State v. Thompson ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,959
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
BRIAN M. THOMPSON,
Appellant.
MEMORANDUM OPINION
Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed September 10, 2021.
Reversed and remanded with directions.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Natasha Esau, assistant district attorney, Thomas R. Stanton, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before WARNER, P.J., CLINE, J., and WALKER, S.J.
PER CURIAM: While Deputy Mikel Bohringer parked alongside the road at night,
Brian M. Thompson passed him in the adjacent lane. The deputy claimed his emergency
lights were activated when Thompson passed him. The deputy pulled Thompson over for
failure to yield to an emergency vehicle, found drugs in his vehicle, and arrested him.
Thompson moved to suppress the drug evidence, based on his assertion that the
deputy's emergency lights were not activated when Thompson passed. The district court
granted the motion, but another panel of this court reversed that decision and remanded
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the matter to the district court. On remand, Thompson renewed his motion after
discovering the video of the traffic stop just before Thompson's traffic stop contained a
360-degree view which showed the deputy de-activated his emergency lights after the
stop. In denying the motion, the district court mistakenly found it could not consider this
new information based on this court's mandate after the first appeal. The district court
also denied the motion because Thompson did not file a new motion to suppress on
remand, which the district court found was required by K.S.A. 22-3216(3). The district
court misinterpreted the mandate and statutory requirements, so we reverse and remand
for the district court to re-entertain Thompson's motion to suppress, given the 360-degree
camera view in Defendant's Exhibit A.
FACTS
The State charged Thompson with possession of methamphetamine, possession of
marijuana, and possession of drug paraphernalia in January 2018. Deputy Bohringer
found the drugs and paraphernalia after stopping Thompson for failing to yield to an
emergency vehicle pursuant to K.S.A. 2017 Supp. 8-1530. This statute provided in
relevant part:
"(b) The driver of a motor vehicle upon approaching a stationary authorized
emergency vehicle, when the authorized emergency vehicle is making use of visual
signals meeting the requirements of K.S.A. 8-1720, and amendments thereto, or
subsection (d) of K.S.A. 8-1722, and amendments thereto, shall do either of the
following:
(1) If the driver of the motor vehicle is traveling on a highway that consists of at
least two lanes that carry traffic in the same direction of travel as that of the driver's
motor vehicle, the driver shall proceed with due caution and, if possible and with due
regard to the road, weather and traffic conditions, shall change lanes into a lane that is not
adjacent to that of the stationary authorized emergency vehicle; or
(2) if the driver is not traveling on a highway of a type described in paragraph
(1), or if the driver is traveling on a highway of that type but it is not possible to change
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lanes or if to do so would be unsafe, the driver shall proceed with due caution, reduce the
speed of the motor vehicle and maintain a safe speed for the road, weather and traffic
conditions." K.S.A. 2017 Supp. 8-1530.
The visual signals set forth in K.S.A. 2017 Supp. 8-1720 are as follows:
"(a) Except as provided in subsection (b), every authorized emergency vehicle, in
addition to any other equipment required by this act, shall be equipped with signal lamps
mounted as high and as widely spaced laterally as practicable, which shall be capable of
displaying to the front two alternately flashing red lights located at the same level and to
the rear two alternately flashing red lights located at the same level, or in lieu thereof, any
such authorized emergency vehicle shall be equipped with at least one rotating or
oscillating light, which shall be mounted as high as practicable on such vehicle and which
shall display to the front and rear of such vehicle a flashing red light or alternate flashes
of red and white lights or red and blue lights in combination. All lights required or
authorized by this subsection shall have sufficient intensity to be visible at 500 feet in
normal sunlight. Every authorized emergency vehicle may, but need not, be equipped
with head lamps which alternately flash or simultaneously flash.
"(b) A police vehicle when used as an authorized emergency vehicle may, but
need not, be equipped with:
(1) Head lamps which alternately flash or simultaneously flash;
(2) flashing lights specified in subsection (a), but any flashing lights, used on a
police vehicle, other than the flashing lights specified in K.S.A. 8-1722, and amendments
thereto, rotating or oscillating lights or alternately flashing head lamps or simultaneously
flashing head lamps, shall be red in color; or
(3) rotating or oscillating lights, which may display a flashing red light or
alternate flashes of red and blue lights in combination."
