                           NOT DESIGNATED FOR PUBLICATION

                                            No. 121,138

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                       JOSE L. RODRIGUEZ,
                                            Appellant,

                                                  v.

                                        STATE OF KANSAS,
                                            Appellee.

                                  MEMORANDUM OPINION


        Appeal from Lyon District Court; W. LEE FOWLER, judge. Opinion filed June 12, 2020. Affirmed.


        Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.


        Laura L. Miser, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt,
attorney general, for appellee.


Before STANDRIDGE, P.J., LEBEN and BRUNS, JJ.


        LEBEN, J.: Jose L. Rodriguez appeals the district court's summary dismissal of his
request for habeas corpus relief under K.S.A. 60-1507. In his habeas motion, he alleged
that the attorney who had represented Rodriguez at his criminal trial provided
constitutionally inadequate representation when he didn't try to suppress key evidence
found during the search of a car in which he was a passenger. The district court found
that the record conclusively showed that such a motion had no chance of success because
Rodriguez lacked standing to challenge the car search. So it dismissed the motion without
holding an evidentiary hearing.
       If specific facts are alleged that would support a habeas claim, the district court
usually must hold an evidentiary hearing unless the information available to the court
shows that there's no possibility the claim would succeed. Rodriguez argues that a
suppression motion would have succeeded because the items found in the car and used
against him at trial were the product of an unlawfully extended car stop. But Rodriguez
provides no evidence that the officer extended the stop by asking the driver more
questions. With no allegation of facts that—if presented at a hearing—would support a
successful claim, no evidentiary hearing was needed.


       In addition, the record before the court affirmatively showed that the initial car
stop turned into a voluntary encounter. A suppression motion challenging evidence found
after a voluntary encounter was certain to fail, so his attorney's failure to file one couldn't
have caused any harm to Rodriguez. We therefore affirm the district court's judgment.


                        FACTUAL AND PROCEDURAL BACKGROUND


The Car Stop


       Rodriguez' road to our court began with a car stop in Emporia back in 2014.
Deputy Heath Samuels stopped Joni Beemer's car when she failed to use her turn signal.
Rodriguez was a passenger in the car. Beemer didn't have her license with her, but
Samuels radioed dispatch and confirmed that it was valid. He also radioed Deputy Cory
Doudican for backup and confirmed that Beemer had no arrest warrants. Then he told
Beemer to use her turn signal next time and to have a nice day.


       Right after that, Samuels asked Beemer if he could ask her more questions. She
said yes, so he asked her if there were any drugs in the car. She said no. He asked if he
could search the car. When she replied, "[I]f you really think it's necessary," he said it
was her choice. She said that she didn't mind him searching.

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       Samuels asked her and Rodriguez to step out of the car. When Samuels asked
Rodriguez for identification, he provided a Kansas ID card. Dispatch told Samuels that
Rodriguez had an outstanding arrest warrant, and Samuels handcuffed Rodriguez.


       When Doudican arrived, Samuels was questioning Beemer. Samuels told
Doudican that Beemer had consented to a search of the car. When the officers searched
the car, they found $1,403 between the center console and the front passenger's seat. And
they found two pipes underneath some trash in the front passenger door—a glass pipe
with methamphetamine residue on it and a metal pipe with marijuana residue on it.
Rodriguez said that everything in the passenger door was his. Beemer was arrested and
taken to the county jail, where an officer found 21.85 grams of methamphetamine on her
person.


The Trial and Appeal


       The State charged Rodriguez with several offenses, including possession of
methamphetamine with an intent to distribute and two counts of possession of drug
paraphernalia. The court appointed attorney Nick Heiman to represent him. Rodriguez
pleaded not guilty on all charges and requested a jury trial. At the one-day trial, the State
admitted the items from Beemer's car into evidence (the money and both pipes). And the
State admitted the methamphetamine found on Beemer at the county jail.


       Beemer testified at trial that the meth was hers. She said she put it in her pants as
she was pulled over. Before that, she said, it was in a zipped-up digital-camera case on
the floorboard behind her seat. Since she was driving, she said that she did have
Rodriguez get the case and hand it to her. She said that he hadn't known that there was
meth in the car.


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       But an investigator testified that Beemer's testimony conflicted with what she had
said in an earlier interview. Carlton Heller, an investigator for the prosecutor, said that
Beemer told him in an interview that Rodriguez had opened the case, taken out the
baggies containing meth, and asked her to hide them. Beemer also told Heller that the
meth belonged to both Rodriguez and her, and that they were selling it for money because
Rodriguez had lost his job.


