KS: Stop of car pulled off of rural road in early morning hours was without RS and could not be justified under community caretaking function

A KSP officer was driving on a rural road and saw a car on the side of the road with its lights off in the early morning hours. He slowed and pulled in behind it, calling in the LPN for a check, the occupants got back in, turned on the lights and started to drive off. The officer turned on his blue lights and the car stopped. The stop was unreasonable and could not be called a “community caretaking stop,” which is part of its mission on rural roads, since the officer called in the LPN to see if it was stolen. The stop was unreasonable because there was no reasonable suspicion of any wrongdoing. State v. Morales, 2015 Kan. App. LEXIS 87 (Dec. 11, 2015):

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 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:

“‘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.”