Before trial, Thompson moved to suppress the drug evidence, arguing Deputy
Bohringer did not have reasonable suspicion that he violated K.S.A. 2017 Supp. 8-1530.
According to Thompson, he passed Bohringer around 2:18 a.m. in South Hutchinson,
Kansas. The area was dark with no illuminating lights. Thompson alleged that "[a] review
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of the video from Deputy Bohringer's patrol vehicle of the traffic stop prior to him
pulling over Mr. Thompson clearly shows that Deputy Bohringer was back in his patrol
car and turned off his emergency lights prior to Mr. Thompson's vehicle driving past
Deputy Bohringer." Because the emergency lights on the deputy's patrol vehicle were not
activated when Thompson drove past, Thompson argued he had no basis to initiate the
traffic stop.
Deputy Bohringer and Thompson both testified at the hearing on Thompson's
motion. Bohringer testified his patrol vehicle was a Ford Explorer SUV with a light bar
on the top of the vehicle and several lights around the vehicle. The lights in the front and
back of the vehicle flashed red and blue. He testified he had his top light bar activated as
well as two to four lights on his bumper while conducting the traffic stop. After
concluding the traffic stop and returning to his patrol vehicle, he testified that he "turned
[his] sequence of lights to just where the rear lights were activated." He explained this
included red and blue blinking lights in his taillights and in the back portion of the light
bar on top of his patrol vehicle. The front portion of the light bar was not activated.
Deputy Bohringer testified Thompson drove past him so closely that it shook his
patrol vehicle. They were on a four-lane road with two northbound and two southbound
lanes. About one-third or one-half of the deputy's patrol vehicle protruded into the
easternmost lane. Thompson was driving in that lane as he approached Bohringer. As
Thompson passed Bohringer, he only moved his vehicle six inches left of the white
dotted centerline of the road, leaving about 95 percent of his vehicle in the deputy's lane.
Bohringer initiated a traffic stop of Thompson for failing to yield to an emergency
vehicle. After stopping Thompson, Bohringer discovered drugs and drug paraphernalia.
A copy of Deputy Bohringer's dash camera footage, which covered the time
between initiating the first traffic stop and changing the active emergency lights on his
car, was introduced into evidence. The camera captured what happened in front of the
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deputy's vehicle but not behind it. Blue and red flashing lights were visible during
Bohringer's stop of the motorist. Once Bohringer returned to his vehicle and changed the
lights, the red and blue flashes were no longer visible in the front camera view. Bohringer
admitted that no red and blue flashing lights were visible in his dash camera footage but
explained they simply were not visible from the front of the video despite it being "pitch
black outside."
Thompson testified that he saw Deputy Bohringer's patrol car as he approached it
from behind, but there were no red and blue lights activated on the vehicle.
In closing argument, Thompson's counsel argued the video showed the blue and
red lights stopped blinking before Thompson passed Deputy Bohringer. Defense counsel
stated:
"Apparently it's the State's argument that the blue and red lights from behind the vehicle
was still flashing. That just does not prove to be true in the video. It could be Deputy
Bohringer was mistaken but it's pitch black on the side of that road. You could see red
and blue lights flashing if they were in fact flashing."
The district court later granted the motion, after taking it under advisement. The
court found that Deputy Bohringer's rear emergency lights were activated. Even so, it
held: "The officer testified he felt his vehicle shake as defendant passed. This fact alone
does not support a finding of reasonable suspicion of violation of the law. Traffic
conditions, road conditions and speed all enter into a determination of whether a violation
of K.S.A. 8-1530 has occurred." The State filed an interlocutory appeal.
A panel of this court reversed the district court's decision. State v. Thompson, No.
120,323, 2019 WL 3977964 (Kan. App. 2019) (unpublished opinion). On appeal,
Thompson argued "the district court found his testimony more credible—that he saw no
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emergency lights flashing when approaching the officer's stopped patrol vehicle—over
Officer Bohringer's testimony that he thought he left the rear emergency lights on." 2019
WL 3977964, at *3. This court rejected that argument, noting the district court found
Deputy Bohringer's rear emergency lights were activated. 2019 WL 3977964, at *4.
