                                       No. 115,426

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                    STATE OF KANSAS,
                                        Appellee,

                                             v.

                              MARCUS THIASEN GUEIN, JR.,
                                     Appellant.


                             SYLLABUS BY THE COURT


1.
       When an appellate court reviews the district court's decision on a motion to
suppress evidence in a criminal case, we first determine whether the district court's
factual findings are supported by substantial evidence. We then review the district court's
ultimate legal conclusions independently, without any required deference to its
conclusion. When the significant facts are not in dispute, whether to grant or deny a
suppression motion presents a question of law over which we have unlimited review.


2.
       Miranda warnings are required for a custodial interrogation. So two elements must
be present for Miranda warnings to be required: custody and interrogation.


3.
       A person is in custody for Miranda purposes when formally taken into custody or
deprived of his or her freedom in a significant way. A court must consider the
circumstances of the interrogation and whether a reasonable person would have felt that
he or she could terminate the investigation and leave.
4.
       In some cases, such as routine traffic stops in which the detention is brief and the
encounter occurs in public, no Miranda warnings are required even though the person is
not free to leave. When a person is subject to restaints comparable to those associated
with formal arrest, however, the person is in custody for Miranda purposes.


5.
       On the facts of this case, in which the initial questioning of the defendant occurred
during a pat-down for officer safety just after the defendant had been asked to get out of
his car in a public parking lot, no weapons were drawn, and the encounter had only lasted
about 1 minute, the defendant was not yet in custody for Miranda purposes.


6.
       The Fourth Amendment to the United States Constitution and Section 15 of the
Kansas Constitution Bill of Rights protect the right of all of us to be free from
unreasonable searches and seizures by the government. Under caselaw applying these
provisions, a search without a warrant is unreasonable unless it falls within one of several
limited, well-defined exceptions to the warrant requirement.


7.
       One recognized exception to the warrant requirement applies when the officer has
probable cause to search and exigent circumstances are present. Probable cause means
that a reasonable person would conclude that there is a fair probability that the place to be
searched contains contraband or evidence of a crime. Exigent circumstances exist when
the law-enforcement officer has a reasonable belief that there is a threat of imminent loss,
destruction, removal, or concealment of evidence or contraband.




                                              2
8.
       On the facts of this case, in which an officer had smelled marijuana about the
defendant's person and the defendant had admitted that he had marijuana stashed in his
underwear, the officer had probable cause to search for and seize the marijuana. In
addition, since a small quantity of marijuana might easily be hidden, destroyed, or
ingested, exigent circumstances were also present.


9.
       When a defendant claims that a statement made to police wasn't voluntary, the
State has the burden to show that the statement was the product of the defendant's free
and independent will.


10.
       In determining whether a statement is voluntary, courts look at all the
circumstances, including this nonexclusive list of factors: (1) the mental condition of the
accused; (2) the manner and duration of the interrogation; (3) the accused's ability to
communicate on request with others; (4) the accused's age, intellect, and background;
(5) the fairness of officers in conducting the interrogation; and (6) how fluent the accused
was with the language used for the interrogation.


11.
       On the facts of this case, in which the officer used strong language that implied a
threat of physical harm if the defendant did not answer questions, minimized the
importance of the Miranda warnings, handcuffed the defendant before making the
implied physical threat, left the defendant to think over what he had been told for about
10 minutes before proceeding with questioning, and conducted the questioning while the




                                             3
defendant remained handcuffed, we conclude that the State failed to prove that the
statements made by the defendant were voluntary.


          Appeal from Johnson District Court; TIMOTHY P. MCCARTHY, judge. Opinion filed January 20,
2017. Reversed and remanded with directions.


          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.


          LEBEN, J.: 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


                                                      4
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.


                       FACTUAL AND PROCEDURAL BACKGROUND


       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


                                             5
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:


                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."


                                                     6
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. (Based on the transcript of the suppression hearing, a slightly
different version of the video, apparently with fewer deletions, was admitted in evidence
at that hearing. The parties made no comment in their appellate briefs about why only the
video from the trial is included in our record.)


       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":




                                              7
       "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, all right? 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? All right? And I'll tell you, I
       know what's happening right now. All right? Have a seat."


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: "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."




                                                    8
        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 about working as a confidential informant.
Weber explained that people often can get their charges to go away by doing so. Guein
responded that he didn't know anyone who sold drugs on the Kansas side of the state line,
where these law-enforcement officers worked, but he wished he did so that he could take
advantage of the offer.


        Eventually, during a more thorough search of Guein's car, police found marijuana
in a glass jar, rolling papers, a marijuana pipe, a wood grinder, and a box of plastic
baggies. Police also found the remnants of several marijuana cigarettes in the ashtray.


        The State charged Guein with possession of marijuana with the intent to distribute
it, felony possession of drug paraphernalia, and misdemeanor possession of drug
paraphernalia.



                                              9
       Guein filed a motion to suppress to prevent statements he had made and the
evidence that had been recovered from being used against him at trial. The motion itself
and the State's response were not included in the record on appeal, but we have a
transcript of the evidentiary hearing the district court held on March 5, 2015. Weber,
Larson, and Guein all testified, generally as we've described here. Guein argued that the
court should suppress the statements he made both before and after he was given the
Miranda warnings. He argued that his pre-Miranda statements should be suppressed
because the officer had interrogated him while he was in custody without first informing
him of his Miranda rights. He argued that his post-Miranda statements should be
suppressed because the officer had threatened him by saying, "Don't fuck around with me
and I ain't gonna fuck around with you," making him feel like he had to confess. Guein
contended that the bag of marijuana and the items found in the car should also be
excluded from trial because the police had discovered them by violating his constitutional
rights when questioning him.


       The State argued that the officers were justified in investigating further when they
witnessed suspicious activity in a high-crime area and had probable cause to search the
vehicle once they smelled marijuana in the car. The State maintained that Guein's pre-
Miranda statements should not be suppressed because when the officer asked how much
marijuana Guein had on him, Guein was not in police custody and was not yet required to
be given the Miranda warnings. In regard to the post-Miranda statements, the State
argued that Weber's alleged threat was simply a "be-straight-with-me speech," which is
permissible, and not a threat, which isn't, so Guein's post-Miranda statements should not
be suppressed as he had voluntarily waived his right to remain silent. The State also
argued that because the loose marijuana was plainly visible through the window of the
car, the officer had the right to conduct a search without a warrant independent of
anything Guein had said. Finally, the State claimed that the marijuana in Guein's pants
would inevitably have been discovered while Guein was being booked in jail and could,
therefore, be used at trial.


