Erratic driving and a plastic baggie do not make reasonable suspicion

Therese Marie Hartnett won in State v. Kala Jones, No. 106,605 (Kan. August 29, 2014), upholding Judge Quint's suppression order in a Finney County drug prosecution.  Judge Quint had suppressed evidence due to the pretextual nature of a stop.  The COA and the KSC agreed with the state that this was an improper basis for suppression, but also agreed with Ms. Jones that suppression was appropriate due to lack of reasonable suspicion to search.  The KSC agreed with the dissenting COA judge that it would be inappropriate to decide contested facts on appeal.  But the KSC agreed with the COA majority that it could decide the legal impact of uncontested facts on appeal and, when doing so, the record revealed a lack of reasonable suspicion:

Applying these principles to this case, as a matter of common sense, driving in an unusual travel pattern cannot by itself be a license to search a vehicle; if it was, the Fourth Amendment would offer no protection to a driver who is driving in an unfamiliar area and approaches an address from different directions in an attempt to spot a particular house number.

Adding the officer's observation of the clear, empty plastic baggie does not significantly add to the suspicion. Common sense suggests that if the bag had been used to package illegal substances, Jones or her companions would have hidden the bag along with its contents. There is no evidence of an attempt to do so before, during, or after the stop. Furthermore, as the Court of Appeals majority observed, there are a multitude of innocent uses for clear plastic bags and the presence of such a bag is not suspicious, at least by itself.

Granted, suspicion might arise if the corner of the baggie had been cut off in a manner often used for packaging illegal substances or the bag had been tied in a knot. Here, at one point in the officer's testimony before the district judge, he described what he observed as the corner of a baggie. When that description was challenged, however, the officer admitted he could not recall the specific appearance and could not say that it was just a corner. Instead, the officer continued to refer to the clear plastic baggie. Thus, all the record establishes is that there was a clear plastic baggie, an article commonly possessed by law abiding citizens.

Even when the totality of these circumstances is considered, we agree with the district judge that the officer acted on a hunch, not reasonable suspicion.

Therefore, the KSC affirmed Judge Quint's suppression order, albeit for a different legal reason.