State v. Vistuba, 840 P.2d 511 (Kan. 1992). · Go Syfert
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State v. Vistuba, 840 P.2d 511 (Kan. 1992). Cases Citing This Book View Copy Cite
191 citation events (147 in the last 25 years) across 18 distinct courts.
Strongest positive: State v. Michael Gene Wiskowski (wis, 2024-06-18)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 33 distinct citers. How cited ↗
discussed Cited as authority (rule) State v. Michael Gene Wiskowski
Wis. · 2024 · confidence medium
In 1977, four years after Cady, we addressed whether it was lawful for a police officer to peer into the defendant's garage after a neighbor 9 See State v. Mitchell, 498 N.W.2d 691, 694 (Iowa 1993) (burned-out taillight); State v. Vistuba, 840 P.2d 511, 514 (Kan. 1992) (driving on shoulder); State v. Pinkham, 565 A.2d 318, 318 (Me. 1989) (improper lane change); State v. Oxley, 503 A.2d 756, 759 (N.H. 1985) (unsecured furniture on back of car); State v. Harrison, 533 P.2d 1143, 1144 (Ariz. 1975) (bouncing left tire). 14 No. 2021AP2105-CR.bh filed a noise complaint.
discussed Cited as authority (rule) State v. Michael Gene Wiskowski
Wis. · 2024 · confidence medium
In 1977, four years after Cady, we addressed whether it was lawful for a police officer to peer into the defendant's garage after a neighbor 9 See State v. Mitchell, 498 N.W.2d 691, 694 (Iowa 1993) (burned-out taillight); State v. Vistuba, 840 P.2d 511, 514 (Kan. 1992) (driving on shoulder); State v. Pinkham, 565 A.2d 318, 318 (Me. 1989) (improper lane change); State v. Oxley, 503 A.2d 756, 759 (N.H. 1985) (unsecured furniture on back of car); State v. Harrison, 533 P.2d 1143, 1144 (Ariz. 1975) (bouncing left tire). 14 No. 2021AP2105-CR.bh filed a noise complaint.
discussed Cited as authority (rule) State v. McDonald
Kan. · 2024 · confidence medium
In Vistuba, we recognized the legitimacy of a lawful public welfare stop when an officer pulled over a moving vehicle because the person was driving erratically, driving slowly, hugging the curb, swerving on the shoulder, and the officer had a reasonable 4 belief that the driver was either ill or falling asleep. 251 Kan. at 822, 824 .
discussed Cited as authority (rule) United States v. Zimmerman
D. Wyo. · 2015 · signal: cf. · confidence medium
Cf. State v. Vistuba, 251 Kan. 821 , 840 P.2d 511, 514 (1992) (safety reasons based on specific, articulable facts, may justify vehicle stop); State v. Marcello, [ 157 Vt. 657 ] 599 A.2d 357, 358 (Vt.1991) (same); State v. Pinkham, 565 A.2d 318, 319 (Me.1989); State v. Oxley, 127 N.H. 407 , 503 A.2d 756, 759 (1989 [1985]) (same).
discussed Cited as authority (rule) People v. Madrid
Cal. Ct. App. · 2008 · confidence medium
(See, e.g., State v. Moore (Iowa 2000) 609 N.W.2d 502, 504 ; State v. Vistuba *1058 (1992) 251 Kan. 821, 823-824 [ 840 P.2d 511, 514 ]; State v. Pinkham (Me. 1989) 565 A.2d 318, 319 ; State v. Rinehart (2000) 2000 SD 135 [ 617 N.W.2d 842, 844 ]; Wright v. State (Tex.Crim.App. 1999) 7 S.W.3d 148, 151 (Wright I); State v. Marcello (1991) 157 Vt. 657 [ 599 A.2d 357, 358 ]; 4 LaFave, Search and Seizure, supra, § 9.2(b), pp. 294-295, and cases cited therein.) Finally, the United States Supreme Court has consistently confirmed that its analysis under the Fourth Amendment is always grounded on “th…
discussed Cited as authority (rule) State of Tennessee v. Dennis R. Jenkins
Tenn. Crim. App. · 2003 · confidence medium
See United States v. Rideau, 949 F.2d 718, 720 (5th Cir. 1991); United State v. Smith, 162 F.3d 1226, 1226 (8th Cir. 1998); State v. Vistuba, 840 P.2d 511, 514 (Kan. 1992); State v. Lovegren, 51 P.3d 471, 475-76 (Mont. 2002); State v. Norman, 735 N.E.2d 953, 958 (Ohio Ct. App. 1999); State v. Marcello, 599 A.2d 357, 358 (Vt. 1991); State v. Kinzy, 5 P.3d 668, 675-76 (Wash. 2000); Lancaster v. State, 43 P.3d 80,105 (Wyo. 2002).
discussed Cited as authority (rule) Rowe v. State
Md. · 2001 · confidence medium
See, e.g., Crauthers v. State, 727 P.2d 9, 11 (Alaska App.1986); Smith v. State, 301 Ark. 569, 570 , 785 S.W.2d 465, 466 (1990); State v. Moore, 609 N.W.2d 502, 504 (Iowa 2000); State v. Vistuba, 251 Kan. 821, 824 , 840 P.2d 511, 514 (1992), rev’d on other grounds, State v. Field, 252 Kan. 657, 664 , 847 P.2d 1280, 1286 (1993); State v. Pinkham, 565 A.2d 318, 319 (Me.1989); State v. Brown, 509 N.W.2d 69, 71-72 (N.D.1993); State v. Rinehart, 617 N.W.2d 842, 844 (S.D.2000); State v. Marcello, 157 Vt. 657, 658 , 599 A.2d 357, 358 (1991); State v. Mireles, 133 Idaho 690, 693 , 991 P.2d 878, 881 …
cited Cited as authority (rule) State v. Guernsey
Haw. App. · 2001 · confidence medium
State v. Vistuba, 251 Kan. 821, 824 , 840 P.2d 511, 514 (1992).
discussed Cited as authority (rule) State v. Ludes (2×) also: Cited "see"
Kan. Ct. App. · 2000 · confidence medium
The deputy’s observations supported a lawful safety stop. 251 Kan. at 822, 824 .
discussed Cited as authority (rule) Wright v. State (2×)
Tex. Crim. App. · 1999 · confidence medium
Neither this Court nor the United States Supreme Court has had occasion to decide whether the Fourth Amendment authorizes officers to make "welfare" stops of law-abiding citizens. [2] However, many courts in other jurisdictions have addressed the issue, and, as far as my research has revealed, all of those have at least suggested that a stop may be authorized in the absence of reasonable suspicion or probable cause in circumstances where an officer is reasonably carrying out his role as "community caretaker." See generally United States v. Rideau, 949 F.2d 718, 720 (5 th Cir.1992), vacated on …
discussed Cited as authority (rule) Fred Rheinlander v. State
Tex. App. · 1999 · confidence medium
Ct. App. Div. 1992); In re Clayton , 748 S.W.2d 401 , 402 (Idaho 1988); Smith v. State , 785 S.W.2d 465, 466 (Ark. 1990); State v. Vistuba , 840 P.2d 511, 514 (Kan. 1992); State v. Puig , 544 P.2d 201, 202 (Ariz. 1975).
discussed Cited as authority (rule) United States v. Ozbirn
10th Cir. · 1999 · confidence medium
Stat. Ann. § 8-1522 makes it susceptible to rather arbitrary application by law enforcement officers, and the Kansas state court decisions referencing this statute do not specifically address what constitutes a violation, see, e.g., State v. Vistuba, 251 Kan. 821 , 840 P.2d 511, 513 (1992) (discussing in dicta violation of § 8-1522), the circumstances in this case persuade us Trooper Smith had probable cause to stop Mr. Ozbirn after he saw the motor home drift onto the shoulder twice within a quarter mile under optimal road, weather and traffic conditions.
discussed Cited as authority (rule) Cunningham v. State
Tex. App. · 1998 · confidence medium
See, e.g., Smith v. State, 301 Ark. 569 , 785 S.W.2d 465, 466 (1990); State v. Mitchell, 498 N.W.2d 691, 694 (Iowa 1993); State v. Vistuba, 251 Kan. 821 , 840 P.2d 511, 514 (1992); State v. Pinkham, 565 A.2d 318, 319-20 (Me.1989); People v. Davis, 442 Mich. 1 , 497 N.W.2d 910, 915 (1993); State v. Martinez, 260 N.J.Super. 75 , 615 A.2d 279, 281 (App.Div. 1992); Provo City v. Warden, 844 P.2d 360, 364 (Utah App.1992), aff'd, 875 P.2d 557 (Utah 1994); State v. Marcello, 157 Vt. 657 , 599 A2d 357, 358 (1991).
discussed Cited as authority (rule) Hulit v. State
Tex. App. · 1997 · confidence medium
