text:
    Kelly CASPER, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.
    No. 115,352
    Supreme Court of Kansas.
    Opinion filed June 14, 2019.
    Adam D. King, of Legal Services Bureau, Kansas Department of Revenue, argued the cause, and J. Brian Cox, of the same office, was on the briefs for appellant.
    Jonathan W. McConnell, of Wichita, argued the cause and was on the briefs for appellee.
   The opinion of the court was delivered by Rosen, J.:

The Kansas Department of Revenue (KDOR) suspended Kelly Casper's driving privileges based on her arrest and refusal to take a blood alcohol test. She appealed to district court, where the judge held that she met her burden of proving both that the arresting officer lacked reasonable grounds to believe that she was driving while impaired and lacked probable cause to arrest her. KDOR appealed to the Court of Appeals, which reversed, holding that the record on appeal supported an opposite conclusion. We granted Casper's petition for review and now reverse the decision of the Court of Appeals panel.

FACTS

According to Casper's testimony before the district court, on October 25, 2013, she was visiting family in Wichita, Kansas, and had a glass of wine at around 5:30 in the afternoon. A couple of hours later, she took some sips of alcoholic beverages at a friend's house in order to taste-test the drinks for an upcoming party. At around midnight, she drove away from her friend's house and, when making a right turn, turned into the left travel lane instead of the lane nearest her turn lane.

Officer Steven Thornton of the Wichita Police Department witnessed the wide turn, which, while a relatively common type of turn, is a traffic infraction. He followed Casper's car for a while and did not observe any other traffic infractions. He saw no driving indicators that the operator was impaired. He turned on his emergency blinking lights and followed her as she signaled, pulled over into the right lane, and then turned onto a side street. At the same time, a video recording of the encounter was commenced, which was later entered into evidence.

Thornton asked Casper if she had been drinking, and she said yes. He then asked her to get out of the car and perform a couple of field sobriety tests. According to Thornton's testimony in district court, Casper's eyes were not bloodshot, and her statements were, for the most part, clear and concise. Thornton testified that Casper was initially "fine," but, over the course of several tests, she "became a tad bit uncooperative" and "a little argumentative." He asked her to perform three field sobriety tests: a horizontal gaze nystagmus test, a walk-and-turn test, and a balance-on-one-foot test. In his estimation, she did not perform these tests satisfactorily, and he placed her under arrest. She subsequently refused to take a breathalyzer test.

Thornton issued Casper a notice of suspension for refusing to take a blood alcohol test. Casper timely requested an administrative hearing. The KDOR Division of Vehicles conducted an administrative hearing and, affirming the administrative action suspending her license, concluded that law enforcement had reasonable grounds to believe that Casper was operating a vehicle while under the influence of alcohol and was lawfully in custody.

Casper filed a timely petition for review with the Sedgwick County District Court. On two separate hearing dates, the district court heard the testimony of Thornton and Casper and viewed the video recordings of the stop and subsequent events. After hearing the witnesses and arguments by counsel, the district court announced from the bench its conclusion that Casper had met her burden of proving both a lack of reasonable grounds for believing that she was driving while impaired and a lack of probable cause to support a lawful arrest. The court announced extensive findings explaining the basis of its decision.

KDOR filed a timely notice of appeal to the Court of Appeals. The Court of Appeals reversed the district court, reviewing the testimony and exhibits and essentially holding that the totality of the circumstances favored KDOR's position, not Casper's. Casper v. Kansas Dept. of Revenue , No. 115352, 2016 WL 6024622 (Kan. App. 2016) (unpublished opinion).

ANALYSIS

On review of the Court of Appeals decision and the district court order, we are tasked with ascertaining whether substantial competent evidence in the record supported the district court's factual findings and whether the conclusion derived from those findings is legally correct. We adopt the reviewing standard set out in Poteet v. Kansas Dept. of Revenue , 43 Kan. App. 2d 412, 415, 233 P.3d 286 (2010) : The determination of whether an officer has reasonable grounds for a particular action involves a mixed question of law and fact, and appellate courts review the ultimate legal conclusion-whether reasonable grounds existed-independently, while deferring to the district court's factual findings. See also State v. Johnson , 297 Kan. 210, 221, 301 P.3d 287 (2013) ("Whether reasonable grounds exist to believe a person has been operating a vehicle while under the influence of alcohol is a question of law."); Swank v. Kansas Dept. of Revenue , 294 Kan. 871, 881, 281 P.3d 135 (2012) (appellate courts generally review district court decisions in driver's license suspension cases to determine whether supported by substantial competent evidence).

It is difficult to cleanly differentiate the two components in a case such as this. Factual findings are intertwined with judging the reasonableness of the officer's actions. As a consequence, the court must view the two in combination, examining the totality of the factual circumstances. See, e.g., Sloop v. Kansas Dept. of Revenue , 296 Kan. 13, 23, 290 P.3d 555 (2012) (probable cause to execute a warrantless arrest is subject to totality of circumstances test).

Here, Casper was unwilling to submit to a breath test. If a driver refuses to take a breath test, K.S.A. 2018 Supp. 8-1002(a)(1) directs the Kansas Department of Revenue Division of Vehicles to suspend a person's driving privileges when the following four conditions are met:

"(A) There existed reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol ...;
"(B) the person had been placed under arrest, was in custody or had been involved in a vehicle accident or collision;
"(C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto; and
"(D) the person refused to submit to and complete a test as requested by a law enforcement officer."

K.S.A. 2018 Supp. 8-1020(a) provides that "[a]ny licensee served with an officer's certification and notice of suspension [for failing or refusing a breath test], may request an administrative hearing." K.S.A. 2018 Supp. 8-1020(h)(1) explains that the scope of review at that hearing is limited to whether the four conditions outlined in K.S.A. 2018 Supp. 8-1002 have been met. Each of those four conditions is also within the purview of the district court when it reviews the decision from the administrative hearing. Sloop, 296 Kan. at 17, 290 P.3d 555.

Our caselaw suggests the arrest in subsection B must be a lawful arrest in order to satisfy that element. In Sloop , 296 Kan. at 19, 290 P.3d 555, we considered K.S.A. 8-1001, which sets out the conditions under which a law enforcement officer has the authority to request a test of a person's blood, breath, urine, or other bodily substance to determine the presence of alcohol and drugs. Two conditions must be met. One of those is that "[t]he person has been arrested or otherwise taken into custody for any violation of any state statute, county resolution or city ordinance." K.S.A. 2018 Supp. 8-1001(b)(1)(A).

We held that, in order for this element to be satisfied, the person had to be under lawful arrest, and, for the arrest to be lawful, the officer had to have probable cause to make it. The court based this holding on the plain language of the statute and implied that the same plain language analysis applied to the requirement in K.S.A. 2018 Supp. 8-1020(h)(1)(B). Sloop , 296 Kan. at 19, 20, 290 P.3d 555. The analysis in the present case therefore proceeds from an understanding that an arrest must be lawful in order for the second element of K.S.A. 2018 Supp. 8-1002 (or K.S.A. 2018 Supp. 8-1001 [b][1] ) to be satisfied.

The district court here determined both that reasonable grounds did not exist for Thornton to believe Casper was operating her vehicle while under the influence of alcohol and there was no lawful arrest because Thornton lacked probable cause to make the arrest. The district court treated these two concepts as equivalent. Our court has implied the terms are essentially the same, with at most only subtle differences. See Johnson , 297 Kan. at 222, 301 P.3d 287 (reasonable grounds test of K.S.A. 8-1001 [b] is "strongly related" to standard for determining probable cause to arrest). Even if it was technically error for the district court to conflate the two matters, it was an error without consequence. Logic tells us that, if the district court properly decided there were no reasonable grounds to believe Casper was driving while under the influence alcohol, there would also be no probable cause to arrest her.

Casper petitioned for judicial review of the administrative hearing decision when her license was suspended. In that petition, she argued that the first element of the statute permitting the suspension of her license was not met because the law enforcement officer did not have reasonable grounds to believe she was operating or attempting to operate a motor vehicle while under the influence of alcohol or drugs.

The district court noted that its scope of review was limited to the four requirements outlined in the statutes. It ultimately concluded that Casper had met her burden of showing that the decision to suspend her license should be set aside.

The district court discussed extensively the evidence it had before it and concluded that Thornton lacked both reasonable grounds to believe Casper was impaired and probable cause to place her under arrest. The Court of Appeals decided that the district court gave too much weight to some factors and deemed some of the grounds on which the district court relied to be inappropriate factors. The Court of Appeals then independently weighed the inculpatory and exculpatory evidence, reaching a conclusion contrary to that of the district court.

In answering the questions posed by the standard of review, it is necessary to look to the evidence before the district court and how the district court considered that evidence.

Casper testified that she was very nervous when she was pulled over because she had never been pulled over by police, she had never received a ticket, and she had never been arrested before. She testified that her breath did not smell of alcohol, an assertion that she firmly stood by under rigorous cross-examination about how she could know what her breath smelled like (during which she informed the court that her breath smelled like coffee at the time of the cross-examination). She testified that she was not "tipsy" and that she was completely sober at the time of the stop. She also testified that she declined to take the breath test because she did not trust the police officer based on misleading statements he had made to her at the stop.

The district court determined that there was no evidence that a strong odor of alcohol was emanating from Casper's person. An examination of the record supports this conclusion. Significantly, Thornton did not testify in court that Casper's breath smelled of alcohol. He was questioned briefly about whether he detected the smell of alcohol, and he testified that he detected "some odor" "on her." The video recording shows Thornton saying to Casper, "You reek of alcohol." Counsel for KDOR never asked him to explain why he said that and never asked him whether her breath exhibited the odor of alcohol. No foundation was laid to the subject because KDOR never sought Thornton's testimony about her breath.

