State v. Guein, 115,426

Citation309 Kan. 1245,444 P.3d 340
Decision Date28 June 2019
Docket NumberNo. 115,426,115,426
Parties STATE of Kansas, Appellee, v. Marcus Thiasen GUEIN Jr., Appellant.
CourtUnited States State Supreme Court of Kansas

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.

The decision of the court was delivered by 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.


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 in the serial number on the handgun—which it turned out Guein legally owned—and for a K-9 unit.

Weber then approached Gresham seated on the curb and gave essentially the same warning he had given Guein:

"I'm going to tell you just like I told your buddy. We know what's going on here, okay? We're not going to ask you questions right now. We're going to ask you questions here in a minute, alright? I'm gonna tell you—don't fuck around with me, okay? You don't screw with me, I ain't gonna screw with you. You understand? Alright. And I'll tell you I know what's happening right now, alright? Have a seat."

Weber directed Gresham to the back seat of another patrol car that had arrived. He returned to Guein who by this time had been waiting about 10 minutes in the back of Weber's patrol car. Weber rapidly read Guein his Miranda rights, telling him "I've gotta do it because you're in handcuffs."

Weber: "All right, man, I'm going to read you your rights. You ever been arrested?"
Guein: "No."
Weber: "Never? You never been put in handcuffs?"
Guein: "No."
Weber: "Okay. I'm gonna read you your rights. You've seen or heard it on TV; I've gotta do it because you're in handcuffs, okay? You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and to have him present while you're being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish. You can decide at any time to exercise these rights, not answer any questions, or make any statements. Do you understand each of those rights that I've explained to you—there were five of them?"
Guein: "Yes, sir."
Weber: "And with those rights in mind, do you want to talk to me?"
Guein: "Yeah, man." (Emphasis added.)

Guein admitted he had purchased the marijuana for $25 and was there to sell it to Gresham for $50. Guein told Weber that he had never been arrested or put in handcuffs before and that he was nervous. Weber asked Guein about becoming a confidential informant. But Guein, a Missouri resident, had no contacts on the Kansas side of the state line that would be helpful. Guein lamented his lack of information that would help Weber. He repeated several times that he wished he did.

After this discussion with Guein, Weber returned to Guein's car to actually conduct a search. Inside, he found a glass jar of marijuana in a backpack on the front seat. He also found rolling papers, a marijuana pipe, a wood grinder, and a box of plastic baggies.

The State charged Guein with distribution of marijuana, felony possession of paraphernalia, and misdemeanor possession of paraphernalia. Guein filed a motion to suppress his statements and the evidence obtained as a result of the search of his person and his car.

At the suppression hearing, Guein argued: (1) his pre- Miranda statement that he had marijuana on his person and in his car should be suppressed because Weber interrogated him while he was in custody without first informing him of his Miranda rights; (2) his post- Miranda statements that he was there to sell marijuana should be suppressed because Weber had threatened him by saying, "Don't fuck around with me and I ain't gonna fuck around with you"; and (3) the physical evidence—the bag of marijuana and the items found in his car—should be excluded from evidence because they were discovered by violating his constitutional rights when Weber was questioning him.

The district court found that the police had the right to investigate the two cars parked late at night in a high-crime neighborhood as well as to further investigate after smelling the odor of marijuana coming from one of the cars. Because the court ruled Guein was not in custody until Weber handcuffed...

To continue reading

Request your trial
17 cases
  • State v. Aguirre, 119,529
    • United States
    • United States State Supreme Court of Kansas
    • April 23, 2021
    ...¶ 3, 124 P.3d 6 (2005). The State bears the burden to establish voluntariness by a preponderance of the evidence. State v. Guein , 309 Kan. 1245, 1259-60, 444 P.3d 340 (2019)."The essential inquiry is whether the statement was the product of an accused's free and independent will. The court......
  • State v. Brown
    • United States
    • Court of Appeals of Kansas
    • March 12, 2021
    ...Miranda safeguards are triggered " ‘when an accused person is (1) in custody and (2) subject to interrogation.’ " State v. Guein , 309 Kan. 1245, 1253, 444 P.3d 340 (2019). This, in turn, means that when a law enforcement officer obtains incriminating pre- Miranda statements from a defendan......
  • State v. Taylor
    • United States
    • Court of Appeals of Kansas
    • October 30, 2020
    ...manner or to a particular place that undoes a sense of choice about compliance and substitutes something approaching compulsion. 309 Kan. at 1255-56 (reasonable persons would view as involuntary when "officers immediately exert their authority. . . without advising [persons they are] free t......
  • State v. Daino
    • United States
    • United States State Supreme Court of Kansas
    • November 13, 2020
    ...courts review the factual findings for substantial competent evidence and the ultimate legal conclusion de novo. State v. Guein , 309 Kan. 1245, 1251-52, 444 P.3d 340 (2019). Here, the district court ruled, as a matter of law, that Daino could not consent through nonverbal conduct. As such,......
  • Request a trial to view additional results
2 books & journal articles
  • Suppressing involuntary confessions
    • United States
    • James Publishing Practical Law Books Suppressing Criminal Evidence Confessions and other statements
    • April 1, 2022
    ...the court held the officer’s conduct constituted an implied threat of physical violence and suppressed the statement. State v. Guein , 444 P.3d 340 (Kan. 2019). Implied promises of leniency were one factor in a totality of circumstances analysis that led to suppression in State v. Jackson ,......
  • Suppressing involuntary confessions
    • United States
    • James Publishing Practical Law Books Archive Suppressing Criminal Evidence - 2020 Contents
    • July 31, 2020
    ...manner, the court held the oficer’s conduct consituted animplied threat o physical violence and suppressed the statement. State v. Guein , 444 P.3d 340 (Kan. 2019). Implied promises of leniency were one factor in a totality of circumstances analysis that led to suppression in State v. Jacks......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT