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State v. Messner

Court of Appeals of Kansas

May 18, 2018

State of Kansas, Appellee,
v.
Christian Blake Messner, Appellant.

         SYLLABUS BY THE COURT

         1. Kansas courts recognize that police may conduct a public safety, or community caretaking, stop in certain circumstances. Such a stop does not require the police to have reasonable suspicion of a civil or criminal infraction. But the stop must be based upon specific and articulable facts.

         2. A public safety or community caretaking stop must be divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.

         3. As a general rule, matters not raised before the district court cannot be raised for the first time on appeal. Although there are some exceptions to this rule, the party seeking to raise a matter for the first time on appeal must invoke one of the exceptions and explain in briefing why the issue is properly before the court. Kansas Supreme Court Rule 6.02(a)(5) (2018 Kan. S.Ct. R. 34).

          4. Kansas Supreme Court Rule 6.02(a)(5) is not simply a "gotcha" from the Kansas appellate courts. The rule encourages litigants to fully present their cases to the trial court. All issues and claims are then tested by the adversarial process further refining and defining the facts and law in dispute and insuring fundamental fairness in the proceeding.

          Appeal from Butler District Court; Charles M. Hart, judge.

          Rick Kittel, of Kansas Appellate Defender Office, for appellant.

          Brett D. Sweeney, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

          Before Arnold-Burger, C.J., Green, J., and Hebert, S.J.

          Arnold-Burger, C.J.

         Kansas courts recognize that police may conduct a public safety, or community caretaking, stop in certain circumstances. State v. Vistuba, 251 Kan. 821, 824, 840 P.2d 511 (1992), disapproved in part on other grounds by State v. Field, 252 Kan. 657, 847 P.2d 1280 (1993). Such a stop does not require the police to have reasonable suspicion of a civil or criminal infraction. 251 Kan. at 824. However, a safety stop must be "'divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.'" City of Topeka v. Grabauskas, 33 Kan.App.2d 210, 214-15, 99 P.3d 1125 (2004) (quoting Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 [1973]).

         In this case, Christian Blake Messner was stopped by police in response to a concern expressed by employees at the local Dillons store concerning his behavior and length of stay in the store. When Messner left the store in a vehicle, police followed him for the sole purpose of checking his welfare. Upon stopping him police did little to check his welfare, but instead seized his driver's license and checked for any warrants. After learning he had a warrant out for his arrest, police arrested Messner and subsequently searched his car. Messner moved to suppress the evidence, arguing that the arrest and search were unlawful. The district court disagreed and denied Messner's motion. Because we find that the officer exceeded the scope of the public safety or welfare stop, we reverse the district court's denial of the motion to suppress and remand the case with directions.

         Factual and Procedural History

         Messner was in a Dillons store in Andover, Kansas, from around 10:15 p.m. on a Tuesday evening to 6 a.m. Wednesday morning-almost eight hours. When Sally Hermann arrived for her shift at the store, employees informed her that Messner had been in the store all night and they were concerned about his behavior. Messner would "just stand and stare" at walls and people. According to Hermann, it seemed like Messner did not know what he was staring at. Messner was also picking at his skin.

         Hermann and a couple of male employees approached Messner to see if he was alright. Hermann noticed that Messner was wearing a coat sold in the store with the tag still on it. Messner asked Hermann, "'Do you know where my coat is?'" Hermann told him that she did not know where his coat was. Hermann described Messner as confused as to where he was located. When asked if there was anyone with him, Messner said that he did not think so. Hermann told Messner that if he was not going to purchase anything he needed to leave.

         Messner took off the Dillons jacket and began to leave the store. Hermann called the police to let them know that Messner had been at Dillons for eight hours and that his behavior should be followed up. A dispatch went out to "check the welfare of an individual that had been in Dillons for quite a while." Sergeant/K-9 Officer Mickey Farris arrived. He immediately encountered Hermann who was standing at the door pointing at a white vehicle that was pulling away. Sergeant Farris indicated that Hermann said, "'That's the individual. Um, he's ...


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