State v. Guein
| Citation | 388 P.3d 194 |
| Decision Date | 20 January 2017 |
| Docket Number | No. 115,426,115,426 |
| Parties | STATE of Kansas, Appellee, v. Marcus Thiasen GUEIN, Jr., Appellant. |
| Court | Court of Appeals of Kansas |
Mitch Biebighauser, of Bath & Edmonds, P.A., of Overland Park, for appellant.
Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Schroeder, P.J., Leben and Gardner, JJ.
Marcus Guein, Jr., appeals his conviction for two drug-related offenses, claiming that statements he made to a police officer should not have been allowed at his trial because they weren't made voluntarily. Guein made the statements while he was handcuffed and in police custody—and after he'd been read his Miranda rights.
After carefully reviewing Guein's interaction with the police officer who questioned him, we agree with Guein that the officer's forceful admonitions to cooperate when the officer questioned him—admonitions that contained an implied threat of physical harm if Guein did not cooperate—rendered his statements to the officer involuntary and inadmissible. We therefore reverse his convictions and remand the case to the district court for further proceedings.
We want the reader to know that we do recognize that some of the language in our opinion is vulgar enough that it cannot be used on over-the-air television shows. Yet we have used it in a published judicial opinion. We do so because this language carries a certain force that's not necessarily apparent if we rephrase it. We must judge the effect of the words said—in this case by a police officer—on the person in handcuffs who heard them. To make that judgment and to explain our decision, we must repeat the actual words used and place them in the context in which they were said.
With that introduction, we turn now to the factual and procedural setting in which these issues are presented. We will then address each of the three legal issues Guein raises on appeal, only one of which is successful.
Around 1:30 a.m. on August 16, 2014, two Lenexa police officers, Curtis Weber and Megan Larson, were heading back to the police station when they noticed two cars in the parking lot of a Burger King that they believed was closed. Weber considered the area a high-crime area. The officers saw the driver of a brown Chevy Caprice, later identified as Guein, get out and enter the passenger side of the other vehicle, a blue Saturn Ion.
Believing that a drug deal was taking place, Weber pulled into the parking lot, switched off the headlights on the patrol car, and parked several spaces away from the other cars.
Weber approached the open window on the driver's side of the Ion and immediately smelled the odor of marijuana coming from the car. He asked the driver, Jordan Gresham, to step out of the car and for permission to search him. Gresham agreed; nothing was found on him.
As Weber finished with Gresham, Larson asked Guein to step out of the vehicle. Weber then approached Guein and asked him if he had any weapons on him, which Guein denied. The officer asked Guein if he would consent to a pat-down to check for weapons, and Guein did. Weber had Guein place his hands on his head during the pat-down, facing away from the officer. The officer then asked Guein if he could reach inside his pockets; Guein again consented. Weber removed several items from Guein's pockets and placed them to the side. Weber agreed at the suppression hearing that Guein was not free to leave at that point.
Weber said that while he was doing the pat-down, he noticed a strong odor of fresh marijuana coming from Guein. He said to Guein, "Dude, you reek of weed," and asked Guein how much marijuana he had on him. Guein replied, "I have none." Weber responded, "You have none?" Guein replied that he had "a little bag" on him. Weber asked him where it was, and Guein indicated that it was in his underwear. Weber asked Guein to retrieve the bag of marijuana, and he complied. After Guein had handed over the marijuana, Weber handcuffed him, with Guein's hands behind him, and began to walk with Guein to the police car.
We are able to report the next part of the conversation between Guein and Weber in detail because it's recorded on a video of their encounter and is part of our record. In between handcuffing Guein and putting Guein into the police car, Weber told Guein several things, including that he was going to be asking him some questions in a while and that Guein should "be honest with" and not "fuck with" him:
At that point, Weber placed the handcuffed Guein in the back seat of a patrol car.
We should report a few more things that Weber discussed with Guein in between handcuffing him and giving him the Miranda warnings. We don't have a recording of this part of the conversation because the district court granted the defendant's motion to keep these statements out of the jury trial. Accordingly, they were deleted from the video that was played to the jury—and that video is apparently the one that has been included in the record provided to us.
Weber testified that he had asked Guein whether there was any other marijuana in either of the cars. Guein eventually admitted that there was some in the brown Chevy Caprice. Weber looked through the windows of the car and saw a handgun on the driver's side floorboard just underneath the driver's seat and some loose bits of unsmoked marijuana (known as marijuana shake) throughout the car. As a result of this observation, Weber requested that a police unit with a drug-detection dog come to the scene. He also removed the gun from the car and secured it. Guein legally owned the gun, which he said he needed for protection in his neighborhood in Kansas City, Missouri.
Our record doesn't tell us whether Lenexa officers are trained to provide a warning of the sort given to Guein to suspects on a general basis, but we do know that Officer Weber gave essentially the same warning to both suspects in this case. After Weber had placed Guein in the police car to await their later discussion, he told the other suspect that he would ask him questions a bit later and warned him not to "fuck around with me":
And as with Guein, the other suspect was then put in the back seat of a patrol car and left to await further interrogation.
After Weber had that conversation with the other suspect, Weber returned to Guein, who had been sitting, handcuffed in the patrol car for about 10 minutes. Weber then said he was required to read Guein his rights because Guein was in handcuffs; we again have a recording of this conversation. Weber read the Miranda warnings and then asked whether Guein wanted to talk to him:
Weber then asked Guein why he was in the Burger King parking lot at 1:30 in the morning. Guein explained that he had initially gone to the Burger King for an Icee and had then met Gresham "to help him out with something." Weber asked him to explain, and Guein responded, "He had asked me, did I know where he could find something like that, and I was like, maybe so." Weber asked Guein, "Find something like what?" Guein replied, "Like what you found on me." Weber asked whether Guein meant the marijuana, and Guein responded, "Yes, sir." Upon further questioning, Guein acknowledged that he had purchased the marijuana for $25 and intended to sell it to Gresham for $50.
Guein told Weber that he was nervous and asked whether he could call his "lady friend" as she was expecting him to return. Weber responded that they would get everything "squared away" but that it would take a few minutes and instructed Guein to "sit tight."
A short time later, Weber returned to the car and spoke to Guein about whether he would be willing to speak with drug detectives...
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State v. Guein
...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 c......