State v. Herrera

NOT DESIGNATED FOR PUBLICATION
No. 122,766
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
GERAD CHANCE HERRERA,
Appellant.
MEMORANDUM OPINION
Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed October 8, 2021.
Affirmed in part, reversed in part, and sentence vacated in part.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Alexander C. Driskell, assistant county attorney, Jeffery Ebel, county attorney, and Derek
Schmidt, attorney general, for appellee.
Before WARNER, P.J., CLINE, J., and WALKER, S.J.
PER CURIAM: Gerad Herrera challenges his convictions for five crimes, primarily
arguing that incriminating evidence found during a pat-down search should have been
suppressed before trial. We find the district court did not err when it denied Herrera's
motion to suppress. We thus affirm three of his convictions—possession of
methamphetamine with no tax stamp, possession of drug paraphernalia, and interference
with law enforcement—but reverse his remaining convictions and vacate those sentences
based on Kansas Supreme Court caselaw and the agreement of the parties.
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FACTUAL AND PROCEDURAL BACKGROUND
In January 2019, Officer Michael Baker, a canine handler with the Salina Police
Department, was on patrol in Salina when he passed a car being driven with an expired
registration tag. Officer Baker confirmed the registration had expired and turned his
patrol car around to stop the car. Before he caught up to it, the car parked on the side of
the street. The car's driver and its passenger—later identified as Herrera—got out and
began walking away. Officer Baker stopped and began collecting information from the
driver. He then asked another officer to write a ticket so his dog could conduct a drug
sniff around the car.
During the drug sniff, Officer Baker's dog alerted on the car's front passenger
door. Officer Baker subsequently searched the car and, with her consent, the driver's
purse, but he found nothing. He then began questioning Herrera.
Officer Baker asked if Herrera had anything illegal on him. Herrera indicated he
had a knife on his belt, and Officer Baker escorted him to his patrol car to pat him down
for weapons. Officer Baker removed two action figures sticking out of Herrera's jacket
pockets, patted Herrera down, and asked him to empty his pockets. Herrera picked up the
action figures and began placing his hand in his right pocket, which had a pocketknife
clipped to the inside of it. After telling Herrera to stop, Officer Baker removed three
knives—a fixed-blade knife sheathed on Herrera's belt, the pocketknife clipped inside his
right pocket, and a third small pocketknife in his pocket—and continued the pat-down.
As he continued to search Herrera for weapons, Officer Baker felt the bulge of a
plastic baggie in the coin pocket of Herrera's pants. Herrera told the officer the bulge was
marijuana; he and Officer Baker both tried to reach for his pocket, resulting in a struggle.
With the other officer's help, Officer Baker handcuffed Herrera and removed two baggies
containing methamphetamine from Herrera's coin pocket. As a result of this encounter,
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the State charged Herrera with possession of methamphetamine, possession of
methamphetamine without a drug tax stamp (as neither baggie of methamphetamine had
a drug tax stamp affixed), criminal possession of a weapon by a convicted felon,
possession of drug paraphernalia, and interference with law enforcement.
Herrera filed a motion to suppress the evidence obtained through the search,
arguing Officer Baker lacked probable cause to search him because the dog alerted on the
car, not on him personally. The district court held an evidentiary hearing on the motion.
At the hearing, Officer Baker testified about his actions throughout the stop, including his
decision to search Herrera for weapons and his subsequent discovery of the bulge in
Herrera's coin pocket. The officer explained that he felt a plastic bag in Herrera's coin
pocket and believed it "[p]ossibly [contained] illegal drugs," noting that it is common to
find plastic baggies containing drugs in coin pockets. The district court denied the
motion, finding that Officer Baker had discovered the drugs during his pat-down of
Herrera, which was justified to protect the safety of the officers.
The case against Herrera proceeded to trial. After hearing testimony, watching
video footage of the interaction from Officer Baker's bodycam, and observing the knives,
a jury convicted Herrera of all five charges. The district court imposed a controlling 54-
month prison sentence, ordering the sentences for the weapon- and two
methamphetamine-possession convictions to be served consecutively, and 12 months'
postrelease supervision.
DISCUSSION
Herrera appeals, raising several legal and evidentiary challenges to his
convictions. In its briefing, the State has conceded error in two respects—acknowledging
that Herrera's methamphetamine and drug tax stamp convictions are multiplicitous, and
that the Kansas Supreme Court has found the statutory clause giving rise to Herrera's
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criminal possession of a weapon conviction is unconstitutionally vague. See State v.
