In this сase we consider how far police can investigate after making a public safety stop of an automobile. These detentions are sometimes called community caretaking stops. In Kansas, police can stop vehicles for safety reasons. Because the Highway Patrol Trooper exceeded the scope of the safety stop here by asking routine investigative questions after his safety concerns were nullified and continued the detention to run a background check on the vehicle’s occupants, we hold the subsequent search of the vehicle illegal and reverse Severo Gonzales’ convictions for various drug offenses.
Facts and Prior Proceedings
Because suppression motions are unique, the facts are crucial. We recite here what we have gleaned from the hearing transcripts and the videotape record from the patrol car.
On March 31, 2003, Severo Gonzales was riding northbound on the Kansas Turnpike in a 1994 Chevrolet pickup truck driven by his sister, Mary Jane Gonzales, when they were stopped by Master Trooper Jim Brockman of the Kansas Highway Patrol. Brockman was parked on the side of the turnpike in Butler County, checking the speed of traffic with radаr. As he was parked there, he saw the pickup truck only from the passenger side but noticed a rear tire was bouncing around “a little bit.”
Brockman testified that during his tenure on the patrol he had seen a number of vehicles where drivers had forgotten to put on their gas caps or close the hatch cover before, so he stopped them as a matter of courtesy. Brockman stated he had a safety concern in this case because of the way the rear tire was bоuncing around. He thought the tire may be unsafe. After observing these two items, Brockman turned on his emergency lights and stopped the vehicle. Turning on the emergency lights activates the patrol car’s video recorder.
Trooper Brockman advised the driver and passenger the reasons for the stop and then shut the hatch cover over the gas cap. At this point, Brockman did not observe anything that he thought was illegal activity. Brockman asked the driver and passenger for their licenses and registration for the vehicle; Brockman also asked where they were going. The trooper had some dоubts about the ownership of the vehicle and whether the Gonzaleses had proper possession of the pickup. At this point, Brockman asked the passenger, Severo Gonzales, to get out of the truck, and they both went back to the patrol car.
In tire patrol car, Brockman discussed his concerns about the ownership of the vehicle with Gonzales. He also requested his dispatcher to run a “wants and warrants” and “triple I” check on Gonzales and his sister. While this was going on, Brockman examined the tire in question and decided the tire was safe. After another 9 minutes of questioning Gonzales and the driver, Trooper
Because of his concerns about the ownership of the pickup and doubts about Gonzales’ plans in Kansas City, Brockman acted on this hunch and asked for consent from Gonzales to conduct a “quick search” of the truck for drugs, weapons, or other illegal substances. Gonzales agreed as long as it did not “take too long”; Brockman assured Gonzales it was not “going to take long.” Brock-man advised Gonzales he could stay in the patrol car and said the driver could stay in the truck; however, they should not move around.
Gonzales testified that he consented to Brockman conducting a quick search, anticipating Brockman would check out the luggage and the inside of the truck. He did not believe a “quick search” would include opening the hood, going through the side panels, or looking in the gas tank. Gonzales said he had been stopped on other occasions and tiróse sеarches took about 5 minutes. Also, Gonzales thought the search was going on too long but did not believe he could say no to the search. Gonzales did not believe he could get out of the patrol car because the trooper might think he was trying to run and pull a gun on him.
In conducting the search, Brockman looked through the luggage found in the bed of tire truck, looked under the hood and dash, inside the doors, and in the bed of the truck. He also listened to all of the tires with a stethoscope while pounding on them. After an approximate 17-minute search, Brockman had found nothing. The trooper then examined the interior of the gas tank on the pickup by extending a fiber optic scope down into the fuel tank. By using this tool, Brockman observed containers inside the fuel tank. At this point, Brockman gave Miranda warnings to the driver and Gonzales and told them that they were not free to leave. Brock-man then decided to take the pickup to a repair facility in Emporia in order to drain and remove the fuel tank. Despite his earlier safety concerns, Brockman did not call a tow truck to tow the truck
Gonzales, charged with various drug offenses, filed a motion to suppress the evidence from the vehicle search. At the conclusion of the suppression hearing, the trial court ruled that Gonzales’ consent to search was not limited to location but rather to time. The court also found the 17-minute search did not exceed the consent. The court also found the officer sufficiently articulated a reasonable and legitimate reason to pull the car over and that it was a “perfectly valid stop.”
