Jarvis v. Kansas Dept. of Revenue ( 2020 )


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  •                  IN THE SUPREME COURT OF THE STATE OF KANSAS
    No. 119,116
    NATHAN A. JARVIS,
    Appellee,
    v.
    KANSAS DEPARTMENT OF REVENUE,
    Appellant.
    SYLLABUS BY THE COURT
    1.
    On judicial review of a hearing officer's order suspending a driver's license,
    K.S.A. 2019 Supp. 8-1020(p) grants a court the authority to consider and determine any
    constitutional issue, including the lawfulness of the law enforcement encounter that led to
    the suspension. And under K.S.A. 2019 Supp. 8-1020(o) through (q) a court may set
    aside a driver's license suspension order if the driver meets the burden of establishing the
    encounter was unlawful.
    2.
    The record in this appeal provides substantial competent evidence supporting the
    district court's conclusion that a law enforcement officer lacked reasonable suspicion to
    initiate a traffic stop that led to the driver's license being suspended. Because the stop was
    unlawful, the district court did not err in setting aside the suspension.
    Review of the judgment of the Court of Appeals in 
    56 Kan. App. 2d 1081
    , 
    442 P.3d 1054
    (2019).
    Appeal from Johnson District Court; JAMES F. VANO, judge. Opinion filed October 9, 2020. Judgment of
    the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
    1
    Joanna Labastida, Adam D. King, and Ted E. Smith, of Kansas Department of Revenue, were on
    the briefs for appellant.
    Sheena Foye, of Wyrsch Hobbs & Mirakian, P.C., of Kansas City, Missouri, was on the brief for
    appellee.
    Adam D. Stolte, of Stolte Law, LLC, of Overland Park, was on the brief for amici curiae Kansas
    Association of Criminal Defense Lawyers and National College of DUI Defense.
    The opinion of the court was delivered by
    LUCKERT, C.J.: In this appeal, we interpret and apply K.S.A. 2019 Supp. 8-
    1020(p). Among other things, that provision identifies issues a court can consider when
    reviewing the validity of an administrative order suspending a driver's license because a
    driver failed or refused a blood alcohol test. The question presented is whether a court
    can set aside a driver's license suspension because the suspension flows from a law
    enforcement officer's unlawful seizure of the driver.
    We hold that, on judicial review under K.S.A. 2019 Supp. 8-1020(p), a court may
    "consider and determine any constitutional issue, including, but not limited to, the
    lawfulness of the law enforcement encounter." And under K.S.A. 2019 Supp. 8-1020(o)
    through (q) a court may set aside a driver's license suspension order if the driver meets
    the burden of establishing the encounter was unlawful.
    FACTS AND PROCEDURAL BACKGROUND
    After following Jarvis' vehicle, a law enforcement officer initiated a traffic stop.
    The officer could smell alcohol on Jarvis, and he observed that Jarvis had bloodshot eyes.
    2
    The officer administered field sobriety tests and then, when Jarvis exhibited signs of
    intoxication, arrested Jarvis for driving under the influence.
    At the police station, the officer read and presented a written implied consent
    advisory that informed Jarvis his driver's license would be suspended if he failed or
    refused a blood alcohol test. Jarvis refused to provide a breath sample, and the officer
    prepared the DC-27 form that certified Jarvis' test refusal and notified Jarvis his driver's
    license was suspended.
    Jarvis administratively appealed the suspension. An administrative hearing officer
    affirmed the suspension, and Jarvis petitioned for de novo review by the Johnson County
    District Court. A district court judge conducted an evidentiary hearing and ultimately
    concluded the officer's testimony was not credible, the officer lacked the reasonable
    suspicion necessary to justify the traffic stop, and the officer's seizure of Jarvis was
    unlawful. The judge interpreted K.S.A. 2019 Supp. 8-1020(p) to allow him to set aside
    the suspension based on his determination that the law enforcement encounter was
    unlawful.
    KDR timely appealed the reversal of the suspension order to the Court of Appeals.
    In a published opinion, the Court of Appeals affirmed the district court. Jarvis v. Kansas
    Dept. of Revenue, 
    56 Kan. App. 2d 1081
    , 1098, 
    442 P.3d 1054
    (2019). KDR then timely
    petitioned for review. This court granted review and has jurisdiction under K.S.A. 20-
    3018(b) (petition for review of Court of Appeals decision).
    ANALYSIS
    We begin our analysis by deciding the legal question of whether K.S.A. 2019
    Supp. 8-1020 allows a court to set aside a driver's license suspension based on an
    3
    unlawful law enforcement encounter. After determining that issue, we will examine the
    district court's ruling that Jarvis was stopped unlawfully because the law enforcement
    officer lacked a reasonable suspicion that Jarvis had committed a traffic offense.
