State v. Byard

NOT DESIGNATED FOR PUBLICATION

No. 121,703

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MAEGAN R. BYARD,
Appellant.

MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed October 9, 2020.
Affirmed.

Jacob Nowak, of Kansas Appellate Defender Office, for appellant.

Natasha Esau, assistant district attorney, Keith Schroeder, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before HILL, P.J., MALONE, J., and WALKER, S.J.

PER CURIAM: Maegen R. Byard appeals her convictions for possession of
methamphetamine, drug paraphernalia, and marijuana. Byard challenges the district
court's denial of her motion to suppress evidence seized during a vehicle search after a
traffic stop. After a thorough review of Byard's claims, we find they lack merit and affirm
the district court's refusal to suppress the evidence.

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 FACTS

On an evening in April 2018, Officer Cory Schmidt of the Hutchinson Police
Department initiated a traffic stop of a black Kia Optima driven by Byard. Upon
contacting Byard, Officer Schmidt detected the odor of unburnt marijuana. Relying on
this odor for their probable cause, Officers Schmidt and Scott Finster searched the car,
finding marijuana, methamphetamine, and multiple items of drug paraphernalia in the
center console and inside Byard's purse. When the officers asked Byard about the items,
she admitted using methamphetamine the previous weekend and said that anything in the
vehicle was probably leftover from that time. Byard also said she had bought some
marijuana earlier that day, but the marijuana in the car was from a previous day.

After the officers arrested Byard, the State later charged her with one count each
of possession of methamphetamine, possession of drug paraphernalia, possession of
marijuana, and driving while declared a habitual violator. At the preliminary hearing,
Officer Schmidt testified that Byard's vehicle was failing to maintain its lane, so he
conducted a traffic stop. When he contacted her, he detected the smell of unburnt
marijuana. That prompted Schmidt to ask her to exit the vehicle and he "proceeded to
search the vehicle under the Carroll doctrine." See Carroll v. United States, 267 U.S.
132, 45 S. Ct. 280, 69 L. Ed. 543 (1925) (first recognizing "automobile exception," which
allows warrantless search of vehicle based on probable cause); State v. Howard, 305 Kan.
984, 990, 389 P.3d 1280 (2017) (search of automobile permitted if there is probable
cause; mobility of vehicle provides exigent circumstances without necessity of proving
anything more).

Byard moved to suppress the evidence

As a pretrial matter, Byard moved to suppress the evidence from the search,
arguing that Officer Schmidt lacked reasonable suspicion of a traffic violation to justify

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the traffic stop. She contended the district court should suppress the evidence because it
was obtained through an unlawful and unconstitutional search and seizure.

The district court held a hearing on the motion in January 2019, at which Officers
Schmidt and Daniel Nowlan testified. The court also viewed a dash cam video from
Officer Schmidt's patrol car and Officer Nowlan's body cam video. Because the
testimony of the officers and the video evidence are critical in resolving the issues, we
will review them in some detail.

Testimony of Officers Schmidt and Nowlan

Officer Schmidt testified that on that evening he was patrolling near the
intersection of 17th and Severance in Hutchinson. While doing so, he noticed a black Kia
travelling westbound that sped up to get through the traffic light at that intersection. He
began following the vehicle "to make sure that no more traffic infractions were
committed." Schmidt acknowledged "[t]hat itself wasn't a traffic infraction, but it was just
enough to catch [his] attention." A few blocks later, at 17th and Cleveland, he noticed the
vehicle's left tires go into a left turn lane without signaling and then continue to go
straight through the intersection. The tires "completely went over the line" into the turn
lane and Schmidt estimated "a quarter to a fifth of the vehicle" was in the turn lane.
Traffic in the area was moderate to light, and there were no obstacles in the road that
required Byard to move into the turn lane. Schmidt recognized that failing to maintain a
single lane was a possible clue of impairment, so he continued following the Kia.

From there, Officer Schmidt testified the Kia continued traveling west. Then, just
past the intersection of 17th and Plum the vehicle's left tires slightly crossed the double
yellow line separating the westbound lane from oncoming traffic. There was an
oncoming vehicle slowing down with its turn signal on, but Schmidt did not see where
that vehicle turned because he was focusing on the Kia. Schmidt said he did not manually

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activate his dash cam at that time because he "was still trying to determine, gather
reasonable suspicion to stop the vehicle." Once he activated the emergency lights, the
dash cam automatically began recording 30 seconds from that activation, which meant
the very beginning of the dash cam video captured only the second incident at the
intersection of 17th and Plum. The district court then admitted Officer Schmidt's dash
cam video and viewed it during the hearing.

Officer Schmidt then testified that he contacted the driver of the Kia, who
identified herself as Byard. Schmidt said he ran her name and information through
dispatch and discovered she had a suspended Kansas driver's license and an outstanding
warrant. Schmidt estimated he made that discovery "[w]ithin the first 5 to 10 minutes,
probably."

On cross-examination, Officer Schmidt clarified that he activated his emergency
lights only after he felt that there was reasonable suspicion of impaired driving. He said
Byard's driving pattern resembled what he had seen of intoxicated drivers in the past. He
believed that the two incidents of failing to maintain a lane could have led to an accident
if he did not stop the vehicle.

As for the actions that first caught his attention, Officer Schmidt said he believed
Byard was driving over the speed limit but did not have a functioning radar to verify his
belief. He did not feel comfortable stopping her for speeding. Schmidt acknowledged that
neither his initial report nor his testimony at the preliminary hearing included his
observation that Byard initially sped up to get through the light.

As for the first instance of a potential lane violation, Officer Schmidt testified this
instance was "minimal" as compared to "the grand scheme of things of criminal
wrongdoing." He said it was a traffic infraction but did not stop Byard at this point
because he was still gathering reasonable suspicion for driving under the influence. As

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for the second instance of a potential lane violation, Officer Schmidt said he now
believed Byard was putting others at risk, so he activated his emergency lights to begin
the traffic stop.

Officer Nowlan, one of the backup officers who assisted with the traffic stop, also
testified. He arrived after Officer Schmidt had already begun the stop and had his body
cam activated upon arrival. Over Byard's objection, the district court admitted and
viewed Officer Nowlan's body cam video as evidence.

Dash cam video summary

Officer Schmidt's dash cam video began at around 8:02 p.m., when the left tires of
the Kia were already approaching the double yellow line separating the lanes. Within the
first two seconds, the vehicle's left tires were fully over the yellow lines as an oncoming
vehicle approached from the other lane moderately close to the Kia. About 10 seconds
later, as Officer Schmidt continued following the Kia, he activated the emergency lights
on his patrol car. Byard continued driving for about 20 more seconds before eventually
turning and pulling off onto a side street, where Officer Schmidt finally contacted her.

Schmidt's dash cam video does not contain an audio track. Following the stop,
Officer Schmidt can be seen on the video talking to Byard at the driver's side window,
reviewing paperwork she handed him, and questioning her for several minutes after she
stepped out of the Kia. About seven minutes into the stop Officer Nowlan and other
backup officers arrived, and Schmidt and Nowlan are shown on the dash cam video
searching Byard's vehicle.

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 Body cam video summary

Officer Nowlan's body cam video, which included audio, began at about 8:10 p.m.
as he arrived at the traffic stop. As he walked up, Officer Schmidt could be heard
explaining to Byard that they were going to search her vehicle. At the beginning of the
search, Schmidt told Nowlan they were searching for marijuana and asked Nowlan, "Can
you smell it?" Schmidt said, "It's not as strong now cause she's rolled down this window,"
and that he "smelled it when [unintelligible]."

The rest of the video showed the officers searching the vehicle and discovering
small containers of methamphetamine and marijuana, as well as a burnt one-hitter pipe.
After the search, Officer Schmidt could be seen Mirandizing and interrogating Byard,
who eventually disclosed that she used methamphetamine that weekend, that she had
bought marijuana earlier in the day, and admitting the contents of the vehicle belonged to
her.

District court's ruling

After reviewing the testimony and videos and considering the parties' arguments
on the motion to suppress, the district court ultimately denied the motion. The court
began by noting that Officer Schmidt's testimony that he observed the Kia speed up to get
through the intersection at 17th and Severance—presumably because of a yellow traffic
light—"doesn't quite make sense because if the officer was behind her and he didn't see
an infraction then that means he would have went through the red light." The court also
pointed out that despite not mentioning it in his report or at the preliminary hearing,
Schmidt testified he did not consider this initial incident to be a traffic violation.

As for the first instance in which Byard's vehicle briefly moved into the turn lane
at 17th and Cleveland, the district court judge pointed out his own experience driving

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through that intersection "would explain why [Byard] went over the line." The judge
noted that

"17th is a two lane road and there is a short third lane to make the turn lane and what they
do is they basically turn the straight through lanes outward so you actually have to make
a small jog to the left [sic], and then make a jog back to the left. Having been on that road
for 40-some years that if you just drive straight through and you're driving that, in fact,
would explain why the defendant went over the line. Because she didn't, late at night, I
don't suspect, I suspect if you go by there I suspect you could find a lot of cars that do
that."

