Cop’s profane tirade gets pot conviction overturned

The Kansas Court of Appeals has overturned a man’s conviction for marijuana dealing after ruling that the arresting officer’s profanity-laced interrogation violated his right to remain silent.

In an opinion released Friday, an appeals panel ruled 2-1 that Lenexa Police Officer Curtis Weber’s tirade could be interpreted as a threat that coerced confessions from Marcus Thiasen Guein Jr. of Kansas City, Mo.

The judges overturned Guein’s convictions and sent the matter back to the Johnson County District Court for a potential retrial.

A Lenexa police spokesman said he had not seen the court opinion and had no immediate comment.

In explaining the ruling, the court published the following exchange between Weber and Guein, which was recorded on video. The profanities appear unaltered in the court opinion:

Weber: “Right now is the time to be honest with me, man, okay? Don’t (expletive deleted) around with me and I ain’t gonna (expletive deleted) around with you, okay? You hear me?”

Guein: “I’m not going to (expletive deleted) around with you.”

Weber: “Listen, man. I’m telling you right now I know what you’re doing out here. I’m going to ask you some questions here in a little bit.”

Guein: “Yes, sir.”

Weber: “Don’t (expletive deleted) with me, okay?”

Guein: “I understand, sir.”

Weber: “You hear me? You don’t screw around with me, I ain’t gonna screw around with you. I’m gonna do what I can to help you out, okay?”

Guein: “Yes, sir.”

Weber: “I’m telling you right now, I know what’s going on, all right? Have a seat.”

Guein was left sitting in the car about 10 minutes, before the officer returned and read him his rights to remain silent and not incriminate himself.

“After carefully reviewing Guein’s interaction with the police officer who questioned him, we agree with Guein that the officer’s forceful admonitions to cooperate when the officer questioned him — admonitions that contained an implied threat of physical harm if Guein did not cooperate — rendered his statements to the officer involuntary and inadmissible,” said the opinion, written by Judge Steve Leben.

The opinion noted that the officer made similar comments to a second suspect in the case.

“Our record doesn’t tell us whether Lenexa officers are trained to provide a warning of the sort given to Guein to suspects on a general basis, but we do know that Officer Weber gave essentially the same warning to both suspects in this case,” Leben wrote.

According to the court record, Weber and his partner spotted Guein’s car and another in the parking lot at a closed Burger King about 1:30 a.m. on Aug. 16, 2014. The officers investigated because they suspected it could be a drug deal in progress.

Smelling a strong odor of marijuana, Weber told Guein, “Dude, you reek of weed.” Guein admitted to having a “small bag” of marijuana hidden in his underwear and gave it to the officer.

Later, he admitted to Weber that he had bought the marijuana for $25 and intended to sell it to the other suspect for $50.

A search of his car turned up a glass jar with more marijuana in it, rolling papers, a pipe and remnants of marijuana cigarettes in the ashtray.

Guein was convicted of possession of marijuana with intent to distribute it and a misdemeanor count of possession of drug paraphernalia. He was sentenced to 18 months probation, with an underlying sentence of 14 months in prison if he violated his terms of probation.

Judge Kathryn Gardner dissented in the decision, saying she didn’t think the officer’s profanity intimidated Guein, a 27-year-old college graduate who lived in a rough area of Kansas City and said he smoked marijuana daily.

“Guein was no monk cloistered in a monastery,” Gardner wrote in her dissenting opinion. “Although the officer’s profane statements may have had a coercive effect on some hypothetical person, the facts do not show the statements had any such effect on Guein.”

“Instead, the facts weigh heavily in favor of finding that Guein’s statement that he had purchased the marijuana for $25 and intended to sell it to Gresham for $50 was the product of Guein’s free and independent will.”

Gardner abbreviated the profanity in her opinion, while Leben explained why he used the raw wording in the majority opinion.

“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,” Leben wrote. “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”

This story was originally published January 20, 2017 at 6:26 PM with the headline "Cop’s profane tirade gets pot conviction overturned."