The statement on the video recording did not constitute evidence for the district court to consider because it was never presented to the court in a context of evidence that she had been drinking. Unlike the visual evidence of Casper's performance on the sobriety tests, the recording provided nothing that would actually establish that Thornton smelled alcohol on Casper's breath. It was nothing more than an out-of-court statement caught on a recording, and it was no more probative than Casper's assertion on the video that her fiancé was an FBI agent. The only competent evidence put forward to the district court (or to the Court of Appeals and this court) was Thornton's single statement that he smelled "some odor" of alcohol from Casper's person and Casper's testimony that there was no alcohol on her breath at the time of the stop.

The Court of Appeals concluded that the district court's finding that there was no evidence of a strong odor of alcohol was "not supported by substantial competent evidence because the officer told Casper in the video that she reeked of alcohol." Casper , 2016 WL 6024622, at *3. This statement is incorrect. The evidence on which the Court of Appeals relied was not substantial; it was nothing more than a statement on the recording. The actual trial testimony was of "some odor," which was balanced against Casper's testimony of no odor. The district court's conclusion that there was no evidence of a "strong odor" of alcohol, after considering both Thornton's and Casper's testimony, was well supported by substantial evidence.

In analyzing whether to consider the officer's decision not to utilize a preliminary breath test (PBT) in the analysis, the district court commented:

"I am not in any way finding that a PBT is required in every DUI investigation, but the lack of one in this case is part of the evidence, just like if there was no fingerprint testing done on a gun when it could have been done. That is evidence that a jury could consider that the police did not perform certain tests that they had the ability to perform."

Criticizing this comment, the Court of Appeals wrote that

"the district court put too much emphasis on what proof a PBT could have provided had one been performed. ... It ... likened the officer's failure to perform a PBT to the failure to perform fingerprint testing on a gun. But the question was not whether Casper was guilty beyond a reasonable doubt of operating a vehicle under the influence of alcohol. Instead, the issue was merely whether the officer had, at the time, reasonable grounds to believe Casper was operating her vehicle while under the influence of alcohol. The results of a PBT are just another factor for a court to consider when examining this question." Casper , 2016 WL 6024622, at *4.

The Court of Appeals suggested that the district court found for Casper because it believed the officer's failure to conduct a PBT created reasonable doubt that she was driving while intoxicated. The record does not reveal this to be the case-the district judge made it clear that he was considering the lack of a PBT alongside other evidence to determine whether "the totality of the circumstances" showed that the officer had reasonable grounds to believe Casper was driving under the influence.

To the extent that the Court of Appeals found that the district court failed to consider the totality of the circumstances to reach its decision, it erred. After hearing all the testimony and reviewing the recordings, the district court discussed the circumstances of the stop. It noted that Casper did not delay turning off the roadway when Thornton activated the signals on his squad car; she properly signaled, pulled over into the right-hand lane, and turned at the next available street entrance. There was no evidence of bad driving beyond initially turning into the wrong lane, something that drivers commonly do. She exhibited no slurred speech. No preliminary breath test was requested. The horizontal gaze nystagmus test was not admitted for the purpose of evaluating the results of the test but only to show whether Casper followed directions. Although Thornton asked her whether she had any drinks that day, he did not ask when she consumed the drinks. She exhibited no stumbling when she got out of the car. The district court stated that the absence of a PBT was significant in this case because the evidence of driving under the influence was "certainly not strong."

Thornton testified that Casper scored 5 out of 8 on and failed the walk-and-turn test and scored 2 out of 4 on and failed the one-leg-stand test. On the walk-and-turn test, she was losing her balance before the instructional phase, she started before she was told to start, she used her arms for balance, she failed to touch her toe, and she pivoted in the wrong direction. On the one-leg stand test she used her arms for balance and placed her foot down after approximately six seconds.

The Court of Appeals referred to the field sobriety tests as "objective" tests and held it was error for the district court to rely on "subjective" observations of Casper's driving and behavior. Casper , 2016 WL 6024622, at *3. It is true that the field tests possess indicia of objectivity. See, e.g., City of Wichita v. Molitor , 301 Kan. 251, 261, 341 P.3d 1275 (2015). But it is also true that, although field sobriety tests may have objective grading criteria that officers must follow, it is an officer's subjective opinion that determines whether a suspect has passed the objective field sobriety tests. See State v. Garris , 603 So. 2d 277, 282 (La. App. 1992) ; see also Molitor , 301 Kan. at 267, 341 P.3d 1275 (officers may be influenced by their impressions of alcohol consumption when rating performance on so-called objective tests).

Watching Casper's recorded attempts to follow Thornton's directions would validly demand that the district court evaluate her performance in light of how a reasonable person would respond to the officer's directions. In State v. Witte , 251 Kan. 313, 321, 836 P.2d 1110 (1992), we held that field sobriety tests rely on common knowledge, not scientific foundation, for their reliability. It follows that a district court judge could rely on common knowledge to evaluate an arresting officer's grading of field sobriety tests. It is not enough for a police officer to simply write down that a driver failed 3 out of 8 parts of a test, without allowing those results to be contested before a neutral fact-finder. Otherwise, the arresting officer becomes the final arbiter of his or her own reasonableness.

The court determined that Thornton's instructions for the field tests were given very quickly and it was not clear that Casper was unable to perform tasks as instructed. For example, when taking the HGN test, she initially moved her head slightly, but, when Thornton reminded her that she was not to move her head at all, she fully complied. He nevertheless decided she failed to follow his instructions. The court balanced the totality of the circumstances and found that Casper sustained her burden of showing the agency decision should be set aside. The court then went back over all the inculpatory factors that the State argued in its written pleadings and explained why it did not find them persuasive.

These findings should be reviewed in light of the deference given on appeal to the fact-finder below, who heard the witnesses, viewed their demeanor, and resolved conflicting evidence. See, e.g., State v. Ward , 292 Kan. 541, 581, 256 P.3d 801 (2011). "In determining whether substantial competent evidence supports the district court's findings, appellate courts must accept as true the evidence and all the reasonable inferences drawn from the evidence which support the district court's findings and must disregard any conflicting evidence or other inferences that might be drawn from it." Gannon v. State , 305 Kan. 850, 881, 390 P.3d 461 (2017) ; see Ornelas v. United States , 517 U.S. 690, 698-99, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996) (independent review of reasonable grounds and probable cause is necessary for appellate courts to maintain control of legal principles, but "a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers").

Our Court of Appeals nevertheless found that the district court erred in considering the constellation of factors making up the totality of the circumstances. The Court of Appeals concluded that the "totality of the circumstances supports instead a finding that the officer had reasonable grounds to believe that Casper was operating her vehicle while under the influence of alcohol." Casper , 2016 WL 6024622, at *4.

The Court of Appeals stated that the district court "put too much emphasis on what proof a PBT could have provided." Casper , 2016 WL 6024622, at *4. The Court of Appeals pulled apart other aspects of the district court's findings, stating that the district court overly relied on its subjective evaluation of the video recording. 2016 WL 6024622, at *4. The Court of Appeals criticized the district court's evaluation of the evidence: "Rather than relying on its subjective observations of Casper's behavior, the district court should have relied on the objective results of the field sobriety tests which Casper had failed." 2016 WL 6024622, at *3.

Perhaps the judges on the Court of Appeals panel would have emphasized different factors and reached a different result if they had been the sitting on the district court bench for the de novo trial. But the district court took into account all the various evidence it had before it. The evidence before it was substantial and competent, and it based its decision on that evidence. It made reasonable inferences from that evidence. The Court of Appeals improperly discounted the weight that the district court gave to a wide variety of evidentiary factors and reweighed the evidence.

A careful review of the evidence presented to the district court confirms that court's conclusion that Casper gave very little indication of driving while impaired. While she may have had "some odor" of alcohol emanating from her-which was disputed-alcohol did not appear to affect her behavior, her demeanor, or her performance on tests. On the whole, she performed well on the tests. To be sure, she sometimes started performing tests before Thornton finished giving her the instructions, and she had to start over. She became agitated and argued with him, demonstrating her frustration with being subjected to field sobriety tests. She moved her head slightly when she began the gaze test but corrected that when Thornton repeated his instruction.

CONCLUSION

While reasonable people may reach differing conclusions from the evidence presented to the district court, appellate courts are expected to give deference to the fact-finder who was in the courtroom when the testimony was given and where the inferences from the facts were reached. In keeping with the principles for reviewing lower court decisions, we conclude that substantial competent evidence supported the district court's factual findings and that the consequent legal conclusions were correct.

We therefore reverse the Court of Appeals and affirm the district court.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Robert M. WEBER, Appellant.
    No. 113,472
    Supreme Court of Kansas.
    Opinion filed June 14, 2019.
    Peter Maharry, of Kansas Appellate Defender Office, argued the cause, and Kimberly Streit Vogelsberg, of the same office, was on the briefs for appellant.
    Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
   The opinion of the court was delivered by Biles, J.:

Robert M. Weber challenges the district court's denial of a motion to correct an illegal sentence. He argues his 1976 Michigan conviction for assault with intent to commit criminal sexual conduct, second degree, was improperly scored as a person crime, resulting in a longer sentence following his 2007 attempted robbery conviction in Kansas. The Court of Appeals determined the person classification was correct. State v. Weber , No. 113,472, 2016 WL 5867238, at *3 (Kan. App. 2016) (unpublished opinion).

