Opinion
No. 108,253.
2013-06-7
STATE of Kansas, Appellee, v. Scott Edward TILSON, Appellant.
Appeal from Johnson District Court; Peter V. Ruddick, Judge. Darrell Smith, of Olathe, for appellant. Clayton J. Perkins, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Peter V. Ruddick, Judge.
Darrell Smith, of Olathe, for appellant. Clayton J. Perkins, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Scott Edward Tilson contends the police did not make a lawful public safety stop and therefore this court should overturn his convictions because the trial court illegally admitted evidence discovered during and after his stop. In order to justify a public safety stop, an officer must have objective, specific, and articulable facts to suspect a citizen is in need of help or is in peril. Here, the officer stopped Tilson at around 3:30 a.m. walking about 1 1/2 miles from his overturned car. A friend of Tilson had already reported to the police that Tilson had told her he was going to try to harm or kill himself. After the officer stopped Tilson, he noticed scratches on Tilson's hands and dried blood on his clothing. We uphold Tilson's convictions because all of this ample evidence was available to the officer when he made the stop. This was not an investigatory stop disguised as a public safety stop. Everything occurred here early one morning.
In early March 2011, police officers in Overland Park were dispatched to the scene of a one-vehicle accident. A car had collided with the concrete barrier and had overturned onto the roadway. The car was registered to Scott Tilson. The vehicle was unoccupied, so officers began looking for the driver.
Sometime between 3:30 and 4 a.m., Officer Lucas Sitton received a report about the accident. Sitton was given the name “Scott Tilson .” Sitton was also given information that a friend of Tilson—a woman named Brittany—had previously called the dispatcher to report that Tilson told her he was going to try to harm or kill himself. With this information, Sitton began searching the area of the accident. Sitton had no physical description of Tilson. Sitton's primary concern was to find someone who was potentially trying to hurt himself. Sitton said he was not investigating a crime and his “primary goal” was to check on Tilson's welfare.
Law enforcement officers were able to detect a signal from Tilson's cell phone in an area approximately 1 to 1 1/2 miles from Tilson's wrecked vehicle. When Sitton began searching that area, he saw an individual walking near an intersection. Sitton got out of his law enforcement vehicle and yelled at the person—calling out the name “Scott.” The person turned around, looked at Sitton, and continued walking. Sitton then drove up to the person and asked him to stop. Once Sitton made contact with the person, he noticed he had scratches on his hands and dried blood on his clothing. The person was later identified as Tilson.
After conducting an investigation, the State charged Tilson with DUI, obstruction of official duty, driving while suspended, leaving the scene of an accident, and refusal to take a preliminary breath test.
Before Tilson's trial, he moved to suppress the evidence against him, arguing Sitton did not conduct a lawful public safety stop. The district court denied Tilson's motion, holding it was reasonable for Sitton to stop Tilson in light of all the facts he had at the time of the stop. A jury found Tilson guilty of driving while suspended, leaving the scene of an accident, and refusal to take a preliminary breath test.
Maintaining this was not a lawful public safety stop, Tilson appeals his convictions. This was a lawful public safety stop.
Kansas courts recognize four types of encounters between police and citizens: voluntary encounters, investigatory stops, public safety stops, and arrests. State v. Gonzales, 36 Kan.App.2d 446, 451, 141 P.3d 501 (2006). To justify a public safety stop, an officer must have objective, specific, and articulable facts to suspect a citizen is in need of help or is in peril. State v. Marx, 289 Kan. 657, 662, 215 P.3d 601 (2009). Public safety stops are justified, in part, by some danger to the public. State v. Tucker, 19 Kan.App.2d 920, 925, 878 P.2d 855,rev. denied 255 Kan. 1007 (1994). However, the risk to the public that would occur if an immediate stop is not conducted must be weighed against the right of an individual to be free from stops. “[W]here 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.
