State v. Quesada-Lugones

496 P.3d 947 (Table)

STATE of Kansas, Appellee,

v.Jose Alejandro QUESADA-LUGONES, Appellant.

No. 121,493

Court of Appeals of Kansas.

Opinion filed October 8, 2021.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney and Derek Schmidt, attorney general, for appellee.

Before Bruns, P.J., Buser, J., and Walker, S.J.

MEMORANDUM OPINION

Buser, J.:

Jose Alejandro Quesada-Lugones appeals his conviction for possession of cocaine that was found in his pants pocket by a law enforcement officer who stopped him on the street. Quesada-Lugones raises several issues on appeal. First, he contends the district court erred in denying his motion to suppress evidence because his interaction with the officer was not a voluntary encounter. Second, he argues that if the encounter was voluntary, he did not consent to the search of his person. Third, Quesada-Lugones asserts the district court erred in dismissing a prospective juror for cause. Fourth, he claims the district court erred by failing to instruct on jury nullification. Finally, he contends the district court erred by imposing Board of Indigents’ Defense Services (BIDS) fees without making a sufficient inquiry into the defendant's financial circumstances.

Upon our review, we hold the district court did not err in finding that Quesada-Lugones and the officer engaged in a voluntary encounter; however, we find reversible error in the officer's search and seizure of the cocaine because there was insufficient evidence that Quesada-Lugones knowingly and voluntarily consented to the search of his person. Accordingly, the district court's denial of Quesada-Lugones’ motion to suppress evidence is reversed and remanded. Based on this holding, we decline to address the additional appellate issues pertaining to jury selection and jury nullification. The assessment of BIDS fees is remanded for reconsideration by the district court given our holding.

FACTUAL AND PROCEDURAL BACKGROUND

On January 13, 2018, Quesada-Lugones and his girlfriend were at a crowded bar in Olathe. According to Quesada-Lugones, three or four men emerged from the restroom in the bar, circled him, shoved him, and pulled at his clothes. Quesada-Lugones told the men he did not want any trouble, whereupon he left the bar alone.

Quesada-Lugones walked home, passing an ongoing traffic stop. Drew Fitzpatrick, the Olathe police officer conducting the stop, observed Quesada-Lugones walking down the sidewalk and noticed he appeared lost and cold. The temperature that evening was about 13 degrees with a wind chill of -1 degree. Quesada-Lugones wore a winter jacket, zipped up to his neck, with jeans and shoes but no hat or gloves.

Concerned about the man's welfare, Officer Fitzpatrick completed the traffic stop, drove to where Quesada-Lugones was walking on the sidewalk and pulled up on the opposite side of the street. The officer then crossed the street and approached Quesada-Lugones on foot. As Officer Fitzpatrick approached, Quesada-Lugones removed his Kansas driver's license from his wallet and gave it to the officer. At a later suppression hearing, Officer Fitzpatrick testified that "the majority of [their] conversation" was about whether Quesada-Lugones wanted the officer's help getting home. The officer testified that he believed Quesada-Lugones wanted his help because he was willing to speak with the officer, never attempted or asked to leave, and was cooperative.

Quesada-Lugones also testified through an interpreter at the suppression hearing. According to the defendant, he is from Cuba but has been in the United States for five years. Quesada-Lugones is a native Spanish speaker and testified he had only recently begun taking English classes. He testified that he was afraid during the stop because he does not speak English and he did not know how to communicate with the officer.

Officer Fitzpatrick testified that upon seeing Quesada-Lugones up close, he appeared to be "extremely cold" and smelled of alcohol. The officer was wearing a body camera during his encounter with Quesada-Lugones, and the video footage was shown during the suppression hearing. It shows Officer Fitzpatrick trying to conduct a welfare check with Quesada-Lugones but struggling to communicate with him. The officer asked Quesada-Lugones if he would like a ride home several times, but the defendant did not give clear answers. Given the language difficulties, the encounter is difficult to understand.

Officer Fitzpatrick testified that he believed Quesada-Lugones wanted a ride home and, as a result, walked him across the street to his patrol car. The officer testified that he tried "to communicate with Mr. [Quesada-]Lugones as best as [he] could." When Officer Fitzpatrick asked Quesada-Lugones if he could check his pockets, the officer testified the defendant replied, "[n]o problem" and followed him back to his patrol car. Moreover, Officer Fitzpatrick believed Quesada-Lugones was willing to submit to a pat-down because when the officer asked Quesada-Lugones if he could "check his pockets," the defendant put his hands in the air and appeared to say, "No problem."