                                            10
       The district court made an oral ruling at the close of the hearing. The court held
that the police had the right to investigate upon witnessing Guein get into Gresham's car
since it was late at night and in a high-crime neighborhood, "a zone where drug sales are
taking place." The court concluded that the officers had the right to investigate further
upon smelling the marijuana odor coming from the car. The court determined that Guein
was in custody when he was handcuffed and should have been given the Miranda
warnings; so it suppressed the statements Guein made from the time he was handcuffed
until he was given Miranda warnings, but it allowed his statements from before being
handcuffed to be used at trial.


       In regard to the post-Miranda statements, the district court concluded that Guein
had voluntarily waived his rights:


               "Second issue as to the post-Miranda. Once [Guein was] Mirandized in the
       vehicle, I don't find anything—I understand it's a difficult case and the circumstances—
       but I don't find anything that it was—that there was not an understanding by the
       defendant or that it was an involuntary waiver of Miranda and so I'm going to deny the
       defense motion to suppress any of the statements made after Miranda was given."


       The district court also denied Guein's request to have the physical evidence
(the marijuana baggie and the other items found in the car) suppressed "partially
because of my ruling on the first issue on the pre-Miranda statements" and
because the loose marijuana in the car was in plain view, which would have
justified a search during which the police would have discovered the other
evidence.


       Guein's case then proceeded to trial. A jury found him guilty of possession
of marijuana with the intent to distribute it and misdemeanor possession of drug
paraphernalia but not guilty of felony possession of drug paraphernalia. The


                                                  11
district court sentenced Guein to 18 months on probation, but if Guein failed on
probation he would serve the underlying sentence of 14 months in prison.


       Guein has appealed to our court.


                                          ANALYSIS


       Before we get into the specifics of Guein's appeal, we should review the legal
principles that will guide us. The case is here on Guein's appeal of the district court's
denial of his motion to suppress certain evidence from being admitted at his trial. When
we review a district court's decision on a motion to suppress, we first review the district
court's factual findings to determine whether they are supported by substantial evidence.
State v. Dern, 303 Kan. 384, 392, 362 P.3d 566 (2015). Substantial evidence means legal
and relevant evidence that a reasonable person would find adequate to support a
conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012); State v. Walker, 283
Kan. 587, 594-95, 153 P.3d 1257 (2007). We then review the district court's ultimate
legal conclusions independently, with no required deference to its conclusions. Dern, 303
Kan. at 392. We do not reweigh evidence, assess the credibility of witnesses, or resolve
conflicts in the evidence. 303 Kan. at 392.


       When the significant facts are not in dispute, however, whether to grant or deny a
suppression motion presents a question of law over which we have unlimited review.
State v. Stevenson, 299 Kan. 53, 57, 321 P.3d 754 (2014); State v. Garcia, 297 Kan. 182,
187-88, 301 P.3d 658 (2013). Here, most of the evidence critical to the issues presented
to us is not disputed—and no one contests that Officer Weber said the words that are
recorded on video. Accordingly, we consider independently whether the "don't fuck with
me" warnings Weber gave to Guein before providing the Miranda warnings warrant
suppression of statements Guein made in response.



                                              12
       Guein makes three separate challenges to specific evidence against him. First, he
argues that he was in custody—thus requiring that Miranda warnings be given—when
the officer asked him whether he had marijuana on him. Because of that, he asks that the
court exclude his statement that he had marijuana in his possession. Second, he argues
that the officer didn't have valid reason to search his person, which is where the officer
found a bag of marijuana. Because of that, he asks that the marijuana found on him not be
allowed in evidence. Third, he argues that the officer's admonition that he not "fuck
around with" the officer when asked questions negated the Miranda warning he was
given so that his post-Miranda statements should not be allowed at trial. We will discuss
each of these challenges separately.


I. The District Court Properly Denied Guein's Request to Suppress Guein's Statements
   Made Before He Was Placed in Handcuffs Because the Encounter at That Point Was a
   Reasonable Investigatory Detention Similar to a Traffic Stop.

       Guein's first argument is that the statements he made before being handcuffed
should be suppressed. As we have already noted, Guein admitted to having marijuana on
him after Weber told Guein that he "reek[ed] of weed" and then asked him twice whether
he had any. Guein argues that this statement can't be used against him because the officer
didn't give him Miranda warnings before asking whether he had any marijuana.


       Under the well-known rule in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1996), police must provide several warnings to a suspect in custody
before that suspect is interrogated. The rule helps to implement safeguards of the Fifth
Amendment to the United States Constitution, which provides a right to remain silent
about criminal wrongdoing. The Miranda warnings are familiar ones: that the defendant
"has a right to remain silent, that any statement he does make may be used as evidence
against him, and that he has a right to the presence of an attorney, either retained or
appointed." 384 U.S. at 444. Section 10 of the Kansas Constitution Bill of Rights has
been interpreted to provide the same protection. State v. Jones, 283 Kan. 186, 194, 151


                                             13
P.3d 22 (2007), disapproved on other grounds by State v. Nelson, 291 Kan. 475, 243 P.3d
343 (2010); State v. Bordeaux, 38 Kan. App. 2d 757, 759, 172 P.3d 78 (2007).


       So two elements must be present for Miranda warnings to be required:
interrogation and custody. Guein obviously was asked whether he had any marijuana on
him; the only dispute in our case is whether he was "in custody" for Miranda purposes.
That happens when a person is taken into custody or otherwise deprived of his or her
freedom in a significant way. Yarborough v. Alvarado, 541 U.S. 652, 661, 124 S. Ct.
2140, 158 L. Ed. 2d 938 (2004); Bordeaux, 38 Kan. App. 2d at 759-60.


       At first, whether a person is in custody for Miranda purposes seems an easy
question. The United States Supreme Court has described the essential question as
whether, under the circumstances of the interrogation, a reasonable person would have
felt that he or she could end the investigation and leave. Alvarado, 541 U.S. at 663;
Jones, 283 Kan. at 193-94; Bordeaux, 38 Kan. App. 2d at 760. But other cases
complicate the apparent simplicity of this test, in which we ask whether a reasonable
person would have felt free to leave. That's because the Supreme Court has also
recognized that there are some situations—like common traffic stops—in which a person
may not truly be free to leave but still has not been "subjected to restraints comparable to
those associated with a formal arrest," so Miranda warnings need not be given. Berkemer
v. McCarty, 468 U.S. 420, 441, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984); see also
Bordeaux, 38 Kan. App. 2d at 760.


