State v. Jones

NOT DESIGNATED FOR PUBLICATION

No. 124,617

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

ANGELA JONES,
Appellee.

MEMORANDUM OPINION

Appeal from Anderson District Court; ERIC W. GODDERZ, judge. Opinion filed July 15, 2022.
Reversed and remanded with directions.

Elizabeth L. Oliver, county attorney, and Derek Schmidt, attorney general, for appellant.

John A. Boyd, of Harris Kelsey, Chtd., of Ottawa, for appellee.

Before ISHERWOOD, P.J., SCHROEDER and WARNER, JJ.

PER CURIAM: On May 14, 2021, Deputy Sheriff David Michael Harper-Head
initiated a traffic stop after observing a vehicle sitting unnecessarily stationary at a stop
sign, with its high beams activated, and then execute a turn without first activating a turn
signal 100 feet before doing so as required by statute. During the stop that ensued,
Deputy Harper-Head noticed that the driver, Angela Jones, had red eyes, droopy eyelids,
and exhibited confusion as to her location. Based on the totality of this information,
alongside his extensive experience and training with impaired drivers, Deputy Harper-
Head asked Jones to step out of the vehicle and complete several field sobriety tests.
Jones failed three of those tests, was arrested, and Deputy Harper-Head subsequently

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found methamphetamine in the back of his patrol car after transporting Jones for booking.
The State charged Jones with two traffic violations, possession of methamphetamine, and
for her third offense of driving under the influence of drugs.

Prior to trial, Jones filed a motion to suppress which the district court granted
following a hearing. In support of its ruling, the court explained that it "question[ed]" the
lawfulness of the initial stop and also did not believe that Deputy Harper-Head possessed
the reasonable suspicion required to expand the stop to conduct a DUI investigation. The
State pursued an interlocutory appeal and requests that we review the propriety of the
district court's ruling. Following a comprehensive review of the record we conclude
reversal of the district court's order is warranted because, in our view, the court failed to
analyze the totality of the circumstances. When all those factors are properly considered,
they reflect that Deputy Harper-Head did, in fact, have reasonable suspicion to extend the
stop. Thus, we reverse and remand Jones' case for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of May 14, 2020, Anderson County Deputy Sheriff
Harper-Head was westbound on County Road 2350 when he approached the stop sign
where County Road 2350 bisected U.S. Highway 59 and noticed a vehicle sitting directly
across from him at the stop sign facing east. The vehicle was stationary for an unusual
length of time, with its high beams activated, and did not have a turn signal engaged.
Deputy Harper-Head accounted for the only other traffic on the road.

The deputy crossed the intersection and when his patrol car was parallel to the
vehicle, he noticed the vehicle's turn signal go on and then off again. Harper-Head
performed a U-turn and pulled up behind the vehicle, at which point the driver once again
activated her turn signal but then turned onto the highway. Deputy Harper-Head followed
and initiated a traffic stop.

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 The vehicle promptly pulled over and Deputy Harper-Head approached the driver,
whom he identified as Angela Jones. He observed Jones had red eyes and droopy eyelids,
a condition known to Harper-Head and one which he understood from his training and
experience to potentially be the result of either a medical condition or drug intoxication.
Jones provided a West Virginia driver's license and the deputy inquired where she was
coming from and where she was going. Jones responded that she was coming from work
at Jet, a company located in Gardner, Kansas. Deputy Harper-Head found the response
odd given that Jones was travelling from the west and Gardner was east of their location.

Harper-Head had enjoyed an approximately 20-year career in law enforcement,
was a nationally certified and active drug recognition expert, attended the Advanced
Roadside Impaired Driving Enforcement course, and recently received accreditation as a
standardized field sobriety testing instructor. Thus, based on the early morning hour,
Jones' inexplicable delay at the stop sign while using her high beams, her failure to
properly signal a turn, her red, droopy eyes, and her somewhat peculiar statements
regarding her path of travel, Harper-Head believed it prudent to ask Jones to step from
her vehicle and complete several field sobriety tests.

Jones ultimately failed the "walk-and-turn" test, with Deputy Harper-Head
identifying "five out of eight possible [cues]" for intoxication. She also exhibited all four
possible cues for intoxication while completing the one-leg stand test. Finally, Jones
completed the Modified Romberg Test, which measures the accuracy of one's internal
clock. Her performance of that exercise reflected an accelerated sense of time. During
their interaction, Jones told Deputy Harper-Head that she had taken Zoloft or Sertraline.

Following the field sobriety tests, Deputy Harper-Head placed Jones under arrest
and transported her to the jail. Upon their arrival, the deputy noticed "a small plastic bag
containing a white substance that appeared to [him] to be methamphetamine." He
testified that the bag necessarily belonged to Jones because his custom is to check the

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backseat prior to the start of every shift to ensure occupants do not attempt to conceal
contraband while riding in the vehicle.

Harper-Head secured a search warrant to obtain a blood sample from Jones which
yielded a positive result for methamphetamine and amphetamine. The bag recovered
from the back of his patrol car likewise tested positive for methamphetamine.

The State charged Jones with possession of methamphetamine, her third offense of
driving under the influence of drugs, failure to dim her headlights, and a turn signal
violation. Prior to trial, Jones filed a motion to suppress. During the hearing on that
motion, Deputy Harper-Head offered the only testimonial evidence, but the State also
introduced reports from the Kansas Bureau of Investigation for Jones' blood sample and
the white substance from the bag in Harper-Head's patrol vehicle.

Following testimony and arguments from the parties, the district court granted
Jones' motion to suppress. In support of its ruling, the court first expressed concerns
regarding the legality of the initial traffic stop. It opined that Deputy Harper-Head's
testimony concerning Jones' blinker did not "make any sense to the Court from this
standpoint" because it was not a "justification for pulling over a vehicle" if the driver
pulls up to a stop sign and only then determines which direction to turn, particularly in
rural communities where residents rarely utilize turn signals. Additionally, the court
noted that the dash camera video Jones introduced into evidence reflected that she
properly signaled and correctly pulled to the side of the road when Deputy Harper-Head
initiated the traffic stop.

The court further remarked upon the deputy's observations regarding Jones' eyes
and noted there were "no other indicators what I normally see or what the Court normally
sees in driving under the influence type cases to where there's the smell of alcohol, the
slurred speech, all those other types of indicators." In conjunction with that finding, it

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observed that Deputy Harper-Head did not know Jones and, therefore, he could not truly
assess whether she presented with uncharacteristically droopy eyes that morning.

In conclusion, the court found that, with the exception of Jones' red eyes, it did not
believe Deputy Harper-Head possessed the justification required to extend the stop and
conduct the testing performed on Jones.

The State filed a timely notice of appeal.

ANALYSIS

To file an interlocutory appeal, the State must assert that the suppression of the
evidence substantially impaired the State's case. State v. Newman, 235 Kan. 29, 34, 680
P.2d 257 (1984.) The State makes this argument on appeal and therefore jurisdiction is
proper.

Standard of Review

"The standard of review for a district court's decision on a motion to suppress has
two parts. The appellate court reviews the district court's factual findings to determine
whether they are supported by substantial competent evidence. But the court's ultimate
legal conclusion is reviewed using a de novo standard. State v. Neighbors, 299 Kan. 234,
240, 328 P.3d 1081 (2014). The appellate court does not reweigh the evidence or assess
the credibility of witnesses. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014).
When the facts supporting the district court's decision on a motion to suppress are not
disputed, the ultimate question of whether to suppress is a question of law over which the
appellate court exercises unlimited review. State v. Stevenson, 299 Kan. 53, 57, 321 P.3d
754 (2014)." State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018).

