County
District Court. A district court judge conducted an evidentiary hearing and ultimately
concluded the officer's testimony was not credible, the officer lacked the reasonable
suspicion necessary to justify the traffic stop, and the officer's seizure of Jarvis was
unlawful. The judge interpreted K.S.A. 2019 Supp. 8-1020(p) to allow him to set aside
the suspension based on his determination that the law enforcement encounter was
unlawful.

KDR timely appealed the reversal of the suspension order to the Court of Appeals.
In a published opinion, the Court of Appeals affirmed the district court. Jarvis v. Kansas
Dept. of Revenue, 56 Kan. App. 2d 1081, 1098, 442 P.3d 1054 (2019). KDR then timely
petitioned for review. This court granted review and has jurisdiction under K.S.A. 20-
3018(b) (petition for review of Court of Appeals decision).

ANALYSIS

We begin our analysis by deciding the legal question of whether K.S.A. 2019
Supp. 8-1020 allows a court to set aside a driver's license suspension based on an
3
unlawful law enforcement encounter. After determining that issue, we will examine the
district court's ruling that Jarvis was stopped unlawfully because the law enforcement
officer lacked a reasonable suspicion that Jarvis had committed a traffic offense.

The parties' arguments about a court's power to set aside an administrative order
focus on K.S.A. 2019 Supp. 8-1020(p) and amendments to that provision enacted in
2016. Subsection (p) is one of three subsections of K.S.A. 2019 Supp. 8-1020 that
explicitly apply when a court reviews a driver's license suspension order. Those
subsections—(o) through (q)—state, with the 2016 amendment emphasized:

"(o) The licensee may file a petition for review of the hearing order pursuant to
K.S.A. 8-259, and amendments thereto. Upon filing a petition for review, the licensee
shall serve the secretary of revenue with a copy of the petition and summons. Upon
receipt of a copy of the petition for review by the secretary, the temporary license issued
pursuant to subsection (b) shall be extended until the decision on the petition for review
is final.

"(p) Such review shall be in accordance with this section and the Kansas judicial
review act. To the extent that this section and any other provision of law conflicts, this
section shall prevail. The petition for review shall be filed within 14 days after the
effective date of the order. Venue of the action for review is the county where the person
was arrested or the accident occurred, or, if the hearing was not conducted by telephone
conference call, the county where the administrative proceeding was held. The action for
review shall be by trial de novo to the court and the evidentiary restrictions of subsection
(l) shall not apply to the trial de novo. The court shall take testimony, examine the facts
of the case and determine whether the petitioner is entitled to driving privileges or
whether the petitioner's driving privileges are subject to suspension or suspension and
restriction under the provisions of this act. Notwithstanding K.S.A. 77-617, and
amendments thereto, the court: (1) May also consider and determine any constitutional
issue, including, but not limited to, the lawfulness of the law enforcement encounter, even
if such issue was not raised before the agency; and (2) shall also consider and determine

4
 any constitutional issue, including, but not limited to, the lawfulness of the law
enforcement encounter, if such issue is raised by the petitioner in the petition for review,
even if such issue was not raised before the agency. If the court finds that the grounds for
action by the agency have been met, the court shall affirm.

"(q) Upon review, the licensee shall have the burden to show that the decision of
the agency should be set aside." (Emphasis added.) K.S.A. 2019 Supp. 8-1020; L. 2016,
ch. 69, § 2.

To answer the issue of whether the Legislature intended this language to provide a
basis for setting aside a suspension based on an unlawful law enforcement encounter, we
must interpret K.S.A. 2019 Supp. 8-1020(o) through (q). Issues of statutory interpretation
present questions of law to which we apply an unlimited standard of review. This means
we give no deference to the district court's or the Court of Appeals' interpretation of the
statute. State v. Fowler, 311 Kan. 136, 139, 457 P.3d 927 (2020); State v. Gross, 308
Kan. 1, 7, 417 P.3d 1049 (2018).