The overarching issue is whether the sentencing court properly classified Weber's 1976 Michigan conviction as a person crime. If it is scored as a nonperson crime, Weber's criminal history score is C instead of B. See K.S.A. 21-4709. That change would move Weber's sentence from presumptive imprisonment to presumptive probation, and the low grid-box sentence would drop from 27 to 25 months. See K.S.A. 21-4704.

We affirm in accordance with State v. Murdock, 309 Kan. 585, 591, 439 P.3d 307 (2019) ( Murdock II ) (holding sentence that was legal when pronounced does not become illegal if the law subsequently changes).

FACTUAL AND PROCEDURAL BACKGROUND

Weber pleaded guilty to an April 2007 attempted robbery, a severity level 7 crime. The plea agreement reflects the State anticipated Weber would have a criminal history score of C.

A presentence investigation revealed Weber had two prior convictions: a 1976 Michigan conviction for assault with intent to commit criminal sexual conduct, second degree; and a 1979 Michigan conviction for criminal sexual conduct, first degree. The PSI reflected these should both be scored as person felonies, giving Weber a criminal history score of B. See K.S.A. 21-4709 (providing B criminal history score if offender has two prior person felony convictions). Weber did not object.

After overruling Weber's motion for a downward dispositional departure, the sentencing court determined he had a criminal history score of B and imposed the low grid-box sentence, 27 months, for the attempted robbery conviction. The sentence was imposed in September 2007. Weber did not appeal.

In 2014, Weber moved to correct an illegal sentence after the decision in State v. Murdock , 299 Kan. 312, 318-19, 323 P.3d 846 (2014) ( Murdock I ) (holding pre-KSGA out-of-state convictions must be scored as nonperson offenses), overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015). He argued based on Murdock I that both Michigan convictions should have been scored as nonperson felonies because the person/nonperson designations did not appear in comparable Kansas statutes when the Michigan crimes occurred. The district court denied the motion, and Weber timely appealed.

Keel overruled Murdock I before Weber filed his opening brief with the Court of Appeals. He adapted to this by arguing for the first time that the person classification for his 1976 Michigan conviction was improper because it turned on judicial fact-finding that violated the Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), rule articulated in State v. Dickey , 301 Kan. 1018, 1021, 350 P.3d 1054 (2015), and Descamps v. United States , 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013).

A Court of Appeals panel affirmed. Weber , 2016 WL 5867238, at *3. It reasoned "the 'essential question' " in making the person/nonperson designation was whether the out-of-state and Kansas offenses being compared are " 'similar in nature and cover similar conduct.' " 2016 WL 5867238, at *2. The panel rejected Weber's claim that this comparison required impermissible judicial fact-finding since the Michigan crime's specific intent element was broader than the Kansas offense's. In his view, the Michigan statute criminalized conduct that is not always a felony in Kansas. 2016 WL 5867238, at *3.

The panel stated it would search for "the Kansas offense that is the 'closest approximation' or most 'comparable' " and that "[o]ffenses may be comparable 'even when the out-of-state statute encompassed some acts not necessarily encompassed by the Kansas statute.' " 2016 WL 5867238, at *2. The panel reasoned that, after referring to the out-of-state jurisdiction's laws to determine whether a prior crime is a felony:

"[I]n this second step of the analysis the issue for the sentencing court to resolve was whether the comparable Kansas crime is a person or a nonperson crime. Intent is not a factor. Assaults in Kansas in their various iterations are all person offenses. Regardless of the intent of a defendant convicted of some form of assault in Kansas, the offense is always a person crime. Thus, the district court did not need to engage in any fact-finding to determine that Weber's 1976 Michigan crime should be treated as a person crime." 2016 WL 5867238, at *3.

We granted Weber's timely petition for review. The State did not cross-petition for review of the panel's adverse rulings rejecting its arguments that (1) Weber's motion was not a proper procedural vehicle for his constitutional claims; (2) he waived the claim by failing to object to his criminal history score at sentencing; (3) he waived his right to a jury determination of sentencing facts; (4) his claim was barred by res judicata; and (5) Dickey , 301 Kan. 1018, 350 P.3d 1054, and Descamps cannot be applied on collateral review of a sentence already final when those cases were announced. See Weber , 2016 WL 5867238, at *1-2.

Jurisdiction is proper. See K.S.A. 20-3018(b) (petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

ANALYSIS

Under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., a prior out-of-state conviction must be classified as a "person" or "nonperson" crime. K.S.A. 21-4711(e) provides:

"Out-of-state convictions and juvenile adjudications will be used in classifying the offender's criminal history. An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction. If a crime is a felony in another state, it will be counted as a felony in Kansas. The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime . Convictions or adjudications occurring within the federal system, other state systems, the District of Columbia, foreign, tribal or military courts are considered out-of-state convictions or adjudications. The facts required to classify out-of-state adult convictions and juvenile adjudications must be established by the state by a preponderance of the evidence." (Emphasis added.)

At the time Weber was sentenced, Kansas caselaw construed K.S.A. 21-4711(e) to mean "[f]or purposes of determining criminal history, the offenses need only be comparable, not identical." State v. Vandervort , 276 Kan. 164, 179, 72 P.3d 925 (2003). "[T]he comparable offense" was "the closest approximation" to the out-of- state crime. 276 Kan. at 179, 72 P.3d 925.

But while Weber's petition for review was pending, the legal landscape for scoring out-of-state convictions arguably shifted because of State v. Wetrich , 307 Kan. 552, 412 P.3d 984 (2018). In that decision, the court held:

"For an out-of-state conviction to be comparable to an offense under the Kansas criminal code, the elements of the out-of-state crime cannot be broader than the elements of the Kansas crime. In other words, the elements of the out-of-state crime must be identical to, or narrower than, the elements of the Kansas crime to which it is being referenced." 307 Kan. at 562, 412 P.3d 984.

Weber raised the Wetrich issue in his supplemental brief. The State did not file a supplemental brief or respond to Weber's brief. But after the briefing deadlines, the State submitted a Rule 6.09 (2019 Kan. S. Ct. R. 39) letter noting that over a year earlier-and 12 months before Weber's petition for review was granted-the Legislature amended the Code of Criminal Procedure to provide, "A sentence is not an 'illegal sentence' because of a change in the law that occurs after the sentence is pronounced." See K.S.A. 2018 Supp. 22-3504(3). In its letter, the State argued this change precluded applying Wetrich in Weber's case because the revision is procedural only and, therefore, retroactive, citing State v. Dawson , 55 Kan. App. 2d 109, 116-18, 408 P.3d 995 (2017), rev. granted 308 Kan. 1597 (2018).

Weber argues the State waived its new statutory preclusion argument when it could have raised that issue in its supplemental brief because the legislative amendment occurred well before the State's briefing deadline. On the merits, Weber advances three points: (1) the Court of Appeals incorrectly decided Dawson because the statutory amendment affects substantive rights; (2) Wetrich merely clarified the law, so it did not represent the "change in the law" required by the statutory amendment; and (3) the analysis used in Wetrich had been required at least as early as Apprendi in 2000, before his sentence was imposed.

The State waived its new statutory preclusion argument.

The timeline is important. The legislative change the State wants to invoke to preclude Weber's argument was effective May 18, 2017. As it happened, just over a year later this court granted Weber's petition for review, which triggered the parties' ability to submit supplemental arguments. On June 28, 2018, Weber filed his supplemental brief arguing Wetrich applied to his illegal sentence claim. Under Supreme Court Rule 8.03(h)(3) (2018 Kan. S. Ct. R. 53), the State could have filed a response within 30 days. It did not avail itself of that opportunity. On August 8, 2018, the State filed a Rule 6.09 letter to raise for the first time the statutory preclusion argument arising from the 2017 legislative enactment. Weber now objects to the State's procedural failure to properly address the question. We agree with Weber.

In State v. Torres , 294 Kan. 135, 273 P.3d 729 (2012), the court held the State could not use a 6.09 letter to raise recent amendments to K.S.A. 60-455 as a rationale for finding it was harmless to erroneously admit evidence under the older version of the statute. The court reasoned the State's claim was "inadequately briefed and therefore not properly before us in this case." 294 Kan. at 145, 273 P.3d 729. Similarly, in State v. Tague , 296 Kan. 993, 1010-11, 298 P.3d 273 (2013), the court held a defendant could not use a 6.09(b) letter to raise an entirely new issue on appeal concerning a lesser included offense. It reasoned, " Rule 6.09(b) letters are reserved for citing significant relevant authorities not previously cited which come to a party's attention after briefing." 296 Kan. at 1010, 298 P.3d 273. Tague cited State v. Houston , 289 Kan. 252, 277, 213 P.3d 728 (2009), which declared Rule 6.09"was not intended to be, nor should it be, used as yet another briefing opportunity."

The State waived its statutory preclusion argument by failing to properly brief it. Both the statutory change and Wetrich predate our decision to grant review in Weber's case. Both obviously were known to the State prior to the parties' supplemental briefing deadline, and that briefing was the State's chance to argue their potential impact. See Rule 8.03(h)(3) (2018 Kan. S. Ct. R. 53). The State missed that opportunity, even though Weber seized it. Using a subsequent Rule 6.09 letter to advance a legal argument available to the State at the time it could have briefed it violates Rule 6.09's purpose. See Houston , 289 Kan. at 277, 213 P.3d 728.

The 1976 Michigan offense was properly scored as a person crime at sentencing.

