1 NOT DESIGNATED FOR PUBLICATION
No. 125, 224

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appell ee ,

v.

G ARET L EON D INKEL , Appell ant

.

MEMORANDUM OPINION

Appeal from Ellis District Court; G LENN R. B RAUN , judge. Submitted without oral argument. Opini on filed November 22 , 2023. Affir med.

Michael S. Holland II , of Holland and Holland, of Russell, for appellant.

Natalie Chalmers , assistant solicitor general , and Kris W. Kobach , attorney general, for appellee.

Before A TCHESON , P .J., M ALONE and P ICKERING , JJ.

P ICKERING , J. : After t he State charged Garet Leon Dinkel with driving under the
influence ( DUI ) , Dinkel filed a pretrial motion to suppress his blood alcohol test results and secure a hearing under Franks v. Delaware , 438 U.S. 154, 98 S. Ct. 2674, 57 L. E d. 2d 667 (1978). The district court denied Dinkel ' s motion to suppress and his motion for a Franks hearing

. Following a bench trial on stipulated facts, Dinkel was convicted of a DUI

. Dinkel now appeals , claiming the district court erred in denying his pretrial motion to suppress and request for a Franks hearing. Finding no error by the district court, we
affirm.2 F ACT UAL AND P ROCEDURAL B ACKGROUND

O n August 18, 20 19 , around 12 :22 a.m., Ellis County Sheriff's Deputy Andrew Powers observed a white GMC Sierra in a ditch during " a severe thunderstorm with
torrential rain fall. " As he approached the truck , he saw it try to " shift in and out of reverse multiple times ," but the truck remained stuck . Powers approached the truck ' s driver, Dinkel, who told the deputy that h is truck was stuck and he was attempting to get out of the ditch. Powers detected the odor of an alcoholic beverage coming from Dinkel and observed that Dinkel had bloodshot and watery eyes. At the scene, Powers arrested
Dinkel for DUI and took him to the police station

.

Once at the police station, Dinkel failed to answer whether he would consent to a breath alcohol test. Instead, Dinkel repeatedly asked for the probable cause that justified
his arrest. Determining that Dinkel was refusing to consent to the breath alcohol test , the deputy applied for a blood draw search warrant

.

In preparing the aff idavit and application for the search warrant , the deputy
indicated that he had o bserved Dinkel operating or attempting to operate a vehicle and that Dinkel admitted to operating or attempting to operate a vehicle. The deputy also observed that Dinkel had an odor of alcohol; had bloodshot, watery, or glazed eyes; had slurred speech; was swaying or unsteady or had balance problems; repeated questions or comments; and had difficulty following the deputy ' s directions. Dinkel also appeared to
have constricted pupils. The deputy left the section regarding field sobriety tests blank.
The box to suggest Dinkel refused to perform the tests was also not checked. The box es indicating Dinkel refused to submit to a preliminary breath test ( PBT ) and refused a n evidentiary breath test were checked.3 Once the s earch warrant was issued , law enforcement had a blood draw performed
on Dinkel. The b lood test results indicated that Dinkel ' s blo od alcohol content (BAC) was 0.26

— over three times the legal limit

.

The State charged Dinkel wit h DUI, third of fense. In pretrial motion s , Dinkel filed
a motion and an amended motion to suppress the blood alcohol testing results and a motion for a Franks hearing. The affidavit in support of the Franks hearing alleged that the arresting officer " failed to include the information that the defendant did not refuse field sobriety testing, but testing was unable to be completed due to the thunderstorm and muddy conditions. " It also alleged that Dinkel did not refuse to submit to a PBT

.

In May 2021, the district court held a hearing on the filed motions. The parties agreed that the court should first determine if the warrant, without the alleged problems, contained probable cause. The district court noted that the warrant itself made it clear that no field sobriety tests were given. The district court found that there was no omission or
i ntentional misrepresentation due to the lack of an explanation on why no field sobriety tests were performed. The district court then found sufficient facts existed to issue a
warrant even if Dinkel did not refuse the PBT

. It denied the motion for a full Franks hearing and denied Dinkel ' s amended motion to suppress

.