As for the second instance near 17th and Plum, the district court found the vehicle
touched the double yellow line but the court "didn't see any danger to any of the vehicles"
because "[t]here was no swerving or anything else." The judge then concluded the
discovery of the outstanding warrant attenuated the search, explaining:

"So as far as the initial reasonable suspicion to stop, I find that extremely weak, but what
the court's going to rely on is, I don't think the officer was acting in good faith. I think he
was attempting to testify in a credible fashion and once they found there was an
outstanding warrant then that would attenuate the search.
"And the reason I had it replayed is I don't, apparently Officer Schmidt didn't
have his body cam on for some reason when he made his stop which might have been
some benefit to the court. And he didn't testify he, Officer Schmidt didn't testify about the
odor of alcohol—or the odor of marijuana. You had to glean that to make sure that he
smelled it from the body cam of the second officer.
"But notwithstanding that, based upon the United States Supreme Court case that
came down recently, once there was an arrest warrant for the defendant that attenuated
any problems that existed in the search. And I would have to find that the officer acted in
bad faith and I can't make that finding in this case."

The district court also issued a written order denying the suppression motion in
March 2019. That order recited the following facts:

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 "Officer Schmidt was on routine patrol on April 22, 2018 at approximately 8:00 p.m. He
observed the Defendant's vehicle speed up to make a traffic signal at 17th and Severance.
The Officer decided to follow the vehicle.
"The vehicle was westbound on 17th Street. In the 700 block of 17th, Officer
Schmidt observed the Defendant's vehicle substantially cross over into the turning lane.
As the Defendant crossed the intersection of 17th and Plum, her vehicle's tires touched
the center line. There was oncoming traffic at the time of the touching of the center line.
At that time the officer made a determination to stop the vehicle."

The district court then made these findings:

"The Court finds the testimony of Officer Schmidt to be credible. The initial
observation of speeding up to make a light is insufficient to warrant a traffic stop. The
Officer then observed the Defendant's vehicle cross into the turning lane north of Graber
School. The crossing into the turning lane was not incidental or minimal. A substantial
portion of the vehicle entered the turning lane.
"There is video of the vehicle crossing the intersection of 17th and Plum. The
vehicle did touch the center line as it exited the intersection. The failure to maintain lane
was not as obvious as the prior failure to maintain lane of traffic. The video does
substantiate the testimony of the officer concerning other traffic.
"While the traffic violations observed by Officer Schmidt were not egregious,
they were sufficient to justify the stop of the Defendant's vehicle. Once the officer
smelled the odor of marijuana, probable cause existed to allow a search of the vehicle.
The motion to suppress is denied."

Byard agreed to a bench trial on stipulated facts

About two months after the written ruling, the parties agreed to a bench trial on
stipulated facts. The stipulated facts provided the evidence presented at trial would show
that Officer Schmidt initiated a traffic stop of Byard's vehicle for failure to maintain a
lane of traffic; Schmidt detected the odor of unburnt marijuana coming from the vehicle
upon contacting her; officers searched the vehicle and discovered methamphetamine,

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marijuana, and drug paraphernalia; and Byard ultimately admitted the items discovered in
the vehicle belonged to her. Byard also renewed her objection to the admission of the
evidence, thus preserving the right to appeal the court's denial of the suppression motion.

At a hearing, the district court found Byard guilty of the charged offenses, except
that the State amended the driving while a habitual violator charge to one count of
driving while suspended. Based on her criminal history score of H, the court ultimately
sentenced Byard to a controlling underlying sentence of 13 months' imprisonment for the
possession of methamphetamine charge as the primary offense, running the other three
charges concurrently, and setting aside the prison sentence for an 18-month probation
term.

Byard timely appealed.

ANALYSIS

Reasonable suspicion for the stop of Byard's vehicle

Byard first argues the district court erred in denying her motion to suppress
because Officer Schmidt lacked reasonable suspicion of criminal activity at the time of
the traffic stop. She contends the traffic infraction statute relied on by the officer required
the State to show "more than an incidental and minimal lane breach." State v. Marx, 289
Kan. 657, 674, 215 P.3d 601 (2016). Because the district court acknowledged the
"unusual road design" contributed to the first instance of Byard's alleged failure to
maintain a lane and the State "conceded the second instance was an incidental or minimal
lane breach," Byard asserts the State failed to establish reasonable and articulable
suspicion to justify the traffic stop.

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 In response, the State essentially argues that Officer Schmidt's testimony was not
simply about the lane violations, but that the two instances of a lane violation led him to
believe Byard may have been intoxicated.

When reviewing a district court's decision on a motion to suppress, we utilize a
bifurcated standard. First, we review the district court's factual findings to determine
whether they are supported by substantial competent evidence. In reviewing the factual
findings, we do not reweigh the evidence or assess the credibility of witnesses. Second,
we then review the district court's ultimate legal conclusions de novo. State v. Hanke, 307
Kan. 823, 827, 415 P.3d 966 (2018). Likewise, where the issue requires interpreting a
statute, it presents a question of law subject to unlimited review. State v. Alvarez, 309
Kan. 203, 205, 432 P.3d 1015 (2019). And when faced with a motion to suppress
evidence, the State bears the burden to prove that a search and seizure was lawful. State
v. Ton, 308 Kan. 564, 568, 422 P.3d 678 (2018).

Similarly, when the parties do not dispute the material facts of the case, the
suppression question becomes solely a question of law that this court reviews de novo.
See Hanke, 307 Kan. at 827. That appears to be true here, since Byard does not dispute
either instance in which her vehicle failed to maintain a single lane. Instead, she disagrees
with the district court's ultimate legal conclusion that observing these two instances gave
Officer Schmidt reasonable suspicion to justify the traffic stop.

A traffic stop is a seizure under the Fourth Amendment to the United States
Constitution, so it is subject to the constitutional requirement of reasonableness. State v.
Smith, 286 Kan. 402, 406, 184 P.3d 890 (2008). To justify this type of seizure, an officer
needs only reasonable suspicion, which is "'a particularized and objective basis for
suspecting the particular person stopped'" of breaking the law. State v. Schooler, 308
Kan. 333, 352, 419 P.3d 1164 (2018); see also K.S.A. 22-2402(1) (codifying the search

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and seizure principles from Terry v. Ohio, 392 U.S. 1, 20-21, 88 S. Ct. 1868, 20 L. Ed. 2d
889 [1968]). Reasonable suspicion is a lower standard than probable cause, and

"'[w]hat is reasonable depends on the totality of circumstances in the view of a trained
law enforcement officer.' The totality of the circumstances standard 'allows officers to
draw on their own experience and specialized training to make inferences from and
deductions about the cumulative information available to them.' A reviewing court must
give 'due weight' to the factual inferences drawn by both the district court and law
enforcement officers. [Citations omitted.]" Schooler, 308 Kan. at 352.

The Kansas Supreme Court has also held that pre-stop observations of a traffic
infraction establish an objectively reasonable justification to make a traffic stop, even if
the stop is pretextual. Marx, 289 Kan. at 662.

Here, the parties agree that Officer Schmidt observed Byard's vehicle fail to
maintain a single lane twice leading up to the traffic stop. The relevant Kansas statute for
that violation is K.S.A. 2019 Supp. 8-1522(a), which provides: "A vehicle shall be
driven as nearly as practicable entirely within a single lane and shall not be moved from
such lane until the driver has first ascertained that such movement can be made with
safety."

Thus the district court had to determine whether Officer Schmidt's testimony—that
he observed Byard's vehicle partially cross into a left turn lane without turning—and the
dash cam video showing her vehicle touching a double yellow center line a few blocks
later were enough to meet the State's burden of proving there was reasonable suspicion of
a violation of K.S.A. 2019 Supp. 8-1522(a). Byard argues that because the statute only
requires a driver to maintain a lane "as nearly as practicable," the State needed to show
"more than an incidental and minimal lane breach" to establish a violation. See Marx, 289
Kan. at 674. And since the State conceded the second instance captured on the dash cam
video was only an incidental or minimal lane breach, Byard contends the State failed to

11
prove Officer Schmidt had reasonable suspicion based on the first instance. Her argument
is unpersuasive to us.