Hensley, 298 Kan. 422, 438, 313 P.3d 814 (2013) (multiplicity); State v. Harris, 311 Kan.
816, 824-26, 467 P.3d 504 (2020) (vagueness). Thus, the parties agree that Herrera's
convictions for possession of methamphetamine and criminal possession of a weapon
must be reversed, and those sentences must be vacated.
We are thus left to consider Herrera's challenges to his remaining three
convictions: possession of methamphetamine without a drug tax stamp, possession of
drug paraphernalia, and interference with law enforcement. In challenging these
convictions, Herrera primarily argues that the district court erred when it denied his
motion to suppress the evidence—that is, the baggies of methamphetamine—obtained
during Officer Baker's pat-down search. He also argues that the court erred by not
providing the jury with a limiting instruction regarding his previous felony conviction
(which was introduced to prove an element of the criminal possession of a weapon
charge). And he challenges the sufficiency of the evidence to support his convictions for
possession of methamphetamine without a tax stamp and interference with law
enforcement.
For the reasons explained below, we conclude the district court did not err when it
denied Herrera's motion to suppress, as Officer Baker's pat-down search was reasonable
and constitutionally permissible. We also find there is sufficient evidence in the record to
support Herrera's convictions. And though the district court should have provided a
limiting instruction regarding the use of Herrera's previous conviction, the absence of that
instruction was not clear error that requires reversal. We thus affirm Herrera's three
remaining convictions.
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1. The district court did not err when it denied Herrera's motion to suppress.
Herrera first argues the district court erred when it denied his motion to suppress.
Herrera challenges this ruling in two respects: He asserts that Officer Baker lacked
probable cause to search him generally, and that Officer Baker exceeded the permissible
scope of the pat-down search for weapons by reaching into his pockets. We do not find
these arguments persuasive.
We review the factual underpinnings of a district court's decision on a motion to
suppress evidence for substantial competent evidence and its ultimate legal conclusion de
novo. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014). When the material facts are
not in dispute—as here—whether evidence should be suppressed is a question of law
over which our review is unlimited. State v. Stevenson, 299 Kan. 53, 57-58, 321 P.3d 754(2014). Although a defendant initiates a constitutional challenge to a search or seizure by
filing a motion to suppress the evidence in question, the State has the burden to prove any
challenged police conduct was permissible. State v. Cleverly, 305 Kan. 598, 605, 385
P.3d 512 (2016).
The Fourth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment's Due Process Clause, protects "[t]he right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures." Section 15 of the Kansas Constitution Bill of Rights provides "the
same protection from unlawful government searches and seizures as the Fourth
Amendment." State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010).
Both provisions broadly prohibit unreasonable searches and seizures. See State v.
Christian, 310 Kan. 229, 233-34, 445 P.3d 183 (2019). But they also "inferentially
allow[] 'reasonable' ones." 310 Kan. at 234. Reasonable searches are executed under a
valid warrant or justified by one of the recognized exceptions to the warrant requirement.
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310 Kan. at 234. Two of these exceptions are relevant in this case: the stop-and-frisk
exception and the plain-feel exception.
Under the stop-and-frisk exception, an officer conducting an investigative stop
may pat down a person for weapons if the officer reasonably suspects doing so is
necessary for the officer's safety. See K.S.A. 22-2402(1)-(2); State v. Bannon, 306 Kan.
886, 892, 398 P.3d 846 (2017). The need to conduct a limited search for weapons must be
supported by more than a mere hunch; it requires a particularized and objective basis for
the suspicion. See State v. Pollman, 286 Kan. 881, Syl. ¶ 4, 190 P.3d 234 (2008)
(defining reasonable suspicion). And the officer's actions must conform to the limited
purpose of the frisk. Accord State v. Spagnola, 295 Kan. 1098, 1106-07, 289 P.3d 68(2012) (searching pockets exceeded scope of frisk because it was not directed toward
confirming or dispelling officer-safety concerns).
The plain-feel exception applies when, during an otherwise lawful encounter, an
officer inadvertently discovers evidence whose incriminating character is immediately
apparent. State v. Lee, 283 Kan. 771, Syl. ¶ 6, 156 P.3d 1284 (2007). "'Immediately
apparent'" requires probable cause to believe the discovered object is evidence of a crime.
