State v. Fuero-Mendoza

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NOT DESIGNATED FOR PUBLICATION

No. 112,302

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GUILLERMO FUERO-MENDOZA,
Appellant.


MEMORANDUM OPINION

Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed January 8, 2016.
Affirmed.

Reid T. Nelson, of Capital and Conflicts Appeals Office, for appellant.

Jonathon L. Noble, assistant county attorney, Marc Goodman, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., BUSER and GARDNER, JJ.

BUSER, J.: Guillermo Fuero-Mendoza was convicted of possession of
methamphetamine and possession of drug paraphernalia. In this appeal, he contends the
district court erred in denying his motion to suppress the incriminating contraband
discovered by an Emporia police officer after Fuero-Mendoza voluntarily consented to
the search of his backpack. In particular, he argues that despite his voluntary consent, the
officer's search was beyond the scope of the detention and, therefore, in violation of the
Fourth Amendment to the United States Constitution. Finding no error in the officer's
search of the backpack and seizure of the contraband, we affirm the convictions.
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FACTUAL AND PROCEDURAL BACKGROUND

On November 6, 2013, as a consequence of the search of Fuero-Mendoza's
backpack and seizure of contraband, the State charged him with possession of
methamphetamine (K.S.A. 2014 Supp. 21-5706[a],[c][1]) and possession of drug
paraphernalia (K.S.A. 2014 Supp. 21-5709[b][2],[e][3]).

Prior to trial, Fuero-Mendoza filed a motion to suppress all evidence seized from
his backpack. In the motion, he made several assertions. In particular, Fuero-Mendoza
alleged Officer Jeremiah Bouthillier "extended the duration of the detention beyond what
was reasonable." He also claimed "he did not inform the police officer that he had
permission to search his bag or in the alternative, that such consent was not freely,
knowingly, and voluntarily obtained." Additionally, Fuero-Mendoza stated that Officer
Bouthillier "lacked reasonable suspicion to detain the Defendant and request his consent
to search the bag" because during the encounter the only suspicious behavior noted by the
officer was that Fuero-Mendoza glanced several times at his backpack. Fuero-Mendoza
also asserted the search was unnecessary because the officer could have moved him away
from the bag or placed him in handcuffs until the encounter was ended. Finally, Fuero-
Mendoza stated, in the alternative, that his consent to the search was invalid because he
was never advised of his Miranda rights prior to his arrest. See Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

At the beginning of the hearing on the motion to suppress, however, counsel for
Fuero-Mendoza advised that he "wasn't going to contest that there was reasonable
suspicion to initiate the stop, that the description given of the suspect was sufficient,
sufficiently definitive and occurred within a close enough time that that's not going to be
an issue."

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During the hearing, the district court heard testimony from Officer Bouthillier and
Fuero-Mendoza. Officer Bouthillier testified he was on duty on November 5, 2013, in his
patrol vehicle when he stopped Fuero-Mendoza, who was wearing a backpack and riding
a bicycle. According to the officer, "The reason why I initiated a stop was, I was given a
description of a suspect leaving the scene of a crime, wearing blue jeans, a dark-colored
hoodie, a blue backpack, while riding a bicycle."

The police dispatcher first notified Officer Bouthillier of the incident and suspect
description at 1:49 p.m. Initially, the officer was advised the suspect was involved in "a
family fight," and the "reporting party was barricaded in her house because she was afraid
of Mr. Mendoza."

Officer Bouthillier testified that he stopped Fuero-Mendoza about a minute after
receiving the initial dispatch, or about 1:50 p.m. At the time of the bicycle stop, the
officer could see in the distance, 1213 Sundown Circle, the residence where the incident
reportedly occurred.

Upon being stopped by Officer Bouthillier, Fuero-Mendoza placed the backpack
he had been wearing on the ground next to his feet. The officer asked Fuero-Mendoza if
he had been at 1213 Sundown Circle. Fuero-Mendoza responded that he had been there,
and the officer began questioning him about the incident which had just occurred at the
residence. In particular, Officer Bouthillier asked Fuero-Mendoza if he had any weapons
on him prior to being stopped. Fuero-Mendoza indicated he had a pocket knife which he
surrendered to the officer who secured it.

According to Officer Bouthillier, Fuero-Mendoza "seemed a little nervous, . . . a
little confused. He was very agitated. . . . Consistently during our interview, he would
look at this backpack, look at me in just kind of a jittery manner." The officer estimated
that Fuero-Mendoza glanced down at the backpack five or six times. Based on his
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observations of Fuero-Mendoza's behavior, Officer Bouthillier was concerned about his
safety because the back pack possibly contained "guns, knives, anything illegal."

