Full Opinion

NOT DESIGNATED FOR PUBLICATION No. 129,910 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. PERRY CARR, Appellant. MEMORANDUM OPINION Appeal from Rice District Court; CAREY L. HIPP, judge. Submitted without oral argument. Opinion filed November 6, 2026. Affirmed. Michael S. Holland II, of Holland and Holland, of Russell, for appellant. Remington S. Dalke, county attorney, and Kris W. Kobach, attorney general, for appellee. Before ARNOLD-BURGER, P.J., ATCHESON and CLINE, JJ. PER CURIAM: Perry Carr was convicted of driving under the influence of alcohol. On appeal, he challenges the district court's denial of his motion to suppress, claiming there was no probable cause to arrest him. After a thorough review of the record and stipulations in the case, we find that the district court did not err and affirm his conviction. 1 FACTUAL AND PROCEDURAL HISTORY On November 25, 2022, around 1:30 a.m., Officer Angela Allison saw Carr driving his truck, exiting the parking lot of a closed liquor store. After Carr exited the parking lot, he drove down the center lanes, "straddling the lane divide," which prompted Officer Allison to turn around to follow him. While following Carr, Allison noticed that "he would bounce between the lane divide in the center line and then straighten out." Allison described Carr's driving patterns as "ping-ponging." She defined "ping-ponging" as when someone is "driving in a lane, and they cross over lane divide and then back— back to the center of the lane—or back to the middle of the road, center lane, and then back and forth." This included crossing the center lane or fog line, which Carr did during the encounter. While driving through one area of town, Carr slowed down appropriately and drove within the speed limit. Eventually he was "ping-ponging between the lane divide and the center line again." Throughout several blocks of this encounter, Carr did not actually exit his lane, only going back and forth between the lane divide and the center divide. At one point Carr drove down the center lanes of both eastbound lanes of a four- lane roadway. Finally, as Carr approached a fork in the road, Allison observed him "cross over the lane divide and then swerve back across the lane to make the turn." At that point, she decided to pull him over and activated her emergency lights and sirens. Allison had to "turn them on and off to try and get [Carr's] attention." It took Carr three or four blocks to finally pull over. Allison noted this was slow since most people would pull over quicker given the time of night. As Carr pulled over, he took a wide turn into the parking lot. Officer Allison approached Carr in his vehicle and requested his driver's license and insurance. When Carr tried to get his license out of his wallet, it seemed to take him a 2 long time. Carr gave Allison his license and an old receipt, instead of his insurance. As Allison handed the receipt back to Carr, he dropped it. Carr continued to dig through his center console to look for his insurance. During the encounter, Allison noticed a strong odor of alcohol and that Carr had watery eyes and slurred speech. Allison narrated her interactions while her body camera was recording to help her when writing reports later, although the recording is not in the record on appeal. Officer Allison asked Carr to exit his truck. After Carr exited his truck, Carr had his hands in his pockets, so Allison asked him to take them out of his pockets, which he did. However, he put them back into his pockets. While outside the vehicle, Allison asked Carr to submit to standard field sobriety testing, but Carr refused. At that point Allison arrested Carr for driving under the influence (DUI). After arrest, Officer Allison transported Carr to the Rice County Detention Center where Carr refused to provide a sample of his breath. At 3:18 a.m., Allison obtained a search warrant for Carr's blood which was executed less than an hour later. The Kansas Bureau of Investigation lab test showed Carr had an alcohol level of 0.25 grams of alcohol per 100 milliliters of blood. In October 2023, Carr moved to suppress any evidence obtained after Carr's arrest, arguing that the officer lacked probable cause. After a hearing featuring the testimony of Officer Allison, the district court denied the motion. Carr waived his right to a jury trial and proceeded to a bench trial on stipulated facts that were consistent with the evidence presented at the hearing on the motion to suppress and the facts outlined above. Carr timely appeals his subsequent conviction of misdemeanor DUI. 3 ANALYSIS The sole issue on appeal is whether the district court erred in denying the motion to suppress. Our standard of review is de novo. When a defendant moves to suppress evidence, the State has the burden of proving the search and seizure were lawful. K.S.A. 22-3216(2); State v. Goodro, 315 Kan. 235, 238, 506 P.3d 918 (2022). When the material facts supporting a district court's decision on a motion to suppress evidence are not in dispute, the ultimate question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Mendez, 319 Kan. 718, 735-36, 559 P.3d 792 (2024). We define probable cause. The validity of a warrantless arrest depends on whether, at the moment the arrest was made, the officer had probable cause to make it. State v. Press, 9 Kan. App. 2d 589, 592, 685 P.2d 887 (1984). "Probable cause to arrest is the reasonable belief, drawn from the totality of information and reasonable inferences available to the arresting officer, that the defendant has committed or is committing a specific crime." State v. Johnson, 297 Kan. 210, 222, 301 P.3d 287 (2013) (citing Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 20, 290 P.3d 555 [2012]). It "does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction." State v. Evans, 219 Kan. 515, 521, 548 P.2d 772 (1976). 