In Murdock II , the district court sentenced the defendant three times. The second was in response to our mandate after Murdock I . The district court followed that mandate, the State did not appeal, and the second sentence became final. Six months later, we decided Keel , which overruled Murdock I . A few days after that, the State moved to correct Murdock's sentence based on Keel , and the district court sentenced him for the third time.

The Murdock II court reversed, repudiating the State's effort at a third sentencing. The Murdock II court held:

"[T]he legality of a sentence under K.S.A. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. The legality of a sentence is fixed at a discrete moment in time-the moment the sentence was pronounced. At that moment, a pronounced sentence is either legal or illegal according to then-existing law. Therefore, for purposes of a motion to correct an illegal sentence, neither party can avail itself of subsequent changes in the law." 309 Kan. at 591, 439 P.3d 307.

Wetrich was a change in the law as contemplated by Murdock II . See Murdock II , 309 Kan. at 592, 439 P.3d 307 ("[T]rue changes in the law cannot transform a once legal sentence into an illegal sentence, but developments in the law may shine new light on the original question of whether the sentence was illegal when pronounced."). Before Wetrich, no Kansas case construed the term "comparable" as used in K.S.A. 2018 Supp. 21-6811(e)(3), formerly K.S.A. 21-4711(e), to incorporate the identical-or-narrower requirement. Vandervort rejected such a construction when it reviewed a defendant's claim that an out-of-state offense and a Kansas offense could not be comparable since the out-of-state offense was broader, i.e., did not contain a lack-of-consent element required to commit the Kansas crime. See 276 Kan. at 178-79, 72 P.3d 925 ("Vandervort confuses the term 'comparable' with the concept of identical elements of the crime."). Wetrich substituted the statute's new interpretation for the old one. See 307 Kan. at 562, 412 P.3d 984.

Under the law at the time of Weber's sentencing, as he concedes, "[f]or purposes of determining criminal history, the offenses need only be comparable, not identical." Vandervort , 276 Kan. at 179, 72 P.3d 925. In Murdock II 's wake, he cannot argue Wetrich makes his sentence, which was legal when it was imposed, illegal. See State v. Newton , 309 Kan. ----, ----, 442 P.3d 489, 2019 WL 2399484 (No. 116,098, filed June 7, 2019), slip op. at 6.

Affirmed.

Luckert, J., not participating.

Michael J. Malone, Senior Judge, assigned.

      REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 113,472 vice Justice Luckert under the authority vested in the Supreme Court by K.S.A. 20-2616.


text:
    STATE of Kansas, Appellee, v. Samuel DARRAH, Appellant.
    No. 117,461
    Supreme Court of Kansas.
    Opinion filed June 21, 2019
    Michelle A. Davis, of Kansas Appellate Defender Office, was on the brief for appellant.
    Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, were on the brief for appellee.
   The opinion of the court was delivered by Nuss, C.J.:

In this multiconviction sentencing case, Samuel Darrah claims the district court abused its discretion in ordering his 100-month sentence for attempted aggravated kidnapping be consecutive to, instead of concurrent with, his hard 25 life sentence for felony murder. In support, Darrah argues that he did not personally kidnap or fatally stab the victim. He further claims the two other individuals involved in the crimes played greater roles than his. But given Darrah's leadership in the planning, coordinating, and carrying out of these serious crimes, we conclude the court did not abuse its discretion in imposing consecutive sentences under K.S.A. 2018 Supp. 21-6819(b). So we affirm.

FACTS AND PROCEDURAL HISTORY

The essential facts come from a preliminary hearing. Witnesses included Darrah's alleged coconspirators in James Croft's murder: Clinton Bascue and Darrah's girlfriend, Kamra Farrell. Darrah's close friend, Christa Martin, and Dan Kelly-Darrah's drug dealer and fellow band member-also testified.

Darrah, Farrell, and Bascue lived and did methamphetamines together in the summer of 2014. One day Kelly, their usual dealer, gave Darrah $ 3,200 to buy a supply of drugs. Darrah gave the money to Croft-also known as "Frog"-to exchange for drugs. But Croft never provided them. So Darrah told Kelly he did not have the drugs because Frog had robbed him. Kelly became upset and told Darrah to fix it.

By that November, Darrah still had not paid the money back or obtained the drugs for Kelly. Nevertheless, Darrah went with Farrell and Bascue to Kelly's house in Wichita for more drugs. Darrah told Kelly he was going to make it right by killing Croft. But Kelly did not care anymore, telling Darrah to just drop it because killing Croft would not get his money back. Darrah continued to say he would take care of it, however, which Kelly took to mean that Darrah would kill Croft. After Farrell and Darrah left Kelly's house, she and Darrah continued to discuss finding Croft and killing him.

A few days later Darrah came to his friend Christa Martin's home in the early morning with Farrell and Bascue. They all went into her garage to do drugs and talk. There, Darrah told Martin he had been robbed of $ 3,200 by an individual known as "Frog." Farrell said she hoped they could find Frog and that he could lead her to John Stark whom Farrell believed had her computer containing pictures of her deceased child.

According to Martin, Darrah had a gun and he and Farrell discussed robbing Frog. The plan was for Farrell to drop Darrah and Bascue in a field. Farrell then would pick Frog up from his home and take him to the field where they would rob him. Farrell asked Martin if she would drive a vehicle or if they could borrow one, and Martin said no. Martin left the garage at that point because she did not want any involvement in the scheme. Kacee Probst, who lived with Martin, provided similar testimony.

Farrell's testimony about the crime planning in the garage was similar to Martin's. In addition, Farrell testified she had been in contact with Croft before they had stopped at Kelly's house and Croft had told her that he knew the location of her computer. She wanted to meet with him as a step toward retrieving her computer from Stark and to meet him without Darrah and Bascue because he trusted her.

According to Farrell, Darrah was jealous of Croft, whose text messages indicated he wanted to have sex with her. So after the trio-Farrell, Darrah, and Bascue-left Martin's house, Darrah directed Farrell to drop him and Bascue off at Moccasin Road. Both men were armed-Darrah with a gun and Bascue with knives-and they waited by the roadside. According to Farrell, the plan was for her to bring Croft there and for Darrah and Bascue to rough him up-then force him to take them to Stark to retrieve Farrell's computer. Then, Farrell would punch Croft, and Darrah would shoot him to death.

Farrell dropped off Darrah and Bascue and then went to Croft's house. After spending some time together there, Croft left with Farrell to look for her computer. Without Croft's knowledge, throughout most of the encounter Darrah listened in on their conversation via a Bluetooth device on Farrell's ear.

Farrell drove Croft to the field where Darrah and Bascue were waiting. Croft became suspicious and yelled at her to stop. Farrell got out, Bascue came running up, and Darrah started shooting at the car. Bascue jumped in from the passenger side and fought with Croft as the car slid into the ditch.

Bascue then jumped out of the car and ran over to Darrah and Farrell saying he had stabbed Croft. Bascue handed Darrah the knife which Darrah started stabbing into the ground. Darrah also took apart his gun and threw the parts around in the field. Darrah instructed Farrell to call 911 and report the car stolen. After some debate, she made the call, and the three started walking away.

In the meantime, a passerby had already stopped at Farrell's car and called 911. By the time paramedics arrived, Croft was dead. Law enforcement officers soon caught up with Darrah, Farrell, and Bascue in the field nearby.

While the case was scheduled for a status conference, the parties reached a plea agreement. The State agreed to amend original charges to first-degree felony murder in violation of K.S.A. 2018 Supp. 21-5402(a)(2) and added two more counts: attempted aggravated kidnapping in violation of K.S.A. 2018 Supp. 21-5408(b), 21-5210(a), and 21-5301, a severity level 3 person felony; and aggravated robbery in violation of K.S.A. 2018 Supp. 21-5420(b)(2) and 21-5210(a), a severity level 3 person felony. Darrah agreed to plead no contest to the charges as amended. The parties had no agreement as to sentencing recommendations. The district court ultimately accepted Darrah's plea.

Before sentencing, Darrah filed a motion asking the court to exercise its discretion to impose concurrent instead of consecutive sentences. In the motion, Darrah argued that his culpability was not as severe as Bascue's and he was not as central to the plot as Farrell. So he maintained his sentence should not be greater than either of theirs and the only way to assure that was to run the counts concurrent and not consecutive.

At the sentencing hearing, the court reviewed the presentence investigation report which showed Darrah had a previous conviction, resulting in a criminal history score of D. The State requested the aggravated gridbox sentence for attempted aggravated kidnapping: 100 months. In support, the State cited K.S.A. 2018 Supp. 21-6815(c)(2)(H), which describes one aggravating factor as whenever the person being sentenced is the leader, recruiter, instigator, or manager of a conspiracy between two or more persons to commit a crime.

In response to the motion, the State recited facts from the preliminary hearing to show Darrah was the leader of the conspiracy, specifically including the following: (1) the motive for the crimes was to recoup money stolen from Darrah by Croft; (2) Darrah acquired the gun used in the crime; (3) Darrah's girlfriend, Farrell, had a motive to get her computer back from Stark, but not to kill Croft; (4) Bascue did not have any motive against either Stark or Croft; and (5) Darrah was the connection to both Kelly (to whom Darrah owed the money he wanted to reclaim from Croft) and Martin (at whose house the conspirators hatched the plot).

The State also read into the record the victim statement from Croft's wife, Darlene Lawrence, about the sorrow and hardship she and their daughter suffered as a result of his death. As a result, the State requested the court run the attempted aggravated kidnapping sentence consecutive to the felony first-degree murder sentence and the aggravated robbery concurrent to both.

