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State v. Guein

Supreme Court of Kansas

June 28, 2019

State of Kansas, Appellee,
v.
Marcus Thiasen Guein Jr., Appellant.

         SYLLABUS BY THE COURT

         1. The 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 protected.

         2. 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.

         3. When 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.

         4. A 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.

         Review of the judgment of the Court of Appeals in 53 Kan.App.2d 394, 388 P.3d 194 (2017).

          Appeal from Johnson District Court; Timothy P. McCarthy, judge.

          Thomas 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.

          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.

          NUSS, C.J.

         Marcus 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.

          The issues on appeal, and this court's accompanying holdings, are:

1. Was the pre-Miranda statement Guein made surrounding the initial pat-down of him admissible in evidence? No.
2. Was the post-Miranda statement Guein made given voluntarily and therefore admissible in evidence? No.

         As a result, we affirm the panel majority's decision in part and reverse in part and remand for further proceedings in accordance with this decision.

         Facts and Procedural History

         At 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.

         Weber 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.

         Weber 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."

         Weber 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 with him.

         Weber 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.

         While 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."

         About 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."

         Weber 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.

         Weber 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."

         When 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 ...


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