Thus, "[t]he district court did not base its ruling on whether Thompson could see the
emergency lights or whether Officer Bohringer did not have his emergency lights turned
on." 2019 WL 3977964, at *4. Rather, the district court's ruling stemmed from its belief
that Bohringer's testimony failed to articulate reasonable suspicion that Thompson did not
exercise due caution when passing Bohringer as required by K.S.A. 2017 Supp. 8-
1530(b). This court reversed the district court after finding that, under the "totality of the
circumstances, there was sufficient evidence to establish a reasonable suspicion that
Thompson violated K.S.A. 8-1530(b)." 2019 WL 3977964, at *7. The court explained:
"The district court emphasized the fact that when Thompson passed the officer's patrol
vehicle the movement did not prove a violation of K.S.A. 8-1530. That may be true, but
the issue to be determined is not whether a violation of K.S.A. 8-1530(b) occurred but
whether there was a reasonable suspicion that a violation of K.S.A. 8-1530(b) occurred.
The fact that the stopped patrol vehicle moved when Thompson passed it is not the
critical issue. The issue is the proximity of Thompson's vehicle to the patrol vehicle that
would cause the stopped patrol vehicle to move when Thompson passed. Officer
Bohringer testified that a semitruck that was some distance from another vehicle could
make that vehicle move but that a passenger vehicle would not. A passenger vehicle
would have to be close to cause another passenger vehicle to move and in particular to
move it as much as Officer Bohringer described in this case. Clearly an indication that
Thompson was in the same lane as the stopped patrol vehicle. The movement of the
vehicle was not the only observation Officer Bohringer relied in deciding to stop
Thompson. Officer Bohringer testified that he observed that 95% of Thompson's vehicle
was in the same lane as the patrol vehicle.
"The district court also stated that there was no evidence as to the road, weather,
and traffic conditions or the speed of Thompson's vehicle which would 'all enter into
whether a violation of K.S.A. 8-1530 has occurred.' That may be true in determining
whether a violation of K.S.A. 8-1530(b) occurred and those factors might ultimately
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determine guilt or innocence. But those factors are not necessary as a prerequisite to
determining whether reasonable suspicion existed. Additionally, Officer Bohringer
tangentially gave evidence on those factors. He testified that Thompson moved six inches
into the left lane. This is evidence that Thompson was not blocked by traffic from moving
into the left lane." 2019 WL 3977964, at *7-8.
This court concluded: "We reverse the district court's order of suppression and remand
the case for further proceedings." 2019 WL 3977964, at *8. This court issued its mandate
in September 2019.
The case proceeded to a bench trial in February 2020. At the beginning of the trial,
defense counsel stated she believed "that the evidence that will be shown during the
bench trial . . . would warrant Mr. Thompson renewing his motion to suppress."
Deputy Bohringer was the only trial witness. His testimony on direct examination
focused on the events that occurred after he stopped Thompson. During cross-
examination, the defense introduced the video of the traffic stop Bohringer made before
stopping Thompson as Defendant's Exhibit A. The district court admitted the exhibit over
the State's objection.
During closing arguments, Thompson renewed his motion to suppress. Defense
counsel noted that Defendant's Exhibit A provided an option to view the video in a 360-
degree mode, meaning the viewer can see all angles from the recording device in the
patrol vehicle. Playing the video in the 360-degree mode showed Deputy Bohringer
turned off his emergency lights after returning to his vehicle after the first traffic stop.
Defense counsel asked the district court to grant the motion to suppress because "[i]n
order for Mr. Thompson to have a duty to yield to that emergency vehicle the lights must
have been activated and clearly they were not."
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The State responded by arguing that "[i]f the Court is going to take the opportunity
to view this video, this is essentially the Defense presenting new evidence." The State
asked for the opportunity to call Deputy Bohringer for rebuttal to ask for his perspective
on the video because the State's attorney claimed he had never seen the video. Defense
counsel responded: "Judge, this is the view—this is what I got from the State. The State
didn't look any further. The State has rested. There's no rebuttal. The piece of evidence
was offered and it was admitted." The district court found that defense counsel was "past
the point of rebuttal" but asked counsel if she had any other statements. Defense counsel
added that the district court's initial ruling on the motion to suppress, finding that the
deputy's rear emergency lights were activated, depended on an error of fact which is why
the defense renewed its motion to suppress. The district court took the issue under
advisement.
