                                          No. 113,730

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                      STATE OF KANSAS,
                                         Appellant,

                                                v.

                          CARLOS EDUARDO MARTINEZ MORALES,
                                      Appellee.


                                SYLLABUS BY THE COURT

1.
       In considering a trial court's decision on a motion to suppress, an appellate court
applies a bifurcated standard when reviewing a trial court's decision involving a motion
to suppress. The appellate court reviews the trial court's factual findings to determine
whether they are supported by substantial competent evidence. The ultimate legal
conclusion is reviewed using a de novo standard. In reviewing the factual findings, the
appellate court does not reweigh the evidence or assess the credibility of witnesses.


2.
       The State bears the burden of proof for a suppression motion. It must prove to the
trial court the lawfulness of the search and seizure.


3.
       To establish reasonableness in asserting a public safety stop exception to the
warrant requirement of the Fourth Amendment to the United States Constitution, the
State has the burden to show that the officer has objective, specific, and articulable facts
to suspect a citizen is in need of help or is in peril.



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4.
        A public safety stop is to be totally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a criminal statute.


        Appeal from Reno District Court; RANDALL H. MCEWEN, judge. Opinion filed December 11,
2015. Affirmed.


        Andrew R. Davidson, assistant district attorney, Keith Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellant.


        Andrew L. Oswald, of Hutchinson, for appellee.


Before MALONE, C.J., GREEN and POWELL, JJ.


        GREEN, J.: This case presents the question of whether, under the "community
caretaking function" exception to the warrant requirement of the Fourth Amendment to
the United States Constitution, an officer was justified in activating his emergency lights
and stopping a driver as he was attempting to drive away. The State charged Carlos
Eduardo Martinez Morales with driving under the influence of alcohol (DUI). Morales
moved to suppress all evidence based on the stop, asserting that the stop of his vehicle
had been unlawful. The State resisted the motion to suppress, maintaining that the stop of
Morales' vehicle was justified under the community caretaking exception to the warrant
requirement of the Fourth Amendment. The trial court rejected the State's position, ruling
that the arresting officer did not have any specific and articulable facts that would justify
a bona fide community caretaking stop.


        We conclude that under the circumstances later discussed, the community
caretaking exception is inapplicable and the seizure of Morales' vehicle was
impermissible. Accordingly, we affirm the judgment of the trial court.


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                        FACTUAL AND PROCEDURAL BACKGROUND


       On November 22, 2014, Officer Travis Vogt of the Reno County Sheriff's Office
was patrolling K-96 highway in Reno County. At approximately 2:34 a.m., he was at the
intersection of K-96 and Victory Road, a rural area. Officer Vogt spotted a vehicle
stopped on the north side of K-96 with its lights on. He later testified that because the
vehicle was off the highway in the early morning hour, in a remote rural area, he was
concerned that the vehicle may have broken down.


       It is disputed whether the occupants of the vehicle were in or out of the vehicle
when Vogt spotted it. Officer Vogt testified that as he approached the vehicle he saw two
individuals outside of the vehicle; as he came closer, they got into the vehicle. Morales
testified that he and his passenger never got out of the vehicle. As Officer Vogt drove
closer, he saw the vehicle's brake lights activate; he then activated his emergency lights to
make contact with the driver. Officer Vogt did not witness any traffic violations or any
other infractions. He testified that he was suspicious because of the vehicle's location.


       Officer Vogt testified that as he pulled in behind the vehicle, he had the dispatcher
run a check of the license tag. He wanted to determine if he would get any "hits" or
"alerts" concerning the vehicle. Officer Vogt further testified that the dispatcher would
notify him immediately if there were any hits or alerts concerning the vehicle.


       Officer Vogt testified that he got out of his vehicle, approached Morales' vehicle,
and asked the driver if "everything was okay." Officer Vogt testified that he immediately
smelled the odor of alcohol coming from the interior of the vehicle. Vogt also testified
that when he was next to Morales' vehicle, he noticed that the vehicle's engine was
running and the vehicle's engine was in the neutral position. Officer Vogt further noticed
that the driver, Morales, who speaks Spanish, had bloodshot and watery eyes. Morales


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failed one field sobriety test but passed a second test. Morales then took and failed a
preliminary blood test at the scene.


