Public safety stop comes up short

Carl Folsom won in State v. McCaddon, No. 96,051 (Kan. App. June 13, 2008), reversing a Saline County DUI conviction. The COA held that the basis for concern when investigating an anonomyous tip regarding a domestic dispute was insufficient to justify a public safety stop:

Public safety stops fall under the police's community caretaking function, which expands beyond the police's role in investigating crime. Public safety stops are justified by the mobility of the automobile and the danger to the public. State v. Tucker, 19 Kan. App. 2d 920, 925, 878 P.2d 855 (1994). In analyzing the validity of a stop, the risks 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 such 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."

. . . .

In contrast to Tucker, where there was an immediate danger to the motoring public, the tip here raises no concern for other motorists and little concern for the driver of the Neon. The district court failed to consider the risk of harm involved if Huen had not immediately stopped the vehicle and had instead waited until more information was available. As stated in Tucker, the reliability of information provided by the tip must be considered in the totality of the circumstances, along with the risk of harm to the public. In this case, neither the amount of information provided by the tip nor the risk of harm to the public tips the scales in favor of a valid public safety stop. The caller did not say that anyone was injured. The officer did not observe any erratic driving that would indicate the driver of the vehicle might be injured. Huen testified he immediately pulled over the vehicle without observing it first to see if it appeared the driver was in distress. There was no testimony that traffic was heavy at the time, which might indicate a risk of danger to the public; also, the time at night would indicate that there probably was not heavy traffic posing a great risk to the public.

Further, Officer Huen did not state that the caller actually saw or heard the argument. On cross-examination Huen stated that the caller "reported hearing a male and a female arguing out in the yard"; the caller never stated there were any injuries or that anyone was harmed in the disturbance. Huen testified that the fact that the caller said someone was going to the hospital was his only indication that someone was injured.

Following up, the information provided by the anonymous caller was only partially verified by Huen before he made the stop. When Huen arrived at the location, he did not see anyone in a yard, and he did not speak to anyone regarding a disturbance. While he was at the location looking for the disturbance, he saw a car matching the description travel through an intersection within half a block of him. However, Huen did not verify that the driver was a male before initiating the stop. McCaddon argues that because Huen did not see the vehicle until approximately 10 minutes had passed since the caller stated the vehicle was leaving for the hospital, Huen should have assumed the vehicle would have been more than half a block away. The hospital was approximately 4 blocks from the location of the alleged disturbance. It was late at night, but Huen did not testify about the amount of traffic in the area at the time.

Finally, it does not appear that Officer Huen stopped McCaddon's vehicle primarily for public safety reasons. Huen's first reason for stopping the vehicle was to investigate the disturbance call.

Here is coverage on FourthAmendment.com.

[Update: the state attempted to file a PR, but it was not delivered to the clerk's office until a day after the 30-day deadline, making it late. As a result, the KSC refused to accept the PR and the mandate issued on August 6, 2008].