Soon after, the district court denied the renewed motion, ruling in relevant part:
"The Court of Appeals of the State of Kansas has directed this court to deny
defendant's motion to suppress. Defendant's right to renew his motion to suppress is
limited by K.S.A. 22-3216(3). The defendant has failed to show that he did not have an
opportunity to bring such motion or that he was not aware of the ground for the motion."
The district court found Thompson guilty as charged. The district court sentenced
Thompson to 18 months' probation with underlying concurrent sentences of 11 months'
imprisonment for possession of methamphetamine, 6 months in jail for possession of
marijuana, and 6 months in jail for possession of drug paraphernalia.
ANALYSIS
On appeal, Thompson challenges the limitations the district court imposed on its
ability to consider Thompson's motion to suppress, given the new evidence presented in
Defendant's Exhibit A. Thompson argues the district court wrongly viewed the appellate
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court mandate to restrict its ability to consider this evidence and improperly interpreted
K.S.A. 22-3216 to require another written pretrial motion to suppress. We agree with
Thompson.
Preservation of Thompson's objection
Before we get to the merits, the State argues Thompson failed to preserve his
motion to suppress because he did not contemporaneously object to the admission of the
evidence he sought to suppress. Generally, when the district court has denied a pretrial
motion to suppress, the moving party must still object to the introduction of that evidence
when offered at trial to preserve the issue for appeal. State v. Kelly, 295 Kan. 587, 590,
285 P.3d 1026 (2012); see K.S.A. 60-404 ("A verdict or finding shall not be set aside, nor
shall the judgment or decision based thereon be reversed, by reason of the erroneous
admission of evidence unless there appears of record objection to the evidence timely
interposed and so stated as to make clear the specific ground of objection."). The rule
gives the district court an opportunity to conduct a trial without using tainted evidence.
295 Kan. at 589. "[A] pretrial objection by itself is not timely because the evidence may
be different from that submitted at the pretrial hearing or the evidence may be viewed
differently by the judge in the context of all of the evidence and argument heard at trial."
295 Kan. at 590.
Although the Kansas Supreme Court has stated that evidentiary claims "must be
preserved by way of a contemporaneous objection for those claims to be reviewed on
appeal," it has also agreed to consider such claims without a contemporaneous objection
at times. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009). Relevant here is State v.
Gordon, 219 Kan. 643, 549 P.2d 886 (1976), superseded by statute on other grounds as
stated in State v. Murry, 271 Kan. 223, 21 P.3d 528 (2001), where the court held that an
objection made in a posttrial brief after a bench trial was timely because "under the
circumstances of [the] case the spirit if not the letter of the contemporaneous objection
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rule was satisfied." 219 Kan. at 652. The court acknowledged that "the appellant's
objection was not 'timely' in the strict sense, but there [was] no doubt the district court
was apprised of the issue before it rendered its decision." 219 Kan. at 652. Notable to the
court was the fact that the trial was a bench trial and "no jurors had been swayed by the
improper evidence." 219 Kan. at 652. When the court conducts a bench trial rather than a
jury trial, Kansas courts "indulge in the presumption that the district court, in reaching its
final decision, considered only evidence which was properly admissible unless the
contrary is shown by the record." 219 Kan. at 652. The Kansas Supreme Court reaffirmed
these principles in Kelly. See 295 Kan. at 593.
Here, defense counsel did not object when the State introduced evidence at trial
which was the subject of Thompson's pretrial motion to suppress. It was not until closing
argument, after the State rested its case, that Thompson's attorney renewed the motion to
suppress. Part of the problem is that the evidence supporting the motion—Deputy
Bohringer's dash camera footage of the traffic stop before Thompson's traffic stop
(Defendant's Exhibit A)—was not in evidence until Bohringer's cross-examination. Here,
like in Gordon, the district court was aware of Thompson's objection before it ruled on
his motion and it mentioned that objection in its final decision. At trial, the district court
said that it had a "renewed motion to suppress and the State's case to consider." The
objection here was raised earlier than the objection in Gordon, which makes Thompson's
argument that the issue is preserved even more persuasive. We find Thompson has
preserved the issue for our review.
