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NOT DESIGNATED FOR PUBLICATION

No. 122,669

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CITY OF EUREKA, KANSAS,

Appellee,

v.

STEVEN CLARK,

Appellant.

MEMORANDUM OPINION

Appeal from Greenwood District Court; DAVID A. RICKE, judge. Opinion filed June 11, 2021.

Affirmed.

Joshua S. Andrews, of Cami R. Baker & Associates, P.A., of Augusta, for appellant.

James D. Watson, city attorney, for appellee.

Before WARNER, P.J., BUSER and CLINE, JJ.

PER CURIAM: This is an appeal by Steven Clark of the district court's denial of his 

motion to suppress evidence, which resulted in Clark's conviction for driving under the 

influence of alcohol (DUI). Clark asserts the district court erred because the arresting 

officer did not have probable cause to arrest him for DUI. Upon our review, we hold the 

district court's factual findings were supported by substantial competent evidence and the 

court did not err in concluding as a matter of law that the arresting officer had probable 

cause to believe that Clark committed the offense of DUI. Accordingly, the conviction is 

affirmed.
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FACTUAL AND PROCEDURAL BACKGROUND

This factual background is summarized from testimony presented at the pretrial 

hearing on Clark's motion to suppress evidence. Additionally, a law enforcement 

bodycam video of the on-scene DUI investigation was viewed by the court.

Mike Cordell is a sergeant with the Greenwood County Sheriff's Office. At the 

time of trial, he had 15 years of law enforcement experience with 2 1/2 years as a police

officer employed by the county. Sergeant Cordell was on patrol at about 9 p.m. on May 7, 

2018, when he noticed a semi-trailer truck parked alongside the road with its hazard 

lights illuminated. The officer also noticed a pickup truck parked beside the road.

Upon investigating, Sergeant Cordell learned that a propane tank had rolled from 

the bed of the pickup truck driven by Clark, which caused an accident with the semitrailer truck. Clark advised Sergeant Cordell that as he turned onto the roadway, the 

propane tank rolled out of the truck bed and onto the road. Before Clark could retrieve 

the propane tank from the road, the semi-trailer truck struck it.

Sergeant Cordell detected a strong odor of alcohol on Clark's breath as he spoke 

with him. He also observed that Clark's eyes were bloodshot and watery, with a sweaty 

reddened face although it was a cool evening. When asked, Clark admitted to drinking 

four beers while golfing that day, one of which he drank immediately before leaving a 

location just before the accident. Sergeant Cordell noted there were three coolers and 

numerous open and empty beer cans in the bed of the pickup truck.

Sergeant Cordell asked Clark to perform standard field sobriety tests. Clark first 

performed the walk-and-turn test. According to Sergeant Cordell, this test may provide 

eight possible clues of intoxication. During Clark's walk-and-turn test, Sergeant Cordell 

noted two clues. First, Clark began the test before Sergeant Cordell instructed him to 
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begin. Second, Clark took an extra step at the end of the test. Sergeant Cordell also 

noticed that Clark turned incorrectly, but he did not count that as a clue of intoxication.

Next, Clark performed the one-leg-stand test which he passed.

Sergeant Cordell asked Clark to take a preliminary breath test (PBT). In providing

Clark with advisories about taking the test, the officer told Clark that if he refused to take 

the PBT, he would be charged with a traffic infraction. Sergeant Cordell acknowledged 

that he was later trained that he should not give that particular advisory. According to 

Sergeant Cordell, Clark seemed apprehensive about taking the test and never expressly 

said he wanted to take it. Ultimately, Clark took the PBT which revealed a reading 

greater than the legal limit. Clark was arrested for driving under the influence of alcohol. 

A subsequent search inside the pickup truck revealed an open container which appeared 

to contain beer that was cold to the touch.

On June 17, 2019, Clark was convicted of DUI in Eureka Municipal Court. He 

appealed his conviction to the Greenwood County District Court. In the district court, 

Clark filed a motion to suppress and sought to exclude the incriminating evidence 

obtained after his arrest. On October 17, 2019, after the evidentiary hearing on the motion 

to suppress, the district court denied the motion.