At sentencing Darrah requested the court impose the mitigated gridbox sentences for the two on-grid crimes. And he repeated his request for concurrent sentences for all three convictions. Darrah emphasized that Bascue stabbed Croft to death, not he. He further argued Bascue had already pled to the crimes and received a controlling sentence of 25 years. He also pointed out Farrell too had already pled and, because of another ongoing case, received a total of 30 years for both.

Darrah admitted he had struggled with drug addiction for his entire life. But he argued he accepted responsibility by entering the no contest plea. He also contended his involvement was not as extreme as the State made it out to be. Defense counsel described Darrah as 47 years old, but with a family history of cancer. Darrah has three children he wanted to see outside his prison walls at some point in his life. He would most likely be unable to do so if the court ran the counts consecutive.

For Count 1-felony murder-the court imposed a life sentence with the possibility of parole after 25 years ("hard 25"). On Count 2-attempted aggravated kidnapping-the court imposed the aggravated, gridbox sentence of 100 months and ordered it to run consecutive to Count 1. For Count 3, aggravated robbery, the court imposed the gridbox sentence of 59 months and ordered Count 3 be concurrent with Counts 1 and 2.

Our jurisdiction is under K.S.A. 2018 Supp. 22-3601(b)(3) (life sentence imposed).

ANALYSIS

Issue: The district court did not abuse its discretion by ordering Darrah to serve his sentences for felony murder and attempted aggravated kidnapping consecutively.

Darrah claims the sentencing court abused its discretion in ordering his 100-month sentence for aggravated attempted kidnapping be consecutive to his hard 25 life sentence. The State responds the consecutive sentences are reasonable under the particular facts of this case.

Standard of review

A sentencing judge has discretion to impose concurrent or consecutive sentences in multiple conviction cases under K.S.A. 2018 Supp. 21-6819(b) (absent certain circumstances, the sentencing judge shall "have discretion to impose concurrent or consecutive sentences in multiple conviction cases"). This statute does not list specific factors for consideration. Rather, it states the judge "may consider the need to impose an overall sentence that is proportionate to the harm and culpability" associated with the crimes. K.S.A. 2018 Supp. 21-6819(b) ; State v. Wilson , 301 Kan. 403, 405, 343 P.3d 102 (2015).

This court's abuse of discretion standard is well-established:

" 'Judicial discretion is abused if judicial action: (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.' " State v. Shank , 304 Kan. 89, 92, 369 P.3d 322 (2016).

The party asserting an abuse of discretion bears the burden of establishing such abuse. State v. Corbin , 305 Kan. 619, 622, 386 P.3d 513 (2016).

Discussion

Given how Darrah has framed his issue on appeal, for us to conclude the district court abused its discretion by unreasonably ordering the sentences for the attempted aggravated kidnapping and felony murder convictions to run consecutive instead of concurrent, we would have to conclude that no reasonable person would have taken the court's view. State v. Ward , 292 Kan. 541, 550, 256 P.3d 801 (2011). In applying the abuse of discretion test, even though the court did not make any factual findings or state reasons for its decision to run the sentences consecutive, a number of facts show Darrah was central to the conspiracy and acted as a leader in the commission of these serious crimes.

While Darrah himself did not commit the fatal stabbing of Croft, he was certainly involved in the planning and nearly every other aspect of the kidnapping and killing. This included providing the motive (revenge) for the drug transaction gone awry; repeatedly stating his intent to find Croft and kill him, despite Kelly telling him to "drop it"; being angry at Croft for flirting with Darrah's girlfriend, Farrell; determining the remote location for the commission of the crime; ensuring he was armed there; covertly coordinating with Farrell over her Bluetooth as she followed his instructions to lure Croft to where Darrah and Bascue were waiting; and, immediately after the stabbing, directing disposal of the weapons and telling Farrell to call and report the crime car as stolen.

In spite of Darrah's claim that his involvement is not as extreme as the State made it out to be, a reasonable person could have concluded consecutive sentences were proportionate to the harm and culpability associated with Darrah's convictions under K.S.A. 2018 Supp. 21-6819(b). See State v. Shank , 304 Kan. 89, 369 P.3d 322 (2016) (no abuse of discretion in ordering consecutive instead of concurrent sentences where defendant cited youth and took responsibility for the crime but the State argued the brutal, cruel, and premeditated nature of the crime merited the consecutive sentences); State v. Wilson , 301 Kan. 403, 343 P.3d 102 (2015) (no abuse of discretion in ordering life sentence for murder and additional 310 months for remaining crimes to run consecutive instead of concurrent where defendant's misfortunes could not overcome the degree of harm he caused). We hold the district court did not abuse its discretion.

Affirmed.


author: Malone, J.:

text:
    Nathan A. JARVIS, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.
    No. 119,116
    Court of Appeals of Kansas.
    Opinion filed May 10, 2019
    Joanna Labastida, of Legal Services Bureau, Kansas Department of Revenue, for appellant.
    Sheena Foye, of Wyrsch Hobbs & Mirakian P.C., of Kansas City, Missouri, for appellee.
    Before Arnold-Burger, C.J., Pierron and Malone, JJ.
   Malone, J.:

The Kansas Department of Revenue (KDR) suspended Nathan A. Jarvis' driver's license after he refused to submit to a breath test. On judicial review, the district court found that the officer lacked reasonable suspicion to stop Jarvis' car. Based on this finding, the district court ruled that K.S.A. 2018 Supp. 8-1020(p)"justifies reversal of the administrative suspension of [Jarvis'] driving privileges." On appeal the KDR first claims the district court erred by finding that the officer lacked reasonable suspicion to stop Jarvis' car. Second, the KDR claims that even if the car stop was unlawful, the district court erred by applying the exclusionary rule to suppress the evidence in this administrative driver's license suspension case.

Based on our review of the record, there was sufficient evidence to support the district court's finding that the officer lacked reasonable suspicion to stop Jarvis' car. And we agree with the district court that on judicial review of the administrative suspension of a person's driver's license, K.S.A. 2018 Supp. 8-1020(p) now authorizes the district court to "consider and determine any constitutional issue, including, but not limited to, the lawfulness of the law enforcement encounter." Based on the district court's finding that the officer unlawfully stopped Jarvis' car, we affirm the district court's decision to set aside the administrative suspension of Jarvis' driving privileges.

FACTUAL AND PROCEDURAL BACKGROUND

On February 6, 2017, Officer Matthew Hirsch of the Merriam Police Department arrested Jarvis for driving under the influence (DUI). Hirsch read the implied consent advisories to Jarvis and he refused to submit to a breath test, resulting in the KDR's administrative suspension of Jarvis' driving privileges. Jarvis requested an administrative hearing and the hearing officer upheld the suspension. Jarvis filed a petition for judicial review, arguing in part that Hirsch had "no lawful grounds to stop [Jarvis'] vehicle" and also that Hirsch had "no reasonable grounds to believe [Jarvis] was operating a vehicle under the influence of alcohol or drugs."

The district court held a trial de novo and Hirsch was the only witness to testify. Hirsch told the court that he stopped Jarvis around 1:45 a.m. after he saw him swerving in his lane and crossing the center line of the road. Hirsch explained the road Jarvis was on had no painted center line, but if it had been there, Jarvis would have crossed it. He said he also saw Jarvis almost hit a mailbox, although he did not include this fact in his report. Hirsch testified that he pulled Jarvis over, intending to give him a warning for swerving and crossing the center line. But as Hirsch spoke with Jarvis, he saw that his eyes were bloodshot, and he smelled alcohol on his breath. Jarvis admitted he had drunk one beer.

Hirsch asked Jarvis to exit his vehicle and he conducted several field sobriety tests. Jarvis successfully performed the "finger-to-nose" and "alphabet" tests. But according to Hirsch, Jarvis failed the walk-and-turn test and showed clues of impairment on the one-leg-stand test. Jarvis refused a preliminary breath test. Hirsch arrested Jarvis for DUI and took him to the Merriam Police Department. There, Hirsch asked Jarvis to submit to an evidentiary breath test, but Jarvis refused. Jarvis later asked about the possibility of taking a blood test, but Hirsch did not administer one.

The video recording from Hirsch's patrol car was played at the hearing and introduced as an exhibit. Hirsch testified that he manually started the video, and he would have done so after seeing a traffic infraction. After watching the video in court, Hirsch said he saw two lane violations, but he could not specify when they had occurred in the video. After hearing the evidence, the district court took the matter under advisement and asked the parties to submit posttrial briefs.

On February 9, 2018, the district court filed a 13-page memorandum decision reversing Jarvis' driver's license suspension. The district court began by addressing whether Hirsch had reasonable suspicion for the traffic stop and, on that issue, the district court found that Hirsch's testimony was not credible. The district court noted that Hirsch claimed to have seen Jarvis commit a traffic violation on an unlaned road, but when the video started, Jarvis was on a laned road. The district court also noted that Hirsch testified he made a complete and accurate report of the incident, but his report did not include his observation of Jarvis almost hitting a mailbox. The district court added that Hirsch was unable to pinpoint any traffic violations on the video. The district court found that the video did not show Jarvis' car weaving any more than Hirsch's car. The district court concluded by finding that Hirsch "articulated no credible reasonable suspicion justifying the stop and initial encounter."