       The State charged Morales with DUI. Morales moved to suppress all evidence
obtained as a result of the stop, maintaining that the stop of his vehicle had been
improper. The State responded that the stop of Morales' vehicle was justified under the
community caretaking exception to the warrant requirement of the Fourth Amendment.


       The trial judge heard evidence and arguments on the matter and asked for
supplemental briefing before he decided the case. The trial judge later issued an order
granting Morales' motion to suppress evidence, declaring: "We do not have any concise,
specific and articulable [facts] as to why a stop needed to be made in this instance."


Standard of Review


       Our Supreme Court has adopted a framework of reviewing a trial court's decision
on a motion to suppress. In State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014), the
court set forth the following standard of review: An appellate court applies a bifurcated
standard when reviewing a trial court's decision involving a motion to suppress. The
appellate court reviews the trial court's factual findings to determine whether they are
supported by substantial competent evidence. The ultimate legal conclusion is reviewed
using a de novo standard. In reviewing the factual findings, the appellate court does not
reweigh the evidence or assess the credibility of witnesses. The State bears the burden of
proof for a suppression motion. It must prove to the trial court the lawfulness of the
search and seizure.


       "There are four types of police-citizen encounters: investigatory stops, voluntary
encounters, public safety stops, and arrests." Nickelson v. Kansas Dept. of Revenue, 33


                                              4
Kan. App. 2d 359, 362, 102 P.3d 490 (2004). In the case at hand, the State argues solely
that Officer Vogt's stop of Morales was a valid public safety stop.


       On the other hand, Morales argues that this stop was an investigatory stop cloaked
as a public safety stop. Morales maintains that allowing investigatory stops to be cloaked
in the guise of public safety stops will emasculate the constitutional protection provided
to motorists.


Public Safety Stop


       Public safety stops were first recognized by the Kansas Supreme Court in State v.
Vistuba, 251 Kan. 821, 840 P.2d 511 (1992), disapproved in part on other grounds by
State v. Field, 252 Kan. 657, 847 P.2d 1280 (1993). The Vistuba court 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."
251 Kan. 821, Syl. ¶ 1.


       The legality of a public safety stop can be evaluated in three steps. First, the
officer has a right to stop and investigate as long as there are objective, specific, and
articulable facts from which a law enforcement officer would suspect that a citizen is in
need of help or is in peril. State v. Gonzales, 36 Kan. App. 2d 446, Syl. ¶ 3, 141 P.3d 501
(2006). Second, the officer may take appropriate action to render assistance if the citizen
is in need of aid. 36 Kan. App. 2d 446, Syl. ¶ 3. In order to render this assistance,
appropriate action has been held to include an officer blocking a vehicle's entrance back
onto the road and an officer activating his emergency lights to make initial contact with
the vehicle. Nickelson, 33 Kan. App. 2d at 361 (entrance to road blocked by officer);
State v. Schuff, 41 Kan. App. 2d 469, 471, 202 P.3d 743 (2009), rev. denied 289 Kan.
1284 (2010) (emergency lights activated to make initial contact with the vehicle). Third,
once the officer is assured that the citizen is not in need of help or is not in peril, any
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actions beyond that constitute a seizure, implicating the protections provided by the
Fourth Amendment to the United States Constitution. Gonzales, 36 Kan. App. 2d 446,
Syl. ¶ 3.


       To justify a public safety stop, the State has the burden to show that the officer has
"objective, specific, and articulable facts to suspect that a citizen is in need of help or is in
peril." State v. Marx, 289 Kan. 657, 662, 215 P.3d 601 (2009). Moreover, public safety
stops are to be "'totally divorced from the detection, investigation, or acquisition of
evidence relating to the violation of a criminal statute.'" City of Topeka v. Grabauskas, 33
Kan. App. 2d 210, 214-15, 99 P.3d 1125 (2004) (quoting Cady v. Dombroski, 413 U.S.
433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 [1973]). In stating that there are limits to an
officer's authority under the community caretaking function, this court declared: "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 [v.
Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)].'" Nickelson, 33 Kan. App. 2d
at 364 (quoting State v. Ludes, 27 Kan. App. 2d 1030, 1035, 11 P.3d 72, rev. denied 270
Kan. 902 [2000]).


       Furthermore, the Gonzales court held that public safety stops are not to be used for
investigative purposes. 36 Kan. App. 2d at 457. Finally, our Supreme Court declared that
"permitting the public safety rationale to serve as a pretext for an investigative detention
runs the risk of emasculating our Fourth Amendment protection." Marx, 289 Kan. at 663.


