Saturday, April 19, 2014

Strong smell of alcohol in car does not provide PC on transporting open container

Rick Kittel and KU Defender Project intern Elizabeth Landau won in State v. Stevenson, No. 104,115 (Kan. March 28, 2014), obtaining suppression of evidence in a Sedgwick County drug prosecution.  The only issue was review of the split decision of the COA on whether the strong odor of alcohol emanating from an unoccupied vehicle gives probable cause to search the vehicle for evidence of transporting an open container.  The KSC held that it did not:
In short, the totality of the circumstances in this case only establishes that the officers' observation of a very strong odor of alcohol emanating from within the vehicle, which they suspected to be the result of spilled alcohol, provided them with reasonable suspicion to extend the traffic infraction detention to further investigate whether Stevenson was transporting an open container of alcohol in violation of K.S.A. 2013 Supp. 8-1599. The officers' failure to acquire additional inculpatory facts relating to the crime being investigated before commencing their search of the vehicle rendered the search unreasonable and unlawful.
The KSC was careful to note that this search was the result of a pretextual stop and there was no evidence of intoxication and therefore the detention had to be limited to the basis for that stop.

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