About 8 minutes after stopping Fuero-Mendoza, or about 1:58 p.m., Officer
Bouthillier asked the suspect if "I could have consent to search his bag for any of those
items." The officer testified that Fuero-Mendoza "first looked at the bag then looked at
me, kind of shrugged his shoulders, and then with his left hand, pointed towards the blue
backpack and said, "'Yeah. Sure. Go ahead.'"

Upon searching the backpack, Bouthillier located a white, clear pipe that
contained some white residue. As a consequence, the officer placed Fuero-Mendoza
under arrest and advised him of his Miranda rights. In response, Fuero-Mendoza denied
the pipe was his and claimed that it belonged to a friend. A later search of the bag located
another clear pipe containing white residue. The items seized from the backpack provided
the basis for the drug charges.

At the time Officer Bouthillier asked for consent to search, he testified that he did
not know the results of Officer Ayer's contact with the reporting party at 1213 Sundown
Circle. After discovering the contraband, however, Officer Bouthillier had radio contact
with Officer Ayers regarding the incident. Officer Bouthillier later learned that an actual
fight had not occurred at the residence.

Fuero-Mendoza testified at the suppression hearing. He indicated he was born in
Mexico where he lived for 16 years. Fuero-Mendoza denied that he displayed any
nervousness during the encounter with Officer Bouthillier, and he testified that he felt he
was free to leave because the officer had no reason to arrest him. Fuero-Mendoza recalled
that Officer Bouthillier asked him for permission to search his backpack, but he denied
that he gave his consent. He also said he was arrested prior to the search of the backpack
and the encounter lasted for more than 30 minutes.
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At the conclusion of the evidence, the State argued that Fuero-Mendoza had
knowingly and voluntarily consented to the search and asked the district court to deny the
motion to suppress. Defense counsel candidly conceded there was reasonable suspicion to
stop Fuero-Mendoza "because [the State] wanted to determine whether something may or
may not have happened." But the defense complained that "the stop extended the duration
of what was necessary." Specifically, Fuero-Mendoza complained that Officer Bouthillier
"waited somewhere on the order of about eight minutes before requesting consent to
search." Defense counsel also argued that the officer lacked reasonable suspicion to
search the backpack or extend the detention. Defense counsel did not contest or even
mention the voluntariness of Fuero-Mendoza's consent to the search.

In denying the motion to suppress, the district court made extensive factual
findings and legal conclusions from the bench which were later memorialized in a journal
entry. The district court found the parties conceded that at the time of the initial stop
Officer Bouthillier had reasonable suspicion to make an investigatory stop. The district
court also resolved the disputed, contradictory evidence presented at the hearing by
finding that "Officer Bouthillier's testimony is more probably true than not true."

With regard to the stop and detention of Fuero-Mendoza, the district court
concluded that the officer's questions "were of the nature that would have been usual in
the course of an investigatory detention." Moreover, "the time taken beginning with the
stop [and] ending with the search of the bag took approximately 8 minutes during which
time Officer Bouthillier had no contact from other law enforcement. He had no
information that would have made the length of the detention in this instance
unreasonable." Finally, the district court found that Fuero-Mendoza "gave unequivocal,
specific, and freely given consent to search his backpack."

At trial, defense counsel made a continuing objection to the admission of the
contraband, thus preserving the issue for appellate review. A jury found Fuero-Mendoza
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guilty as charged. The district court granted Fuero-Mendoza's motion for a durational
departure and sentenced him to a controlling 15-month term of imprisonment. Fuero-
Mendoza timely appeals.

ANALYSIS

Preliminarily, it is necessary to clarify what legal arguments Fuero-Mendoza is
actually raising on appeal. First, as he conceded in the district court, Fuero-Mendoza does
not challenge the legality of Officer Bouthillier's stop. Moreover, he acknowledges that
under Terry v. Ohio, 392 U.S. 1, 16-19, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), "the
investigating officer was arguably allowed . . . to ask questions related to the disturbance
report, but if probable cause did not develop, to then allow Mr. Fuero-Mendoza to leave."
The district court noted Fuero-Mendoza's concession and relied upon it in ruling on the
suppression motion. As a result, the district court's finding that Officer Bouthillier
conducted a proper investigatory stop of Fuero-Mendoza based on reasonable suspicion
of criminal conduct will not be reviewed on appeal. See State v. Kelly, 298 Kan. 965,
971, 318 P.3d 987 (2014) (Generally, issues not raised before the trial court may not be
raised on appeal.); State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013) (An issue not
briefed by the appellant is deemed waived and abandoned.).