Additionally, as the State recognizes in its reply brief, other state courts, when confronted with a similar issue, have adopted a “community caretaking” exception to the warrant requirement. 4 See, e.g., Smith v. State, 301 Ark. 569 , 785 S.W.2d 465 , 466 *711 (1990); State v. Mitchell, 498 N.W.2d 691, 694 (Iowa 1993); State v. Vistuba, 251 Kan. 821 , 840 P.2d 511, 514 (1992); State v. Pink-ham, 565 A.2d 318, 319-20 (Me.1989); People v. Davis, 442 Mich. 1 , 497 N.W.2d 910, 915, cert. denied, 508 U.S. 947 , 113 S.Ct. 2432 , 124 L.Ed.2d 652 (1993); State v. Martinez, 260 N.J.Super. 75 , 615…
discussed Cited as authority (rule) Rheinlander v. State (2×)
Tex. App. · 1995 · confidence medium
State v. Pinkham, 565 A.2d 318, 319 (Me. 1989). ("If we were to insist upon suspicion of activity amounting to criminal or civil infraction to meet the [ Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968)] standard, we would be overlooking the police officer's legitimate role as a public servant to assist those in distress and to maintain and foster public safety."); State v. Fuller, 556 A.2d 224 (Me.1989) (stop of car with its headlights blinking on and off four or five times within a quarter mile upheld); State v. Harrison, 111 Ariz. 508, 509 , 533 P.2d 1143, 1144 (1975) (stop…
discussed Cited as authority (rule) Barrett v. Commonwealth
Va. Ct. App. · 1993 · confidence medium
App. Ct.) (permitting stop of auto whose driver had exchanged heated words with another motorist), appeal denied, 602 N.E.2d 469 (Ill. 1992); State v. Vistuba, 840 P.2d 511, 514 (Kan. 1992) (permitting stop under Cady where officer observed erratic driving at speed significantly below posted limit); Maine v. Pinkham, 565 A.2d 318, 320 (Me. 1989) (citing Cady in allowing safety stop for “misuse of the marked lanes”); Provo City v. Warden, 844 P.2d 360, 363-65 (Utah Ct. App. 1992) (formulating test requiring showing of imminent danger to life or limb in order to validate Cady stop of motoris…
discussed Cited as authority (rule) United States v. Terry King and Valerie Jean Burdex
10th Cir. · 1993 · signal: cf. · confidence medium
Cf. State v. Vistuba, 251 Kan. 821 , 840 P.2d 511, 514 (1992) (safety reasons based on specific, articulable facts may justify vehicle stop); State v. Marcello, 599 A.2d 357, 358 (Vt. 1991) (same); State v. Pinkham, 565 A.2d 318, 319 (Me.1989); State v. Oxley, 127 N.H. 407 , 503 A.2d 756, 759 (1989) (same).
discussed Cited "see" State v. Hogue (2×)
Kan. Ct. App. · 2025 · signal: see · confidence high
See State v. Vistuba, 251 Kan. 821, 824 , 840 P.2d 511 (1992), disapproved of in part on other grounds by State v. Field, 252 Kan. 657 , 847 P.2d 1280 (1993). "[A]s long as there are objective, specific, and articulable facts from which an experienced law enforcement officer would suspect that a citizen needs help or is in peril, the officer has the right to stop and investigate." State v. Ellis, 311 Kan. 925 , 929-30, 469 P.3d 65 (2020).
discussed Cited "see" State v. Bates (2×)
Kan. Ct. App. · 2021 · signal: see · confidence high
See State v. Vistuba, 251 Kan. 821, 824 , 840 P.2d 511 (1992), disapproved of on other grounds by State v. Field, 252 Kan. 657 , 847 P.2d 1280 (1993).
discussed Cited "see" State v. Ellis (2×) also: Cited "see, e.g."
Kan. · 2020 · signal: see · confidence high
See Vistuba, 251 Kan. at 824 ; Damm, 246 Kan. at 224-25 ; Gonzalez, 36 Kan.
examined Cited "see" State v. Manwarren (4×)
Kan. Ct. App. · 2019 · signal: see · confidence high
See State v. Vistuba, 251 Kan. 821 , 824, 840 P.2d 511 (1992).
discussed Cited "see" Apodaca v. Willmore (2×)
Kan. · 2017 · signal: see · confidence high
