State v. Kacsir

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No. 102,559

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

STEPHANIE ANNE KACSIR,
Appellant.



SYLLABUS BY THE COURT

1.

An encounter between a citizen and a law enforcement officer in a public place is
voluntary if a reasonable person would feel free to decline the officer's requests for
information or otherwise terminate the encounter.

2.
A seizure occurs when there is a show of authority which, in view of all the
circumstances surrounding the incident, would communicate to a reasonable person that
he or she is not free to leave and the person submits to the show of authority.

3.
In order to justify a public safety vehicle stop, there must be objective, specific,
and articulable facts which would lead a law enforcement officer to reasonably suspect
that a citizen is in need of help or is in peril.

4.
After a complaint has been filed charging a defendant with commission of a crime
and prior to conviction thereof, and after the district or county attorney has considered the
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factors listed in K.S.A. 22-2908, if it appears that diversion of the defendant would be in
the interests of justice and of benefit to the defendant and the community, the district or
county attorney may propose a diversion agreement to the defendant. The terms of each
diversion agreement shall be established by the district or county attorney.

5.
The law requires each district and county attorney to adopt written policies and
guidelines for the implementation of a diversion program. Such policies and guidelines
shall provide for a diversion conference and other procedures in those cases where the
district or county attorney elects to offer diversion in lieu of further criminal proceedings
on the complaint.

6.
Each defendant shall be informed in writing of the diversion program and the
policies and guidelines adopted by the district or county attorney.

7.
There is no statutory right of any defendant to be granted diversion and certainly
there was no such right at common law. The statutes merely establish a procedure to be
followed by the county or district attorney and certain factors which are to be considered
if diversion is to be considered. The prosecutor, after following the procedures and
considering all the factors, may propose a diversion agreement to the defendant. The
prosecutor is not required to propose diversion to any defendant.






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Appeal from Shawnee District Court; THOMAS R. CONKLIN, judge. Opinion filed February 25,
2011. Affirmed.

Kenneth B. Miller, of Rork Law Office, of Topeka, for appellant.

Natalie Chalmers, assistant district attorney, Chadwick J. Taylor, district attorney, and Steve Six,
attorney general, for appellee.

Before PIERRON, P.J., MARQUARDT and HILL, JJ.

HILL, J.:

INTRODUCTION

Stephanie Anne Kacsir drove onto the shoulder of Interstate-70 in Topeka and
stopped her car less than 100 hundred yards in front of a parked Kansas Highway Patrol
car. Seeing this, the trooper pulled up and turned on his emergency lights. The trooper
later testified he approached Kacsir to see if she was having mechanical problems with
her car, if she needed directions, or if there was a medical emergency. Kansas courts
recognize that police can make legal public safety stops of vehicles if the reasons for the
stop are based on specific and articulable facts. We make two holdings on this issue.
First, this is a car stop and not a voluntary encounter because once the trooper turned on
the patrol car's lights no reasonable person would feel free to leave without the trooper's
permission. Second, we hold this is a legal public safety stop because the trooper gave
specific reasons for stopping and approaching the car.

In a separate issue, Kacsir complains the State arbitrarily and unreasonably denied
her diversion because she failed to file her application for diversion within 30 days of her
first court appearance. Each county and district attorney in Kansas has the discretion to
offer diversion. By law, they must adopt written policies and guidelines for setting up any
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diversion program so defendants and their counsel may know how to go about seeking
deferred prosecution of their cases. The district attorney's policy here, requiring
submission of all such applications within 30 days of a defendant's arraignment, is clear.
If followed, the policy prevents the State from wasting time by preparing for unnecessary
trials. Because this policy is facially reasonable, we hold the State did not arbitrarily or
unreasonably deny Kacsir diversion.

For these reasons, we affirm Kacsir's conviction of driving under the influence of
alcohol.

Two cars pull over and one remains.

Trooper Daniel McCollum was parked on the shoulder of I-70 when he saw two
cars pull onto the shoulder less than 100 yards in front of him. It was after 10 p.m. and
Tpr. McCollum presumed the drivers saw him and needed help or directions so he pulled
his patrol car up behind the cars. At that point, the car parked in front returned to the
highway while one remained. Tpr. McCollum turned on his rear red and blue lights in
order to alert traffic that he was on the shoulder.

