BY THE COURT
Fourth and Fifth Amendments to the United States Constitution
provide occasionally overlapping, but nevertheless distinct,
protections. Under the Fourth Amendment, a person is
protected from unreasonable searches and seizures. But under
the Fifth Amendment a person's privilege against
self-incriminating statements is the privilege being
Under the Fifth Amendment, statements stemming from custodial
interrogation must be excluded unless the State demonstrates
it used procedural safeguards, i.e., Miranda
warnings, to secure the privilege against self-incrimination.
a defendant claims his or her statements to police were not
voluntary, the State bears the burden to prove the
voluntariness by a preponderance of the evidence. A
case-by-case evaluation is employed to determine whether
police coercion was impermissibly used in obtaining a
statement. To determine whether the statement was the product
of the defendant's free and independent will, an
appellate court examines the totality of the circumstances
surrounding the statement and determines its voluntariness by
considering a list of nonexclusive factors.
confession will not be received into evidence unless it has
been freely and voluntarily made. If the confession has been
extorted by fear, it will be excluded as involuntary.
of the judgment of the Court of Appeals in 53 Kan.App.2d 394,
388 P.3d 194 (2017).
from Johnson District Court; Timothy P. McCarthy, judge.
J. Bath, of Bath & Edmonds, P.A., of Overland Park,
argued the cause, and Mitch E. Biebighauser, of the same
firm, 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.
Guein, Jr., was convicted by a jury of felony distribution of
marijuana and misdemeanor possession of paraphernalia. A
majority of the Court of Appeals panel reversed in part and
affirmed in part the district court's decision on
Guein's motion to suppress evidence and remanded to that
court. State v. Guein, 53 Kan.App.2d 394, 388 P.3d
194 (2017). Guein and the State now seek our review of
different issues in that majority decision.
issues on appeal, and this court's accompanying holdings,
1. Was the pre-Miranda statement Guein made
surrounding the initial pat-down of him admissible in
2. Was the post-Miranda statement Guein made given
voluntarily and therefore admissible in evidence? No.
result, we affirm the panel majority's decision in part
and reverse in part and remand for further proceedings in
accordance with this decision.
and Procedural History
around 1:30 a.m., Lenexa police officers Curtis Weber and
Megan Larson were driving through an area they knew had a
high rate of drug crimes. Weber saw two parked cars in the
lot of a Burger King the officers thought to be closed. He
also saw a man, later identified as Guein, move from the
driver's seat of one car to the passenger seat of the
other. Because Weber immediately suspected a drug deal, he
pulled into the lot so his patrol car was not blocking the
car. He turned off his headlights and activated no emergency
lights or sirens.
and Larson got out, with Weber approaching the driver's
side of the car (occupied by a man later identified as Jordan
Gresham) and Larson approaching the passenger's. Through
its open window, Weber detected the "very strong"
odor of what he described as "fresh" marijuana. It
is unclear whether he smelled marijuana that was raw,
recently smoked, or something else. Weber told Gresham to
"Come back here and talk to me, okay?" When Gresham
asked, "Me? What for?" Weber responded, "Yes,
you, because your car smells like marijuana." When
Gresham apparently did not respond quickly enough to satisfy
Weber, Weber dropped the request and directed Gresham to,
"Come back here and talk to me." According to
Guein's later testimony at the suppression hearing, at
this point he felt he and Gresham were being accused of
committing a crime.
then told Larson to watch the passenger (Guein) and again
directed Gresham to, "Come back here and talk to
me." Gresham complied. Weber later testified that he
made this statement because he was going to search the car.
Weber further testified, "I also believed they could be
in possession of narcotics."
gave Gresham both a pat-down search and one in which he
removed the contents of Gresham's pockets and placed them
on the car. Finding nothing, Weber then ordered Gresham to go
sit on the curb, directing that he not take the removed items
then approached the passenger side while Larson ordered Guein
out of the car. At that point, Guein and Weber were
face-to-face. Weber asked Guein if he had any weapons. When
Guein replied, "No," Weber asked to pat him down,
just "[t]o be sure." Guein agreed. Weber testified
Guein would have been moved so Guein faced away from him and
he would have instructed Guein to put his hands on his head.
Guein was in this submissive position, Weber also asked to
search Guein's pockets. After Guein agreed, Weber removed
everything from them. As Weber had done with Gresham, he
placed the contents on Gresham's car. Guein later
testified that when Weber took his possessions, "I took
it that I was gonna be here for a while."
the time Weber searched Guein's pockets and removed their
contents, Weber said, "Dude, you reek of weed."
Guein replied, "Yeah." Weber then asked, "How
much weed you got?" On the body cam video Guein can
clearly be heard to respond, "I have none."
did not accept this answer but instead asked, "You have
none?" Guein then confessed to having a "little
bag" on him. When asked at the suppression hearing why
he changed his answer, Guein testified his "pockets were
empty and [he] was still in a state where [he] wasn't
free to go." He believed Weber was going to search him
anyway, and he did not feel he had the option of not
answering his questions. Guein also testified that during the
encounter he feared for his physical safety.
asked Guein to retrieve the bag of marijuana. After Guein
complied, he handed it to Weber who handcuffed him behind his
back. Weber then walked the handcuffed Guein to the back of
the patrol car. En route, a discussion occurred that is at
the heart of the second issue on appeal, i.e., the
voluntariness of Guein's post-Miranda statement:
Weber: "Right now is the time to be honest with me, man,
okay? Don't fuck around with me and I ain't gonna
fuck around with you, okay? You hear me?"
Guein: "I'm not going to fuck around with you."
Weber: "Listen, man. I'm telling you right now I
know what you're doing out here. I'm going to ask you
some questions here in a little bit."
Guein: "Yes, sir."
Weber: "Don't fuck with me, okay?"
Guein: "I understand, sir."
Weber: "You hear me? You don't screw around with me.
I ain't gonna screw around with you. I'm gonna do
what I can to help you out, okay?"
Guein: "Yes, sir."
Weber: "I'm telling you right now, I know what's
going on, all right? Have a seat."
Weber put the handcuffed Guein into the back of the patrol
car, he asked whether there was any additional marijuana in
either of the two cars. Guein responded that marijuana was in
his car. Leaving Guein in the back of the patrol car, Weber
approached Guein's car. Inside he saw a handgun and loose
marijuana in plain view. Weber called ...