See State v. Vistuba, 251 Kan. 821, 824 , 840 P.2d 511 (1992) (law enforcement officers frequently called upon to perform public safety duties such as investigation of vehicle accidents "'in which there is no claim of criminal liability'") (quoting Cady v. Dombrowski, 413 U.S. 433, 441 , 93 S. Ct. 2523 , 37 L.
discussed Cited "see" State v. Phillips (2×)
Kan. Ct. App. · 2013 · signal: see · confidence high
See State v. Vistuba, 251 Kan. 821, 824 , 840 P.2d 511 (1992).
examined Cited "see" State v. Moralez (4×)
Kan. Ct. App. · 2010 · signal: see · confidence high
See State v. Vistuba, 251 Kan. 821, 824 , 840 P.2d 511 (1992).
discussed Cited "see" State v. Moralez (2×)
Kan. Ct. App. · 2010 · signal: see · confidence high
See State v. Vistuba, 251 Kan. 821, 824 , 840 P.2d 511 (1992).
discussed Cited "see" City of Salina v. Ragnoni (2×) also: Cited "see, e.g."
Kan. Ct. App. · 2009 · signal: see · confidence high
See Vistuba, 251 Kan. at 824-25 . *409 Often these stops are made after the officer has actually observed something to indicate a potential public safety risk.
cited Cited "see" State v. McGinnis
Kan. Ct. App. · 2008 · signal: see · confidence high
See State v. Vistuha, 251 Kan. 821, 824 , 840 *624 P.2d 511 (1992).
discussed Cited "see" United States v. Triska (2×)
D. Kan. · 2008 · signal: see · confidence high
See State v. Vistuba, 251 Kan. 821, 824 , 840 P.2d 511, 514 (1992) (vehicle stop permissible if officer has specific and articulable facts to believe that driver is falling asleep) (agreeing with State v. Pinkham, 565 A.2d 318, 319 (Me.1989) (stop “merely for safety reasons” at 2:00 a.m. permissible when vehicle traveled straight ahead from right-turn-only lane)).
discussed Cited "see" State v. Hess (2×)
Kan. Ct. App. · 2006 · signal: see · confidence high
See State v. Toney, 253 Kan. 651, 656-57 , 862 P.2d 350 (1993) (citing State v Vistuba, 251 Kan. 821 , Syl. ¶ 1, 840 P.2d 511 [1992]).
discussed Cited "see" United States v. Zubia-Melendez (2×)
10th Cir. · 2001 · signal: see · confidence high
See State v. Vistuba, 251 Kan. 821 , 840 P.2d 511, 514 (1992) (allowing safety stops where the "safety reasons are based upon specific and articulable facts"). 4 .
discussed Cited "see" State v. Hopper (2×)
Kan. · 1996 · signal: see · confidence high
See State v. Vistuba, 251 Kan. 821, 822-23 , 840 P.2d 511 (1992) (vehicle stop upheld after officer observed driver go toward ditch, turn back, go toward ditch again, and jerk vehicle back, leaving and returning to roadway, but never crossing center line).
discussed Cited "see" Apodaca v. State, Tax and Revenue Dept. (2×)
N.M. Ct. App. · 1994 · signal: see · confidence high
Id.; see State v. Vistuba, 251 Kan. 821 , 840 P.2d 511, 514 (1992), overruled on other grounds by State v. Field, 252 Kan. 657 , 847 P.2d 1280, 1286 (1993); State v. Pinkham, 565 A.2d 318, 319 (Me.1989); State v. Martinez, 260 N.J.Super. 75 , 615 A.2d 279, 280-81 (Ct.App.Div.1992); State v. Marcello, 157 Vt. 657 , 599 A.2d 357, 358 (1991); cf. 3 Wayne R.
discussed Cited "see, e.g." United States v. Jones (2×)
D. Kan. · 2007 · signal: see, e.g. · confidence low
See, e.g., State v. Vistuba, 251 Kan. 821, 822-23 , 840 P.2d 511 (1992) (deputy observed a violation of § 1522 when the pickup left the roadway onto the dirt shoulder and was returned to the roadway at least twice); State v. Maberry, 138 P.3d 798 , 2006 WL 2129206 (Kan.App.
Retrieving the full opinion text from the archive…
State of Kansas, Appellant,
v.
Kenneth J. Vistuba, Appellee
67,267.
Supreme Court of Kansas.
Oct 30, 1992.
840 P.2d 511
Thomas J. Drees, assistant county attorney, argued the cause, and Robert T.. Stephan, attorney general, was with him on the brief for appellant., No appearance by appellee.
Six.
Cited by 73 opinions  |  Published

