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Nickelson v. Kansas Dep't of Revenue12/17/2004
kelson timely appeals.
Scope of Review
The district court's review in driver's license suspension cases is governed by K.S.A. 8-259(a), which provides in pertinent part:
"The action for review shall be by trial de novo to the court. The court shall take testimony, examine the facts of the case and determine whether the petitioner is entitled to driving privileges or whether the petitioner's driving privileges are subject to suspension, cancellation or revocation under the provisions of this act."
An appellate court applies the substantial competent evidence standard when reviewing a district court's ruling in a driver's license suspension case. Zurawski v. Kansas Dept. of Revenue, 18 Kan. App. 2d 325, 328, 851 P.2d 1385, rev. denied, 253 Kan. 864 (1993). "Substantial evidence is that which possess both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. [Citation omitted.]" U.S.D. No. 233 v. Kansas Ass'n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003).
Public Safety Stop
Nickelson initially claims that Schippers lacked any lawful grounds to approach Nickelson's vehicle. As a result, Nickelson claims that Schippers lacked reasonable grounds to believe that Nickelson had been operating a vehicle while impaired by alcohol and, therefore, Schippers' request that Nickelson submit to additional chemical testing was illegitimate. Whether Nickelson's argument has merit depends upon the nature of the initial encounter between Schippers and Nickelson.
There are four types of police-citizen encounters: investigatory stops, voluntary encounters, public safety stops, and arrests. The most common police-citizen encounter is probably the investigatory stop or Terry stop. A law enforcement officer, without making an arrest, may stop any person in a public place whom such officer reasonably suspects is committing, has committed, or is about to commit a crime. When a law enforcement officer has stopped a person for questioning based upon a suspicion of criminal activity, the officer may frisk the person for firearms or other dangerous weapons if required for personal safety of the officer. Terry v. Ohio, 392 U.S. 1, 24, 30-31, 20 L.Ed. 2d 889, 88 S.Ct. 1868 (1968). The United States Supreme Court's ruling in Terry is codified at K.S.A. 22-2402. Here, the State does not assert that Schippers had any reasonable suspicion of criminal activity in order to justify approaching Nickelson's vehicle.
Kansas courts also recognize the existence of lawful voluntary encounters between police and citizens. "An officer who does not have reasonable suspicion to justify a Terry stop may, however, approach an individual on the street for investigative purposes. [Citations omitted.] The officer can ask the individual's name and request identification but cannot force the individual to answer. The individual is free to leave." State v. McKeown, 249 Kan. 506, 509, 819 P.2d 644 (1991). Voluntary encounters are not considered seizures and are not covered by the Fourth Amendment to the United States Constitution. State v. Crowder, 20 Kan. App. 2d 117, 119, 887 P.2d 698 (1994). Since we do not believe a reasonable person in Nickelson's position would have felt free to leave after being approached by Schippers, the contact between Schippers and Nickelson cannot be justified as a voluntary encounter.
The State's primary argument, which was adopted by the district court, is that the initial encounter between Schippers and Nickelson was justified as a public safety stop or public welfare stop. The concept of a lawful safety stop was first recognized by the Kansas
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