All Kansas courts use the same starting point when interpreting statutes: The
Legislature's intent controls. To divine that intent, courts examine the language of the
provision and apply plain and unambiguous language as written. If the Legislature's
intent is not clear from the language, a court may look to legislative history, background
considerations, and canons of construction to help determine legislative intent. Gross,
308 Kan. at 10.

With those rules in mind, we turn to consideration of the parties' arguments, which
we have grouped into three categories for purposes of our analysis: (1) KDR arguments
as to why the lawfulness of the law enforcement encounter is not within the scope of a
court's review of an administrative suspension order; (2) the basis for KDR's assertion
that K.S.A. 2019 Supp. 8-1020 does not provide a remedy for an unlawful law

5
enforcement encounter; and (3) KDR's contention the exclusionary rule does not apply to
driver's license suspension proceedings and the Court of Appeals' analysis creates bad
policy. None of KDR's arguments persuade us.

1. K.S.A. 2019 Supp. 8-1020

The parties in this and another appeal, State v. Whigham, 312 Kan. ___, ___ P.3d
___ (No. 117,043, this day decided), have framed many of their arguments by discussing
how, if at all, a 2016 amendment to K.S.A. 2019 Supp. 8-1020(p) affected various
holdings in Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 176 P.3d 938 (2008),
overruled on other grounds by City of Atwood v. Pianalto, 301 Kan. 1008, 350 P.3d 1048
(2015). This framing has confused the discussion in many ways because Martin's
holdings address issues that do not perfectly align with the analytical steps in this case.
For example, Martin discussed whether the judicial remedy of suppressing evidence
through use of the exclusionary rule is available in driver's license suspension
proceedings, but the 2016 amendment relates to statutorily authorized remedies. To
explain the significance of the difference between Martin's focus and the 2016
amendment to subsection (p), we begin by summarizing the holdings in Martin.

In Martin, this court held that K.S.A. 8-1020(h)(2) provides an exclusive list of
issues an administrative hearing officer can consider when a driver appeals from a law
enforcement officer's notice of suspension. And that list does not include the lawfulness
of the law enforcement encounter. Martin, 285 Kan. at 631-32. Martin also noted that
"we have repeatedly recognized that administrative agencies are not empowered to decide
constitutional questions; courts are." 285 Kan. at 632. Thus, the question of the
lawfulness of the law enforcement encounter was not a statutory basis for invalidating the
suspension order even if the encounter violated constitutional protections.

6
 The Martin court then turned to the constitutional question raised by the driver:
Whether the officer lacked a reasonable suspicion to seize the driver and thus lacked a
lawful basis for stopping the vehicle. The Martin court first noted that a traffic stop is
generally a seizure implicating the Fourth Amendment to the United States Constitution
and § 15 of the Kansas Constitution Bill of Rights in a criminal case. And it "is not
magically converted to a 'nonseizure' when it leads to a civil or administrative rather than
a criminal proceeding. Fourth Amendment and § 15 implications transcend this boundary
because those provisions delineate rights that attach to individuals in either
circumstance." 285 Kan. at 636. Then, given the facts of the case, the court determined
the officer lacked constitutional authority to seize the driver. 285 Kan. at 638-39.

The Martin court next considered possible remedies for the unconstitutional
seizure. It began with the question of whether the statutory remedy of invalidating and
setting aside the suspension order was available. Noting that courts dealing with unlawful
suspension orders often use this remedy, the court distinguished those cases, citing two
examples. 285 Kan. at 639 (discussing Ostmeyer v. Kansas Dept. of Revenue, 16 Kan.
App. 2d 639, 827 P.2d 780 [1992]; Meigs v. Kansas Dept. of Revenue, 16 Kan. App. 2d
537, 825 P.2d 1175 [1992]). The point of distinction was that those cases involved "a
violation of a mandatory provision of the Implied Consent Law by an officer of the State"
rather than a nonstatutory, constitutional violation. The statutory remedy—invalidation of
the order—did not cover nonstatutory grounds, the court reasoned. 285 Kan. at 639.