       We note too that whether a person is in custody for Miranda purposes is
determined under an objective test, not based on the specific understanding of the person
whose freedom was restricted in some way. Berkemer, 468 U.S. at 441-42; State v.
Summers, 293 Kan. 819, 826, 272 P.3d 1 (2012). Otherwise, officers in the field would
not know how to guide their conduct. State v. Morton, 286 Kan. 632, 645, 186 P.3d 785
(2008); see LaFave, Israel, King & Kerr, Criminal Procedure § 6.6(c), pp. 373-75 (5th ed.


                                             14
2009). Kansas courts have set out eight factors to consider, along with the other facts of
each case:


               "Several nonexclusive factors may be considered when reviewing the totality of
       the circumstances surrounding a defendant's statements to determine admissibility,
       including: (1) when and where the interrogation occurred; (2) how long it lasted; (3) how
       many police officers were present; (4) what the officers and defendant said and did; (5)
       the presence of actual physical restraint of the defendant or things equivalent to actual
       restraint such as drawn weapons or a guard stationed at the door; (6) whether the
       defendant is being questioned as a suspect or a witness; (7) how the defendant got to the
       place of questioning, that is, whether he or she came completely on his or her own in
       response to a police request or was escorted by police officers; and (8) what happened
       after the interrogation—whether the defendant left freely, was detained, or was arrested."
       Summers, 293 Kan. 819, Syl. ¶ 3.


       Here, while Guein was arrested after the interrogation and was being questioned as
a suspect, the other factors generally do not suggest treating this as a custodial
interrogation. The events were in a public place—a Burger King parking lot—and at the
time Weber asked Guein whether he had any marijuana, there were only two officers
present (which matched the number of suspects). Guein arrived there on his own, and he
had not yet been physically restrained (though he was subjected to a pat-down weapons
check for officer safety). And at the time Weber asked these questions, the interaction
had only lasted a minute or two. In sum, this portion of the encounter was much like a
traffic stop, ordinarily considered an investigatory detention not requiring Miranda
warnings, at least in its early stages.


       Guein cites this court's 2007 decision in Bordeaux in support of his position. But
the facts in that case are quite different from the ones here. In Bordeaux, police ordered
the defendant at gunpoint out of hiding in a small, dark storage shed behind a house. The
officers—in an authoritarian way and with guns drawn—ordered the man to put his hands



                                                    15
on the shed so he could be patted down for weapons. And while that was in progress, an
officer asked whether a coat linked to a suspicious person who had been in the area
belonged to the man. In those circumstances—a man ordered out of hiding at gunpoint by
multiple officers using strong vocal commands and ordering the man into an
immobilizing position—we concluded the defendant was in custody for Miranda
purposes. 38 Kan. App. 2d at 764-66.


       While it's true that the questions at issue in both Bordeaux and our case were
asked during the pat-down for weapons, the similarities pretty much end there. In
Bordeaux, officers ordered the man out of hiding in a shed at gunpoint; here, Weber
asked Guein to step out of the car with the officer's weapon in its holster. In Bordeaux,
officers ordered the man to put his hands on the shed so he could be patted down; here,
Guein agreed to the officer's request for a pat-down, and the officer asked permission to
search inside Guein's pockets. Neither Bordeaux nor Guein was free to leave at the
moment these questions were asked, but that's only one factor that a court looks at to
determine whether Miranda advisories were required. Guein's freedom of movement was
not curtailed to a degree associated with formal arrest: Being in custody for Miranda
purposes is not the same as being detained briefly—without physical restraints—to
answer a few questions in a public place. The district court did not err when it denied
Guein's motion to suppress his statements that he had some marijuana on him.


II. The District Court Properly Denied Guein's Request to Suppress Evidence of the
    Marijuana Found on His Person Because the Officer Had Probable Cause to Search
    Guein.

       Guein next argues that the evidence of the marijuana found on him should be
suppressed because Officer Weber didn't have legal authority to search him for
marijuana. The State argues that the officer had probable cause to search Guein because
the officer detected the smell of marijuana coming from him.



                                            16
       The Fourth Amendment to the United States Constitution and Section 15 of the
Kansas Constitution Bill of Rights protect the right of all of us to be free from
unreasonable searches and seizures by the government. See State v. Talkington, 301 Kan.
453, 461-62, 345 P.3d 258 (2015); State v. Karson, 44 Kan. App. 2d 306, 307, 235 P.3d
1260 (2011), aff'd 297 Kan. 634, 304 P.3d 317 (2013). Caselaw interpreting the Fourth
Amendment tells us that a search without a warrant is unreasonable unless it falls within
one of several limited, well-defined exceptions to the warrant requirement. State v.
Sanchez-Laredo, 294 Kan. 50, 55, 272 P.3d 34 (2012); see also State v. Mullen, 304 Kan.
347, Syl. ¶ 2, 371 P.3d 905 (2016) (interpreting Section 15 of the Kansas Constitution
Bill of Rights to provide the same protection as the Fourth Amendment to the United
States Constitution). Getting a warrant requires a showing of probable cause to search or
seize some specific person or place. U.S. Const. amend. IV ("[N]o Warrants shall issue,
but upon probable cause . . . .").


       Here, the State argues that the officer had probable cause to search accompanied
by exigent circumstances, which is one of the warrant-requirement exceptions. Sanchez-
Laredo, 294 Kan. at 55. By probable cause, we mean that a reasonable person would
conclude that there is a fair probability that the place to be searched contains contraband
or evidence of a crime. Florida v. Harris, 568 U.S. ___, ___, 133 S. Ct. 1050, 1055-56,
185 L. Ed. 2d 61 (2013); Sanchez-Loredo, 294 Kan. 50, Syl. ¶ 2. By exigent
circumstances, we mean that the law-enforcement officer has a reasonable belief that
there is a threat of imminent loss, destruction, removal, or concealment of the evidence or
contraband. 294 Kan. 50, Syl. ¶ 3. As we have already noted, the Fourth Amendment
usually requires a warrant, and warrants may only be issued on probable cause. So
probable cause is required either to get a warrant or to apply this exception to the warrant
requirement. The point of the exception for exigent circumstances is to allow an officer to
search for something when the process of getting a warrant might allow the item to be
hidden or destroyed.



