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Nickelson v. Kansas Dep't of Revenue12/17/2004
's vehicle. The sergeant had not noticed the defendant driving in an unusual manner.
The Court of Appeals ultimately held that the odor of alcohol on the defendant's breath alone did not provide reasonable suspicion to support a stop. The court upheld the suppression of the evidence. 30 Kan. App. 2d at 1101. Davenport can be distinguished from Nickelson's case because Nickelson was not initially stopped due to the odor of alcohol on his breath. Rather, Schippers stopped Nickelson's vehicle to check on his welfare. It was after Schippers legitimately stopped Nickelson's vehicle when he discovered the odor of alcohol permeating from the vehicle.
In City of Norton v. Stewart, 31 Kan. App. 2d 645, 70 P.3d 707 (2003), officers stopped the defendant's vehicle for an inoperable headlight. When the officer approached the vehicle, the officer noticed a "strong odor of alcohol emanating from inside the vehicle, which also contained a passenger." 31 Kan. App. 2d at 645. The officer asked the defendant to step out of the vehicle and accompany the officer to the patrol car. While inside the patrol car, the officer detected the odor of alcohol. The defendant was ultimately charged with DUI.
The defendant contended that being asked to accompany the officer to the patrol car was beyond the permissible scope of a routine traffic stop. The Court of Appeals disagreed and found that the officer was not obligated to ignore the odor of alcohol even though this was not the reason for the initial stop. The court concluded that the officer's detection of the odor of alcohol constituted a sufficient reason to extend the scope and duration of the stop. 31 Kan. App. 2d at 649.
Here, Schippers immediately smelled a strong odor of alcohol upon approaching Nickelson's vehicle. There was no delay between the time that Schippers approached the vehicle and the time he detected the alcohol odor. Based upon Stewart, the odor of alcohol from the vehicle was sufficient to allow Schippers to detain Nickelson for further investigation.
We conclude that Schippers' initial contact with Nickelson was justified as a lawful public safety stop. When Schippers immediately smelled alcohol, the trooper had grounds to detain Nickelson for further investigation. The evidence was undisputed that Nickelson ultimately failed his blood alcohol test. The district court's decision to uphold Nickelson's driver's license suspension was supported by substantial competent evidence.
Affirmed.
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