                           NOT DESIGNATED FOR PUBLICATION

                                             No. 120,502

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           STATE OF KANSAS,
                                               Appellee,

                                                   v.

                                             TORY BLYTH,
                                              Appellant.


                                    MEMORANDUM OPINION

        Appeal from Johnson District Court; THOMAS KELLY RYAN, judge. Opinion filed June 12, 2020.
Affirmed.


        Megan L. Harrington, of Overland Park, for appellant.


        Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.


Before ARNOLD-BURGER, C.J., GREEN and BUSER, JJ.


        PER CURIAM: Tory Blyth appeals her convictions for driving under the influence
of alcohol (DUI) and related offenses. She contends the district court erred by denying
her motion to suppress incriminating evidence obtained as a result of an illegal public
safety stop. Upon our review, we conclude the law enforcement officers involved in the
traffic stop had objective, specific, and articulable facts to suspect that Blyth needed help,
or was in peril, and that the officers took appropriate action to render assistance.
Accordingly, the district court did not err in denying the motion to suppress evidence, and
the convictions are affirmed.

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                       FACTUAL AND PROCEDURAL BACKGROUND

       At about 3 a.m. on June 5, 2017, Johnson County Sheriff's Deputies Bradley
Newson and Rachel Cutshaw observed Blyth's motor vehicle driving southbound through
a rural intersection in southern Overland Park. The deputies were stopped in their patrol
vehicle at a stop sign when Blyth's vehicle traveled through the intersection. Shortly
thereafter, the deputies turned onto the roadway and went in the same direction as Blyth.


       About a 1/4 mile down the road, the deputies saw Blyth's vehicle, with its
headlights on and the engine running, stopped beside the roadway in the grass. The
deputies activated their patrol vehicle's emergency lights, stopped behind Blyth's vehicle,
and approached it. Blyth did not move her vehicle. Prior to this stop the deputies did not
observe Blyth commit any traffic violations.


       Upon approaching the vehicle, Deputy Newson went to the passenger side door,
knocked on the window, and asked Blyth if she was alright. Blyth responded she was fine
but she was lost. At this time, Deputy Newson noticed open containers of alcohol in the
center console and on the floorboards. When Deputy Cutshaw approached Blyth at the
driver's side window, she noticed that Blyth's eyes were droopy, her speech was slurred,
and there was an odor of alcohol coming from inside the vehicle. At this point, what
ostensibly began as a public safety stop transitioned into an investigatory stop.


       Based on the investigation, Blyth was charged with DUI (third offense) in
violation of K.S.A. 2016 Supp. 8-1567, driving without an ignition interlock device in
violation of K.S.A. 2016 Supp. 8-1017, driving without a valid driver's license in
violation of K.S.A. 2016 Supp. 8-235, and transporting an open container in violation of
K.S.A. 2016 Supp. 8-1599.




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       Blyth filed a motion to suppress evidence, claiming the deputies did not have a
reasonable suspicion that she had committed any traffic violation or crime to justify the
traffic stop. The State countered that the deputies did not violate the Fourth Amendment
to the United States Constitution because the evidence seized was the result of a lawful
public safety stop.


       A hearing on Blyth's motion to suppress occurred on January 26, 2018. At that
hearing, Deputy Newson testified. By agreement of the parties, prior preliminary hearing
testimony by Deputy Newson and Deputy Cutshaw was also considered by the district
court in ruling on the motion.


       After considering the evidence, the district judge denied Blyth's motion to
suppress evidence, stating:


                "I believe the facts from this case and trying to assimilate the case law, there's no
       question the safety stop, there's a basis for that. . . .
                "The Schuff case [State v. Schuff, 41 Kan. App. 2d 469, 475, 202 P.3d 743
       (2009)] is probably most closely aligned here in that specific area, a specific isolated
       area, early in the morning hours, dark out, remote, car parked off the paved road next to a
       field in a rural area, and clearly the officer was stopping the vehicle not as an
       investigative matter but as a welfare check or public safety check.
                "I believe that all of that and the approach taken by the deputy in first
       encountering Ms. Blyth was not investigative, but immediately seeing the open
       containers or the containers of liquor changed that at that point."