                                             17
       The State has the burden to show that a warrantless search was lawful. State v.
James, 301 Kan. 898, 908, 349 P.3d 457 (2015). Guein argues that Officer Weber didn't
have probable cause to search him for drugs; thus, Guein contends, Weber couldn't direct
that Guein give him the bag of marijuana Guein had hidden in his underwear. The State
asks that we find that Weber had probable cause based solely on Weber's detection of the
odor of marijuana on Guein. The State cites State v. MacDonald, 253 Kan. 320, Syl. ¶ 2,
856 P.2d 116 (1993), which held that the odor of marijuana, "standing alone, provides
probable cause for a motor vehicle search." No Kansas case has applied the same rule to
the search of a person. The State urges that we do so in this case, and it cites a number of
out-of-state cases in support of that proposition.


       But we need not address that question to decide whether Weber had probable
cause to search Guein for marijuana. Weber had not only smelled marijuana on Guein's
person—Guein had admitted he had marijuana on him. We have already concluded that
Guein's admission that he had marijuana in his underwear is admissible, and Weber could
rightly consider that admission in addition to the smell of marijuana. That gave Weber
probable cause for the search; he had ample reason to believe that Guein had marijuana
on him and to conduct the equivalent of a search by directing that Guein hand the bag
over. Guein does not dispute that, given the possibility that a small amount of drugs could
be hidden or destroyed, exigent circumstances were present. See Illinois v. McArthur, 531
U.S. 326, 331-32, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001); State v. Fewell, 286 Kan.
370, 384-85, 184 P.3d 903 (2008). The district court did not err in denying Guein's
motion to prevent the admission of the bag containing marijuana into evidence.




                                             18
III. The District Court Erred in Denying the Motion to Suppress Guein's Post-Miranda
     Statements Because the Officer's Warning Not to "Fuck With" Him Was Threatening
     and Effectively Negated the Miranda Warning on the Facts Found Here.

       Guein's final argument is that Weber's statement constituted threats and promises
that had a coercive effect on him, rendering his post-Miranda statements involuntary.
When a defendant claims that statements made to police weren't voluntary, the State has
the burden to show that the statement was the product of the defendant's free and
independent will. State v. Randolph, 297 Kan. 320, 326, 301 P.3d 300 (2013).


       In determining whether a statement is voluntary, courts look at all the
circumstances, including a nonexclusive list of factors:


       "'"'(1) the accused's mental condition; (2) the manner and duration of the interrogation;
       (3) the ability of the accused to communicate on request with the outside world; (4) the
       accused's age, intellect, and background; (5) the fairness of the officers in conducting the
       interrogation; and (6) the accused's fluency with the English language.' [Citation
       omitted.]"'" Randolph, 297 Kan. at 326 (quoting State v. Stone, 291 Kan. 13, 21, 237 P.3d
       1129 [2010]).


When considering these factors, a court looks at the situation in its entirety. Sometimes
circumstances may lessen the importance of an individual factor that might otherwise
have a coercive effect. But if a single factor or combination of factors "'"inevitably lead
to a conclusion that under the totality of circumstances a suspect's will was overborne . . .
the confession was not therefore a free and voluntary act."'" Garcia, 297 Kan. at 188
(quoting State v. Sharp, 289 Kan. 72, 81, 210 P.3d 590 [2009]).


       Before going further, we must consider how we should look at the underlying
facts. In addition to the testimony we noted earlier in our opinion, Guein testified that he
had taken Weber's statements as a threat of physical harm if Guein didn't tell Weber what



                                                    19
he wanted to hear. In addition, Guein testified that he had smoked marijuana earlier that
day, which he said had made him "more paranoid and fearful with [the officers]."


       The district court made no factual findings specifically related to this testimony
from Guein. Regarding whether Guein's post-Miranda statements should be suppressed,
the court said it was "a difficult case" but concluded "that there was not an understanding
by the defendant or that it was an involuntary waiver of Miranda and so I'm going to
deny the defense motion to suppress any of the statements made after Miranda was
given." Neither party asked the district court to make any additional factual findings.


       On appeal, we must accept the district court's factual findings, and when specific
findings haven't been made and no party requested additional findings, we generally
presume that the district court found whatever facts are supported by the evidence that
would support its ruling. Dern, 303 Kan. at 394. Under that presumption, we would
conclude that the district court apparently didn't believe Guein's testimony since it ruled
against him. For that reason, we will not consider Guein's testimony that his impression
of Weber's statements was affected by marijuana use that day or Guein's testimony about
how he subjectively felt fear of physical harm when he heard Weber's statements. We
will instead restrict our analysis to the words recorded on the videotape, taken in the
context in which they were said. No one has disputed that the videotape accurately
portrayed the conversation Weber had with Guein. And when we consider that
conversation in context, we conclude that the State failed to meet its burden to show that
the statements Guein made post-Miranda were voluntary.


       Guein emphasizes the officer's admonition that Guein not "fuck around with" him
and that if Guein complied, the officer would not "fuck around with" Guein—comments
that were made while Guein was already handcuffed. Guein then argues, "The standard
for a [non]coercive environment should rise far above a level where an individual needs



                                             20
to fear what a law enforcement officer might mean by threatening to 'fuck around with'
them." We agree.


       Taken in context, a reasonable person would conclude that Officer Weber made an
implied threat of physical violence and connected it to answering the questions Weber
would soon be asking in a way that conformed with Weber's understanding. Weber
advised Guein that he was "going to ask you some questions here in a little bit." Weber
told Guein, "I know what you're doing out here." And Weber told Guein that if Guein
didn't "fuck around with" him, then "I ain't gonna fuck around with you." Or, as Weber
restated it, even though Guein had already said he understood the officer, "You don't
screw around with me, I ain't gonna screw around with you."


       To be sure, Weber left some ambiguity about whether he would physically harm
Guein or just make the criminal process more difficult. After telling Guein not to "screw
around with" him, Weber added, "I'm gonna do what I can to help you out, okay?" That
and other comments suggested that Weber would try to help Guein in the criminal
process if Guein cooperated (by answering Weber's questions in a way Weber thought
truthful) and that Weber would not help him in that way if Guein didn't cooperate (by not
answering or not answering truthfully).


       But in context, a reasonable person would be concerned about possible physical
harm from Weber's comments. Weber made them forcefully. Weber made them only
after Guein's hands were handcuffed behind his back, leaving him vulnerable to physical
violence. And Weber then left Guein handcuffed in the police car for about 10 minutes to
think this over before giving him his Miranda warnings.


