NOT DESIGNATED FOR PUBLICATION. No. 115,044 IN THE COURT OF APPEALS OF THE STATE OF KANSAS. STATE OF KANSAS, Appellee,

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1 NOT DESIGNATED FOR PUBLICATION No. 115,044 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. FRAN AMILCAR ANDRADE-REYES, Appellant. MEMORANDUM OPINION Affirmed. Appeal from Johnson District Court; BRENDA M. CAMERON, judge. Opinion filed April 21, Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee. Before ARNOLD-BURGER, C.J., BUSER and POWELL, JJ. Per Curiam: Fran Amilcar Andrade-Reyes appeals his drug convictions on the grounds that the district court should have granted his motion to suppress. While sitting in a vehicle parked in an apartment complex parking lot, Andrade-Reyes was approached by two police officers, one of whom requested that he show her what was in his clenched hands. When Andrade-Reyes did, he dropped a plastic bag of cocaine. The State subsequently charged Andrade-Reyes with possession of cocaine and possession of drug paraphernalia, and he filed a motion to suppress the evidence, which the district court 1

2 denied. After reviewing the record, we conclude the encounter was voluntary and not a seizure, and we affirm the district court. FACTUAL AND PROCEDURAL BACKGROUND On August 15, 2014, shortly after midnight, Lenexa Police Officers Megan Larson and Jason Gross were patrolling on their bicycles in an apartment complex considered a high-crime area known for drugs and prostitution. Larson noticed a vehicle with two occupants parked in a dark area of the parking lot, so she approached the vehicle. Larson intended to simply speak with the people in the vehicle to see what was going on. The officers parked their bicycles without activating their emergency lights. As Larson approached the driver's side of the vehicle, she noticed the person in the front passenger seat, later identified as Andrade-Reyes, looking at her and reaching toward the floorboard. Andrade-Reyes appeared very nervous and had his fists clenched, causing Larson concern for the officers' safety because she did not know if Andrade- Reyes had a weapon in his hands. In a normal tone, Larson asked Andrade-Reyes what was in his hands or told him to show her what was in his hands. At first, Andrade-Reyes did not respond, prompting Larson to repeat this request several times. Andrade-Reyes eventually responded by moving his right hand past his knee and then bringing it back up empty. As this exchange took place, Gross approached the passenger-side door of the vehicle and saw Andrade-Reyes raise his right hand from his leg while leaving his left hand still clenched. Larson then asked Andrade-Reyes, perhaps more than once, what was in his other hand. Andrade-Reyes eventually opened his left hand and dropped a plastic bag with white residue in the center console area. From her training and experience, Larson recognized the white residue as cocaine. The State charged Andrade-Reyes with possession of cocaine and possession of drug paraphernalia. After a preliminary hearing, Andrade-Reyes filed a motion to 2

3 suppress all evidence and statements, arguing that his detention and the search of his clenched hands were unreasonable. In response, the State argued the officers' encounter with Andrade-Reyes was voluntary and that even if the encounter was a detention, it was lawful on the basis of officer safety and the officers having reasonable suspicion that a crime had been or was being committed. At the suppression hearing, both Larson and Gross testified. A short video from Gross' body camera was also played, but this video was not included in the appellate record. At the end of the hearing, the district court ruled from the bench and denied the suppression motion, concluding the encounter between the officers and Andrade-Reyes was voluntary and not a seizure. Alternatively, the district court noted that even if the encounter amounted to a seizure, the officers' actions were reasonable based on Andrade-Reyes' evasiveness and nervousness. To preserve the issue of the district court's denial of his motion to suppress, Andrade-Reyes proceeded to a bench trial on stipulated facts. Based on those facts, the district court found Andrade-Reyes guilty and sentenced him to a total of 10 months in prison but placed him on probation for 12 months. Andrade-Reyes timely appeals. DID THE DISTRICT COURT ERR IN DENYING ANDRADE-REYES' MOTION TO SUPPRESS? When reviewing a district court's ruling on a motion to suppress, "[o]ur review... is bifurcated. Without reweighing the evidence, the appellate court first examines the district court's findings to determine whether they are supported by substantial competent evidence. [Citation omitted.] The district court's conclusions are then reviewed de novo. If there are no disputed material facts, the issue is a question of law [subject to] unlimited review." State v. Karson, 297 Kan. 634, 639, 304 P.3d 317 (2013). 3