Because no statutory remedy was available, the Martin court turned to the driver's
alternative argument that the court should invoke the exclusionary rule and suppress the
illegally obtained evidence. "The exclusionary rule is a judicially created remedy,
designed to deter the government from engaging in unconstitutional conduct." Martin,
285 Kan. at 640; see Illinois v. Krull, 480 U.S. 340, 347, 107 S. Ct. 1160, 94 L. Ed. 2d
364 (1987); State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010). It applies only
7
after courts weigh whether the "'its deterrence benefits outweigh its "substantial social
costs."'" 285 Kan. at 640 (quoting Pennsylvania Bd. of Probation and Parole v. Scott,
524 U.S. 357, 363, 118 S. Ct. 2014, 141 L. Ed. 2d 344 [1998]). After considering those
factors, a majority of the Martin court held the rule did not apply to driver's license
suspension proceedings. Martin, 285 Kan. at 646.

Here, KDR asks us to leap over the preliminary analytical steps of Martin and
jump to consideration of whether the 2016 amendment to subsection (p) changed
Martin's holding about the availability of the exclusionary rule in driver's license
suspension hearings. Rather than make that leap, Jarvis asks us to begin at the first
analytical steps of whether the amendment (1) allows a court to consider the
constitutionality of the law enforcement encounter and (2) creates a statutory remedy that
essentially moots the need to apply the exclusionary rule. He contends the 2016
amendment explicitly expanded the issues a district court could, and in some cases shall,
consider when reviewing a hearing officer's driver's license suspension order.
Specifically, a court can now consider "any constitutional issue, including . . . the legality
of the law enforcement encounter." And he argues that the amendment gives a court the
authority to invalidate the suspension order if a constitutional violation occurred. KDR
disagrees.

Jarvis validly points out that an analysis of the effect of the 2016 amendment on
Martin's holdings requires walking the same analytical path of examining (1) the grounds
for judicial review allowed by the statute and (2) the remedies it affords. Only then do we
turn to KDR's arguments regarding Martin's holding about the inapplicability of the
exclusionary rule in driver's license suspension hearing and the impact on policy.

8
 1.1. K.S.A. 2019 Supp. 8-1020 adds an issue for court review.

As to the grounds for judicial review, KDR does not dispute that the 2016
amendments to K.S.A. 2019 Supp. 8-1020(p) allow a court to "consider and determine"
constitutional issues, including the lawfulness of the law enforcement encounter. But
KDR argues this language is procedural only and has no practical effect other than the
"value in having judicial determination on such issues for law enforcement officers in the
conduct of their duties." In other words, under KDR's interpretation, a district court may
consider constitutional violations related to the law enforcement encounter, but those
violations cannot lead to reversal of the driver's license suspension. Instead, courts would
simply advise law enforcement officers whether they passed or failed a constitutional
test. We disagree.

The overall framework of K.S.A. 2019 Supp. 8-1020(o), (p), and (q) requires
courts to consider and apply the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et
seq. The first sentence of subsection (o) indirectly incorporates the KJRA by referencing
K.S.A. 8-259: "The licensee may file a petition for review of the hearing order pursuant
to K.S.A. 8-259." K.S.A. 2019 Supp. 8-259, in turn, allows for judicial review of an order
of suspension and provides that the court will conduct the review under the KJRA.
Subsection (p) echoes subsection (o) by repeating that the KJRA applies to the court's
review, this time stating so explicitly without routing the reader through K.S.A. 2019
Supp. 8-259 to get to the KJRA.

As the name Kansas Judicial Review Act implies, courts use the KJRA when
reviewing agency actions and, if the court finds an error in the agency action, in
providing a remedy. Nothing in the KJRA allows courts to issue advisory opinions to the
executive branch—the only outcome KDR argues can result from the 2016 amendment to
subsection (p). Instead of making courts advisory bodies, the KJRA empowers courts to
9
substantively review administrative actions, determine the validity of the action, and
provide a remedy if the agency acted erroneously. See K.S.A. 77-621 ("[1] The burden of
proving the invalidity of agency action is on the party asserting invalidity; and [2] the
validity of agency action shall be determined in accordance with the standards of judicial
review provided in this section."); K.S.A. 77-622 (allowing courts reviewing agency
action to award damages and provide "other appropriate relief," including setting aside an
administrative order).