283 Kan. at 779. Probable cause entails a reasonable belief, based on the officer's
knowledge and the surrounding facts and circumstances, that the person being searched
committed a specific crime. Smith v. Kansas Dept. of Revenue, 291 Kan. 510, Syl. ¶ 1,
242 P.3d 1179 (2010).
Neither party disputes that Officer Baker could lawfully conduct an investigatory
stop. And given Herrera's admission that he had multiple knives, including a knife
clipped to his pocket that the officer could observe, the parties agree Officer Baker had
reasonable suspicion to pat down Herrera for weapons. But Herrera argues the officer
lacked probable cause to continue searching him after finding the three knives. And he
asserts that Officer Baker exceeded the bounds of the frisk when he asked Herrera if he
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possessed anything illegal and by reaching into his pockets. The State asserts the plain-
feel exception permitted Baker to seize the drugs.
To Herrera's first point, we disagree that Officer Baker's safety concerns dissipated
when the officer found the three knives Herrera admitted to possessing. The Constitution
did not require Officer Baker to accept Herrera's statements; rather, he was allowed to
continue his pat-down search until his concerns were reasonably allayed.
Nor do we find the fact that Officer Baker removed two action figures that were
sticking out of Herrera's jacket pockets invalidates the search. It is true that pat-down
searches must generally be limited to outer clothing. See Spagnola, 295 Kan. at 1106-07.
But Officer Baker's limited removal of those items, which was followed by Herrera's
removal of the other contents of his jacket pockets, did not convert the weapons frisk into
a search—particularly as one of the knives was clipped to the right pocket. This action
was a reasonable effort to determine what other weapons, if any, Herrera had that might
jeopardize the officers or others at the scene.
Herrera argues that Officer Baker transformed the pat-down into a general search
for evidence when the officer asked Herrera if he possessed anything illegal, citing State
v. Burton, 37 Kan. App. 2d 916, 159 P.3d 209 (2007). In Burton, a police officer
conducting an unjustified frisk asked the defendant if he possessed anything illegal,
resulting in the discovery of marijuana. The court held the drugs were inadmissible
because the officer's question turned the weapon frisk into a general search for evidence.
And a causal connection existed between the unlawful search and discovery of the
marijuana, requiring its suppression. 37 Kan. App. 2d at 923.
The facts here are markedly different from Burton. Officer Baker asked Herrera if
he possessed anything illegal while he was searching him for—and found several—
weapons. In other words, Officer Baker asked his question not as part of a fishing
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expedition unmoored to any constitutional justification, but with reasonable suspicion
that justified the pat-down.
After reviewing the totality of the circumstances before us, we agree with the State
that this case fits squarely within the plain-feel exception to the warrant requirement.
Officer Baker was conducting a legal frisk for weapons when he felt a bulge in the coin
pocket of Herrera's pants. The officer indicated that, in his experience, people often carry
illegal drugs in baggies in their coin pockets, and the bulge felt like it matched this
description. More importantly, Herrera informed the officer that the bulge was an illegal
substance—marijuana. Though the baggies actually contained methamphetamine,
Herrera's statement provided the necessary probable cause to search Herrera's coin pocket
and remove the baggies.
The district court did not err by denying Herrera's motion to suppress.
2. The evidence in the record is sufficient to support Herrera's convictions of
possession of methamphetamine without a drug tax stamp and interference with
law enforcement.
Herrera also argues the evidence at trial was insufficient to support his convictions
for possession of methamphetamine without a drug tax stamp and interference with law
enforcement. He asserts that the record does not show that he knowingly possessed
methamphetamine—the mental culpability required for the crime—because he told
Officer Baker he had marijuana, not methamphetamine, in his pocket. And he asserts the
State failed to show that he substantially interfered with the officers' duties. We find
neither argument persuasive.
When a defendant challenges the sufficiency of the evidence, an appellate court
reviews the evidence "in a light most favorable to the State to determine whether a
rational factfinder could have found the defendant guilty beyond a reasonable doubt."
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State v. Rosa, 304 Kan. 429, Syl. ¶ 1, 371 P.3d 915 (2016). The court does not reweigh
the evidence, resolve evidentiary conflicts, or reassess witness credibility. State v. Keel,
302 Kan. 560, 566, 357 P.3d 251 (2015). Instead, we examine all the evidence presented
at trial—both direct and circumstantial—and any reasonable inferences that evidence
yields to determine if there is evidence in the record supporting each element of the
crimes charged. See State v. Dobbs, 297 Kan. 1225, 1238, 308 P.3d 1258 (2013).