       The context of those Miranda warnings is also important in determining whether
the State showed that Guein's post-Miranda statements were voluntarily made. When
Weber said he was going to read Guein his rights, he said, "I've gotta do it because you're


                                            21
in handcuffs." He then read through them at a rapid pace before asking, "And with those
rights in mind, do you want to talk to me?" Given the comments Weber had already made
before putting Guein in the police car, quickly reading the Miranda rights because "I've
gotta do it" would not have been sufficient to overcome the implied threat of physical
harm already put in place if Guein didn't answer the officer's questions in a way that was
consistent with Weber's expectations. Accordingly, Guein's post-Miranda statements
should not have been admitted: "An extrajudicial confession will not be received into
evidence unless it has been freely and voluntarily made, and if the confession has been
extorted by fear . . . , it will be excluded as involuntary." Garcia, 297 Kan. 182, Syl. ¶ 5.


       The State notes that Guein is a college-educated man who brought a gun with him
while meeting up with someone to sell marijuana. Based on these facts, the State argues,
Guein would not have been affected by the use of foul language. The State misses the
point with this argument. The use of profanity here simply amplified the serious nature of
the statements being made, as the use of any particularly strong language, forcefully said,
might do. It's only because that language was accompanied by words conveying
additional messages—that Weber was going to be asking questions, that Weber expected
cooperation when he did so, and that Weber might "fuck with" Guein if he didn't
cooperate—that tip the balance here strongly in Guein's favor when we consider whether
the State proved the statements were made voluntarily.


       The district court in this case considered the voluntariness question to be "a
difficult case" but ultimately concluded the statements were voluntary. Although the
district court here didn't set forth a detailed analysis of the issue, we suspect that its
review was like that of the district court in State v. Stone, 291 Kan. 13, 237 P.3d 1229
(2010), and, one might argue, that of the dissent in our case, which separately reviews
each listed factor. In Stone, the district court gave separate consideration to each of
several factors that might have made the defendant's statements involuntary and found
each of them insufficient—when considered separately. The Kansas Supreme Court


                                               22
reversed, finding that the effect of all of the factors when taken together required that the
court conclude that the confession was involuntary, even though the defendant had been
read his Miranda rights. The court's conclusion in Stone seems applicable here as well:


       "While any one of the circumstances surrounding this interrogation, standing alone[,] . . .
       might not have led us to conclude [the defendant's] statements were coerced, a review of
       the audio recording taking into account all of these circumstances . . . leads us to
       conclude as a matter of law that [the defendant's] statements were not the product of his
       free and independent will and that it was error to admit them at trial." 291 Kan. at 32-33.


       Guein also argued that the statements should be considered involuntary because of
promises Weber made. The State suggests that in the district court, Guein argued only
that Weber's statements constituted a threat—and not that they promised any sort of
benefit in exchange for his statements to the officer. Accordingly, the State suggests that
we cannot consider on appeal the argument that Weber offered anything to induce
Guein's statements. But Guein's attorney characterized Weber's statements as a "converse
threat and a promise," and Guein testified that he understood that he should "[t]ell
[Weber] what he wanted to hear and hopefully this will work out for me." So Guein made
a sufficient argument in the district court for him to pursue the claim on appeal that
Weber's statements were both a threat and a promise sufficient to override his free will.


       Even so, we do not find his argument that his statements were induced by a
promise persuasive. Weber's only "promise" was that he would "do what I can to help
you out" if Guein cooperated. We do not consider that a sufficient promise of action that
it would have likely induced Guein to make false statements in response. See Garcia, 297
Kan. 182, Syl. ¶ 6; State v. Johnson, 253 Kan. 75, 84, 853 P.2d 34 (1993) (holding that
officer's alleged implied promise that if defendant cooperated he could receive a lesser
sentence was not so coercive as to make a confession involuntary); United States v.
Binford, 818 F.3d 261, 271-72 (6th Cir. 2016) (stating that promises merely to
recommend leniency in exchange for cooperation generally are not so coercive as to

                                                    23
make a confession involuntary), cert. denied 2017 WL 69193 (2017); United States v.
Alvarez, 142 F.3d 1243, 1248-49 (10th Cir. 1998) (holding that an officer's stated
intention to recommend a lesser sentence in exchange for defendant's response to
questions did not constitute a promise of a lesser sentence so as to make defendant's
statements involuntary).


       The dissent argues that we haven't applied each of the factors a court must
consider when determining whether a statement was voluntarily made. To be sure, we
haven't discussed each of them separately, though we have noted that Guein is a college-
educated man, and we have not suggested he failed to hear or understand the words used
by Officer Weber. But the list of factors itself is a nonexclusive list; the court must
consider all of the circumstances. We have carefully done that, and we have explained in
our opinion the circumstances that led us to conclude that Guein's post-Miranda
statements were not made voluntarily.


       The dissent also raises an additional argument the State did not—that Guein did
not make the claim on appeal that his statements were improperly coerced by a threat of
physical harm. We would first note that Guein specifically testified in the district court
that he feared physical harm from Officer Weber:


               "Q. And did you think that there was consequences—what did you think when he
       used the cuss word 'F around,' what did you think he was saying would happen or what
       could happen if you didn't tell him what he thought was going on there?
               "A. I thought there was going to be harm caused to me.
               "Q. And what kind of harm?
               "A. Physical harm."


We haven't dwelt on Guein's testimony about his subjective impressions since our
decision is based on the meaning anyone in his situation would place on the words Weber



                                                 24
used. But Guein's attorney surely argued to the district court that the post-Miranda
statements should be suppressed because threats were made by Weber:


       "[Y]our Honor, I think the most important evidence that should be suppressed is from the
       . . . post-Miranda admissions. I think it's very clear[] that it was an intentional threat
       made by the officer [and] that it was designed to make it more likely that he wouldn't pay
       any attention to the advising of the rights that he would be given."


And on appeal, Guein's attorney again has argued that Guein's statements were coerced
by threats:


       "Marcus could only speculate as to how severely the officer would 'fuck with' him if he
       did not comply with the officer's demands. In any case, the answer to this issue should
       not require an analysis into Marcus' subjective belief as to just how far the officer would
       go with his threats to 'fuck with' Marcus. It is enough that the officer made the threat,
       'Don't fuck around with me, and I ain't going to fuck around with you, okay?'