Resolution of this issue also requires a degree of statutory interpretation, which
presents a question of law over which we exercise unlimited review. Jarvis v. Kansas

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Dept. of Revenue, 312 Kan. 156, 159, 473 P.3d 869 (2020). "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." 312 Kan. at 159. In doing so, courts must give
"common words their ordinary meaning." State v. Ryce, 303 Kan. 899, 906, 368 P.3d 342
(2016). "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." Jarvis, 312 Kan. at 159.

DID THE DISTRICT COURT ERR IN FINDING DEPUTY HARPER-HEAD LACKED REASONABLE
SUSPICION TO INITIATE A TRAFFIC STOP?

The State correctly points out that it is unclear from the district court's ruling
whether it found the deputy's initial stop of Jones unlawful. The court remarked that it
"questioned" the stop. But its oral pronouncement suggests the primary basis for granting
Jones' motion to suppress was the court's finding that Deputy Harper-Head lacked an
"objective, reasonable, articulable suspicion that criminal activities" were taking place to
justify expanding that traffic stop into a DUI investigation. Due to the presence of such
ambiguity, we will analyze the deputy's reasonable suspicion for initiating the traffic
stop, as well as the reasonable suspicion he possessed for an extension of that stop.

"Traffic stops are seizures under the Fourth Amendment and are subject to its
limitations." State v. Lowery, 308 Kan. 359, 363, 420 P.3d 456 (2018). "A police officer
may perform a traffic stop if he or she reasonably suspects that the driver committed a
traffic infraction." State v. Arceo-Rojas, 57 Kan. App. 2d 741, 749, 458 P.3d 272 (2020).
"Reasonable suspicion is 'a specific, objective, articulable basis for believing that the
person being detained is committing, has committed, or is about to commit a crime.'" 57
Kan. App. 2d at 749 (quoting State v. Kraemer, 52 Kan. App. 2d 686, 692, 371 P.3d 954
[2016]). "Whether reasonable suspicion exists is a question of law." Lowery, 308 Kan. at

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364. When faced with a motion to suppress, the State bears the burden of proving a
search or seizure was lawful by a preponderance of evidence. State v. Pollman, 286 Kan.
881, 886, 190 P.3d 234 (2008]).

On appeal, the State makes two arguments for why Deputy Harper-Head
possessed reasonable suspicion to stop Jones: the failure to properly and lawfully signal
a turn and the failure to dim her headlights, both of which constitute traffic infractions. It
first contends that the deputy observed Jones violate K.S.A. 8-1548, the provision
addressing the use of turn signals. K.S.A. 8-1548 provides:

"(a) No person shall turn a vehicle or move right or left upon a roadway unless
and until such movement can be made with reasonable safety, nor without giving an
appropriate signal in the manner hereinafter provided.

"(b) A signal of intention to turn or move right or left when required shall be
given continuously during not less than the last one hundred (100) feet traveled by the
vehicle before turning.

"(c) No person shall stop or suddenly decrease the speed of a vehicle without first
giving an appropriate signal, in the manner provided herein, to the driver of any vehicle
immediately to the rear when there is opportunity to give such signal.

"(d) The signals required on vehicles by subsection (b) of K.S.A. 8-1549 shall
not be flashed on one side only on a disabled vehicle, flashed as a courtesy or "do pass"
signal to operators of other vehicles approaching from the rear, nor be flashed on one side
only of a parked vehicle except as may be necessary for compliance with this section."

Though not explicitly stated, the State appears to rely on subsection (b) as an
explanation for Harper-Head's initial traffic stop. The deputy testified that Jones did not
have a turn signal activated when he first encountered her stationary vehicle. It was not
until after Harper-Head crossed the highway and passed parallel to her vehicle that Jones
turned the signal on and then off. Then, after Deputy Harper-Head pulled in behind Jones'
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vehicle at the stop sign, she signaled a turn and pulled onto the highway. Accordingly,
Jones failed to signal continuously for the last 100 feet before executing a turn in
violation of K.S.A. 8-1548(b), which constitutes a traffic infraction.

