State v. Evans

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NOT DESIGNATED FOR PUBLICATION

No. 116,022

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

RICHARD EDWARD EVANS,
Appellee.


MEMORANDUM OPINION

Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Opinion filed
February 10, 2017. Affirmed.

James Crux, legal intern, Jacob Gontesky, assistant district attorney, William F. Hurst IV,
assistant district attorney, Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district
attorney, and Derek Schmidt, attorney general, for appellant.

Adam Chingren, of Johnson County Public Defender Office, for appellee.

Before ARNOLD-BURGER, C.J., PIERRON and MALONE, JJ.

ARNOLD-BURGER, C.J.: Richard Evans was subject to an investigatory detention
to search for drugs. Officers found marijuana in Evans' vehicle, and he was charged with
possession with the intent to distribute, possession of drug paraphernalia, and possession
of a firearm by a convicted felon. Evans filed two motions to suppress arguing that the
police lacked reasonable suspicion to stop him. The first motion was denied, but the
second was granted. The State now appeals asserting two claims of error.

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First, the State claims that the district court erred in reconsidering another judge's
denial of Evans' motion to suppress. Because we find that such reconsideration is wholly
within the district court's discretion and we find no abuse of discretion under the
circumstances here, the State's first claim fails. Second, the State claims that the district
court erred in granting Evans' motion to suppress because the police had a reasonable and
articulable suspicion of Evans' narcotics activity to justify their investigation. We
disagree and based on the undisputed facts find that the State presents insufficient
evidence to support finding that police had reasonable and articulable suspicion to stop
Evans. Accordingly, the decision of the district court is affirmed.

FACTUAL AND PROCEDURAL HISTORY

The Lenexa Police Department received an anonymous tip that activity consistent
with drug sales was taking place at a home on Theden Circle, an upscale neighborhood in
Lenexa. In an initial attempt to investigate the tip, two detectives, Marcus Womer and
Kurt Weigel, went to the home in an unmarked police car to conduct surveillance. When
they arrived at the home, they saw a van with Missouri license plates backed into the
driveway and two men standing nearby. At some point, the detectives identified the van
as belonging to Richard Evans. Womer recognized Evans' name from a 2013 traffic stop
in which he had found marijuana and a firearm in Evans' vehicle. Dispatch also alerted
the detectives to the fact that Evans' had a prior arrest involving drug and weapon
possession, the same one Womer remembered. Evans was apparently on pretrial bond
supervision for that arrest and the case was still pending. In the 20 minutes that they
remained outside the home, the officers did not see any of the activity reported in the
anonymous tip. Womer testified that they observed nothing suspicious and nothing in the
tip specifically referred to Evans.

At the end of 20 minutes, one of the men got into the van and drove away. The
detectives followed the van.
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While the detectives were following Evans' van, they observed that twice it failed
to signal a turn. Because they were in an unmarked vehicle, the detectives asked for
another officer, Corporal Ryan Sumner, to assist them with stopping Evans. Sumner only
observed an inoperable license plate lamp. He wasn't told what violations the detectives
had witnessed. Although the detectives and Sumner all testified to witnessing at least one
traffic violation prior to stopping Evans, they admitted that the traffic violations were a
pretext and they would have stopped Evans regardless.

When Sumner stopped Evans, he walked up to his vehicle and asked for his
driver's license and insurance. Sumner believed that Evans appeared to be nervous,
noting that his hand was shaking as he reached for his driver's license. He clarified that
exhibiting nervousness when stopped by the police is not uncommon. Sumner took Evans
information back to the waiting detectives, who were standing by Sumner's patrol car. He
showed it to Womer. By this time there was at least one other backup officer on the scene
besides Womer, Weigel, and Sumner. Summer returned and had Evans step out of the
car. He had him step to the back rear passenger side of the van. Sumner testified it was
highly unusual to ask a driver to step from the car on a routine traffic stop. At that point,
Weigel and others approached and started asking Evans about his activity at the house on
Theden Circle and where he was going. Evans responded that his brother-in-law lived in
the house. Weigel asked for consent to search Evans' person, which Evans granted. No
contraband was found on Evans.

