text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Keith HAACK, Defendant-Appellee.
    Supreme Court Case No. 19SA13
    Supreme Court of Colorado.
    June 17, 2019
    Attorneys for Plaintiff-Appellant: Brett D. Barkey, District Attorney, Fourteenth Judicial District, Matthew J.W. Tjosvold, Chief Deputy District Attorney, Craig, Colorado
    Attorneys for Defendant-Appellee: Salky Law, LLC, Randall P. Salky, Steamboat Springs, Colorado
    En Banc
   CHIEF JUSTICE COATS delivered the Opinion of the Court.

¶1 The People brought an interlocutory appeal, as authorized by section 16-12-102(2), C.R.S. (2018), and C.A.R. 4.1, from an order of the district court partially granting Haack's motion and suppressing evidence acquired after officers made a warrantless entry into his residence. The district court found that the officers, who were investigating the defendant for driving under the influence, had unlawfully followed the defendant into his home and, as a result, all relevant evidence they acquired either inside the home or after the defendant and officers went back outside should be suppressed. The court expressly found that the defendant was not in custody for purposes of Miranda warnings until he was ultimately arrested outside the home and that the results of the defendant's field sobriety tests, including a horizontal gaze nystagmus test, and subsequent blood test, both of which were conducted after leaving the residence, would have been admissible but for the earlier constitutional violation. The court did not, however, offer any rationale for suppression of these test results beyond the fact that they followed in time the unlawful entry.

¶2 Because the district court failed to address the question whether the evidence it suppressed was independent of the earlier unlawful entry, the portion of its order suppressing this evidence was not adequately supported by its findings and is therefore vacated. The case is remanded with directions to determine whether the evidence acquired after leaving the defendant's home was in fact derivative of the unlawful entry at all and if so whether the subsequent searches in which that evidence was discovered were genuinely independent sources of that evidence.

I.

¶3 Keith Haack was charged with two felonies: Driving Under the Influence (DUI)-Fourth or Subsequent Offense and DUI Per Se-Fourth or Subsequent Offense. He moved to suppress all evidence obtained after police first made contact with him, arguing that the police had failed to give the required Miranda advisement and had illegally searched his home. After hearing the motion, the district court made written findings of fact and conclusions of law, partially granting and partially denying the motion.

¶4 As relevant to the suppression order challenged here by the People, the district court's findings and other undisputed testimony at the hearing indicated the following. In the early morning hours of April 12, 2018, the police received a report to the effect that the defendant had just driven away from the Memorial Hospital at Craig after having been told by medical personnel that he was unsafe to drive. The reporting party gave the defendant's name and a description and license plate number of the truck he was driving. Within minutes an officer arrived at the defendant's home and saw the defendant step down from the driver's seat of the truck described in the report, which still had its lights on.

¶5 When questioned by the officer, the defendant responded that friends had driven him home from the hospital and that he was only in the truck to look for cigarettes. A second officer who had arrived spoke on the phone directly with the doctor making the report, who indicated that the defendant had come to the hospital intoxicated and, despite being told that his blood alcohol content made it unsafe for him to drive before about noon, was seen by the doctor and a nurse driving away in his truck. In conversation with the police on his patio, the defendant confirmed that he had sought treatment for alcohol withdrawal after having consumed alcohol for two days straight. Although he claimed that he had stopped drinking around 8 or 9 o'clock the previous evening, he admitted several times that he was not safe to drive.

¶6 Over the course of his interaction with the police, in which he declined to perform field sobriety tests or give the names or phone numbers of the friends who drove him home, the defendant went in and out of his home several times, closing and reopening the door. Ultimately, the police followed the defendant into his home, preventing him from closing the door. After the officers repeatedly asked him to step back outside, the defendant complied, but not before an officer was able to detect an odor of alcohol on him.

¶7 Once outside the officers continued to request that the defendant submit to field sobriety tests, including a horizontal gaze nystagmus test. When he ultimately complied and was adjudged not to have completed the tests as a sober person would, the defendant was arrested. After being read an express consent form, the defendant chose to take a blood test and was taken to the hospital where the test was administered.

¶8 The district court concluded that in making a warrantless entry into the defendant's home, the police violated his constitutional rights. It nevertheless also found that the defendant was never in custody for purposes of the Miranda requirements until he was formally placed under arrest, and that the field sobriety test results, including the results of the horizontal gaze nystagmus test, would have been admissible, subject to the constitutional violations it had already noted. It therefore granted the motion to suppress in part and denied it in part, stating that all observations by the officers and all statements made by the defendant before the officers crossed the threshold of the defendant's residence would be admissible in evidence, but that all observations by the officers, all statements made by the defendant, and all other evidence obtained after the officers crossed the threshold of the defendant's residence would be suppressed.

¶9 The People filed an interlocutory appeal, as authorized by section 16-12-102(2), C.R.S. (2018), and C.A.R. 4.1, asserting in this court that the district court erred in suppressing the results of the blood and field sobriety tests, as well as statements made by the defendant after leaving the house, for the reason that this evidence was acquired from an independent source.

II.

¶10 The exclusionary rule generally prohibits not only the introduction into evidence of tangible materials seized, and testimony concerning knowledge acquired, during an unlawful search but also evidence that is either the product of the primary evidence or is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes so attenuated as to dissipate the taint. Murray v. United States , 487 U.S. 533, 536-37, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). The Supreme Court has also made clear, however, that the purpose of the exclusionary rule-to put the police in the same, rather than a worse, position than they would have been in if no police error or misconduct had occurred-would not be served by excluding evidence that has an independent source. Murray , 487 U.S. at 537, 108 S.Ct. 2529.

¶11 As the Court further noted, it has used the concept of "independent source" at times in a more general sense and at times in a more specific sense. Id. With regard to the former, the Supreme Court has applied the term to any evidence acquired in a fashion untainted by prior illegal evidence-gathering activity. Id . at 537-38, 108 S.Ct. 2529 (citing as an example Segura v. United States , 468 U.S. 796, 804-05, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) ). With regard to the latter, it has applied the term more specifically to evidence, whether tangible or intangible, that was actually acquired during or as the result of an unlawful search but was rediscovered during a lawful search that was genuinely independent of the earlier tainted search. Id . at 538, 108 S.Ct. 2529 (citing as an example Silverthorne Lumber Co. v. United States , 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920) ).

¶12 In the context of a second search of premises pursuant to a search warrant, following an unlawful earlier search of the same premises, the Supreme Court has, however, drawn a distinction between the source of the probable cause supporting the warrant and the question whether the warrant and second search would have been pursued at all but for what the police observed during the first, unlawful search. Id. at 541-42, 108 S.Ct. 2529. Making clear that findings of both were required for the second search and seizure to be considered genuinely independent of the earlier tainted one, the Supreme Court in Murray remanded for a determination whether, despite the second search being supported by probable cause from an independent source, the police were prompted to conduct that search only by what they had already seen. Id. at 542-43, 108 S.Ct. 2529. In People v. Schoondermark , 759 P.2d 715 (Colo. 1988), we followed suit and similarly remanded for a specific finding concerning the motivation of the police officers in that case to seek a warrant to search premises, following an earlier unlawful entry of the same premises, despite clear findings that the affidavit for the warrant was supported only by probable cause apart from and independent of any observations made during the initial, unlawful entry. Id. at 716-17, 719.

¶13 While the second search with which the Supreme Court was concerned in Murray was authorized by warrant, the Court's reasoning applies equally to searches executed pursuant to an exception to the warrant requirement. The Court's holding-that genuine independence of source requires not only that probable cause for the subsequent search or seizure be independent of any observations made during, or as the product of, an unlawful search, but also that the second search may not have been prompted by such observations-is in no way limited to a subsequent application for a search warrant. See Murray , 487 U.S. at 542, 108 S.Ct. 2529 (stating-without limitation as to the type of potentially independent source-that as long as the later search or seizure was genuinely independent of the earlier tainted one, the independent source doctrine would apply). Whether authorized by warrant or not, a subsequent search can serve as an independent source only if both conditions have been demonstrated.

III.

¶14 On appeal from the district court's suppression order, the People do not challenge that court's finding of an unlawful entry by the police, but rather renew their assertion that the defendant's field sobriety and blood test results acquired after leaving his residence were independent of the earlier unlawful search; and more particularly, that the police had already acquired probable cause, and intended, to arrest the defendant for driving under the influence before ever following him into his home.

¶15 The district court expressly found that all observations by the officers and statements by the defendant made before the police entered his home would be admissible. It also found that the results of the field sobriety tests performed by the defendant after leaving his residence would have been admissible, apparently as based on the defendant's voluntary consent, but for the constitutional violation of unlawfully entering the residence. The court did not, however, offer any reason for believing that the evidence it ordered suppressed was derivative of, or in any way the direct or indirect result of, observations made during an earlier unlawful search, much less any reason for not treating these "searches" and the defendant's arrest as having also been based, in any event, on probable cause from independent sources. Whether the district court envisioned some more specific taint it simply failed to express, or it erroneously believed a preceding unlawful search was enough, its findings were clearly insufficient to sustain its order.