       Blyth preserved her objection to the district court's adverse ruling during and after
trial. Blyth was found guilty as charged following a jury trial and was sentenced to a
controlling sentence of 12 months' imprisonment and a fine of $1,750. Blyth was ordered
to serve 10 days in jail and 2,160 hours on house arrest towards that sentence, followed
by 12 months of postimprisonment supervision. Blyth appeals.

                                                        3
                     DENIAL OF THE MOTION TO SUPPRESS EVIDENCE

       On appeal, Blyth argues the district court erred in denying her motion to suppress
and that her convictions should be reversed because they were based on evidence seized
in an illegal public safety stop. Blyth presents a two-fold argument. First, she asserts the
deputies did not provide specific and articulable facts to justify a public safety stop.
Second, she argues that the use of emergency lights on the patrol vehicle constituted an
illegal seizure because no individual would feel free to leave.


       Our standard of review in considering a district court's ruling on a motion to
suppress has two components. The appellate court reviews the district court's factual
findings to determine whether they are supported by substantial competent evidence. The
ultimate legal conclusion, however, 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. State v. Neighbors, 299 Kan. 234, 240, 328 P.3d 1081 (2014).


       When the material facts supporting a district court's decision on a motion to
suppress evidence are not in dispute—as in this appeal—the ultimate question of whether
to suppress evidence is a question of law over which an appellate court has unlimited
review. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018). The State has the
burden to prove that a search and seizure was lawful. State v. Ton, 308 Kan. 564, 568,
422 P.3d 678 (2018).


       There are generally four types of encounters between individuals and police: (1)
voluntary or consensual encounters, (2) investigatory detentions, (3) public safety stops,
and (4) arrests. State v. Cleverly, 305 Kan. 598, 605, 385 P.3d 512 (2016). In this appeal
we are only concerned with whether the encounter was a valid public safety stop. As
Blyth candidly acknowledges on appeal: "There is little dispute to the facts in this case



                                              4
and there is no contention that once contact was made, the deputy was [not] permitted to
investigate further due to the open container. All focus is on the stop."


        Generally, public safety or community caretaking reasons may justify an
encounter between an individual and police even when no civil or criminal infractions
have occurred, so long as the encounter is based on objective, specific, and articulable
facts. Hanke, 307 Kan. at 827-28. A public safety stop must be "'divorced from the
detection, investigation, or acquisition of evidence relating to the violation of a criminal
statute.'" State v. Messner, 55 Kan. App. 2d 630, 631, 419 P.3d 642 (2018) (quoting City
of Topeka v. Grabauskas, 33 Kan. App. 2d 210, 214-15, 99 P.3d 1125 [2004], and Cady
v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 [1973]). "In
applying the public safety rationale to justify a police-citizen encounter, courts employ
careful scrutiny 'so the protections of the Fourth Amendment are not emasculated.'" State
v. Weaver, No. 119,956, 2019 WL 2147678, at *7 (Kan. App.) (unpublished opinion)
(quoting State v. Gonzales, 36 Kan. App. 2d 446, 455, 141 P.3d 501 [2006]), rev. denied
310 Kan. 1071 (2019).


        In evaluating the legality of a public safety stop, our courts employ a three-part
test:


        "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. Second, the officer may take appropriate action to
        render assistance if the citizen is in need of aid. 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. Third, once the officer is assured that the citizen is not in need of help or is
        not in peril, any actions beyond that constitute a seizure, implicating the protections
        provided by the Fourth Amendment to the United States Constitution. [Citations
        omitted.]" State v. Morales, 52 Kan. App. 2d 179, 182-83, 363 P.3d 1133 (2015).


                                                       5
                      SPECIFIC AND ARTICULABLE FACTS THAT AN
                    OFFICER SUSPECTS A CITIZEN NEEDS ASSISTANCE

       As stated above, a law enforcement officer must provide specific and articulable
facts that he or she suspects the citizen needs assistance. The State argues the deputies
provided a sufficient factual basis to justify a public safety stop. Upon our review, we
find substantial competent evidence to support the deputies' suspicion that Blyth needed
assistance. Considered together, the following facts are relevant:


          • The time of the encounter was 3 a.m. on a dark and foggy stretch of
              roadway without streetlights and resulting in low visibility.
          • The location of the vehicle was an isolated rural area, with hilly terrain,
              next to a field with no businesses or houses nearby.
          • Shortly before observing the vehicle off the side of the roadway with its
              headlights on and engine running, the deputies had seen the vehicle
              traveling normally down the roadway.
          • The vehicle had traveled off the two-lane roadway and stopped completely
              on an adjacent grassy area. In particular, Deputy Newson stated it was
              uncommon to see a vehicle stopped where there is no shoulder, and only
              grass on either side of the roadway.