    The parties' arguments about a court's power to set aside an administrative order
    focus on K.S.A. 2019 Supp. 8-1020(p) and amendments to that provision enacted in
    2016. Subsection (p) is one of three subsections of K.S.A. 2019 Supp. 8-1020 that
    explicitly apply when a court reviews a driver's license suspension order. Those
    subsections—(o) through (q)—state, with the 2016 amendment emphasized:
    "(o) The licensee may file a petition for review of the hearing order pursuant to
    K.S.A. 8-259, and amendments thereto. Upon filing a petition for review, the licensee
    shall serve the secretary of revenue with a copy of the petition and summons. Upon
    receipt of a copy of the petition for review by the secretary, the temporary license issued
    pursuant to subsection (b) shall be extended until the decision on the petition for review
    is final.
    "(p) Such review shall be in accordance with this section and the Kansas judicial
    review act. To the extent that this section and any other provision of law conflicts, this
    section shall prevail. The petition for review shall be filed within 14 days after the
    effective date of the order. Venue of the action for review is the county where the person
    was arrested or the accident occurred, or, if the hearing was not conducted by telephone
    conference call, the county where the administrative proceeding was held. The action for
    review shall be by trial de novo to the court and the evidentiary restrictions of subsection
    (l) shall not apply to the trial de novo. The court shall take testimony, examine the facts
    of the case and determine whether the petitioner is entitled to driving privileges or
    whether the petitioner's driving privileges are subject to suspension or suspension and
    restriction under the provisions of this act. Notwithstanding K.S.A. 77-617, and
    amendments thereto, the court: (1) May also consider and determine any constitutional
    issue, including, but not limited to, the lawfulness of the law enforcement encounter, even
    if such issue was not raised before the agency; and (2) shall also consider and determine
    4
    any constitutional issue, including, but not limited to, the lawfulness of the law
    enforcement encounter, if such issue is raised by the petitioner in the petition for review,
    even if such issue was not raised before the agency. If the court finds that the grounds for
    action by the agency have been met, the court shall affirm.
    "(q) Upon review, the licensee shall have the burden to show that the decision of
    the agency should be set aside." (Emphasis added.) K.S.A. 2019 Supp. 8-1020; L. 2016,
    ch. 69, § 2.
    To answer the issue of whether the Legislature intended this language to provide a
    basis for setting aside a suspension based on an unlawful law enforcement encounter, we
    must interpret K.S.A. 2019 Supp. 8-1020(o) through (q). Issues of statutory interpretation
    present questions of law to which we apply an unlimited standard of review. This means
    we give no deference to the district court's or the Court of Appeals' interpretation of the
    statute. State v. Fowler, 
    311 Kan. 136
    , 139, 
    457 P.3d 927
    (2020); State v. Gross, 
    308 Kan. 1
    , 7, 
    417 P.3d 1049
    (2018).
    All Kansas courts use the same starting point when interpreting statutes: The
    Legislature's intent controls. To divine that intent, courts examine the language of the
    provision and apply plain and unambiguous language as written. If the Legislature's
    intent is not clear from the language, a court may look to legislative history, background
    considerations, and canons of construction to help determine legislative intent. 
    Gross, 308 Kan. at 10
    .
    With those rules in mind, we turn to consideration of the parties' arguments, which
    we have grouped into three categories for purposes of our analysis: (1) KDR arguments
    as to why the lawfulness of the law enforcement encounter is not within the scope of a
    court's review of an administrative suspension order; (2) the basis for KDR's assertion
    that K.S.A. 2019 Supp. 8-1020 does not provide a remedy for an unlawful law
    5
    enforcement encounter; and (3) KDR's contention the exclusionary rule does not apply to
    driver's license suspension proceedings and the Court of Appeals' analysis creates bad
    policy. None of KDR's arguments persuade us.
    1.     K.S.A. 2019 Supp. 8-1020
    The parties in this and another appeal, State v. Whigham, 312 Kan. ___, ___ P.3d
    ___ (No. 117,043, this day decided), have framed many of their arguments by discussing
    how, if at all, a 2016 amendment to K.S.A. 2019 Supp. 8-1020(p) affected various
    holdings in Martin v. Kansas Dept. of Revenue, 
    285 Kan. 625
    , 
    176 P.3d 938
    (2008),
    overruled on other grounds by City of Atwood v. Pianalto, 
    301 Kan. 1008
    , 
    350 P.3d 1048
    (2015). This framing has confused the discussion in many ways because Martin's
    holdings address issues that do not perfectly align with the analytical steps in this case.