The opinion of the court was delivered by

Six, J.:

This is a first impression vehicle “safety stop” case. The issue is whether a law enforcement officer is. justified in stopping a vehicle based on specific and articulable observations of erratic driving which could reasonably lead to an officer’s belief that the driver is falling asleep. The reason for the stop is the safety of the driver and other highway users.

The State appeals the dismissal of a complaint charging Kenneth J. Vistuba with driving while under the influence (DUI) (K.S.A. 8-1567).

Our jurisdiction is under K.S.A. 22-3602(b)(l) (appeal by the prosecution as a matter of right from an order dismissing a complaint). Our standard of review is abuse of discretion. State v. Ward, 233 Kan. 144, 145, 660 P.2d 957 (1983).

We hold that such a safety stop is permissible. We find an abuse of discretion and reverse the trial court. The complaint is reinstated and the case remanded for further proceedings.

Facts

During the early morning hours in July 1991, Vistuba was[*822] arrested and charged with DUI. He pled not guilty and filed a motion to dismiss the complaint. The basis for the motion rested on the theory that the arresting officer, a deputy sheriff, did not have a K.S.A. 1991 Supp. 22-2402 reasonable suspicion to stop Vistuba.

The deputy testified that while on routine patrol she: (1) observed Vistuba driving below the speed limit and hugging the curb; (2) followed Vistuba out of the city limits for approximately two and one-half to three miles (the county road is blacktop with no curbing); and (3) observed Vistuba’s pickup go towards the ditch, turn back, go towards the ditch again, and then be jerked back. The pickup did leave the roadway onto the dirt shoulder; however, it always returned to the roadway.

The deputy testified: “I was afraid that the driver was possibly falling asleep because of the way the vehicle was traveling. So I turned on my red light and pulled the vehicle over.”

The direct examination of the deputy by defense counsel concluded as follows:

“Q.....Do you have any reason to believe he had committed any crimes?
“A. No.
“Q. That he was in the commission of any crime?
“A. No.
“Q. Was about to commit any crime?
“A. No, I had no reason to believe that.
“Q. You did not think that he was necessarily a suspicious person then, is that correct?
“A. No.”

On cross-examination by the State, the deputy testified that Vistuba did leave his lane of traffic when he drove off the right side of the road, but he did not cross the center line. She then testified:

“Q. You have indicated that you stopped him to check him after he had left the road and then jerked it back?
“A. I checked him to make sure that he wasn’t falling asleep, and to find out why he was driving the way he was.”

Vistuba, asserting that the stop was illegal, relied on the deputy’s testimony that she had no reasonable suspicion, as required by K.S.A. 1991 Supp. 22-2402, that he was committing, had committed, or was about to commit a crime.

[*823] The trial court dismissed the DUI charge, reasoning:

“[The deputy] was merely acting for the safety of the driver and any other member of the public that happened to be around, in case the defendant driver went to sleep behind the wheel.
“The Court feels that [the deputy] acted reasonably in stopping the vehicle for the purpose of the driver’s protection. But since there was no reasonable suspicion of the defendant having committed a crime, [was] about to commit a crime or was in the process of committing a crime, then the arrest of the defendant following the stop was illegal, and the charge of driving while under the influence against the defendant should be dismissed.”