The trooper walked up to the remaining car and the driver identified herself as
Kacsir. Tpr. McCollum testified he had seen no traffic infractions and that Kacsir was
free to leave. Tpr. McCollum characterized the encounter as a public safety stop. He
explained that when someone is on the shoulder, it is the practice of the highway patrol to
stop and make sure that everything is all right and render assistance if needed. Tpr.
McCollum also testified, however, that it is illegal for a driver to stop on the interstate if
there is no emergency.

Tpr. McCollum asked Kacsir if everything was all right, and she replied that she
was trying to get to Lawrence and was turned around. Tpr. McCollum testified that at that
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point, he wanted to make sure Kacsir's car did not have mechanical problems, determine
if she needed directions, or see whether she was having a medical emergency.
Nevertheless, he soon noticed the smell of alcoholic beverage and saw that Kacsir's eyes
were bloodshot. Tpr. McCollum testified that at that point the stop became an
investigatory stop because he suspected she might have been drinking and that Kacsir
was no longer free to leave.

Ultimately, the State charged Kacsir with a first offense of driving under the
influence of alcohol in violation of K.S.A. 8-1567(d). Kacsir moved to suppress all
evidence on the basis that the trooper illegally detained her, arguing her detention was
neither a voluntary encounter nor or a public safety stop. The court denied Kacsir's
suppression motion after hearing testimony from Tpr. McCollum and Kacsir. The district
court held this was a stop, and not a voluntary encounter. The court noted Trooper
McCollum pulled up to Kacsir's vehicle and Kacsir could plainly see Tpr. McCollum was
a law enforcement officer. In addition, the court believed Kacsir's testimony that she saw
the patrol car's flashing emergency lights. The court ruled the stop was a legitimate public
safety stop based on the time, the situation, and the trooper's reason for the stop—to
determine whether there was a problem and whether the driver needed assistance. Later at
her bench trial, the court found Kacsir guilty of driving under the influence.

We note the dates pertinent to the diversion issue.

After the State charged Kacsir, she first appeared in Shawnee County District
Court on February 13, 2008. The same day, she filed a jury trial demand and requested
discovery. The State responded to her request for discovery on February 29, 2008, by
stating the reports, tickets, an affidavit, and a certified driving record were available for
reproduction at Kacsir's expense. Then, on April 3, 2008, Kacsir moved to compel
additional discovery, noting she had requested a video recording of the incident but the
State had informed her there was no video recording. After that, on May 6, 2008, Kacsir
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received a video recording of the incident. Then on June 10, 2008, Kacsir moved to
suppress all evidence in the case.

After the court denied Kacsir's suppression motion, Kacsir applied for a diversion
about 5 months after her first appearance, submitting her application on July 14, 2008.
The State denied Kacsir's application because she did not file it within 30 days of her first
court appearance. On July 28, 2008, Kacsir moved the court to compel the State to enter a
diversion in the case, which the district court later denied.

The district court correctly ruled this was a valid public safety stop.

For her first argument, Kacsir contends that the trooper illegally seized her as he
had no articulable suspicion of any crime or traffic infraction and there were no objective,
specific, or articulable facts to support a finding that this was a legal public safety stop.
The State counters that we should view this as a voluntary encounter between a member
of the public and a law enforcement officer if we cannot decide this is a legal public
safety stop. While we reject the State's contention that this is a voluntary encounter, the
facts do persuade us that this was a legal public safety stop because the trooper indeed
gave cogent and valid reasons for the stop.

First, we review some fundamental legal points. Without reweighing the evidence,
this court reviews the district court's fact-findings to see if substantial competent
evidence supports them. We then review any legal conclusion about the suppression of
evidence by using a de novo standard. See State v. Woolverton, 284 Kan. 59, 70, 159
P.3d 985 (2007). When the material facts pertaining to a suppression matter are not in
dispute, the question of whether to suppress is a question of law over which this court has
unlimited review. State v. Fitzgerald, 286 Kan. 1124, 1126, 192 P.3d 171 (2008).