    For example, Martin discussed whether the judicial remedy of suppressing evidence
    through use of the exclusionary rule is available in driver's license suspension
    proceedings, but the 2016 amendment relates to statutorily authorized remedies. To
    explain the significance of the difference between Martin's focus and the 2016
    amendment to subsection (p), we begin by summarizing the holdings in Martin.
    In Martin, this court held that K.S.A. 8-1020(h)(2) provides an exclusive list of
    issues an administrative hearing officer can consider when a driver appeals from a law
    enforcement officer's notice of suspension. And that list does not include the lawfulness
    of the law enforcement encounter. 
    Martin, 285 Kan. at 631-32
    . Martin also noted that
    "we have repeatedly recognized that administrative agencies are not empowered to decide
    constitutional questions; courts 
    are." 285 Kan. at 632
    . Thus, the question of the
    lawfulness of the law enforcement encounter was not a statutory basis for invalidating the
    suspension order even if the encounter violated constitutional protections.
    6
    The Martin court then turned to the constitutional question raised by the driver:
    Whether the officer lacked a reasonable suspicion to seize the driver and thus lacked a
    lawful basis for stopping the vehicle. The Martin court first noted that a traffic stop is
    generally a seizure implicating the Fourth Amendment to the United States Constitution
    and § 15 of the Kansas Constitution Bill of Rights in a criminal case. And it "is not
    magically converted to a 'nonseizure' when it leads to a civil or administrative rather than
    a criminal proceeding. Fourth Amendment and § 15 implications transcend this boundary
    because those provisions delineate rights that attach to individuals in either
    
    circumstance." 285 Kan. at 636
    . Then, given the facts of the case, the court determined
    the officer lacked constitutional authority to seize the 
    driver. 285 Kan. at 638-39
    .
    The Martin court next considered possible remedies for the unconstitutional
    seizure. It began with the question of whether the statutory remedy of invalidating and
    setting aside the suspension order was available. Noting that courts dealing with unlawful
    suspension orders often use this remedy, the court distinguished those cases, citing two
    
    examples. 285 Kan. at 639
    (discussing Ostmeyer v. Kansas Dept. of Revenue, 16 Kan.
    App. 2d 639, 
    827 P.2d 780
    [1992]; Meigs v. Kansas Dept. of Revenue, 
    16 Kan. App. 2d 537
    , 
    825 P.2d 1175
    [1992]). The point of distinction was that those cases involved "a
    violation of a mandatory provision of the Implied Consent Law by an officer of the State"
    rather than a nonstatutory, constitutional violation. The statutory remedy—invalidation of
    the order—did not cover nonstatutory grounds, the court 
    reasoned. 285 Kan. at 639
    .
    Because no statutory remedy was available, the Martin court turned to the driver's
    alternative argument that the court should invoke the exclusionary rule and suppress the
    illegally obtained evidence. "The exclusionary rule is a judicially created remedy,
    designed to deter the government from engaging in unconstitutional conduct." 
    Martin, 285 Kan. at 640
    ; see Illinois v. Krull, 
    480 U.S. 340
    , 347, 
    107 S. Ct. 1160
    , 
    94 L. Ed. 2d 364
    (1987); State v. Daniel, 
    291 Kan. 490
    , 496, 
    242 P.3d 1186
    (2010). It applies only
    7
    after courts weigh whether the "'its deterrence benefits outweigh its "substantial social
    
    costs."'" 285 Kan. at 640
    (quoting Pennsylvania Bd. of Probation and Parole v. Scott,
    
    524 U.S. 357
    , 363, 
    118 S. Ct. 2014
    , 
    141 L. Ed. 2d 344
    [1998]). After considering those
    factors, a majority of the Martin court held the rule did not apply to driver's license
    suspension proceedings. 
    Martin, 285 Kan. at 646
    .
    Here, KDR asks us to leap over the preliminary analytical steps of Martin and
    jump to consideration of whether the 2016 amendment to subsection (p) changed
    Martin's holding about the availability of the exclusionary rule in driver's license
    suspension hearings. Rather than make that leap, Jarvis asks us to begin at the first
    analytical steps of whether the amendment (1) allows a court to consider the
    constitutionality of the law enforcement encounter and (2) creates a statutory remedy that
    essentially moots the need to apply the exclusionary rule. He contends the 2016
    amendment explicitly expanded the issues a district court could, and in some cases shall,
    consider when reviewing a hearing officer's driver's license suspension order.
    Specifically, a court can now consider "any constitutional issue, including . . . the legality
    of the law enforcement encounter." And he argues that the amendment gives a court the
    authority to invalidate the suspension order if a constitutional violation occurred. KDR
    disagrees.
