Opinion
No. 111, 386.
07-31-2015
STATE of Kansas, Appellee, v. Brian D. JONES, Appellant.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Heather Cessna, of Kansas Appellate Defender Office, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BUSER and POWELL, JJ.
MEMORANDUM OPINION
POWELL, J.
Brian D. Jones directly appeals his convictions and sentences for kidnapping, aggravated robbery, and aggravated burglary, arguing the district court erred by: (1) denying his motion to suppress DNA evidence; (2) refusing to give his requested jury instruction on jury ification; and (3) sentencing him to an increased sentence based upon his prior criminal history and sentencing him to the aggravated number in the sentencing guidelines grid box without requiring his criminal history and the aggravating factors to be proven to a jury. Finding no reversible error by the district court, we affirm Jones' convictions and sentences.
Facts
In August 2010, Catalina Lopez was cleaning her kitchen when she saw a man in the bedroom at the other end of the hall. The man moved toward her, grabbed her by the neck, and covered her mouth to stop her from screaming. Catalina grabbed her phone as the man threw her to the floor, and she was eventually able to dial 911. Fearing detection, however, she hung up after the dispatcher answered.
Catalina heard her daughter Diana enter the room. Diana saw what she believed to be four men in her home, at least one of whom she thought was a neighbor. One man with a gun locked the front door, while a man with dreadlocks and a cigar in his mouth covered Catalina's mouth and pointed a gun at her head. Catalina was able to slap the cigar from the man's mouth while another man attempted to secure her hands.
Another man pointed a gun at Diana's head and yelled at her to get on the ground and cover her head. Diana's hands were tied with an electrical cord. Catalina was screaming, so one of the men told her that he would kill her if she would not “shut up.” One of the men held a gun to Diana's shoulder and demanded money while the other men were looting the house.
After the men left, Diana called 911. Once the police arrived, they interviewed Catalina and Diana and conducted an investigation of the premises. The cigar that Catalina slapped from the mouth of the man holding the gun at her head was taken into evidence and subsequently submitted for DNA testing. No one in the house smoked.
In October 2012, Wichita Police Detective Dan Binkley was informed that there was a hit on the DNA from the cigar which linked it to Jones. Binkley located Jones and collected oral swabs from him to conduct a DNA comparison. Subsequent testing revealed Jones could not be excluded as a source of the DNA found on the cigar. Both Catalina and Diana were shown a photo array with Jones but were unable to positively identify anyone from that lineup. No doubt because of the DNA evidence, Jones was subsequently charged with kidnapping, aggravated robbery, and aggravated burglary.
Prior to trial, Jones filed a motion to suppress the DNA sample, claiming it was obtained under coercion and making his consent invalid; the district court conducted a hearing. During the hearing, Binkley testified he was informed there was a CODIS link between the DNA sample recovered from the cigar found at the victims' home and the DNA profile from a from Liberal, Kansas, case which had involved a Brian D. Jones. Binkley then researched identification information regarding the Brian D. Jones he was trying to locate. Jones was associated as a match. Binkley was aware that Jones was scheduled to appear for a hearing in the Wichita Municipal Court, which was located just three floors below Binkley's office, so he waited outside the courtroom until Jones left. Binkley approached him, explained he was conducting an ongoing investigation into the incident in question, that Jones' name had emerged during the investigation, and that Binkley wanted to speak with Jones in his office.
Binkley testified that Jones walked with him to the elevator and rode up to the sixth floor. As the men exited the elevator, Jones asked whether he was under arrest, and Binkley explained he was not under arrest. Binkley informed Jones that the investigation required a DNA sample, either through Jones' consent or a warrant.
Jones told Binkley he wanted to leave and continued asking if he was under arrest. Eventually, Binkley told Jones he was under arrest and not free to leave. Jones was placed in an interview room; once inside, Jones stated he did not have anything to say regarding the investigation. Binkley responded that was fine because they were not there for an interview or interrogation; Jones was not going to jail but was not free to leave until the DNA sample was obtained either through Jones' consent or by the issuance of a warrant.
