State v. Ludes

• Citation: 11 P.3d 72,27 Kan. App.2d 1030
• Decision Date: 08 September 2000
• Docket Number: No. 84,088.,84,088.
• Parties: STATE OF KANSAS, Appellee, v. MICHAEL R. LUDES, Appellant.
• Court: Kansas Court of Appeals

27 Kan. App.2d 1030

11 P.3d 72

STATE OF KANSAS, Appellee, v. MICHAEL R. LUDES, Appellant.

No. 84,088.

Court of Appeals of Kansas.

Opinion filed September 8, 2000.

Marilyn M. Wilder, of Adrian & Pankratz, P.A., of Newton, for appellant.

Michael L. Leyba, assistant county attorney, Matt Treaster, county attorney, and Carla J. Stovall, attorney general, for appellee.

Before RULON, P.J., KNUDSON, J., and TIMOTHY E. BRAZIL, District Judge, assigned.

KNUDSON, J.:

Michael R. Ludes appeals after being convicted of driving under the influence of alcohol (DUI). On appeal, Ludes contends the trial court erred in denying his pretrial motion to dismiss the criminal complaint, asserting the arresting officer lacked probable cause to make a traffic stop. We note this issue was properly preserved for appeal. See State v. Cellier, 263 Kan. 54, Syl. ¶ 2, 948 P.2d 616 (1997).

At the pretrial hearing to dismiss, the arresting officer, Sean Corcoran, testified that shortly before 6 p.m. on October 29, 1998, he was informed by a police dispatcher: "Somebody had called them saying that there was a person on a motorcycle, approximately one-eighth of a mile south of U.S. 50 on Prairie Lake Road and that the person on the motorcycle appeared to be injecting something into his arm with a needle."

Corcoran drove approximately 1 mile to the given location and saw a motorcycle northbound on Prairie Lake Road. Corcoran proceeded south and passed the cyclist, then turned around and followed the motorcycle. When the cyclist turned east on U.S. 50, Corcoran continued to follow and observe. Corcoran testified the cyclist did not commit any traffic infractions or do anything out of the ordinary. Nevertheless, Corcoran made the decision to stop the motorcycle being driven by Ludes. He explained:

"Well, I decided to—to stop the motorcycle. Another reason or another thing that crossed my mind besides, of course, drug use, is I have a wife that's a diabetic, and she has had problems with the past, is insulin dependent. And people can get into a lot of trouble if they don't follow their insulin routine and that's a concern, too, if somebody is having a reaction."

Corcoran told the trial court possible criminal activity was the primary reason for stopping the motorcycle with Ludes' safety a secondary concern.

The subsequent investigation leading to Ludes' arrest for DUI need not be related. Ludes does not challenge Corcoran's probable cause to arrest or the sufficiency of the evidence to support the underlying conviction.

The trial court overruled Ludes' motion to dismiss, stating:

"The defendant's chief complaint with the activities of Officer Corcoran is that there was no corroboration of the anonymous tip. Officer Corcoran clearly did not observe the presence of a needle in the defendant's arm himself, and observed no erratic driving which would otherwise justify a stop of the motorcycle being operated by Mr. Ludes. As Tucker clearly indicates, however, an anonymous tip may justify the stop of a motor vehicle by police where the tip reveals an immediate and clear danger to the public.

....

"This was not a situation where a large amount of time had elapsed between the call and the officer's observation of the motorcycle [ridden] by Mr. Ludes. Under the circumstances, the officer could not know whether the defendant had taken some form of substance, either legal or illegal, which might be affecting his ability to drive the vehicle. However, the officer knew not just that the motorcyclist had been in possession of a syringe, but it had actually been observed protruding from the arm of the motorcyclist. It was reasonable for the officer to assume that something had been used immediately prior to his observation of the driving activity, and I believe this constituted a reasonable and articulable suspicion for a public safety stop."