The district court then analyzed the effect of the 2016 amendment to K.S.A. 8-1020(p) on Jarvis' driver's license suspension case. The district court found that "[t]he Legislature has made it clear by the 2016 amendment that the initial police encounter is a justiciable issue" in a driver's license suspension case. The district court also found that the new statutory provision would be rendered "meaningless" if constitutional claims had no effect on the district court's decision whether to uphold a driver's license suspension. Based on its finding that Hirsch had no reasonable suspicion to initiate the traffic stop, the district court concluded that K.S.A. 2018 Supp. 8-1020(p)"justifies reversal of the administrative suspension of [Jarvis'] driving privileges."

Although the district court could have ended its analysis there, the court went on to find that after Hirsch initiated the traffic stop, he had reasonable grounds to believe that Jarvis was operating a vehicle while under the influence of alcohol to justify the request for Jarvis to submit to a breath test. The district court also found that Jarvis refused to submit to the breath test and he did not rescind his test refusal. The KDR timely filed a notice of appeal from the district court's judgment.

ANALYSIS

On appeal, the KDR claims the district court erred in reversing Jarvis' driver's license suspension. The KDR first argues that the district court erred by finding that Hirsch lacked reasonable suspicion to stop Jarvis' car. Second, the KDR argues that even if the car stop was unlawful, the district court erred by applying the exclusionary rule to suppress the evidence in this administrative driver's license suspension case. Finally, for the first time on appeal, the KDR argues that even if the exclusionary rule applies in administrative proceedings, this court should remand Jarvis' case to the district court to determine if the good-faith exception applies to uphold the driver's license suspension.

Jarvis responds by arguing that the evidence supports the district court's finding that Hirsch lacked reasonable suspicion to stop his car. Jarvis also argues that the exclusionary rule applies to the administrative suspension of his driving privileges. Finally, Jarvis argues that the good-faith exception to the exclusionary rule does not apply in this instance to uphold the driver's license suspension.

When a driver challenges the administrative suspension of his or her driving privileges for failing to submit to a breath test, the district court holds a de novo trial. K.S.A. 2018 Supp. 8-1020(p). At trial, the driver bears the burden of proving the agency action should be set aside. K.S.A. 2018 Supp. 8-1020(q).

An appellate court generally reviews a district court's decision in a driver's license suspension case to determine whether it is supported by substantial competent evidence. Swank v. Kansas Dept. of Revenue , 294 Kan. 871, 881, 281 P.3d 135 (2012). Substantial competent evidence is evidence that has both relevance and substance, and provides a substantial basis of fact from which the issues can be reasonably resolved. Wiles v. American Family Life Assurance Co. , 302 Kan. 66, 73, 350 P.3d 1071 (2015). In reviewing a district court's factual findings, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. State v. Chandler , 307 Kan. 657, 668, 414 P.3d 713 (2018). Finally, resolution of the issue before this court also requires interpretation of K.S.A. 2018 Supp. 8-1020(p). Statutory interpretation is a question of law over which appellate courts have unlimited review. See Hoesli v. Triplett, Inc. , 303 Kan. 358, 362, 361 P.3d 504 (2015).

REASONABLE SUSPICION FOR THE CAR STOP

The KDR first claims the district court erred by finding that Hirsch lacked reasonable suspicion to stop Jarvis' car. This issue implicates Jarvis' constitutional right to be free of unreasonable searches and seizures by government officials.

The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Section 15 of the Kansas Constitution Bill of Rights contains similar language and provides "the same protection from unlawful government searches and seizures as the Fourth Amendment." See State v. Neighbors , 299 Kan. 234, 239, 328 P.3d 1081 (2014).

A traffic stop is a seizure of the driver, and to comply with the Fourth Amendment, the officer conducting the stop must have reasonable and articulable suspicion that the driver has committed, is committing, or is about to commit a crime. See K.S.A. 22-2402(1) ; Terry v. Ohio , 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L.Ed. 2d 889 (1968). Reasonable suspicion represents a minimum level of objective justification and is a lower standard than probable cause. City of Atwood v. Pianalto , 301 Kan. 1008, 1011, 350 P.3d 1048 (2015). A traffic infraction provides an objectively valid reason to effectuate a traffic stop. State v. Jones , 300 Kan. 630, 637, 333 P.3d 886 (2014).

The KDR cites several cases to support its claim that the evidence at trial established reasonable suspicion for a stop. For instance, in State v. Field , 252 Kan. 657, 664, 847 P.2d 1280 (1993), the Kansas Supreme Court held that an officer had reasonable suspicion to stop a driver who was weaving in his own lane at 2 a.m., even though the officer did not see the driver commit a traffic violation. Similarly, in State v. Knight , 44 Kan. App. 2d 666, 676, 241 P.3d 120 (2010), this court held that an officer had reasonable suspicion to pull over a driver who had been weaving in and out of lanes without signaling and weaving within his lane late at night. See also State v. Campbell , No. 109,109, 2013 WL 6726167, at *4 (Kan. App. 2013) (unpublished opinion) (holding that officer had reasonable suspicion to pull over driver who weaved in his lane and varied his speed in the early morning hours).

Based on these cases, the KDR argues that Hirsch's testimony showed he had reasonable suspicion to stop Jarvis. The KDR highlights Hirsch's testimony that he saw Jarvis weaving in his lane and crossing the center line of the road around 1:45 a.m. Hirsch also told the court that he saw Jarvis almost hit a mailbox.

But the KDR ignores the district court's factual finding that Hirsch's testimony was not credible. The district court cited several reasons, based on the evidence, for not believing Hirsch's testimony that Jarvis was weaving on the road. For instance, Hirsch was unable to pinpoint any traffic violations on the video and his report did not include his observation of Jarvis almost hitting a mailbox. In reviewing a district court's factual findings, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. Chandler , 307 Kan. at 668, 414 P.3d 713.

In sum, Hirsch's testimony would have provided reasonable suspicion for the car stop had the district court found the testimony credible. But the district court found that Hirsch's testimony was not credible and we will not reweigh the evidence or make witness credibility determinations. Hirsch was the only witness to attempt to establish reasonable suspicion for the car stop. The district court found that Hirsch "articulated no credible reasonable suspicion justifying the stop and initial encounter." We conclude this finding is supported by the evidence in the record.

EFFECT OF THE 2016 AMENDMENT TO K.S.A. 8-1020(p)

Next, the KDR argues that even if the car stop was unlawful, the district court erred by applying the exclusionary rule to suppress the evidence resulting from the unlawful stop in this administrative driver's license suspension case. The KDR points out that in Martin v. Kansas Dept. of Revenue , 285 Kan. 625, Syl. ¶ 8, 176 P.2d 938, 176 P.3d 938 (2008), the Kansas Supreme Court held that the exclusionary rule is not applicable to driver's license suspension proceedings. Jarvis responds by asserting that " Martin is no longer good law given the 2016 amendment of K.S.A. 8-1020(p)." Jarvis goes on to argue that the exclusionary rule now applies to the administrative suspension of driving privileges.

To resolve the parties' claims, we will begin by reviewing our Supreme Court's decision in Martin . Next, we will examine the 2016 amendment to K.S.A. 8-1020(p), and we will discuss the effect of the statutory amendment on the Martin decision. Finally, we will focus on the district court's memorandum decision reversing the KDR's suspension of Jarvis' driving privileges, including whether the district court applied the exclusionary rule to set aside the driver's license suspension, and we will decide whether the district court's ruling was correct under the applicable law.

Martin v. Kansas Dept. of Revenue

We begin by reviewing our Supreme Court's decision in Martin . In that case, an officer stopped Martin's car based on the officer's erroneous belief that the car's malfunctioning rear brake light violated traffic ordinances. During the stop, the officer suspected that Martin was under the influence of alcohol. Martin later failed field sobriety tests and a chemical breath test. The KDR suspended Martin's driver's license based on the failed breath test. Martin challenged the administrative suspension and ultimately sought judicial review. The district court reversed the driver's license suspension, finding that the officer misinterpreted the law governing brake lights and, as a result, the officer lacked reasonable suspicion to stop Martin's car.

The Court of Appeals reversed the district court's decision, agreeing with the KDR that the propriety of a traffic stop is irrelevant in a driver's license suspension hearing. The Court of Appeals focused on the language of K.S.A. 8-1020(h)(2) that sets forth the scope of the administrative hearing in a driver's license suspension proceeding. Under that statutory provision, whether the officer has reasonable suspicion to initiate a traffic stop is not one of the exclusive issues that can be challenged in an administrative driver's license suspension proceeding. 285 Kan. at 627-28, 176 P.3d 938.

On a petition for review, our Supreme Court first analyzed whether the KDR can decide a constitutional claim, such as Martin's claim that the officer lacked reasonable suspicion to stop his car, at an administrative hearing. The court held that in view of the fact that a driver's license is a privilege rather than a right, the exclusion of a Fourth Amendment claim as an issue that can be decided at an administrative suspension hearing under K.S.A. 8-1020(h)(2) does not violate procedural due process. 285 Kan. at 633, 176 P.3d 938.

The court went on to hold that the rule that a constitutional issue cannot be decided by an administrative agency does not necessarily preclude a driver from raising such an issue in that forum. 285 Kan. at 633-34, 176 P.3d 938. The court found that a driver's license suspension proceeding implicates the driver's constitutional rights under the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights to be free from unreasonable searches and seizures. 285 Kan. at 634-36, 176 P.3d 938. In Martin's case, the court held that the officer's misunderstanding and misapplication of the ordinance on brake lights resulted in a finding that the officer lacked constitutional authority to stop Martin's car. 285 Kan. at 639, 176 P.3d 938.