Bona Fide Community Caretaking Activity


       Next, we turn to the question whether Officer Vogt's conduct constituted a bona
fide community caretaking activity.




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       The community caretaking exception has its roots in the United States Supreme
Court's decision in Cady v. Dombrowski, 413 U.S. at 441. This case involved a
warrantless search of the trunk of a damaged car that had been towed from the scene of
an accident. The intoxicated driver, a Chicago police officer, was required to carry his
service revolver at all times, but no revolver was found on the officer. Because local law
enforcement believed the revolver might be in the trunk of the towed car, they searched
the trunk to protect the public from the possibility of the handgun falling into someone
else's hands. Although the local police did not find the handgun during the search of the
trunk, they retrieved other evidence that was later used to convict the driver of first-
degree murder.


       The Supreme Court held that the warrantless search in Cady was lawful as a
community "caretaking" function based on "concern for the safety of the general public
who might be endangered if an intruder removed a revolver from the trunk of the
vehicle." 413 U.S. at 447.


       Returning to the facts of this case, we note that Officer Vogt testified that when he
saw the headlights on Morales' vehicle, he was concerned that the vehicle may have
broken down. Officer Vogt also testified that when he pulled in behind Morales' vehicle,
he noticed that the driver had activated the brake lights of the vehicle. Officer Vogt
further testified that because he believed the driver was attempting to drive away, Vogt
activated his emergency lights.


       Officer Vogt acknowledged that Morales' vehicle was appropriately parked on the
county road, with the headlights on, as he drove up behind Morales' vehicle. Moreover,
Officer Vogt testified that he never observed Morales commit any traffic violations
before making the stop. Thus, it seems Officer Vogt did not see anything to indicate that
the driver of the vehicle was acting in such a manner as to pose a danger to the public.


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       During the suppression hearing, Officer Vogt was asked, under direct
examination, about the Reno County Sheriff Department's formal community caretaking
policy concerning vehicles observed in rural areas late at night:


               "[Prosecutor]: What is the Reno County Sheriff Department policy on vehicles
       you find basically in the middle of a rural area with no one around that you see stopped at
       2:30 in the morning?
               "[Vogt]: It's, it's our, it's our department's job to check on any vehicles that are
       either parked along side of the roadway, abandoned, basically to check to make sure if
       they are occupied everything is okay, they're not having mechanical problems. If a
       vehicle is out in this area, you know, out in, in a rural area like that, to make sure they're
       not stolen or, or a part of some other crime that we would get a hit off of by running the
       tag, something like that."


       Still under direct examination, Officer Vogt was asked what his actions were when
he pulled in behind Morales' vehicle:


               "[Prosecutor]: When you ran up on the vehicle or pulled up on it, did you run its
       tag at that point in time before you got out of your car?
               "[Vogt]: I advised dispatch of the tag but then I didn't run it myself. I advised
       dispatch of my location and the tag number and at that point if there would have been
       any, any, what I'm going to say hits or, or alerts on it our dispatch would have notified me
       right away."


       Based on Officer Vogt's testimony concerning the sheriff department's formal
policy on community caretaking function involving vehicles, it is readily apparent that it
is composed of two prongs. The first prong deals with vehicles parked along the side of
the road or abandoned. The second prong is concerned with vehicles located in rural
areas either parked or abandoned.




                                                      8
       In addition, Officer Vogt testified that he was suspicious of Morales' vehicle
because it was parked in a rural area at 2:30 in the morning. When asked on cross-
examination about what suspicions he had, he stated, "[W]ho knows what could be going
on. If there was irrigation—we have a lot of irrigation thefts out in the rural county. If,
they could have been out committing a theft, irrigation equipment."


       The State relies heavily on our Nickelson holding. The State maintains that the
facts in this case are similar to those in Nickelson. We disagree. The facts in this case are
far different from those in Nickelson. Unlike the officer in Nickelson, Officer Vogt
articulated only three reasons to support his belief that Morales may have needed
assistance: (1) Morales' vehicle was parked on the side of the road, although it was
properly parked; (2) it was very early in the morning; and (3) Morales' vehicle was
located in a rural area.