Ultimately, Officer Fitzpatrick searched Quesada-Lugones and found cocaine in his front pocket. As a result, the State charged Quesada-Lugones with possession of cocaine in violation of K.S.A. 2017 Supp. 21-5706(a).

Before trial, Quesada-Lugones moved to suppress the cocaine found in his pocket—arguing it was fruit of the poisonous tree because the officer lacked justification for a public safety stop and the defendant had not intelligently and voluntarily consented to the search of his person. At the suppression hearing, the district court ruled that the State did not meet its burden of justifying the public safety stop because Officer's Fitzpatrick's testimony was not "well-articulated or specific enough" to show "the concern of welfare of this pedestrian." The district court denied Quesada-Lugones’ motion to suppress, however, concluding that the encounter was voluntary and the "search incident to that encounter was a simple pat-down for legitimate reasons."

In April 2019, a jury found Quesada-Lugones guilty of possession of cocaine. The defendant was sentenced to 10 months’ imprisonment but granted a 12 months’ probation. The district court advised Quesada-Lugones that he was eligible for early termination of probation after six months if he complied with the terms of his probation. The district court ordered Quesada-Lugones to reimburse $700 in BIDS fees for the representation of his appointed attorney.

Quesada-Lugones appeals.

DENIAL OF MOTION TO SUPPRESS EVIDENCE

Quesada-Lugones contends the district court erred in denying his motion to suppress evidence because the cocaine obtained by Officer Fitzpatrick was the result of an illegal search and seizure. Quesada-Lugones contends the encounter between himself and the officer was not voluntary, as found by the district court, because he did not feel comfortable terminating the encounter and he did not know he had a right to terminate the encounter. Moreover, Quesada-Lugones asserts that regardless of whether the encounter was voluntary, the evidence was illegally obtained because "separate and distinct consent is required for a subsequent search." In response, the State contends the encounter was voluntary and Quesada-Lugones consented to the search.

Quesada-Lugones objected to the introduction of the cocaine at trial, properly preserving this issue for appeal. See State v. Dupree , 304 Kan. 43, 62, 371 P.3d 862 (2016).

An appellate court's standard of review in evaluating the district court's ruling on a motion to suppress has two components. First, our court reviews the district court's factual findings to determine whether they are supported by substantial competent evidence. Second, the ultimate legal conclusion is reviewed using a de novo standard. When the material facts supporting a district court's decision on a motion to suppress evidence are not in dispute, the ultimate question of whether to suppress is a question of law over which an appellate court has unlimited review. In reviewing the factual findings, this court does not reweigh the evidence or assess the credibility of witnesses. State v. Hanke , 307 Kan. 823, 827, 415 P.3d 966 (2018). The State has the burden to prove that a search and seizure was lawful. State v. Ton , 308 Kan. 564, 568, 422 P.3d 678 (2018).

Voluntary Encounter

After considering the evidence, the district court ruled the encounter between Quesada-Lugones and Officer Fitzpatrick was voluntary. The district court reasoned that the officer did not intend to seize Quesada-Lugones and that the defendant voluntarily stopped and conversed with the officer. The district judge explained:

"Officer Fitzpatrick testified he didn't ask for his backing officer to get out with him. He had no intention of needing to draw his weapon, didn't turn on his siren. He had the back-deck flashing lights for his own safety purposes so no one would run into his car. And it does light up that area somewhat, but I don't believe that impinges on the Defendant's conceding or understanding that he is being detained, being seized.

"Officer Fitzpatrick has a very friendly attitude and is only asking for whether or not Mr. Quesada-Lugones is doing all right if he—and if he knows where he's going. That supports—I think, in Officer Fitzpatrick's mind, that he goes into this thinking that this person appears to be lost by looking at his phone, but seems to be meandering along.

"So he then asks. Where do you live? What's your address? And at that point when Mr. Quesada-Lugones is providing his ID—I'm not sure if it's ID or driver's license, but his address, and the officer pursues that, asking is that his address; is that where he wants to go; does he want a ride home.

"Officer has to use sign language, if you will, very rudimentary sign language, to get the

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