4 Both the Fourth Amendment to the United States Constitution and 15 of the Kansas Constitution Bill of Rights protect individuals from unreasonable seizures. State v. Garza, 295 Kan. 326, 331, 286 P.3d 554 (2012). Kansas courts have recognized four types of encounters between police and the public: "consensual encounters which are not seizures; investigative detentions, commonly known as Terry stops; public safety stops; and arrests.... Once we have determined a seizure occurred, we must then determine whether the seizure was reasonable." State v. Reiss, 299 Kan. 291, 297, 326 P.3d 367 (2014); see Terry v. Ohio, 392 U.S. 1, 18, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Reasonableness is the central consideration in determining whether a seizure was constitutionally permissible. State v. Spagnola, 295 Kan. 1098, 1105, 289 P.3d 68 (2012) (citing Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 136 L. Ed. 2d 347 [1996]). A seizure's reasonableness is generally decided by weighing "the public interest and the individual's right to personal security free from arbitrary interference by law enforcement officers." State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 45 L. Ed. 2d 607 [1975]). An encounter is consensual if "under the totality of the circumstances, the law enforcement officer's conduct conveys to a reasonable person that he or she was free to refuse the requests or otherwise end the encounter." Thompson, 284 Kan. at 775. The standard has also been phrased as whether "'a reasonable person would feel free "to disregard the police and go about his business," [citation omitted], the encounter is consensual and no reasonable suspicion is required.... "Only when the officer... has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred."'" State v. Reason, 263 Kan. 405, , 951 P.2d 538 (1997) (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 [1991]), disapproved in part on other grounds by State v. Berreth, 294 Kan. 98, 273 P.3d 752 (2012). 4

5 When considering the totality of the circumstances, we weigh a nonexclusive list of factors to aid in determining if an encounter was consensual or a seizure. State v. Murphy, 296 Kan. 490, 492, 293 P.3d 703 (2013). Factors that point to a consensual encounter include "knowledge of the right to refuse, a clear communication that the [individual] is free to terminate the encounter or refuse to answer questions, return of the [individual's] license and other documents, and a physical disengagement before further questioning." Thompson, 284 Kan. at 811. Factors that point to a seizure include "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, the use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory, the prolonged retention of a person's personal effects such as identification, a request to accompany the officer somewhere, interaction in a nonpublic place, absence of other members of the public, or the display of emergency lights. [Citations omitted.]" 284 Kan. at 811. A single factor is not legally dispositive, nor do we merely count the factors favoring one side or the other. Murphy, 296 Kan. at 493. Rather, under the totality of the circumstances, a factor may be more dispositive in one case than in another. 296 Kan. at 493. Here, Andrade-Reyes' encounter with the officers was not a seizure. Considering the factors mentioned above, neither officer had a threatening presence, the record does not indicate that either officer displayed a weapon, Larson did not use aggressive language, the interaction occurred in a public place, and the emergency lights on the officers' bikes were not displayed, all of which suggest the encounter was consensual. Although Larson spoke to Andrade-Reyes about what was in his hands several times, she could not remember if she told him to show her what was in his hands or simply asked him what was in his hands. Whether it was a request or a command, Larson's tone of voice was normal and her presence was unthreatening. 5

