State v. Messner
| Citation | 419 P.3d 642,55 Kan.App.2d 630 |
| Decision Date | 18 May 2018 |
| Docket Number | No. 117,559,117,559 |
| Parties | STATE of Kansas, Appellee, v. Christian Blake MESSNER, Appellant. |
| Court | Court of Appeals of Kansas |
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Brett D. Sweeney, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before Arnold-Burger, C.J., Green, J., and Hebert, S.J.
Kansas courts recognize that police may conduct a public safety, or community caretaking, stop in certain circumstances. State v. Vistuba , 251 Kan. 821, 824, 840 P.2d 511 (1992), disapproved in part on other grounds by State v. Field , 252 Kan. 657, 847 P.2d 1280 (1993). Such a stop does not require the police to have reasonable suspicion of a civil or criminal infraction. 251 Kan. at 824, 840 P.2d 511. However, a safety stop must be " ‘divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.’ " City of Topeka v. Grabauskas , 33 Kan. App. 2d 210, 214-15, 99 P.3d 1125 (2004) (quoting Cady v. Dombrowski , 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed. 2d 706 [1973] ).
In this case, Christian Blake Messner was stopped by police in response to a concern expressed by employees at the local Dillons store concerning his behavior and length of stay in the store. When Messner left the store in a vehicle, police followed him for the sole purpose of checking his welfare. Upon stopping him police did little to check his welfare, but instead seized his driver's license and checked for any warrants. After learning he had a warrant out for his arrest, police arrested Messner and subsequently searched his car. Messner moved to suppress the evidence, arguing that the arrest and search were unlawful. The district court disagreed and denied Messner's motion. Because we find that the officer exceeded the scope of the public safety or welfare stop, we reverse the district court's denial of the motion to suppress and remand the case with directions.
Messner was in a Dillons store in Andover, Kansas, from around 10:15 p.m. on a Tuesday evening to 6 a.m. Wednesday morning—almost eight hours. When Sally Hermann arrived for her shift at the store, employees informed her that Messner had been in the store all night and they were concerned about his behavior. Messner would "just stand and stare" at walls and people. According to Hermann, it seemed like Messner did not know what he was staring at. Messner was also picking at his skin.
Hermann and a couple of male employees approached Messner to see if he was alright. Hermann noticed that Messner was wearing a coat sold in the store with the tag still on it. Messner asked Hermann, " ‘Do you know where my coat is?’ " Hermann told him that she did not know where his coat was. Hermann described Messner as confused as to where he was located. When asked if there was anyone with him, Messner said that he did not think so. Hermann told Messner that if he was not going to purchase anything he needed to leave.
Messner took off the Dillons jacket and began to leave the store. Hermann called the police to let them know that Messner had been at Dillons for eight hours and that his behavior should be followed up. A dispatch went out to "check the welfare of an individual that had been in Dillons for quite a while." Sergeant/K-9 Officer Mickey Farris arrived. He immediately encountered Hermann who was standing at the door pointing at a white vehicle that was pulling away. Sergeant Farris indicated that Hermann said, " " Hermann also told him that she thought Messner was "meth'd out due to all the sores on him."
Based solely on Hermann's comments, Sergeant Farris got in his vehicle and followed Messner for about 1 mile and during that time did not notice Messner commit any traffic infractions. Based on his observations, Sergeant Farris did not have any concerns about Messner's ability to drive. He went so far as to say that he was concerned about stopping Messner's vehicle because he "would have liked to have had a ... traffic infraction." Sergeant Farris contacted his supervisor and asked whether he should stop Messner's vehicle. The supervisor, who had been listening to the call on his radio, told Sergeant Farris to pull over Messner to "check his welfare" make sure "that everything is all right with him."