Second, as noted by the State, on appeal Fuero-Mendoza also does not contest the
State's central point that he freely and knowingly consented to the officer's request to
search his backpack. The district court determined the consent was unequivocal, specific,
and freely given. Accordingly, we will not review the district court's legal conclusion that
Fuero-Mendoza's consent to the search of the backpack was constitutionally valid. See
297 Kan. at 633.

Next, we identify the issue that Fuero-Mendoza has raised on appeal: "The
request for consent to search Mr. Fuero-Mendoza' backpack had nothing to do with the
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investigatory stop, and so was beyond the scope of the stop; therefore the contents should
have been suppressed."

Our standard of review regarding district court rulings on motions to suppress
evidence is longstanding: An appellate court uses a bifurcated standard to review a
district court's decision on a motion to suppress. Without reweighing evidence, the
appellate court reviews the district court's findings to determine whether they are
supported by substantial competent evidence. State v. Sanchez-Loredo, 294 Kan. 50, 54,
272 P.3d 34 (2012). Substantial evidence refers to legal and relevant evidence that a
reasonable person could accept as being adequate to support a conclusion. State v. May,
293 Kan. 858, 862, 269 P.3d 1260 (2012). The district court's ultimate legal conclusion is
reviewed de novo. Sanchez-Loredo, 294 Kan. at 54.

Both the Fourth Amendment of the United States Constitution and § 15 of the
Kansas Constitution Bill of Rights grant individuals the right to be free from
unreasonable searches and seizures of their person and property. State v. Thompson, 284
Kan. 763, 772, 166 P.3d 1015 (2007). The State carries the burden to prove that a search
or seizure was lawful. State v. McGinnis, 290 Kan. 547, 551, 233 P.3d 246 (2010). A
warrantless search is per se unreasonable unless one of the specially established
exceptions applies. Sanchez-Loredo, 294 Kan. at 55. Here, the State relied on consent as
the exception providing a legal basis for the search. See Thompson, 284 Kan. at 776
(listing consent as one of the exceptions to the warrant requirement).

As we have repeatedly observed, there are four types of police-citizen encounters:
(1) a voluntary or consensual encounter, which is not considered a seizure; (2) an
investigatory stop or detention; (3) a public safety stop; and (4) an arrest. Thompson, 284
Kan. at 772. In the present case, Officer Bouthillier's stop of Fuero-Mendoza was an
investigatory detention, or Terry stop. See Terry, 392 U.S. at 16-19.

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When an officer conducts a Terry stop, the scope and duration of the seizure must
be strictly tied to and justified by the circumstances which rendered its initiation proper.
Terry, 392 U.S. at 19-20; Thompson, 284 Kan. at 773-75. Thus, in order to stop and
detain a person, a law enforcement officer must have a reasonable suspicion that criminal
activity is taking place, has taken place, or is about to take place. K.S.A. 22-2402(1);
State v. DeMarco, 263 Kan. 727, 734, 952 P.2d 1276 (1998). An investigative detention
must last no longer than is necessary to effectuate the purpose of the stop unless there is
reasonable suspicion that some other crime has been or will be committed. Florida v.
Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983); State v. Mitchell,
265 Kan. 238, 244-45, 960 P.2d 200 (1998).

Although in his motion to suppress Feuro-Mendoza complained that Officer
Bouthillier "extended the duration of the detention beyond what was reasonable," on
appeal Fuero-Mendoza changes course and now asserts "the total time of the stop is not a
determining factor."

With regard to the duration of a Terry stop, an investigatory detention must be
temporary and last no longer than is necessary to effectuate the purpose of the stop.
Similarly, the investigative methods employed should be the least intrusive means
reasonably available to verify or dispel the officer's suspicion in a short period of time.
State v. Smith, 286 Kan. 402, 410, 184 P.3d 890 (quoting Royer, 460 U.S. at 500), cert.
denied 555 U.S. 1062 (2008). To determine whether law enforcement officers have
complied with the temporal limitation of an investigatory detention, courts examine
whether the officers diligently pursued a means of investigation that was likely to
confirm or dispel their suspicions quickly, during which time it was necessary to detain
the defendant. Smith, 286 Kan. at 410 (quoting United States v. Sharpe, 470 U.S. 675,
686, 105 S. Ct. 1568, 84 L. Ed. 2d 605 [1985]).

