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State v. Andrade-Reyes

Supreme Court of Kansas

June 7, 2019

State of Kansas, Appellee,
v.
Fran Amilcar Andrade-Reyes, Appellant.

         SYLLABUS BY THE COURT

         1. 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.

         2. 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.

         3. 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 dangerous.

         4. For 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.

         5. 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.

         6. The 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 paramount.

         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.

         8. 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.

         9. 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 exist.

         10. A 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 detain.

          Review of the judgment of the Court of Appeals in an unpublished opinion filed April 21, 2017.

          Appeal 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.

          Shawn 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.

          PER CURIAM:

         Two 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.

         Before 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.

         Factual and Procedural Background

         Officers 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.

         The 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.

         The 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."

         The 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.

         Andrade-Reyes 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.

         Andrade-Reyes timely filed a petition for review, which this court granted. This court's jurisdiction is proper under K.S.A. 20-3018(b) ...


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