At the outset, the district court ruled the evidence of the PBT was inadmissible 

because Sergeant Cordell improperly advised Clark that he could be charged with a 

traffic infraction if he declined to take the PBT. As a consequence, the district court ruled

that "the Court does believe that it cannot consider any result from the preliminary breath 

test that was taken in the field due to the inherently coercive nature which led to [its]

taking in the first place."

In denying the motion to suppress, the district court found the following evidence 

to support a finding of probable cause:
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"[T]he officer . . . found three coolers with numerous beer cans in the truck of the 

defendant, both open and empty. When he got within speaking distance, he detected a 

strong odor, which is consistent with the ingestion of alcoholic beverages. The Court 

does not find particular significance in any of the facial reading that was done in the case,

. . . . However, the Court does find that[] it['s] well established that bloodshot eyes can be 

a definite indicator of alcohol ingestion. That was noted in this case by the officer."

The district court also found that Clark failed the walk and turn test by taking too many 

steps but assessed this failure as "a very minor indicator in the whole scheme of things."

According to the district judge:

"The strongest indicator of probable cause in this case stems from the defendant's own 

admission that he had drank four beers. . . . This defendant clearly admitted he had drank 

four [beers]. That in and of itself indicates to the Court a substantial amount of alcohol 

ingestion on that date. . . . I think [the officer] can reasonably . . . rely on the number of 

beers that the defendant admits that he had."

Based on the totality of circumstances, the district court denied the motion to 

suppress concluding that Sergeant Cordell had probable cause to make an arrest for DUI.

On November 26, 2019, the district court held a bench trial based on stipulated 

facts. The parties stipulated that on May 7, 2018, at 9 p.m., Clark drove his truck in 

Eureka. Sergeant Cordell smelled a strong odor of alcohol on Clark's breath; Clark's eyes 

appeared bloodshot and watery; Clark admitted to drinking four beers while golfing; and 

Clark's truck had multiple empty beer cans and coolers in the bed of the truck. During the 

standard field sobriety tests, Clark failed the walk-and-turn test and passed the one-legstand test. Sergeant Cordell arrested Clark for DUI. A subsequent evidentiary 

breathalyzer test revealed that Clark had an alcohol concentration of 0.08 or more.
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After considering the stipulated facts, the district court found Clark guilty of DUI 

and sentenced him to 180 days in jail. The sentence was suspended pending Clark's 

successful completion of 12 months' probation and serving 48 hours in jail. Clark was 

also fined $750. Clark appeals his conviction.

ANALYSIS

On appeal, Clark contends Sergeant Cordell did not have probable cause to 

conclude that Clark drove his pickup truck under the influence of alcohol. As a result, he 

argues the incriminating evidence should have been suppressed at trial in keeping with 

the exclusionary rule.

Preliminarily, after the district court denies a motion to suppress evidence, the 

moving party ordinarily must object to the introduction of that evidence when it is offered 

at trial to preserve the issue for appeal. State v. Dupree, 304 Kan. 43, 62, 371 P.3d 862 

(2016). As part of the stipulated trial facts, the parties agreed that Clark renewed his 

objection to the admission of evidence and that the issue was preserved for appeal.

Next, we consider our standard of review. In reviewing a district court's ruling on 

a motion to suppress, Kansas courts apply a bifurcated standard. State v. Galloway, 311 

Kan. 238, 245, 459 P.3d 195 (2020); State v. Patterson, 304 Kan. 272, 274, 371 P.3d 893 

(2016). The appellate court accepts the district court's factual findings if the facts are 

supported by substantial competent evidence and reviews the legal conclusions de novo. 

304 Kan. at 274. Because the Fourth Amendment is implicated here, the City bears the 

burden of proving the search was constitutionally acceptable by a preponderance of the 

evidence. See 304 Kan. at 274.

The Fourth Amendment to the United States Constitution and § 15 of the Kansas 

Constitution Bill of Rights protect individuals from unreasonable searches and seizures, 
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and breath tests administered by law enforcement officers are searches. Birchfield v. 