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Here, Fuero-Mendoza is not claiming, and there is no evidence in support of any
such claim, that the investigatory detention lasted longer than necessary to effectuate the
purpose of the stop. As the district court found, only 8 minutes elapsed between the time
the officer stopped Fuero-Mendoza and searched his backpack. Officer Bouthillier's
questions attempting to discover the circumstances of the reported family fight were
appropriate and designed to elicit Fuero-Mendoza's version of the events in an efficient
manner. Moreover, Fuero-Mendoza does not allege or present evidence that during this
brief time period Officer Bouthillier was stalling or otherwise intentionally prolonging
the detention.

Rather than contesting the duration of the stop, Fuero-Mendoza argues that "[t]he
heart of this appeal is the issue of consent, and whether it was given within the scope of
the stop." (Emphasis added.) He argues the officer "first asked Fuero-Mendoza if he had
been at [1213 Sundown Circle], and he said he was. This developed no probable cause
for arrest. However, the officer next asked for consent to search the [back]pack." Given
his characterization of the sequence of events, Fuero-Mendoza asserts "the case
transitioned from a Terry investigation to an unrelated consent to search." (Emphasis
added.) We disagree.

An investigatory detention must be reasonably related in scope to the
circumstances which justified the interference. In this case, Officer Bouthillier stopped,
identified, and briefly detained Fuero-Mendoza about a minute after being dispatched to
the scene. The suspect was found a short distance from the residence which he had
reportedly just left. The officer's stop and detention was initiated by a resident reporting a
family fight to the Emporia Police Department. Officer Bouthillier also was advised that
the resident was barricaded in her home because she was fearful of Fuero-Mendoza who
had just left the residence.

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During the 8-minute detention, Officer Bouthillier identified Fuero-Mendoza and
asked him questions about the family disturbance. Some of these questions were repeated
by the officer in order "to get clear answers" due to Fuero-Mendoza's heavy accent.
Moreover, the officer discovered that Fuero-Mendoza possessed a pocket knife prior to
and at the time of the stop. That pocket knife was surrendered and secured by the officer.

Importantly, during the brief detention, the district court found, based on
undisputed evidence, that Officer Bouthillier "had no contact from other law
enforcement. He had no information that would have made the length of the detention in
this instance unreasonable." Officer Bouthillier, who stopped Fuero-Mendoza at about 1
minute after receiving the dispatch, was aware that Officer Avery had been dispatched to
the residence to interview the reporting party and investigate the circumstances regarding
the family fight. In fact, from the location of Fuero-Mendoza's detention, Officer
Bouthillier could see Officer Avery's patrol car at 1213 Sundown Circle. We discern
from the district court's finding that the court determined at the time Officer Bouthillier
asked for consent to search the backpack he had not received any information from
Officer Avery that the report of the family fight was unfounded.

Fuero-Mendoza's argument that "the officer was engaged in a Terry detention
which was accomplished" prior to the officer's request for consent to search is contrary to
the district court's finding which is well supported by the evidence. (Emphasis added.) At
the time of the officer's request to search, the investigation had just begun. Officer
Bouthillier may have obtained the suspect's account of the family fight, but he had not yet
communicated with Officer Avery regarding the reporting person's account which
apparently caused her to barricade herself in the residence out of fear of Fuero-Mendoza.
On this record, there is substantial competent evidence to support the district court's
conclusion that when Officer Bouthillier asked for consent to search Fuero-Mendoza's
backpack, only 8 minutes after the stop, he was well within the appropriate scope of the
investigation.
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In support of his contention that Officer Bouthillier's request to Fuero-Mendoza
for consent to search his backpack was beyond the scope of the detention, Fuero-
Mendoza cites two cases involving purportedly consensual searches which occurred after
passenger vehicles were stopped for traffic violations. See State v. Spagnola, 295 Kan.
1098, 289 P.3d 68 (2012), and Smith, 286 Kan. 402. According to Fuero-Mendoza, "[t]he
traffic-stop cases show that our courts have drawn a line in the sand, and said that
requests to search objects, when unrelated to the purpose of the stop, are constitutionally
prohibited."

The precedent cited by Fuero-Mendoza is factually and legally distinguishable.
First, the case on appeal is not a case where a motor vehicle was stopped for a traffic
violation which later resulted in either a personal search of the driver's clothing or a
search of a passenger's purse, both searches which were wholly unrelated to the reason
for the traffic stop. See Spagnola, 295 Kan. at 1100-01; Smith, 286 Kan. at 403-04. In the
present case, there was no traffic stop. The request for consent to search the backpack
was made during a lawful detention to investigate a possible crime of domestic violence.
Officer Bouthillier stopped Fuero-Mendoza based on suspicion that he had just been
involved in a family disturbance which caused a resident to barricade herself in her home
and contact the police. As agreed upon by the parties and determined by the district court,
this was a valid Terry stop based on a criminal investigation of domestic violence just
reported to the police.

