State v. Tucker

878 P.2d 855, 19 Kan. App. 2d 920, 1994 Kan. App. LEXIS 85
CourtCourt of Appeals of Kansas
DecidedAugust 5, 1994
Docket70,949
StatusPublished
Cited by47 cases

This text of 878 P.2d 855 (State v. Tucker) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tucker, 878 P.2d 855, 19 Kan. App. 2d 920, 1994 Kan. App. LEXIS 85 (kanctapp 1994).

Opinions

Lewis, J.:

A vehicle being driven by the defendant, Joseph D. Tucker, was stopped by Reno County law enforcement officers to investigate a complaint of erratic driving. As a result of the stop, the defendant was charged with and convicted of driving while under the influence (DUI). He appeals that conviction, arguing that the police stop of his vehicle was a violation of his Fourth Amendment rights. Thus, he claims, the evidence gained as a result of that stop was inadmissible.

We affirm.

FACTUAL BACKGROUND

Officer Donald W. Evans is a Reno County deputy sheriff. On the morning of the defendant’s arrest, he was working a 7:00 a.m. to 3:00 p.m. shift. At approximately 9:50 a.m., he was advised by his dispatcher of a possible drunk driver. The original report had been given to the dispatcher by an anonymous caller, who was not identified until after the arrest was made. The caller advised that he had observed a white male driving a red 1960’s model Ford pickup southbound on K-61 Highway from Inman. The caller reported the driver appeared to be drunk and was running other vehicles off of the roadway.

[922]*922Upon receiving this report, Officer Evans headed north on K-61. He soon observed a red 1960’s model Ford pickup heading southbound on K-61 driven by a white male. The location of the pickup, the description of the pickup, and the description ofthe driver were all consistent with the information provided by the anonymous informant.

Officer Evans, and Sergeant Kellogg in another car,. followed the red pickup for a short distance and, during that time, concede they did not observe-any erratic driving.

Despite the lack of observing erratic driving, Officer Evans stopped the vehicle to investigate the anonymous tip-received-a short time earlier. Officer Evans testified that the morning traffic was fairly heavy and; because of the report of a possibly intoxicated driver who had run other vehicles off the road, he stopped the vehicle in the interest of public safety.

After stopping the vehicle, the officer carné face-to-face with the defendant. The officer observed that the defendant’s eyes were bloodshot and asked him to take certain field sobriety tests. In the opinion of Officer Evans, the defendant failed the'field sobriety tests, and he was arrested for DUI. The defendant was also asked to submit to a breath test, which returned an alcohol concentration reading of .094. This was above the presumptive DUI level of .08 in effect on the date in question. See K.S.A. 1993 Supp. 8-1567(a).

Based on the evidence outlined above, the defendant was convicted of DUI, sentenced to 90 days in jail, fined $500, and assessed $37 in court costs. The defendant was then placed on one year’s probation, sentenced to five days "with House Arrest, Inc., and required to attend certain alcohol information and counseling programs.

WAS THE STOP LAWFUL?

The defendant argues that the anonymous- tip which prompted the stop of his vehicle did not provide specific and articulable facts on which to base a safety stop of the vehicle pursuant to Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).

In approaching this issue, it is important to note that we are dealing here only with a safety stop of a vehicle. The facts include [923]*923the mobility of an automobile and the extreme danger posed to the public by a drunken driver. Officer Evans, in stopping the defendant, was responding to an anonymous tip which indicated that the defendant was drunk and had been running other drivers off of the road. The propriety of Officer Evans’ actions in stopping the defendant’s vehicle must be considered in this context.

The testimony indicates that this vehicle was stopped for reasons of public safety. In Kansas, such a stop has been determined to be valid. In State v. Vistuba, 251 Kan. 821, 824, 840 P.2d 511 (1992), Justice Six, writing for a unanimous Supreme Court, stated: “We hold that 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. State v. Fuller, 556 A.2d 224 (Me. 1989).”

The question then becomes whether the stop in this case was based upon specific and articulable facts. The defendant argues that such a standard cannot be reached on facts provided by an anonymous caller.

This case involves the ever-changing equation used to balance the lights of an individual to be free from unwarranted intrusions of his or her freedom of movement and right to privacy with the right of the public to be protected from unreasonable danger. This equation and the balance change with the facts presented., It is clear that, when the focus of the stop or search is a mobile automobile, the requirements to justify a stop or search or arrest are lessened.

For instance, the search of a home or dwelling can seldom be justified in the absence of a search warrant. Automobiles, however, when in a mobile state, may be searched by police without a warrant due to the exigent circumstances involved:

"A note in 87 Harv. L. Rev. 835, 837, traces the history of the automobile search exception starting with Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925). It is based upon and continues through Chambers v. Maroney, 399 U.S. 42, 52, 90 S. Ct. 1975, 1981, 26 L. Ed. 2d 419, 428 (1970), to Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), which points up the reasons constituting exigency, the main factor of which is the mobility of the automobile and the hazard of loss of the contraband. Brinegar v. United States, supra, recognizes the difference between searching an automobile and searching a home. The public interest in searching an automobile generally outweighs [924]*924the interest of the individual in going on his. way at least until he has been checked out.” United States v. Miller, 532 F.2d 1335, 1338 (10th Cir.), cert. denied 429 U.S. 839 (1976).

United States v. Sigal, 500 F.2d 1118, 1121 (10th Cir.), cert. denied 419 U.S. 954 (1974), states: “[T]he mobility of the thing searched in the instant case is a most significant factor in determining whether [the agent’s] search of [defendant’s] aircraft was constitutionally permissible.”

In State v. Jaso, 231 Kan. 614, Syl. ¶ 2, 648 P.2d 1 (1982), our Supreme Court said: “One of the specifically established and well-delineated exceptions to the Fourth Amendment ban against warrantless searches is the so-called ‘automobile exception’ recognized in Carroll v. United States,

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Bluebook (online)
878 P.2d 855, 19 Kan. App. 2d 920, 1994 Kan. App. LEXIS 85, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tucker-kanctapp-1994.