Thereafter, Gonzales proceeded to a bench trial based upon stipulated facts. In the stipulation, Gonzales preserved his objections to the admission of the physical evidence and his statements. After a very cursoiy discussion of this waiver of the jury trial, the court found Gonzales guilty. Gonzales was ultimately given concurrent sentences of 15 months, 11 months, and 6 months but placed on standard probation for 18 months, subject to completing the program at the Labette Correctional Conservation Camp.
On appeal, Gonzales contends Trooper Brockman acted unlawfully in stopping his vehicle because tire Constitution does not permit forcible stops for “courtesy” or “safety” reasons. Gonzales focuses on Brockman’s testimony about a “courtesy stop” but also contends the Kansas cases recognizing a forcible “safety stop” violate constitutional principles.
We examine this case in three steps. First, we determine if the trooper was justified in initially stopping the pickup truck. Next, if the stop is valid, we decide if the officer exceeded his authority by starting an investigation and search. Finally, we look to the circumstances surrounding the defеndant’s consent to decide if it washed away the taint of an illegal search.
Safety Stop Authorized
In Kansas, police officers can perform public safety stops only if the stops are based upon specific and articulable facts. State v.
Standard of Review
This case requires us to review the holding of the trial court on a motion to suppress.
“When reviewing a motion to suppress evidence, the appellate court determines whether the factual underpinnings of the trial court’s decision are supported by substantial competent evidence. However, the ultimate legal conclusion drawn from those facts is a legal question requiring the appellate court to apply a de novo standard of review. The appellate court does not reweigh the evidence. [Citation omitted.]” State v. Green,32 Kan. App. 2d 789 , 792,89 P.3d 940 , rev. denied278 Kan. 849 (2004).
However, when the facts material to a trial court’s decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Ramirez,
Analysis
Kansas courts have organized encounters between police and citizens into four types: voluntary encounters, investigatory stops, public safety stops, and arrests. We deal here with a public safety stop. The concept of a lawful safety stop was first recognized by the Kansas Supreme Court in Vistuba,
On appeal, Gonzales challenges one of the premises of Vistuba — that a public safety or “community caretaking” stop can justify a forcible stop. Gonzales contends the authorities rehed upon by Vistuba did not support a forcible stop. He points out that all
But Kansas does not stand alone in the recognition of safеty stops. See State v. Maddox,
Other cases have recognized that the community caretaldng function can justify a brief detention of an individual. See United States v. Gamer,
In State v. Acrey,
“When police officers are engaged in noncriminal, noninvestigative ‘community caretaking functions,’ ‘whether a partiсular stop is reasonable depends not on the presence of “probable cause” or “reasonable suspicion,” but rather on a balancing of the competing interests involved in light of all the surrounding facts and circumstances.’ [Citation omitted.]”
We decline Gonzales’ invitation to ignore tire Vistuba ruling. This court is duty bound to follow Kansas Supreme Court precedent unless there is some indication the court is departing from its previous position. See State v. Beck,
Once safety stops are permitted, then there must be limits placed upon them; otherwise, any pretext could serve as a reason to stop. Vistuba requires that specific articulable facts establish the need for the stop. Unless a public safety stop is based upon specific and articulable facts, it could “ ‘emasculate the constitutional protection afforded a motorist’s privacy under Terry [v. Ohio,
Here, Trooper Brockman testified that his reasons for the stop were because the hatch cover over the gas cap was open and the rear tire was bouncing either “a little bit” or “quite badly,” depending upon which part of his testimony is considered. There is no dispute that the open hatch cover was not perceived as a safety problem; even Brockman referred to it as a “courtesy” to alert the driver to that condition. It was the bouncing tire that was the alleged safety concern. A review of the videotape, which started when Brockman activated his emergency lights and initiated the
In fact, a review of the videotape raises serious questions whether Brockman was truly concerned with the safety of the tire. When Brockman approached the truck, he said “hello” and advised the occupants that he stopped them because the hatch cover was oрen and their tire was bouncing. At this time, he closed the hatch. Then Brockman immediately began asking who owned the truck and asked for the occupants’ driver’s licenses. Quickly thereafter, Severo Gonzales (the passenger) was asked to step out of the truck. Brockman asked him to come back to the patrol car and then questioned him some more about the truck’s ownership. The trooper asked the dispatcher to run “triple I’s” on the occupants. Leaving Gonzales in the patrol car, the trooper returned to the truck and asked the driver if diere were any weapons in the truck. Only after all that investigation was completed did the trooper finally look at the tire and notice it was bald in many spots and suggested to the driver that it should be replaced. The examination of the tire did not occur until at least 8 minutes into the stop.
