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City of Hutchinson v. Davenport9/27/2002
more than an inchoate and unparticularized suspicion or hunch, the level of suspicion is much less than a preponderance of the evidence standard. Police officers need only have a minimal level of objective justification to make the stop. State v. Steen, 28 Kan. App. 2d 214, 217, 13 P.3d 922 (2000).
Even with the lesser requirements of the reasonable suspicion standard, the trial court properly determined that there were no articulable facts which create a suspicion that Davenport was driving while under the influence or was involved in any other criminal activity. Even if we combine the knowledge of Henderson and Miller, the only facts suggestive of unusual conduct are that Davenport had alcohol on his breath and that he stated he was walking. Neither of these facts by themselves or together create a reasonable suspicion that justified Miller stopping Davenport in the absence of some indication that he was intoxicated and too impaired to drive.
The City cites many cases to bolster its argument that the stop was proper. In each situation where the court found the stop to be proper, however, there were some facts which indicated that the defendant had engaged in some illegal activity prior to being stopped. Here, no such facts exist. Alcohol on one's breath alone does not provide a reasonable suspicion to support a stop, nor does the statement by Davenport that he was walking.
Affirmed.
DESIGNATED FOR PUBLICATION
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