Apparent from the uncontroverted facts and the trial court's ruling, the issue on appeal is not whether Corcoran had probable cause to stop the motorcycle. The issue is whether Corcoran had reasonable and articulable reasons to support an investigatory stop under K.S.A. 22-2402 or under the so-called public safety exception recognized in State v. Vistuba, 251 Kan. 821, 824, 840 P.2d 511 (1992). This issue raises constitutional concerns under the Fourth Amendment to the United States Constitution and §15 of the Kansas Constitution Bill of Rights. Our standard of review is a mixed question of law and fact. State v. Field, 252 Kan. 657, 664-65, 847 P.2d 1280 (1993). We will give great deference to the trial court's findings of fact, but the ultimate determination of whether the stop was constitutionally permissible is a legal question requiring independent appellate determination.

Unfortunately, in previous appellate decisions of the Kansas Court of Appeals and the Kansas Supreme Court, there has been a tendency to blend the investigatory stop permitted under K.S.A. 22-2402 with the public safety stop recognized in Vistuba. We suspect this has happened because the touchstone under either exception is a finding of "specific and articulable facts" to support the intrusion. This tendency obfuscates the ever present question under the Fourth Amendment as to whether a particular action is reasonable under the totality of circumstances. This question inevitably requires that we balance the interest of the government against the interest of the individual. It is a constitutional imperative that we distinguish an investigatory stop from a public safety stop to properly balance these competing interests. As stated in U.S. v. King, 990 F.2d 1552, 1560 (10th Circ. 1993):

"[W]hen a police officer initiates an encounter with a person for a purpose other than to investigate criminal activity, the governmental interest in effective crime prevention and detection is irrelevant. See [United States v. Montoya de Hernandez, 473 U.S. 531, 537, 87 L. Ed.2d 381, 105 S. Ct. 3304 (1985)

] (reasonableness inquiry must consider the nature of the seizure)."

For the above reasons, and notwithstanding the trial court's conclusion of a public safety stop, our analysis will be two-fold: first, under an investigatory stop and then under the public safety stop recognized in Vistuba.

Investigatory Stop

In State v. Slater, 267 Kan. 694, 696-97, 986 P.2d 1038 (1999), the court gave this succinct summary:

"The traffic stop of a vehicle by a law enforcement officer is a seizure under the Fourth Amendment to the United States Constitution. State v. Hopper, 260 Kan. 66, 69, 917 P.2d 872 (1996). A law enforcement officer may stop any person in a public place based upon specific and articulable facts raising a reasonable suspicion that such person has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed.2d 889, 88 S. Ct. 1868 (1968). K.S.A. 22-2402(1), the Kansas stop and frisk statute, is a codification of the Fourth Amendment search and seizure principles expressed in Terry."

In our analysis, we rely heavily upon the reasoning in Slater because the Supreme Court dealt with a very similar question to the one we now consider:

"The question raised by this appeal is whether the anonymous tip of a `possible drunk driver' at a specific location, together with a specific description of the vehicle, license tag number, and address of the registered owner is alone sufficient to provide an articulable and reasonable suspicion that a crime is being committed." 267 Kan. at 696.

In Slater, the Supreme Court utilized three factors synthesized from multiple jurisdictions to determine whether a stop based upon an anonymous tip was lawful. The first factor is the type of tip involved; the second factor is the detail given about the observed criminal activity; and the third factor is whether the officer's personal observations corroborated the information supplied in the tip. 267 Kan. at 700.

In this case, the dispatcher gave Corcoran the information received from an anonymous caller whose veracity could not be established. However, anonymous tips may support a lawful traffic stop if the information given is detailed and then corroborated by subsequent officer observation. See 267 Kan. at 702-03.

The second factor is the detail given by the caller about the observed activity. According to Corcoran's testimony, the caller stated there was "a person on a motorcycle, approximately one-eighth of a mile south of U.S. 50 on Prairie Lake Road and that the person on the motorcycle appeared to be injecting something into his arm with a needle."

The criteria among jurisdictions on what...