State v. Herrera

Decision Date08 October 2021
Docket NumberNo. 122,766,122,766
Citation496 P.3d 945 (Table)
Parties STATE of Kansas, Appellee, v. Gerad Chance HERRERA, Appellant.
CourtKansas Court of Appeals

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Alexander C. Driskell, assistant county attorney, Jeffery Ebel, county attorney, and Derek Schmidt, attorney general, for appellee.

Before Warner, P.J., Cline, J., and Walker, S.J.


Per Curiam:

Gerad Herrera challenges his convictions for five crimes, primarily arguing that incriminating evidence found during a pat-down search should have been suppressed before trial. We find the district court did not err when it denied Herrera's motion to suppress. We thus affirm three of his convictions—possession of methamphetamine with no tax stamp, possession of drug paraphernalia, and interference with law enforcement—but reverse his remaining convictions and vacate those sentences based on Kansas Supreme Court caselaw and the agreement of the parties.


In January 2019, Officer Michael Baker, a canine handler with the Salina Police Department, was on patrol in Salina when he passed a car being driven with an expired registration tag. Officer Baker confirmed the registration had expired and turned his patrol car around to stop the car. Before he caught up to it, the car parked on the side of the street. The car's driver and its passenger—later identified as Herrera—got out and began walking away. Officer Baker stopped and began collecting information from the driver. He then asked another officer to write a ticket so his dog could conduct a drug sniff around the car.

During the drug sniff, Officer Baker's dog alerted on the car's front passenger door. Officer Baker subsequently searched the car and, with her consent, the driver's purse, but he found nothing. He then began questioning Herrera.

Officer Baker asked if Herrera had anything illegal on him. Herrera indicated he had a knife on his belt, and Officer Baker escorted him to his patrol car to pat him down for weapons. Officer Baker removed two action figures sticking out of Herrera's jacket pockets, patted Herrera down, and asked him to empty his pockets. Herrera picked up the action figures and began placing his hand in his right pocket, which had a pocketknife clipped to the inside of it. After telling Herrera to stop, Officer Baker removed three knives—a fixed-blade knife sheathed on Herrera's belt, the pocketknife clipped inside his right pocket, and a third small pocketknife in his pocket—and continued the pat-down.

As he continued to search Herrera for weapons, Officer Baker felt the bulge of a plastic baggie in the coin pocket of Herrera's pants. Herrera told the officer the bulge was marijuana; he and Officer Baker both tried to reach for his pocket, resulting in a struggle. With the other officer's help, Officer Baker handcuffed Herrera and removed two baggies containing methamphetamine from Herrera's coin pocket. As a result of this encounter, the State charged Herrera with possession of methamphetamine, possession of methamphetamine without a drug tax stamp (as neither baggie of methamphetamine had a drug tax stamp affixed), criminal possession of a weapon by a convicted felon, possession of drug paraphernalia, and interference with law enforcement.

Herrera filed a motion to suppress the evidence obtained through the search, arguing Officer Baker lacked probable cause to search him because the dog alerted on the car, not on him personally. The district court held an evidentiary hearing on the motion. At the hearing, Officer Baker testified about his actions throughout the stop, including his decision to search Herrera for weapons and his subsequent discovery of the bulge in Herrera's coin pocket. The officer explained that he felt a plastic bag in Herrera's coin pocket and believed it "[p]ossibly [contained] illegal drugs," noting that it is common to find plastic baggies containing drugs in coin pockets. The district court denied the motion, finding that Officer Baker had discovered the drugs during his pat-down of Herrera, which was justified to protect the safety of the officers.

The case against Herrera proceeded to trial. After hearing testimony, watching video footage of the interaction from Officer Baker's bodycam, and observing the knives, a jury convicted Herrera of all five charges. The district court imposed a controlling 54-month prison sentence, ordering the sentences for the weapon- and two methamphetamine-possession convictions to be served consecutively, and 12 months' postrelease supervision.


Herrera appeals, raising several legal and evidentiary challenges to his convictions. In its briefing, the State has conceded error in two respects—acknowledging that Herrera's methamphetamine and drug tax stamp convictions are multiplicitous, and that the Kansas Supreme Court has found the statutory clause giving rise to Herrera's criminal possession of a weapon conviction is unconstitutionally vague. See State v. Hensley , 298 Kan. 422, 438, 313 P.3d 814 (2013) (multiplicity); State v. Harris , 311 Kan. 816, 824-26, 467 P.3d 504 (2020) (vagueness). Thus, the parties agree that Herrera's convictions for possession of methamphetamine and criminal possession of a weapon must be reversed, and those sentences must be vacated.

We are thus left to consider Herrera's challenges to his remaining three convictions: possession of methamphetamine without a drug tax stamp, possession of drug paraphernalia, and interference with law enforcement. In challenging these convictions, Herrera primarily argues that the district court erred when it denied his motion to suppress the evidence—that is, the baggies of methamphetamine—obtained during Officer Baker's pat-down search. He also argues that the court erred by not providing the jury with a limiting instruction regarding his previous felony conviction (which was introduced to prove an element of the criminal possession of a weapon charge). And he challenges the sufficiency of the evidence to support his convictions for possession of methamphetamine without a tax stamp and interference with law enforcement.

For the reasons explained below, we conclude the district court did not err when it denied Herrera's motion to suppress, as Officer Baker's pat-down search was reasonable and constitutionally permissible. We also find there is sufficient evidence in the record to support Herrera's convictions. And though the district court should have provided a limiting instruction regarding the use of Herrera's previous conviction, the absence of that instruction was not clear error that requires reversal. We thus affirm Herrera's three remaining convictions.

1. The district court did not err when it denied Herrera's motion to suppress.

Herrera first argues the district court erred when it denied his motion to suppress. Herrera challenges this ruling in two respects: He asserts that Officer Baker lacked probable cause to search him generally, and that Officer Baker exceeded the permissible scope of the pat-down search for weapons by reaching into his pockets. We do not find these arguments persuasive.

We review the factual underpinnings of a district court's decision on a motion to suppress evidence for substantial competent evidence and its ultimate legal conclusion de novo. State v. Reiss , 299 Kan. 291, 296, 326 P.3d 367 (2014). When the material facts are not in dispute—as here—whether evidence should be suppressed is a question of law over which our review is unlimited. State v. Stevenson , 299 Kan. 53, 57-58, 321 P.3d 754 (2014). Although a defendant initiates a constitutional challenge to a search or seizure by filing a motion to suppress the evidence in question, the State has the burden to prove any challenged police conduct was permissible. State v. Cleverly , 305 Kan. 598, 605, 385 P.3d 512 (2016).

The Fourth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment's Due Process Clause, protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Section 15 of the Kansas Constitution Bill of Rights provides "the same protection from unlawful government searches and seizures as the Fourth Amendment." State v. Daniel , 291 Kan. 490, 498, 242 P.3d 1186 (2010).

Both provisions broadly prohibit unreasonable searches and seizures. See State v. Christian , 310 Kan. 229, 233-34, 445 P.3d 183 (2019). But they also "inferentially allow[ ] ‘reasonable’ ones." 310 Kan. at 234. Reasonable searches are executed under a valid warrant or justified by one of the recognized exceptions to the warrant requirement. 310 Kan. at 234. Two of these exceptions are relevant in this case: the stop-and-frisk exception and the plain-feel exception.

Under the stop-and-frisk exception, an officer conducting an investigative stop may pat down a person for weapons if the officer reasonably suspects doing so is necessary for the officer's safety. See K.S.A. 22-2402(1) - (2) ; State v. Bannon , 306 Kan. 886, 892, 398 P.3d 846 (2017). The need to conduct a limited search for weapons must be supported by more than a mere hunch; it requires a particularized and objective basis for the suspicion. See State v. Pollman , 286 Kan. 881, Syl. ¶ 4, 190 P.3d 234 (2008) (defining reasonable suspicion). And the officer's actions must conform to the limited purpose of the frisk. Accord State v. Spagnola , 295 Kan. 1098, 1106-07, 289 P.3d 68 (2012) (searching pockets exceeded scope of frisk because it was not directed toward confirming or dispelling officer-safety concerns).

The plain-feel exception applies when, during an otherwise lawful encounter, an officer inadvertently discovers evidence whose incriminating character is immediately apparent. State v. Lee , 283 Kan. 771, Syl. ¶ 6, 156 P.3d 1284 (2007). " ‘Immediately apparent’ " requires probable cause to believe...

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