4 The officer had probable cause to arrest Carr. Carr concedes that the officer had reasonable suspicion to stop his vehicle and initiate a DUI investigation. But Carr argues that, after he refused the physical field sobriety testing, the officer "abandoned all investigation." He asserts the officer "did not offer non-physical tests, did not do any additional questioning, did not offer a [preliminary breath test]." Instead, Carr argues, the officer treated the circumstances that supported reasonable suspicion for a DUI investigation as probable cause to arrest. According to Carr, that decision was not supported by objective facts sufficient to establish probable cause to arrest. The State counters that the officer believed that she had probable cause to arrest Carr before she asked him to submit to field sobriety testing and that she "requested the field sobriety testing, not to establish probable cause, but to corroborate the belief she'd already formed." We begin by summarizing the undisputed evidence Officer Allison had at the time she placed Carr under arrest. (1) While driving in his truck, Carr: • exited the parking lot of a closed liquor store at 1:30 a.m., something the officer indicated was unusual; • crossed lane lines, swerved within the lanes, and drove in the middle of two lanes, which ultimately resulted in the commission of at least one traffic offense; • took longer than usual to pull over in response to the siren and emergency lights; • took a wide turn when pulling over. 5 (2) Once stopped, Carr had: • a strong odor of alcohol; • watery eyes; • delayed reactions to commands; • slurred speech; • trouble getting his driver's license out of his wallet; • handed the officer an unrelated receipt instead of his insurance and dropped the receipt when she handed it back to him; and • an inability to follow directions once out of the vehicle. In addition, Carr refused to perform any field sobriety tests at the scene. That refusal can be considered as indicia of guilt. See State v. Rubick, 16 Kan. App. 2d 585, 587-88, 827 P.2d 771 (1992) (analogizing failure to perform the field sobriety tests with failure to submit a handwriting sample as examined in State v. Haze, 218 Kan. 60, 62-63, 542 P.2d 720 [1975]). Carr does not provide an analysis to explain how the facts fail to establish probable cause nor does he cite any legal authority to support that position. Instead, Carr seeks to isolate the moment Officer Allison asked him to exit the vehicle as the inception of the DUI investigation. Because Carr refused the field sobriety tests and Allison conducted no further testing, Carr argues that there was no investigation whatsoever. If this court were to adopt Carr's reasoning, a defendant could effectively prevent an officer from establishing probable cause simply by refusing field sobriety tests or other testing. Moreover, the record does not support that account. The relevant circumstances begin with Carr's departure from the parking lot of a closed liquor store at 1:30 a.m. and include Allison's subsequent observations in determining whether probable cause existed. The officer testified that as her training and 6 experience instructs her, when approaching a situation where she suspects a person may be under the influence of alcohol, she looks for "[s]lurred speech; odor; glassy, watery eyes; slow to react; and unable to follow instructions." These were all observations made after stopping Carr and before arresting him. Based on these facts, in addition to Carr's driving, it was reasonable for Officer Allison to believe there was probable cause to arrest Carr for DUI. See State v. Keenan, 304 Kan. 986, 994, 377 P.3d 439 (2016) (a rigid application of factors is not required; courts apply a totality of the circumstances standard, examining all facts and observations available to the officer at the time of arrest as viewed through the lens of an objectively reasonable police officer). We have little hesitation equating these observations with probable cause to arrest. The officer is not required to wipe the slate clean after she stops the vehicle and base the arrest only on evidence she gathers after the stop. As we have already stated, we examine the totality of information and reasonable inferences available to the arresting officer. Here, the totality of the circumstances supports the district court's denial of Carr's motion to suppress. Affirmed. 7