Saturday, June 29, 2013

No unusual to go shopping in Kansas City

Nicholas J. Heiman won in State v. Byerly, No. 108,835 (Kan. App. June 7, 2013)(unpublished), affirming Judge Fowler's suppression order.  The COA agreed with the state that the district court had applied the wrong standard (probable cause) for continued detention to allow a drug dog to arrive, but further held that the state had failed to meet the correct standard (reasonable suspicion) and, therefore, affirmed:
Although we must take into consideration a law enforcement officer's training to distinguish between innocent and suspicious behavior, an officer must be able to articulate more than a hunch that criminal activity was involved. In the present case, Deputy Samuels suspected that Byerly was involved in illegal drug activity. The deputy based his suspicion on inconsistent stories given by Byerly and Wolf regarding their travel plans for the evening, on Byerly's nervousness, and on the fact that Byerly's name previously was mentioned in relationship to drug investigations in Emporia.
Unusual or inconsistent travel plans, in combination with other factors, can contribute to reasonable suspicion justifying further investigation by a law enforcement officer. Here, the travel plans articulated by Wolf and Byerly were not significantly inconsistent. Both women stated they were going to Kansas City to shop and that they were spending the night. While Wolf did not know where they were going to stay in Kansas City, Byerly stated they were going to spend the night with her cousin. Although Deputy Samuels did not see any luggage in the pickup, it is not unusual for someone to pack lightly for a short overnight trip. Moreover, the deputy testified that it was not unusual for people to take I–35 from Emporia to Kansas City to go shopping.
Further, Deputy Samuels testified that Byerly appeared to be nervous during the traffic stop. Certainly, nervousness is a factor that can be considered along with other circumstances in a reasonable suspicion analysis. But nervousness “should be considered with caution in light of the fact that most individuals are likely to exhibit some signs of nervousness when confronted by police.”
Finally, Deputy Samuels testified he was suspicious because Byerly's name had somehow been mentioned during previous drug investigations in Emporia.  Unfortunately, Deputy Samuels did not articulate how Byerly's name had come up in investigations. Likewise, he did not articulate how this fact led him to suspect that Byerly was in the possession of drugs at the time of the traffic stop.
Why is it unfortunate?
 
[Update: the state did not file a PR and the mandate issued on July 11, 2013.]

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