    Jarvis validly points out that an analysis of the effect of the 2016 amendment on
    Martin's holdings requires walking the same analytical path of examining (1) the grounds
    for judicial review allowed by the statute and (2) the remedies it affords. Only then do we
    turn to KDR's arguments regarding Martin's holding about the inapplicability of the
    exclusionary rule in driver's license suspension hearing and the impact on policy.
    8
    1.1.   K.S.A. 2019 Supp. 8-1020 adds an issue for court review.
    As to the grounds for judicial review, KDR does not dispute that the 2016
    amendments to K.S.A. 2019 Supp. 8-1020(p) allow a court to "consider and determine"
    constitutional issues, including the lawfulness of the law enforcement encounter. But
    KDR argues this language is procedural only and has no practical effect other than the
    "value in having judicial determination on such issues for law enforcement officers in the
    conduct of their duties." In other words, under KDR's interpretation, a district court may
    consider constitutional violations related to the law enforcement encounter, but those
    violations cannot lead to reversal of the driver's license suspension. Instead, courts would
    simply advise law enforcement officers whether they passed or failed a constitutional
    test. We disagree.
    The overall framework of K.S.A. 2019 Supp. 8-1020(o), (p), and (q) requires
    courts to consider and apply the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et
    seq. The first sentence of subsection (o) indirectly incorporates the KJRA by referencing
    K.S.A. 8-259: "The licensee may file a petition for review of the hearing order pursuant
    to K.S.A. 8-259." K.S.A. 2019 Supp. 8-259, in turn, allows for judicial review of an order
    of suspension and provides that the court will conduct the review under the KJRA.
    Subsection (p) echoes subsection (o) by repeating that the KJRA applies to the court's
    review, this time stating so explicitly without routing the reader through K.S.A. 2019
    Supp. 8-259 to get to the KJRA.
    As the name Kansas Judicial Review Act implies, courts use the KJRA when
    reviewing agency actions and, if the court finds an error in the agency action, in
    providing a remedy. Nothing in the KJRA allows courts to issue advisory opinions to the
    executive branch—the only outcome KDR argues can result from the 2016 amendment to
    subsection (p). Instead of making courts advisory bodies, the KJRA empowers courts to
    9
    substantively review administrative actions, determine the validity of the action, and
    provide a remedy if the agency acted erroneously. See K.S.A. 77-621 ("[1] The burden of
    proving the invalidity of agency action is on the party asserting invalidity; and [2] the
    validity of agency action shall be determined in accordance with the standards of judicial
    review provided in this section."); K.S.A. 77-622 (allowing courts reviewing agency
    action to award damages and provide "other appropriate relief," including setting aside an
    administrative order).
    As part of this framework, K.S.A. 2019 Supp. 8-1020(p) defines the issues a court
    can consider when reviewing the administrative suspension order. Before 2016, only one
    sentence in subparagraph (p) addressed the potential issues: "The court shall take
    testimony, examine the facts of the case and determine whether the petitioner is entitled
    to driving privileges or whether the petitioner's driving privileges are subject to
    suspension or suspension and restriction under the provisions of this act." The sentence
    ends with five important words: "under the provisions of this act." Those words
    conveyed that a court's review linked back to subsection (h), which provides an exclusive
    list of issues the administrative hearing officer can consider. See 
    Martin, 285 Kan. at 631-32
    . But after the 2016 amendment, that sentence is followed with the addition of
    another issue courts can—and in some cases shall—consider: Courts are to "consider and
    determine any constitutional issue, including, but not limited to, the lawfulness of the law
    enforcement encounter."
    The words "[n]otwithstanding K.S.A. 77-617" introduce the directive for courts to
    consider constitutional issues. These words counter an argument advanced by KDR. It
    argues that if the Legislature intended to substantively expand a court's scope of review—
    or at least if it wanted to reconcile the new issue with the phrase "under the provisions of
    this act"—it needed to add constitutional issues to the law enforcement officer's
    certification and to the exclusive list of issues a hearing officer can consider. In part, this
    10
    argument builds on a point made in Martin: Courts conducting judicial review of an
    agency action cannot usually consider issues not raised before the agency, including
    constitutional issues. 
    Martin, 285 Kan. at 634
    ("[R]aising any potentially controlling
    constitutional issue at the time of the administrative hearing [is] the wise course for a
    driver who wishes to preserve the issue for judicial review in the district court and
    beyond.").