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Experience has generated a continuum of police-citizen contacts depending upon
the circumstances of each contact and the varying degree of restraint of the public.
Kansas courts recognize four types of police-citizen encounters: investigatory stops,
voluntary encounters, public safety stops, and arrests. Nickelson v. Kansas Dept. of
Revenue, 33 Kan. App. 2d 359, 362, 102 P.3d 490 (2004). This court considers an
encounter between a citizen and a law enforcement officer in a public place as voluntary
if a reasonable person would feel free to decline the officer's requests for information or
otherwise terminate the encounter. See State v. McGinnis, 40 Kan. App. 2d 620, 624, 194
P.3d 46 (2008). But a seizure occurs when there is a "show of authority which, in view of
all the circumstances surrounding the incident, would communicate to a reasonable
person that he or she is not free to leave . . . and the person submits to the show of
authority." State v. Morris, 276 Kan. 11, 18-19, 72 P.3d 570 (2003).

A recent Kansas Supreme Court case, State v. Greever, 286 Kan. 124, 183 P.3d
788 (2008), is instructive. In that case, an officer began following a vehicle after the
driver failed to properly signal. When the driver finally stopped the car and parked on the
street, the officer pulled up behind the vehicle, got out of his patrol car, and approached
the driver. When the driver noticed the officer and spoke to him, the officer smelled the
odor of marijuana. On appeal from his drug conviction, our Supreme Court held the
district court erred in finding this was a voluntary encounter and not a seizure, noting
Greever submitted to the officer's show of authority (the activation of the emergency
lights) by remaining at the scene, rolling down the window, and complying with the
officer's request. The court cited its prior opinion, Morris, 276 Kan. at 20, where it held
the activation of emergency lights is a sufficient show of authority to communicate that a
person is not free to leave the scene. Greever, 286 Kan. at 135-36.

Thus, in our view, the facts here are similar. Kacsir saw the patrol car lights, did
not drive away, and answered the trooper's questions. We hold this is a seizure and not a
voluntary encounter.
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We go on to the question of whether this was a legal public safety stop. The
concept of a lawful safety stop was first recognized by the Kansas Supreme Court in
State v. Vistuba, 251 Kan. 821, 824-25, 840 P.2d 511 (1992). Since Vistuba, courts
recognize the validity of a public safety stop if the reasons for the stop are based upon
specific and articulable facts. 251 Kan. 821, Syl. ¶ 1; Nickelson, 33 Kan. App. 2d at 364.
In order to justify a public safety vehicle stop, there must be objective, specific, and
articulable facts which would lead a law enforcement officer to reasonably suspect that a
citizen is in need of help or is in peril. See State v. Gonzales, 36 Kan. App. 2d 446, 456,
141 P.3d 501 (2006).

We find the holding in Nickelson pertinent. In that case, an officer saw Nickelson's
vehicle pull off the highway into an area with no buildings, businesses, or residences. The
officer noticed no traffic violations but was concerned Nickelson might be in distress
because he stopped in the '"middle of nowhere"' and turned the lights off. 33 Kan. App.
2d at 361. The officer testified it was policy to check on the welfare of stranded
motorists, he always checks on persons pulled off to the side of the road, and the purpose
of approaching Nickelson's vehicle was to check on his welfare. Based on these facts, this
court held the officer "expressed specific and articulable facts for approaching
Nickelson's vehicle for public safety concerns" and justified the contact as a lawful public
safety stop. 33 Kan. App. 2d at 365.

In the same manner, Tpr. McCollum saw Kacsir's vehicle pull onto the shoulder
less than 100 yards in front of him. He testified he assumed the driver saw him and
needed help or directions. Tpr. McCollum explained it is the practice of the highway
patrol to stop and render assistance, if needed, when someone is parked on the shoulder
and that officers stop and check on all vehicles parked on the shoulder. When Tpr.
McCollum approached Kacsir, he asked if everything was all right. Tpr. McCollum
testified that his motive for approaching Kacsir was to make sure she did not have
mechanical problems, need directions, or have a medical emergency. Like Nickelson,
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Tpr. McCollum expressed specific and articulable facts for approaching Kacsir's vehicle
for public safety concerns. We deem this contact a legal public safety stop.

Kacsir argues Tpr. McCollum failed to provide specific facts that would support a
belief that Kacsir needed aid or was in peril and only presented an "un-particularized
concern" or "hunch." But in doing so she ignores key aspects of the testimony. First, Tpr.
McCollum made it clear that when he saw the cars pull over on the shoulder in front of
him, he assumed the drivers saw him and needed help or directions. In addition, Tpr.
McCollum testified it is illegal to stop on the interstate unless there is an emergency. Tpr.
McCollum was not unreasonable in suspecting Kacsir may have stopped directly in front
of him—despite the prohibition against doing so on a highway—because she needed
some sort of assistance. Sufficient evidence supports the district court's findings, and we
find no error in its legal conclusion.

Kacsir failed to timely seek diversion.

Kacsir next claims the State's denial of her diversion application was arbitrary and
unreasonable. The State denied Kacsir diversion because her application was not
submitted within 30 days of her first court appearance. Kacsir reasons since the Kansas
statutes do not impose a time limit, Kacsir would have waived her right to discovery had
she complied with the time limit. Further, in her view, the time limit is designed to
discourage defendants from making pretrial challenges to the State's evidence.

Before turning to the merits of Kacsir's claim, we note the State contends that we
cannot review Kacsir's claim because Kacsir's appellate arguments were not presented to
the district court. The State is incorrect. All three arguments made by Kacsir on appeal
were raised before the district court at the hearing on Kacsir's motion to compel the
diversion agreement. Kacsir's claim is properly before this court.
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Two statutes control this matter. K.S.A. 22-2907 authorizes county and district
attorneys to set up a system of deferred prosecution:

"(1) After a complaint has been filed charging a defendant with commission of a
crime and prior to conviction thereof, and after the district attorney has considered the
factors listed in K.S.A. 22-2908, if it appears to the district attorney that diversion of the
defendant would be in the interests of justice and of benefit to the defendant and the
community, the district attorney may propose a diversion agreement to the defendant.
The terms of each diversion agreement shall be established by the district attorney in
accordance with K.S.A. 22-2909.

"(2) Each district attorney shall adopt written policies and guidelines for the
implementation of a diversion program in accordance with this act. Such policies and
guidelines shall provide for a diversion conference and other procedures in those cases
where the district attorney elects to offer diversion in lieu of further criminal proceedings
on the complaint.

"(3) Each defendant shall be informed in writing of the diversion program and
the policies and guidelines adopted by the district attorney. The district attorney may
require any defendant requesting diversion to provide information regarding prior
criminal charges, education, work experience and training, family, residence in the
community, medical history, including any psychiatric or psychological treatment or
counseling, and other information relating to the diversion program. In all cases, the
defendant shall be present and shall have the right to be represented by counsel at the
diversion conference with the district attorney."

Then K.S.A. 22-2908 provides directions on how to make such important
decisions:

"(a) In determining whether diversion of a defendant is in the interests of justice
and of benefit to the defendant and the community, the county or district attorney shall
consider at least the following factors among all factors considered:

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(1) The nature of the crime charged and the circumstances surrounding it;

(2) any special characteristics or circumstances of the defendant;

(3) whether the defendant is a first-time offender and if the defendant has
previously participated in diversion, according to the certification of the Kansas bureau of
investigation or the division of vehicles of the department of revenue;

(4) whether there is a probability that the defendant will cooperate with and
benefit from diversion;

(5) whether the available diversion program is appropriate to the needs of the
defendant;

(6) the impact of the diversion of the defendant upon the community;

(7) recommendations, if any, of the involved law enforcement agency;

(8) recommendations, if any, of the victim;

(9) provisions for restitution; and

(10) any mitigating circumstances."

The only published case on this point that we can find is State v. Greenlee, 228
Kan. 712, 721, 620 P.2d 1132 (1980). In Greenlee, the defendant submitted an
application for diversion to the Sedgwick County District Attorney. He was denied
diversion because it was the policy of the district attorney to exclude all drug offenders
from the program. When Greenlee challenged the application procedure on appeal, the
court stated:

"There is no statutory right of any defendant to be granted diversion and certainly there
was no such right at common law. The statutes merely establish a procedure to be
12

followed by the county or district attorney and certain factors which are to be considered
if diversion is to be considered. The prosecutor, after following the procedures and
considering all the factors 'may propose a diversion agreement to the defendant.' The
prosecutor is not required to propose diversion to any defendant." 228 Kan. at 720.