       The jury found Rodriguez guilty of possession of methamphetamine with an intent
to distribute and of two counts of possession of drug paraphernalia. He appealed his
convictions, challenging the sufficiency of the evidence on the methamphetamine offense
and objecting to one of the jury instructions; our court affirmed the district court. State v.
Rodriguez, No. 114,424, 2016 WL 6568745, at *1, 2-4 (Kan. App. 2016) (unpublished
opinion).


The Habeas Motion


       After losing his appeal, Rodriguez filed for habeas relief under K.S.A. 60-1507 to
set aside his convictions. He alleged, among other things, that Heiman had provided
constitutionally inadequate representation at his trial. The State moved to dismiss without
a hearing because Rodriguez hadn't shown that Heiman had provided inadequate
representation.


       Rodriguez amended the motion to allege that Heiman had performed inadequately
by not moving to suppress the evidence found in Beemer's car. He suggested that was
unreasonable because Samuels had violated the Fourth Amendment when he asked
Beemer more questions and obtained her consent to a search. Rodriguez also argued that
Beemer's consent may have been involuntary. Because a suppression motion likely would
have affected the trial's outcome, Rodriguez said, Heiman provided inadequate
representation for not filing one.

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       The State moved again for dismissal, this time arguing that a suppression motion
would have failed because Rodriguez lacked standing to contest the search of Beemer's
car. The State also argued that Heiman couldn't have suppressed the methamphetamine
because police found it on Beemer at the jail.


       Rodriguez responded to those arguments in a supplemental brief. He listed factors
that affect whether an encounter with the police is voluntary or an investigatory stop. He
asserted that some of those factors applied but cited no factual support for that claim. And
he repeated his claim that Samuels had unlawfully extended the stop by asking Beemer
more questions after finishing the turn-signal investigation. On the standing issue,
Rodriguez agreed that he could not challenge the search of Beemer's car. But he could
challenge the allegedly unlawful extension of the stop, he argued, seeking to exclude the
car evidence as the fruits of that unlawful seizure.


       In a response brief, the State said that Rodriguez had standing to challenge only
the validity of the initial car stop. And it said that a hearing wasn't required because
Rodriguez hadn't provided evidentiary support for his claims.


       In a three-page decision, the district court dismissed Rodriguez' motion. To make
its ruling, the court reviewed not only the motion but the full record of Rodriguez'
criminal case, including the evidence presented at trial. The court found that although
Rodriguez had standing to contest the validity of the initial stop, he hadn't alleged that the
stop was improper. The court also found that Rodriguez lacked standing to contest the
search as a passenger because he claimed no legitimate expectation of privacy in
Beemer's car. And even if he could contest the search, the court found that the
methamphetamine wouldn't have been suppressed because it was found on Beemer at the
county jail, not in her car. So the court dismissed his motion without a hearing because it


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concluded that the record conclusively showed that he had no right to relief on his
ineffective-assistance-of-counsel claim.


       Rodriguez then appealed to our court.


                                           ANALYSIS


       Rodriguez says the district court should have held a hearing on his motion because
the record doesn't conclusively show that he had no right to relief on his ineffective
assistance of counsel claim. See Wilkinson v. State, 40 Kan. App. 2d 741, 746, 195 P.3d
278 (2008). To succeed on that claim, he had to show two things. First, he had to show
that his attorney had performed deficiently in some aspect of his trial. Second, he had to
show prejudice—there must have been a reasonable probability that the trial outcome
would have been different but for Heiman's deficient performance. See State v. Sprague,
303 Kan. 418, 426, 362 P.3d 828 (2015).


Standard of Review


       Before we look more fully at Rodriguez' claims, we must first settle a dispute
between the parties about the standard of review we should use in this appeal.


       Under K.S.A. 60-1507, the movant must show that an evidentiary hearing is
warranted. Doing so requires more than mere conclusory allegations—there must be an
evidentiary basis for the movant's claims in the existing record or from new allegations.
Wilkinson, 40 Kan. App. 2d at 746. If the record conclusively shows that the movant has
no right to relief, then the district court can dismiss the motion without holding a hearing.
If it does so, appellate courts exercise unlimited review over its decision. Sprague, 303
Kan. at 425. Here, the district court didn't hold a hearing, so the summary-dismissal
standard applies.