District court's interpretation of the appellate mandate
When ruling on Thompson's renewed motion to suppress, the district court said
this court directed it to deny the motion. Thompson argues this characterization was error
since the Kansas Supreme Court has "recognized the district court's ability to reevaluate a
holding from a higher court when additional evidence surfaces during the proceeding."
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"Interpretation of an appellate court mandate and the determination of whether the district
court complied with it on remand are both questions of law subject to de novo review."
State v. Morningstar, 299 Kan. 1236, 1240-41, 329 P.3d 1093 (2014).
The Kansas Supreme Court has held the mandate rule, codified at K.S.A. 20-108,
does not "explicitly or even implicitly deprive[] a district court of its jurisdiction to
address an entirely new issue that surfaces in a case as a result of events that occur after a
mandate issues." State v. Soto, 310 Kan. 242, 252, 445 P.3d 1161 (2019). Nor does it
"eliminate the district court's ability to address any matter left undecided by the issuance
of the appellate mandate." 310 Kan. at 253. The Soto court then explained the rule and
cited several relevant cases.
"The rule applies to prevent district court action on remand only when an issue has
already been finally settled by earlier proceedings in a case, including issuance of the
appellate mandate. If a final settlement of an issue has occurred, the district judge is not
free to expand upon or revise that history. The mandate rule does not, however, prevent a
district judge from doing whatever else is necessary to dispose of a case. This means the
district judge must not only do as the mandate directs; he or she must also do what is
needed to settle other outstanding issues that must be decided to complete district court
work on the case. Such issues may have been allocated for decision in the district court in
the first place and then untouched by appellate proceedings. See State v. Morton, 283
Kan. 464, 471-74, 153 P.3d 532 (2007) (district court presiding over retrial pursuant to
appellate mandate permitted to reconsider motion in limine ruling never contested in
appeal). They may include issues arising from late-breaking facts. See Duffitt & Ramsey
v. Crozier, Judge, 30 Kan. 150, 152-53, 1 P. 69 (1883) (differentiating issues within
mandate, those without; 'matters arising subsequent to' appellate decision may be
considered on remand; discretion to do something for the parties not covered by the
mandate can be exercised 'only upon the presentation of new facts'); see also Jones v.
Smith, 5 Kan. App. 2d 352, 354, 616 P.2d 300 (1980) (K.S.A. 60-2106[c] permits district
judge to take up motion for relief from judgment filed after a mandate issued in earlier
appeal) (quoting Standard Oil Co. of Cal. v. United States, 429 U.S. 17, 18, 97 S. Ct. 31,
11
50 L. Ed. 2d 21 [1976]) (appellate mandate relates to record, issues then before court;
mandate does not purport to deal with possible later events)." 310 Kan. at 256.
The district court's decision on this issue was not supported by the language of the
mandate. This court reversed the district court's order of suppression and remanded the
case for further proceedings. Thompson, 2019 WL 3977964, at *8. This court's ruling was
based on the evidence presented at the suppression hearing and did not address the
evidence later introduced at trial, including the 360-degree camera view in Defendant's
Exhibit A. The mandate rule did not prevent the district court from considering the issue
anew given the new information garnered from the evidence.
The State argues that the doctrine of res judicata precludes Thompson from
renewing his motion to suppress. "Res judicata (claim preclusion) prevents relitigation of
previously litigated claims and consist of the following four elements: (1) same claim;
(2) same parties; (3) claims were or could have been raised; and (4) a final judgment on
the merits." Winston v. Kansas Dept. of SRS, 274 Kan. 396, 413, 49 P.3d 1274 (2002).
The State's argument is unavailing because "[t]he doctrine of res judicata does not apply
to a second appeal within the same case—that is, to an appeal from proceedings
occurring on remand from a prior appeal." State v. Kleypas, 305 Kan. 224, Syl. ¶ 1, 382
P.3d 373 (2016).
