Saturday, June 28, 2014

No showing to support safety stop

Rick Kittel won in State v. Acosta, No. 109,031 (Kan. App. June 6, 2014), obtaining a suppression order in a Johnson County drug prosecution.  The state had argued that an officer's warrantless contact with a passenger was justified as a "safety stop." The COA disagreed:
Here, the State before the district court at the suppression hearing argued this was a “safety stop.” Thus, the State is bound by what it argued before the district court and cannot present new issues on appeal. It is hard to classify this “stop” as a “stop” since Acosta and his car were already stopped with the hood up when Domes arrived. The record reflects Domes made contact with the driver, Acosta, and determined he needed a jump start, something Domes could not assist with, and clearly from the record Acosta was not in any danger. After talking with Acosta and realizing he could provide no help, Domes decided to contact the passenger by having her open the door to the car for “officer safety.” Prior to contact with the passenger, Domes had already determined there was nothing he could do to render aid to Acosta and his car with a dead battery. At this point, there is no evidence the passenger was in need of help or in peril, and this court should be wary of “permitting the public safety rationale to serve as a pretext for an investigative detention.” State v. Marx, 289 Kan. 657, 215 P.3d 601 (2009). Given the evidence at the suppression hearing, at which Domes was the only witness, the purpose for the stop or encounter ended once Domes determined he could not render any assistance to Acosta and neither Acosta nor Sandoval was in peril.
Because the officer had not articulated a basis for a safety stop, the COA reversed:
Domes testified without any additional explanation that he wanted to talk to Sandoval “for my safety.” Domes did not explain what about the circumstances caused him to be concerned for his safety or why Sandoval might pose some potential threat. Dornes' unexplained conclusion is insufficient.
Domes may have thought he was initially investigating a possible DUI, but the State failed to fully develop that issue at the suppression hearing and only argued this was a “safety stop.”
[Update: the state filed a PR on July 1, 2014.]
[Further update: the KSC denied the state's PR and the mandate issued on November 3, 2014]

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