As part of this framework, K.S.A. 2019 Supp. 8-1020(p) defines the issues a court
can consider when reviewing the administrative suspension order. Before 2016, only one
sentence in subparagraph (p) addressed the potential issues: "The court shall take
testimony, examine the facts of the case and determine whether the petitioner is entitled
to driving privileges or whether the petitioner's driving privileges are subject to
suspension or suspension and restriction under the provisions of this act." The sentence
ends with five important words: "under the provisions of this act." Those words
conveyed that a court's review linked back to subsection (h), which provides an exclusive
list of issues the administrative hearing officer can consider. See Martin, 285 Kan. at
631-32. But after the 2016 amendment, that sentence is followed with the addition of
another issue courts can—and in some cases shall—consider: Courts are to "consider and
determine any constitutional issue, including, but not limited to, the lawfulness of the law
enforcement encounter."

The words "[n]otwithstanding K.S.A. 77-617" introduce the directive for courts to
consider constitutional issues. These words counter an argument advanced by KDR. It
argues that if the Legislature intended to substantively expand a court's scope of review—
or at least if it wanted to reconcile the new issue with the phrase "under the provisions of
this act"—it needed to add constitutional issues to the law enforcement officer's
certification and to the exclusive list of issues a hearing officer can consider. In part, this
10
argument builds on a point made in Martin: Courts conducting judicial review of an
agency action cannot usually consider issues not raised before the agency, including
constitutional issues. Martin, 285 Kan. at 634 ("[R]aising any potentially controlling
constitutional issue at the time of the administrative hearing [is] the wise course for a
driver who wishes to preserve the issue for judicial review in the district court and
beyond.").

But the new words in subsection (p) stating, "[n]otwithstanding K.S.A. 77-617,"
convey it does not matter that the constitutional issues were not part of the law
enforcement officer's certification or the hearing officer's review. But for those words,
K.S.A. 77-617 would apply and a court would not have authority under the act to
consider the constitutional issue. And the situation would be as discussed in Martin: The
statute would not have made compliance with the Constitution a statutory requirement for
a valid suspension order. 285 Kan. at 639. Here, however, the Legislature provided an
exception through the 2016 amendment that allows the petition to include any
constitutional issue and allows the court to "consider and determine" the issue even if the
petition does not include the issue. Under the current statute, a failure to comply with the
Constitution becomes a violation subject to review and remedy under the act. See
Ostmeyer, 16 Kan. App. 2d 639; Meigs, 16 Kan. App. 2d 537.

The exception allowing a court to consider the constitutional issue follows the
directive that the court will "examine the facts of the case and determine whether the
petitioner is entitled to driving privileges or whether the petitioner's driving privileges are
subject to suspension or suspension and restriction." K.S.A. 2019 Supp. 8-1020(p). Had
the Legislature provided only that a court "may" consider constitutional issues, KDR's
arguments might have been more persuasive. But the Legislature directed that a court
"shall" consider constitutional issues raised in the driver's petition for review. The two

11
sentences, when read together, convey a legislative intent to make the constitutional issue
a substantive basis for invalidating the administrative order.

KDR, though, also complains the provision does not explicitly declare that
constitutionality or legality of the stop is an allowable ground for review of the agency
action in the usual way courts "review" administrative actions under the KJRA.
Apparently struggling to reconcile the language of the 2016 amendment with its view that
the provision is simply procedural, KDR argues that "[o]ne could speculate that there is
value in having judicial determination on such issues for law enforcement officers in the
conduct of their duties. But ultimately that is speculation." As KDR goes on to point out,
courts do not speculate as to intent. And KDR concedes that, if read this way, the
provision would have no practical effect—in other words, it would be meaningless. But
KDR argues that "[a]ny objection that this makes the provision 'meaningless' is ultimately
an objection against the analysis of Martin and its progeny." In this context, KDR cites
Kingsley v. Kansas Dep't of Revenue, 288 Kan. 390, 396, 204 P.3d 562 (2009), in which
we observed that a driver whose license has been suspended "may raise Fourth
Amendment claims, but such claims have no practical effect."

