There are four types of police-citizen encounters: “consensual encounters, which are not considered seizures; investigatory detentions, commonly known as Terry stops (after Terry v. Ohio, 392 U.S. 1, 18, 88 S.Ct. 1868, 20 L.Ed.2d 889 [1968], whose parameters are codified in K.S.A. 22–2402 ); public safety stops; and arrests. [Citations omitted].” State v. Johnson, 293 Kan. 959, 965, 270 P.3d 1135 (2012).In the present case, we must determine if the facts suggest the encounter between Officer Larson and Robertson was an investigatory detention—a Terry stop under K.S.A. 22–2402 —or an illegal arrest.
The officers thus acted reasonably in handcuffing Helfrich for safety purposes, frisking him, and removing his knife. See State v. Johnson , 293 Kan. 959, 967, 270 P.3d 1135 (2012) (permitting a law enforcement officer to conduct an officer safety search and remove any potentially dangerous weapons from a suspect's person). But a person's use of drugs does not equate to drug possession.
We have previously declined to address an issue on this ground. See e.g., State v. Johnson, 293 Kan. 959, 964–65, 270 P.3d 1135 (2012) (declining to review detention argument in part because defendant did not argue any exceptions to the preservation rule applied); State v. Tupas, No. 100,100, ––– Kan.App.2d ––––, 2009 WL 1140323, at *1 (Kan.App.2009) (unpublished opinion). Nonetheless, we will reach the merits of the Eighth Amendment issue in this case because it appears up to now the rule has not been strictly enforced and our caselaw clearly establishes that a categorical proportionality challenge may be raised for the first time on appeal.
Moreover, Supreme Court Rule 6.02(a)(5) has been in effect long before Williams' explicit reminder and Davis' appeal in this case. See, e.g., State v. Johnson, 293 Kan. 959, 964–65, 270 P.3d 1135 (2012), where the court declined to address several issues due to the failure to explain why the issues should be considered for the first time on appeal. And Davis clearly filed his appellate brief in this case after Williams was published. In light of Williams, Davis' issue is not properly before us.
Generally, an appellant's failure to raise an issue before the district court precludes him or her from raising the issue on appeal. See State v. Johnson, 293 Kan. 959, 964, 270 P.3d 1135 (2012). Denney has failed to brief the applicability of any exception to this rule.
As a preliminary matter, the State raises two procedural arguments as to why we should not address the merits of Phillips' claims on appeal. First, the State contends that Phillips is arguing for the first time on appeal that his consent to the search of his motel room was not voluntary. The State asserts that Phillips' motion to suppress only argued that he was the subject of an investigatory detention and the issue of consent was not presented to the district court and should not be considered for the first time on appeal. Generally, issues not raised before the district court cannot be raised on appeal. State v. Johnson, 293 Kan. 959, 964, 270 P.3d 1135 (2012). The State is correct in its assertion that Phillips' written motion to suppress argued that he was the subject of an investigatory detention, not a voluntary encounter.
Generally, issues not raised before the district court cannot be raised on appeal. State v. Johnson, 293 Kan. 959, 964, 270 P.3d 1135 (2012). McCaslin fails to argue any of the three exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal apply.
“ ‘[T]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ “ State v. Johnson, 293 Kan. 959, 965, 270 P.3d 1135 (2012) (quoting Terry, 392 U.S. at 27). In Johnson, our Supreme Court defined and discussed reasonable suspicion in the context of a Terry frisk:
This court has previously declined to address an issue on this ground. See, e.g., State v. Johnson , 293 Kan. 959, 964-65, 270 P.3d 1135 (2012). Because these apparent issues are only included in Gallegos' statement of issues and are not adequately briefed, we deem them abandoned.
The general parameters of a Terry stop have also been codified in Kansas in K.S.A. 22-2402. State v. Johnson , 293 Kan. 959, 965, 270 P.3d 1135 (2012). It provides: