In 2019, a homeowner called 911 at 1:27 a.m. concerned that an unknown person was knocking on the home’s front door. 911 dispatched officers to the “suspicious character” call. When the first officer arrived, he saw a nearby van with its headlights on. The officer attempted to approach the van on foot, but the van drove off. A few minutes later a second officer found the same van without its lights parked a block or so away in a dark, overgrown alley. The second officer blocked the alley and turned on his red lights. Officers approached the van, contacted the occupants, and detected the odor of marijuana. The vehicle was searched, cocaine was found, and Carlos Bates was charged in state court.
Carlos filed for suppression of the cocaine alleging that the officers did not have reasonable suspicion to initially detain he and the van (blocking the alley and red lights, which led to the detection of the MJ odor and the search). The officers testified that the following facts made them suspicious: 1) knocking on a house so early in the morning spooking the homeowner; 2) the neighborhood had seen “a lot” of burglaries and gang activity; 3) in recent house burglaries the events were preceded by knocking on the front door to see if anyone was home; 4) the officers had arrived quickly and the van was the only apparent source for the door knocking; 5) [although it was uncertain whether the van occupants actually saw the first officer approach on foot], driving away just as the first officer attempted to contact the van; and, 6) almost immediately finding the same van blacked out nearby in an overgrown alley.
Surprisingly, the trial judge focused on the officers’ testimony about their uncertainty of what crime might have been being committed that night, and held that the officers obviously did not think they had reasonable suspicion of a crime, and thus they had no authority to make a valid investigatory (Terry) temporary detention. But, then the trial judge went on to hold that the officers did have grounds to have made a public safety stop (where officers are authorized to check on the safety and welfare of persons but where no criminal investigation is allowed). Hmmm.
Carlos was convicted and appealed to the Kansas Court of Appeals. An appeals panel later held that the trial judge was right to deny the suppression motion, but for the wrong reason. The panel found that the officers (even though they were uncertain in their testimony about a particular crime) did have reasonable suspicion and authority to temporarily detain the van. Having lost again, Carlos asked the Kansas Supreme Court to review all of that back and forth litigation, and the big Court agreed.
A few weeks ago, our state Supreme Court affirmed denial of the suppression motion agreeing with the Court of Appeals that based upon the totality of the circumstances of the above facts, and the reasonable inferences therefrom, that by the time the officers had approached the darkened van in the alley, the officers had reasonable suspicion that a crime had been, was being, or was about to be committed. The Court went into detail to remind Kansas judges that the reasonable suspicion standard requires consideration of the “whole picture.” Although a mere “hunch” by an officer is insufficient, reasonable suspicion is a lesser standard than probable cause. Courts are not to use a “divide and conquer” analysis by pigeonholing facts into “innocent” or “guilty” because in isolation some facts may well have wholly innocent explanations but when viewed within the “whole picture” can support reasonable suspicion.
It is apparent to those who have watched the Court for decades that changes in Court membership the last few years has had an impact on how the Court views the issue of reasonable suspicion. For too long Kansas has had an arbitrarily-set high bar for the existence of reasonable suspicion. Hopefully we are returning to the original standard contained in Terry v. Ohio.