Second, in the present case, the officer's request for consent to search was
predicated on Fuero-Mendoza's agitated and suspicious behavior resulting in the officer's
concern for his safety. In Smith, on the other hand, there were no such behaviors
exhibited by the passenger or safety concerns by the officer, only the officer's suspicion
that the passenger's purse may contain drugs.

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Third, unlike the present case where the voluntariness of Fuero-Mendoza's consent
is undisputed, in Spagnola in suppressing the evidence our Supreme Court found the
consent was coerced and in violation of the Fourth Amendment. 295 Kan. at 1108.

Fuero-Mendoza also directs our attention to State v. Yotter, No. 95,436, 2007 WL
519017 (Kan. App. 2007) (unpublished opinion). In Yotter, the defendant was
apprehended for trespassing in a Dillons' store. After the police officer removed hand
restraints from Yotter, advised her she was not going to be arrested, and served her with a
notice to appear for the criminal charge, he escorted her out of the store. As the pair was
exiting, the officer asked Yotter if he could look in her purse and she consented, resulting
in the discovery of methamphetamine. Yotter appealed the denial of her motion to
suppress the contraband.

The State asserted that at the time of the request to search, Yotter and the officer
were engaged in a voluntary encounter—a legal justification that is not relevant to Fuero-
Mendoza's claim. Our court determined that "resolution of this case rests solely upon the
question of whether Yotter's detention transformed into a voluntary encounter." 2007 WL
519017, at *2. Finding that to characterize the encounter as voluntary "one must ignore
the totality of the circumstances and suspend all rational thought," our court affirmed the
suppression. 2007 WL 519017, at *3. We also noted that at the time of the officer's
request for consent to search the purse, "the officer's investigation had exceeded the
permissible scope of Yotter's detention and the resulting search was not the product of a
voluntary consent." 2007 WL 519017, at *3.

Yotter does not support Fuero-Mendoza's legal contention. In the present case,
there was no claimed voluntary encounter, the investigation was ongoing and not
completed, the appellant's behavior was suspicious, and Officer Bouthillier was
concerned about his safety. In Yotter, the defendant had been apprehended for
trespassing, served with a notice to appear, and was being escorted from the store to
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resume her everyday activities when the request for consent, unrelated to the trespassing
matter or any officer safety concerns, was made. Once again, Fuero-Mendoza has not
presented us with relevant, on-point precedent in support of his legal position.

It is well settled that a search for weapons during an investigative detention may
include the area within a suspect's immediate control as well as his or her person. State v.
Johnson, 293 Kan. 959, 966, 270 P.3d 1135 (2012) (citing Michigan v. Long, 463 U.S.
1032, 1049, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983). That is what occurred here.
Officer Bouthillier was only 8 minutes into investigating the recent report of a family
fight involving Fuero-Mendoza, which resulted in the caller barricading herself in her
home. The suspect possessed a pocket knife at the time of the incident. According to the
officer, Fuero-Mendoza "seemed a little nervous, . . . a little confused. He was very
agitated. . . . Consistently during our interview, he would look at this backpack, look at
me in just kind of a jittery manner." As a result, Officer Bouthillier testified he was
concerned about his safety because the backpack possibly contained "guns, knives,
anything illegal." In this factual context, the detention was brief, and the investigation by
the two officers was on-going. Officer Bouthillier was well within the scope of the
detention, while in the immediate presence of the suspect, to request and obtain Fuero-
Mendoza's knowing and voluntary consent to search the backpack.

We conclude that the district court's factual findings are supported by substantial
competent evidence. Moreover, the district court did not err in its legal conclusion that
the scope and duration of Fuero-Mendoza's detention was justified by the circumstances
which rendered the Terry stop proper and that the appellant knowingly and voluntarily
consented to the search of his backpack.

Affirmed.


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* * *
ATCHESON, J., concurring: Given how the issues on Defendant Guillermo Fuero-
Mendoza's motion to suppress were framed in the Lyon County District Court and the
evidence presented at the hearing, I am constrained to join in the result affirming the
denial of that motion. The district court record necessarily sets the metes and bounds of
our review. My concurrence, however, extends only to the result.