Normal nervousness and minor travel plan inconsistencies do not support reasonable suspicion

Dakota T. Loomis won in State v. Lowery, No. 116,637 (Kan. June 22, 2018), affirming Judge Segarra's suppression order in a Geary County transportation of drug proceeds prosecution. During a traffic stop for following too close, the officer directed Mr. Lowery to sit in his patrol car. While filling out a citation, the officer asked about travel plans. Move than six minutes into the traffic stop, the officer called in Mr. Lowery's license and registration information. The officer then went back to the car and asked the passenger about travel plans. Dispatch indicated no warrants for Mr. Lowery, so the officer gave him the citation and told Mr. Lowery he was free to go. The officer then asked if Mr. Lowery would answer some additional questions and consent to search the car, Mr. Lowery denied consent to search the car, and the officer then again directed Mr. Lowery to sit in the patrol ca. The officer asked for permission to have a drug dog check the car. Mr. Lowery asked whether he had any options and the officer said it was a step-by-step process. The officer said he had suspicion and detained Mr. Lowery. Because no other canine units were available, the officer went home and got his own canine unit (while backup officers stayed with Mr. Lowery). Nearly 35 minutes after the beginning of the traffic stop, the dog alerted near the trunk and the officers subsequently discovered drug related evidence after searching the car.

Judge Segarra found that the stop was over when the officer gave Mr. Lowery the citation, but that the resulting consensual encounter quickly ended when the officer directed Mr. Lowery to again sit in the patrol car. The question on appeal was whether the officer had reasonable suspicion to continue to detain Mr. Lowery.

The COA reversed finding that the officer had such suspicion, including observed nervousness, allegedly implausible travel plans, and the use of a third-party vehicle. The KSC disagreed. It observed that the video recording showed that "[w]hile Lowery can be described as nervous, especially after the officer turned to more incriminating subjects, Lowery can be seen answering [the officer's] questions with little hesitation, without confusion, and in a conversational tone." The KSC held that this supported the district court's finding that nervousness did not provide reasonable suspicion to detain. 

Similarly, the KSC upheld the district court's finding that the reported travel plan discrepancies were minor and insignificant as it related to possible criminal activity. And the KSC held that, where the car in question was properly insured, tagged, and registered with no report of it being stolen, the fact that it belonged to someone else did not support reasonable suspicion.

After reviewing all of the circumstances, the KSC agreed that the state did not meet its burden to show the challenged seizure was lawful and affirmed the suppression order.