       Under these circumstances, Deputy Newson testified that "we wanted to make
sure it wasn't an emergency situation for medical reasons or an accident, a car-deer, or
something like that." Similarly, Deputy Cutshaw testified, "I wasn't sure if she was okay
or what exactly we had at the time."


       In concluding that the deputies were justified in conducting a public safety stop,
the district court surveyed relevant Kansas caselaw, including State v. Schuff, 41 Kan.
App. 2d 469, 475-76, 202 P.3d 743 (2009), Nickelson v. Kansas Dept. of Revenue, 33

                                             6
Kan. App. 2d 359, 365, 102 P.3d 490 (2004), and State v. Morris, 276 Kan. 11, 18, 72
P.3d 570 (2003). As noted earlier, the district court found Schuff to be persuasive
precedent given the similarity of its facts to this case on appeal.


       In Schuff, an officer was dispatched to the area after a call was received from a
citizen who reported that Schuff had driven through a dead-end road and into a creek.
The responding officer located a vehicle in a remote area parked off a paved road next to
a field. The engine was not running, and the vehicle lights were turned off. Our court
found the following specific and articulable facts supported the public safety stop:


       "(1) [the officer] had been dispatched to the area specifically to check on the welfare of a
       white car which had driven off the road, (2) it was just before 1 a.m., (3) the car was in a
       remote area, and (4) the car was parked off the paved road next to a field." 41 Kan. App.
       2d at 475.


       In upholding the officer's actions as a lawful public safety stop, our court reasoned
that the officer did not have to observe an emergency or an immediate need for assistance
in order to check on the welfare of the occupants of the vehicle:


       "The fact that it was late at night and the car was in a remote area parked off the paved
       road next to a field provided sufficient justification for [the officer] to suspect that a
       citizen was in need of help or was in peril, especially in light of the phone call from a
       citizen to check on the welfare of the occupants of the car." 41 Kan. App. 2d at 476.


       Nickelson also provides helpful precedent. In Nickelson, the driver drove his
vehicle off the highway at 1 a.m. into a "'farm plug' or driveway. . . . After turning into
the driveway from Highway 24, Nickelson turned off the vehicle's lights. The weather
was cold but clear." 33 Kan. App. 2d at 360. There were no farm buildings, businesses, or
other residences in the area. The trooper testified that he did not observe any traffic
infractions, but he was concerned that Nickelson might be in distress because he had

                                                      7
turned into the "'middle of nowhere'" and turned off the vehicle lights. 33 Kan. App. 2d at
361. Upon contacting the driver, the trooper immediately smelled alcohol.


       Our court in Nickelson found that the trooper provided specific and articulable
facts to warrant a public safety stop. In part, we noted that the trooper operated under a
Kansas Highway Patrol policy that provided that a trooper should always check on the
welfare of any vehicle on the side of the highway. The trooper also testified that if
somebody has pulled off the side of the road, "he always checks on them." 33 Kan. App.
2d at 365.


       Schuff and Nickelson share many similarities with Blyth's case. The three cases
involve a vehicle inexplicably stopped beside a rural highway in a remote area, late at
night. No traffic infractions were noted in any case. The law enforcement officers
testified they were concerned about the drivers' welfare at the time of the encounters.
Similar to Nickelson, in Blyth's case, Deputy Newson testified that it was his practice to
never drive by a vehicle on the side of the road without investigating to make sure
everything was alright. Schuff and Nickelson provide valuable precedent that the deputies'
encounter with Blyth was justified as a public safety stop.


       Blyth counters that the facts of her case are "more akin" to Morales than to Schuff
and Nickelson.