Sergeant Farris pulled over Messner. Sergeant Farris asked Messner about his behavior at Dillons. Messner indicated that he had been left at Dillons "and done wrong" and he was waiting for a ride. Sergeant Farris thought this was odd because Messner drove a car away from Dillons. Sergeant Farris also noticed that Messner's speech and movement was slow. Sergeant Farris acknowledged that he did not know whether Messner's speech was normally slow. After speaking with Messner, Sergeant Farris felt that Messner was not in a condition to drive. When asked why he didn't proceed with a DUI investigation, Sergeant Farris noted that although he thought "something wasn't right" he didn't smell any alcohol. He speculated that it could have simply been a medical condition. He did nothing to determine what may be wrong.
Instead, Sergeant Farris asked for Messner's driver's license to run a check on Messner for "wants and warrants." Between Sergeant Farris' first contact with Messner and the time it took to request Messner's license a couple of minutes had passed. Sergeant Farris learned that Messner had a suspended driver's license and a warrant from Wichita, Kansas. Sergeant Farris handcuffed Messner and placed him in the back of the patrol vehicle. While waiting for more information from Wichita, Sergeant Farris chose to take his service dog around Messner's vehicle for a drug sniff.
Sergeant Farris testified that he and his dog were certified through the Kansas Police Dog Association. He also testified that they recertified every spring. Further, Sergeant Farris and his dog had never failed to be certified.
Sergeant Farris' dog alerted to Messner's vehicle and Farris searched the vehicle. Sergeant Farris located a black bag with a hypodermic needle and two spoons with methamphetamine on them.
Messner was charged with possession of methamphetamine, possession of paraphernalia, and driving while suspended. Messner moved to suppress the evidence of the stop, arguing that his rights under the Fourth Amendment to the United States Constitution were violated. A suppression hearing was held where the above facts were presented. After hearing the evidence, the district court denied the motion to suppress. The court held that the stop was initiated because Sergeant Farris was concerned about Messner's, and the public's, welfare. Further, the court held that in this particular case Sergeant Farris continued acting as a community caretaker by determining, through a wants and warrants check, whether Messner was licensed to drive.
After the suppression hearing, a bench trial on stipulated facts occurred. The district court found Messner guilty as charged based on the stipulated facts. Messner timely appeals.
On appeal, Messner first argues that Sergeant Farris did not have specific and articulable facts to support a public safety stop.
Messner then argues, in the alternative, that even if a public safety stop was justified, Sergeant Farris exceeded the proper scope of such a stop. If Messner is correct, and no exception applies, then the evidence from the stop must be suppressed. See Wong Sun v. United States , 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed. 2d 441 (1963).
When, as here, the material facts to a trial court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Cleverly , 305 Kan. 598, 604, 385 P.3d 512 (2016).
The officer exceeded the scope of a public safety stop by seizing Messner's driver's license and checking for warrants.
The United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. Further, the Kansas Constitution provides similar protection, stating: "The right of the people to be secure in their persons and property against unreasonable searches and seizures, shall be inviolate." Kan. Const. Bill of Rights, § 15. A traffic stop is considered a seizure. Delaware v. Prouse , 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed. 2d 660 (1979).
Kansas courts recognize that police may lawfully conduct a safety stop in certain situations. State v. Gonzales , 36 Kan. App. 2d 446, 451, 141 P.3d 501 (2006). For a safety stop to be justified, the stop must be based upon specific and articulable facts. Vistuba , 251 Kan. at 824, 840 P.2d 511. A safety stop does not require a civil or criminal infraction to occur. 251 Kan. at 824, 840 P.2d 511.
Messner argues that the stop itself was not a safety stop and instead needed to be supported by facts and inferences that a criminal activity occurred. However, the district court found that this was a public safety stop. We find that the evidence supports such a finding. Sergeant Farris was aware that Messner had been in Dillons for "quite a while." Store personnel told Sergeant Farris that she thought Messner was "meth'd out due to all the sores on him" and that he should not be driving. Under these facts the district court did not err in finding that the stop was a public safety stop to check the welfare of Messner. See Gonzales , 36 Kan. App. 2d at 454, 141 P.3d 501 (); see also State v. Slater , 267 Kan. 694, 700-01, 986 P.2d 1038 (1999) (). But see State v. Marx , 289 Kan. 657, 663, ...
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