The State also argues the law of the case doctrine barred Thompson from
renewing his motion to suppress at trial. Unlike res judicata, the law of the case doctrine
does apply to a second appeal in the same case. Kleypas, 305 Kan. at 244. This doctrine
provides that "[w]hen a second appeal is brought to this court in the same case, the first
decision is the settled law of the case on all questions involved in the first appeal, and
reconsideration will not normally be given to such questions." State v. Collier, 263 Kan.
629, Syl. ¶ 3, 952 P.2d 1326 (1998). Even so, the doctrine "is not an inexorable
command, or a constitutional requirement, but is, rather, a discretionary policy which
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expresses the practice of the courts generally to refuse to reopen a matter already decided,
without limiting their power to do so." 263 Kan. 629, Syl. ¶ 2. Courts generally recognize
three exceptions that allow changing the law of the case, which "apply when (1) a
subsequent trial produces substantially different evidence, (2) a controlling authority has
made a contrary decision regarding the law applicable to the issues, or (3) the prior
decision was clearly erroneous and would work a manifest injustice." Kleypas, 305 Kan.
at 245. A party need not show exceptional circumstances to meet a law of the case
exception. 305 Kan. at 250.
Here, the law of the case doctrine does not preclude Thompson's argument since
this court's decision on appeal turned on the facts known to the district court at the time
of its ruling. When Thompson renewed the motion to suppress, he did so based on the
development of new information about the evidence. This court's decision on appeal did
not address that new information. Nor did Thompson challenge the law applicable to his
case. Rather, he asked the district court to reconsider its factual findings, based on this
new information.
The State compares this case to State v. Parry, 51 Kan. App. 2d 928, 358 P.3d 101(2015), aff'd 305 Kan. 1189, 390 P.3d 879 (2017). There, the district court granted
Dominic Parry's motion to suppress evidence and this court affirmed following the State's
interlocutory appeal. 51 Kan. App. 2d at 928-29. The State dismissed and refiled the
charges against Parry. Parry filed another motion to suppress, but this time the State made
different arguments in response. The district court granted Parry's motion, and the State
appealed. 51 Kan. App. 2d at 930. The State admitted the goal of its dismissal maneuver
was to get a second chance to argue the merits of the motion to suppress, using arguments
that it failed to raise during the first hearing. This court refused to allow the State a
"second bite at the apple" to again argue the issue. 51 Kan. App. 2d at 929.
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Parry is distinguishable because it did not involve new evidence that could have
caused the district court to reconsider the factual findings underpinning its decision. And
Thompson made the same arguments in his pretrial motion to suppress as he did at trial:
that Deputy Bohringer turned off his emergency lights before Thompson passed him.
This differs from the State's approach in Parry, where it made new arguments in response
to the second motion to dismiss.
The law of the case doctrine is not intended to prevent courts from correcting
previous errors. See Kleypas, 305 Kan. at 250 ("[L]ongstanding Kansas precedent
indicates a court should correct errors while the parties are still before it if an exception to
the law of the case doctrine applies."). The State's position that a motion to suppress
should not be reconsidered upon presentation of additional evidence conflicts with the
intent of the doctrine.
District court's interpretation of K.S.A. 22-3216
When denying Thompson's renewed motion to suppress the district court also
held: "Defendant's right to renew his motion to suppress is limited by K.S.A. 22-3216(3).
The defendant has failed to show that he did not have an opportunity to bring such
motion or that he was not aware of the ground for the motion." K.S.A. 22-3216 provides
in part:
"(1) Prior to the trial a defendant aggrieved by an unlawful search and seizure
may move for the return of property and to suppress as evidence anything so obtained.
"(2) The motion shall be in writing and state facts showing wherein the search
and seizure were unlawful. The judge shall receive evidence on any issue of fact
necessary to determine the motion and the burden of proving that the search and seizure
were lawful shall be on the prosecution. If the motion is granted then at the final
conclusion of the case, the court shall order the suppressed evidence restored to the party
entitled thereto, unless it is otherwise subject to lawful detention.