       In Morales, our court found a traffic stop was not justified as a public safety stop
when an officer's reasons for making the stop were primarily investigative. In Morales,
an officer was at an intersection in a rural area at 2:30 in the morning when he spotted a
vehicle stopped on the side of the road with its headlights on. The officer testified that
because the vehicle was on the side of the highway in the early morning hours and in a
remote area, he was concerned the vehicle had broken down. The officer did not witness
the vehicle commit any traffic infractions, but he was suspicious because of the vehicle's

                                              8
location. When the officer pulled behind the vehicle, he saw two persons enter the vehicle
and saw the vehicle brake lights activate. The officer then activated his emergency lights
to contact the driver because he thought he was attempting to drive away.


         At the suppression hearing, the officer testified that he operated under the Reno
County Sheriff Department's community caretaking policy, which had two prongs: (1) to
check on vehicles that are parked alongside of the roadway or abandoned to make sure
that everything is alright or that the individual is not having mechanical problems, and (2)
if the vehicle is in a rural area, to make sure the vehicle is not stolen or part of some other
crime.


         Our court in Morales found that the officer was operating under the second,
investigatory prong rather than the first prong because the officer testified that he was
suspicious of the vehicle given its location and time due to recent irrigation thefts
occurring in the area. 52 Kan. App. 2d at 185. From Morales, our court established this
point of law: "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." 52
Kan. App. 2d 179, Syl. ¶ 4.


         Morales is distinguishable as to the relevant law and facts. Unlike Morales, in this
case there was no evidence to suggest that the deputies were engaged in the detection or
investigation of crime at the time of their encounter with Blyth. On the contrary, the
video recording of the stop shows that Deputy Newson approached the vehicle on the
passenger side, knocked on the window, and immediately asked Blyth, "Are you okay?"
Morales has no precedential application given these facts and circumstances.


         In summary, the district court did not err in its conclusion of law that the deputies
were engaged in an appropriate public safety stop rather than a criminal investigation
when they initially encountered Blyth.

                                                9
   TAKING APPROPRIATE ACTION TO RENDER ASSISTANCE IF THE CITIZEN NEEDS AID

       Under the second prong of the public safety stop test, law enforcement officers
must take appropriate action when rendering assistance to a vehicle. "[A]ppropriate
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."
(Emphasis added.) Morales, 52 Kan. App. 2d at 182-83. Blyth argues that—assuming the
officers presented sufficient facts to support a public safety stop—the activation of the
full emergency lights was a show of authority to which a reasonable person would not
feel free to leave.


       In support of her argument, Blyth cites to Morris. In Morris, officers were
investigating a possible methamphetamine lab at an apartment in Eudora when they
observed a woman leave the apartment in a vehicle. The officers followed the woman as
she drove to Lawrence where she stopped and spoke to Morris seated in pickup truck.
The vehicles left the area. The officers next located Morris' truck about two hours later,
parked with the engine running, at a jetty breaker near the Douglas County State Lake.
After backup officers arrived, the officers stopped their vehicle behind Morris' pickup
"'and activated the red lights and illuminated the back of his pickup with . . . spotlights.'"
Morris, 276 Kan. at 13. Upon their approach, the officers noticed a chemical odor
associated with the manufacture of methamphetamine coming from inside the truck. A
subsequent search of the truck revealed illegal drugs and items used in the manufacture of
methamphetamine.


       On appeal, one of Morris' suppression issues was that the police officers had
illegally seized him without reasonable suspicion when they pulled up behind his parked
vehicle and activated their emergency lights. Our Supreme Court agreed that the
encounter was not voluntary but occurred under a show of authority. 276 Kan. at 20.



