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State v. Ludes9/8/2000
op 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):
" 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 t
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