The State appropriately directs our attention to State v. Greever, 286 Kan. 124,
183 P.3d 788 (2008). In that case, Shanon Greever pulled up to a stop sign behind a
police officer. The officer noticed that Greever only activated his turn signal after coming
to a stop behind the officer's vehicle. The officer initiated a traffic stop and ultimately
discovered marijuana in Greever's vehicle. Greever filed a motion to suppress, which the
district court denied. This court reversed upon finding that that the officer lacked
reasonable suspicion to initiate the traffic stop because K.S.A. 8-1548 did not require an
individual to activate a turn signal prior to forming the intent to turn. The Kansas
Supreme Court granted review.

The Greever court explained that K.S.A. 8-1548 is an "absolute liability offense"
and that, without exception, the statute requires "that anyone turning a vehicle must
provide 'an appropriate signal'—namely, a turn signal given continuously for at least 100
feet before the turn." 286 Kan. at 138. Put differently, drivers cannot substantially comply
with the 100-foot requirement. 286 Kan. at 140. Based on this statutory interpretation, the
Kansas Supreme Court reversed this court because Greever did not activate his turn
signal until he was parked behind the officer's vehicle. 286 Kan. at 141.

Similarly, Jones did not activate her turn signal until she was already parked at the
stop sign for a period of time. Stated another way, she did not signal continuously for the
last 100 feet before the turn. Contrary to the district court's suggestions, the statute does
not allow her to sit at the stop sign, cogitate whether to turn, and then activate the signal
once the intent to turn is formed. Accordingly, Deputy Harper-Head had reasonable
suspicion to initiate a traffic stop following Jones' commission of a traffic infraction in
violation of K.S.A. 8-1548(b). See also State v. Demarco, 263 Kan. 727, 733, 952 P.2d

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1276 (1998) (holding a violation of K.S.A. 8-1548 provides an officer with probable
cause to make a traffic stop). Given our conclusion that the turn signal violation afforded
Deputy Harper-Head the requisite reasonable suspicion to initiate the stop, it is not
necessary to analyze the State's second claim that Jones' traffic infraction for failing to
dim her headlights provided a sufficient basis to perform the stop.

DID THE DISTRICT COURT ERR IN FINDING DEPUTY HARPER-HEAD LACKED REASONABLE
SUSPICION TO EXTEND THE TRAFFIC STOP AND CONDUCT A DUI INVESTIGATION?

On appeal, the State argues that the district court erred in granting Jones' motion to
suppress because, based on the totality of the circumstances, Deputy Harper-Head had
reasonable suspicion that Jones was operating the vehicle under the influence of a drug.
Jones replies that the indicators the State relies on have alternative, lawful explanations.

Traffic stops are "more analogous to an investigative detention than a custodial
arrest, so courts treat the traffic stop, whether based on reasonable suspicion or probable
cause, under the longstanding limitations from Terry for nonconsensual police-citizen
contacts." State v. Jimenez, 308 Kan. 315, 323, 420 P.3d 464 (2018). "Under Terry, . . . a
lawful stop must be reasonably related in scope to the circumstances justifying the
interference in the first place." 308 Kan. at 323 (citing Terry v. Ohio, 392 U.S. 1, 20, 88
S. Ct. 1868, 20 L. Ed. 2d 889 [1968]). During a traffic stop, "the scope of the stop is
limited so that the officer may only 'request a driver's license and vehicle registration, run
a computer check, and issue a citation.'" Strickert v. Kansas Dept. of Revenue, 58 Kan.
App. 2d 1, 10, 462 P.3d 649 (2020) (quoting State v. Golston, 41 Kan. App. 2d 444, 451,
203 P.3d 10 [2009]). However, the stop may be extended if an officer has "reasonable
suspicion to believe that the person was or is involved in additional criminal activity." 58
Kan. App. 2d at 8 (citing State v. Jones, 300 Kan. 630, Syl. ¶ 6, 333 P.3d 886; Pollman,
286 Kan. 881, Syl. ¶ 3.