Despite this finding, the court held that under the facts of Martin's case, the exclusionary rule did not require reversal of Martin's driver's license suspension. 285 Kan. at 639-46, 176 P.3d 938. After analyzing cases from the United States Supreme Court and several sister states, our Supreme Court held:

"The balance outlined by the United States Supreme Court between the benefits and costs of application of the exclusionary rule, when employed in driver's license suspension proceedings, tips in favor of the Department and against Martin and other drivers. The deterrent effect of the rule is already accomplished in the criminal arena. Any additional deterrent effect on law enforcement violation of the Fourth Amendment and § 15 to be gleaned from extension of the rule beyond the criminal DUI setting would be minimal, and it cannot outweigh the remedial imperative of preventing alcohol- and/or drug-impaired drivers from injury or killing themselves or others. Responsive administrative license regulation is essential to that public good. It should not be hamstrung by application of the rule here." 285 Kan. at 646, 176 P.3d 938.

But even in Martin , our Supreme Court left the door open to applying the exclusionary rule in an administrative proceeding such as a driver's license suspension case. Referring to one of its prior decisions on the application of the exclusionary rule, the court "noted that use of the rule might be warranted if, under a totality of circumstances, police misconduct was egregious. The facts here certainly do not reveal egregious police misconduct. [Citation omitted.]" 285 Kan. at 643, 176 P.3d 938.

Based on Martin , the KDR argues that under Kansas law, the exclusionary rule does not apply in administrative license suspension proceedings. So even if Hirsch unlawfully stopped Jarvis' car without reasonable suspicion of criminal activity in violation of Jarvis' constitutional rights, the KDR argues that the district court erred by applying the exclusionary rule to suppress the evidence resulting from the unlawful stop in an administrative driver's license suspension case. But Jarvis asserts that " Martin is no longer good law given the 2016 amendment of K.S.A. 8-1020(p)." We will next examine that amendment and discuss its effect on our Supreme Court's decision in Martin .

2016 amendment to K.S.A. 8-1020(p)

Kansas law governing tests for alcohol and drugs for any person who operates or attempts to operate a vehicle in this state, including the administrative license suspension of any driver who fails or refuses such testing, is found at K.S.A. 8-1001 et seq. As part of that statutory scheme, K.S.A. 8-1020 sets forth the procedure for any person to request an administrative hearing to challenge his or her driver's license suspension, followed by judicial review in accordance with the Kansas Judicial Review Act, K.S.A. 77-601 et seq. In 2016, about eight years after Martin , the Kansas Legislature made several changes to K.S.A. 8-1020. L. 2016, ch. 69, § 2. One of those changes added this language to subsection (p) addressing judicial review in a driver's license suspension case:

"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 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." K.S.A. 2018 Supp. 8-1020(p).

Under K.S.A. 2018 Supp. 8-1020(p), on judicial review of the administrative suspension of a person's driver's license, the district court shall "consider and determine" any constitutional issue, including the "lawfulness of the law enforcement encounter," if such issue is raised in the petition for review, even if the issue was not raised before the agency. In fact, the district court may consider the constitutional issue even if it is not raised in the petition for review. The "lawfulness of the law enforcement encounter" certainly includes whether the officer has reasonable suspicion to initiate a traffic stop. The provision also states that "[i]f the court finds that the grounds for action by the agency have been met, the court shall affirm." K.S.A. 2018 Supp. 8-1020(p).

The district court applied K.S.A. 2018 Supp. 8-1020(p) in deciding whether to uphold the KDR's suspension of Jarvis' driver's license. Based on its finding that Hirsch had no reasonable suspicion to initiate the traffic stop, the district court concluded that K.S.A. 2018 Supp. 8-1020(p)"justifies reversal of the administrative suspension of [Jarvis'] driving privileges." We must now decide whether the district court correctly applied the statute. As previously stated, interpretation of a statute is a question of law over which appellate courts have unlimited review. Hoesli , 303 Kan. at 362, 361 P.3d 504.

The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. Hoesli , 303 Kan. at 362, 361 P.3d 504. An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Ullery v. Othick , 304 Kan. 405, 409, 372 P.3d 1135 (2016).

When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. Hoesli , 303 Kan. at 362, 361 P.3d 504. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe legislative intent. Ullery , 304 Kan. at 409, 372 P.3d 1135.

Jarvis argues that the 2016 amendment to K.S.A. 8-1020(p) abrogates our Supreme Court's holding in Martin about the application of the exclusionary rule in administrative suspension cases. The KDR argues the opposite. To the extent there is any ambiguity in the statute, the legislative history shows that the amendment was enacted in response to the Martin decision to provide licensees with a meaningful opportunity to challenge the legality of the traffic stop in driver's license suspension cases. The Kansas Judicial Council's Criminal Law Advisory Committee report on the proposed amendment includes the following language:

"The most significant amendments in HB 2289 would change existing law to provide licensees with a meaningful opportunity to challenge the legality of the traffic stop. In Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 176 P.3d 938 (2008), the Kansas Supreme Court held that the licensee could not raise the issue of the stop, even if it was unconstitutional, because the statute containing an exclusive list of the issues that could be raised during the administrative hearing did not authorize consideration of whether reasonable suspicion existed to support the traffic stop. Martin, 285 Kan. at 631-32 [176 P.3d 938]. Although the Martin case held that the constitutional issue can still be raised during the administrative hearing to preserve the issue for an appeal to the district court, the ability to do so is rendered virtually meaningless by the court's refusal to apply the exclusionary rule if the stop is in fact determined to have been unlawful. It has been argued that the statutory omission, combined with the holdings in the Martin case, negate 4th amendment protections and allow law enforcement to make stops for any reason or no reason. Although there is no constitutional right to obtain a driver's license, once it has been obtained, the licensee has a property right in the license that cannot be taken away without due process. Critics of the current law and its interpretation in Martin argue that the laws of the state should not encourage, or even tolerate, law enforcement officers to act outside the law." Report of Judicial Council Criminal Law Advisory Committee on House Bill 2289 (December 4, 2015).

Turning to judicial canons of construction, when construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with the view of reconciling and bringing the provisions into workable harmony, if possible. Friends of Bethany Place v. City of Topeka , 297 Kan. 1112, 1123, 307 P.3d 1255 (2013). The courts must construe statutes to avoid unreasonable or absurd results and presume the Legislature does not intend to enact meaningless legislation. Milano's Inc. v. Kansas Dept. of Labor , 296 Kan. 497, 501, 293 P.3d 707 (2013).

When the Legislature revises an existing law, the court presumes the Legislature intended to change the law as it existed before the amendment. Stueckemann v. City of Basehor , 301 Kan. 718, 745, 348 P.3d 526 (2015). Courts generally presume that the Legislature acts with full knowledge about the statutory subject matter, including prior and existing law and judicial decisions interpreting the same. University of Kan. Hosp. Auth. v. Board of Comm'rs of Unified Gov't , 301 Kan. 993, 1000, 348 P.3d 602 (2015).

The KDR argues that the 2016 amendment to K.S.A. 8-1020(p) does not abrogate our Supreme Court's holding in Martin and that the exclusionary rule does not apply in administrative driver's license suspension proceedings. Before addressing this argument, we will briefly review the exclusionary rule and how it applies in court proceedings.

Neither the Fourth Amendment to the United States Constitution nor § 15 of the Kansas Constitution Bill of Rights expressly prohibits the use of evidence obtained in violation of their respective protections. Instead, to supplement the bare text of the Fourth Amendment, the United States Supreme Court created the exclusionary rule as a deterrent barring the introduction of evidence obtained in violation of the Fourth Amendment in criminal prosecutions. See Weeks v. United States , 232 U.S. 383, 34 S. Ct. 341, 58 L.Ed. 652 (1914) (recognizing exclusionary rule in criminal prosecution in federal court); Mapp v. Ohio , 367 U.S. 643, 81 S. Ct. 1684, 6 L.Ed. 2d 1081 (1961) (applying exclusionary rule in state court prosecution through the Fourteenth Amendment).

The exclusionary rule is generally applied in criminal prosecutions, but its application has been expanded to some administrative proceedings. For instance, in In re Tax Appeal of Burch , 296 Kan. 713, 715, 294 P.3d 1155 (2013), our Supreme Court remanded a case to the Court of Tax Appeals for consideration of whether the exclusionary rule applied to the KDR's attempt to collect a drug tax on marijuana that had been unlawfully seized from a person's vehicle. And as we have noted before, in Martin , our Supreme Court left the door open to the application of the exclusionary rule in an administrative driver's license suspension case if, under a totality of circumstances, the police misconduct was egregious. 285 Kan. at 643, 176 P.3d 938.

To support its argument that the district court erred in applying the exclusionary rule in Jarvis' case, the KDR cites Whigham v. Kansas Dept. of Revenue , No. 117,043, 2018 WL 1884742, at *3 (Kan. App. 2018) (unpublished opinion), rev. granted 308 Kan. 1602 (2018), in which a panel of this court held the exclusionary rule still does not apply in administrative driver's license suspension cases, even after the 2016 amendment to K.S.A. 8-1020(p). Whigham was decided after the district court filed its ruling in Jarvis' case. The defendant in Whigham argued that the 2016 amendment to K.S.A. 8-1020(p) abrogated Martin because the statutory amendment would be useless if it allowed the district court only to consider constitutional issues without the ability to suppress evidence resulting from an illegal search or seizure. But the Whigham court disagreed:

"[A]s currently written, K.S.A. 2017 Supp. 8-1020(p) does not go far enough to say that the Martin holding is no longer good law on this point. As previously cited, this subsection allows a court to consider 'any constitutional issue' and 'the lawfulness of the law enforcement encounter' to 'determine any constitutional issue, including, but not limited to, the lawfulness of the law enforcement encounter.' Here, the Legislature chose the specific language used in this subsection. If it was 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. Nevertheless, K.S.A. 2017 Supp. 8-1020(p) contains no language allowing the suppression of this type of evidence in administrative suspension hearings. Because the absence of any such declarative language (allowing the suppression of illegally seized evidence) in K.S.A. 2017 Supp. 8-1020(p), we conclude that Whigham's argument is not currently warranted by the law." 2018 WL 1884742, at *3.

