BY THE COURT
Courts generally classify contacts between police and
individuals into four categories. Some categories describe a
seizure and others do not. The four categories are:
consensual encounters, also called voluntary encounters;
investigative detentions, commonly known as Terry
stops; public safety stops; and arrests.
Generally, courts do not consider a consensual encounter to
be a seizure within the meaning of the Fourth Amendment.
Consent itself makes the encounter reasonable, and the State
need not establish that officers had probable cause or
reasonable suspicion before initiating the encounter.
Under Terry v. Ohio, 392 U.S. 1, 18, 88 S.Ct. 1868,
20 L.Ed.2d 889 (1968), a stop and frisk may occur if two
conditions are met. First, the investigatory stop (temporary
detention) must be lawful, a requirement met in an
on-the-street encounter when a police officer reasonably
suspects that the person apprehended is committing, has
committed, or is about to commit a crime. Second, to proceed
from a stop to a frisk (pat down for weapons), the officer
must reasonably suspect that the person stopped is armed and
an encounter to be voluntary, courts examine whether the
officer's conduct would convey to a reasonable person
that he or she was free to terminate the encounter.
Appellate courts reviewing a district court's
determination of whether an encounter was voluntary examine
the factual underpinnings of the district court's
findings for substantial competent evidence and conduct a de
novo review of the district court's legal conclusions.
determination of whether an encounter between law enforcement
officers and an individual is voluntary is subject to a
totality-of-the-circumstances analysis. Several nonexclusive
factors weigh on this determination, including: knowledge of
the right to refuse; a clear communication that the person is
free to terminate the encounter or refuse to answer
questions; a physical disengagement before additional
questioning; the threatening presence of several officers;
the display of a weapon by an officer; some physical touching
of the person; the use of aggressive language or tone of
voice conveying that compliance with an officer's request
is compulsory; the prolonged retention of a person's
personal effects, such as identification; a request to
accompany the officer somewhere; interaction in a nonpublic
place; absence of other members of the public; or the display
of emergency lights. No particular factor is determinative or
7. In a
voluntary encounter between law enforcement and an
individual, the person approached need not answer any
question put to him or her; indeed, the person may decline to
listen to the questions at all and may go on his or her way.
And if the person declines, officers may not detain the
person, even momentarily without reasonable, objective
grounds for doing so; and the person's refusal to listen
or answer does not, without more, furnish those grounds.
Under the facts here, reasonable suspicion of criminal
activity did not arise when an individual in a legally parked
car appeared nervous and startled, reached toward the floor,
acted oddly, and sat with his hands clenched and out in front
of him when individuals with flashlights, who did not
identify themselves as police officers, approached the car
and demanded to know what was in his hands.
Generally, consenting to an encounter does not grant officers
permission to frisk or search. Another consent, this one
agreeing to search, is usually necessary. But some exceptions
seizure based only on officer safety concerns must be no more
than a small intrusion on individual liberty. In other words,
the seizure must be strictly limited in duration, scope, and
purpose to address the officer's safety concern, which,
on its own, does not constitute reasonable suspicion to
of the judgment of the Court of Appeals in an unpublished
opinion filed April 21, 2017.
from Johnson District Court; Brenda M. Cameron, judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office,
argued the cause and was on the brief for appellant.
E. Minihan, assistant district attorney, argued the cause,
and Stephen M. Howe, district attorney, and Derek Schmidt,
attorney general, were with him on the brief for appellee.
police officers approached Fran Amilcar Andrade-Reyes, who
was seated in a car lawfully parked in an apartment complex
parking lot. The first officer stood near the driver's
door and the second near the front passenger's door. The
first officer immediately asked Andrade-Reyes what he had in
his hands, which were clenched and held in front of him. When
Andrade-Reyes failed to respond, the officer repeated the
question several times and eventually commanded Andrade-Reyes
to open his hand. Andrade-Reyes did so and dropped a small
bag containing cocaine. He was charged with possession of
cocaine and possession of drug paraphernalia.
trial, Andrade-Reyes filed a motion to suppress evidence,
arguing the officers obtained the evidence as the result of
an unlawful seizure. The district court denied the motion,
finding the encounter was voluntary. Andrade-Reyes appealed,
and the Court of Appeals affirmed. State v.