Through this argument, KDR suggests the language of subsection (p) is
ambiguous. Let us assume for the sake of argument that it is and that the reference to the
KJRA does not clearly and unambiguously allow courts to "review," as that word is used
in the KJRA, the constitutionality of the law enforcement encounter. When a statute is
ambiguous, we turn to rules of statutory construction, Gross, 308 Kan. at 10, and under
those rules KDR's point would still fail. We reach this conclusion for at least four
reasons.

First, courts construing statutes presume the Legislature does not intend to enact
meaningless legislation. State v. Keel, 302 Kan. 560, 574, 357 P.3d 251 (2015); Milano's
12
Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 501, 293 P.3d 707 (2013). Read the way
KDR proposes, the 2016 amendment would be meaningless.

Second, the legislative history reveals an intent to authorize courts to consider
constitutional issues the hearing officer did not review and to make that review
"meaningful" by allowing the court to invalidate the administrative order if it flows from
an unconstitutional law enforcement encounter. Upon the House of Representatives'
request for a study of the proposed legislation that led to the 2016 amendments, a Judicial
Council committee observed in its report that simply allowing a driver to raise a
constitutional issue was "virtually meaningless." The committee advocated that "licensees
should be allowed a meaningful opportunity to challenge the legality of a traffic stop,
which the Committee determined should be decided by the district court and not the
administrative hearing officer." Report of Judicial Council Criminal Law Advisory
Committee on House Bill 2289, 4, 7 (December 4, 2015).

Third, when the Legislature revises an existing law, courts presume the
Legislature intended to change the law as it existed prior to the amendment. State v.
Preston, 287 Kan. 181, 184, 195 P.3d 240 (2008). And courts presume the Legislature
acts with full knowledge of existing law. State v. Henning, 289 Kan. 136, 144-45, 209
P.3d 711 (2009). KDR's construction of the statute would result in no change in the law;
it would instead retain the effect of Martin's holdings, providing no remedy for a
constitutional violation. We presume the Legislature intended to make the provision
meaningful and to change the law.

Finally, we note that KDR's argument asks us to contort the plain language to
arrive at an unconstitutional meaning. Kansas courts lack the constitutional authority to
issue advisory opinions, whether about the constitutionality of an officer-citizen
encounter or anything else. State ex rel. Morrison v. Sebelius, 285 Kan. 875, 888-89, 179
13
P.3d 366 (2008). Yet a court's consideration and determination of the lawfulness of a law
enforcement encounter would serve only as advice to law enforcement officers under
KDR's interpretation of the 2016 amendment. Although our "duty to give effect to the
plain language of an unambiguous statute is not diluted just because that effect renders
the statute unconstitutional," here, we are not using the doctrine of constitutional
avoidance to change the meaning of unambiguous statutory language. Hoesli v. Triplett,
Inc., 303 Kan. 358, 367, 361 P.3d 504 (2015). We presume the Legislature intends to
pass constitutional legislation and cite the constitutional issue for the sole purpose of
pointing out the fallacy of KDR's argument. See State v. Laturner, 289 Kan. 727, 735,
218 P.3d 23 (2009) (courts presume statute to be constitutional, with all doubts resolved
in favor of validity).

In other words, while we determine that the plain meaning of the provision defeats
KDR's argument that the Legislature did not intend to create a new ground for review of
a suspension order, application of rules of construction leads to the same conclusion.

