State v. Weddle3/14/2000
tepped from the van, and Wirt smelled no alcohol and realized Defendant was not intoxicated. Wirt acknowledged that his purpose was accomplished at the time he finished his investigation about a possible intoxicated driver. At this point, Wirt's reasons for approaching and detaining Defendant were complete. Thus, any reasonable suspicion necessary to detain Defendant had disappeared.
In response, the State argues that reasonable suspicion to continue detaining Defendant did arise, pointing to Defendant's excessive nervousness and fidgeting. Yet, when Wirt initially approached Defendant, ordered him out of the van and questioned him, Wirt did not think Defendant's behavior or nervousness was abnormal. Only after continuing to detain him, checking his driver's license and questioning him, did Wirt conclude his actions were unusual. Therefore, any possible reasonable suspicion for continuing to detain Defendant did not arise during Wirt's lawful seizure of Defendant.
We agree with the State's contention that nervousness can be considered in determining whether reasonable suspicion exists under the totality of the circumstances. See, Stevens, 845 S.W.2d at 182. Yet, nervousness alone, even if excessive, cannot provide reasonable suspicion necessary to detain Defendant further. Woolfolk, 3 S.W.3d at 829; Slavin, 944 S.W.2d at 320; See also, State v. Rodriquez, 904 S.W.2d 531, 536-37 (Mo. App. S.D. 1995). It is common knowledge that most citizens, whether innocent or guilty, when confronted by a police officer are likely to exhibit some signs of nervousness or fidgeting. Here, Wirt could not point to anything more than Defendant's excessive nervousness and that he "stared" at the van door. These factors alone cannot support reasonable suspicion. Even Wirt acknowledged in his testimony that he simply acted on a "hunch" that something was wrong. Hunches and suspicions, even if acted on in good faith, are not enough to warrant a search or seizure. State v. Hensley, 770 S.W.2d 730, 734 (Mo. App. S.D. 1989).
The State relies on State v. Hernandez, 954 S.W.2d 639 (Mo. App. W.D. 1997) and State v. Adell, 716 S.W.2d 469 (Mo. App. E.D. 1986) to support its position. However, in Hernandez, there was something more than just nervousness to support reasonable suspicion. In that case, officers received a radio dispatch reporting that Hispanics were throwing rocks at a specific building. Hernandez, 954 S.W.2d at 641. When they arrived, they saw a group of men and got out to investigate. Id. Defendant Hernandez placed his hands in his coat pocket, turned and ran away from the police. Id. An officer ordered him to stop and then gave chase. Id. While running, the officer observed Hernandez was carrying a black object in his right hand. Id. An officer tackled Hernandez, who then tried to stab him. Id. This case involved something more than simple nervousness, but instead a full flight from police while carrying a suspicious object.
Adell is also distinguishable. In Adell, an officer received a report of shots being fired and several men chasing another man. Adell, 716 S.W.2d at 470. The officer stopped Adell for questioning because she noticed him with another man near the location. Id. at 471. Further, when the men saw her marked patrol car, they slowed down, kept looking back at the vehicle, and looked nervous. Id. The court concluded that given the time, 3:30 a.m., the proximity to the reported incident, and the behavior, the officer was justified in her initial stop of Adell. Id. In addition, we note there was no question of a continued detention beyond that necessary to investigate the dispatch.
In its brief, the State contends Wirt was concerned Defendant was under the influ
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