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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 
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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 firstdegree 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.
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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 crossexamination 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 
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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.