       Yet, the officer in Nickelson articulated a number of objective and specific reasons
to support his belief that the driver in the car may have been in need of help: (1) the
driver had turned into the "middle of nowhere" and turned off his vehicle's lights; (2)
there were no farm buildings, outbuildings, businesses, or residences in the area; (3) it
was 1 a.m.; (4) it was the Kansas Highway Patrol policy to check on the welfare of
stranded motorists; and (5) the officer's supervisors had given him instructions to stop
and assist people on the highways. 33 Kan. App. 2d at 360-61. In this case, Morales'
lights were on when Officer Vogt pulled in behind Morales' vehicle. Moreover, any
concern that Officer Vogt may have had initially about Morales' vehicle breaking down
would have evaporated when Morales attempted to drive his vehicle away.


       Most important, the Kansas Highway Patrol's community caretaking policy under
Nickelson was limited to checking on the welfare of any stranded motorist. Moreover, the
officer in Nickelson had been instructed to stop and assist people on the highways. Unlike
in Nickelson, the sheriff department's community caretaking policy in this case contained

                                              9
an expressed investigatory component. Based on Officer Vogt's testimony, the sheriff
department's community caretaking policy requires its officers to check on any vehicle
that is either parked along the side of the road or abandoned for public safety. Moreover,
if a vehicle is located in a rural area, as Morales' vehicle was, officers are to make sure
that the vehicle is not stolen or a part of some other crime that the officers might uncover
by running the vehicle's license tag.


       Because Morales' vehicle was located in a rural area at 2:30 in the morning, it was
readily apparent that Officer Vogt was operating under the second prong of the sheriff
department's formal community caretaking policy: to make sure that Morales' vehicle was
not stolen or was not a part of some other criminal activity. This position is supported by
the fact that Officer Vogt had the dispatcher run Morales' license plate tag immediately
upon pulling in behind Morales' vehicle. Officer Vogt asking the dispatcher to run a
check on Morales' license tag is inconsistent with a safety stop. In fact, the Iowa Supreme
Court in State v. Kurth, 813 N.W.2d 270, 279 (2012), stated that an officer running a
license plate before making a public safety stop is "inconsistent with a public safety
purpose but is certainly consistent with an investigative purpose."


       As a result, the sheriff department's community caretaking policy is not "'totally
divorced from the detection, investigation, or acquisition of evidence relating to the
violation of a criminal statute.'" Grabauskas, 33 Kan. App. 2d at 214-15 (quoting Cady,
413 U.S. at 441). In fact, Officer Vogt testified that the detection of crime was the
principle reason for running a license plate tag in a rural area. Obviously, this policy
violates the legal principles of Grabauskas, Gonzales, and Marx.


       The fallacy of letting officers masquerade an investigatory stop as a public safety
stop is perhaps better answered by logic than by legal precedent. An example of this is a
story told of President Abraham Lincoln during his days as a trial lawyer. Lincoln is
credited with cross-examining a witness in the following way:

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               "'How many legs does a horse have?'
               "'Four,' said the witness.
               "'Right', said Abe.
               "'Now, if you call the tail a leg, how many legs does a horse have?'
               "'Five,' answered the witness.
               "'Nope,' said Abe, 'callin' a tail a leg don't make it a leg.'" Lamon v. McDonnell
       Douglas Corp., 19 Wash. App. 515, 534-35, 576 P.2d 426 (1978) (Andersen, J.,
       dissenting).


       Thus, officers calling a stop a public safety stop does not make it so, especially
when there is an expressed investigatory component to their stated community caretaking
policy. The trial court determined as much when it declared the following: "We do not
have any concise, specific and articulable [facts] as to why a stop needed to be made in
this instance."


       Indeed, Nickelson, the case which the State relies on so heavily, did not have an
expressed investigatory component to its community caretaking policy, nor did the
Nickelson's community caretaking policy require its officers to run a check of the license
tag number of the vehicle involved in the public safety stop. By contrast in this case, the
State totally ignores that the sheriff department's community caretaking policy had an
expressed investigatory component which was used as a basis to stop Morales' vehicle.
As a result, Nickelson is simply not analogous to the present case.


       Thus, the Nickelson holding will not bear nearly the weight of reliance which the
State placed upon it. Even based upon a solely objective evaluation of the evidence, we
cannot sustain Officer Vogt's seizure of Morales after Morales prepared to drive his
vehicle away as a bona fide community caretaking function within the meaning of our
legal precedents. Thus, we affirm the trial court's decision.


       Affirmed.

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