The parties then entered in to a stipulation of facts and a waiver of jury trial. The district court found Dinkel guilty of DUI , thir d off ense

. T he court sentenced Dinkel to an underlying jail term of 12 months but granted Dinkel probation for 12 months after serving 48 hours in jail and 90 days on house arrest

.4 A NALYSIS

On appeal, Dinkel argues that based upon his allegation s that the affidavit omitted relevant evidence and included false evidence, the district court was required, at a minimum, to conduct a Franks hearing before ruling on his motion to suppress

.

In this type of case, the basis for our decision arises from the F ourth Amendment
to the United States Constitution , which guarantees " [ t ] he right of the people to be secure in their person s

. . . against unreasonable searches and seizures. " U.S. Const. amend. IV

. To secure that right, the Fourth Amendment requires warrants based on probable cause be presented under oath to a judicial officer. Any warrant must describe, with particularity, the places to be searched and the objects to be seized. See Illinois v. McArthur , 531 U.S. 326, 330, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001) . Probable cause to search exists where the known facts warrant a person of reasonable prudence in the belief that evidence of a
crime will be found. Ornelas v. United States , 517 U.S. 690, 696, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996)

.

Because a search warrant requires an evidentiary foundation, law enforcement officers may not rely on conclusory assertions or opinions unmoored from specific factual representations. See Illinois v. Gates , 462 U.S. 213, 239, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) ( " An affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause, and . . . wholly conclusory statement[s]

. . . [ fail ] to meet this requirement. " ). Judges should not consider allegations lackin g factual support in measuring probable cause to issue a search warrant. State v. Hicks , 282 Kan. 599, 615

- 16, 147 P.3d 1076 (2006)

.

In most cases, the facts within the affidavit may not be disputed by the party against whom the warrant is directed. See Franks , 438 U.S. at 171. In Franks , the U nited States Supreme Court addressed a defendant ' s right to challenge the veracity of a search5 warrant and found such challenge could be made. The Frank s C ourt noted that appellate

courts generally presume the validity of an affidavit in support of a search warrant

. Consequently, t o prevail o n a challenge to a warrant under the principles articulated in
Franks , a criminal defendant must prove law enforcement authorities employed deliberate falsehoods or a reckless disregard for the truth to obtain the warrant

. 438 U.S.

at 1 71 ; State v. Francis , 282 Kan. 120, 128

- 29 , 145 P.3d 48 (2006)

.

Our S upreme C ourt considered the parameters for holding a Franks hearing in
State v. Adam s, 294 Kan. 171 , Syl. ¶ ¶ 1

- 4, 273 P.3d 718 (2012)

. In Adams , the court explained that t he trial court does not automatically hold a Franks hearing. Rather, a defendant who challenges the reliability of a search warrant ' s accompanying affidavit may be entitled to an evidentiary hearing if he or she submits a sworn affidavit that " (1)
contains statements that are material to the issuance of the search warrant because the statements were necessary to find probable cause and (2) the material statements (a) were a deliberate falsehood, (b) were made in r eckless disregard for the truth, or (c) deliberately omitted a material fact. " Adams , 294 Kan. a t 179. In othe r words, to mandate a hearing under Franks , a defendant mu st show that the affidavit submitted in support of
search warrant was unre liable.

Under th is process, s hould the defendant satisf y the prima facie showing of the
affidavit ' s lack of veracity, the trial court must remove the questionable portion of the affidavit and determine whether the remaining affidavit contains sufficient evidence of probable cause. If , however, the court find s probable cause despite the removal of the

statements , the trial court does not need to hold a n evidentiary hearing under Franks

. I f
the trial court does not find probable cause without the excised portion of the affidavit,
the trial court should hold a Franks evidentiary hearing

. Adams , 294 Kan. 171, Syl. ¶¶ 2

- 3. As noted by the Adams court, at the evidentiary hearing , the defendant would be allowed to prove that the affidavit included deliberately omitted material facts and that6 the affiant " deliberately made a false statement, or made a statement with reckless disregard for the truth. " 294 Kan. at 179.

