Bad Terry stop

Bob Thomas won in State v. Green, No. 96,336 (Kan. App. July 13, 2007) (unpublished), reversing a Wyandotte County possession with intent to sell conviction on Fourth Amendment grounds. The COA majority noted the following recitation of the totality of the circumstances:

“That it was 11:30 p.m. and basically in the middle of winter. The officers were there on what has been characterized as a Weed and Seed Program in or near a public housing authority project. That program is basically to enforce drug laws in an area that's known to have drug problems. The officers drove by the car that the defendant was sitting in. As the officers drove by, he ducked down, and I believe that act of ducking down when the officers drove by basically gave them reasonable suspicion that something was not right and that authorized further investigation and inquiry.”

In our view, although reasonable suspicion is a less demanding standard than probable cause, these undisputed facts constitute only “an unparticularized suspicion or hunch” of wrongdoing, which is insufficient for a finding of reasonable suspicion.

Because the COA majority held that this did not constitute reasonable suspicion, it suppressed the seized evidence and reversed the conviction.

[Update: the state did not file a PR and the mandate issued on August 17, 2007].