BY THE COURT
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
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).
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
from Butler District Court; Charles M. Hart, judge.
Kittel, of Kansas Appellate Defender Office, for appellant.
D. Sweeney, assistant county attorney, and Derek Schmidt,
attorney general, for appellee.
Arnold-Burger, C.J., Green, J., and Hebert, S.J.
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 ).
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.
and Procedural History
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
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.
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 ...