¶16 It is clear from the court's factual findings and the undisputed evidence from the suppression hearing that the officers had probable cause to arrest the defendant, and therefore to require that he perform field sobriety tests, see People v. Carlson , 677 P.2d 310, 317-18 (Colo. 1984), abrogated on other grounds by People v. Chavez-Barragan , 2016 CO 66, 379 P.3d 330, well before they followed him into his house. Quite apart from the report of hospital staff concerning his state of intoxication, the defendant admitted to the police while still outside on his patio that he was in no condition to drive. He simply contested the fact that he had driven himself home from the hospital. Not only did the police have the report of a doctor and nurse that they had seen the defendant drive away in his truck, but one of the officers actually witnessed the defendant, only minutes later, exiting the driver's side of the truck, with its lights still on. If there could be any doubt in this case, the question of probable cause is a mixed question of fact and law, ultimately for a reviewing court to decide. People v. Coates , 266 P.3d 397, 400 (Colo. 2011).

¶17 Nevertheless, because the district court found as a matter of fact that the officers were first able to detect the odor of alcohol on the defendant while they were unlawfully in the defendant's house, and because they had not placed him in custody before entering the house, there remains at least some question whether the police had not yet determined to arrest him and were instead prompted to do so by their observations during the unlawful search. The question whether the police would have pursued a second search and arrested the defendant but for what they observed during the earlier unlawful search is a question of fact. Murray , 487 U.S. at 543, 108 S.Ct. 2529 ; People v. Morley , 4 P.3d 1078, 1081 (Colo. 2000). Except in the rare case in which the timing of the second search is such as to preclude a finding that it was prompted by an earlier unlawful search, see, e.g. , Morley , 4 P.3d at 1081 (holding that remand was unnecessary when warrant procurement procedures were initiated well before illegal entry, which occurred only five minutes before warranted search, and there was no evidence subverting a conclusion of independence), this question of fact must be resolved by the trial court, Murray , 487 U.S. at 543, 108 S.Ct. 2529 ; Schoondermark , 759 P.2d at 719.

¶18 Rather than simply reversing the district court's order of suppression and finding the evidence in question to be admissible, we therefore vacate the district court's existing order and remand for further findings and conclusions regarding the question whether any evidence acquired after leaving the defendant's home was in fact derivative of the unlawful entry and if so whether the defendant's subsequent test results and arrest were genuinely independent of the initial unlawful search. On remand, the district court, at its discretion, may allow the parties to present additional evidence, and the People bear the burden of establishing such genuine independence by a preponderance of the evidence. See Schoondermark , 759 P.2d at 719.

IV.

¶19 Because the district court failed to address the question whether the evidence it suppressed was independent of the earlier unlawful entry, the portion of its order suppressing this evidence was not adequately supported by its findings and is therefore vacated. The case is remanded with directions to determine whether the evidence acquired after leaving the defendant's home was in fact derivative of the unlawful entry at all and if so whether the subsequent searches in which that evidence was discovered were genuinely independent sources of that evidence.

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: Per Curiam: Luckert, J., dissenting:

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Fran Amilcar ANDRADE-REYES, Appellant.
    No. 115,044
    Supreme Court of Kansas.
    Opinion filed June 7, 2019
    Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
    Shawn E. Minihan, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
   Per Curiam:

Two police officers approached Fran Amilcar Andrade-Reyes, who was seated in a car lawfully parked in an apartment complex parking lot. The first officer stood near the driver's door and the second near the front passenger's door. The first officer immediately asked Andrade-Reyes what he had in his hands, which were clenched and held in front of him. When Andrade-Reyes failed to respond, the officer repeated the question several times and eventually commanded Andrade-Reyes to open his hand. Andrade-Reyes did so and dropped a small bag containing cocaine. He was charged with possession of cocaine and possession of drug paraphernalia.

Before trial, Andrade-Reyes filed a motion to suppress evidence, arguing the officers obtained the evidence as the result of an unlawful seizure. The district court denied the motion, finding the encounter was voluntary. Andrade-Reyes appealed, and the Court of Appeals affirmed. State v. Andrade-Reyes , No. 115044, 2017 WL 1425858 (Kan. App. 2017) (unpublished opinion). On review of that decision, we hold that the officers unlawfully detained Andrade-Reyes and conducted an illegal search. Accordingly, we suppress the evidence and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Officers Megan Larson and Michael Jason Gross, while on bicycle patrol just after midnight, noticed a car in a dark area of an apartment complex parking lot. The officers observed two people seated in the driver's and front passenger's seats. They parked their bicycles several parking stalls away from the car but did not activate the bicycles' headlamps or emergency lights. Officer Larson approached the vehicle on foot and stood by the driver's door. Officer Gross followed and stood near the front passenger door.

The officers directed the beams of their flashlights into the vehicle as they approached. According to Officer Larson, the passenger, Andrade-Reyes, appeared startled. He reached down toward the floorboard as the officers approached. Officer Larson testified that she could not tell what Andrade-Reyes was doing. When she got closer to the vehicle, she noticed Andrade-Reyes sitting upright with his hands tightly clenched and held out in front of him. She thought this was highly unusual and immediately began asking Andrade-Reyes what was in his hands. Andrade-Reyes did not answer or open his hands when first asked or upon repeated inquiry. Andrade-Reyes eventually moved his right hand past his right knee, dropping something and bringing his hand back up to show Officer Larson it was empty. Officer Larson then asked Andrade-Reyes what was in his left hand. Officer Larson apparently said, "What's in your hand? What's in your hand? Open your hand." (At least that is how the State quoted the body camera audio, which is not in the record on appeal.) Andrade-Reyes eventually opened his left hand, dropping a bag containing a white residue, later determined to be cocaine.

The State charged Andrade-Reyes with possession of cocaine and possession of drug paraphernalia. He filed a motion to suppress evidence, arguing the officers unlawfully seized him. The district court denied his motion, finding the encounter was voluntary. Alternatively, the district court found the officers were justified in detaining Andrade-Reyes "[b]ecause of his evasiveness, they were very nervous about what was going on here and his reaction [to] things made them nervous." The district court found Andrade-Reyes' behavior "odd." The district court also cited Officer Larson's testimony, which the district court summarized as describing Andrade-Reyes as looking "like a deer in the headlights. He was breathing very, very heavy, and she even described how his carotid artery was going." The district court went on to find that Officer Larson's voice on the body camera's audio sounded "nervous." The court further found that Officer Larson did not know if there "was ammunition or a razor blade, a weapon," which caused the officers to be "very concerned." Accordingly, the district court concluded that even if the situation was considered a seizure "it was reasonable for the officers to justify what happened here" because of officer safety concerns. The district court then concluded the seizure "fit in the stop and frisk exception."

The case proceeded to a bench trial on stipulated facts, and Andrade-Reyes preserved his objection to his seizure and the subsequent search. The district court convicted him of possession of cocaine and possession of drug paraphernalia and sentenced him to 10 months' imprisonment, suspended to 12 months' supervised probation.

Andrade-Reyes timely appealed his convictions and sentence. The Court of Appeals affirmed the district court, holding the encounter was consensual, or, alternatively, any seizure was justified by the officers' safety concerns. See Andrade-Reyes , 2017 WL 1425858, at *4.

Andrade-Reyes timely filed a petition for review, which this court granted. This court's jurisdiction is proper under K.S.A. 20-3018(b) (petition for review of Court of Appeals decision).

ANDRADE-REYES WAS UNLAWFULLY SEIZED

Andrade-Reyes argues his encounter with the officers became an investigatory detention-a seizure under the Fourth Amendment to the United States Constitution-when Officer Larson repeatedly asked him what was in his hand and eventually told him to open his hand. The State asserts, however, the encounter was voluntary and not a seizure. Both the district court and the Court of Appeals agreed with the State and held Andrade-Reyes' motion to suppress lacked merit.

The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. Two aspects of this provision must be considered here: (1) Was Andrade-Reyes seized? (2) If so, was the seizure and resulting search reasonable?

As to the first consideration, courts generally classify contacts between police and individuals into four categories. Some categories describe a seizure and others do not. The four categories are: consensual encounters, also called voluntary encounters; investigative detentions, commonly known as Terry stops; public safety stops; and arrests. State v. Thompson , 284 Kan. 763, 772, 166 P.3d 1015 (2007) ; see K.S.A. 22-2402 ; Terry v. Ohio , 392 U.S. 1, 18, 88 S. Ct. 1868, 20 L.Ed. 2d 889 (1968). Principles articulated by the United States Supreme Court governing each of these categories direct our consideration of reasonableness-the second consideration demanded by the Fourth Amendment. See, e.g., Arizona v. Gant , 556 U.S. 332, 129 S. Ct. 1710, 173 L.Ed. 2d 485 (2009) (discussing parameters of reasonableness related to arrest and searches incident thereto); Florida v. Royer , 460 U.S. 491, 498, 103 S. Ct. 1319, 75 L.Ed. 2d 229 (1983) (voluntary encounters); Terry , 392 U.S. 1, 88 S.Ct. 1868 (investigatory detentions); Camara v. Municipal Court , 387 U.S. 523, 87 S. Ct. 1727, 18 L.Ed. 2d 930 (1967) (public safety stops).