In summary, contrary to KDR's argument, subsection (p) is more than a procedural
statute. It defines the issues a court may consider when reviewing an order of suspension
and, after 2016, it authorizes a determination of the constitutionality of the law
enforcement encounter even if the driver did not raise constitutionality in the petition for
review. It also provides the court "shall" consider a constitutional issue raised in the
petition for review. And when it says the court will "determine" the issue it echoes the
prior use of "determine" that directs the court to either affirm the suspension order or set
it aside. See, e.g., K.S.A. 2019 Supp. 8-1020(p) ("The court shall take testimony,
examine the facts of the case and determine whether the petitioner is entitled to driving
privileges or whether the petitioner's driving privileges are subject to suspension or
suspension and restriction under the provisions of this act.").

14
 We thus hold that, on petition for review asking for the invalidation of a
suspension order, a court can consider whether the order arises from an unlawful law
enforcement encounter.

1.2. An unlawful stop is a basis for setting aside a suspension order.

The overall framework of subsections (o), (p), and (q) of K.S.A. 2019
Supp. 8-1020 also undercuts KDR's argument that setting aside the suspension order is
not a permissible remedy for an unlawful traffic stop. To support this argument, KDR
asserts no language explicitly authorizes a court to set aside the suspension if the court
determines the law enforcement encounter was unlawful.

Contrary to this view, subsections (o) through (q) contain explicit provisions
allowing invalidation of the order after determination of an issue that is subject to the
court's review. Returning to the first sentence of subparagraph (o), through its
incorporation of K.S.A 2019 Supp. 8-259, it defines the type of relief that can result from
judicial review of a suspension order: "The court shall take testimony, examine the facts
of the case and determine whether the petitioner is entitled to driving privileges or
whether the petitioner's driving privileges are subject to suspension, cancellation or
revocation." K.S.A. 2019 Supp. 8-259(a). Subsection (p) also provides for a trial de novo
and repeats the determination the court is to make: "The court shall take testimony,
examine the facts of the case and determine whether the petitioner is entitled to driving
privileges or whether the petitioner's driving privileges are subject to suspension or
suspension and restriction under the provisions of this act." And subsection (q)
underscores that the appropriate remedy is to set aside KDR's administrative order if
Jarvis carries his burden because it provides: "Upon review, the licensee shall have the
burden to show that the decision of the agency should be set aside." (Emphasis added.)

15
Through this language, the Legislature provided a practical effect—the suspension order
stays in place or it is set aside.

KDR also argues a district court has remedies available other than reversal. It
points to the various remedies available under the KJRA through K.S.A. 77-622(b),
which gives a district court authority to grant a wide range of "other appropriate relief."
One type of appropriate relief is a judgment that sets aside an administrative order.
Because subsections (p) and (q) allow for the remedy of setting aside the suspension—the
remedy here imposed by the district court—we need not decide whether other remedies
are available to a district court. For our analysis today, the fact the Legislature provided
remedies if an unconstitutional encounter occurs—whether the remedy arises from
subsection (q) alone or along with K.S.A. 77-622(b)—highlights the intent a court do
more than advise and makes clear that the district court judge could set aside Jarvis'
suspension if Jarvis met his burden of proof.

We thus conclude K.S.A. 2019 Supp. 8-1020 provides a remedy of setting aside
the suspension order for any reason within a court's review.

1.3. KDR's arguments about the exclusionary rule and policy are unpersuasive.

KDR advances two more arguments.

In one, KDR embraces the analysis of the Court of Appeals panel in Whigham v.
Kansas Dept. of Revenue, No. 117,043, 2018 WL 1884742 (Kan. App. 2018)
(unpublished opinion) (affirming district court's judgment upholding suspension), rev'd
and remanded 312 Kan. ___, ___P.3d ___1602 (this day decided). There, Patrick
Whigham argued a district court judge reviewing his driver's license suspension order
erred by not suppressing evidence of his test refusal. He contended the 2016 amendments
16
to subsection (p) of K.S.A. 2019 Supp. 8-1020 legislatively overturned the Martin
holding that the exclusionary rule cannot be used in a driver's license administrative
proceeding.