Public safety stops must be “totally divorced” from the detection, investigation, or acquisition of evidence relating to the violation of criminal statutes. City of Topeka v. Grabauskas, 33 Kan.App.2d 210, 214–15, 99 P.3d 1125 (2004); Gonzales, 36 Kan.App.2d at 457. While stops for traffic violations may be pretextual in nature, public safety stops are justified only if an officer is primarily motivated by public safety concerns. Marx, 289 Kan. at 663. Permitting the public safety rationale to serve as a pretext for investigative detention runs the risk of emasculating our Fourth Amendment protections.
When reviewing the denial of a motion to suppress evidence, this court reviews the factual findings underlying the district court's decision for substantial competent evidence; the court then reviews the ultimate legal conclusion drawn from those facts de novo. This court does not reweigh the evidence. State v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009).
Here, Officer Sitton had information suggesting Tilson had been involved in a car accident—as his wrecked vehicle had been discovered by other officers. Officer Sitton also had information that Tilson's friend had reported Tilson told her he was going to hurt himself. However, Sitton had no physical description of Tilson. And when Sitton saw Tilson walking down the road, Sitton was walking in a normal manner and did not appear to be suicidal or injured. The question here is whether Sitton conducted a lawful public safety stop under these facts.
When Sitton saw Tilson, he had no information that directly tied the person walking alongside the road to “Scott Tilson,” or to Tilson's wrecked car, or to Brittany's tip. Nevertheless, Tilson's cell phone signal had been detected in the area where he was walking. And Sitton testified there was no other foot traffic in the area, as it was approximately 3 a.m. Tilson was found a mere 1 to 1 1/2 miles from the location of the wrecked vehicle. These circumstances are similar to those in City of Topeka v. Grabauskas, where the court determined there was a lawful public safety stop when officers approached two girls to determine if they were runaways even though the girls did not match the description of the reported runaways. At this point any intrusion into Tilson's privacy was minimal.
In arguing the stop was not lawful, Tilson likens his case to State v. McCaddon, 39 Kan.App.2d 839, 185 P.3d 309 (2008), and State v. Ludes, 27 Kan.App.2d 1030, 11 P.3d 72,rev. denied 270 Kan. 902 (2000), two cases where the court held there was not a lawful public safety stop. But Tilson's case differs from McCaddon and Ludes in several respects.
First, there is no evidence here that Sitton's primary reason for stopping Tilson was for investigative purposes. Sitton testified he stopped Tilson solely to check on him and make sure he was mentally stable. Sitton believed Tilson might have been at risk of committing suicide and said his “primary goal” was to check on Tilson's welfare. Tilson's wrecked vehicle had just been discovered by law enforcement.
Second, in McCaddon and Ludes, there was no evidence the stopped person had actually been injured or needed assistance. But here, Tilson's wrecked vehicle had been discovered and Tilson was not inside. Although Sitton testified Tilson was not walking in a funny or uncoordinated manner and he did not appear suicidal, it was still reasonable for Sitton to believe Tilson might need some sort of assistance.
Third, Brittany's tip was not anonymous. Our Supreme Court has recognized that an identified informant's tip is “high on the reliability scale” and weighs in favor of the reliability and veracity of the informant because he or she is exposed to criminal and civil prosecution if the tip is false. State v. Slater, 267 Kan. 694, 700–71, 986 P.2d 1038 (1999). Here, although Brittany did not provide a physical description of Tilson or provide much detail, her report was essentially corroborated by Tilson's wrecked vehicle.
Finally, unlike the circumstances found in McCaddon and Ludes, this case involves more than a citizen's report. The officers in this case directly observed Tilson's wrecked vehicle. Even though nothing about the situation suggested an immediate danger to the public, this court has found such a finding unnecessary. In City of Salina v. Ragnoni, 42 Kan.App.2d 405, 406, 409–10, 213 P.3d 441 (2009), rev. denied 290 Kan. 1092 (2010), this court held that an officer made a lawful public safety stop where an ex-wife reported Ragnoni was suicidal and the officer stopped him 3 days later, noting it is unnecessary for an officer to observe an emergency or perceive an immediate need for assistance.
Because of Tilson's wrecked vehicle and Brittany's tip, we hold Officer Sitton acted lawfully in stopping Tilson. The district court did not err when it denied Tilson's motion to suppress.
Affirmed.