The district court and the Court of Appeals determined the encounter between the police and Andrade-Reyes fit the first category of a consensual encounter. Generally, courts do not consider a consensual encounter to be a seizure that triggers the protections of the Fourth Amendment. Consent itself makes the encounter reasonable, and the State need not establish that the officers had probable cause before initiating the encounter. In other words if the encounter was voluntary, the State need not establish that the officers approached the car with a reasonable suspicion that Andrade-Reyes had committed, was about to commit, or was committing a crime. See Florida v. Bostick , 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L.Ed. 2d 389 (1991) ; Terry , 392 U.S. at 19 n.16, 88 S.Ct. 1868.

The district court alternatively found that, if a seizure occurred, the stop-and-frisk exception applied. Under this exception, which was recognized in Terry , 392 U.S. at 21-22, 88 S.Ct. 1868, an officer may seize or stop an individual even if lacking probable cause to arrest the individual as long as the officer has a reasonable suspicion of criminal activity. And under some circumstances the officer may frisk the individual. As later summarized by the Court, Terry allows a stop and frisk if two conditions are met:

"First, the investigatory stop must be lawful. That requirement is met in an on-the-street encounter, Terry determined, when the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense. Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous." Arizona v. Johnson , 555 U.S. 323, 326-27, 129 S. Ct. 781, 172 L.Ed. 2d 694 (2009).

To consider how these concepts fit with the facts of the encounter between police and Andrade-Reyes, we first consider whether the encounter was voluntary. We then consider when reasonable suspicion arose that would justify an investigatory detention. Finally, we consider whether the reasoning of Terry extends to allow the detention and questioning for officer safety purposes even if the officers lacked a reasonable suspicion.

The encounter was not voluntary.

For an encounter to be voluntary, courts examine whether the officer's conduct would convey to a reasonable person that he or she was free to terminate the encounter. State v. Reiss , 299 Kan. 291, 298-99, 326 P.3d 367 (2014) ; Thompson , 284 Kan. at 775, 166 P.3d 1015. Appellate courts review a district court's factual findings related to this test for substantial competent evidence and conduct a de novo review of the district court's legal conclusions. Thompson , 284 Kan. at 776, 166 P.3d 1015. Here, the facts are not disputed. Instead, the dispute involves the district court's and Court of Appeals panel's legal conclusions. We thus exercise de novo review.

In Thompson , we considered whether an interaction between an officer and a driver after a traffic stop's conclusion could be considered voluntary. We listed several nonexclusive factors that tend to establish a voluntary encounter, including "knowledge of the right to refuse, a clear communication that the driver is free to terminate the encounter or refuse to answer questions, return of the driver's license and other documents, and a physical disengagement before further questioning." 284 Kan. at 811, 166 P.3d 1015. We also set out factors that tend to establish a continued detention-a seizure-including:

"the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, the use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory, the prolonged retention of a person's personal effects such as identification, a request to accompany the officer somewhere, interaction in a nonpublic place, absence of other members of the public, or the display of emergency lights. [Citations omitted.]" 284 Kan. at 811, 166 P.3d 1015.

No particular factor is determinative or paramount. 284 Kan. 763, Syl. ¶ 20, 166 P.3d 1015. And these factors can apply to circumstances other than traffic stops that the State argues were a voluntary encounter. See, e.g., State v. Williams , 297 Kan. 370, 377, 300 P.3d 1072 (2013).

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. Andrade-Reyes , 2017 WL 1425858, at *3. 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 Williams , 297 Kan. 370, 300 P.3d 1072, where we held a detention had occurred.

In Williams , two officers approached Deron D. Williams as he walked alone on a sidewalk parallel to a deserted street at 2:30 a.m. The officers pulled their patrol vehicle near Williams and activated their emergency lights. The officers got out of their vehicle and positioned themselves on either side of Williams and immediately began asking questions without indicating he was free to leave. This court found a reasonable person in Williams' circumstances would not have felt free to leave. See Williams , 297 Kan. at 379, 300 P.3d 1072.

One fact distinguishes Williams from the circumstances facing Andrade-Reyes, however. In Williams , the officers activated their emergency lights, but here they did not. Nevertheless, the Williams decision's reliance on the New Mexico Supreme Court's decision in State v. Soto , 143 N.M. 631, 179 P.3d 1239 (2008), suggests the presence of lights did not weigh heavily in this court's determination that a reasonable person in Williams' position would not have felt free to ignore the officers.

In Soto , the officers did not activate emergency lights during the encounter. Yet the New Mexico Supreme Court held officers exhibited a show of authority when, late at night, they pulled their patrol car alongside Charles Soto, who was riding his bicycle on a deserted street. The officers immediately began questioning Soto about his activities and asked for his identification. The Soto court held a reasonable person would not have felt free to leave because of the officers' conduct in immediately asking questions, the isolated location, and the late hour. See 143 N.M. at 632-35, 179 P.3d 1239. As in Soto and Williams , the immediate questioning of Andrade-Reyes, the isolated location, and the late hour are important factors.

In addition, Andrade-Reyes' reaction distinguishes his situation from other cases where we have held that a voluntary encounter is not transformed into a seizure simply because an individual responds to questions or provides identification when approached and questioned by an officer. See, e.g., State v. Lee , 283 Kan. 771, 775-78, 156 P.3d 1284 (2007) (concluding voluntary encounter did not evolve into investigatory detention "simply because the officer asked [the defendant] for permission to conduct a pat-down search for weapons" and the defendant "chose to voluntarily comply" with officer's request). The Court of Appeals panel cited the decision of a different Court of Appeals panel that reached the same holding as Lee . See Andrade-Reyes , 2017 WL 1425858, at *3 (citing State v. Jennings , 33 Kan. App. 2d 244, 250-51, 99 P.3d 1145 [2004], rev. denied 279 Kan. 1009 [2005] [citing and discussing other cases] ). The point those cited cases make is that the detainee gave "voluntary answers" and answered questions under circumstances where "the officers' behavior up to and including the time that [the officer] asked [for the detainees'] consent ... [did] not communicate to a reasonable person that he or she was not free to leave the premises" or refuse to answer questions. Jennings , 33 Kan. App. 2d at 250, 99 P.3d 1145.

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.

Andrade-Reyes' lack of response was permissible and cannot be weighed against him if this was a voluntary encounter. In a voluntary encounter, "[t]he person approached ... need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way." Royer , 460 U.S. at 498, 103 S.Ct. 1319. And if the person declines, "[h]e may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds." 460 U.S. at 498, 103 S.Ct. 1319.

In summary, the totality of the circumstances lead us in our de novo review to a different conclusion from the one reached by the district court and the Court of Appeals panel. The encounter occurred late at night in a dark parking lot with no one else around. Two uniformed police officers approached the vehicle while shining their flashlights on Andrade-Reyes and the driver. The officers did not identify themselves or explain why they were there. Instead, they stood on either side of the vehicle near the doors, and, in a nervous voice, Officer Larson repeatedly asked Andrade-Reyes to open his hands and then ordered him to do so despite his lack of response. Given those circumstances, a reasonable person in Andrade-Reyes' situation would not have felt free to terminate the encounter. Simply put, Andrade-Reyes did not voluntarily engage in an encounter. He thus was seized for purposes of the Fourth Amendment. See Reiss , 299 Kan. at 298-99, 326 P.3d 367.

The officers lacked reasonable suspicion to detain Andrade-Reyes .

Accordingly, to detain Andrade-Reyes for a Terry investigative detention, the officers needed to at least have a particularized and objective basis, supported by specific and articulable facts, for suspecting Andrade-Reyes of criminal activity. See Terry , 392 U.S. at 21, 88 S.Ct. 1868. But the State implicitly conceded in its arguments to the district court that the officers lacked reasonable suspicion of criminal activity when they approached the car. The district court seemed to agree. It concluded the encounter became a stop-and-frisk situation. And that conclusion was based on facts that became known late in the encounter-when Andrade-Reyes "drops it, and they see it in plain sight, and they do take it," presumably referring to the white substance that the officers suspected to be cocaine.

The existence of reasonable suspicion at that point near the end of the encounter does not justify what happened before that point-Officer Larson's repeated requests and eventual order for Andrade-Reyes to open his hands. Without a justification for the detention and conduct during this time, Andrade-Reyes' motion to suppress has merit. See Terry , 392 U.S. at 13, 88 S.Ct. 1868 ("Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.").

To avoid this result, the State must demonstrate that reasonable suspicion arose before that point. But the State does not articulate a valid basis for reasonable suspicion prior to Andrade-Reyes dropping the white substance. Before that, the officers knew only that, after midnight, Andrade-Reyes sat in a car legally parked in a high-crime area, he was extremely nervous, he had reached toward the floor, his hands were clenched, and he did not respond to Officer Larson's questions. These facts did not cause either officer to articulate a subjective belief that a particular crime had occurred, was occurring, or was about to occur or even that they reasonably suspected any criminal activity. Nor did the district court make a clear finding that these facts supported an objective belief of reasonable suspicion or probable cause. See Terry , 392 U.S. at 21, 88 S.Ct. 1868 (holding that "in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion").