               "Officer Weber's statements blur the line between promise and threat, but,
       however they are classified, were certainly intended to elicit an incriminating response[.]


               ....


               "At the time Marcus heard these threats he was bound by handcuffs and on the
       way to the back of a law enforcement SUV headed for jail to be booked."


In sum, Guein has adequately raised and argued the claim that his statements were
coerced by threats, and we have concluded that his argument was well taken.


       Having determined that Guein's post-Miranda statements should not have been
admitted at trial, we must still consider whether the error was harmless: "[E]ven an error
that infringes upon a constitutional right may be declared harmless if the benefitting party
proves beyond a reasonable doubt that the error did not affect the outcome of the trial in

                                                     25
light of the entire record." Garcia, 297 Kan. at 197. The State notes that there was other
evidence that Guein had planned to pass or sell marijuana to someone else, qualifying as
distribution under Kansas criminal law. See K.S.A. 2015 Supp. 21-5705(d)(2)(A). But
the State has not included the trial transcript in the record on appeal. Without it, we are
not able to fairly judge how important Guein's statements were in convicting him of
distribution and, thus, whether this error was harmless. Even with respect to Guein's
conviction for possession of drug paraphernalia, which may well have been proved with
overwhelming evidence, we can't tell what evidence was used to show that Guein
possessed the items in the absence of the trial transcript. Accordingly, we must set aside
Guein's convictions and order a new trial.


       The district court's judgment is reversed, and the case is remanded to the district
court for further proceedings.


                                                  ***


       GARDNER, J., dissenting: I respectfully dissent. I agree with the majority's
conclusions on the first two issues but do not agree that the post-Miranda statements
should be suppressed. I would affirm.


Our scope of review is substantial competent evidence


       Our scope of review on this issue is well established.


       "[T]he determination that a statement was freely, voluntarily, and intelligently given will
       be upheld if there is substantial competent evidence to support such a conclusion. In
       making the factual review, the appellate courts will not reweigh the evidence and will
       give deference to the factual findings of the trial court. The legal conclusion drawn from
       those facts is subject to de novo review." State v. Holmes, 278 Kan. 603, 612, 102 P.3d
       406 (2004).


                                                   26
Substantial evidence in this case supports the conclusion that Guein's statement that he
had purchased the marijuana for $25 and intended to sell it to Gresham for $50 was
freely, voluntarily, and intelligently given. I would reach the same conclusion, however,
if our review of the evidence were de novo.


Several factors guide the determination of voluntariness


       In considering the totality of the circumstances, we examine both the conduct of
the officers and the characteristics of the accused. The majority's opinion, however,
makes no effort to apply the factors it concedes should be considered in determining
whether Guein's statement was voluntary. Those factors are: Guein's mental condition;
the manner and duration of the interrogation; Guein's ability to communicate on request
with the outside world; Guein's age, intellect, and background; the fairness of the officers
in conducting the interrogation; and Guein's fluency with the English language. State v.
Stone, 291 Kan. 13, 21, 237 P.3d 1229 (2010). Although these factors are nonexclusive,
they are not to be ignored.


       We are not to weigh the factors in the balance, one against another, to see whether
the scales tilt in favor of or against voluntariness.


       "'"[T]hese factors are not to be weighed against one another . . . , with those favorable to
       a free and voluntary confession offsetting those tending to the contrary. Instead, the
       situation surrounding the giving of a confession may dissipate the import of an individual
       factor that might otherwise have a coercive effect. [Citation omitted.] Even after
       analyzing such dilution, if any, a single factor or a combination of factors considered
       together may inevitably lead to a conclusion that under the totality of circumstances a
       suspect's will was overborne and the confession was not therefore a free and voluntary
       act." [Citations omitted.]'" State v. Randolph, 297 Kan. 320, 326, 301 P.3d 300 (2013)
       (quoting State v. Sharp, 289 Kan. 72, 81, 210 P.3d 590 [2009]).



                                                    27
The totality of the circumstances shows that Guein's post-Miranda statements were not
coerced but were the product of his free and independent will.


Guein's age, intellect, and background


       Guein was 27 years old at the time of his arrest. He had graduated from college in
2010 with a Bachelor's degree in mass communications from Jackson State University.
He was born in Kansas City and lived there until his sophomore year in high school, then
graduated from high school in Atlanta, Georgia. He was employed at one or more jobs at
the time of his arrest. He had very little experience with police but lived in an area of
Kansas City that he admitted some considered to be a "hood area." He also admitted that
he smoked marijuana daily.


Guein's fluency with the English language


       The videotape and the trial transcript demonstrate that Guein, a college graduate
who grew up in urban areas of the United States, is fluent in English.


Guein's mental condition


       Guein does not contend that he had any mental problems, and the evidence reflects
none. The videotape demonstrates that Guein was sober and was able to respond
appropriately to the officer's questions. The officer testified he had no reason to believe
Guein was under the influence of drugs or alcohol.




                                             28
Guein's ability to communicate on request with the outside world


       At the time of the post-Miranda questioning, Guein was under arrest and was
sitting in the back of the officer's vehicle, waiting to go to jail. At some point during that
time, Guein told the officer he was nervous and asked if he could call his "lady friend"
because she was expecting his return. The officer told Guein they would get everything
"squared away" but it would take a few minutes and told Guein to "sit tight."


       Guein was, however, permitted to call his "lady friend" from jail and thus was not
held incommunicado. When she asked him what he had been thinking, he responded: "I
mean, I smoke, and so a friend asked me, could he just get it from me instead of having to
do the run-around and get it from somebody else. I'm like, yeah, that's cool and I just got
caught up in the process."


The manner and duration of the interview


       The officer's profane statements were made approximately 10 minutes before
Guein was given the Miranda warnings and chose to speak. During those 10 minutes,
Guein was by himself and was not subject to any statements from anyone. He thus had
time to reflect upon his predicament and to consider what was in his best interests. The
post-Miranda interview did not include any allegedly coercive statements.


       The post-Miranda interview, approximately 10 minutes after the officer's profane
statements, lasted a little over 5 minutes. During that conversation, Guein acknowledged
that he had purchased the marijuana for $25 and intended to sell it to Gresham for $50.
However, much of the discussion did not directly relate to Guein's possession of drugs,
but to Guein's possession of a handgun, the procedure for getting out of jail, and the
possibility that Guein could become a confidential informant. No protracted questioning
occurred, unlike in People v. Quan Gim Gow, 23 Cal. App. 507, 511, 138 P. 918 (1913),


                                              29
where "the repeated questioning of the officers, like the constant dropping of water upon
a rock, finally wore through his mental resolution of silence."