    But the new words in subsection (p) stating, "[n]otwithstanding K.S.A. 77-617,"
    convey it does not matter that the constitutional issues were not part of the law
    enforcement officer's certification or the hearing officer's review. But for those words,
    K.S.A. 77-617 would apply and a court would not have authority under the act to
    consider the constitutional issue. And the situation would be as discussed in Martin: The
    statute would not have made compliance with the Constitution a statutory requirement for
    a valid suspension 
    order. 285 Kan. at 639
    . Here, however, the Legislature provided an
    exception through the 2016 amendment that allows the petition to include any
    constitutional issue and allows the court to "consider and determine" the issue even if the
    petition does not include the issue. Under the current statute, a failure to comply with the
    Constitution becomes a violation subject to review and remedy under the act. See
    Ostmeyer, 
    16 Kan. App. 2d 639
    ; Meigs, 
    16 Kan. App. 2d 537
    .
    The exception allowing a court to consider the constitutional issue follows the
    directive that the court will "examine the facts of the case and determine whether the
    petitioner is entitled to driving privileges or whether the petitioner's driving privileges are
    subject to suspension or suspension and restriction." K.S.A. 2019 Supp. 8-1020(p). Had
    the Legislature provided only that a court "may" consider constitutional issues, KDR's
    arguments might have been more persuasive. But the Legislature directed that a court
    "shall" consider constitutional issues raised in the driver's petition for review. The two
    11
    sentences, when read together, convey a legislative intent to make the constitutional issue
    a substantive basis for invalidating the administrative order.
    KDR, though, also complains the provision does not explicitly declare that
    constitutionality or legality of the stop is an allowable ground for review of the agency
    action in the usual way courts "review" administrative actions under the KJRA.
    Apparently struggling to reconcile the language of the 2016 amendment with its view that
    the provision is simply procedural, KDR argues that "[o]ne could speculate that there is
    value in having judicial determination on such issues for law enforcement officers in the
    conduct of their duties. But ultimately that is speculation." As KDR goes on to point out,
    courts do not speculate as to intent. And KDR concedes that, if read this way, the
    provision would have no practical effect—in other words, it would be meaningless. But
    KDR argues that "[a]ny objection that this makes the provision 'meaningless' is ultimately
    an objection against the analysis of Martin and its progeny." In this context, KDR cites
    Kingsley v. Kansas Dep't of Revenue, 
    288 Kan. 390
    , 396, 
    204 P.3d 562
    (2009), in which
    we observed that a driver whose license has been suspended "may raise Fourth
    Amendment claims, but such claims have no practical effect."
    Through this argument, KDR suggests the language of subsection (p) is
    ambiguous. Let us assume for the sake of argument that it is and that the reference to the
    KJRA does not clearly and unambiguously allow courts to "review," as that word is used
    in the KJRA, the constitutionality of the law enforcement encounter. When a statute is
    ambiguous, we turn to rules of statutory construction, 
    Gross, 308 Kan. at 10
    , and under
    those rules KDR's point would still fail. We reach this conclusion for at least four
    reasons.
    First, courts construing statutes presume the Legislature does not intend to enact
    meaningless legislation. State v. Keel, 
    302 Kan. 560
    , 574, 
    357 P.3d 251
    (2015); Milano's
    12
    Inc. v. Kansas Dept. of Labor, 
    296 Kan. 497
    , 501, 
    293 P.3d 707
    (2013). Read the way
    KDR proposes, the 2016 amendment would be meaningless.
    Second, the legislative history reveals an intent to authorize courts to consider
    constitutional issues the hearing officer did not review and to make that review
    "meaningful" by allowing the court to invalidate the administrative order if it flows from
    an unconstitutional law enforcement encounter. Upon the House of Representatives'
    request for a study of the proposed legislation that led to the 2016 amendments, a Judicial
    Council committee observed in its report that simply allowing a driver to raise a
    constitutional issue was "virtually meaningless." The committee advocated that "licensees
    should be allowed a meaningful opportunity to challenge the legality of a traffic stop,
    which the Committee determined should be decided by the district court and not the
    administrative hearing officer." Report of Judicial Council Criminal Law Advisory
    Committee on House Bill 2289, 4, 7 (December 4, 2015).
    Third, when the Legislature revises an existing law, courts presume the
    Legislature intended to change the law as it existed prior to the amendment. State v.
    Preston, 
    287 Kan. 181
    , 184, 
    195 P.3d 240
    (2008). And courts presume the Legislature
    acts with full knowledge of existing law. State v. Henning, 
    289 Kan. 136
    , 144-45, 
    209 P.3d 711
    (2009). KDR's construction of the statute would result in no change in the law;
    it would instead retain the effect of Martin's holdings, providing no remedy for a
    constitutional violation. We presume the Legislature intended to make the provision
    meaningful and to change the law.