North Dakota, 579 U.S. __, 136 S. Ct. 2160, 2184, 195 L. Ed. 2d 560 (2016) (holding 

warrantless breath test is permissible if it stems from a valid search incident to arrest); 

State v. Ryce, 306 Kan. 682, 699-700, 396 P.3d 711 (2017). In a DUI case, the answer to 

whether there is probable cause to arrest the defendant will depend on the officer's factual 

basis for concluding that the defendant was intoxicated at the time of arrest. City of 

Dodge City v. Norton, 262 Kan. 199, 203, 936 P.2d 1356 (1997).

The question presented is whether Sergeant Cordell had probable cause to believe 

that Clark operated his pickup truck while intoxicated. Our Supreme Court recently 

reprised the definition of probable cause:

"'Probable cause is the reasonable belief that a specific crime has been committed 

and that the defendant committed the crime. Probable cause exists where the facts and 

circumstances with the arresting officers' knowledge and of which they had reasonably 

trustworthy information are sufficient in themselves to warrant a man of reasonable 

caution in the belief that an offense has been or is being committed.

"'When determining whether probable cause exists, an appellate court considers 

the totality of the circumstances, including all of the information in the officer's 

possession, fair inferences therefrom, and any other relevant facts, even if they may not 

be admissible on the issue of guilt.' [Citations omitted.]" State v. Chavez-Majors, 310 

Kan. 1048, 1055, 454 P.3d 600 (2019).

We begin our analysis of the probable cause question by noting that the district 

court did not consider the incriminating reading from the PBT as a factor in the probable 

cause calculus. See State v. Robinson, 55 Kan. App. 2d 209, Syl. ¶ 2, 410 P.3d 923 

(2017) (K.S.A. 2016 Supp. 8-1012—which provides that a driver's refusal to take a PBT 

upon request commits a traffic violation—is unconstitutional because the statute 

criminalizes a person's right to withdraw his or her consent to a warrantless search.).
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The City mentions that Sergeant Cordell was under a good-faith belief that K.S.A. 

2017 Supp. 8-1012 was constitutional when he requested Clark to give a breath sample 

and Clark's hesitancy to take the PBT did not amount to a refusal. The City, however, 

failed to file a notice of cross-appeal from the district court's adverse ruling and, as a 

result, this ruling is not properly before us. See K.S.A. 2020 Supp. 60-2103(h); Lumry v. 

State, 305 Kan. 545, Syl. ¶ 2, 385 P.3d 479 ("Before an appellee may present adverse 

rulings to the appellate court it must file a cross-appeal. If the appellee does not, the 

rulings are not properly before the appellate court and may not be considered."). In 

keeping with the district court's ruling, we will not consider Clark's PBT result as a factor 

contributing to Sergeant Cordell's determination of probable cause.

In denying Clark's motion to suppress evidence the district court found that under 

the totality of circumstances the following factors supported Sergeant Cordell's probable 

cause determination:

• Clark's admission to drinking four beers prior to the accident, one of which 

he drank immediately before leaving a location just before the accident. 

This admission against interest was obviously probative to the probable 

cause finding and incriminating evidence of DUI.

• The strong odor of alcoholic beverages on Clark's breath. Kansas caselaw is 

clear that the odor of alcohol suggests intoxication. Chavez-Majors, 310 

Kan. at 1057 (citing cases).

• Clark's bloodshot eyes. Kansas appellate court decisions are rife with 

references to bloodshot and/or watery eyes as indicative of intoxication. 

See State v. Pollman, 41 Kan. App. 2d 20, 32, 204 P.3d 630 (2008) 

(evidence of bloodshot eyes is usual physical manifestation of intoxication).

• Three coolers with numerous open and empty beer cans in the bed of the 

pickup truck.
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• Clark's failure to successfully perform the walk-and-turn test. See State v. 

Huff, 33 Kan. App. 2d 942, Syl. ¶ 5, 111 P.3d 659 (2005) (field sobriety 

testing is useful for establishing probable cause that a driver is under the 

influence of alcohol). After viewing the bodycam of Clark's performance 

on this test, the district court found:

"Part of the walk and turn test—the rationale for it is so that a person who is being tested 

can demonstrate to the investigating officer that they can follow instructions given. In 

fact, specific instructions for a specific test and then be able to perform it. So, it's not only 

a physical indicator, but it's also an indicator of mental processes as well. Can this person 

who's being instructed follow the directions given, both physically and mentally. Clearly, 

Mr. Clark in this case took an extra step. According to the protocols followed by the 

officer due to NHTSA instruction that he had received, that is an incorrect number of 

steps and is a valid indicator of violation of the walk and turn test. He failed it . . .

according to the officer and the Court accepts this. However, with that said, this is a very 

minor indicator in the whole scheme of things."