Andrade-Reyes, No. 115, 044, 2017 WL 1425858 (Kan. App.
2017) (unpublished opinion). On review of that decision, we
hold that the officers unlawfully detained Andrade-Reyes and
conducted an illegal search. Accordingly, we suppress the
evidence and remand for further proceedings.
and Procedural Background
Megan Larson and Michael Jason Gross, while on bicycle patrol
just after midnight, noticed a car in a dark area of an
apartment complex parking lot. The officers observed two
people seated in the driver's and front passenger's
seats. They parked their bicycles several parking stalls away
from the car but did not activate the bicycles' headlamps
or emergency lights. Officer Larson approached the vehicle on
foot and stood by the driver's door. Officer Gross
followed and stood near the front passenger door.
officers directed the beams of their flashlights into the
vehicle as they approached. According to Officer Larson, the
passenger, Andrade-Reyes, appeared startled. He reached down
toward the floorboard as the officers approached. Officer
Larson testified that she could not tell what Andrade-Reyes
was doing. When she got closer to the vehicle, she noticed
Andrade-Reyes sitting upright with his hands tightly clenched
and held out in front of him. She thought this was highly
unusual and immediately began asking Andrade-Reyes what was
in his hands. Andrade-Reyes did not answer or open his hands
when first asked or upon repeated inquiry. Andrade-Reyes
eventually moved his right hand past his right knee, dropping
something and bringing his hand back up to show Officer
Larson it was empty. Officer Larson then asked Andrade-Reyes
what was in his left hand. Officer Larson apparently said,
"What's in your hand? What's in your hand? Open
your hand." (At least that is how the State quoted the
body camera audio, which is not in the record on appeal.)
Andrade-Reyes eventually opened his left hand, dropping a bag
containing a white residue, later determined to be cocaine.
State charged Andrade-Reyes with possession of cocaine and
possession of drug paraphernalia. He filed a motion to
suppress evidence, arguing the officers unlawfully seized
him. The district court denied his motion, finding the
encounter was voluntary. Alternatively, the district court
found the officers were justified in detaining Andrade-Reyes
"[b]ecause of his evasiveness, they were very nervous
about what was going on here and his reaction [to] things
made them nervous." The district court found
Andrade-Reyes' behavior "odd." The district
court also cited Officer Larson's testimony, which the
district court summarized as describing Andrade-Reyes as
looking "like a deer in the headlights. He was breathing
very, very heavy, and she even described how his carotid
artery was going." The district court went on to find
that Officer Larson's voice on the body camera's
audio sounded "nervous." The court further found
that Officer Larson did not know if there "was
ammunition or a razor blade, a weapon," which caused the
officers to be "very concerned." Accordingly, the
district court concluded that even if the situation was
considered a seizure "it was reasonable for the officers
to justify what happened here" because of officer safety
concerns. The district court then concluded the seizure
"fit in the stop and frisk exception."
case proceeded to a bench trial on stipulated facts, and
Andrade-Reyes preserved his objection to his seizure and the
subsequent search. The district court convicted him of
possession of cocaine and possession of drug paraphernalia
and sentenced him to 10 months' imprisonment, suspended
to 12 months' supervised probation.
timely appealed his convictions and sentence. The Court of
Appeals affirmed the district court, holding the encounter
was consensual, or, alternatively, any seizure was justified
by the officers' safety concerns. See
Andrade-Reyes, 2017 WL 1425858, at *4.
timely filed a petition for review, which this court granted.
This court's jurisdiction is proper under K.S.A.