A panel of the Kansas Court of Appeals recently reviewed an interesting DUI case involving reasonable suspicion for a “stop” on private property, and whether the 20-minute KDHE deprivation period had been violated. 

Two bicycle officers in a university off-campus recreation area heard loud talking and laughter coming from a car parked at a convenience store.  As the officers got closer to the car both could see the driver drinking what appeared from the shape of the bottle and the “distinctive color” of the liquid to be a beer.  The officers were going to make a voluntary contact but before that could happen the car shifted into gear.  That changed things for the officers.

One officer hollered at the driver to stop, and the other officer positioned himself behind the car with his bicycle emergency lights on.  The driver and the car stayed.  Because of that command, the red/blue lights, and the driver’s yield, the 4th Amendment required the officers to have had reasonable suspicion that a crime had been, was, or was about to be committed.  A DUI investigation followed, and Nicholas George was arrested.  Two suppression hearings and a trial on stipulated facts resulted in George being convicted.

On appeal, George argued first that the officers did not have reasonable suspicion of transporting an open container because: 1) the bottle and liquid could have been something other than beer; and, 2) even if there was reasonable suspicion for it having been beer, at the time the officers contacted the car the car was still on private property.  George’s second argument was that at the end of George’s later 20-minute deprivation period the officer administering the test noticed that the officer’s radio was on which might cause a radio frequency error.  The officer decided to restart the test but only waited an additional 14 minutes. 

The appellate panel held that “[w]hile George argues that he could have been drinking a nonalcohol beverage, that possibility alone does not diminish the reasonable suspicion standard.  To show reasonable suspicion for a stop, the State need not rule out the possibility that the suspect is engaged in innocent behavior.”  In other words, an officer does not have to be right, the officer only needs to be reasonable.  And here is the good part: “George also argues that K.S.A. 8-1599, the statute regulating open alcohol containers in moving vehicles, only prohibits such conduct on public roads.  He argues that he could legally drive his truck in a parking lot with an open container of alcohol.  But the undisputed evidence of George shifting his vehicle into gear created a reasonable and common-sense inference that he intended to drive out of the parking lot and onto a public street.  The reasonable suspicion standard applies to an officer’s reasonable belief that a suspect is committing or is about to commit a crime.”  Is that great or what?

As for the deprivation period issue, the panel said “[l]ogically, the argument is a nonstarter.  Without finding that the 20-minute deprivation period was compromised, there would be no reason to restart the clock.  George received a 34-minute deprivation period when the time was combined, which [more than] satisfied KDHE protocol for a minimum 20-minimum period.”  In other words, the radio frequency error did not compromise the real issue of whether George had ever placed anything into his mouth during the first 20 minutes.

~Colin