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"(3) The motion shall be made before trial, in the court having jurisdiction to try
the case, unless opportunity therefor did not exist or the defendant was not aware of the
ground for the motion, but the court in its discretion may entertain the motion at the
trial."
The district court's findings suggest that it believed Thompson did not file a proper
motion to suppress the evidence before trial. Thompson argues that he "did file a pretrial
motion to suppress in this case, specifically referring to [the] video of the initial stop, so
K.S.A. 22-3216(3) was not operative in this case." Alternatively, he argues that "the
district court had discretion to consider the defense argument even if no pretrial motion
was filed."
Whether Thompson's pretrial motion to suppress satisfied the written motion
requirement of K.S.A. 22-3216 involves statutory interpretation. Statutory interpretation
presents a question of law over which appellate courts have unlimited review. State v.
Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019).
Thompson filed a pretrial motion to suppress which stated "facts showing wherein
the search and seizure were unlawful" as required by K.S.A. 22-3216(2). He argued in
this motion that "[a] review of the video from Deputy Bohringer's patrol vehicle of the
traffic stop prior to him pulling over Mr. Thompson clearly shows that Deputy Bohringer
was back in his patrol car and turned off his emergency lights prior to Mr. Thompson's
vehicle driving past Deputy Bohringer." The district court received evidence at the
suppression hearing and made the factual finding that the deputy's lights were activated.
The issue here is whether Thompson needed to file a second motion to suppress when he
discovered the other information available from Bohringer's dash camera footage—
notably the 360-degree camera view.
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Thompson maintained the same grounds for his motion to suppress before and
during trial: Deputy Bohringer's dash camera showed that his emergency lights were off.
The same video was shown at both the motion to suppress hearing and trial. There was
not new evidence presented at trial insomuch as there was a new method of viewing the
evidence. Both the district court and the State were fully aware of the legal and factual
basis Thompson argued in support of suppression. Under these unique circumstances, the
district court should have found Thompson's pretrial motion to suppress sufficient under
K.S.A. 22-3216.
The plain language of K.S.A. 22-3216 supports this conclusion. The statute does
not require the moving party to list every piece of evidence supporting the factual
assertions in the motion. Instead, it distinguishes between factual assertions and evidence
by stating that "[t]he judge shall receive evidence on any issue of fact necessary to
determine the motion." K.S.A. 22-3216(2). Further, the Kansas Supreme Court has
stated:
"Normally, and [K.S.A. 22-3216(3)] so contemplates, the motion, when made before
trial, will be heard once and disposed of; however, if at trial new or additional evidence is
produced bearing on the issue or substantially affecting the credibility of the evidence
adduced at the pretrial hearing of the motion, we believe the statute authorizes
reentertainment of the motion in the court's discretion." State v. Jackson, 213 Kan. 219,
226, 515 P.2d 1108 (1973).
See also State v. Riedel, 242 Kan. 834, 837, 752 P.2d 115 (1988) (clarifying that "'new or
additional evidence'" is not required "on every occasion that a trial judge reconsiders an
earlier order entered at a pretrial motion hearing"). If new or other evidence is produced
at trial, then it would not have been included in a pretrial motion to suppress. This
specificity is not required to satisfy the pretrial motion to suppress requirement of K.S.A.
22-3216(3). Here, the 360-degree camera view substantially affects the credibility of the
evidence the district court relied on in ruling that Deputy Bohringer's emergency lights
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were activated when Thompson passed him. This evidence fits squarely within the
reasoning in Jackson, and the district court should have exercised its discretion in
determining whether to consider the renewed motion.
The district court erred when it held that K.S.A. 22-3216(3) precluded its
consideration of Thompson's renewed motion to suppress. Because Thompson filed a
pretrial motion to suppress, K.S.A. 22-3216(3) authorized the district court to entertain
the renewed motion. To interpret the statute "otherwise would be to proscribe correction
of . . . error by the trial court at trial or even on motion for a new trial." Jackson, 213 Kan.
at 226.