Herrera first argues the evidence was insufficient to convict him of possession of
methamphetamine without a drug tax stamp, as he did not knowingly possess that
substance. It is true that Herrera informed Officer Baker that the substance in his coin
pocket was marijuana, not methamphetamine. But that does not mean the jury had to
believe this statement. To the contrary, there was ample evidence in the record to show
Herrera knowingly possessed the methamphetamine. Most notably, Officer Baker found
the methamphetamine in Herrera's pocket, and the jury could infer that Herrera knew
what he was carrying. In short, evidence in the record supports the elements of the
offense. See K.S.A. 2020 Supp. 21-5706(a); K.S.A. 79-5208.
The evidence was similarly sufficient to support Herrera's conviction of
interference with law enforcement. Herrera argues there was no evidence that he
substantially hindered Officer Baker in the execution of his duties. See State v. Brown,
305 Kan. 674, 690, 387 P.3d 835 (2017) (crime of interference with law enforcement
requires a showing that the defendant "'substantially hindered or increased the burden of
the officer in carrying out his official duty'"). Herrera asserts that when he reached into
his pocket to retrieve the baggies, he was trying to help—not hinder—Officer Baker.
While Herrera points to one inference the jury could have drawn from these facts,
it is by no means the only reasonable inference available. The jury could have also
concluded that Herrera's actions—attempting to reach into his pocket against Officer
Baker's instructions, resulting in a struggle with Officer Baker that required another
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officer's assistance and eventually led to Herrera being handcuffed—substantially
interfered with the officers' ability to conduct the investigation.
The evidence in the record was sufficient to support Herrera's convictions of
possession of methamphetamine without a drug tax stamp and interference with law
enforcement.
3. Though a limiting instruction was warranted in this case, the absence of that
instruction was not clear error.
At trial, Herrera stipulated that he had a 2016 felony conviction—an element of
the offense of criminal possession of a weapon (which we reverse based on the State's
concession and the Kansas Supreme Court's intervening decision in Harris). But Herrera
did not request, and the district court did not provide, a limiting instruction as to what the
jury could, and could not, draw from that evidence. In his final argument on appeal,
Herrera asserts the failure to provide a limiting instruction was a clear error that requires
a new trial. Although we agree the instruction likely should have been provided, we do
not find that this error requires reversal.
Appellate courts employ a multistep analysis when reviewing the omission of a
jury instruction. This review includes two main components: error and reversibility. See
State v. Kleypas, 305 Kan. 224, 301-02, 382 P.3d 373 (2016); State v. Williams, 295 Kan.
506, Syl. ¶ 1, 286 P.3d 195 (2012). A district court errs when it fails to provide an
instruction that is both legally and factually appropriate. When a district court has
committed an instructional error, appellate courts must determine whether that error
requires reversal. 295 Kan. 506, Syl. ¶ 4. And our standard for reversibility varies
depending on whether the challenging party requested the instruction at trial. See
Kleypas, 305 Kan. at 302. When, as here, no request was made, the failure to provide the
instruction is reversible only when it was clearly erroneous—that is, when the appellate
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court is firmly convinced the jury would have reached a different conclusion if the
instruction had been given. Williams, 295 Kan. 506, Syl. ¶ 5.
Herrera argues that a limiting instruction would have been legally and factually
appropriate to constrain the jury's consideration of his previous conviction. And the State
concedes that this is likely true, as the Kansas Supreme Court has often assumed, without
deciding, that courts should provide a limiting instruction whenever evidence of a prior
crime is admitted, even when that prior crime is an element of the current offense.
See State v. Chavez, 310 Kan. 421, 436, 447 P.3d 364 (2019); State v. Sims, 308 Kan.
1488, 1505, 431 P.3d 288 (2018), cert. denied 140 S. Ct. 126 (2019). We are thus left to
consider whether the omission of the instruction was clearly erroneous.
We conclude it was not. The evidence against Herrera in this case was strong. He
was found with baggies of methamphetamine in the coin pocket of his pants. He
informed the officers that he had drugs in his pocket (though he claimed it was marijuana,
not methamphetamine) and struggled with the officers to prevent them from retrieving
that evidence. This encounter was caught on video by way of an officer's bodycam, with
the video shown to the jury. And though the district court did not provide a limiting
instruction regarding Herrera's previous conviction, both attorneys in closing argument
limited their brief discussions of that fact to the weapon charge. In short, after reviewing
the record, we are firmly convinced the jury would not have reached a different verdict if
the court had provided a limiting instruction.
We reverse Herrera's convictions for criminal possession of a weapon and
possession of methamphetamine, and we vacate the sentences for those offenses. We
affirm Herrera's convictions of possession of methamphetamine without a drug tax
stamp, possession of drug paraphernalia, and interference with law enforcement.
Affirmed in part, reversed in part, and sentence vacated in part.
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