    Finally, we note that KDR's argument asks us to contort the plain language to
    arrive at an unconstitutional meaning. Kansas courts lack the constitutional authority to
    issue advisory opinions, whether about the constitutionality of an officer-citizen
    encounter or anything else. State ex rel. Morrison v. Sebelius, 
    285 Kan. 875
    , 888-89, 179
    
    13 P.3d 366
    (2008). Yet a court's consideration and determination of the lawfulness of a law
    enforcement encounter would serve only as advice to law enforcement officers under
    KDR's interpretation of the 2016 amendment. Although our "duty to give effect to the
    plain language of an unambiguous statute is not diluted just because that effect renders
    the statute unconstitutional," here, we are not using the doctrine of constitutional
    avoidance to change the meaning of unambiguous statutory language. Hoesli v. Triplett,
    Inc., 
    303 Kan. 358
    , 367, 
    361 P.3d 504
    (2015). We presume the Legislature intends to
    pass constitutional legislation and cite the constitutional issue for the sole purpose of
    pointing out the fallacy of KDR's argument. See State v. Laturner, 
    289 Kan. 727
    , 735,
    
    218 P.3d 23
    (2009) (courts presume statute to be constitutional, with all doubts resolved
    in favor of validity).
    In other words, while we determine that the plain meaning of the provision defeats
    KDR's argument that the Legislature did not intend to create a new ground for review of
    a suspension order, application of rules of construction leads to the same conclusion.
    In summary, contrary to KDR's argument, subsection (p) is more than a procedural
    statute. It defines the issues a court may consider when reviewing an order of suspension
    and, after 2016, it authorizes a determination of the constitutionality of the law
    enforcement encounter even if the driver did not raise constitutionality in the petition for
    review. It also provides the court "shall" consider a constitutional issue raised in the
    petition for review. And when it says the court will "determine" the issue it echoes the
    prior use of "determine" that directs the court to either affirm the suspension order or set
    it aside. See, e.g., K.S.A. 2019 Supp. 8-1020(p) ("The court shall take testimony,
    examine the facts of the case and determine whether the petitioner is entitled to driving
    privileges or whether the petitioner's driving privileges are subject to suspension or
    suspension and restriction under the provisions of this act.").
    14
    We thus hold that, on petition for review asking for the invalidation of a
    suspension order, a court can consider whether the order arises from an unlawful law
    enforcement encounter.
    1.2.   An unlawful stop is a basis for setting aside a suspension order.
    The overall framework of subsections (o), (p), and (q) of K.S.A. 2019
    Supp. 8-1020 also undercuts KDR's argument that setting aside the suspension order is
    not a permissible remedy for an unlawful traffic stop. To support this argument, KDR
    asserts no language explicitly authorizes a court to set aside the suspension if the court
    determines the law enforcement encounter was unlawful.
    Contrary to this view, subsections (o) through (q) contain explicit provisions
    allowing invalidation of the order after determination of an issue that is subject to the
    court's review. Returning to the first sentence of subparagraph (o), through its
    incorporation of K.S.A 2019 Supp. 8-259, it defines the type of relief that can result from
    judicial review of a suspension order: "The court shall take testimony, examine the facts
    of the case and determine whether the petitioner is entitled to driving privileges or
    whether the petitioner's driving privileges are subject to suspension, cancellation or
    revocation." K.S.A. 2019 Supp. 8-259(a). Subsection (p) also provides for a trial de novo
    and repeats the determination the court is to make: "The court shall take testimony,
    examine the facts of the case and determine whether the petitioner is entitled to driving
    privileges or whether the petitioner's driving privileges are subject to suspension or
    suspension and restriction under the provisions of this act." And subsection (q)
    underscores that the appropriate remedy is to set aside KDR's administrative order if
    Jarvis carries his burden because it provides: "Upon review, the licensee shall have the
    burden to show that the decision of the agency should be set aside." (Emphasis added.)
    15
    Through this language, the Legislature provided a practical effect—the suspension order
    stays in place or it is set aside.
    KDR also argues a district court has remedies available other than reversal. It
    points to the various remedies available under the KJRA through K.S.A. 77-622(b),
    which gives a district court authority to grant a wide range of "other appropriate relief."
    One type of appropriate relief is a judgment that sets aside an administrative order.
    Because subsections (p) and (q) allow for the remedy of setting aside the suspension—the
    remedy here imposed by the district court—we need not decide whether other remedies
    are available to a district court. For our analysis today, the fact the Legislature provided
    remedies if an unconstitutional encounter occurs—whether the remedy arises from
    subsection (q) alone or along with K.S.A. 77-622(b)—highlights the intent a court do
    more than advise and makes clear that the district court judge could set aside Jarvis'
    suspension if Jarvis met his burden of proof.
    We thus conclude K.S.A. 2019 Supp. 8-1020 provides a remedy of setting aside
    the suspension order for any reason within a court's review.
