State v. Tucker
| Decision Date | 05 August 1994 |
| Docket Number | No. 70949,70949 |
| Citation | 19 Kan.App.2d 920,878 P.2d 855 |
| Parties | STATE of Kansas, Appellee, v. Joseph D. TUCKER, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Safety reasons alone may justify an investigative or Terry stop of a motor vehicle if the safety reasons are based upon specific and articulable facts.
2. In determining whether the stop of a motor vehicle violates a defendant's Fourth Amendment rights, the courts must balance the rights of an individual to privacy and freedom of movement with the right of the public to be protected from unreasonable dangers.
3. In applying a Fourth Amendment balancing test to determine the legality of a police stop of a motor vehicle, when the danger to the public is clear, urgent, and immediate, the balancing of rights is weighted in favor of public safety.
4. Under proper circumstances, an anonymous tip which is only minimally verified may provide sufficient facts to justify the police stop of a motor vehicle which is reported to have been driven erratically, unsafely, and/or by an intoxicated driver.
5. Whether an anonymous tip has provided sufficient facts to justify a safety stop of a motor vehicle by police must be determined from the totality of circumstances shown by the evidence.
6. In evaluating whether an anonymous tip has provided a sufficient basis for a safety or investigatory stop of a motor vehicle by police, the greater and more immediate the risk to the public revealed by such a tip, the less important is the corroboration and reliability of the tip.
7. Under the facts of this case, an anonymous tip that a motor vehicle was being driven erratically and that the driver was possibly intoxicated and running other vehicles off the road provided a sufficient basis for police to stop the vehicle for safety reasons where the tip was verified as to the description of the vehicle, the description of the driver, and the highway on which the vehicle was traveling.
8. 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. However, that same tip may not be sufficient to justify a stop under other facts where no clear and immediate danger to the public is shown.
Gregory G. Meredith, Reynolds, Peirce, Forker, Berkley, Suter, Rose & Dower, Hutchinson, for appellant.
Keith E. Schroeder, Asst. County Atty., and Robert T. Stephan, Atty. Gen., for appellee.
Before BRISCOE, C.J., and LEWIS and GREEN, JJ.
A vehicle being driven by the defendant, Joseph D. Tucker, was stopped by Reno County law enforcement officers to investigate a complaint of erratic driving. As a result of the stop, the defendant was charged with and convicted of driving while under the influence (DUI). He appeals that conviction, arguing that the police stop of his vehicle was a violation of his Fourth Amendment rights. Thus, he claims, the evidence gained as a result of that stop was inadmissible.
We affirm.
Officer Donald W. Evans is a Reno County deputy sheriff. On the morning of the defendant's arrest, he was working a 7:00 a.m. to 3:00 p.m. shift. At approximately 9:50 a.m., he was advised by his dispatcher of a possible drunk driver. The original report had been given to the dispatcher by an anonymous caller, who was not identified until after the arrest was made. The caller advised that he had observed a white male driving a red 1960's model Ford pickup southbound on K-61 Highway from Inman. The caller reported the driver appeared to be drunk and was running other vehicles off of the roadway.
Upon receiving this report, Officer Evans headed north on K-61. He soon observed a red 1960's model Ford pickup heading southbound on K-61 driven by a white male. The location of the pickup, the description of the pickup, and the description of the driver were all consistent with the information provided by the anonymous informant.
Officer Evans, and Sergeant Kellogg in another car, followed the red pickup for a short distance and, during that time, concede they did not observe any erratic driving.
Despite the lack of observing erratic driving, Officer Evans stopped the vehicle to investigate the anonymous tip received a short time earlier. Officer Evans testified that the morning traffic was fairly heavy and, because of the report of a possibly intoxicated driver who had run other vehicles off the road, he stopped the vehicle in the interest of public safety.
After stopping the vehicle, the officer came face-to-face with the defendant. The officer observed that the defendant's eyes were bloodshot and asked him to take certain field sobriety tests. In the opinion of Officer Evans, the defendant failed the field sobriety tests, and he was arrested for DUI. The defendant was also asked to submit to a breath test, which returned an alcohol concentration reading of .094. This was above the presumptive DUI level of .08 in effect on the date in question. See K.S.A.1993 Supp. 8-1567(a).
Based on the evidence outlined above, the defendant was convicted of DUI, sentenced to 90 days in jail, fined $500, and assessed $37 in court costs. The defendant was then placed on one year's probation, sentenced to five days with House Arrest, Inc., and required to attend certain alcohol information and counseling programs.