                                              10
However, the Supreme Court distinguished this particular activation of emergency
equipment with other situations involving the use of emergency equipment:


                "We do note that some courts have held that activation of emergency lights is not
      a seizure because the lights may be activated for safety reasons. See United States v.
      Dockter, 58 F.3d 1284, 1287 (8th Cir. 1995) (no behavior by officer to differentiate
      encounter from one where officer approaches stranded motorist to offer assistance), and
      State v. Baldonado, 115 N.M. 106, 110, 847 P.2d 751 (1992) (manner in which police
      officers approach car after it has been stopped in response to officers' use of their
      emergency lights is controlling for purposes of determining whether stop is 'seizure' that
      would require probable cause or reasonable suspicion; trial court should ordinarily find
      'seizure' if officers approach in accusatory manner, asking for license and registration and
      account of occupants' activities, while 'seizure' should ordinarily not be found if officers
      approach in deferential manner and ask first whether occupants need help).
                "In this case, no such question arises because Morris was parked in a jetty area of
      the Douglas County State Lake where a reasonable person would not believe that the
      lights had been activated for safety reasons. There was no showing that other traffic
      necessitated activating the emergency lights. Thus, we do not reach this question." 276
      Kan. at 23-24.


      Returning to the case on appeal, the district judge expressly considered and
distinguished Morris regarding the activation of emergency lights:


                "Counsel, there's a fine line, I think, in handling of all this when not having any
      policy or any real reason for why the front lights were turned on instead of just the back
      lights.
                "Officer stated it was for officer safety in a dark, remote area on a foggy night at
      3:00 in the morning. And quite frankly, Officer Newson stated he could have activated
      the rear lights only. No specific reason why he had done that.
                "But, actually, in looking at the Dockter case, I think this is where the [Supreme]
      [C]ourt is leading us because Morris isn't exactly on point, again, because it's not a public
      safety stop in looking at that. But in Dockter, there's a finding that the lights being turned


                                                    11
       on was not a seizure under the Fourth Amendment when the officer in that case pulled
       behind the defendant's vehicle and activated his amber warning signals or warning lights.
               "And then the Court looked at the time of that encounter, the two cars were the
       only vehicles in the area. There's only one law enforcement officer, or in this case, one
       vehicle on the scene. In that case, he did not block the appellant's vehicle or in any
       manner preclude them from leaving, did not draw his weapon, and his tone of voice was
       inquisitive, which is what they go back to—he didn't come up and immediately say, give
       me your driver's license and insurance or step out of the car. It was more, can I assist you;
       is there something wrong?"


       We think the district court's analysis was sound. Morris did not involve a public
safety stop. The Supreme Court in Morris specifically noted that emergency lights may
be activated for safety purposes. Accordingly, Morris itself recognized that a seizure is
dependent upon a weighing of various factors, not simply whether the emergency lights
were activated. See State v. Thompson, 284 Kan. 763, 808, 166 P.3d 1015 (2007) (citing
Morris and stating "[c]onsidered as part of the totality of the circumstances, the presence
or absence of emergency lights may or may not be significant; emergency lights may
signify different meanings under different circumstances").


       Here, Deputy Newson testified that he activated his emergency lights for safety
purposes because it was dark and foggy with no streetlamps which resulted in low
visibility. The deputy testified that his purpose was to warn oncoming traffic traveling on
the roadway in both directions. Although Deputy Newson testified that he could have
activated only the rear lights, doing so would not allow him to activate the front lights at
the same time.


       Moreover, unlike Morris, the two-lane paved roadway was an area with traffic
rather than a remote area without traffic such as a jetty area. The video recording of the
stop shows multiple cars driving along the opposite side of the road during the time that
the deputies conducted the stop.

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       In addition, Deputy Newson testified that the patrol vehicle pulled in behind
Blyth's vehicle and did not block her from leaving. There was no command from the
deputies to halt, an attempt to control the ability to flee, or a display of a weapon during
the initial approach of the vehicle. Deputy Newson testified that had he not observed any
open containers, he would have helped Blyth with whatever problem she had, whether
she was lost or injured, and sent her on her way. And, if Blyth did not want to speak with
Deputy Newson, he would have walked away because she would have been free to go.


       Upon our review, the district court did not err in its conclusion of law that the
deputies' activation of emergency lights under the circumstances was for safety purposes
and did not constitute an illegal seizure for purposes of the Fourth Amendment.


       Finally, for the sake of completeness, we note that Blyth does not argue that the
deputies' actions violated the third prong of the public safety stop test—that once the
officer is assured that the citizen is not in need of help or is not in peril, any actions
beyond that constitute a seizure, implicating the Fourth Amendment to the United States
Constitution. See Morales, 52 Kan. App. 2d at 183.


       Affirmed.




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