       The videotape captures the cadence, tone, and inflections of the officer's questions
and Guein's responses. That tone is conversational, not confrontational. The officer's
statements are not loud or threatening, and Guein's responses are prompt, unwavering,
and do not otherwise reflect being intimidated.


       The majority apparently finds it suspect that Guein was in handcuffs when
questioned. Yet all post-Miranda interrogations necessarily occur only when a defendant
is in custody and is thus deprived of his or her freedom in a significant way. Absent other
indicia of coercion, the fact that a defendant is handcuffed pursuant to routine arrest
procedures during a post-Miranda interview carries little, if any, weight in determining
the voluntariness of a statement.


       It is also immaterial that before reading Guein his rights, the officer said, "I've
gotta do it because you're in handcuffs," then read the Miranda warnings rapidly. Guein,
an intelligent college graduate, stated his understanding of his rights and his desire to
speak with the officer immediately after they were read to him, demonstrating no
confusion or indecision. Guein never alleges he did not hear or fully understand his
rights, nor does the officer's statement that he had to read them to Guein because Guein
was in custody somehow dilute or negate them. Nothing in the manner or duration of the
post-Miranda interview is coercive.


The officer's fairness in conducting the interview


       Guein alleges no unfairness in the officer's post-Miranda interview itself, and the
videotape demonstrates none. The record reflects no endeavor to wring out a confession



                                              30
when it was apparent that Guein was not disposed to make one. The officer used no
profanity or arguably threatening language during his custodial interrogation.


       Instead, the sole alleged unfairness arises from the officer's pre-Miranda profanity
which the majority finds apparently tainted his post-Miranda questioning. But Guein
admitted that he uses the same profane word the officer used, apparently with his friends.
And the record shows that Guein used that same profanity in responding to the officer's
profane statements. See State v. McCullers, 341 N.C. 19, 460 S.E.2d 163 (1995) (finding
defendant's claim that he was intimidated or coerced by detective's profanity not
persuasive in light of profanity in defendant's own response to question).


       Use of profanity is commonplace in our ever-coarsening society, as one judge
noted in addressing whether its use constitutes "fighting words":


       "Are we to assume that our society is composed of thin-skinned individuals ready to
       strike back at the hint of an abusive epithet? No longer are the words of the rough, coarse
       and uncivilized confined to their likes. They are part of the working vocabulary of many
       in our society. To be a member of our society is to be familiar with them, to overhear
       them used and endure whatever offensiveness it might cause so long as the situation is
       not one in which the words become a call to combat." State v. Brahy, 22 Ariz. App. 524,
       529, 529 P.2d 236 (1974) (Donofrio,J., dissenting).


Although we do not condone the officer's use of profanity, given Guein's background and
his use of the identical language, the officer's language was no more coercive to Guein
than had the officer said, "Don't mess around with me. I won't mess around with you."


       I thus agree with the majority that the officer's use of profanity does not, by itself,
render Guein's statements involuntary. Although our cases have not directly addressed
the impact of an officer's use of profanity, cases from other jurisdictions reflect that
profane statements are weighed in the balance and are not necessarily coercive. Cage v.


                                                   31
State, 285 Ark. 343, 686 S.W.2d 439 (1985) (finding defendant's confession voluntary
despite allegation of officer's use of profanity toward him which did not amount to undue
mental pressure); People v. Macias, 2015 IL App (1st) 132039, ¶ 63, 36 N.E.3d 373
(finding defendant's confession voluntary despite an aggressive, confrontational
interrogation that included yelling, profanity, and vulgarity); Kolojaco v. State, No. 14-
99-00957-CR, 2000 WL 1752856, at *5 (Tex. App. 2000) (finding officer's statement
about the photo of complainant's corpse and use of profanity which upset appellant did
not rise to the level of coercive conduct that rendered appellant's confession involuntary).


       The majority, however, finds Guein's statements coerced or involuntary because
the officer's profanity "accompanied" three messages: that Weber was going to be asking
questions; that Weber expected cooperation when he did so; and that Weber might F---
with Guein if he didn't cooperate. No explanation or citation to authority is offered in
support of this unwarranted conclusion.


       The first two of these "messages" are innocuous. An officer's statement to a
suspect that the officer is going to be asking questions and expects cooperation is not
coercive. Our courts do not find confessions involuntary based on an officer's
encouraging the accused to tell the truth. State v. Swanigan, 279 Kan. 18, 33-34, 106 P.3d
39 (2005) (asking whether law enforcement's coercion of an involuntary statement in the
first interrogation tainted the voluntary statements obtained in a subsequent
interrogation):


               "This court has held that, without more, a law enforcement officer's offer to
       convey a suspect's cooperation to the prosecutor is insufficient to make a confession
       involuntary. State v. Banks, 260 Kan. 918, 924, 927 P.2d 456 (1996) ('it will be noted by
       the authorities that you did cooperate'); State v. Johnson, 253 Kan. 75, 82, 853 P.2d 34
       (1993) (law enforcement officer stated he would go to the district attorney and tell him if
       the person was cooperating); State v. Harwick, 220 Kan. 572, 575-76, 552 P.2d 987
       (1976). Likewise, we have declined to find a confession involuntary when the police


                                                   32
       encourage the accused to tell the truth. State v. Newfield, 229 Kan. 347, 359, 623 P.2d
       1349 (1981); State v. Tillery, 227 Kan. 342, 344, 606 P.2d 1031 (1980); State v.
       Kornstett, 62 Kan. 221, 227, 61 Pac. 805 (1900) ('mere advice or admonition to the
       defendant to speak the truth, which does not import either a threat or benefit, will not
       make a following confession incompetent')." Swanigan, 279 Kan. at 33-34.


       Only the last of the officer's three "messages" is arguably coercive—the officer's
statements: "Don't F--- around with me and I ain't gonna F--- around with you, okay?"
"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?" For purposes of propriety and convenience, I refer to
these as the officer's ''profane statements." I agree with the majority's tacit conclusion that
the profane statements are not an express threat but disagree that they constitute an
implied threat.


       The officer testified at trial that by making the profane statements he was only
trying to get Guein to be honest with him and that he felt it was appropriate to use
profanity in dealing with a suspected drug dealer. He made the profane statement after
telling Guein "now is the time to be honest with me." After Guein waived his Miranda
rights, the officer reiterated that purpose by saying he knew what was going on and didn't
need Guein to tell him, but he wanted to give Guein the opportunity to be honest. As the
majority concludes, the district court apparently credited the officer's testimony so we do
too; thus, we attribute no nefarious motive to the officer.