Our court's unpublished decision in Whigham is not final, as our Supreme Court has granted a petition for review. If we follow the panel's analysis in Whigham , then the KDR should prevail in this appeal. But as a general rule, one panel of the Court of Appeals is not bound by a decision of another panel of this court. Osterhaus v. Toth , 39 Kan. App. 2d 999, 1008, 187 P.3d 126 (2008). "Although separate panels of the Court of Appeals should strive to be consistent in decision-making, ultimately the court must do its best to decide each case based on the facts and the law, bearing in mind that the Kansas Supreme Court is the final arbiter of all disputes." State v. Horselooking , 54 Kan. App. 2d 343, 350, 400 P.3d 189, rev. granted 307 Kan. 990 (2017).

Analysis of the district court's ruling

The KDR argues that the district court erred by applying the exclusionary rule to suppress the evidence in this administrative driver's license suspension case. But we find it is unnecessary to decide whether the exclusionary rule applies to a driver's license suspension case in Kansas because the district court's ruling here was not based on an application of the exclusionary rule. After the district court found that Hirsch did not have reasonable suspicion to stop Jarvis, the district court went on to analyze the effect of the 2016 amendment to K.S.A. 8-1020(p) on Jarvis' driver's license suspension case. The district court did not suppress any evidence presented at the hearing. Instead, the district court set aside the KDR's suspension of Jarvis' driver's license based on the language of K.S.A. 2018 Supp. 8-1020(p), finding that the statute "justifies reversal of the administrative suspension of [Jarvis'] driving privileges."

In reaching its decision, the district court expressly rejected the parties' arguments about whether the exclusionary rule applied to suppress the evidence resulting from the unlawful car stop:

"The parties['] arguments based upon a judicially-created 'exclusionary rule' are misplaced. The issues for this review of the agency action are set by the Legislature. The Legislature has made it clear by the 2016 amendment that the initial police encounter is a justiciable issue in this case. The issue is not couched in terms of an exclusionary rule but rather in terms of the legality of the State action under the statutory Implied Consent law. [The KDR's] argument would nullify that amendment, something the Court is not inclined to do."

Although the district court found that the 2016 statutory amendment abrogated Martin 's holding that the exclusionary rule does not apply in administrative proceedings, the district court made it clear that it was relying on the language of the amended statute, not the judicially created exclusionary rule, to reverse the administrative suspension of Jarvis' driving privileges. The district court concluded its analysis by stating:

"The Legislature, rather than deferring to the Court's view on an exclusionary rule as such, has made the constitutionality of the initial police contact part of the judicial review of the administrative agency action and part of the authorization to impact a driver's license privileges under the Implied Consent law. The provision would be meaningless if constitutional claims 'have no practical effect,' as the [KDR] argues. And none of the cases that the [KDR] cites address the 2016 amendment to K.S.A. 8-1020(p). Accordingly, K.S.A. 8-1020(p) justifies reversal of the administrative suspension of [Jarvis'] driving privileges."

We agree with the district court's statutory analysis. Under K.S.A. 2018 Supp. 8-1020(p), on judicial review of the administrative suspension of a person's driver's license, the district court shall "consider and determine" any constitutional issue, including the "lawfulness of the law enforcement encounter," if such issue is raised in the petition for review, even if the issue was not raised before the agency. In fact, the district court may consider the constitutional issue even if it is not raised in the petition for review. So in other words, as the district court found, the Legislature has made it clear by the 2016 amendment to K.S.A. 8-1020(p) that the initial police encounter is a justiciable issue in a driver's license suspension case-at least when the case is on judicial review following the administrative hearing. The statute did not provide for the district court to consider and decide the "lawfulness of the law enforcement encounter" when Martin was decided.

K.S.A. 2018 Supp. 8-1020(p) also states that "[i]f the court finds that the grounds for action by the agency have been met, the court shall affirm." So under the statute, the "lawfulness of the law enforcement encounter" is a constitutional issue the district court can now decide in a driver's license suspension case, and the court shall affirm the suspension if it finds that the grounds for action by the agency action have been met. If the court shall affirm the agency action if it finds that the grounds for the agency action have been met, then the only logical inference is that the court shall reverse the agency action if it finds that the grounds for the agency action have not been met.

We do not rely on the legislative history of the 2016 amendment to K.S.A. 8-1020(p) to interpret its meaning. Instead, we find the text of the statute is sufficiently clear to convey the Legislature's intent that on judicial review of the administrative suspension of a person's driver's license, the district court can consider and determine constitutional issues, such as the lawfulness of the law enforcement encounter, and the court's resolution of such an issue will affect its ultimate decision whether to uphold the driver's license suspension. And although we find it unnecessary to resort to any canons of statutory construction to ascertain the legislative intent, we agree with the district court that to interpret the statute in any other way would render the amendment meaningless.

To sum up, the district court considered the circumstances of Jarvis' car stop and found that the law enforcement encounter was unlawful. Under K.S.A. 2018 Supp. 8-1020(p), the district court was authorized to find that the grounds for the agency action had not been met, so the court set aside Jarvis' driver's license suspension. The district court's ruling was based on a proper application of the statute to the facts of the case, and the judicially created exclusionary rule played no part in the court's ruling. Based on its finding that Hirsch had no reasonable suspicion to initiate the traffic stop, the district court did not err in concluding that K.S.A. 2018 Supp. 8-1020(p)"justifies reversal of the administrative suspension of [Jarvis'] driving privileges."

Good-faith exception

Lastly, for the first time on appeal, the KDR argues that even if the exclusionary rule does apply in administrative driver's license suspension cases, this court should remand Jarvis' case to the district court to determine if the good-faith exception applies. The KDR has made no attempt in its brief to comply with Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34) to explain why this issue should be considered for the first time on appeal. As a result, the issue is improperly briefed and is deemed abandoned. See State v. Godfrey , 301 Kan. 1041, 1044, 350 P.3d 1068 (2015). More importantly, because the district court's ruling was not based on an application of the exclusionary rule, there would be no reason to remand this case to the district court to determine if the good-faith exception to the exclusionary rule applies to uphold Jarvis' driver's license suspension.

Affirmed.


text:
    STATE of Kansas, Appellee, v. Marisa Lynn GROSS, Appellant.
    No. 120,161
    Court of Appeals of Kansas.
    Opinion filed June 21, 2019
    Submitted for summary disposition under K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Jordan Brock GLASSBURN-HOESLI, Appellant.
    Nos. 119 479 119,480
    Court of Appeals of Kansas.
    Opinion filed June 14, 2019.
    Vacated.


text:
    STATE of Kansas, Appellee, v. Jesse L. FISH, Appellant.
    No. 120,512
    Court of Appeals of Kansas.
    Opinion filed June 21, 2019
    Submitted for summary disposition under K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    Shannon M. SHOEMAKER, Appellant, v. PLASTIC PACKAGING TECHNOLOGIES, L.L.C., Appellee.
    No. 119,936
    Court of Appeals of Kansas.
    Opinion filed June 21, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Joseph Paul JONES Jr., Appellant.
    No. 119,470
    Court of Appeals of Kansas.
    Opinion filed June 21, 2019
    Vacated in part. Remanded with directions.


text:
    Rheuben JOHNSON, Appellant, v. Sam CLINE, Warden, et al., Appellees.
    No. 119,224
    Court of Appeals of Kansas.
    Opinion filed June 21, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Joshua Shane NORTON, Appellant.
    No. 120,276
    Court of Appeals of Kansas.
    Opinion filed June 21, 2019
    Submitted for summary disposition under K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Nicholas C. GILBERT, Appellant.
    No. 120,564
    Court of Appeals of Kansas.
    Opinion filed June 21, 2019
    Submitted for summary disposition under K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Dakota R. MORTON, Appellant.
    No. 119,647
    Court of Appeals of Kansas.
    Opinion filed June 21, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. John Willie SCOTT Jr., Appellant.
    No. 118,979
    Court of Appeals of Kansas.
    Opinion filed June 21, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Brandon N. LONG, Appellant.
    No. 119,526
    Court of Appeals of Kansas.
    Opinion filed June 28, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Linda Sue LULL, Appellant.
    No. 119,157
    Court of Appeals of Kansas.
    Opinion filed June 28, 2019
    Affirmed.


text:
    Manuel ALCALA, Appellant, v. STATE of Kansas, Appellee.
    No. 119,955
    Court of Appeals of Kansas.
    Opinion filed June 28, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. David Bryan CHAPMAN, Appellant.
    No. 119,482
    Court of Appeals of Kansas.
    Opinion filed June 28, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Eli KENDREX, Appellant.
    No. 119,833
    Court of Appeals of Kansas.
    Opinion filed June 28, 2019
    Submitted by the parties for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Mark A. TURNER, Appellant.
    No. 120,048
    Court of Appeals of Kansas.
    Opinion filed June 28, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Luis A. PORTILLO, Appellant.
    No. 119,756
    Court of Appeals of Kansas.
    Opinion filed June 28, 2019
    Affirmed.