Saturday, April 26, 2014

Being near a business that has been burglarized does not create reasonable suspsicion

Michael S. Holland, II, won in State v. Jacobs, No. 109,396 (Kan. App. April 4, 2014)(unpublished), obtaining a suppression order in a Ellis County DUI prosecution.  An officer had pulled over a truck in the early morning hours in an area where there had been several burglaries.  Other than the truck being in front of a business at the early hour, there was nothing suspicious.

The COA agreed that these facts did not demonstrate even the minimal level of reasonable suspicion:
Here, the district court found that reasonable suspicion existed based on “a car in a rural area in a rural business that has been burglarized three times at 1:00 in the morning.” However, the State does not explain why a person parked near a rural business late at night would be any more likely to be engaged in criminal activity than a person parked near another business late at night.
Thus, the only two facts present are the previous crimes at the business and the time of night. Under the totality of these circumstances, [the officer] did not have reasonable articulable suspicion to make a traffic stop. Absent some additional, particularized reason to have suspected the occupants of the white truck in the parking lot had committed, were committing, or were about to commit a crime, there was no reasonable suspicion at the time [the officer activated his emergency lights. [The officer's] seizure of Jacobs was therefore not lawful.
[Update: the KSC denied the state's motion to file an out of time petition for review and the mandate issued on May 14, 2014.]

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