Both parties recognize that the prior Kansas Supreme Court decision in Marx, 289
Kan. 657, controls this issue. In Marx, a deputy was providing roadside assistance to a
motorist on the Kansas Turnpike when a passing motorhome lost a hubcap. The deputy
retrieved the hubcap and drove to catch up with the motorhome and, in doing so, he
noticed that the motorhome briefly crossed the fog line and then overcorrected and
crossed the center line. He activated his lights to conduct a traffic stop and, ultimately,
ended up searching the vehicle and discovering drugs and paraphernalia. The district
court suppressed this evidence, finding in part that the State failed to carry its burden to
prove the deputy had reasonable suspicion of a violation of K.S.A. 8-1522(a). After a
panel of this court reversed that ruling on the State's interlocutory appeal, the defendants
appealed to the Kansas Supreme Court, which reversed on the reasonable suspicion issue.
289 Kan. at 658.

Analyzing K.S.A. 8-1522(a), the Kansas Supreme Court rejected the view that a
violation of this provision was a strict liability offense. The Marx court determined the
statute essentially establishes two rules:

"The first requires a driver to keep entirely within a single lane while traveling on a
roadway with two or more clearly marked lanes. That rule is temporarily suspended when
it becomes impracticable to stay within the lane markers and when the driver is properly
effecting a lane change. Proof that driving outside the lane markers created no safety
hazard is not a defense to the single lane rule. The second rule provides that before a
driver may change lanes or move from the current lane of travel to another location, he or
she must ascertain that the movement can be made with safety. A traffic infraction occurs
under K.S.A. 8-1522(a) when either rule of the road is violated." (Emphasis added.) 289
Kan. at 673.

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 The Marx court held that the language used—"as nearly as practicable"—
"contradicts the notion that any and all intrusions upon the marker lines of the chosen
travel lane constitute a violation." 289 Kan. at 674. Yet, "the statute even dilutes the
practicability standard" because "[i]t only requires compliance with the single lane rule as
nearly as practicable, i.e., compliance that is close to that which is feasible." 289 Kan. at
674. So in other words, "an incidental and minimal lane breach" is not enough to
establish a violation of K.S.A. 8-1522(a). 289 Kan. at 674.

The Marx court then found that the State failed to carry its burden of establishing
the officer had reasonable suspicion of a traffic violation, since the officer's testimony
was basically limited to his general observation about a singular instance of failing to
maintain a single lane. The Marx court emphasized the lack of testimony proffered "from
which the court could even infer that it was practicable to maintain a single lane" except
the defendant's statement that the motor home was "'hard to drive.'" 289 Kan. at 675-76.

In our case, the dash cam video objectively proves that the second instance of
failure to maintain a lane was indeed incidental or minimal and thus could not establish
reasonable suspicion of a traffic violation based on Marx. That said, the reasonable
suspicion analysis looks at the totality of the circumstances, so viewing either instance in
isolation is inappropriate. See Schooler, 308 Kan. at 352. The proper inquiry requires us
to determine whether the cumulative information leading up to the traffic stop would give
an officer an objectively reasonable basis to make the stop.

Since there is no video evidence of the first instance of an alleged failure to
maintain a lane, we defer to the district court's findings given Officer Schmidt's
testimony. Officer Schmidt testified that Byard's vehicle "went completely over the line"
and that about "a quarter to a fifth of the vehicle" moved into the turn lane. This
movement was apparently significant enough that Schmidt also noted Byard did not
activate her turn signal, suggesting he believed a turn signal violation could have been

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occurring but for the vehicle continuing straight through the intersection. Finally,
Schmidt said it was not windy and there were no obstacles or any other reason for Byard
to enter the turn lane. So, contrary to Byard's assertion, Schmidt's testimony suggests this
first instance was more than an incidental or minimal lane breach and that it was
practicable for her to maintain a single lane at that point.

Byard contends the district court's comments about the "unusual road design" of
the intersection at the first instance undercuts the officer's testimony that it was
practicable to maintain a single lane. She points out that the district court judge took
judicial notice of his own experience driving through that particular intersection, noting
the road design and time of day "would explain why the defendant went over the line"
and that "I suspect you could find a lot of cars that do that."

This argument has some merit. We concur the district court may have overstepped
its authority by relying, at least in part, on its personal familiarity with the two
intersections where the lane violations were alleged to have occurred. In State v. Smith,
308 Kan. 778, 784, 423 P.3d 530 (2018), our Supreme Court held that, under our rules,
"'[a] judge . . . shall consider only the evidence presented and any facts that may properly
be judicially noticed,'" and it determined that the district court had not met the substantive
requirements of the judicial notice statute, K.S.A. 60-409(b)(4). That also appears to be
the case here. But Byard did not register a contemporaneous objection to the district
court's reference to its experiences during the suppression hearing. Additionally, as we
have noted, Byard concedes that Officer Schmidt did, in fact, observe her failure to
maintain a single lane of travel twice leading up to the traffic stop. Under these
circumstances, we believe Byard has effectively waived her right to complain about the
judge's interjection of his personal observations.