We defer to the trial court’s finding that there were specific, articulable facts to support a safety stop. We question, however, whether the extent of the detention exceeded the justification for the stop, rendering the seizure unlawful.
Detention Exceeded Basis For the Stop
The State contends this court should not address this issue because Gonzales did not challenge the length of thе detention to the trial court. The written suppression motion challenges both the “stop and detention” of Gonzales. Defense counsel also specifically elicited testimony from Master Trooper Brockman about what occurred during the stop prior to asking for consent to search. But it is true that the focus of argument at the hearing was the basis for the initial stop and not whether the scope of the detention exceeded its initial justification.
Ordinarily, issues — even constitutional issues — not raised before the trial court cannot be raised on appeal. State v. Williams,
Cases recognizing the public safety or community caretaking exception have consistently acknowledged that such actions should be scrutinized carefully so the protections of the Fourth Amendment are not emasculated. See Nickelson,
Likewise, the courts have been strict in recognizing that, as with any other police encounter, the scope of the detention during a public safety stop cannot exceed the justificatiоns for the stop. The Tenth Circuit Court of Appeals recognizes hmits on such stops:
“Like an investigative detention for law enforcement purposes, such a community caretaking detention must be based upon “ ‘specific and articulable facts which . . . reasonably warrant [an] intrusion” into the individuals liberty.’ [Citations omitted.]. Additionally, tire government’s interest must outweigh the individual’s interest in being free from arbitrary governmental interference. [Citation omitted.] Finally, the detention must last no longer than is necessary to effectuate its purpose, and its scope must be carefully tailored to its underlying justification. See Florida v. Royer,460 U.S. 491 , 500,103 S. Ct. 1319 ,75 L. Ed. 2d 229 (1983). Once thе officer has completed the inquiry necessary to satisfy the purpose of the initial detention, he or she must allow the person to proceed unless the officer has a reasonable suspicion of criminal conduct. [Citation omitted.]” (Emphasis added.) Gamer,416 F.3d at 1213 .
A holding from Montana best articulates limitations that should apply to these situations when that court established a three-part analysis of such detentions:
*456 “First, as long as there are objective, specific and articulable facts from which an experienced officer would suspect that a citizen is in need of help or is in peril, then that officer has the right to stоp and investigate. Second, if the citizen is in need of aid, then the officer may take appropriate action to render assistance or mitigate the peril. Third, once, however, dre officer is assured that the citizen is not in peril or is no longer in need of assistance or that die peril has been mitigated, then any actions beyond that constitute a seizure impheating . . . the protections provided by the Fourth Amendment.” State v. Lovegren,310 Mont. 358 , 366,51 P.3d 471 (2002).
Using that test we examine Trooper Brockman’s actions during the detention in this case. After following the vehicle for 5 miles at turnpike speeds, the Trooper had noticed no traffic infractions. His concern was for something sticking out from the side of the pickup and a bouncing rear tire. Therefore, he had objective, specific, articulable concerns, so he could make the stop. The trooper could have shut the hatch and examined the tire within a few minutes, thereby rendering assistance and mitigating the exposure of the occupants of the pickup to any peril. Then, having completed his public safety stop, the detention should have ceased. Instead of examining the tire immediately, Brockman began an investigative action immediatеly upon approaching the vehicle by asking about the ownership of the truck and asking for the occupants’ driver’s licenses. It is clear therefore that the stop exceeded the public safety reasons for the detention and became a seizure as contemplated by Lovegren.