The Whigham Court of Appeals panel rejected that argument. It noted the lack of
any "declarative language (allowing the suppression of illegally seized evidence)" in
subsection (p). The panel reasoned that, had it been "the Legislature's intent to overrule
the Martin holding or to allow the suppression of illegally seized evidence in
administrative suspension hearings, the Legislature could have clearly expressed this
intent." 2018 WL 1884742, at *3.

Even if the Whigham panel correctly concluded the 2016 amendment does not
explicitly address the exclusionary rule, that does not analytically impact our holding
that a court can invalidate a suspension order because of an unlawful law enforcement
encounter. 285 Kan. at 639-40.

In large part that is because the driver in Martin raised the exclusionary rule as an
alternative route for relief if the court held the statute did not grant authority to
invalidate the order based on the unconstitutionality of the underlying law enforcement
encounter. And the Martin court turned to the alternative judicial and constitutional
exclusionary rule argument only after first holding that the hearing officer and the court
lacked statutory authority under K.S.A. 2019 Supp. 8-1020(p) to invalidate a suspension
order because of an unconstitutional law enforcement encounter. 285 Kan. at 639-40.

Today, we hold that the 2016 amendment to K.S.A. 2019 Supp. 8-1020(p)
expresses an intent to give courts authority to review, consider, and determine the
constitutionality of the law enforcement encounter. This grant of authority provides
access to the statutory remedy identified in K.S.A. 2016 Supp. 8-1020(o) through (q) of
17
invalidating the suspension order and setting it aside. In this way, the 2016 amendment
statutorily provided a remedy—a remedy available during court review—without need
to resort to the constitutional exclusionary rule.

Finally, KDR contends allowing courts to consider the lawfulness of the law
enforcement encounter is contrary to the public policy of getting impaired drivers off
Kansas roadways. We simply note that "'questions of public policy are for legislative and
not judicial determination, and where the legislature does so declare, and there is no
constitutional impediment, the question of the wisdom, justice, or expediency of the
legislation is for that body and not for the courts.'" State v. Spencer Gifts, 304 Kan. 755,
765, 374 P.3d 680 (2016) (quoting State ex rel. v. Kansas Turnpike Authority, 176 Kan.
683, 695, 273 P.2d 198 [1954]).

Our role is to interpret the plain language of K.S.A. 2019 Supp. 8-1020. Having
done so, we hold that on judicial review under K.S.A. 2019 Supp. 8-1020(p), a court may
consider any constitutional issue, including the lawfulness of the law enforcement
encounter. And under K.S.A. 2019 Supp. 8-1020(q) a court may set aside a driver's
license suspension order if the driver meets the burden of establishing the encounter was
unlawful.

2. No Reasonable Suspicion

Having determined the district court could review the lawfulness of the law
enforcement encounter that led to the suspension of Jarvis' license, we turn to KDR's
argument that the district court erred in concluding Jarvis met the burden of establishing
the encounter was unlawful. The district court held that the law enforcement officer
lacked a reasonable suspicion that Jarvis had broken the law and therefore lacked a
constitutional basis to seize Jarvis through a traffic stop.
18
 Three fundamental principles frame Jarvis' argument. First, a traffic stop, even one
leading to administrative rather than criminal proceedings, is a seizure. Martin, 285 Kan.
at 636. Second, the Fourth Amendment to the United States Constitution and § 15 of the
Kansas Constitution Bill of Rights protect from unreasonable and unlawful searches and
seizures. 285 Kan. at 635. Third, to comply with the Fourth Amendment and § 15, the
officer conducting the traffic stop must have a reasonable and articulable suspicion that
the driver has, is, or will be committing a crime. K.S.A. 22-2402(1); Terry v. Ohio, 392
U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Martin, 285 Kan. at 636.
"'"Reasonable suspicion means a particularized and objective basis for suspecting the
person stopped is involved in criminal activity. Something more than an unparticularized
suspicion or hunch must be articulated."'" City of Wichita v. Molitor, 301 Kan. 251, 257,
341 P.3d 1275 (2015) (quoting State v. Pollman, 286 Kan. 881, 890, 190 P.3d 234
[2008]). Cumulatively, these principles mean that the law enforcement officer who
stopped Jarvis needed a particularized and objective basis for suspecting that Jarvis had
committed or was committing a crime, including a traffic offense, or would commit a
crime before stopping Jarvis' car. Martin, 285 Kan. at 636.

