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State v. Ludes9/8/2000
on that [an anonymous] tip may not be sufficient where the risk to the public is not urgent and the time exists to verify all aspects of the tip, including the caller's reliability. Reliance on this decision to justify the use of an anonymous tip under other circumstances would be unwise, and we strongly discourage any attempt to expand this decision beyond the perimeters indicated." State v. Tucker, 19 Kan. App. 2d 920, 931-32, 878 P.2d 855, rev. denied 255 Kan. 1007 (1994).
We do not find any exigent circumstances that would permit the interests of the State to override Ludes' right to be left alone. Also, we believe it somewhat disingenuous for the State to pursue an investigatory function with a fall back position that the stop was in the interest of public safety. If successful, the public safety stop would literally emasculate the constitutional protection afforded a motorist's privacy under Terry.
The trial court noted "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, this finding was contrary to the testimony and evidence presented. Corcoran followed Ludes for some time and distance without observing Ludes having difficulty operating the motorcycle or in any physical distress. The trial court's finding also miscasts the fundamental issue: Did Corcoran make the stop based upon specific and articulable facts constituting adequate grounds that Ludes was in distress? See Vistuba, 251 Kan. at 825.
Our cases, while not always requiring specific direct observation by law enforcement officers of criminal behavior, do require more than mere concern. In Vistuba, the deputy sheriff observed the defendant driving below the speed limit and hugging the curb. She then followed the defendant out of the city limits for approximately 3 miles and observed the defendant's pickup weave from the roadway to the dirt shoulder and back more than once. The deputy's observations supported a lawful safety stop. 251 Kan. at 822, 824. In Tucker, 19 Kan. App. at 921, a caller stated a driver was running other vehicles off of the roadway and gave a detailed description of the vehicle and driver. The officer who was dispatched to the scene did not observe erratic driving, but the stop was held to be a proper safety stop because the vehicle was in heavy morning traffic and the detailed information that the driver had been running vehicles off the road. 19 Kan. App. 2d at 922. This court stated it believed "where the danger to the public is clear, urgent, and immediate, the equation must be weighted in favor of protecting the public and removing the danger." 19 Kan. App. 2d at 927. In the present case, the danger to the public was neither clear, urgent, nor immediate.
Because the caller's tip was so lacking in details and Corcoran did not observe any behavior which would indicate immediate danger to Ludes or the public, it cannot be held the stop was justified under the guise of a safety stop.
For all of the foregoing reasons, we conclude the trial court's decision should be reversed and Ludes' motion to dismiss granted.
Reversed and remanded with directions.
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