1 NOT DESIGNATED FOR PUBLICATION

No

. 123,715

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appell ant ,

v.

T RAVIS S COTT M OSIER , Appell ee

.

MEMORANDUM OPINION

Appeal from Rice District Court; S TEVEN E. J OHNSON , judge. Opinion filed August 13 , 202 1

. Affirmed

.

Remington S. Dalke , county attorney, and Derek Schmidt , attorney general, for appellant.

Michael S. Holland II , of Holland and Holland, of Russell, for appellee.

B efore S CHROEDER , P.J., M ALONE , J., and B URGESS , S.J.

M ALONE , J. : T he State appeals the district court's decision to grant Travis Scott Mosier's motion to suppress evidence in a prosecution for driving under the influence (DUI). A law enforcement officer stopped Mosier for a tag viola tion but then conducted a DUI investigation after smelling a " hint " of alcohol on his breath and after Mosier
admitted that he " had a few " drinks. The State argue d in district court that the odor of
alcohol and Mosier's admission established reasonable sus picion for the officer to extend
the traffic stop to conduct a DUI investigation, but the district court disagreed. We have jurisdiction over the State's interlocutory appeal under K.S.A. 2020 Supp. 22

- 3603.2 Reasonable suspicion is a lower standard than p robable cause and courts must examine the totality of the circumstances from the view of a trained law enforcement
officer. " The standard ' depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. ' Courts . . . must permit officers to make 'commonsense judgments and inferences about human behavior.'"
Kansas v. Glover , 589 U.S. ___, 140 S. Ct. 1183, 1188, 206 L. Ed. 2d 412 (2020). Still, a
mere hunch about a possible crime doe s not create reasonable suspicion. 140 S. Ct. at
1187. Although the facts here present a close question, we agree with the district court
that the offic er lacked reasonable suspicion to extend the limited scope of the traffic stop to conduct a DUI investig ation. Thus, we affirm the district court's judgment.

Factual and procedural background

On June 13, 2020, at 2 a.m., Rice County Sheriff's Deputy Joshua Blank ran the license plate on a Jeep driven by Mosier and learned that the license plate came back t o a Bonneville. Blank initiated a traffic stop and activated his body camera. The body camera did not record video of the stop but did record audio. Blank approached the driver's side of the Jeep and " got a hint of alcohol or intoxicating beverage off of [ Mosier.] "

Blank told Mosier about the license plate not matching up, but Mosier said that it should match the Jeep. Blank asked Mosier to exit the Jeep and they walked back to the license plate. Once there, Blank noticed the spare tire mount had covered t he lettering. What he had originally perceived and ran as an F was an E. Blank was sure he smelled alcohol at that point, but he did not describe the smell as being moderate or strong.

Blank asked Mosier what he had been doing that night and if he had any thing to
drink. Mosier stated he " 'had a few , '" but he did not say how much earlier in the evening he had been drinking. Blank then told Mosier to turn off the vehicle and he went back to his patrol car to run the correct license plate. After hearing ba ck from dispatch that the3 plate and documents matched Mosier 's Jeep , Blank informed dispatch that he would be

" conducting SF S Ts [standard field sobriety tests]

. "

Blank got out of his patrol car, went back to the Jeep, and again asked Mosier how much he had to drink, to which Mosier responded, " probably plenty. " Blank then
informed Mosier he would " go ahead and conduct some evaluations " to which Mosier responded, " Y es, sir. " Blank conducted the field sobriety tests and arrested Mosier for suspicion of driving under the influence. After being transported to the jail, Mosier
submitted to a breath test that resulted in a BAC reading of 0.132. The State charged
Mosier wi th DUI based on operating a vehicle with a BAC of 0.08 or more.

Mosier moved to suppress the evidence , arguing that Blank lacked reasonable suspicion to extend the traffic stop to conduct a DUI investigation , and the district court held a hearing. The Sta te admitted Blank's body camera audio into evidence. Blank also
testified about smelling a " hint " of alcohol on Mosier and his admission that he " 'had a
few. '" Blank said he asked Mosier what a few meant , and he responded, " 'I don't know. A
few. '" Blank te stified that he then asked if Mosier would be willing to do field sobriety testing. Blank said Mosier was " very cooperative and said that he would. " On cross

examination, Blank admitted that he noticed the hint of alcohol but otherwise observed

no other in dications of impairment before he conducted the field sobriety tests.