    1.3.    KDR's arguments about the exclusionary rule and policy are unpersuasive.
    KDR advances two more arguments.
    In one, KDR embraces the analysis of the Court of Appeals panel in Whigham v.
    Kansas Dept. of Revenue, No. 117,043, 
    2018 WL 1884742
    (Kan. App. 2018)
    (unpublished opinion) (affirming district court's judgment upholding suspension), rev'd
    and remanded 312 Kan. ___, ___P.3d ___1602 (this day decided). There, Patrick
    Whigham argued a district court judge reviewing his driver's license suspension order
    erred by not suppressing evidence of his test refusal. He contended the 2016 amendments
    16
    to subsection (p) of K.S.A. 2019 Supp. 8-1020 legislatively overturned the Martin
    holding that the exclusionary rule cannot be used in a driver's license administrative
    proceeding.
    The Whigham Court of Appeals panel rejected that argument. It noted the lack of
    any "declarative language (allowing the suppression of illegally seized evidence)" in
    subsection (p). The panel reasoned that, had it been "the Legislature's intent to overrule
    the Martin holding or to allow the suppression of illegally seized evidence in
    administrative suspension hearings, the Legislature could have clearly expressed this
    intent." 
    2018 WL 1884742
    , at *3.
    Even if the Whigham panel correctly concluded the 2016 amendment does not
    explicitly address the exclusionary rule, that does not analytically impact our holding
    that a court can invalidate a suspension order because of an unlawful law enforcement
    
    encounter. 285 Kan. at 639-40
    .
    In large part that is because the driver in Martin raised the exclusionary rule as an
    alternative route for relief if the court held the statute did not grant authority to
    invalidate the order based on the unconstitutionality of the underlying law enforcement
    encounter. And the Martin court turned to the alternative judicial and constitutional
    exclusionary rule argument only after first holding that the hearing officer and the court
    lacked statutory authority under K.S.A. 2019 Supp. 8-1020(p) to invalidate a suspension
    order because of an unconstitutional law enforcement 
    encounter. 285 Kan. at 639-40
    .
    Today, we hold that the 2016 amendment to K.S.A. 2019 Supp. 8-1020(p)
    expresses an intent to give courts authority to review, consider, and determine the
    constitutionality of the law enforcement encounter. This grant of authority provides
    access to the statutory remedy identified in K.S.A. 2016 Supp. 8-1020(o) through (q) of
    17
    invalidating the suspension order and setting it aside. In this way, the 2016 amendment
    statutorily provided a remedy—a remedy available during court review—without need
    to resort to the constitutional exclusionary rule.
    Finally, KDR contends allowing courts to consider the lawfulness of the law
    enforcement encounter is contrary to the public policy of getting impaired drivers off
    Kansas roadways. We simply note that "'questions of public policy are for legislative and
    not judicial determination, and where the legislature does so declare, and there is no
    constitutional impediment, the question of the wisdom, justice, or expediency of the
    legislation is for that body and not for the courts.'" State v. Spencer Gifts, 
    304 Kan. 755
    ,
    765, 
    374 P.3d 680
    (2016) (quoting State ex rel. v. Kansas Turnpike Authority, 
    176 Kan. 683
    , 695, 
    273 P.2d 198
    [1954]).
    Our role is to interpret the plain language of K.S.A. 2019 Supp. 8-1020. Having
    done so, we hold that on judicial review under K.S.A. 2019 Supp. 8-1020(p), a court may
    consider any constitutional issue, including the lawfulness of the law enforcement
    encounter. And under K.S.A. 2019 Supp. 8-1020(q) a court may set aside a driver's
    license suspension order if the driver meets the burden of establishing the encounter was
    unlawful.
    2.     No Reasonable Suspicion
    Having determined the district court could review the lawfulness of the law
    enforcement encounter that led to the suspension of Jarvis' license, we turn to KDR's
    argument that the district court erred in concluding Jarvis met the burden of establishing
    the encounter was unlawful. The district court held that the law enforcement officer
    lacked a reasonable suspicion that Jarvis had broken the law and therefore lacked a
    constitutional basis to seize Jarvis through a traffic stop.
    18
    Three fundamental principles frame Jarvis' argument. First, a traffic stop, even one
    leading to administrative rather than criminal proceedings, is a seizure. 
    Martin, 285 Kan. at 636
    . Second, the Fourth Amendment to the United States Constitution and § 15 of the
    Kansas Constitution Bill of Rights protect from unreasonable and unlawful searches and
    
    seizures. 285 Kan. at 635
    . Third, to comply with the Fourth Amendment and § 15, the
    officer conducting the traffic stop must have a reasonable and articulable suspicion that
    the driver has, is, or will be committing a crime. K.S.A. 22-2402(1); Terry v. Ohio, 
    392 U.S. 1
    , 21, 
    88 S. Ct. 1868
    , 
    20 L. Ed. 2d 889
    (1968); 
    Martin, 285 Kan. at 636
    .
