This week, the Kansas court of appeals released This opinion in the case of State v. Guein. In the majority opinion, Justice Steve Leben inserted a message of caution before getting into the legal terminology:
We want the reader to know that we do recognize that some of the language in our opinion is vulgar enough that it cannot be used on over-the-air television shows. Yet we have used it in a published judicial opinion. We do so because this language carries a certain force that’s not necessarily apparent if we rephrase it. We must judge the effect of the words said — in this case by a police officer — on the person in handcuffs who heard them. To make that judgment and to explain our decision, we must repeat the actual words used and place them in the context in which they were said.
With that introduction, we turn now to the factual and procedural setting in which these issues are presented. We will then address each of the three legal issues Guein raises on appeal, only one of which is successful.
In a nutshell, two Lenexa PD officers observed what they suspected to be a purchase of illegal drugs. They approached the vehicles and were able to detect an odor of marijuana coming from them. After an initial patdown, the defendant was cuffed and given his Miranda warning. After this is when the proverbial f-bombs started dropping. The Court of Appeals ruled 2-1 that the officer’s language amounted to a verbal threat of physical harm which “Effectively Negated the Miranda Warning,” and that statements made and evidence gathered after the officer used such language must be suppressed. The court also ruled that use of the evidence in question could have affected the outcome of the case, reversed the verdict, and remanded for a new trial.
The dissenting judge, Kathryn Gardner, disagreed with the notion that the language was threatening and would affirm the trial court. Some of her arguments in her dissent were responded to in Leben’s opinion.