 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Ludes9/8/2000
Appeal from Harvey District Court; RICHARD B. WALKER, judge.
Reversed and remanded with directions.
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 st
Page 1 2 3 4 Kansas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|