But even if we consider these comments by the district court to be improper, it
does not automatically mean it was impracticable for Byard to maintain a single lane.

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Other than referencing Marx, Byard provides no authority finding that the particular
design of a road can make it impracticable to maintain a single lane. Failure to support a
point with pertinent authority or show why it is sound despite a lack of supporting
authority or in the face of contrary authority is akin to failing to brief the issue. State v.
Salary, 309 Kan. 479, 481, 437 P.3d 953 (2019).

Although we have not found any published decisions in Kansas directly
addressing the particular design of a road as a relevant factor, our court has affirmed a
reasonable suspicion finding several times based on similar facts. See State v. Miles, No.
114,544, 2017 WL 383790, at *7 (Kan. App. 2017) (unpublished opinion) (driver crossed
into passing lane on highway only once before returning to original lane, but "to such a
degree that the officer believed that [he] may have failed to signal a lane change"); State
v. Neuman, No. 112,933, 2015 WL 5311263, at *3 (Kan. App. 2015) (unpublished
opinion) (driver crossed over line separating highway from shoulder three separate
times). These unpublished opinions have no precedential value but can still offer
guidance where they have "persuasive value with respect to a material issue not
addressed in a published opinion of a Kansas appellate court [and] . . . would assist in
disposition of the issue." Supreme Court Rule 7.04(g)(2)(B) (2020 Kan. S. Ct. R. 47).

Likewise, panels of our court have upheld convictions of K.S.A. 8-1522(a) on
similar facts. See State v. McGregor, No. 107,855, 2013 WL 1010590, at *4 (Kan. App.
2013) (unpublished opinion) (video evidence showed tires touching the fog line and body
of the vehicle travelling beyond fog line, the road was clearly marked and there were no
obstructions, and that there were three such breaches in just three miles); State v.
Sullivan, No. 104,343, 2011 WL 3795480, at *3 (Kan. App. 2011) (unpublished opinion)
(officer observed driver fail to maintain lane multiple times over course of several miles
and officer testified nothing prevented driver from maintaining lane). Despite McGregor
and Sullivan examining the sufficiency of the evidence to support a conviction, the
considerations made in those cases help us understand what constitutes a violation of

15
K.S.A. 2019 Supp. 8-1522(a). Ultimately, those considerations assist in determining
whether the officer here had reasonable suspicion to believe a traffic violation occurred.

Simply put, Officer Schmidt's testimony about the first instance of a failure to
maintain a lane is enough to establish reasonable suspicion in this case. Schmidt
essentially said that he observed Byard's vehicle driving through an intersection while
occupying two lanes for no apparent reason, which violates K.S.A. 2019 Supp. 8-1522(a).

But even if we held to the contrary and found the first instance was merely an
incidental or minimal lane breach, the fact that Officer Schmidt witnessed two such
breaches in a relatively short time period is notable. Under the totality of the
circumstances, we believe Officer Schmidt's observations would support his belief that
Byard demonstrated signs of possible intoxication. Decisions by several panels of our
court would agree with that conclusion. See Miles, 2017 WL 383790, at *7; Neuman,
2015 WL 5311263, at *3. As a result, we find the district court did not err in concluding
there was reasonable suspicion to initiate a traffic stop in this case. Thus, the district court
correctly decided the motion to suppress should be denied.

The Attenuation argument

In her second issue on appeal, Byard contends that the district court erred by
relying on the attenuation doctrine to find that the outstanding arrest warrant rendered
harmless any constitutional deficiency in the search of Byard's vehicle. But the
attenuation doctrine only applies when there has been an illegal search or seizure. State v.
Ellis, 311 Kan.925, __, 469 P.3d 65, 78 (2020) ("[O]nce an officer has legal grounds to
conduct an investigatory detention, the officer is free to check the person for outstanding
warrants as part of the investigation."); see Utah v. Strieff, 579 U.S. __, 136 S. Ct. 2056,
2062, 195 L. Ed. 2d 400 (2016) (police have obligation to arrest detainee upon discovery
of warrant). But based upon our finding on Byard's first issue that Officer Schmidt's stop

16
of Byard's vehicle was lawful and properly based on reasonable suspicion, Byard's
contention is moot, and we need not address her argument.

Affirmed.

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