While Weigel and the others were speaking to Evans, walking around his car with
flashlights, and after they patted Evans down, Sumner retrieved his trained drug sniffing
K-9 from his vehicle. Sumner directed the dog to sniff the outside of Evans' vehicle. The
State conceded that the dog did not start around the vehicle until 14 minutes after the
stop. The dog alerted on the rear bumper. Sumner returned the dog to the vehicle and then
searched the undercarriage of the vehicle and found a black box that contained marijuana.
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At no time during the stop did the officers attempt to verify the validity of Evans' license
or insurance or write Evans a warning or ticket for any traffic violation.

Evans was arrested and charged with possession of marijuana with the intent to
distribute, possession of drug paraphernalia, and criminal possession of a firearm by a
convicted felon. Evans filed a motion to suppress the evidence discovered during the stop
in August 2015, which the district court denied. After a change in counsel and presiding
judge, Evans filed a second motion to suppress. Although initially skeptical of rehearing
an issue that had already been decided, the district court granted Evans' second motion.
The State then filed this interlocutory appeal.

ANALYSIS

The district court did not err when it considered Evans' second motion to suppress.

The State complains that the district court abused its discretion when it considered
Evans' second motion to suppress evidence because the issues it raised had already been
ruled upon in Evans' first motion to suppress. The State correctly recognizes that the
decision to reconsider an earlier ruling rests within the sound discretion of the district
court. State v. Riedel, 242 Kan. 834, 838, 752 P.2d 115 (1988). As a result, on appeal,
this court reviews the district court's decision for an abuse of discretion. 242 Kan. at 838.
A district court abuses its discretion when it acts (1) arbitrarily, fancifully, or
unreasonably so that no person would have taken the view of the district court; (2) based
on an error of law; or, (3) based on an error of fact. State v. Marshall, 303 Kan. 438, 445,
362 P.3d 587 (2015).

Without explicitly stating which of the three prongs of the abuse of discretion test
it believes the district court's decision falls into, the State contends that "a motion to
reconsider is limited to specific situations where limited circumstances warrant it" and
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that this was not one of those situations. The State goes on to cite federal cases in which
the reviewing court required a change in law, new evidence, or a showing of manifest
injustice before condoning a district court's reconsideration of an issue previously
addressed. In essence, the State argues that the district court committed an error of law.

The Kansas Supreme Court, however, does not require that the same federal
prerequisites be met before it will affirm a district court's decision to reconsider an issue.
See Riedel, 242 Kan. at 837-38. The policy rationale behind permitting a district court to
reconsider issues previously decided during the course of litigation is to "prevent
prejudice and assure the parties a fair trial." 242 Kan. at 838. Additionally, resolving
issues at the district court level increases judicial economy—rather than a district judge
leaving a known problem to be resolved on appeal and addressed on remand, a judge may
reconsider an issue and provide a solution that alleviates the need for remedial action in
the future.

In this case, the initial motion to suppress was heard by an assigned senior judge.
It was clearly an issue central to the trial and it is not unreasonable for Judge Sutherland,
who was going to be hearing the trial—presumably in front of a jury—to reconsider the
issue prior to trial. See Riedel, 242 Kan. at 838 ("We think Judge Russell, as the judge
actually presiding at the trial, acted properly in determining she should make the final
determination as to the admissibility of evidence at the trial, even though there had been
an earlier ruling on the same evidence at a pretrial motion hearing."); State v. Johnson,
No. 101,033, 2009 WL 1911755, at *1 (Kan. App. 2009) (unpublished opinion)
(affirming the district court's decision to reconsider a motion to suppress decided by a
different judge than the one hearing the trial). Moreover, our Supreme Court has
generally treated motions to suppress like other preliminary orders and has held that a
contemporaneous objection must also be made at trial even though a pretrial ruling has
been obtained. This allows the court, based on how the evidence unfolds at trial, to
reconsider its ruling. See State v. Houston, 289 Kan. 252, 270, 213 P.3d 728 (2009). If
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the judge could have reconsidered the ruling during trial, it is not unreasonable to
reconsider the ruling prior to trial. Again, the purpose is at all times to seek to assure the
parties a fair trial. The trial court did not abuse its discretion in reconsidering the motion
to suppress.