On appeal, Clark contends the district court erred in four ways. First, Clark asserts 

that the totality of factors which the district court found provided a basis for a probable 

cause finding were insufficient. Moreover, Clark notes the district court made no finding 

that he had difficulty obtaining his license or proof of insurance, maintaining his balance, 

or "any other cues of intoxication other than the bloodshot eyes and odor of alcohol."

Still, while the district court is required to consider the totality of circumstances, 

"[a] number of other Kansas cases similarly hold that competing evidence of sobriety 

does not negate initial evidence of intoxication" State v. Edgar, 296 Kan. 513, 524, 294 

P.3d 251 (2013) (citing cases). The district court had considerable evidence available to it 

in consideration of the probable cause question, including the bodycam video recording 

Clark at the time that Sergeant Cordell was conducting his DUI investigation. It is 
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apparent from the district court's findings that it considered the totality of circumstances 

relevant to the probable cause question.

Second, Clark asserts that he did not fail the walk-and-turn test. Upon our 

independent review of the evidence, however, we are persuaded that the district court did 

not err in concluding that Clark failed the test. Regardless, as noted earlier, the district 

court considered this field sobriety test result as a minor indicator when compared to the 

other indicators of intoxication.

Third, Clark complains that his consent to the PBT was involuntary. But as 

discussed above, the district court did not err in excluding evidence of the PBT result at 

the hearing on Clark's motion to suppress. Since the district court specifically excluded 

the incriminating PBT result in its probable cause analysis, Clark's complaint is without 

merit.

Finally, Clark objects to the district court's characterization that consuming four

beers is a substantial amount of alcohol and that Clark likely consumed more than four 

beers. As mentioned earlier, the district judge found:

"The strongest indicator of probable cause in this case stems from the defendant's own 

admission that he had drank four beers. . . . This defendant clearly admitted he had drank 

four. . . . I think [the officer] can reasonably . . . rely on the number of beers that the 

defendant admits that he had. . . . Four beers were admitted by this defendant."

In addition to the finding that Clark admitted to drinking four beers before the 

accident, the district court characterized this amount as "substantial" and also commented 

that "[t]he Court has seen many, many instances where a person who has drank much, 

much more, claims they've had a couple of beers or two or three beers." Having reviewed 

the entire findings and remarks the district court made at the conclusion of the 

suppression hearing, we are persuaded that the district court found that Clark admitted to 
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consuming four beers. Moreover, there was also testimony that Clark drank his last beer 

shortly before the accident. We find substantial competent evidence to support the 

finding that Clark consumed four beers.

The district court's characterization of drinking four beers as "substantial" was not 

a specific factual finding—Clark's admission to drinking four beers constituted the 

factual finding. Additionally, the district court's extraneous comment about other cases 

wherein defendants underestimated the number of alcoholic beverages they admitted to 

consuming was also not a factual finding in this case. It was a passing, inessential aside 

about other cases—not this one. As a result, we find no error in the district court's 

evaluation of Sergeant Cordell's testimony about Clark's admission to drinking four beers 

prior to the accident.

In conclusion, appellate courts do not reweigh the evidence, assess the credibility 

of witnesses, or resolve conflicts in evidence when reviewing a district court's findings 

for substantial competent evidence. State v. Douglas, 309 Kan. 1000, 1002, 441 P.3d 

1050 (2019). Here, we find substantial competent evidence to support the district court's 

factual findings. We further hold the district court did not err in its legal conclusion that 

Sergeant Cordell had probable cause to arrest Clark for DUI. Accordingly, incriminating 

evidence obtained incident to the arrest was admissible at trial. The district court did not 

err in its denial of Clark's motion to suppress evidence.

Affirmed.