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 "Reasonable suspicion is 'a specific, objective, articulable basis for believing that
the person being detained is committing, has committed, or is about to commit a crime.'"
Arceo-Rojas, 57 Kan. App. 2d at 749 (quoting Kraemer, 52 Kan. App. 2d at 692).
Reasonable suspicion is more than a hunch. Lowery, 308 Kan at 366. "What is reasonable
depends on the totality of circumstances in the view of a trained law enforcement
officer." State v. Martinez, 296 Kan. 482, 487, 293 P.3d 718 (2013). Officers may "'draw
on their own experience and specialized training to make inferences from and deductions
about the cumulative information available to them.'" Lowery, 308 Kan. at 366 (quoting
United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 [2002]).

Here, the State argues that several factors, viewed collectively, support a finding
that Deputy Harper-Head had reasonable suspicion that Jones was driving while under
the influence of drugs. Thus, the district court erred in granting the motion to suppress.

The first factor highlighted by the State relates to the questionable aspects of
Jones' driving that the deputy observed prior to the traffic stop. Specifically, the State
correctly notes Jones' violation of K.S.A. 8-1548(b). See Strickert, 58 Kan. App. 2d at 11
(reasonable suspicion finding for DUI included an officer's "observation of a traffic
infraction"). Jones responds by noting that the district court viewed Harper-Head's dash
camera footage and observed that Jones properly pulled off the road using her turn signal
when the deputy initiated the traffic stop. Though true, the district court also properly
observed that the dash camera was not recording when Deputy Harper-Head witnessed
Jones' vehicle unnecessarily sitting stationary at a stop sign, or when he witnessed Jones
violate K.S.A. 8-1548(b) by not activating her turn signal 100 feet prior to the turn. That
is, the conduct that prompted him to execute the stop. An isolated example of appropriate
driving does not negate the unlawful or peculiar operation of a vehicle. See City of
Norton v. Wonderly, 38 Kan. App. 2d 797, 804, 172 P.3d 1205 (2007) (Three minutes of
good driving within the city limits did not dissipate the officer's reasonable suspicion
based on the fact Wonderly had earlier driven his truck in a reckless manner.).

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 Jones further contends that the fact the stop occurred during the early morning
hours is of limited import and "does not logically lead to an inference of impaired
driving." However, this court previously rejected a similar argument in State v. Cox, No.
110,447, 2014 WL 3732019, at *4 (Kan. App. 2014) (unpublished opinion), when we
held that reasonable suspicion existed to extend a traffic stop into a DUI investigation
when the arresting officer testified that his belief that the driver was intoxicated was
partially based on his experience that "most DUI infractions are detected between
midnight and 3 a.m."

Next, the State directs our attention to the information Deputy Harper-Head
gathered while interacting with Jones. Specifically, that Jones' red and droopy eyes can
help "establish reasonable suspicion and probable cause for a DUI investigation." Jones
replies that, as the district court noted, Deputy Harper-Head lacked any awareness of how
Jones' eyes appeared under normal circumstances. Thus, a wholly innocent explanation
may provide for the redness and ptosis, such as a medical condition or fatigue following a
late shift at her job. Put simply, Jones suggests the appearance of her eyes was equally
susceptible to innocent conduct.

It is important to note that numerous Kansas courts have considered similar
physical characteristics when analyzing reasonable suspicion for DUI determinations. See
Strickert, 58 Kan. App. 2d at 10 (reasonable suspicion finding for DUI included driver's
"watery and bloodshot eyes"); State v. Bell, No. 106,360, 2012 WL 4372999, at *6
(reasonable suspicion finding for DUI included driver's "droopy eyes"), State v. Jury, No.
102,691, 2010 WL 4156764, at *3 (reasonable suspicion finding for DUI included
driver's "droopy bloodshot eyes"); see also State v. Peltz, 242 Ariz. 23, 32, 391 P.3d 1215
(Ariz. Ct. App. 2017) (probable cause finding for DUI included driver's ptosis).