The district court abused its discretion in failing to consider the renewed motion
because of its legally erroneous belief that Thompson did not file a pretrial motion to
suppress:
"It is an abuse of discretion for a district court to adopt a pretrial ruling that
disposes of a discretionary determination automatically, without analyzing the factors
that would enter into the discretionary decision; i.e., it is an abuse of discretion to refuse
to exercise discretion or fail to appreciate the existence of the discretion to be exercised
in the first instance." State v. Stewart, 306 Kan. 237, Syl. ¶ 5, 393 P.3d 1031 (2017).
This concept also reflects the preservation rules discussed above.
"If a contemporaneous trial objection to a pretrial ruling is deemed necessary to avoid the
reversible admission of tainted evidence, [then] a corollary to the rule would logically
require the trial judge's informed decision on the merits of the objection. Otherwise,
without an actual reconsideration of the pretrial ruling, the contemporaneous objection
rule would not accomplish our stated purpose." 306 Kan. at 264.
17
District court's errors were not harmless
Since we find the district court's holdings on both the mandate rule and K.S.A. 22-
3216(3) were in error, we must determine whether those errors were harmless. See
K.S.A. 2020 Supp. 60-261 (stating that unless justice requires otherwise, no error in
admitting evidence is ground for disturbing judgment or order unless error affects party's
substantial rights). When, as here, the issue arises under the Fourth Amendment to the
United States Constitution, this court "must apply the constitutional harmless error
standard defined in Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d
705 (1967)." Kleypas, 305 Kan. at 257.
Under that standard, an error is harmless only when the party benefiting from the
error persuades the court "beyond a reasonable doubt that the error complained of will
not or did not affect the outcome of the trial in light of the entire record, i.e., proves there
is no reasonable possibility that the error affected the verdict." State v. Ward, 292 Kan.
541, 569, 256 P.3d 801 (2011). The State cannot meet this burden.
Two cases, State v. Wickliffe, 16 Kan. App. 2d 424, 826 P.2d 522 (1992), and
State v. Bennett, 20 Kan. App. 2d 767, 892 P.2d 522 (1995), establish this point. In
Wickliffe, the defendant moved to suppress evidence at trial. He had not filed a written
motion before trial but asserted he did not know the grounds for the motion before trial.
The district court denied the motion to suppress on the grounds that it was required to be
filed in writing before trial. 16 Kan. App. 2d at 428. This court held the district court
abused its discretion by "summarily dismiss[ing] the motion without exercising its
discretion and evaluating whether the defendant came within the exception listed in the
statute." 16 Kan. App. 2d at 428. The error was harmless, however, because the evidence
subject to the motion was cumulative given the other evidence supporting the defendant's
convictions. 16 Kan. App. 2d at 430-31.
18
In Bennett, the district court denied the defendant's motion to suppress because the
defendant had not filed a written motion before trial. This court held that if the district
court erred, it was not harmless error because if the evidence subject to the motion had
been suppressed, then "the State would not have any evidence to support the conviction."
20 Kan. App. 2d at 770. That said, the court then held that the district court did not err
because the defendant failed to claim that his failure to file a written pretrial motion to
suppress fell under an exception to K.S.A. 22-3216(3).
This case is much like Bennett because the only evidence the State had to support
Thompson's convictions arose from the traffic stop. The district court believed it could
not entertain the renewed motion to suppress because it had not been made in writing
before trial. This was error because Thompson made an adequate pretrial motion, and
"[t]he decision to rehear an earlier motion is a matter which lies within the sound
discretion of the trial court." State v. Holmes, 278 Kan. 603, 620, 102 P.3d 406 (2004).
The district court's failure to consider the renewed motion constituted an abuse of
discretion, and the error is not harmless. The 360-degree camera view associated with the
video "substantially affect[ed] the credibility of evidence adduced at pretrial hearing,"
and that evidence bore on a material fact. 278 Kan. 603, Syl. ¶ 7. This is precisely the
kind of situation in which "K.S.A. 22-3216 authorizes reentertainment of the motion in
the court's discretion." 278 Kan. 603, Syl. ¶ 7. Thus, we cannot conclude beyond a
reasonable doubt that the error did not affect the outcome of the trial.
We reverse and remand for the district court to consider Thompson's renewed
motion to suppress, in light of the 360-degree camera view in Defendant's Exhibit A.
Reversed and remanded with directions.
19