The district court did not err when it granted Evans' motion to suppress evidence.

The State argues that the district court erred when it granted Evans' motion to
suppress evidence that was obtained after a traffic stop was extended so that a drug dog
could sniff Evans' vehicle. When reviewing a district court's denial of a motion to
suppress, appellate courts utilize a bifurcated standard. Appellate courts review district
courts' factual findings to determine whether they are supported by substantial competent
evidence. In making this determination, appellate courts do not reweigh evidence or
assess the credibility of witnesses. The ultimate legal conclusions drawn from the
application of the law to the facts are reviewed de novo. State v. Reiss, 299 Kan. 291,
296, 326 P.3d 367 (2014). When the facts material to a district court's decision are not in
dispute, the question of whether to suppress is one of law over which this court exercises
unlimited review. State v. Stevenson, 299 Kan. 53, 57, 321 P.3d 754 (2014). Here, the
facts are not in dispute, so this court has unlimited review of this issue.

Both the Fourth Amendment to the United States Constitution and §15 of the
Kansas Constitution Bill of Rights protect citizens from unreasonable searches and
seizures. Courts have interpreted this protection as requiring police to have some
minimum level of reasonableness or articulable suspicion before they engage citizens in
involuntary encounters, because such interactions amount to seizures. State v. Parker,
282 Kan. 584, 588, 147 P.3d 115 (2006). The exact level of suspicion required to initiate
an encounter varies based upon the type of interaction taking place. 282 Kan. at 588.

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Courts have distinguished between four different types of law enforcement-citizen
encounters: voluntary encounters, investigatory detentions or Terry stops, public safety
stops, and arrests. 282 Kan. at 588. Voluntary encounters and public safety stops are
unique because police can engage citizens in them without first having any suspicion that
the citizen has committed, is committing, or is planning on committing a crime. 282 Kan.
at 588. An officer may engage a citizen in a short, investigatory detention or stop if the
officer has "'prior knowledge of facts or observe[s] conduct of a person which causes the
officer to reasonably suspect that such person is committing, has committed, or is about
to commit a crime.'" State v. Epperson, 237 Kan. 707, 711, 703 P.2d 761 (1985). When
an officer stops a moving vehicle, the resulting traffic stop is viewed as an investigatory
detention. State v. Thompson, 284 Kan. 763, 773, 166 P.3d 1015 (2007). Before an arrest
can be made, an officer must have probable cause to believe that a suspect has committed
or is committing a crime. Parker, 282 Kan. at 588.

A traffic infraction provides police with the level of suspicion necessary to initiate
a traffic stop. State v. Golston, 41 Kan. App. 2d 444, 450, 203 P.3d 10 (2009). This is
true even if the traffic violation is mere pretext for the stop. 41 Kan. App. 2d at 450.
Nevertheless, "Kansas law is clear that a traffic stop, like any investigative detention,
must be reasonably related in scope to the circumstances which justified the interference
in the first place." 41 Kan. App. 2d at 451. When an officer initiates a stop based on a
traffic infraction, the scope of the stop is limited so that the officer may only "request a
driver's license and vehicle registration, run a computer check, and issue a citation." 41
Kan. App. 2d at 451. Once the officer has completed those routine tasks, "the driver must
be allowed to proceed on his or her way, without being subject to further delay by the
officer," unless the officer has reasonable and articulable suspicion that the driver has, is,
or is going to engage in some other illegal activity. 41 Kan. App. 2d at 451. In that case,
the detention may be extended while the officer investigates his or her suspicions. 41
Kan. App. 2d at 451.