    "'"Reasonable suspicion means a particularized and objective basis for suspecting the
    person stopped is involved in criminal activity. Something more than an unparticularized
    suspicion or hunch must be articulated."'" City of Wichita v. Molitor, 
    301 Kan. 251
    , 257,
    
    341 P.3d 1275
    (2015) (quoting State v. Pollman, 
    286 Kan. 881
    , 890, 
    190 P.3d 234
    [2008]). Cumulatively, these principles mean that the law enforcement officer who
    stopped Jarvis needed a particularized and objective basis for suspecting that Jarvis had
    committed or was committing a crime, including a traffic offense, or would commit a
    crime before stopping Jarvis' car. 
    Martin, 285 Kan. at 636
    .
    Whether reasonable suspicion exists is a factual determination. The question is not
    whether the appellate court would have made the same decision, but whether the district
    court's decision is supported by substantial competent evidence. An appellate court does
    not reweigh evidence, make witness credibility determinations, or resolve evidentiary
    conflicts. State v. Chandler, 
    307 Kan. 657
    , 668, 
    414 P.3d 713
    (2018). Even if appellate
    jurists might have made different findings had they been in the position of the district
    court, an appellate court does not second guess a district court's decision if it hinges on
    substantial competent evidence and reasonable inferences drawn from that evidence.
    Casper v. Kansas Dept. of Revenue, 
    309 Kan. 1211
    , 1221, 
    442 P.3d 1038
    (2019); see
    State v. Lowery, 
    308 Kan. 359
    , 367, 
    420 P.3d 456
    (2018) ("On appellate review, our
    19
    deference is not to particular witnesses but to the fact-finder who has resolved an
    evidentiary conflict.").
    Here, the law enforcement officer asserted he held a reasonable suspicion because
    Jarvis had committed a traffic infraction on his seeing Jarvis weaving in his lane, crossing
    the center line, and almost hitting a mailbox. The district court judge did not suggest that
    these could not be legally valid reasons for a stop if supported by a factual basis. But the
    judge found the officer lacked a factually credible basis for finding a reasonable
    suspicion for the traffic stop. A review of the record shows that the judge's factual
    findings are supported by substantial competent evidence.
    The judge made these findings:
     The police dashcam video of the incident begins with Jarvis' vehicle on a road
    with marked lanes. Jarvis legally proceeded through an intersection and onto a
    road without lane markings. The officer testified that the purported traffic
    infractions took place on the portion of the road without markings.
     The officer notified dispatch of his intent to make a traffic stop. During this
    time Jarvis made two turns and properly signaled both times.
     The officer activated the police lights, and Jarvis responded in an appropriate
    manner, did not excessively brake or jerk his vehicle, and stopped his vehicle.
     Although the officer testified that he witnessed Jarvis weaving and almost hit a
    mailbox while on the portion of the road without marked lanes, all of which is
    on the video, the video did not support that testimony. Nor did the officer
    mention anything about a mailbox in his official and purportedly complete
    20
    report of the incident. And during the hearing, the officer could not show the
    court on the video the near-miss of the mailbox.
     Despite being given an opportunity on cross-examination to say that the
    purported traffic infractions happened before the start of the video, the officer
    testified that they happened on the portion of the road without marked lanes, all
    of which is on the video.
    Based on these findings, the district court found that the traffic stop was
    pretextual. The court also found the officer's "observed demeanor and other testimony he
    gave undermined his credibility on the articulated facts to support his claim of any actual
    traffic infraction or of any other reasonable suspicion to justify his stop and encounter
    with the Petitioner." The court then concluded that "[w]ithout the traffic infractions, the
    Officer articulated no credible reasonable suspicion justifying the stop and initial
    encounter. Suspicion, in order to be reasonable, must be based upon objective articulated
    facts. That articulation must not be false. In this case, it is found to be untrue."
    The district court judge's conclusion the officer lacked a reasonable suspicion for
    the arrest is supported by factual findings. And, in turn, the judge's factual findings are
    supported by substantial competent evidence. Because the stop was unlawful and violated
    Jarvis' constitutional rights, the district court did not err in setting aside the suspension of
    Jarvis' driver's license.
    We affirm the Court of Appeals decision affirming the district court. We affirm
    the district court's reversal of the administrative order suspending Jarvis' driver's license.
    21
    MICHAEL E. WARD, Senior Judge, assigned. 1
    1
    REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 119,116 under the
    authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court by the
    retirement of Chief Justice Lawton R. Nuss.
    22