Officer immediately telling person to open their hand is not a voluntary encounter

Randall L. Hodgkinson won in State v. Andrade-Reyes, No. 115,044 (Kan. June 7, 2019), obtaining reversal and remand in a Johnson County drug possession prosecution.  One night, Johnson County bike officers say some people sitting in a car in an apartment complex parking lot and approached them. An officer thought she saw Mr. Andrade-Reyes reach toward the floorboard and that when confronted, thought Mr. Andrade-Reyes was sitting upright with hands tightly clenched. The officer directed Mr. Andrade-Reyes to open his hand and a bag dropped, which was later determined to contain cocaine. 

The district court held that the encounter was voluntary and therefore, denied Mr. Andrade-Reyes' motion to suppress. Alternatively, the district court held that the officer's actions were justified because of "odd" behavior and for "officer safety."

The KSC held that the encounter was not voluntary: 

Here, some factors suggest the officers seized Andrade-Reyes and others do not. As the Court of Appeals noted, the officers did not display a weapon, block the vehicle with the bicycles, activate the bicycles' emergency lights, or act in a threatening manner. These factors were weighty enough in the district court's and the Court of Appeals panel's assessment for both courts to conclude the encounter was voluntary. 

On the other hand, the officers approached the vehicle late at night in a dark area of the parking lot. The car was legally parked. There were no bystanders. Officer Larson did not introduce herself or state her reason for approaching the vehicle. Nor did she indicate Andrade-Reyes was free to leave or to refuse to answer questions. Instead, with the beam of her flashlight shining into the car, she immediately began asking Andrade-Reyes what was in his hands. Significantly, she did not take Andrade-Reyes' silence or lack of a physical response as an indication he did not wish to interact with the officers. Instead, according to the district court's findings, her voice became "nervous" and she persisted in asking him what was in his hands until he opened them. Although we do not have the body camera footage available to us, at the suppression hearing, the State seemingly quoted from it, stating that Officer Larson asked: "What's in your hand? What's in your hand? Open your hand." In other words, Officer Larson commanded or ordered Andrade-Reyes to open his hand. Further, although the officers did not activate their emergency lights or park their bicycles behind the vehicle, they stood near the doors of the car—one officer on each side. Andrade-Reyes, as a passenger, had no control over moving the car itself. These factors are much like—and even stronger indications of a seizure than—those in [State v. Williams, 297 Kan. 370, 300 P.3d 1072 (2013)] where we held a detention had occurred. 

The KSC held that the fact that the officers in this case did not activate their emergency lights was not weighty late at night upon immediate police questioning in an isolated location. In particular, the KSC held that Mr. Andrade-Reyes' reaction (or lack thereof) showed that the encounter was not voluntary:

Here, however, Andrade-Reyes did not respond. Officer Larson testified that when she asked Andrade-Reyes what was in his hands "[h]e just stayed there with his hands clenched just looking at me and wouldn't move." Rather than accepting that he had the right not to consent to a continuation of the encounter, she repeatedly asked her question and eventually issued a command. Even though Officer Larson spoke in a normal voice and was not loud, rude, or intimidating, her demeanor does not negate her persistence or her command to Andrade-Reyes to open his hands.

The KSC also held that the officer's lacked reasonable suspicion to detain Mr. Andrade-Reyes:

Similarly, Officer Larson and Officer Gross did not testify to knowing of any recent criminal activity and the vehicle was legally parked. The fact the encounter occurred late at night in a high-crime area is not indicative of criminal activity, nor is Andrade-Reyes appearing startled and reaching toward the floorboard. Under the totality of the circumstances, the officers did not have reasonable suspicion to detain Andrade-Reyes. He thus was subject to an unlawful seizure that tainted the subsequent discovery of the white substance. Accordingly, the evidence should have been suppressed unless another basis exists for allowing the questioning and the search.

Finally, the KSC rejected any possible claim of generalized officer safety as a basis for detention in this case (if it could be a justification in any case absent reasonable suspicion of a crime). As a result, the KSC reversed and remanded with directions to suppress the drug evidence.