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City of Hutchinson v. Davenport9/27/2002
Affirmed.
Robert Davenport was found guilty of driving under the influence in the municipal court of Hutchinson. He appealed to the district court of Reno County. That court sustained his motion to suppress certain evidence. The City of Hutchinson (City) filed this interlocutory appeal, and the district court continued the trial pending this court's ruling.
The case presents a single question: Was the stop of Davenport by the arresting officer proper under K.S.A. 22-2402? The relevant facts are not in dispute. We are presented with a question of law, and our review is de novo. See State v. Field, 252 Kan. 657, 847 P.2d 1280 (1993). We hold that the stop was not proper and that the trial court properly suppressed the evidence.
Davenport went to the Hutchinson Law Enforcement Center (Center) to check on his daughter whom the police had picked up and to locate her vehicle. Lieutenant Randy Henderson allowed Davenport into the office so Davenport could make a telephone call.
Henderson then took Davenport to the Center's basement to view his daughter's vehicle. At that time, the two men were within a few feet of each other and were together for about 5 minutes. Henderson detected the odor of alcohol on Davenport's breath. Henderson mentioned the odor to Davenport and told him not to drive a vehicle. Davenport replied he was walking, not driving, home. Henderson found this strange because Davenport had mentioned that he lived in Wichita.
Henderson had worked for the police department for 25 years. He was trained in detecting people under the influence of alcohol and had made several arrests for DUI.
After Davenport left the building, Henderson watched him from a window. Davenport walked across the street and stood near a building for less than 5 minutes. The lieutenant described Davenport's behavior as "looking around up and down the street, both to the south and specifically to the west." Henderson then saw Davenport get into a pickup truck, start it up, and back it out. He testified that he then called Sergeant David Miller who was in the area.
Henderson told Miller that a man he thought might be intoxicated had just left the station. He also relayed Davenport's earlier statements about walking although he lived in Wichita. Henderson then told Miller of Davenport's location outside.
Henderson testified at the suppression hearing that he believed Davenport was possibly intoxicated. Davenport had neither slurred his words nor had an unsteady gait. His eyes, however, were bloodshot. Henderson's concern was that Davenport might be involved in an accident and hit someone. He asked Sergeant Miller to check out and determine whether Davenport could safely operate a vehicle.
Henderson also testified Davenport did not commit any traffic infractions while backing out his pickup truck, nor did he back out in an unusual fashion. Henderson soon lost track of Davenport, but in the short time he observed him driving, Henderson noted that Davenport did not drive in an unusual manner.
Miller testified he, too, knew how to recognize people under the influence of alcohol. Upon his arrival, Miller observed Davenport walk over to a building, stand there for 3 to 5 minutes, and then get into his pickup truck.
Miller testified it looked as if Davenport was waiting for a ride. Other officers left the area, but Miller remained. He saw nothing unusual about Davenport's gait as he watched Davenport walk across the street. He saw Davenport get into his pickup, back out, and drive east. There was also nothing unusual about the way Davenport was driving. Davenport appropriately stopped at a red lig
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