The defendant argues that the anonymous tip which prompted the stop of his vehicle did not provide specific and articulable facts on which to base a safety stop of the vehicle pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
In approaching this issue, it is important to note that we are dealing here only with a safety stop of a vehicle. The facts include the mobility of an automobile and the extreme danger posed to the public by a drunken driver. Officer Evans, in stopping the defendant, was responding to an anonymous tip which indicated that the defendant was drunk and had been running other drivers off of the road. The propriety of Officer Evans' actions in stopping the defendant's vehicle must be considered in this context.
The testimony indicates that this vehicle was stopped for reasons of public safety. In Kansas, such a stop has been determined to be valid. In State v. Vistuba, 251 Kan. 821, 824, 840 P.2d 511 (1992), Justice Six, writing for a unanimous Supreme Court, stated:
The question then becomes whether the stop in this case was based upon specific and articulable facts. The defendant argues that such a standard cannot be reached on facts provided by an anonymous caller.
This case involves the ever-changing equation used to balance the rights of an individual to be free from unwarranted intrusions of his or her freedom of movement and right to privacy with the right of the public to be protected from unreasonable danger. This equation and the balance change with the facts presented. It is clear that, when the focus of the stop or search is a mobile automobile, the requirements to justify a stop or search or arrest are lessened.
For instance, the search of a home or dwelling can seldom be justified in the absence of a search warrant. Automobiles, however, when in a mobile state, may be searched by police without a warrant due to the exigent circumstances involved:
United States v. Miller, 532 F.2d 1335, 1338 (10th Cir.), cert. denied 429 U.S. 839, 97 S.Ct. 111, 50 L.Ed.2d 106 (1976).
United States v. Sigal, 500 F.2d 1118, 1121 (10th Cir.), cert. denied 419 U.S. 954, 95 S.Ct. 216, 42 L.Ed.2d 172 (1974), states: "[T]he mobility of the thing searched in the instant case is a most significant factor in determining whether [the agent's] search of [defendant's] aircraft was constitutionally permissible."
In State v. Jaso, 231 Kan. 614, Syl. p 2, 648 P.2d 1 (1982), our Supreme Court said: "One of the specifically established and well-delineated exceptions to the Fourth Amendment ban against warrantless searches is the so-called 'automobile exception' recognized in Carroll v. United States, 267 U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280 (1925)."
The so-called "automobile exception" is not limited to the search warrant issue. The mobility of the automobile and the danger it presents to the public are the bases for the "safety" stop in Vistuba.
We recognize that generally an anonymous tip does not provide the necessary probable cause to support the issuance of a search warrant. In most instances, it will not provide the necessary probable cause to support an arrest. However, these cases are not applicable in determining whether such a tip will support a Terry, or safety, stop of a mobile automobile.
The so-called "Terry" rule provides that an individual may be stopped and questioned if the police officer has specific and articulable facts to...
To continue reading
Request your trial
-
McChesney v. State
...that are involved in an issue such as this. Those factors were captured plainly by the Kansas Court of Appeals in State v. Tucker, 19 Kan.App.2d 920, 878 P.2d 855, 858 (1994), when the court This case involves the ever-changing equation used to balance the rights of an individual to be free......
-
State v. Boyea
...(emphasis added). In addition to the ruling by the New Hampshire court, Lamb also relied on the Kansas decision in State v. Tucker, 19 Kan.App.2d 920, 878 P.2d 855 (1994), which again presented the scenario of an officer responding to a radio dispatch based upon an anonymous report of errat......
-
Cottrell v. State
...is deadly, it threatens the safety of the public, and that threat must be eliminated as quickly as possible." State v. Tucker, 19 Kan.App.2d 920, 923, 878 P.2d 855, 861 (1994). "The United States Department of Transportation's National Highway Traffic Safety Administration estimates that al......
-
State v. Slater
...we note that in 1994 the Kansas Court of Appeals addressed a very similar question to the one we now consider. In State v. Tucker, 19 Kan. App.2d 920, 878 P.2d 855, rev. denied 255 Kan. 1007 (1994), the defendant was stopped based on an anonymous tip and eventually convicted of driving whil......
-
Appellate Decisions
...driver's welfare. McCaddon appealed. ISSUE: Public safety stop HELD: Under facts, this was not a valid safety stop. State v. Tucker, 19 Kan. App. 2d 920, rev. denied255 Kan. 1007 (1994), is discussed and distinguished. Reversed and remanded to grant motion to suppress. DISSENT: (Pierron, J.......