The court ultimately concluded it could not say the district attorney abused his
discretion in deciding not to offer diversion to drug offenders. 228 Kan. at 721.

Here, the Shawnee County District Attorney has a diversion policy that states its
diversion criteria and one of those criteria is that an application must be filed within 30
days of the arraignment or it will not be considered. The State reasoned that if a
defendant chooses to take a case to trial, the State must deal with pretrial motions, work
the case, and get ready for trial. If the defendant makes a pretrial motion and witnesses
are brought forward, the State's case may become stronger. At that point, the State has
less incentive to offer a diversion. The State characterized the 30-day time limitation as a
"time and resource, management-type decision."

Kansas law provides that if it appears to the district attorney that diversion would
be a benefit to the defendant and the community, a diversion agreement may be proposed.
K.S.A. 22-2907(1). The purpose of the 30-day time limit is to avoid expending State
resources in preparation for trial, only to later offer the defendant a diversion. Permitting
this practice would waste resources to the detriment of the State and community as a
whole. In Greenlee, the court stated: "Considering the seriousness of the drug problem in
society today, particularly its devastating effect upon young people, we cannot say the
district attorney abused his discretion in determining not to offer diversion to drug
offenders." 228 Kan. at 721. Likewise, where the denial of diversion after the State has
prepared its case discourages the waste of State resources, this court cannot say the
Shawnee County District Attorney's Office abused its discretion in determining it will not
offer diversion to those defendants who apply after the 30-day time limit.
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On appeal, Kacsir argues that because K.S.A. 22-2907 and K.S.A. 22-2908 make
no reference to a time limit, the time limit imposed by the Shawnee County District
Attorney's office is unconnected to the purpose of the statutes. But Kacsir overlooks
K.S.A. 22-2907(2), which provides: "Each district attorney shall adopt written policies
and guidelines for the implementation of a diversion program in accordance with this
act." The time limit imposed here is a written policy or guideline adopted by the Shawnee
County District Attorney's office in implementing its diversion program.

Further, Kacsir also argues she would have waived her right to discovery had she
complied with the 30-day time limit. This argument is incorrect in both fact and theory.
Kacsir first appeared before the court on February 13, 2008, and requested discovery that
same day. On February 29, 2008, the State made the reports, tickets, an affidavit, and a
certified driving record available to Kacsir at her expense. Although Kacsir did not
receive a video recording of the incident until May 6, 2008, she did not request
clarification on that evidence until April 3, 2008—after the 30-day time limit had
expired. Because Kacsir had access to a substantial amount of evidence prior to the date
on which the 30-day time limit expired, we cannot conclude Kacsir was deprived of
discovery—even if she would have applied for a diversion within the 30-day time period.

Obviously, when a defendant applies for diversion, he or she does not waive any
right. That waiver only comes later when the parties do enter a diversion agreement.
Kacsir provides no authority for the proposition that a defendant waives the right to
discovery when he or she simply applies for diversion.

Finally, Kacsir argues the 30-day time limit discourages persons from making
pretrial challenges to the State's evidence and cites a California case, Morse v. Municipal
Court, 13 Cal. 3d 149, 118 Cal. Rptr. 14, 529 P.2d 46 (1974), for support. Morse is
unpersuasive because the California statutes dealing with diversion differ greatly from
Kansas law. Unlike Kansas, in California "the court, not the district attorney 'shall
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determine . . . if the defendant should be diverted.'" People v. Superior Ct. of San Mateo,
11 Cal. 3d 59, 67, 113 Cal. Rptr. 21, 520 P.2d 405 (1974). Clearly, the decision to divert
in Kansas resides with the county or district attorney. Specifically, K.S.A. 22-2907(2)
gives district attorneys in Kansas the ability to develop and enforce specific rules such as
the 30-day time limit.

Affirmed.