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The United States Supreme Court has concluded that people do not have a
legitimate expectation of privacy from searches that only reveal the possession of
contraband, so the Fourth Amendment is not implicated solely by the fact that a sniff is
conducted by a trained police dog. Illinois v. Caballes, 543 U.S. 405, 408-09, 125 S. Ct.
834, 160 L. Ed. 2d 842 (2005). As a result, a trained police dog may sniff the outside of a
vehicle while an officer is conducting a lawful traffic stop without reasonable suspicion
that any occupant of the vehicle has illegal drugs, as long as the sniff does not extend the
length of the stop. Rodriguez v. United States, 575 U.S. __, 135 S. Ct. 1609, 1615, 191 L.
Ed. 2d 492 (2015).

Alternatively, police may conduct an investigatory stop of a vehicle based on
reasonable suspicion that an occupant of the vehicle has, is, or is going to commit some
crime other than a traffic infraction. Epperson, 237 Kan. at 711. Although reasonable
suspicion is not a high bar, it does require an officer to articulate "[s]omething more than
an unparticularized suspicion or hunch." State v. DeMarco, 263 Kan. 727, 735, 952 P.2d
1276 (1998). To determine whether reasonable suspicion existed, a court looks at the
totality of the circumstances, considering both the quantity and quality of the information
an officer possessed at the time he or she initiated contact to see whether the officer had
"'"a particularized and objective basis" for suspecting the person stopped of criminal
activity.'" 263 Kan. at 735. As with all investigatory detentions, when an officer stops a
vehicle based on reasonable suspicion that the driver or a passenger has, is, or is going to
commit a crime, the scope of the stop is limited by "the circumstances which justified the
interference in the first place." Terry v. Ohio, 392 U.S. 1, 19-20, 88 S. Ct. 1868, 20 L. Ed.
2d 889 (1967).

Both officers testified that their stop of Evans for failing to signal a turn and a tail
light violation was pretextual and that the true aim was to investigate for drugs. The
district court found, based on the testimony of the officers, that none of the traditional
investigation that takes place during a traffic stop (i.e., verification of driver's license and
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insurance with dispatch, running a records check, or issuing a warning or ticket)
happened after Evans was pulled over. Accordingly, the stop could not be considered a
traffic stop at all. The State seems to have accepted the district court's conclusion and
makes no real attempt to argue on appeal that the dog sniff of Evans' vehicle was legal as
part of a traffic stop. We agree that such an argument would be fruitless here.

In this case, officers did absolutely nothing to pursue the traffic offenses. An
investigating officer must diligently pursue his or her investigation and the tasks
associated with the traffic stop for the traffic stop to provide the basis for further
investigatory detention. See State v Wendler, 47 Kan. App. 2d 182, 190, 274 P.3d 30
(2012). Here, officers had already determined there were no wants or warrants for Evans
when they ran his license plate through dispatch before he even left the Shawnee address.
The officers did not diligently pursue anything regarding the traffic issues once they
stopped Evans. "An officer may expand the investigative detention beyond the duration
necessary to fulfill the purpose of the initial stop only if there is an objectively reasonable
and articulable suspicion that criminal activity was or is taking place." State v. Jones, 300
Kan. 630, 641, 333 P.3d 886 (2014). Although it only took about 14 or 15 minutes from
the initial stop before the police K-9 identified the location of drugs under Evans car,
officers do not have unlimited license to exhaust the time it would normally take to
conduct a traffic stop to instead indiscriminately search the defendant or his or her
property. Officers have the time that they are diligently pursuing a traffic stop to conduct
an investigation to discover evidence that would lead them to further reasonable
suspicion or probable cause. Because no action was taken to pursue the traffic violations,
those violations cannot provide cover for the 15-minute drug investigation.

