Friday, September 18, 2009

"As nearly as practicable"

Stephen Atherton and Don Krueger won in consolidated cases in State v. Marx, No. 98,059 and 98,060 (Kan. Sept. 18, 2009) affirming Judge Larsons suppression order in this case. There were two issues: whether a stop was valid as a safety stop or, alternatively, whether the officer had reasonable suspicision of a traffic violation justifying the stop.

The KSC fairly quickly disposed of the state's argument that the stop was for safety considerations. The officer had observed a hubcap come off of motorhome. But the KSC agreed with the COA opinion that the hubcap was not a particular safety issue and was merely a pretext:
More importantly, the Court of Appeals' assessment of the level of public danger posed by the Marxes' mechanical problem was a secondary consideration. The opinion's principal holding is that "the primary motivation of a valid public safety stop must be for community caretaking purposes." Although the holding in Whren v. United States, 517 U.S. 806, 813 (1996), requires us to ignore a law enforcement officer's subjective motivation for stopping a vehicle for a traffic violation, permitting the public safety rationale to serve as a pretext for an investigative detention runs the risk of emasculating our Fourth Amendment protections.

As the Court of Appeals noted, the district court specifically found that Deputy Doudican's stop was not primarily motivated by community caretaking concerns. That finding is supported by substantial competent evidence, not the least of which was the deputy's admission that the real reason for the stop was the perceived traffic infraction. Moreover, a community caretaking motivation is belied by the deputy's actions in following the motor home for approximately a mile in the hope of observing a traffic violation rather than immediately addressing the alleged endangerment to the public.
The more involved analysis related to whether the officer's observation of the motor home cross the fog line, overcorrect, and cross the centerline was sufficient to show a violation of K.S.A. 8-1522(a): "A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety."

The KSC did a pretty thorough analysis, noting that jurisdictions have split widely on interpretation of this uniform traffic law. In the end, the Court held the following:
we interpret K.S.A. 8-1522(a) as establishing two separate rules of the road. The first requires a driver to keep entirely within a single lane while traveling on a roadway with two or more clearly marked lanes. That rule is temporarily suspended when it becomes impracticable to stay within the lane markers and when the driver is properly effecting a lane change. Proof that driving outside the lane markers created no safety hazard is not a defense to the single lane rule. The second rule provides that before a driver may change lanes or move from the current lane of travel to another location, he or she must ascertain that the movement can be made with safety. A traffic infraction occurs under K.S.A. 8-1522(a) when either rule of the road is violated.
Applying this interpretation, the KSC noted that the first part of this does not create a strict liability offense:
The express language employed–"as nearly as practicable"–contradicts the notion that any and all intrusions upon the marker lines of the chosen travel lane constitute a violation. As indicated in both Ross [blogged about here] and Marx, one can conjure up a number of scenarios where maintaining the integrity of the lane dividing lines is impracticable, e.g., weather conditions or obstacles in the roadway. However, the statute even dilutes the practicability standard. It does not say "when practicable" a vehicle will be driven entirely within a single lane. It only requires compliance with the single lane rule as nearly as practicable, i.e., compliance that is close to that which is feasible. That statutory language tells us that a violation of K.S.A. 8-1522(a) requires more than an incidental and minimal lane breach.
The KSC held that the COA had improperly placed the burden of proving the lawfulness of the driving on the defendant. Instead, after properly placing the burden on the state, the KSC upheld the district court's negative finding:
As the district court articulated at the suppression hearing, the defendant's vehicle was not weaving back and forth time and time again, but rather the deputy only observed one instance where the motor home did not maintain a single lane. Further, the court found that no testimony was offered as to how far the motor home crossed either the fog line or the centerline. The court noted that the deputy had shared no information about the traffic conditions. We would also observe that the deputy gave no testimony from which the court could even infer that it was practicable to maintain a single lane. Besides relating the path the motor home traveled, the only thing the deputy related was that Desiree told him the motor home was "hard to drive." Accordingly, from the record before us, we determine that the State failed to carry its burden of establishing that Deputy Doudican had a reasonable suspicion that the motor home was violating the provisions of K.S.A. 8-1522(a).
It will be interesting to see if this substantially curtails this pretextual basis for searching, as predicted by the concurring opinion. As a COA appeals panel noted, cars do not run on fixed rails--every now and then, every driver touches or slightly crosses the fog line.

Here is coverage on

Here is local coverage from the Emporia Gazette.

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