After Jones requested an attorney, Binkley terminated his contact and exited the room. Binkley testified he had prepared the application for the warrant in advance; when he left Jones in the interview room, he contacted the district attorney's office, e-mailed the search warrant application, and was ready to go to the county building and swear to the search warrant. However, as he was leaving, Jones yelled to him from the interview room: Binkley reentered the interview room and informed Jones that he was working on the warrant, but it would be a short time before the process was completed so Jones would have to remain in the room. At this point, Jones agreed to provide a DNA sample. Jones appeared to be holding his side in pain. Binkley asked if Jones needed an ambulance, but Jones declined medical assistance.
Prior to swabbing Jones' mouth, Binkley reviewed a voluntary waiver form with him and audiotaped the waiver process. The form clarified that Jones was voluntarily agreeing to the procedure and that he had not been subjected to threats, coercion, or promises. After Binkley reviewed the form with him, Jones signed it. Jones was released right after the DNA sample was collected.
After the hearing, the district court denied Jones' motion to suppress, finding that Jones was not free to leave and when Jones refused to consent and requested an attorney, Binkley left the interview room to proceed with the search warrant application process. Jones then reinitiated contact and agreed to provide the DNA sample. The court found that Jones was informed of his right to refuse consent, waived that right, and consented to providing a DNA sample. The court also found there were no threats or coercion made to Jones and that even though Jones claimed to need medical attention, when it was offered, he refused it. The court ruled Jones' consent was valid.
At trial, Jones asked for a modified jury instruction, intending to inform the jury of its right to jury ification. The district court denied his request, preferring to use the appropriate PIK instruction, and held the burden of proof was laid out clearly in other instructions. The jury convicted Jones on all counts. Based on his criminal history score of A, Jones was sentenced to 342 months in prison, with 36 months' postrelease supervision.
Jones timely appeals.
Did the District Court Err by Denying Jones' Motion to Suppress?
Jones argues the district court erred when it denied his motion to suppress the DNA evidence. He alleges the evidence was obtained after he unknowingly and involuntarily gave consent while under duress. Conversely, the State asserts Jones freely and knowingly consented to the oral swabs.
The standard of review of a district court's decision on a motion to suppress applies a bifurcated standard. We review the district court's factual findings to determine whether they are supported by substantial competent evidence. State v. Gibson, 299 Kan. 207, 215–16, 322 P.3d 389 (2014). The ultimate legal conclusion is reviewed using a de novo standard. 299 Kan. at 216. In reviewing the factual findings, we do not reweigh the evidence or assess the credibility of witnesses. 299 Kan. at 216. The State bears the burden of proving the lawfulness of the search and seizure. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014) (quoting State v. McGinnis, 290 Kan. 547, 551, 233 P.3d 246 [2010] ).
The Fourth Amendment to United States Constitution and Section 15 of the Kansas Constitution Bill of Rights protect individuals and their property from unreasonable searches and seizures. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). A warrantless search is considered unreasonable unless the search falls within a recognized exception to the search warrant requirement. State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied 131 S.Ct. 2114 (2011). Consent is one such exception. State v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009).
It is the State's burden to establish the “ ‘voluntariness of the consent to search.’ “ 289 Kan. at 380 (quoting Thompson, 284 Kan. at 776 ). “Voluntariness is a question of fact [based on] the totality of the circumstances.” State v. Parker, 282 Kan. 584, 595, 147 P.3d 115 (2006). “ ‘For a consent to search to be valid ...:(1) There must be clear and positive testimony that consent was unequivocal, specific, and freely given and (2) the consent must have been given without duress or coercion, express or implied. [Citations omitted.]’ “ Ransom, 289 Kan. at 381 (quoting Thompson, 284 Kan. at 776 ). “ ‘Consent’ that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse.” Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).
Jones argues his consent was coerced because he was being held against his will, the detective left him with the impression he was going to jail, and he was in obvious pain. Jones claims his consent was merely an effort to end his detention by giving the police what they wanted. We disagree.
