Profanity-laced threat from officer renders confession involuntary

Thomas J. Bath won in State v. Guein, No. 115,426 (Kan. June 28, 2019), obtaining a suppression order in a Johnson County distribution prosecution. The charges stemmed from interactions between Lenexa police officers and Mr. Guein in what they believed was a high-drug-crime area. The district court had suppressed several statements made after Mr. Guien was handcuffed but before he was given Miranda warnings. But the district court admitted several statements made before officers handcuffed Mr. Guein and statements made after the Miranda warnings. A majority of the COA held that the district court erred by denying Mr. Guein's motion to suppress the post-Miranda statements, but upheld the admission of the statements made before being handcuffed. The KSC granted both the state's petition for review and Mr. Guein's cross-petition for review.

With regard to the statements made before being handcuffed, the KSC went through a detailed analysis of the factors used to determine whether a reasonable person would feel free to terminate the interrogation and disengage from the encounter. 

We acknowledge Guein's subjective beliefs are not part of the legal analysis to determine if the interrogation is custodial or investigative. But we observe, among other things, he testified he changed from denying—to admitting—to Weber that he had marijuana because his "pockets were empty and [he] was still in a state where [he] wasn't free to go." He further testified he believed Weber was going to search him anyway, and he did not feel he had the option of not answering his questions. He also testified that during the encounter he feared for his physical safety. 

More to the dispositive analytic point, however, after our de novo review we conclude a reasonable person in Guein's position would have held the same beliefs—that he or she was not free to terminate the interrogation and disengage from the encounter. In short, we conclude nearly every factor listed in [State v. Lewis, 299 Kan. 828, 326 P.3d 387 (2014)] leads to the conclusion that the interrogation was custodial. We specifically disagree with any panel suggestion that Guein was not "'subjected to restraints comparable to those associated with a formal arrest.'" So Weber should have given Guein Miranda warnings before questioning him.

Therefore the KSC held that the statements made before being handcuffed should have been suppressed. The KSC also held that the state had failed to show that Mr. Guein voluntarily spoke to officers after the provision of Miranda warnings, particularly in light of profane language used by the officer:

We conclude, like the majority, that taken in context, it would not be unreasonable for a person to have determined Weber made an implied threat that was connected to answering the questions in the way he wanted.

En route to this conclusion, for several reasons we specifically reject the State's related argument that Guein, as a college-educated man who brought a gun with him to a meeting where he intended to sell marijuana, would not have been affected by the use of Weber's language. First, profanity is often used for emphasis and reinforcement. So we agree with the panel majority that its use here "amplified the serious nature of the statements being made, as the use of any particularly strong language, forcefully said, might do." 

Second, we note how context changes the use of language and its connotations. For example, we contrast the title of the popular movie "Whiskey Tango Foxtrot" (and what the military's phonetic "Foxtrot" stood for there, i.e., "What the fuck?"), with an armed police officer's instruction to an arrestee: "Don't fuck around with me and I ain't gonna fuck around with you, okay? You hear me?" and, "Don't fuck with me, okay? You hear me?" And consider the language is directed to an arrestee cuffed from behind and being walked across the parking lot of a closed business to the officer's patrol car at 1:30 a.m.—when eyewitnesses are unlikely. 

. . . .

Here, we have an armed officer during a walk and talk who twice essentially tells an arrestee (handcuffed behind his back) "[d]on't fuck with me"—when I "ask you some questions here in a little bit" because "I know what you're doing out here [a drug deal]" and "I'm telling you right now, I know what's going on, all right?" The arrestee is then immediately placed alone in a patrol car to think about what this meant—for a yet-to-be determined amount of time. His contemplation is followed 10 minutes later by a rapid, dismissive reading of the Miranda warning—including Guein's right to remain silent— that the officer says "I've gotta" give. This sequence indicates that arrestee Guein had better not be silent because that would show he was "fuck[ing] around" and not "be[ing] honest" with Weber who twice told Guein he knew why Guein was there. Right after being Mirandized, Guein agreed to talk. So we agree with the panel majority that Weber's language implied physical violence toward Guein, prompting his later incriminating statement. 

So Mr. Guein's post-Miranda statements are also suppressed.