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Nickelson v. Kansas Dep't of Revenue12/17/2004
a trooper to always check on the welfare of any vehicle pulled off the highway. Schippers testified that if somebody has pulled off the side of the road, he always checks on them, and Schippers was simply following this procedure when he approached Nickelson's vehicle.
We conclude that Schippers expressed specific and articulable facts for approaching Nickelson's vehicle for public safety concerns. The initial contact between Schippers and Nickelson was justified in this case as a lawful public safety stop.
Duration Of The Stop
Next, Nickelson argues that even if Schippers was justified in making the initial contact with Nickelson, Schippers improperly expanded the scope and length of the stop. Nickelson argues that once Schippers saw that Nickelson and the passenger were not in distress, the detention should have stopped.
Nickelson cites State v. Schmitter, 23 Kan. App. 2d 547, 933 P.2d 762 (1997), to support his argument that the length of his detention was unnecessarily extended. In Schmitter, officers observed a car turn without using a turn signal. After shining a spotlight into the vehicle, they noticed neither of the occupants had their seat belt fastened. Officers approached the passenger defendant and asked for identification. The defendant gave the officer his name but indicated he did not have any identification. Although the officer testified that he was not concerned for his safety, the officer ordered the defendant out of the car and patted him down. The defendant consented to a search of his pockets, and the officer found cocaine in the pockets.
The Court of Appeals ultimately found that the evidence was illegally seized. The court found that an individual's failure to produce written identification is not justification for a law enforcement officer to conduct a Terry search. The court ruled that the scope and duration of a seizure must be strictly limited by the circumstances of the initial stop. In order to justify a further detention for questioning on matters not related to the original stop, the officers must have reasonable suspicion that the individual has committed, is committing, or is about to commit some other crime. 23 Kan. App. 2d at 550-52. The court concluded that patting the defendant down without concern for officer safety was beyond the scope of the original stop and, therefore, the ultimate seizure of evidence was unlawful. 23 Kan. App. 2d at 552.
Schmitter can be distinguished from Nickelson's case. Here, Schippers did not arbitrarily order Nickelson out of his vehicle. Schippers immediately detected the odor of alcohol when he encountered Nickelson's vehicle. Schippers asked Nickelson out of the vehicle and expanded the scope of the original stop because of Schippers' suspicion that Nickelson was driving under the influence of alcohol.
Nickelson cites City of Hutchinson v. Davenport, 30 Kan. App. 2d 1097, 54 P.3d 532 (2002), to argue that the detection of alcohol on one's breath alone does not constitute reasonable suspicion of criminal activity on the part of the driver. In Davenport, the defendant went to the Hutchinson Law Enforcement Center to check on his daughter. While the defendant was talking to an officer, the officer detected alcohol on the defendant's breath. The officer mentioned the odor to the defendant and told the defendant not to drive; the defendant said he was walking and not driving. The officer watched the defendant leave, and in less than 5 minutes the officer saw the defendant get into a pickup truck and drive. The officer called his sergeant who was patrolling in the area and informed him of his observations. Based on this dispatch, the sergeant stopped the defendant
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