First, with regard to Jones' detention, the fact that Jones was being detained when he gave his consent is insufficient by itself to demonstrate coercion. See State v. Thompson, 37 Kan.App.2d 589, 596, 155 P.3d 724 (2007).While the State discusses investigatory detentions versus custodial arrests, we agree that Jones was not free to leave, but he was told he was not going to jail and would be released once the DNA sample was obtained. Whether Jones was free to leave is merely one fact to consider. See United States v. Espinosa, 782 F.2d 888, 890 (10th Cir.1986) (investigative detention justified where specific and articulable facts give rise to reasonable suspicion that a person has committed or is committing a crime [citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ] ).
Second, with regard to Jones' allegation that his apparent physical pain was a factor to consider, the record reveals that as soon as Jones expressed discomfort in his side, Binkley offered to get medical help, but Jones refused. In addition, the entire encounter lasted less than 1 hour and was carried out as quickly as possible.
Third, we reject any suggestion that the detective's statement about getting a warrant was somehow coercive. Generally speaking, while it is true that a threat to obtain a warrant will invalidate subsequent consent if there were not then grounds upon which the warrant could issue, it is also true that if there is probable cause to obtain a warrant, such a statement is correct and not coercive. State v. Brown, 245 Kan. 604, 608, 783 P.2d 1278 (1989) (quoting 2 LaFave, Search and Seizure § 8.2(c), pp. 648–49 [1978] ). Here, the detective's statements to Jones about getting a warrant to obtain a DNA sample from him were not coercive as probable cause existed to obtain such a warrant. Law enforcement's DNA database had matched the DNA sample obtained from the crime scene with Jones' DNA record, meaning the detective could have obtained a search warrant from a neutral magistrate to obtain a DNA sample from Jones. See Myles v. State, 54 So.3d 509, 512 (Fla.Dist.App.2010) (identification by DNA match is analogous to identification by fingerprint match); State v. Roque, 809 So.2d 50, 51 (Fla.Dist.App.2002) (comparison of latent prints and known prints already on file provides sufficient probable cause for warrantless arrest).
Finally, in considering the remaining facts, we agree with the district court that Jones' consent to the DNA swabs was knowingly and voluntarily given. Binkley explained to Jones what case he was investigating, why he contacted Jones, and what he was asking Jones to contribute to the investigation. Jones walked with the detective to the elevator, rode up to the sixth floor, and was never handcuffed. Jones' contact with law enforcement was limited to his interaction with the detective; he was not subjected to an interrogation by a squad of officers, and no coercive tactics were employed in an effort to secure Jones' consent. Once Jones refused to speak to the detective and demanded a lawyer, the detective immediately terminated his contact with Jones.
The dissent claims that Jones could not have done more to express his desire not to consent. We disagree. It was Jones who reinitiated contact with the detective after Binkley had left the room to obtain the warrant, and it was Jones who chose to resume the discussion regarding consent to the test. See State v. Gamble, 44 Kan.App.2d 357, 365–66, 236 P.3d 541 (2010) (questioning of suspect can be resumed if suspect reinitiates conversation), rev. denied 291 Kan. 914 (2011).
Substantial evidence in the record supports the district court's findings that there was no evidence of threats or coercion and that Jones was fully informed of the nature of the search and his right to refuse consent by the waiver form he freely signed. The lack of coercion is evidenced by Jones' signature on the waiver form. Jones provided verbal consent, the detective read the waiver form to Jones before Jones signed it, and the detective audiotaped the waiver process. The waiver and audiotape were reviewed by the district court. The signed form served as an attestation that Jones had a clear understanding of what he was volunteering to do, that he was not forced to provide the sample, and that his decision was free of coercion, threats, or promises.
Did the District Court Err when it Refused to Give Jones' Requested Modified Jury Instruction?
Jones also alleges the district court erred in not giving his modified version of a jury instruction, necessitating the reversal of his convictions and remand for a new trial. The State contends Jones' position is contrary to the long-standing precedent of the Kansas Supreme Court.
