Friday, December 09, 2011

Prior convictions do not support reasonable suspicion

W. Scott Toth won in State v. Fowler, No. 105,752 (Kan. App. Dec. 2, 2011)(unpublished), affirming Judge Bornholdt's suppression order in a Johnson County possession with intent prosecution.  The COA quickly found that substantial evidence supported a finding that the stop in this case was measurably extended-as long as 39 minutes--before a drug dog hit on the car.  The COA also held that the officers lacked reasonable suspicion to justify extending the detention:
It appears that Officer Busenbark believed Fowler may have been in possession of drugs based on his criminal history, which included a prior conviction for a drug offense. This court has found that criminal history alone generally is not enough to support a finding of reasonable suspicion. Such information may be considered along with other factors in determining if there was reasonable suspicion of a crime. But even in combination with all other information observed by Officer Busenbark, he did not have an objectively reasonable and articulable suspicion that criminal activity was taking place. Accordingly, we conclude that there was not a legitimate reason to measurably prolong the stop for a defective headlight.

[Update: the state did not file a PR and the mandate issued on January 5, 2012.]

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