Perhaps the district court did not find a reasonable suspicion before the officers saw what was in Andrade-Reyes' hands because these facts are highly ambiguous and subject to innocent explanations. Unlike a car stop where a driver knows police are in pursuit and a furtive movement might be a factor in forming reasonable suspicion (albeit often a weak one), here the circumstances do not indicate that Andrade-Reyes knew Officer Larson and Officer Gross were police officers when he first saw them. The officers did not activate the emergency lights or the headlamps on their police bicycles, and they did nothing to identify themselves as police officers. As Officer Larson testified, it was a very dark area of the parking lot. So dark, in fact, they could not tell what might be going on in the vehicle. Andrade-Reyes reasonably would have had the same difficulties telling what was going on outside the car. Then, when the officers approached, it would have been difficult for Andrade-Reyes to see who was approaching because the officers directed the beams of their flashlights into the car. Given the fact it was a high-crime area, Andrade-Reyes could have been concerned the individuals approaching the car may have been trying to rob him. That belief could innocently explain his odd behavior and nervousness, including an inference that he was hiding something from potential robbers when he reached toward the floorboard. As we have discussed, Andrade-Reyes had the right to refuse to answer questions and his refusal cannot furnish the grounds for reasonable suspicion. As Andrade-Reyes points out, these circumstances are highly analogous to those in State v. Epperson , 237 Kan. 707, 703 P.2d 761 (1985).

In Epperson , late one night, an officer saw a legally parked car in a high-crime area with two men seated inside. When the occupants saw the officer's patrol car they appeared startled and the passenger appeared to reach down toward the floorboard. The occupants exited the vehicle and began to walk away before the officer stopped his patrol car. The officer told them to stop and began questioning them about why they were in the area. This court held:

"The officer had no knowledge of any prior crime; he had not seen or heard of any nearby break-in or other offense and had no reason to suspect these defendants of any such crime. He did not see them commit any offense. Their car was lawfully parked in an area where cars of customers of the private club frequently parked, although there were closer parking spaces available. They did not appear to be armed. The officer was suspicious but he had no objective facts upon which to form a belief that the men were involved in criminal activity. That the men appeared startled when the patrol car emerged from the alley, that the passenger appeared to reach down to the floorboard area, and that the men got out of the car and started to walk away, is not indicative of criminal activity." Epperson , 237 Kan. at 713, 703 P.2d 761.

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. See Epperson , 237 Kan. at 713, 703 P.2d 761. 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. See Thompson , 284 Kan. at 772, 166 P.3d 1015.

Officer safety concerns alone do not justify an investigatory detention.

The district court, in discussing an alternative ruling, relied on officer safety concerns in ruling the evidence should not be suppressed. The district court did so in the context of making its ruling that the stop-and-frisk-exception had been satisfied, implicitly concluding the encounter evolved into an investigatory detention. The Court of Appeals panel skipped over whether there was a lawful investigatory detention and focused instead on whether the seizure was justified by officer safety concerns, relying on this court's decision in Reiss , 299 Kan. 291, 326 P.3d 367. See Andrade-Reyes , 2017 WL 1425858, at *4. ("However, even if we were to characterize the encounter as a seizure, it was a reasonable one."). We reject the reasoning of the district court and the panel's alternative justification.

First, as to the district court's ruling, we have noted that the United States Supreme Court has recognized the stop-and-frisk exception applies if two conditions are met: "First, the investigatory stop (temporary detention) must be lawful .... Second, to proceed from a stop to a frisk (patdown for weapons), the officer must reasonably suspect that the person stopped is armed and dangerous." Johnson , 129 S. Ct. at 781-82. Thus, our conclusion that reasonable suspicion did not justify an investigatory detention means the district court erred in its conclusion of law. Without a valid stop, there cannot be a valid frisk.

This leaves the Court of Appeals' proposition that officer safety can independently justify a detention and search. Generally, consenting to an encounter does not grant officers permission to frisk or search. Another consent, this one agreeing to a search, is usually necessary. The United States Supreme Court Justice Harlan explained this in his concurring opinion in Terry :

"[I]f the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. Any person, including a policeman, is at liberty to avoid a person he considers dangerous. If and when a policeman has a right instead to disarm such a person for his own protection, he must first have a right not to avoid him but to be in his presence. That right must be more than the liberty (again, possessed by every citizen) to address questions to other persons, for ordinarily the person addressed has an equal right to ignore his interrogator and walk away; he certainly need not submit to a frisk for the questioner's protection." Terry , 392 U.S. at 32, 88 S.Ct. 1868 (Harlan, J., concurring).

Summarizing caselaw related to this point, a leading treatise explains these principles mean an officer cannot initiate a search simply because he or she believes an individual may be armed:

"[I]n the absence of some legitimate basis for the officer being in immediate proximity to the person, a degree of suspicion that the person is armed which would suffice to justify a frisk if there were that basis will not alone justify such a search. For example, if a policeman sees a suspicious bulge which possibly could be a gun in the pocket of a pedestrian who is not engaged in any suspicious conduct, the officer may not approach him and conduct a frisk. And this is so even though the bulge would support a frisk had there been a prior lawful stop. Likewise, if an officer, lacking the quantum of suspicion required by Terry to make a forcible stop, instead conducts a non-seizure field interrogation, he may not frisk the person interrogated upon suspicion he is armed; in such a case the officer may protect himself by not engaging in the confrontation." 4 LaFave: A Treatise on the Fourth Amendment, Search & Seizure § 9.6(a) (5th ed. 2018).

See State v. Dean , 42 Kan. App. 2d 558, 562, 214 P.3d 1190 (2009) ("[A]n officer must be able to point to specific, articulable facts to support reasonable suspicion for both the stop and the frisk.").

Some exceptions are recognized, however. One of those exceptions broadly encompasses the situation that arose in Reiss , 299 Kan. 291, 326 P.3d 367 -the case relied on by the Court of Appeals panel. This exception recognizes that officers conducting a valid investigatory detention might encounter an officer safety issue arising from the activities of someone the officer did not intend to detain, often companions of the detainee. See 4 LaFave, § 9.6(a) and n.6. Such a situation arose in Reiss and justified a seizure.

In Reiss , an officer observed a vehicle without its lights on-the target vehicle-and activated his emergency lights. Rex Reiss was driving a vehicle immediately behind the target vehicle. When he saw the emergency lights, he pulled over and parked directly behind the target vehicle. The officer testified he did not have room to park between Reiss' vehicle and the target vehicle and, for safety reasons, did not want to park in front of the target vehicle. Consequently, he parked behind Reiss. Reiss angrily charged toward the officer, demanding to know why he had been stopped. The officer ordered Reiss to return to his vehicle. Once Reiss had done so, the officer approached Reiss and requested his driver's license and proof of insurance.

We held Reiss was seized when he submitted to the officer's order to return to his vehicle. But the seizure was reasonable in light of legitimate officer safety concerns because of Reiss' aggressive behavior. Reiss , 299 Kan. at 301-03, 326 P.3d 367. Although the officer did not intend to initiate a traffic stop of Reiss' vehicle, "the circumstances ... were so similar to a traffic stop that we [found] cases analyzing seizures in that context instructive." Reiss , 299 Kan. at 300, 326 P.3d 367. In doing so, we drew parallels between Reiss' situation and that of a passenger travelling in a lawfully stopped vehicle. We noted that traffic stops pose dangers to police officers, and the danger to both the officer and the occupants of the vehicle is minimized when the officer exercises command over the situation. For this reason, officers may order the passenger of a lawfully stopped vehicle to either exit the vehicle, remain in the vehicle, or return to the vehicle if they have already exited. See Reiss , 299 Kan. at 300-01, 326 P.3d 367 (citing Arizona v. Johnson , 555 U.S. 323, 330, 129 S. Ct. 781, 172 L.Ed. 2d 694 [2009] ; Maryland v. Wilson , 519 U.S. 408, 413-14, 117 S. Ct. 882, 137 L.Ed. 2d 41 [1997] ).

The Wilson Court recognized a traffic violation does not give an officer reasonable suspicion or probable cause to detain the passengers of a vehicle during a traffic stop. But an order to exit the vehicle is a small intrusion on individual liberty because "as a practical matter, the passengers are already stopped by virtue of the stop of the vehicle." Wilson , 519 U.S. at 413-14, 117 S.Ct. 882. And the stop itself stems from the officer having reasonable suspicion or probable cause to believe the driver has committed a traffic offense. See Wilson , 519 U.S. at 413, 117 S.Ct. 882. So "an officer making a traffic stop may order passengers to get out of the car pending completion of the stop ." (Emphasis added.) Wilson , 519 U.S. at 415, 117 S.Ct. 882. The officer's safety concern justifies the restraint on the passengers' liberty while the officer is pursuing a legitimate traffic stop. But nothing in Wilson suggests an officer can detain the passengers for an unrelated investigatory purpose. See 519 U.S. at 413-15, 117 S.Ct. 882.

Similarly, in Reiss , the officer needed to protect his safety during a traffic stop. Reiss was not the target of the stop and the officer did not have reasonable suspicion to initiate a stop on Reiss' vehicle. But Reiss' presence and aggressive behavior created an officer safety concern that justified the officer exercising control over the scene and ordering Reiss to return to his vehicle. Due to these unique circumstances, we found the officer took "an eminently reasonable measure to preserve officer safety" by ordering an angry motorist to return to his vehicle. Even though the officer's order constituted a seizure, it was not unreasonable under the circumstances. Reiss , 299 Kan. at 302, 326 P.3d 367.