The standard of review when addressing challenges to jury instructions is based upon the following analysis:
“ ‘(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).’ [Citation omitted.]” State v. Roeder, 300 Kan. 901, 920, 336 P.3d 831 (2014), cert. denied 135 S.Ct. 2316 (2015).
Jury ification is:
“ ‘A jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness.’ Black's Law Dictionary 875 (8th ed.2004).” Silvers v.
State, 38 Kan.App.2d 886, 888, 173 P.3d 1167, rev. denied 286 Kan. 1180 (2008).
Jurors in a criminal case can acquit a defendant by disregarding the rules of law and evidence; however, defendants are not entitled to have a ification instruction provided to the jury. 38 Kan.App.2d at 890.
The Kansas Supreme Court has disapproved of the “ ‘do what you think is fair’ instruction” that used to be set forth in PIK Crim. 51.03. State v. McClanahan, 212 Kan 208, 215–16, 510 P.2d 153 (1973). “The administration of criminal justice in this state would not be served by approving either the theory or form of such an instruction. The tenor of the instruction militates against our generally accepted law as to the diverse functions of court and jury .” 212 Kan. at 215.
In State v. Naputi, 293 Kan. 55, 65, 260 P.3d 86 (2011), Naputi, despite acknowledging McClanahan 's holding, argued the district court erred because “it declined to modify a jury instruction on the burden of proof to reflect the jury's power of ification” and claimed “the jury's inherent power to [ify] should be reflected in the jury instructions.” After discussing McClanahan, our Supreme Court held: “It is not the role of the jury to rewrite clearly intended legislation, nor is it the role of the courts to instruct the jury that it may ignore the rule of law, no matter how draconian it might be.”293 Kan. at 66.
The Kansas Supreme Court has consistently decided that jury instructions informing juries of the power of ification are not appropriate. See State v. SmithParker, 301 Kan. 132, 164, 340 P .3d 485 (2014) ; Naputi, 293 Kan. 55, Syl. ¶ 4 ; McClanahan, 212 Kan. at 210–17. Because there is no indication the court is departing from its previous decisions, we are bound to follow the established precedent. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012).
In this case, Jones requested the district court to issue a modified burden of proof instruction that embodied the spirit of jury ification. Jones proposed the following instruction:
“The State has the burden to prove Mr. Jones is guilty. Mr. Jones is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence beyond a reasonable doubt that he is guilty.
“The test you must use in determining whether Mr. Jones is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find Mr. Jones not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you may find Mr. Jones guilty. ” (Emphasis added.)
Jones contends the use of “may” in the second paragraph of the proposed instruction was proper because the jury was not under an obligation to make a guilty finding. However, the district court properly refused to issue the modified instruction and held that the instruction provided by PIK Crim. 4th 51.010, which uses “should,” was a proper statement of the law.
The following instruction was provided to the jury:
“The State has the burden to prove the defendant, Brian Jones[,] is guilty. The defendant, Brian Jones[,] is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.
“The test you must use in determining whether the defendant, Brian Jones [,] is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant, Brian Jonesf[,] not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant, Brian Jones[,] guilty. ” (Emphasis added.)
Jones claims his proposed jury instruction was legally appropriate because the PIK instruction spoke in terms of a mandatory adjudication of guilt and, thus, erroneously informed the jury that it had no right to ify. Although the use of PIK instructions is not required, it is strongly recommended, as those instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. “Absent a particular need under the facts of a case to alter ... PIK instructions, they should be followed.” State v. Acevedo, 49 Kan.App.2d. 655, 663, 315 P.3d 261 (2013), rev. denied 300 Kan. 1104 (2014). Jones' requested jury instruction was not legally appropriate. The district court correctly declined to use Jones' proposed jury instruction and provided the proper jury instruction.
Did the District Court Improperly Enhance Jones' Sentence?