       At trial, when Guein's attorney asked the officer what he meant by the profane
statements, the officer explained he meant he had discretion to add charges and could talk
to the prosecutors about whether a defendant deserved leniency based on cooperation
with police. Pursuant to the authorities noted above, such a statement is not coercive.


       The majority misstates the officer's statement as: If you F--- with me, then I will
F--- with you. But the majority has interjected the italicized words. The officer never said

                                                    33
them. His statement was not phrased as an "if, then" conditional threat. Instead, both
times the officer made such a statement, he stated it as two independent clauses—once
joining the clauses by the word "and," and once stating them as two separate sentences.
He said, "Don't F--- around with me and I ain't gonna F--- around with you." The officer
never said, "I will F--- with you." Instead, he said he would not do so, "I ain't gonna F---
around with you . . . ." Only by transposing the words to their converse and by adding the
words "if" and "then" does the majority find the profane statements implied a threat. One
could more reasonably interject the conjunction "because" between the two statements,
making it read: "Don't F--- with me because I won't F--- with you." Neither the words
actually stated by the officer, the implications reasonably flowing from them, nor the
circumstances accompanying them shows the officer made an implied threat.


       The majority reaches even further to find the officer's profane statements implied a
threat of physical harm to Guein if he did not answer the officer's questions. That
conclusion is not supported by citation to authority interpreting similar language that
way, or to any evidence in this case suggesting that conclusion. The only testimony to
that effect was Guein's, which the majority properly declined to consider since the district
court evidently found it not credible.


       Moreover, Guein never argues on appeal that the officer threatened physical harm.
Instead, he admits that the officer's profane statements "could only mean" something else:


       "[T]hese statements could only mean that in exchange for [Guein's] cooperation Officer
       Weber would use his official power to benefit Marcus. Whatever Officer Weber intended
       to provide as quid pro quo, [Guein] properly understood cooperating meant obtaining the
       benefit of what Officer Web[]er could do to 'help [him] out.'


               ". . . By this, [Guein] properly understood, as any reasonable person would, that
       if he did not confirm the officer's predetermined conclusions about the situation the
       officer would do something that would be bad for [Guein]."



                                                   34
Guein's brief alludes to the officer's "ability to exercise mercy and look the other way"
and to his perceived "authority to grant immunity" but does not allege or allude to any
negative consequence other than the nebulous "something . . . bad" stated above. We do
not address on appeal issues incidentally raised but not argued. In re Rausch, 272 Kan.
308, 327, 32 P.3d 1181 (2001), reinstatement granted 277 Kan. 658 (2004). Here, no
threat of physical harm is even mentioned, let alone argued, in Guein's brief. This court
should not rediscover arguments that parties have abandoned or create those never raised.


       However, even if one reads the profane statements to mean that the officer would
somehow punish Guein if he didn't cooperate, that tactic is solely one factor that cuts
against the State. It does not make the confession involuntary per se.


       "[W]e fail to see how law enforcement can be required by Miranda to advise [a suspect]
       of his right to remain silent, and then can be allowed to warn him of punishment for his
       'noncooperation' when he exercises that right. Accordingly, we need not determine
       whether this tactic otherwise constitutes a 'threat' under K.S.A. 2004 Supp. 60-460(f). On
       the other hand, we do not regard this tactic as one which makes the confession
       involuntary per se, but rather as one factor to be considered in the totality of
       circumstances. See, e.g., Tuttle, 650 N.W.2d at 35; Passama, 103 Nev. at 214."
       Swanigan, 279 Kan. at 36-37.


       Worse tactics commonly withstand allegations of coercion. See, e.g., State v.
Harris, 293 Kan. 798, 811, 269 P.3d 820 (2012) (confession may be voluntary even when
officers lie to defendant during an interview); State v. Wakefield, 267 Kan. 116, 126-28,
977 P.2d 941 (1999) (deceptive interrogation techniques do not establish coercion but are
one circumstance that must be viewed in conjunction with the others present to assess
totality of the circumstances). See generally Illinois v. Perkins, 496 U.S. 292, 297, 110 S.
Ct. 2394, 110 L. Ed. 2d 243 (1990) ("Miranda forbids coercion, not mere strategic
deception by taking advantage of a suspect's misplaced trust in one he supposes to be a



                                                    35
fellow prisoner. . . . Ploys to mislead a suspect or lull him into a false sense of security
that do not rise to the level of compulsion or coercion to speak are not within Miranda's
concerns."). The tactic used by the officer here is not coercive.


       The totality of the circumstances shows that Guein's statements were freely and
voluntarily made and that his will was not overborne by any implied threat that the
officer would somehow punish Guein if he didn't cooperate. See Sharp, 289 Kan. at 81
(noting dissipation of the import of an individual factor that might otherwise have a
coercive effect).


Conclusion


       Coercive government activity is necessary to finding that a confession was not
voluntary. Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 93 L. Ed. 2d 473
(1986); State v. Dern, 303 Kan. 384, 392, 362 P.3d 566 (2015); State v. Stone, 291 Kan.
13, 32-33, 237 P.3d 1229 (2010); Swanigan, 279 Kan. at 39.


       "'The sole concern of the Fifth Amendment, on which Miranda was based, is
       governmental coercion. See United States v. Washington, 431 U.S. 181, 187 (1977);
       Miranda, supra, 384 U.S., at 460. Indeed, the Fifth Amendment privilege is not
       concerned "with moral and psychological pressures to confess emanating from sources
       other than official coercion." Oregon v. Elstad, 470 U.S. 298, 305 (1985).' (Emphasis
       added.) 479 U.S. at 170." State v. Brown, 286 Kan. 170, 174, 182 P.3d 1205 (2008)
       (quoting Connelly, 479 U.S. at 170).


       Guein was no monk cloistered in a monastery. Although the officer's profane
statements may have had a coercive effect on some hypothetical person, the facts do not
show the statements had any such effect on Guein. Instead, the facts weigh heavily in
favor of finding that Guein's statement that he had purchased the marijuana for $25 and
intended to sell it to Gresham for $50 was the product of Guein's free and independent


                                                  36
will. Because substantial evidence supports the district court's finding that the State met
its burden of proof as to voluntariness, I would affirm.




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