Unlike a passenger of a lawfully stopped vehicle, however, the officer did not have reasonable suspicion to detain Reiss or any occupant of his vehicle. Further, once Reiss had returned to his truck, the officer's safety concern of not wanting to turn his back on Reiss to effectuate the traffic stop on the other vehicle, could be "resolved by advising Reiss he was now free to go." 299 Kan. at 302, 326 P.3d 367. Accordingly, we held the officer's additional action of requesting Reiss' driver's license and proof of insurance was an unreasonable investigatory detention because it was not supported by reasonable suspicion. 299 Kan. at 302-03, 326 P.3d 367. Reiss recognized narrow and limited grounds for the initial seizure; thus, it must be considered in context. When a seizure is "an eminently reasonable measure to preserve officer safety" it does not violate the Fourth Amendment. Reiss , 299 Kan. at 302, 326 P.3d 367.

Some courts have extended this principle to encounters that begin as consensual but develop into a situation in which a seizure for officer safety reasons is reasonable. Professor LaFave's treatise on search and seizure has summarized these cases, indicating they recognize a "limited exception," which it explains by stating: "If the officer has commenced a nonseizure confrontation without a pre-existing reasonable suspicion supporting a frisk, but such suspicion suddenly appears (most likely because of the suspect's conduct), then the officer is entitled to frisk for his own protection." 4 LaFave, § 9.6(a) and n.14 (citing United States v. Ellis , 501 F.3d 958 [8th Cir. 2007] [occupant of house consented to police entry, but another occupant "act[ed] nervously and reach[ed] toward his pocket" providing suspicion justifying search]; State v. Mann , 271 Conn. 300, 857 A.2d 329 [2004] [allowing pat-down during consensual encounter after officers developed reasonable suspicion individual was armed and posed an immediate danger]; People v. Colyar , 374 Ill.Dec. 880, 996 N.E.2d 575 [2013] [citing LaFave's statement of exception and concluding "(t)hat is precisely what happened here," as "(o)nly after the nonseizure interrogation had commenced did they develop a reasonable suspicion that the vehicle's occupants were armed and dangerous"]; Commonwealth v. Stephens , 451 Mass. 370, 374, 383, 885 N.E.2d 785 [2008] [nonseizure encounter with persons within parked cars, when officer saw one "holding a black object in the area of his chest, which he quickly lowered to the area of his lap," officer "was justified in 'opening the door, securing the defendant's hands and ordering the defendant from the car for a pat frisk limited to finding weapons' "] ).

We need not determine whether we agree with those decisions or the exception they recognize because, even if we did, the facts here do not meet the requirement that a seizure based only on officer safety concerns must be no more than "a small intrusion on individual liberty." Reiss , 299 Kan. at 301, 326 P.3d 367. In other words, the seizure must be strictly limited in duration, scope, and purpose to address the officer's safety concern, which, on its own, does not constitute reasonable suspicion to detain. Reiss , 299 Kan. at 301-03, 326 P.3d 367. The type of seizure contemplated by Reiss thus may be more limited than what is permitted in a traditional Terry stop. See Reiss , 299 Kan. at 301-04, 326 P.3d 367 ; see also Terry , 392 U.S. at 20-23, 88 S.Ct. 1868 (borrowing the balancing of interests test first articulated in Camara , 387 U.S. 523, 87 S.Ct. 1727, applying it to encounters such as the one in Terry and holding it would be unreasonable to require police to take unnecessary risks simply because they lack probable cause to arrest where reasonable suspicion of criminal activity).

In applying Reiss to the current facts, the Court of Appeals did not acknowledge the important distinction between "a small intrusion on individual liberty" for officer safety concerns and an investigatory detention. See Andrade-Reyes , 2017 WL 1425858, at *4. Here, the officers' safety concerns are distinguishable from Reiss . As Andrade-Reyes points out, he did not make an aggressive or hostile move toward the officers. They approached him; he did not approach them.

Officer Gross testified the door was closed and the window was rolled up. Andrade-Reyes made no movements other than moving his right hand in response to Officer Larson's repeated questions. He did not reach out toward the officers and did not reach toward the floorboard. Officer Larson testified that Andrade-Reyes was very nervous and looked like "a deer in the headlights." But he did not show aggressive behavior like Reiss.

Officer Larson testified she was concerned Andrade-Reyes might have had "a razor blade or ammo in his hands." While those things could potentially pose a danger, Officer Larson's actions were not justified under the circumstances because the door was closed and the window was rolled up. It is hard to imagine what danger, if any, loose ammunition could pose absent the presence of a firearm, which Officer Larson did not indicate she suspected to be either in the car or on Andrade-Reyes' person. Without a firearm, Andrade-Reyes could have conceivably stabbed at the officers with loose ammunition or thrown it at them. But doing so would not be possible through a closed door and window. Likewise, Andrade-Reyes would not have been able to harm the officers with a razor blade through a closed door and window. As Officer Gross testified, Andrade-Reyes never reached toward either officer. Neither officer claimed Andrade-Reyes ever reached for the door handle or tried to lower the window. His hands were clenched but they were where the officers could see them. And his refusal to open his hands necessarily precluded him from grabbing a weapon from elsewhere in the vehicle or opening the window or door.

Andrade-Reyes did not answer Officer Larson's question about what was in his hands and did not initially respond to her request to open his hand-he did not show a willingness to participate in a voluntary encounter. So it may have been reasonable to ask Andrade-Reyes to keep his hands where the officers could see them and remain in the vehicle until the officers could leave. See Reiss , 299 Kan. at 301-03, 326 P.3d 367. Giving such directions would be analogous to the officer ordering Reiss to return to his vehicle. This court held "Reiss' liberty interest to remain outside his truck was small, if present at all. And the intrusion on his liberty was 'minimal.' " The officer's order "merely reinstated the conditions existing before Reiss' rash decision to exit his truck." Reiss , 299 Kan. at 302, 326 P.3d 367. Similarly, telling Andrade-Reyes to remain in the vehicle and keep his hands where the officers could see them would be minimally intrusive because he was already seated in the vehicle before the officers arrived and did not appear to try to exit when he first noticed the officers or when they made contact. And he was already holding his fists out where the officers could see them.

A limited and momentary restraint on Andrade-Reyes' liberty would not have been unreasonable because of the officers' safety concerns. But those concerns arose because Andrade-Reyes did not wish to answer Officer Larson's questions or show her what was in his hands. In other words, his unwillingness to show or tell Larson what was in his hands is the reason relied on for involuntarily detaining him to continue to ask him what was in his hands. This is unreasonable. See Royer , 460 U.S. at 498, 103 S.Ct. 1319 (recognizing right to refuse to answer questions and holding person could not be detained for refusing).

Officer Larson's repeated questioning about what Andrade-Reyes had in his hands constituted an investigatory detention; it went beyond "merely reinstat[ing] the conditions existing before [the encounter]." Reiss , 299 Kan. at 302, 326 P.3d 367. But Officer Larson did not have reasonable suspicion of criminal activity to detain Andrade-Reyes; thus, the detention was unlawful. Accordingly, all evidence obtained as a result must be suppressed because it was tainted by an unlawful seizure. See Reiss , 299 Kan. at 304, 326 P.3d 367.

Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and the case is remanded.

Luckert, J., dissenting:

I dissent from the majority's conclusion that the evidence seized by Officers Megan Larson and Jason Gross must be suppressed. While I agree with the majority's synthesis of the applicable law, I do not agree with its application of the law to the facts. I would hold that once officers initiated the encounter, a reasonably prudent officer would have been warranted in believing, because of specific and articulable facts, that Fran Amilcar Andrade-Reyes was armed and posed an immediate danger. Because of that belief, it was reasonable for officers to demand that Andrade-Reyes open his hand.

As the majority points out, several courts have recognized that an officer may conduct a search limited to the need for officer safety if, after initiating the encounter, the officer develops an objectively reasonable belief that the person is armed and poses an immediate danger, even if the officer lacked probable cause or a reasonable suspicion. See, e.g., United States v. Ellis , 501 F.3d 958 (8th Cir. 2007) ; State v. Mann , 271 Conn. 300, 857 A.2d 329 (2004) ; People v. Colyar , 374 Ill.Dec. 880, 996 N.E.2d 575 (2013) ; Commonwealth v. Stephens , 451 Mass. 370, 885 N.E.2d 785 (2008) ; see also 4 LaFave, Search & Seizure § 9.6(a). This general principle finds support by extension of United States Supreme Court caselaw to these facts.

The assessment of reasonableness begins with considering the "governmental interest which allegedly justifies official intruding upon the constitutionally protected interest of the private citizen." Camara v. Municipal Court , 387 U.S. 523, 534-35, 87 S. Ct. 1727, 18 L.Ed. 2d 930 (1967). The United States Supreme Court identified the interest at issue here in its decision in Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 1881, 20 L.Ed. 2d 889 (1968), when it stated:

"[W]e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." 392 U.S. at 24, 88 S.Ct. 1868.

Ultimately, the Terry Court permitted "a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." 392 U.S. at 27, 88 S.Ct. 1868. Terry limited this rule to investigative detentions, but it does not offend the Fourth Amendment's notion of reasonableness to extend this rule to situations in which objective concerns for officer safety arise in the midst of a consensual encounter. After all, the officer engaged in a consensual encounter is in a situation allowed by the Fourth Amendment.