After hearing Blank's testimony, but before listening to the body camera audio , the district court found the initial stop for the tag violation to be appropriate but found no reasonable suspicion to otherwise require Mosier to submit to field sobriety test s . The district court explained that Blank's testimony made it sound like Mosier voluntarily agreed to the field sobriety tests and the court asked the parties to brief the vo luntariness
of the field sobriety tests and its effect on extending the stop. The State later waived any argument that the traffic stop was properly extended by Mosier's consent but asked the district court to reconsider its ruling on reasonable suspicion

.4 On February 10, 2021, the district court filed a memorandum decision granting Mosier's motion to suppress. On the consent issue, the district court stated that it listened to the audio recording of the stop and " found [Blank's] testimony to not be complet ely accurate regarding [Mosier's] consent . . . to the field sobriety tests. Therefore, the court is not finding there was consent to extend the stop even if it was possible. " The district
court framed the issue as " whether or not the slight smell of alcoh ol on [Mosier's] breath and the admission that he had previously consumed alcohol are sufficient grounds to extend the traffic stop for the purpose of the field sobriety tests. " Relying on Chambers v. Kansas Dept. of Revenue , No. 115,141, 2017 WL 1035442 ( Kan. App. 2017) (unpublished opinion), the district court found the slight smell of alcohol and Mosier's
admission were insufficient to establish reasonable suspicion to extend the traffic stop to conduct a DUI investigation. The State timely filed this in terlocutory appeal.

Did the district court err in granting Mosier's motion to suppress?

The State claims the district court erred in granting Mosier's motion to suppress. More specifically, the State contends that Mosier's admission that he " had a few " and

" probably plenty " along with the odor of alcohol created a reasonable suspicion for Blank
to extend the traffic stop to conduct a DUI investigation . T o support its claim, the State
relies mainly on Pasek v. Kansas Dept. of Revenue , No. 91,933, 2004 WL 2694279 (Kan. App. 2004) (unpublished opinion) , a 2004 Kansas driver's license suspension case, in
which our court found that the odor of alcohol on a driver's breath established r easonable suspicion al lowing an officer to conduct field sobriety testing.

Mosier responds that he could find no case upholding a DUI investigation based solely on the " hint " of alcohol on the driver's breath. He focuses on the fact that Blank
conducted the DUI investigation w ithout observing any evidence of impaired driving.
Mosier cites State v. Pollman , 286 Kan. 881, 190 P.3d 234 (2008) to support his argument that reasonable suspicion did not exist to extend the scope of the traffic stop.5 When, as here, the facts supporting the district court's decision on a motion to

suppress are not disputed , the ultimate question of whether to suppress is a question of law over which the appellate court exercises unlimited review. State v. Hanke , 307 Kan. 823, 827, 415 P.3d 966 (2018). Mo reover, our Supreme Court has stated that whether reasonable suspicion exists is a question of law subject to unlimited review by appellate

courts. State v. Jones , 300 Kan. 630, 642, 333 P.3d 886 (2014).

The Fourth Amendment to the United States Constitut ion protects people from unlawful seizure and a traffic stop constitutes a seizure of the driver. State v. Sharp , 305 Kan. 1076, 1081, 390 P.3d 542 (2017)

. To comply with the Fourth Amendment, law
enforcement must " 'have a reasonable and articulable suspicion, based on fact, that the person stopped has committed, is committing, or is about to commit a crime. '" 305 Kan.
at 1081 ; K.S.A. 22

- 2402( 1 )

. Reasonable suspicion is a lower standard than probable
cause and courts must examine the totality of the circumstances from the view of a
trained law enforcement officer. Sharp , 305 Kan. at 1081

. " Reasonable suspicion is " 'a particularized and objective basis " for sus pecting the person stopped of criminal activity. ' " State v. Lowery , 308 Kan. 359, 366, 420 P.3d 456 (2018)

.

" During a routine traffic stop, a law enforcement officer may request a driver's license, proof of insurance, and vehicle registration; run a comput er check; and issue a
citation. " State v. Coleman , 292 Kan. 813, 816, 257 P.3d 320 (2011). But generally, once the officer determines that the driver has a valid license and the purpose of the traffic stop has ended, the driver must be allowed to leave wit hout further delay. 292 Kan. at 816.

An encounter between a law enforcement officer and a driver can be extended beyond the scope of a routine traffic stop if it becomes consensual and the driver voluntarily agrees to submit to more questioning. State v. Thompson , 284 Kan. 763, 775, 166 P.3d 1015 (2007). Absent consent, an officer may expand the investigative detention beyond the duration necessary to fulfill the purpose of the initial stop only if there is an6 objectively reasonable and articulable suspici on that criminal activity was or is taking place. Jones , 300 Kan. at 641.