Jones' final arguments, which he asserts to preserve for federal review, are that the use of his criminal history to calculate his guidelines sentence and sentencing him to the aggravated number in the sentencing guidelines grid box were unconstitutional because his past convictions and the aggravating factors were not proved in this case to the jury. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Our Supreme Court has rejected these arguments, and we reject them as well. See State v.. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013) ; State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002).
Affirmed.
BUSER, J., dissenting.
I dissent from the majority's affirmance of the trial court's denial of Jones' motion to suppress evidence of the DNA sample. In my view, given the undisputed evidence in this case, the search of Jones' person and the seizure of DNA was violative of the Fourth Amendment to the United States Constitution because Jones' consent was not voluntarily given but was the result of police coercion.
Under the Fourth Amendment, two conditions must be met in order for a consent to search to be valid: “(1) There must be clear and positive testimony that consent was unequivocal, specific, and freely given; and (2) the consent must have been given without duress or coercion, express or implied. ” (Emphasis added.) State v. Spagnola, 295 Kan. 1098, Syl. ¶ 11, 289 P.3d 68 (2012). In analyzing whether these two conditions were satisfied in a particular case, the reviewing court must consider the “totality of the circumstances” surrounding the individual's consent to search. 295 Kan. 1098, Syl. ¶ 1 2.
The undisputed material facts that comprise the totality of the circumstances in this case establish the following:
• Detective Binkley escorted Jones from the third floor of the Wichita city building to the sixth floor where the police department's robbery unit was located.
• Detective Binkley told Jones that “he was not free to go but that the only recourse in the end is either going to be, one, that he provides voluntary consent to me to obtain this [DNA sample], or two, for me to obtain a search warrant where I compel him to.”
• Detective Binkley testified that when he told Jones “he's not going to jail,” Jones kept asking to leave. In fact, Jones asked “multiple times to leave.” Although Binkley considered the encounter an investigatory detention and not an arrest, Binkley “realized ... this communication isn't working under these circumstances.” As a result, Binkley “simply told [Jones], okay, you are under arrest for purposes of you are not free to go and you'll need to come with me until we can sort this out.” Binkley said he knew that under “the layman's interpretation of being under arrest,” this meant “having handcuffs on and going to jail.” In sum, although he did not intend to incarcerate Jones, Detective Binkley understood that Jones thought he was going to jail because he was under arrest.
• Apart from Jones' understanding of the nature of his decision, Detective Binkley testified Jones was not free to leave police custody.
• After Jones was informed that he was under arrest, Detective Binkley “made him empty his pockets to go into the secure office area” where Jones was placed in an interview room.
• After Jones was advised he was under arrest, he requested an attorney. Detective Binkley testified, “I made no effort to get him an attorney.” The detective explained, “I have no obligation to get him an attorney.”
• After talking with Jones, Detective Binkley concluded that Jones “was avoiding the DNA situation and just saying he wanted to leave.... I just knew in my mind he was avoiding the situation and I didn't want to spend time dealing with it. I will just get a warrant.” The detective knew at that time that Jones had not consented to providing a DNA sample. Detective Binkley left the interview room.
• Detective Binkley went “to make a phone call to the District Attorney's office, relay the circumstances, e-mail the search warrant and then get up to leave” when Jones then reinitiated contact. This was about 10 minutes after the detective had left the room.
• According to Detective Binkley, “[Jones] became very agitated in the interview room, was making a scene by yelling.” At the time “Jones reinitiated contact with me by yelling through the door, audibly hearing him out in my office area while he was in the room where he yells, hey, detective and reinitiated contact with me, at which point I opened the door to simply let him know, because again, he had been, as I described it, ranting, causing—causing a lot of people to wonder, other people that weren't involved to wonder what in the world's going on here, you know, why is this individual acting like this?”
• According to Detective Binkley, at this time Jones knew the detective was already in the process of getting a warrant. Detective Binkley testified, “I had told him basically to communicate with him because this was going to take some time, I'm going across the street to obtain this search warrant and I'll be back, but that he's going to have to sit here during that time.”