6 An analogous situation would be a law enforcement officer approaching a man and asking him to remove his hands from his pockets. Relying on the decisions of courts in three different states, our court has held that such a request does not transform a consensual encounter to a seizure: "In United States v. Barnes, 496 A.2d 1040 (D.C. App. 1985), an officer approached the defendant, whom he had observed loitering outside a store in a highcrime area. The officer asked the defendant to remove his hands from his pockets and then proceeded to ask him two questions. Noticing a bulge in the individual's stomach area, the officer subsequently recovered a revolver from the defendant's pocket. The District of Columbia Court of Appeals stated that the officer's request for the defendant to remove his hands from his pockets, followed by the two questions and the defendant's voluntary answers, met the Supreme Court test for a preseizure, consensual encounter. 496 A.2d at ; see also People v. Hardrick, 60 P.3d 264, 269 (Colo. 2002) ('[A]ny time an officer is engaged in a valid search or arrest and a third party inserts himself into the situation, the officer may ask the interloper to show his hands.'); State v. Nettles, 70 Wash. App. 706, , 855 P.2d 699 (1993) (officer's request for suspect to remove hands from pockets during course of consensual encounter did not turn encounter into seizure). "We agree with the above cases and find that the request for the men to remove their hands from their pockets did not turn this voluntary encounter into a seizure. We further find that the officers' behavior up to and including the time that Officer Garman asked Jennings' consent to search his person would not communicate to a reasonable person that he or she was not free to leave the premises. Thus, there had been no seizure of Jennings at the time Garman asked his consent to search. As a result, we agree with the trial court that Jennings' consent to search was voluntary and find that the motion to suppress was properly denied." State v. Jennings, 33 Kan. App. 2d 244, , 99 P.3d 1145 (2004), rev. denied 279 Kan (2005). Under the totality of the circumstances, Andrade-Reyes' encounter with the officers was consensual. 6

7 However, even if we were to characterize the encounter as a seizure, it was a reasonable one. Andrade-Reyes argues the seizure was unlawful because the officer lacked any reasonable suspicion that he had committed a crime. Our Supreme Court has found, however, that concerns for officer safety can in certain circumstances make a seizure reasonable. In Reiss, a police officer intended to pull over a blue pickup, which was directly in front of Reiss' red pickup. When the officer pulled over the blue pickup, Reiss also pulled over. The officer stopped his patrol car behind Reiss' pickup because there was not enough room between Reiss' pickup and the blue pickup and he did not want to have an unknown driver behind him. After the vehicles stopped, Reiss got out of his pickup and charged the officer's patrol car, demanding to know why he had been pulled over. The officer got out of his patrol car and commanded Reiss to back up and get back into his truck. Reiss initially ignored the officer's commands but eventually complied. Once Reiss returned to his pickup, the officer requested his driver's license and proof of insurance. The Supreme Court concluded that the encounter was a seizure. 299 Kan. at 299. The court then turned to whether the seizure was reasonable and began by recognizing that while the encounter was not actually a traffic stop because Reiss was not the intended target, the encounter's circumstances were similar to those of a traffic stop. 299 Kan. at 300. Noting its duty to "balance [the officer's] legitimate concern for his personal safety against Reiss' right to be free from arbitrary interference by law enforcement," and citing United States Supreme Court cases, our Supreme Court stated that officer safety is a "'weighty interest'" during traffic stops which can be particularly dangerous for law enforcement officers. 299 Kan. at 300. As a result, the court held that the officer's command "was an eminently reasonable measure to preserve officer safety," making the seizure lawful under the Fourth Amendment. 299 Kan. at

8 The encounter here, although not a traditional traffic stop, was similar to a traffic stop based on the encounter's circumstances. The officers parked their vehicles, which in this case were bicycles, and approached a parked vehicle that was occupied with two unknown individuals. Because the encounter shared many of the characteristics of a traffic stop, the officers were susceptible to the dangers common with traffic stops. Also, the encounter occurred just after midnight, in a dark area of the apartment complex's parking lot known as a high-crime area, and the officers were more vulnerable because they lacked a patrol car in which they could take cover. Most importantly, as Larson approached, Andrade-Reyes made furtive movements, reaching toward the vehicle's floorboard and then keeping his hands clenched, which caused Larson concern for the officers' safety. Based on these circumstances, any seizure that might have occurred was reasonable because Larson's request to see what was in Andrade-Reyes' hands "was an eminently reasonable measure to preserve officer safety." See 299 Kan. at 302. Thus, the district court did not err in denying Andrade-Reye's motion to suppress. Affirmed. 8