Here, neither party disputes the validity of the original traffic stop even though it
stemmed from Blank's mistake of fact. Likewise, the State waived any argument in
district court that the traffic stop was properly extended by Mosier's consent, and it asserts no such argument on appeal. Instead, the only question on appeal is whether Blank had reasonable suspicion of criminal activity when he extended the limited scope
of the traff ic stop for a possible tag violation to investigate Mosier for DUI.

To begin, as Mosier points out in his brief , the State mischaracterizes the facts that can be used to support a finding that Blank had a reasonable suspicion to extend the stop.
The State asserts in its brief that after Mosier admitted that he " had a few, " Blank asked
Mosier " one final follow

- up question " about how much he had to drink, and Mosier responded " probably plenty " be fore Blank extended the traffic stop. But the undisputed evidence does not support the State's argument. Blank did not ask Mosier the second question about how much he had to drink until after Blank learned that Mosier's tag was valid, and Blank already ha d decided to extend the traffic stop for a DUI investigation.

When Blank learned from dispatch that the tag on Mosier's Jeep was valid, the original purpose of the traffic stop ended. But Blank told dispatch at that time that he would be conducting field sobriety tests on Mosier. Blank then returned to Mosier's Jeep and asked him again how much he had to drink. Blank already had informed dispatch that he would be conducting field sobriety test s before Mosier told him that he " probably [had] plenty " to drin k, and the follow

- up question had nothing to do with the tag violation. Thus, Blank extended the traffic stop before Mosier admitted to probably drinking plenty. A s a result , the question here is whether the " hint " of alcohol on Mosier
and his response tha t he " had a few " established reasonable suspicion to extend the stop

.7 The odor of alcohol and its effect on establishing a reasonable suspicion for a DUI investigation has been examined in many cases. Th e parties focus on three cases

— Pasek , Pollman , and Chambers

— in arguing whether reasonable suspicion existed in this case.

In Pasek , law enforcement arrived at the scene of an accident and learned that the
victim had been transported to the hospital in a red truck. Law enforcement saw the truck
drivin g through town towards the hospital at a high rate of speed. At the hospital, the driver carried the victim into the emergency room without stumbling or slurring his speech. Kansas Highway Patrol Trooper Darrin Hirsh started to talk to the driver, Pasek,

a bout the victim and noticed he had the odor of alcohol on his breath. When asked, Pasek
told Hirsh that he had " 'a couple of beers. '" 2004 WL 2694279 , at *1 . Pasek completed field sobriety tests and submitted to a breath test. Based on the results, the Kan sas Department of Revenue (KDR) suspended Pasek's driv ing privileges. He petitioned for judicial review, arguing the odor of alcohol alone is not sufficient suspicion of DUI. The district court agreed and vacated the suspension. 2004 WL 2694279 , at * 1

.

The KDR appealed and this court addressed the issue of whether law enforcement
officers " have reasonable suspicion to conduct field sobriety tests if the driver has an
obvious odor of alcohol on his or her breath. " 2004 WL 2694279, at *3. This court held :

"The odor of alcohol on Pasek's breath indicated the possibility that he was driving under the influence of alcohol. At this point, Hirsh certainly did not have probable cause to arrest Pasek for driving under the influence of alcohol. However, while all the normal indicators of intoxication were not present, Hirsh unquestionably had reasonable suspicion that Pasek had been drinking and driving and Hirsh was within his authority to request Pasek perform the normal filed sobriety tests." 2004 WL 2694279, at *4.

M ore recent cases seem to require more than the mere odor of alcohol to establish reasonable suspicion for a DUI investigation. In Pollman , law enforcement officers at first stopped Pollman's wife on her motorcycle for a traffic violation

. Pollman, who was8 riding a separate motorcycle, refused to follow officers ' instructions to leave the area.
Another officer arrived and talked to Pollman. The officer smelled alcohol on Pollman's
breath and when asked , Pollman admi tted he had consumed a few beers

. Officers then conducted field sobriety tests and evidentiary breath tests on Pollman and arrested him
for DUI. Pollman moved to suppress the evidence arguing there was no reasonable suspicion to detain him, which the distr ict court denied.

On appeal, the Kansas Supreme Court explicitly declined to determine whether the
odor of alcohol alone supported a reasonable suspicion because there were three factors present to support finding a reasonable suspicion: (1) Pollman's fa ilure to leave the immediate area, leading to obstruction; (2) Pollman's assertion that he drank a few beers; and (3) the odor of alcohol. 286 Kan. at 895

- 96. Our Supreme Court pointed out in its analysis that the obstruction supported a finding of reasona ble suspicion because it might
have been the result of impaired judgment caused by intoxication , and the officer's question of whether Pollman had been drinking was appropriate because it was

" legitimately linked to the discussion about obstruction. " 286 Kan. at 895 . Thus, the court held that " there existed a minimum level of objective justification sufficient for the investigative detention of Pollman. " 286 Kan. at 897

.