The State’s Contentions

The State contends that the deputy had “probable cause” to stop Vistuba under K.S.A. 1991 Supp. 22-2402 because she observed a traffic violation, i.e., failure to maintain a single lane of traffic (K.S.A. 8-1522). The State, in requesting that the complaint be reinstated, emphasizes that the trial court erred in finding the stop illegal.

The State asserts that the deputy observed Vistuba commit the traffic violation of failure to maintain a single lane of traffic. This assertion is true in that the deputy did observe the violation; however, the traffic violation was not the reason Vistuba was stopped.

K.S.A. 1991 Supp. 22-2402 K.S.A. 1991 Supp. 22-2402(1) provides:

“Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand . . . the name [and] address of such suspect and an explanation of such suspect’s actions.”

K.S.A. 1991 Supp. 22-2402(1), the Kansas stop and frisk statute, is a codification of the Fourth Amendment search and seizure principles expressed in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). State v. McKeown, 249 Kan. 506, 508-09, 819 P.2d 644 (1991).

The stop of a vehicle being driven on the streets always constitutes a seizure. “The ‘stop’ authorized by K.S.A. 22-2402 requires that a law enforcement officer must have prior knowledge of facts or observe conduct of a person which causes the officer to reasonably suspect that such person is committing, has com[*824] mitted, or is about to commit a crime.” State. v. Epperson, 237 Kan. 707, Syl. ¶ 2, 703 P.2d 761 (1985).

The Safety Stop

The deputy testified that she had no reason to believe Vistuba was committing, had committed, or was about to commit a crime. When asked on cross-examination whether Vistuba’s driving on the shoulder constituted failing to maintain a single lane of traffic, she stated: “I would have to read the wording on it, bút yes, it would be.”

The stop, based on specific and árticulable facts, was made for safety reasons. '

We agree with the reasoning of the Supreme Judicial Court of Maine in State v. Pinkham, 565 A.2d 318, 319 (Me. 1989) (a case involving a stop “merely for safety reasons” at 2:00 a.m. when defendant traveled straight ahead from a right-turn-only lane).

“Nothing in the Fourth Amendment requires that the ‘specific and articulable facts’ relate to suspected criminal activity, although that was the factual context of both Terry [v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968),] and [State v.] Griffin, [459 A.2d 1086, 1089 (Me. 1983)]. If we were to insist upon suspicion of activity amounting to a criminal or civil infraction to meet the Terry/Griffin standard, we would be overlooking the police officer’s legitimate role as a public servant to assist those in distress and to maintain and foster public safety.”

We hold that a civil or criminal infraction is not always essential to justify a vehicle stop. Safety reasons alone may justify the stop, if the safety reasons are based upon specific and articulable facts. State v. Fuller, 556 A.2d 224 (Me. 1989) (defendant’s vehicle stopped for blinking headlights thought to be defective).

We find persuasive the observation of the United States Supreme Court in Cady v. Dombrowski, 413 U.S. 433, 441, 37 L. Ed. 2d 706, 93 S. Ct. 2523 (1973) (upholding, for public safety reasons, a search of out-of-state police officer’s abandoned rental vehicle before leaving it unattended, on the belief that it might contain his service revolver):

“Local police officers . . . frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”

[*825] Conduct prohibited under section 15 of the Kansas Bill of Rights is also prohibited under the Fourth Amendment to the United States constitution. State v. Bishop, 240 Kan. 647, 656, 732 P.2d 765 (1987).

A vehicle stop does not violate either the Fourth Amendment of the United States Constitution or section 15 of the Kansas Bill of Rights if the stop is based upon specific and articulable facts which constitute adequate grounds to believe that the driver is falling asleep.

Police officers do not violate the Fourth Amendment if they stop a vehicle when they have adequate grounds to believe the driver is ill or falling asleep. Cf. 3 LaFave, Search & Seizure § 7.4(f), pp. 123-24 (2d ed. 1987 & 1992 Supp.) and cases cited at n.114.

Reversed and remanded with directions to reinstate the complaint.