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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 1

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 3

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 4

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 5

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. 7

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.

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