The majority declined to discuss or consider the possibility this exception could apply here because it held Officer Larson's action exceeded the scope of what was necessary to satisfy officer safety concerns. Op. at 122 (citing State v. Reiss , 299 Kan. 291, 301, 326 P.3d 367 [2014] ). Certainly, because the exception must be "narrowly drawn," Terry , 392 U.S. at 27, 88 S.Ct. 1868, courts should carefully examine whether an officer's actions are reasonable. But Terry stated that an officer should be "entitled to draw from the facts in light of his experience." 392 U.S. at 27, 88 S.Ct. 1868. And the Court recognized officers must take "necessarily swift action predicated upon the on-the-spot observations of the officer on the beat." 392 U.S. at 20, 88 S.Ct. 1868.

The majority, however, gives little credence to the officers' on-the-spot evaluation and engages in an exercise of Monday morning quarterbacking. Removed from the stress of the encounter, the majority concludes the officers could have simply told Andrade-Reyes to keep his hands in sight while they left. But it was late at night and dark, and the officers testified they had difficulty seeing into the car. Their bicycles were parked some distance away and offered no protection. And the officers testified this was a high crime area. Given those circumstances, it seems unreasonable to me to expect officers to walk away from someone they suspected might have ammunition and who had earlier reached toward the floorboard of the car where a gun could easily have been hidden. The officers' actions in demanding Andrade-Reyes show what was in his hands was a minimal intrusion given the weighty interest in officer safety. See Reiss , 299 Kan. at 301, 326 P.3d 367.

Certainly, an officer's good faith is not enough, and courts must exercise detached, neutral scrutiny by applying an objective standard to the facts. Terry , 392 U.S. at 21-22, 88 S.Ct. 1868. Here, the district judge did just that. The judge had the opportunity to hear the testimony of the officers and to view the body camera footage. We did not. Based on the testimony and evidence, the judge found the officers "were very concerned." The record suggests the facts available to the officers would warrant a reasonably cautious person to believe that ordering Andrade-Reyes to reveal what he had in his hand was an appropriate action for officer safety purposes. And that action was a limited intrusion reasonable under the circumstances.

I would affirm the district court and the Court of Appeals.


author: Gardner, J.:

text:
    In the MATTER OF the ESTATE OF Barbara MOUCHAGUE.
    No. 118,287
    Court of Appeals of Kansas.
    Opinion filed May 3, 2019
    Mark D. Lewis, of Gardner, for appellants Patricia and Leonard Kowalski.
    Michelle M. Burge, of Kirkland Woods & Martinsen LLP, of Overland Park, for appellee Terry Diehl, executor of the Estate of Barbara Mouchague.
    Before Bruns, P.J., Schroeder and Gardner, JJ.
   Gardner, J.:

This appeal pertains to ongoing litigation between Terry Chamberlain Diehl (the executor for the estate of Barbara A. Mouchague) and Leonard and Patricia Kowalski, beneficiaries of Mouchague's trust. In addition to the probate case, the parties have been involved in three civil actions below which we need not detail. In this appeal, the Kowalskis claim the probate court erred in awarding attorney fees and expenses to Diehl resulting from one of the civil cases and for previously appealing that case-a case to quiet the Kowalskis' claim to the title and secure Mouchague's property as belonging to the estate. Diehl responds that the Kowalskis, as beneficiaries of Mouchague's trust but not of the estate being litigated in probate court, lack standing to bring this appeal. We agree, finding that the trustee is the proper party to bring an action affecting the trust and that the Kowalskis have not shown that the trustee breached its fiduciary duty so as to permit them to appeal instead of the trustee.

Diehl has also moved for an award of attorney fees incurred in defending this appeal. But she has failed to include in her affidavit the specific detail required by our Rule, so we deny that motion.

FACTUAL AND PROCEDURAL BACKGROUND

When Barbara A. Mouchague died in December 2012, Terry Chamberlain Diehl was appointed the executor of her estate. The sole beneficiary of the estate is the Barbara A. Mouchague Trust. The Country Club Trust Company serves as its trustee but is not a party to this appeal. The trust names four beneficiaries: Leonard Kowalski, Patricia Kowalski, and two charitable organizations. The parties to this appeal are Diehl, as the executor of Mouchague's estate, and the Kowalskis, who have an 80% equitable interest in the decedent's trust.

This appeal has a complicated history because in addition to the probate case, the parties have been involved in three underlying civil cases which the district court tried together. One of those cases is relevant here. In 14 CV 4300, Diehl, in her capacity as executor, sued to set aside a joint tenancy deed in the Kowalskis' and Mouchague's names and to quiet title in the estate when she was gathering estate property. The district court ruled in favor of Diehl on the quiet title action and then ordered the Kowalskis to pay Diehl's attorney fees and expenses of over $ 60,000. The Kowalskis appealed. This court reversed and vacated the fee award on appeal, finding that the fees could not be assessed against the Kowalskis because no contractual or statutory basis for doing so was shown. Diehl v. Kowalski , No. 114706, 2016 WL 6651575, at *4 (Kan. App. 2016) (unpublished opinion). The general rule thus applied that litigants are responsible for their own attorney fees. Robinson v. City of Wichita Employees' Retirement Bd. of Trustees , 291 Kan. 266, 279, 241 P.3d 15 (2010). This court also stated that the fee award in the quiet title action was not a fee award in the probate proceeding and that the district court had expressly deferred ruling on fees in the probate case until the estate was closed. Kowalski , 2016 WL 6651575, at *1.

After this court vacated the award for attorney fees in the quiet title action, Diehl petitioned the probate court under K.S.A. 59-1717 for payment of those same fees and expenses. The district court again awarded Diehl the attorney fees and litigation expenses related to the quiet title action but this time assessed them against the decedent's estate instead of against the Kowalskis personally.

Diehl also petitioned the district court for an award of her attorney fees incurred in defending against the Kowalskis' appeal in the quiet title action- Kowalski , 2016 WL 6651575. The court at first denied Diehl's requested appellate attorney fees, holding that all legal fees and expenses incurred in an appeal must be addressed by appellate courts under Kansas Supreme Court Rule 7.07 (2019 Kan. S. Ct. R. 50). Diehl then sought her fees from the Kansas Court of Appeals under Rule 7.07 but was unsuccessful. She then petitioned the district court again for the award under K.S.A. 59-1717, and the district court awarded the fees.

The Kowalskis appeal, challenging the probate court's award of Diehl's attorney fees and expenses to pursue the quiet title action and to defend that award on appeal. They contend that Diehl cannot seek fees now because Diehl failed to appeal from the original fee award against the Kowalskis in 2015. Although the Kowalskis appealed that fee award, giving rise to the quiet title action, Diehl did not. The Kowalskis also argue that the probate court abused its discretion by not requiring proper segregation of fees, that the amount of fees the probate court awarded was excessive and unreasonable, and that the probate court lacked jurisdiction to award fees incurred on appeal.

We note that Diehl moved to strike the Kowalskis' notice of appeal because it stated that the appeal was being filed on behalf of the trustee and the other beneficiaries of the trust, but neither the Country Club Trust Company nor the beneficiaries other than the Kowalskis joined the appeal. The district court denied Diehl's motion to strike the appeal.

DO THE KOWALSKIS HAVE STANDING TO APPEAL THE DISTRICT COURT'S RULING IN THE ESTATE OF BARBARA MOUCHAGUE ?

Before we reach the Kowalskis' allegations of error in the probate court's award of fees and expenses, we must address Diehl's argument that the Kowalskis lack standing to appeal that award.

Standard of Review

Parties in a judicial action must have standing as part of the Kansas case-or-controversy requirement imposed by the judicial power clause of Article 3, § 1 of the Kansas Constitution. See State ex rel. Morrison v. Sebelius , 285 Kan. 875, 895-96, 179 P.3d 366 (2008). The standing inquiry asks whether a party has a sufficient stake in the controversy to warrant invocation of jurisdiction and to justify the exercise of the court's remedial powers on that party's behalf. Board of Johnson County Comm'rs v. Jordan , 303 Kan. 844, 854, 370 P.3d 1170 (2016). The effect of this requirement is that standing is a component of subject matter jurisdiction, which any party, or the court on its own motion, may raise at any time. See Cochran v. Kansas Dept. of Agriculture , 291 Kan. 898, 903, 249 P.3d 434 (2011). Whether a party has standing in a judicial action, like other jurisdictional issues, presents a question of law over which this court's scope of review is unlimited. In re Care & Treatment of Emerson , 306 Kan. 30, 34, 392 P.3d 82 (2017).

At the pleading stage, the party asserting standing has the burden to establish a prima facie case of standing, that is, a basis when viewed in the light most favorable to the party. See In re Adoption of T.M.M.H. , 307 Kan. 902, 915-16, 416 P.3d 999 (2018) ; Aeroflex Wichita, Inc. v. Filardo , 294 Kan. 258, 264-65, 275 P.3d 869 (2012). The determination of jurisdiction and standing rests on the facts in existence at the time of filing. See Grupo Dataflux v. Atlas Global Group, L.P ., 541 U.S. 567, 580, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004) ("The time-of-filing rule is what it is precisely because the facts determining jurisdiction are subject to change, and because constant litigation in response to that change would be wasteful."); In re I.H.H.-L. , 45 Kan. App. 2d 684, 691, 251 P.3d 651 (2011).