So instead, the State focuses on whether there was reasonable suspicion of drug
activity to initiate an investigatory detention based on Evans' actions prior to the stop. In
other words, removing the traffic violations from the equation, was there reasonable and
articulable suspicion to detain and investigate Evans for drug activity?
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The factors that the State points to in order to justify the stop of Evans are Evans'
presence at a house that was suspected of being a location where drug deals were
conducted and Evans' criminal history. The State also notes that Evans seemed nervous
when he was stopped—this, however, is not a factor that can be considered in analyzing
whether there was reasonable suspicion to stop Evans since the requisite level of
suspicion must be present at the time an encounter is initiated. See Terry, 392 U.S. at 19-
20. In order to determine whether the first two factors alone gave rise to reasonable
suspicion, it is necessary to examine them more closely.

Officers testified that on the evening of March 30, 2015, they went to Theden
Circle to investigate an anonymous tip that there was suspicious activity taking place at a
home on the street. Specifically, the tipster reported that there was a lot of traffic coming
to and going from the home—people would drive up, make contact with a resident of the
home or look around in the bushes, then leave at all hours, but especially at night. Prior to
March 30, it does not appear that officers had conducted any independent investigation to
verify the anonymous tip.

On the evening of March 30, detectives arrived on the street in an unmarked police
vehicle. As they approached the home in question, they noticed a van with Missouri tags
backed into the driveway and two men standing in front of the house talking. Detectives
had dispatch run the tag and identified Evans as the owner of the vehicle. One of the
detectives, Womer, recognized Evans' name from a drug case that he had worked nearly
2 years prior. In that case, Womer had pulled Evans over for a traffic violation and ended
up finding marijuana and a loaded firearm concealed in the door panel of Evans' vehicle.
There was no indication that the case resulted in a conviction.

Detectives watched the home for approximately 20 minutes. During that time, they
observed none of the suspicious activity that the tipster had reported—Evans' van was
already there at the time they pulled up, they saw no one else come, stop for a short time,
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and go, saw no one retrieve anything, and saw no one hand anything off to anyone else.
After about 20 minutes, Evans got into his van and drove away; the detectives followed
him. While following Evans, the detectives noted several traffic infractions. Eventually
detectives called for someone in a marked police vehicle to stop Evans. Sumner
responded to the call and made the stop.

In deciding that the information the detectives possessed prior to initiating the stop
of Evans was insufficient to give rise to reasonable suspicion that Evans had, was, or was
going to commit a crime, the district court relied heavily on State v. Williams, No.
106,239, 2012 WL 5392098 (Kan. App. 2012) (unpublished opinion). There, police
conducted surveillance of a home from which

"[d]uring the past 7 years, police had stopped at least 30 people seen leaving one of
True's [the resident] homes and at least 10 of those people possessed methamphetamines
or drug paraphernalia and were arrested. Three of the arrests occurred outside the South
Mission home, and one of those arrestees even told police that she had bought
methamphetamines from True. The police also had executed a search warrant on the
home within the past year and found methamphetamines." 2012 WL 5392098, at *1.

Five minutes after they arrived, officers watched a car pull away from the home
with two women in it. One of the officers identified the vehicle as belonging to Robin
Buckley, an individual the police suspected "was involved in the local methamphetamine
culture." 2012 WL 5392098, at *1. The officers followed the vehicle and pulled it over
after they observed a traffic infraction. When officers approached the driver, they noticed
that she appeared nervous and was shaking slightly. The combination of the driver's
demeanor and the fact that she had been seen at a suspected drug house led the officers to
call for a K-9 unit to come and search the vehicle.

While they were waiting for the K-9 to arrive, the officers conducted a standard
traffic stop, checking Williams' driver's license and issuing her a citation. After the
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officers gave Williams the citation, they began asking additional questions and requested
to search the vehicle. Williams denied the request. The K-9 unit then arrived and the dog
conducted a sniff of the vehicle that indicated the presence of illegal drugs. Williams was
then arrested and additional drugs were found on her person.

Williams filed a motion to suppress all evidence gathered in the search. The
district court denied the motion finding that there was reasonable suspicion to extend the
traffic stop to conduct a sniff of the vehicle. On appeal, this court reversed. 2012 WL
5392098, at *9. This court found that Williams' connection to Buckley and to the home of
someone suspected of dealing in illicit drugs combined with Williams' nervousness did
not give rise to reasonable suspicion to justify extending the traffic stop to search for
drugs. 2012 WL 5392098, at *4-6. Here, the district court concluded that "Williams is
remarkably similar to this case, but, frankly, better facts, if you will, for the State, but the
Court of Appeals still ruled that the fruits of the search should be suppressed."

The State argues that the result in Williams is at odds with other, more persuasive
opinions in which this court has upheld the reasonableness of searches. The first case that
the State cites is Golston, 41 Kan. App. 2d 444. Golston similarly involved a motion to
suppress evidence. There, an officer was conducting surveillance of a gas station that had
been the subject of several complaints from citizens concerned about drug activity over a
2-year period of time. On that day, the officer saw a man, Anderson, pull up in a rented
car wearing gang colors with a known gang member in the passenger seat. The two men
went inside the gas station for a few minutes then left without getting gas. The officer
followed the men to an apartment complex. The passenger exited the vehicle and went to
talk with a group of other individuals standing in the parking lot. After a few minutes,
Anderson left alone and drove back to the gas station.

Anderson went back inside the gas station for a few minutes then returned to the
car with a second man, Golston. The two drove away without purchasing gas. The officer
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continued following the vehicle and watched as Anderson committed two traffic
infractions. The officer then radioed for a uniformed officer to conduct a traffic stop.
When the second officer, Pardon, stopped the vehicle, he recognized Golston as a gang
member. Pardon asked for the men's licenses, verified them, and wrote a citation. When
Pardon returned to the vehicle, he asked if he could search it. Anderson refused. Pardon
then told them that he had called for a drug dog and the men were not free to leave until
after the dog arrived and was able to sniff the car. Pardon had the men get out of the car
while they waited for the K-9 unit. After the men got out, Pardon patted each down for
officer safety. During the pat-down, Pardon discovered a large amount of money and
drugs on Golston.

Golston filed a motion to suppress the evidence which the district court denied.
The district court determined that the officers had reasonable suspicion to investigate for
drug activity "based on the totality of the circumstances, including [the gas station's]
reputation as a place where illegal drug activity occurs, the movement of the individuals
in the vehicle to several different locations in a short period of time, and the additional
information gained after the stop." 41 Kan. App. 2d at 448. This court affirmed, finding
that the police had reasonable suspicion to extend the stop based on four facts:

"(1) [Golston] had just come from an Amoco known for drug activity and where several
arrests for drug-related crimes had occurred over the past 2 years, (2) he was in the
SPIDER database as a documented gang member, (3) he was with Anderson who was on
supervised release from prison and had been involved in a prior stop involving drugs
within the last 2 weeks, and (4) Anderson had just driven Cobos form the Amoco to a
suspected drug deal and it now appeared that Anderson was driving Golston from the
Amoco to another possible drug deal." 41 Kan. App. 2d at 454.

The next case the State cites is State v. Griffin, 31 Kan. App. 2d 149, 61 P.3d 112
(2003). There, the Kansas Bureau of Investigation (KBI) set up surveillance of an
apartment building where drug arrests and seizures had been made over the prior 2 years.
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The KBI began its investigation early in the evening. Over the course of the evening,
investigators watched numerous people come to the building, enter, stay for a short time,
then leave. They also saw a person in a yellow shirt repeatedly exit the building, make
contact with people outside, go back in, then come back out and exchange something
with the person waiting. At 10:30 p.m., the KBI executed a search warrant of an
apartment in the building; officers arrested several individuals in the course of executing
the warrant.