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       The State disagrees. It says a different standard should apply because the judge
functionally held a hearing by considering supplemental briefs and making detailed
findings in its decision. But a court doesn't conduct a hearing by considering
supplemental briefs. See Stewart v. State, 310 Kan. 39, Syl. ¶ 3, 444 P.3d 955 (2019)
(holding that a judge doesn't hold a "hearing" under the Due Process Clause when it
considers the State's response to a K.S.A. 60-1507 motion); Dawson v. State, 310 Kan.
26, Syl. ¶ 3, 444 P.3d 974 (2019) (same, when the judge requests extra briefing on an
issue). And the State cites no authority for the proposition that making detailed findings
transforms a court's decision into a hearing. In short, the summary-dismissal standard
applies because the district court didn't hold a hearing.


Standing


       Recall that Rodriguez alleges that Heiman provided inadequate representation
because he didn't move to suppress the evidence from Beemer's car. Had Heiman done
so, the motion would have had to show that the officers obtained the evidence in violation
of the Fourth Amendment. But not just any violation would support suppression—
Rodriguez had to show that the unlawful search or seizure happened to him. In other
words, he had to have standing.


       The standing requirement reflects a simple principle: because Fourth Amendment
rights are personal, the defendant cannot assert them on behalf of others. So the person
challenging a search or seizure as unlawful must have been searched or seized. Rakas v.
Illinois, 439 U.S. 128, 133-34, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978).


       This issue often arises when police search a car. A search is an invasion of a
person's legitimate expectation of privacy. But passengers usually have no legitimate
privacy expectation in a driver's car, so they suffer no personal Fourth Amendment

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violation when the car is searched. They therefore lack standing to contest the validity of
the search on the driver's behalf. Rakas, 439 U.S. at 148-49; State v. Gilbert, 292 Kan.
428, 432-34, 254 P.3d 1271 (2011).


       That's not always the case, though. For example, a passenger may contest a search
if the passenger claims a possessory or proprietary interest in the car or the area searched.
Or a passenger may claim ownership of items in the car. Rakas, 439 U.S. at 148; Gilbert,
292 Kan. at 435. But ownership alone cannot establish the passenger's legitimate
expectation of privacy in the car. Rawlings v. Kentucky, 448 U.S. 98, 105, 100 S. Ct.
2556, 65 L. Ed. 2d 633 (1980).


       Under these principles, the district court properly found that Rodriguez lacked
standing to contest the search of Beemer's car. As a passenger, Rodriguez had no
expectation of privacy in the car. He claimed no possessory or proprietary interest in the
car or the area searched. He did claim to own the pipes in the car, and that's some
evidence of a privacy expectation. But it cannot, by itself, create standing to contest the
search. 448 U.S. at 105. Because he alleged no other facts showing that he had a
legitimate expectation of privacy in Beemer's car, the district court correctly found that he
lacked standing to contest the search.


       Even so, we can't end the analysis at that point. A passenger who lacks the privacy
interest that's needed to contest a car search may still contest the traffic stop that led to
the search. When the police stop a car, both the driver and the passenger have been
seized. So the passenger, like the driver, experiences a Fourth Amendment violation if the
initial stop is invalid. Brendlin v. California, 551 U.S. 249, 255-57, 127 S. Ct. 2400, 168
L. Ed. 2d 132 (2007); State v. Epperson, 237 Kan. 707, 717-18, 703 P.2d 761 (1985). The
same is true if the initial stop is valid but the officer unlawfully extends the stop. See
Brendlin, 551 U.S. at 259; 3 LaFave, Israel, King & Kerr, Criminal Procedure § 9.1(d)


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(4th ed. 2018). In both cases, the passenger (like the driver) may seek to exclude the
fruits of the unlawful seizure later found in the car.


       Rodriguez had standing on that basis. He alleges that Samuels unlawfully
extended the stop by asking Beemer more questions after completing the investigation of
the turn-signal offense. If that's true, then Rodriguez suffered a Fourth Amendment
violation because he too was seized. And Heiman could have moved to exclude the
evidence found in the car as the fruit of that unlawful seizure. So the district court was
wrong to find that a suppression motion was certain to fail on standing grounds. Yet its
decision can still be affirmed because the motion would have failed for a different reason:
Rodriguez alleges no facts showing that Samuels unlawfully extended the stop.