Discussion

Our standing analysis focuses on statutory standing. Any heir, devisee, or legatee may prosecute or oppose the probate of a will. K.S.A. 59-2224 ; see Matter of Estate of Beason , 248 Kan. 803, 806, 811 P.2d 848 (1991). This restriction is narrower than dozens of Kansas statutes that, in other contexts, permit an appeal by an aggrieved person. See Friends of Bethany Place v. City of Topeka , 297 Kan. 1112, 1139-40, 307 P.3d 1255 (2013) (listing those statues). Neither the Kansas Probate Code nor the Kansas Uniform Trust Code allows an appeal by an aggrieved person. See generally K.S.A. Chapters 58a, 59.

The Kowalskis appear to be aggrieved here because each time the executor, Diehl, is awarded fees out of estate funds, fewer assets remain available in the estate to distribute to the Kowalskis as some of the beneficiaries of the trust. But neither Kowalski is, admittedly, an "heir, devisee, or legatee" of Barbara Mouchague's will, as the statute requires. K.S.A. 59-2224. Instead, the only beneficiary of the estate is the Barbara Mouchague Trust. Because the Kowalskis are not beneficiaries of the estate being litigated, Diehl argues that they lack standing to bring this appeal in the probate case.

The general rule

The parties agree that generally, the trustee-and not the beneficiary of the trust-is the proper party to sue or defend actions and claims affecting the trust. The parties have not addressed whether the estate's executor, Diehl, is a third party for purposes of this rule. We assume, without deciding, that she is.

This issue has not been addressed in Kansas cases. Cases from other jurisdictions reflect the general rule that the trustee, who has legal title to the res, has standing to sue a third party; the beneficiary does not even if the beneficiary is adversely affected.

" 'The trustee's standing to sue arises out of its legal title to the res. "The trustee has a title (generally legal title) to the trust property, usually has its possession and a right to continue in possession, and almost always has all the powers of management and control which are necessary to make the trust property productive and safe. Any wrongful interference with these interests of the normal trustee is therefore a wrong to the trustee and gives him a cause of action for redress or to prevent a continuance of the improper conduct. Although the beneficiary is adversely affected by such acts of a third person, no cause of action inures to him on that account." [Citations omitted.]' " Naier v. Beckenstein, 131 Conn. App. 638, 646, 27 A.3d 104 (2011).

Because a trustee is the appropriate party to sue third parties on behalf of trust beneficiaries, beneficiaries generally lack standing to maintain this cause of action. See, e.g., Glassie v. Doucette , 157 A.3d 1092, 1099-1100 (R.I. 2017) ; Interfirst Bank-Houston, N.A. v. Quintana Petroleum Corp. , 699 S.W.2d 864, 874 (Tex. App. 1985).

The interest of the beneficiary of a trust is merely an equitable interest. "Where the trustee could maintain an action at law or suit in equity or other proceeding against a third person if the trustee held the trust property free of trust, the beneficiary cannot maintain an action at law against the third person." Restatement (Second) of Trusts § 281 (1959).

The commentary to § 281(1) explains:

"a. The interest of the beneficiary of a trust is an equitable interest, and ordinarily is protected by suits in equity rather than by actions at law....
"b. Tort claims . If a third person commits a tort with respect to the trust property, the beneficiary, if he is not in possession, cannot maintain an action at law against him....
"c. Contract claims . If a contract right is held in trust, the beneficiary cannot maintain an action at law against the promisor.
"d. Other claims . If a right other than for tort or in contract arises against a third person from the holding of title to the trust property, the beneficiary cannot maintain an action at law to enforce it." Restatement (Second) of Trusts § 281(1), comments a-d (1959).

Restatement (Third) of Trusts § 107(1), comment b (2012) reiterates this principle:

"As holder of the title to trust property ... and as the representative of the trust and its beneficiaries, the trustee is normally the appropriate person to bring ... an action against a third party on behalf of the trust.... [A] beneficiary has no standing to sue a third party on behalf of the trust."

See Bogert's The Law of Trusts and Trustees, § 869, at 112-16 (2d ed. rev. 1995) ("In the absence of special circumstances, the beneficiary is not eligible to bring or enforce these causes of action which run to his trustee. Thus in the usual case he cannot sue a third person to recover possession of the trust property for himself or the trustee, or for damages ....").

We recognize that treatises, restatements, and cases from other jurisdictions provide only persuasive authority and are not controlling here, but we are persuaded by them and believe it a sound practice to recognize this general rule, as well as its exception, which we discuss below.

The exception

The Kowalskis rely on an exception that permits the beneficiaries of the trust to act on behalf of the trust and the other beneficiaries in some cases.

The statutory approach

The Kowalskis cite a treatise to establish that the Country Club Trust Company has a duty to appeal adverse judgments if it would be unreasonable not to do so. They do not, however, specifically allege that the trustee breached any duty listed in the Kansas Uniform Trust Code.

Nonetheless, we find that such a duty may exist under Kansas statutes. Under our trust code, a trustee's violation of a duty the trustee owes to a beneficiary is a breach of trust. K.S.A. 58a-1001(a). The Kansas Uniform Trust Code charges the trustee with a duty to prosecute or defend legal actions to protect trust property. K.S.A. 58a-816(24). The extent of that duty is explained in the Restatement:

"The duty of protecting the trust estate includes taking reasonable steps to enforce or realize on other claims held by the trust and to defend actions that may result in a loss to the trust estate. Reasonable steps may include taking an appeal to a higher court, compromise or arbitration of claims by or against the trust, or even abandoning a valid claim or not resisting an unenforceable claim if the costs and risk of litigation make such a decision reasonable under all the circumstances ." (Emphasis added.) Restatement (Third) of Trusts § 76(2), comment d (2007).

Under this approach, the Kowalskis have the burden to show that the Country Club Trust Company's decision not to appeal the executor's fee award was unreasonable, considering all the circumstances.

The equitable approach

The Kowalskis also rely on an equitable approach outlined in the Restatement (Third) of Trusts § 107 (2012) :

"(1) A trustee may maintain a proceeding against a third party on behalf of the trust and its beneficiaries.
"(2) A beneficiary may maintain a proceeding related to the trust or its property against a third party only if:
(a) the beneficiary is in possession, or entitled to immediate distribution, of the trust property involved; or
(b) the trustee is unable, unavailable, unsuitable or improperly failing to protect the beneficiary's interest."

Under this approach, the Kowalskis, as beneficiaries of the trust, could maintain a proceeding related to the trust property (this appeal) if they show the trustee is improperly failing to protect their interest as beneficiaries. See Browning v. Brunt , 330 Conn. 447, 195 A.3d 1123 (2018) ; Slaughter v. Swicegood , 162 N.C. App. 457, 465, 591 S.E.2d 577 (2004).

This equitable right to sue for the benefit of a trust exists independently of the beneficiaries' rights under the Kansas Uniform Trust Code.

"In equity, trust beneficiaries may bring a suit for the benefit of a trust when the trustees refuse to do so. See Moore v. 1600 Downing Street, Ltd., 668 P.2d 16, 19 (Colo. App. 1983) (' "It is fundamental to the law of trusts that cestuis have the right "upon the general principles of equity" ... and "independently of [statutory] provisions ... to sue for the benefit of the trust on a cause of action which belongs to the trust if" the trustees refuse to perform their duty in that respect." ') (quoting Riviera Congress Assocs. v. Yassky , 18 N.Y.2d 540, 277 N.Y.S.2d 386, 223 N.E.2d 876, 879 [1966] ); see also Brown v. Dolese , 154 A.2d 233, 239 (Del. Ch. 1959) ('[A] trust beneficiary may sue if the trustee refuses to sue.'). Such a suit is analogous to a shareholder derivative suit on behalf of a corporation. See Velez v. Feinstein, 87 A.D.2d 309, 451 N.Y.S.2d 110, 114 (N.Y. App. Div. 1982)." Saunders v. Muratori , 251 P.3d 550, 553 (Colo. App. 2010).

Diehl suggested at oral argument that the Kansas Uniform Trust Code creates an exclusive, statutory remedy, which would preclude this equitable remedy, but neither party briefed that issue. Instead, we find that the Kowalskis could pursue this independent, equitable means of acting in place of the trustee if they show the trustee is improperly failing to protect their interest as beneficiaries.

DID THE KOWALSKIS SHOW THE COUNTRY CLUB TRUST COMPANY ACTED IMPROPERLY OR UNREASONABLY ?

The Kowalskis attempt to meet their burden by contending that the trustee of the Mouchague trust:

• refused to perform its duty to protect the trust property from Diehl's "repeated and improper" claims for fees;
• consistently declined to oppose or even question the fees submitted to the probate court by Diehl and her counsel;
• twice told them it would not appeal the lower court's award of fees to Diehl and her attorney; and
• failed to submit a brief in this appeal to explain how it is properly meeting its fiduciary duties.