While the search was being conducted, a car pulled up and parked in front of the
building. As an officer approached the vehicle it started to leave until the officer stepped
in front of it to stop it. This court upheld an investigatory detention of the occupants,
finding that numerous facts collectively gave rise to reasonable suspicion that the car was
at the apartment to engage in drug related activity. This court specifically relied on the
following facts:

"[O]nly three apartments were occupied by a total of four people; the KBI agents and
Officer Life observed drug transactions at the apartment building within a few hours of
the car stop; the car parked at the apartment building late at night when the other
businesses on the street were closed; other drug arrests and search warrants for drugs had
been made at the apartment building during the previous 2 years; convicted drug
offenders resided at the apartment building; an earlier stop of a vehicle behind the
apartment building had resulted in a drug arrest; and it was reasonable to infer from the
facts that the occupants in the car decided to leave after seeing the other uniformed
officers or Sergeant Life while the car was parked in front of the apartment building." 31
Kan. App. 2d at 154-55.

The State argues that the tip the officers received regarding the house on Theden
Circle combined with the prior knowledge that they had of Evans make the facts of this
case more similar to Golston and Griffin than Williams. However, this case differs from
Golston and Griffin in at least one key way—in both of those cases, police spent time
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observing the defendants or their surroundings prior to initiating stops so that they had
evidence of drug activity by the defendants and/or at the locations the defendants were
observed. In Golston, the police also had observed the person Golston was in the car with
and had reason to believe that he was actively engaged in drug transactions at the time
they stopped the vehicle.

Here, the officers had no independent knowledge of whether the home on Theden
Circle was a drug house. The only evidence officers had that there was anything illicit
taking place there was an anonymous, unsubstantiated tip. On the night of Evans' arrest,
officers watched the house on Theden Circle for only 20 minutes and observed none of
the suspicious activity that had been reported to them. An anonymous tip, standing alone
rarely gives rise to reasonable suspicion to initiate a stop especially where, as here, the
information in the tip has not been corroborated and the veracity of the tipster is
unknown. See State v. Slater, 267 Kan. 694, Syl. ¶¶ 4-5, 986 P.2d 1038 (1999). Here, the
anonymous tip did not even directly relate to Evans, but rather to a house at which he was
seen. This fact raises a second red flag because it is firmly established that a person's
mere proximity to a person or place suspected of being involved in illicit activity does
not, without more, give rise to reasonable suspicion to conduct an investigatory stop. See
State v. Boykins, 34 Kan. App. 2d 144, 147, 118 P.3d 1287 (2005). Based on the fact that
an anonymous tip standing alone does not provide reasonable suspicion that the house or
occupant of the house on Theden Circle was involved in illicit activity, Evans' connection
to that place cannot provide a basis for finding reasonable suspicion existed to stop him.

That leaves only Evans' criminal history as a possible basis for finding officers had
reasonable suspicion to believe he was or had been engaged in illicit activity at the time
he was stopped. A person's criminal history alone cannot support a finding of reasonable
suspicion. United States v. Artez, 389 F.3d 1106, 1114 (2004). While criminal history can
be one factor that courts consider when deciding whether officers had reasonable
suspicion for a stop, here, Evans' criminal history combined with his presence at the
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house on Theden Circle is not enough to overturn the district court's suppression of the
evidence. The evidence was solely that he had one prior arrest almost 2 years earlier and
that he was currently on or had been on pretrial bond supervision for that offense.

There was insufficient evidence to support finding that police had reasonable and
articulable suspicion to stop Evans. The district court's decision to grant the motion to
suppress is affirmed.

Affirmed.