Extension of the Car Stop


       To state a claim for ineffective assistance, Rodriguez must show that he was
prejudiced by Heiman's failure to file a motion to suppress. That means he must show
two things: "that his Fourth Amendment claim is meritorious and that there is a
reasonable probability that the verdict would have been different absent the excludable
evidence in order to demonstrate actual prejudice." Kimmelman v. Morrison, 477 U.S.
365, 375, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). There's a reasonable probability that
the verdict on the drug paraphernalia charges would have been different if the pipes had
been excluded (it's hard to prove that a person possessed drug paraphernalia with no drug
paraphernalia to show the jury). But Rodriguez can't show prejudice because under basic
Fourth Amendment principles, his claim is meritless.


       To suppress the evidence from Beemer's car, Rodriguez would have had to show
that Samuels unlawfully extended the car stop. An officer can lawfully extend a car stop
beyond the scope and duration of the initial investigation in two circumstances. First, the
officer may develop reasonable suspicion for a new offense while investigating the

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offense for which the officer began the stop. Second, the stop may transform into a
voluntary encounter that's not a seizure at all—it's a consensual interaction if a reasonable
person under the circumstances would feel free to leave. Many factors affect that
analysis, though no single factor is dispositive. See State v. Thompson, 284 Kan. 763,
Syl. ¶¶ 7-9, 17-24, 166 P.3d 1015 (2007). So a suppression motion filed by Heiman
would have had merit only if Samuels had no new reasonable suspicion and if the
interaction with Beemer did not become a voluntary encounter.


       No one claims that Samuels developed reasonable suspicion for a new offense
while investigating the turn-signal violation. Reasonable suspicion requires specific and
articulable facts that criminal activity is afoot. Thompson, 284 Kan. 763, Syl. ¶ 6. Both
parties agree that Samuels had reasonable suspicion to pull over Beemer because he saw
her commit a traffic offense. And they agree that he didn't develop reasonable suspicion
for a new offense while investigating the traffic offense. So when he asked Beemer more
questions, Rodriguez says that he unlawfully extended the stop. But that would only be
true if the stop didn't become a voluntary encounter.


       The only evidence in the record (a statement from Samuels that Rodriguez
attached to his habeas claim) shows that it did. After issuing a warning and telling
Beemer to have a good day, Samuels asked if he could ask her more questions. She said
yes. When he began the additional questioning, he was the only officer present and he
didn't have Beemer's driver license or other documents (because she'd left them at home).
Samuels asked if there were any drugs in the car, and Beemer said no. Then he asked if
he could search the car, to which she replied, "[I]f you really think it's necessary." He told
her that it was her choice. She told him she didn't mind him searching. Based on that
evidence (and Rodriguez has made no factual allegations to counter it), the encounter was
voluntary because a reasonable person would have felt free to leave under those
circumstances. See State v. Murphy, 296 Kan. 490, 493-94, 293 P.3d 703 (2013);
Thompson, 284 Kan. at 773.

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       Rodriguez hasn't alleged that any of the factors that render an encounter
involuntary existed. For example, courts often consider indicators of a coercive
environment, like the display of a weapon, physical touching, or the use of aggressive
language or a vocal tone suggesting that compliance with the officer's request is required.
Thompson, 284 Kan. at 811. But Rodriguez hasn't pointed to anything in the record from
his criminal case that suggests those factors existed here. Nor has he alleged their
existence based on new evidence.


       The closest Rodriguez got to alleging these factors was in his supplemental filing
in the district court. That brief acknowledged that courts consider many factors, including
the ones just mentioned, when deciding whether an encounter was voluntary. From the
"bare facts," he said that several of these factors applied. Yet he provided no evidentiary
support for that contention, either from the record or from new allegations. Without
evidence, his conclusory statement that the stop was involuntary doesn't warrant an
evidentiary hearing.


       To recap, the record conclusively shows that Rodriguez isn't entitled to relief on
his ineffective-assistance claim. He based that claim on Heiman not moving to suppress
evidence found in Beemer's car. But Rodriguez couldn't receive relief on that claim
without showing prejudice—he had to prove that the suppression motion had merit so
that the failure to file it affected the trial outcome. A suppression motion was meritless,
however, if the encounter that led to the discovery of the items to be suppressed was
voluntary. And Rodriguez provides no evidence that Samuels' additional questioning of
Beemer was involuntary.


       Because the record conclusively shows that Rodriguez isn't entitled to relief for his
ineffective-assistance claims, we affirm the district court's judgment.


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