Cady and Vistuba recognized that the public safety or community caretaldng function was “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady,
Clearly, the encounter here was not voluntary because the truck was forcibly stopped by the use of the patrol car’s emergency lights. See State v. Morris,
The State argues that if the initial stop was justified, the officer can request a driver’s license, vehicle registration, run a computer check, and even remove the driver from a vehicle and cites Pennsylvania v. Mimms,
A public safety stop is not for investigative purposes. Asking for information about the ownership of the truck and demanding and retaining the occupants’ driver’s licenses exceeded the justification for the stop. That justification was limited to an examination of the tire to determine if it was safe to continue driving and to alert the driver about the condition of the tire. Obtaining and retaining the occupants’ driver’s licenses, under the circumstances of this case, exceeded the legitimate bounds for a safety stop. See State v. Page,
When focused on a different type of police-public encounter, a voluntary encounter, a panel of this court held that permitting officers to retain licenses and run warrаnt checks turns a voluntary encounter into a detention. See Grace,
In this case, the State does not contend that Brockman had reasonable suspicion or probable cause to believe any crime had been committed until his search of the gas tank disclosed concealed items. Here, Trooper Brockman clearly exceeded the scope of a public safety stop by conducting an investigation rather than focusing on the safety issues that he used to justify his stop of the vehicle. To permit law enforcement officers to cite a safety issue and then permit a full investigation as would take place during a stop for a traffic infraction would effectively eliminate all protections of the Fourth Amendment.
We hold that Brockman exceeded the scope of the safety stop by asking investigative questions and continuing the detention to run a background check on tire vehicle’s occupants. Unless public safety stops are strictly limited to the safety concerns justifying the stop, there will be no disincentive for law enforcement officers to “find” a safety concern as a pretext for an investigative stop when there is no reasonable suspicion or probable cause.
Defendant’s Consent to Search Tainted
We do not believe that the trial court was asked to address this issue. But, as we stated before, if an issue involves only a question of law arising on proved or admitted facts and is finally determinative of the case or consideration of the point is necessary to serve the ends of justice or to prevent a denial of fundamental rights, an appellate court may consider the question. Schroeder,
In Kansas, consent to search can remove the taint of prior illegal seizures. Here, the entire encounter between the defendant and the trooper was recorded on the videotape, and it is unlikely there
Under Kansas law, consent to search, “removes the taint of a prior illegal seizure if it was voluntarily given under the totality of the circumstances.” State v. Wilson,
When an illegal detention precedes consent, however, the State must establish both the voluntariness of the consent and a break in the causal connection between the illegality and the consent. State v. Kermoade,
The State cites State v. Reason,
The Kansas Supreme Court categorized this initial contact between the police and the driver in Reason as a “voluntary encounter.”
Reason is distinguishable from the present case. In Reason, the court determined the scope and duration of die officers’ initial questioning was proper. Reason did not involve a situation where consent was necessary to remove the taint of an illegal seizure. As the court stated in its analysis: “Here we are not dealing with an illegal traffic stop. . . . There is no taint to purge from the consent if there was no illegal detention.”
Here, as we have determined, Brockman’s detention of Gonzales far exceeded the scope and purpose of die initial safety stop. Gonzales’ detention was illegal. Thus, to remove the taint of die illegal detention, the State must establish both the voluntariness of Gonzales’ consent and a break in the casual connection between the illegality and the consent. See Kermoade,
In this case, the record undisputably demonstrates that Trooper Brockman activated his emergency lights to stop the Gonzaleses’ truck only for purported safety concerns. Without inspecting the unsafe tire, Brockman asked about the ownership of the vehicle and then asked for both occupants’ driver’s licenses and the vehicle registration. Almost immediately, Gonzales was asked to step out of the car and then to sit in the patrol car, separating him from his sister. After a warrаnts check returned negative, Brockman gave Gonzales back their licenses and registration and told Gonzales they were free to go. Although Brockman asked if Gonzales understood they were free to go, Gonzales was given no time to respond, as Brockman was already asking if he would answer a few more questions. Within less than a minute, Brockman was then asking for consent to search the vehicle. Gonzales had no opportunity to get out of the car before Brockman proceeded with his additional questions. Once consent had been obtained, tire trooper told Gonzales nоt to move around.
Because we conclude Gonzales’ consent was not voluntary under the circumstances, we do not need to address his claim that Brock-man’s actions exceeded the scope of the consent.
Reversed.