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Nickelson v. Kansas Dep't of Revenue12/17/2004
Supreme Court in State v. Vistuba, 251 Kan. 821, 840 P.2d 511 (1992). In Vistuba, a deputy stopped a vehicle due to concern that the driver might be falling asleep. The driver was ultimately arrested for DUI. The driver attacked the validity of the stop, and the district court dismissed the complaint. The Kansas Supreme Court reversed the dismissal of the charge and held: "A civil or criminal infraction is not always essential to justify a vehicle stop. Safety reasons alone may justify the stop if the safety reasons are based upon specific and articulable facts." (Emphasis added.) 251 Kan. 821, Syl 1. The court ruled that the deputy stated adequate grounds to believe that the driver was falling asleep and that this reason alone justified stopping the vehicle. 251 Kan. at 824.
Thus, Kansas courts recognize the validity of a public safety stop by a law enforcement officer if the safety reasons are based upon specific and articulable facts. Nevertheless, the potential for abuse in allowing such stops must be recognized by the courts. Unless a public safety stop is based upon specific and articulable facts, the concept could "emasculate the constitutional protection afforded a motorist's privacy under Terry." State v. Ludes, 27 Kan. App. 2d 1030, 1035, 11 P.3d 72 (2000); see State v. Crawford, 30 Kan. App. 2d 977, 984, 52 P.3d 353 (2002), rev'd on other grounds 275 Kan. 492, 67 P.3d 115 (2003).
Nickelson cites State v. Morris, 276 Kan. 11, 72 P.3d 570 (2003), in asserting that Schippers' actions were unlawful. In Morris, Douglas County Sheriff's officers were investigating a possible methamphetamine lab in Eudora. Officers were conducting surveillance of an apartment when a female left the apartment and drove to Lawrence. The officers followed the female and saw her stop and briefly speak with the defendant who was driving a pickup truck. The officers attempted to follow the defendant but were unsuccessful due to traffic.
The officers later located the defendant in his pickup truck parked near the Douglas County State Lake. Officers pulled up behind the pickup, activated their red lights, and illuminated the back of the pickup with spotlights. While approaching the driver's door of the pickup to obtain identification, officers noticed a chemical odor emanating from the pickup which the officers associated with methamphetamine. The officers looked inside the vehicle and observed a Coleman camp stove and other items which could be used to manufacture methamphetamine. The officers searched the pickup and found what they described as "'a fairly complete meth lab.'" 276 Kan. at 14.
The Kansas Supreme Court ultimately suppressed the evidence, finding there was a seizure when the officers pulled up behind the defendant and activated their emergency lights. The court concluded there was no reasonable suspicion of criminal activity at the moment of the seizure and, therefore, the officers should not have approached the defendant's parked vehicle. 276 Kan. at 24-25. Morris is not helpful to Nickelson's case. Morris addressed the issue of whether the officers had reasonable suspicion of criminal activity at the time they stopped and seized the defendant's vehicle. In Morris, there was no evidence that the officers intended to stop the defendant's vehicle for public safety reasons, and the public safety issue was not even addressed by the Supreme Court in its ruling.
Here, Nickelson had pulled his vehicle off the highway at 1 a.m. on a cold night. There were no farm buildings, outbuildings, businesses, or residences in the area where Nickelson parked his vehicle. Schippers testified that he was concerned about Nickelson's welfare. More importantly, it was KHP policy for
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