Finally, as recognized by the district court, Mosier's case is almo st identical to
Chambers

. In that case, the officer stopped Chamber's for a defective tag light and
noticed the odor of alcohol on Chambers ' breath. Chambers also admitted that he " 'had a couple '" when asked by the officer if he had been drinking. 2017 WL 1035442, at *1

. Th is court recognized that the case presented a " close call " but concluded that the odor of alcohol and the admission of drinking two beers did not amount to reasonable suspicion to request a preliminary breath test. 2017 WL 1035442, at *6

. Th is court pointed to
Pollman and explained that only two of the three factors in that case were present in
Chambers ' case

. Further, it explained that Chambers ' admission to drinking two beers was unlikely to have rendered him unsafe to drive. 2017 WL 103 5442, at *7

.9 Mosier's case, like Chambers , falls between Pollman and Pasek . As in all three cases, Blank sme lled alcohol on Mosier's breath. Similarly, Mosier admitted to drinking. But Mosier's admission is not as strong a factor as it was in Pollman given the totality of
the circumstances . Unlike the obstruction in Pollman , which could have been because of intoxication, there is no reasonable link between a tag violation and intoxication. Further, and contrary to the State's assertion, Mosier's admission that he " had a few " likely does not establish that Mosier was driving with an illegal level of alcohol in his body. See City of Wichita v. Mo litor , 301 Kan. 251, 267, 341 P.3d 1275 (2015) (explaining that driver's admission to having two or three beers " would be evidence that tends to refute the notion that the driver was operating the vehicle with an illegal level of alcohol in his or her body , i.e. , it is questionable whether two or three beers would raise the alcohol
concentration in the breath or blood of a normal size man to .08 or more " ).

The law requires courts to examine the " totality of the circumstances " to determine
the existence of reasonable suspicion. Sharp , 305 Kan. at 1081. This means that courts must consider the existence of evidence supporting reasonable suspicion along with the
lack of other evidence that typically supports reasonable suspicion in similar cases. Blank
detecte d a " hint " of alcohol coming from Mosier and when asked about drinking, Mosier
stated he " had a few. " But Mosier did not say how much earlier in the evening he had been drinking. Blank testified he did not get a good look at Mosier's eyes until the evaluations to tell if they were bloodshot or watery. There is no evidence that Mosier
slurred his speech or fumbled for his driver's license. Blank observed Mosier standing next to his Jeep and did not notice any problems with his balanc e. Most importantl y, Blank did not observe any impaired driving by Mosier , like weaving or swerving, and he did not observe Mosier commit any traffic infractions. Mosier reacted appropriately to Blank's emergency equip ment when Blank pulled him over for the tag violation.

It is not illegal to drink alcoholic beverages and then drive a vehicle ; in fact, law

abiding citizens combine the se two activities routinely . It is only illegal for a person to10 drive with a blood

- alcohol level above the legal limit or to drive under the i nfluence of alcohol to a degree that renders the person incapable of safely driving. See K.S.A. 2020 Supp. 8

- 1567(a). Anyone who stops at a tavern for a couple of beers or drinks moderately

at a ny social gathering may have a slight odor of alcohol on their breath on the drive
home. But this is not a sign of illegal activity without any evidence of impaired driving.
Blank detected a " hint " of alcohol on Mosier's breath and he admitted that he " had a few. " We agree with the district court that this evidence a lone was insufficient for Blank to
have a reasonable and articulable suspicion that Mosier had committed, was committing,
or was about to commit a crim e

. See K.S.A. 22

- 2402( 1 ); Jones , 300 Kan. at 641.

We are mindful that reasonable suspicion is a minimal standard to support an investigative detention by law enforcement. When Blank learned from dispatch that Mosier's tag was valid and he had stopped him by mistake, he could have approached Mosier and asked for his consent to answer more questions. H ad Mosier voluntarily consented to answer more questions and then admitted that he " probably [had] plenty " to drink that evening, this evidence may have been enough to tip the scale and establish reasonable suspicion for Blank to extend the traffic stop to conduct a DUI investigation.
Each case must be judged on its individual facts and the facts here present a close question on reasonable suspicion. But for the reasons we have stated , we find that Blank lacked reasonable suspicion to extend the traffic sto p to conduct a DUI investigation, and the district court did not err in granting Mosier's motion to suppress.

Affirmed

.