The standard of review for issues challenging the denial of a Franks hearing " is the same as any case in which we review a trial court ' s determination regarding whether undisputed facts establish probable cause for a search warrant. " Adams , 294 Kan. at 180

. When analyzing a district court ' s ruling on whether an affidavit in support of an application for search warrant is sufficient, our task "' is to ensure that the issuing magistrate had a substantial basis for concluding probable cause existed. . . . [T]he standard translates to whether the affidavit provided a substantial basis for the magistrate ' s determination that there is a fair probability that evidence will be found in the place to be searched. '" 294 Kan. a t 180

.

Here, in the affidavit attached to his motion for Franks hearing, Dinkel alleged
that field sobriety testing was not offered because of the muddy conditions and the deputy
should have included that fact in his affidavit for search warrant. Dinkel also alleged that the deputy recklessly indicated that Dinkel refused a PBT. On appeal, Dinkel claims that making these two allegations w as enough to require the district court to conduct an evidentiary Franks hearing to determine whether a Franks violation occurre d.

Yet a s the State points out, Adams unquestionably refutes his argument. A hearing is not required if " the remaining portions of the affidavit provide sufficient evidence of probable cause. " 294 Kan. at 179. As noted earlier : "' Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the
crime. '" State v. Regelman , 309 Kan. 52, 61, 430 P.3d 946 (2018)

. Because the warrant contained sufficient evidence of probable cause without the extracted statements, no
Franks hearing was required.7 Additionally, the evidence available to the deputy to support Dinkel ' s intoxication
was like that found to be sufficient in State v. Fullmer , No. 123,540, 2022 WL 4112688 (Kan. App. 2022) (unpublished opinion) . In that case , Fullmer claimed an officer lacked probable cause for a search warrant because he included results of the h orizontal g aze

n ystagmus (H GN) test in the affidavit. The panel determined: " The validity of a warrant is not determined by nit

- picking discrete portions of the application. Rather, the totality of the circumstances controls. That is, whether the issuing judge had a ' substantial basis ' for determining probable cause existed. " 2022 WL 4112688, at *3 . Even when removing the contested HGN results from consideration, the Fullmer panel found probable cause to believe Fullmer was driving under the influence. Specifically, the panel pointed to the following facts:

" Fullmer exhibited impaired driving, exuded a strong odor of alcohol, presented with bloodshot, watery eyes, labored under delayed motor skills, confused his vehicle registration for his insurance, admitted to drinking that evening, failed several [standard ized field sobriety tests], and provided a preliminary breath sample that showed
his BAC was .198. " 2022 WL 4112688, at *4.

See also City of Dodge City v. Norton , 262 Kan. 199, 205, 936 P.2d 1356 (1997) (finding probable cause of intoxication when defendant created disturbance, weaved in his lane, nearly struck construction barrels, told officer he planned to drink that evening, had bloodshot eyes, and had alcohol on his breath); State v. Johnson , 43 Kan. App. 2d 815,
823

- 24, 233 P.3d 290 (2010) (finding probable cause of intoxication when defendant approached DUI checkpoint erratically, smelled like alcohol, admitted to drinkin g, had bloodshot and watery eyes, and failed two standardized field sobriety tests ); Campbell v.
Kansas Dep t. of Revenue , 25 Kan. App. 2d 430, 431

- 32, 962 P.2d 1150 (1998) (finding probable cause of intoxication when defendant was speeding at 1:10 a.m., smelled like liquor, admitted to drinking, and had glazed and bloodshot eyes).8 In this case, the district court specifically found that Dinkel had an odor of alcohol
and was slow to respond to the officer ' s questions . Dinkel was also swaying, unsteady, and had balance problems . His eyes appeared glazed, bloodshot, and watery . He also repeated questions and comments , slurred his speech , and struggled to get out of his
vehicle . Finally, he had difficulty following Powers ' directions. Even after excising the portions of the affidavit that Dinkel alleges were problematic, the evidence was more than enough to afford the deputy the requisite probable cause to believe Dinkel operated
his vehicle while under the influence.

The district court properly denied Dinkel ' s motion to suppress and his request for a
Franks hearing.

Affirm ed

.