• After Jones reinitiated contact with Detective Binkley, Jones was “holding his side in pain” and “may have mentioned something about an ailment as he's holding his side groaning in response to [Detective Binkley] asking what's wrong.”
• When asked at the suppression hearing, “Did [Jones] tell you I will just give you the DNA now and get it over with?” Detective Binkley replied, “Yes.”
• Jones signed a written waiver to obtain DNA form.
• Jones was kept in the interview room for an unknown length of time which was less than 1 hour.
• Jones was released from custody after the DNA sample was obtained.
Against this factual background, the district judge concluded:
“I'm convinced well beyond a preponderance of the evidence but certainly by a preponderance of the evidence, it's clear. The evidence is clear. It's positive. The consent to the DNA sample was done, unequivocally was done specifically freely, knowingly and without any duress or coercion, that the contact was reinitiated by the defendant and consent at that time given and I'll deny the [suppression] motion.”
Upon my de novo review, I strongly disagree with the district court's ultimate legal conclusion and my colleagues' judgment affirming Jones' conviction based in part on the admission of Jones' DNA in evidence. Indeed, other than physically resisting Detective Binkley or attempting to escape custody, I do not know what else Jones could have done to convey to the detective that he did not want to consent to a seizure of his DNA. Jones repeatedly asked to leave. His requests were repeatedly denied. Later, he was told he was under arrest and his personal effects were taken from him, whereupon he was placed in a secured interview room. Jones asked for an attorney. His request was ignored. Perhaps not surprisingly, after all of Jones' requests were either denied or ignored, he became very agitated, ranting and yelling in the interview room. He also claimed (whether true or untrue) that he was in pain from an unknown ailment. Only after this period of time, when it should have been abundantly clear to Jones (or any other reasonable person) that he was not going to be released without allowing the seizure of his DNA and Detective Binkley had advised him that he must remain in the interview room until a search warrant was procured, did Jones consent to the seizure of his DNA.
The United States Supreme Court has admonished: “ ‘Consent’ that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse.” Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).
Based on the totality of the circumstances, I have no doubt that Jones did, in fact, “prefer to refuse,” see 501 U.S. at 438, to consent until it became apparent that his constitutional right to refuse was not being honored. At that point in time, Jones had no real alternative but to accede to Detective Binkley's coercion, which had involved seizing Jones, taking his personal possessions, placing him in custody, advising him he was under arrest, refusing to contact counsel for Jones as requested, and informing Jones that he would remain in custody until he either consented or a search warrant for his DNA was obtained.
By way of comparison, in Spagnola, the defendant was stopped for a routine traffic violation and was subsequently asked by Officer Aaron Jones, “ ‘Is it okay if I search your pockets?’ Spagnola said, yes. Jones then asked Spagnola to turn around, place his hands behind his back, and interlace his fingers. Jones again asked for permission to search his pockets, and Spagnola again consented.” 295 Kan. at 1101.
As further recounted by our Supreme Court:
“Spagnola was standing outside of his car in the presence of more than one police officer, one of whom had arrived as backup support. When Spagnola gave his second permission for the search, he was standing with his back to the officers, with his hands behind his back and his fingers interlaced. This was not a posture or an environment in which it can be said that consent was voluntarily given free from coercion.” 295 Kan. at 1108.
Based on these facts, the Supreme Court suppressed contraband found in Spagnola's pockets upon its finding that “Spagnola's consent was given in a highly coercive atmosphere.” 295 Kan. at 1108.
As in Spagnola, 295 Kan. at 1107, “[t]he appropriate inquiry here is whether a reasonable person would feel free to decline the officer's requests or otherwise terminate the encounter. See Florida v. Bostwick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).” In comparison with Spagnola, it is understatement to observe that Jones was not in a posture or an environment in which he was free to decline Detective Binkley's request or otherwise terminate the encounter, although Jones repeatedly declined to consent but to no avail. I would hold the search and seizure which resulted in the recovery of Jones' DNA violated the Fourth Amendment and should have been suppressed. For all of these reasons, I would reverse the judgment of the district court and remand for a new trial.