Monday, March 23, 2009

No concern for welfare

In State v. McPherson, No. 100,072 (Kan. App. March 13, 2009), the COA affirmed Judge Larson's suppression order in a Lyon County DUI prosecution. The trooper initially approached Mr. McPherson under the "community caretaking" function:
[The trooper] passed McPherson and turned around to check on the occupants of the two vehicles. He testified that his “initial purpose for turning around was the fact that they were parked in the roadway and I wanted to check on their welfare to see if they needed any help. It appeared that they might be broke down.” However, by the time [the trooper] turned around he saw McPherson backing his vehicle into the parking lot of an apartment complex.
The COA concluded that the officer initially had a basis for turning around but that any concern quickly dissipated:
The officer observed the defendant stopped in the middle of a road with another car behind him and turned around to see that everything was okay. When the officer turned around the defendant was backing into a parking lot and safely backed into a parking spot. Further, the officer knew that his initial concerns were unjustified and nothing about the defendant backing into the parking spot indicated a new safety concern or that any law were broken.
As the COA indicates, public safety stops should receive "careful scrutiny."

[Update: the state did not file a PR and the mandate issued on April 16, 2009]

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