But these arguments merely try to shift to the trustee the burden of showing the propriety of its acts. We believe the burden instead rests on the Kowalskis to show the acts that trigger the exception they invoke to the general rule-that the trustee is improperly failing to protect their interest. Clubb v. Hetzel , 165 Kan. 594, 601, 198 P.2d 142 (1948) (stating the " 'p]arty seeking to avail himself of any exception to general rule carries burden of establishing facts necessary to invoke provisions of exception,' " quoting Hunter v. American Ry. Express Co ., 4 S.W.2d 847 [Mo. App. 1928] ); see generally Keiswetter v. State , 304 Kan. 362, 368, 373 P.3d 803 (2016) (finding in Kansas Tort Claims Act cases that the State has the burden to establish it is immune from liability under an exception to the general statutory rule of liability); Messner v. Continental Plastic Containers , 48 Kan. App. 2d 731, 751, 298 P.3d 371 (2013) (holding in workers compensation cases that once the claimant shows a right to benefits, the burden shifts to the employer to show an exception barring compensation applies); cf. State v. Estrada-Vital , 302 Kan. 549, 552, 356 P.3d 1058 (2015) (noting in criminal cases that the burden of proof is on those seeking to invoke an exception to the general rule requiring a search warrant).

The Kowalskis offer no facts in support of their assertion that the trustee acted unreasonably or improperly by not appealing. Instead, they rely solely on the fact that the trustee did not appeal and on the assumption that the trustee has the burden to show how not opposing Diehl's many fee requests meets its fiduciary duty. We can deduce from the trustee's failure to file a timely appeal and its absence in these proceedings, that despite the Kowalskis' urging to do so, the trustee was unwilling to pursue an appeal on the trust's behalf against Diehl's fees. Yet nothing of record shows us why the trustee did not do so. The trustee was active in other matters even though it decided not to appeal, and it has a duty to consider the interests of all beneficiaries, not just the Kowalskis. Perhaps the trustee was unwilling to appeal because doing so would necessarily incur even more fees-or perhaps it reasonably believed an appeal would be futile-or perhaps the other beneficiaries of the trust directed it not to appeal. We do not know, yet we need to know so we can determine if the costs and risk of litigation make such a decision improper or unreasonable under all the circumstances.

The existing record does not resolve the material question of whether the trustee is improperly failing to protect the beneficiary's interest in the trust, which is the standard set out in Restatement (Third) of Trusts § 107(2), comment c, for allowing a beneficiary to proceed on its own. Nor does it show that the trustee's decision not to appeal the executor's fee award was unreasonable, considering all the circumstances. The Kowalskis have failed to meet their burden to show that the Country Club Trust Company failed in its fiduciary duties. As a result, the Kowalskis lack standing to appeal. That right remains solely with the trustee.

IS DIEHL ENTITLED TO ATTORNEY FEES FOR THIS APPEAL ?

After oral argument of this appeal, Diehl moved this court for statutory attorney fees in the amount of $ 12,519.75 for defending this appeal. The Kowalskis have filed no response to that motion.

In support of her motion, Diehl shows the court the following:

• under Rule 7.07(b) an appellate court may award attorney fees for services on appeal in any case in which the trial court had authority to award attorney fees;
• an attorney for an estate handled the defense of this appeal thus the trial court had the authority to award attorney fees under K.S.A. 59-1717 ;
• upon receiving the Kowalskis' Notice of Appeal, Diehl, as executor, sought instruction from the probate court and was specifically authorized to defend the appeal through the estate;
• the probate court authorized Diehl and counsel to defend the appeal in accordance with the fee and representation agreement Diehl submitted to the court for approval; and
• Diehl's attorney did defend the appeal.

The motion attached several documents which establish to our satisfaction that Diehl is entitled to attorney fees. But the motion failed to attach any detailed affidavit setting out the factors we must consider in determining the reasonableness of the fee. Rule 7.07(b)(2) requires a party seeking attorney fees on appeal to attach to the motion an affidavit that specifies the nature and extent of the services rendered, the time expended on the appeal, and the factors considered in determining the reasonableness of the fee under Kansas Rule of Professional Conduct 1.5(a) (2019 Kan. S. Ct. R. 300). Diehl's affidavit attached to the motion fails in each of those requirements.

Instead, Diehl's affidavit merely recites the facts showing its defense of the Kowalskis' appeal was authorized then conclusorily states: "Fees in the amount of $ 12,519.75 have been incurred as a result of defending the appeal of the Kowalskis." The affidavit does not state how much time was spent on what tasks by which persons, nor does it address the eight factors we need to consider in determining the reasonableness of a fee. No invoices or other details are attached to the affidavit. Because Diehl's affidavit fails to meet the requirements of Supreme Court Rule 7.07, we cannot determine reasonableness under KRPC 1.5, as is our duty.

We recognize that we have wide discretion in determining the amount and recipient of attorney fees. Wittig v. Westar Energy, Inc. , 44 Kan. App. 2d 216, 228, 235 P.3d 535 (2010). This is partly because the appellate court is an expert on the reasonableness of attorney fees, Johnson v. Westhoff Sand Co. , 281 Kan. 930, 959, 135 P.3d 1127 (2006), and "can draw on and apply its own knowledge and expertise in determining their value." Freebird, Inc. v. Cimarex Energy Co. , 46 Kan. App. 2d 631, 639-40, 264 P.3d 500 (2011). But the "burden to prove the reasonableness of the fees and expenses requested is upon the party making the request." Wittig , 44 Kan. App. 2d at 210, 235 P.3d 515. Under Kansas authority, we have the discretion to determine the reasonableness of Diehl's requested attorney fees even though the Kowalskis have not objected. See Brand v. Pharmacare Management, Inc. , No. 118421, 2018 WL 4939246, at *7 (Kan. App. 2018) (unpublished opinion). And we have the duty to enforce our rules, which for good reason require an affidavit. Because we have read Diehl's brief on appeal, have heard her oral argument, and see her attorney's hourly rate stated in the attachments to her motion, we could speculate about some amount of fees that may be reasonable. But any such speculation is prohibited by our Supreme Court Rule requiring the movant to file an accompanying affidavit with specificity. For that reason, we deny the motion for attorney fees on appeal.

We dismiss the Kowalskis' appeal for lack of standing and deny Diehl's motion for attorney fees on appeal.


text:
    B.Y., Appellant, v. D.M., Appellee.
    No. 119,983
    Court of Appeals of Kansas.
    Opinion filed May 31, 2019.
    Affirmed in part. Reversed in part. Remanded with directions.


text:
    STATE of Kansas, Appellee, v. Francisco Javier DELIRA, Appellant.
    No. 119,005
    Court of Appeals of Kansas.
    Opinion filed May 31, 2019.
    Affirmed in part. Vacated in part. Remanded with directions.


text:
    In the INTEREST OF R.F., a Minor Child.
    No. 120,415
    Court of Appeals of Kansas.
    Opinion filed June 7, 2019
    Reversed. Remanded with directions.


text:
    STATE of Kansas, Appellee, v. Eric B. BREWER, Appellant.
    No. 120,375
    Court of Appeals of Kansas.
    Opinion filed June 7, 2019
    Submitted by the parties for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Shawna Michelle SIDDONS, Appellant.
    No. 120,280
    Court of Appeals of Kansas.
    Opinion filed June 7, 2019
    Submitted by the parties for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    In the MATTER OF the MARRIAGE OF Reena N. PATEL, Appellant, and Srinivas YENDRU, Appellee.
    No. 119,064
    Court of Appeals of Kansas.
    Opinion filed June 7, 2019
    Affirmed.


text:
    STATE of Kansas, Appellant, v. Janee Lashaun DRYDEN, Appellee.
    No. 119,976
    Court of Appeals of Kansas.
    Opinion filed June 7, 2019.
    Reversed. Remanded with directions.


text:
    In the MATTER OF the MARRIAGE OF Jason PEFFLY, Appellee, and Brittan MCCLANAHAN, formerly Brittan Peffly, Appellant.
    No. 118,736
    Court of Appeals of Kansas.
    Opinion filed June 7, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Scottie E. LINDSAY, Appellant.
    No. 117,826
    Court of Appeals of Kansas.
    Opinion filed June 7, 2019
    Affirmed.


text:
    In the MATTER OF the Parentage of M. F., a Minor Child;
    Brought by K.L., Appellant, v. T. F., Appellee.
    No. 117,301
    Court of Appeals of Kansas.
    Opinion filed June 7, 2019.
    Affirmed.


text:
    In the INTERESTS OF D.S. and K.S., Minor Children.
    No. 119,933
    Court of Appeals of Kansas.
    Opinion filed June 7, 2019.
    Affirmed.


text:
    John L. WEEKS, Appellant, v. STATE of Kansas, Appellee.
    No. 119,733
    Court of Appeals of Kansas.
    Opinion filed June 7, 2019
    Affirmed.


text:
    In the INTEREST OF M.P., a Minor Child.
    No. 119,444
    Court of Appeals of Kansas.
    Opinion filed June 7, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Robert W. WHITFIELD, Appellant.
    No. 119,287
    Court of Appeals of Kansas.
    Opinion filed June 7, 2019
    Reversed. Vacated. Remanded with directions.


text:
    STATE of Kansas, Appellee, v. Sherri HENSON, Appellant.
    No. 119,257
    Court of Appeals of Kansas.
    Opinion filed June 7, 2019
    Reversed. Remanded with directions.


text:
    STATE of Kansas, Appellee, v. Derrick R. BISHOP, Appellant.
    No. 118,896
    Court of Appeals of Kansas.
    Opinion filed June 7, 2019.
    Affirmed in part. Reversed in part.


text:
    STATE of Kansas, Appellee, v. Francisco MORENO, Appellant.
    No. 118,409
    Court of Appeals of Kansas.
    Opinion filed June 7, 2019.
    Affirmed.