Additionally, the State contends that Jones' explanation that she was coming from
Gardner, which, in actuality, was the opposite direction than she was coming from,

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properly led the deputy to conclude that Jones was confused as to her surroundings. Jones
takes issue with this assertion and argues that Harper-Head never followed up on where
she was going. And had he done so, a valid explanation might have dispelled his
suspicion, particularly given the fact her West Virginia driver's license provided notice of
her unfamiliarity with the area. As support for this contention, Jones relies on Lowery,
where the Kansas Supreme Court explained that a discrepancy between two individuals'
accounts of their travel plans was "insignificant as a basis for suspecting criminal
activity." 308 Kan. at 368.

We are not persuaded that Lowery necessarily advances Jones' position. The facts
in that case involved an inconsistency between the travel details provided by two
different individuals to the same officer, rather than a single vehicle operator, such as
Jones, who appeared confused as to her location. The inconsistency in Lowery speaks to
evasion or deception, whereas Jones' inconsistency regarding Gardner and her travel
history leans toward disorientation. And that factor is one which Kansas courts have
found to be indicative of impairment. See Leister v. Kansas Dept. of Revenue, No.
115,090, 2017 WL 947236, at *5 (Kan. App. 2017) (unpublished opinion) (reasonable
suspicion finding for DUI partially based on driver being "so confused and disoriented
that he was unable to tell Officer Walz which direction his pickup truck was facing or
explain why he was headed north when his destination was in the opposite direction");
Scott v. Kansas Dept. of Revenue, No. 111,589, 2015 WL 2414393, at *5 (Kan. App.
2015) (unpublished opinion) (noting the driver's disorientation and confusion was
indicative of impairment); see also State v. Kellogg, 22 Neb. App. 638, 645, 859 N.W.2d
355 (Neb. Ct. App. 2015) (reasonable suspicion finding for DUI partially based on
driver's confusion).

Ultimately, it is our conclusion that both Jones and the district court erroneously
evaluated Deputy Harper-Head's reasonable suspicion determination by (1) analyzing
each factor individually, and (2) identifying a legal explanation for each individual factor.

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This approach runs afoul of our Supreme Court's directive that "[t]he totality of the
circumstances standard does not envision a reviewing court pigeonholing each factor as
to innocent or suspicions appearances. Instead, the court determines whether all the
circumstances justify the detention. Lowery, 308 Kan. at 366.

In Cox, a panel of this court rejected the very type of analysis engaged in by the
district court here. Cox argued "that because there were potentially innocent explanations
for each of the factors [the officer] relied on . . . [the officer] could not have formulated a
reasonable suspicion that she was intoxicated." State v. Cox, No. 110,447, 2014 WL
3732019, at *4 (Kan. App. 2014) (unpublished opinion). In response, this court explained
that Kansas caselaw "'precludes a divide-and-conquer analysis'" where each factor that
may potentially carry a corresponding innocent explanation is excluded from the totality
of the circumstances equation. 2014 WL 3732019, at *4 (quoting State v. Coleman, 292
Kan. 813, 817-18, 257 P.3d 320 [2011]).

The appropriate analysis contemplates collective consideration of all relevant
factors. Undertaking that analysis here, in conjunction with Deputy Harper-Head's
extensive experience and training regarding traffic stops and impaired drivers, we do not
hesitate to find that the deputy had reasonable suspicion to believe that Jones was driving
under the influence of drugs. That is, the early morning hour, her delayed reaction time as
evidenced by her unnecessary delay at the intersection, the traffic violation, her red and
droopy eyes, and confusion as to her location. Kansas courts have previously found each
of these factors compelling and we are similarly persuaded here.

Reversed and remanded to the district court for further proceedings.

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