Whether reasonable suspicion exists is a factual determination. The question is not
whether the appellate court would have made the same decision, but whether the district
court's decision is supported by substantial competent evidence. An appellate court does
not reweigh evidence, make witness credibility determinations, or resolve evidentiary
conflicts. State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018). Even if appellate
jurists might have made different findings had they been in the position of the district
court, an appellate court does not second guess a district court's decision if it hinges on
substantial competent evidence and reasonable inferences drawn from that evidence.
Casper v. Kansas Dept. of Revenue, 309 Kan. 1211, 1221, 442 P.3d 1038 (2019); see
State v. Lowery, 308 Kan. 359, 367, 420 P.3d 456 (2018) ("On appellate review, our
19
deference is not to particular witnesses but to the fact-finder who has resolved an
evidentiary conflict.").

Here, the law enforcement officer asserted he held a reasonable suspicion because
Jarvis had committed a traffic infraction on his seeing Jarvis weaving in his lane, crossing
the center line, and almost hitting a mailbox. The district court judge did not suggest that
these could not be legally valid reasons for a stop if supported by a factual basis. But the
judge found the officer lacked a factually credible basis for finding a reasonable
suspicion for the traffic stop. A review of the record shows that the judge's factual
findings are supported by substantial competent evidence.

The judge made these findings:

 The police dashcam video of the incident begins with Jarvis' vehicle on a road
with marked lanes. Jarvis legally proceeded through an intersection and onto a
road without lane markings. The officer testified that the purported traffic
infractions took place on the portion of the road without markings.

 The officer notified dispatch of his intent to make a traffic stop. During this
time Jarvis made two turns and properly signaled both times.

 The officer activated the police lights, and Jarvis responded in an appropriate
manner, did not excessively brake or jerk his vehicle, and stopped his vehicle.

 Although the officer testified that he witnessed Jarvis weaving and almost hit a
mailbox while on the portion of the road without marked lanes, all of which is
on the video, the video did not support that testimony. Nor did the officer
mention anything about a mailbox in his official and purportedly complete

20
 report of the incident. And during the hearing, the officer could not show the
court on the video the near-miss of the mailbox.

 Despite being given an opportunity on cross-examination to say that the
purported traffic infractions happened before the start of the video, the officer
testified that they happened on the portion of the road without marked lanes, all
of which is on the video.

Based on these findings, the district court found that the traffic stop was
pretextual. The court also found the officer's "observed demeanor and other testimony he
gave undermined his credibility on the articulated facts to support his claim of any actual
traffic infraction or of any other reasonable suspicion to justify his stop and encounter
with the Petitioner." The court then concluded that "[w]ithout the traffic infractions, the
Officer articulated no credible reasonable suspicion justifying the stop and initial
encounter. Suspicion, in order to be reasonable, must be based upon objective articulated
facts. That articulation must not be false. In this case, it is found to be untrue."

The district court judge's conclusion the officer lacked a reasonable suspicion for
the arrest is supported by factual findings. And, in turn, the judge's factual findings are
supported by substantial competent evidence. Because the stop was unlawful and violated
Jarvis' constitutional rights, the district court did not err in setting aside the suspension of
Jarvis' driver's license.

We affirm the Court of Appeals decision affirming the district court. We affirm
the district court's reversal of the administrative order suspending Jarvis' driver's license.

21
 MICHAEL E. WARD, Senior Judge, assigned. 1

1
REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 119,116 under the
authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the
retirement of Chief Justice Lawton R. Nuss.

22