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NOT DESIGNATED FOR PUBLICATION

No. 122,766

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

GERAD CHANCE HERRERA,

Appellant.

MEMORANDUM OPINION

Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed October 8, 2021. 

Affirmed in part, reversed in part, and sentence vacated in part.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Alexander C. Driskell, assistant county attorney, Jeffery Ebel, county attorney, and Derek 

Schmidt, attorney general, for appellee.

Before WARNER, P.J., CLINE,J., and WALKER, S.J.

PER CURIAM: Gerad Herrera challenges his convictions for five crimes, primarily 

arguing that incriminating evidence found during a pat-down search should have been 

suppressed before trial. We find the district court did not err when it denied Herrera's 

motion to suppress. We thus affirm three of his convictions—possession of 

methamphetamine with no tax stamp, possession of drug paraphernalia, and interference 

with law enforcement—but reverse his remaining convictions and vacate those sentences

based on Kansas Supreme Court caselaw and the agreement of the parties. 
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FACTUAL AND PROCEDURAL BACKGROUND

In January 2019, Officer Michael Baker, a canine handler with the Salina Police 

Department, was on patrol in Salina when he passed a car being driven with an expired 

registration tag. Officer Baker confirmed the registration had expired and turned his 

patrol car around to stop the car. Before he caught up to it, the car parked on the side of 

the street. The car's driver and its passenger—later identified as Herrera—got out and 

began walking away. Officer Baker stopped and began collecting information from the 

driver. He then asked another officer to write a ticket so his dog could conduct a drug 

sniff around the car. 

During the drug sniff, Officer Baker's dog alerted on the car's front passenger 

door. Officer Baker subsequently searched the car and, with her consent, the driver's 

purse, but he found nothing. He then began questioning Herrera. 

Officer Baker asked if Herrera had anything illegal on him. Herrera indicated he 

had a knife on his belt, and Officer Baker escorted him to his patrol car to pat him down

for weapons. Officer Baker removed two action figures sticking out of Herrera's jacket

pockets, patted Herrera down, and asked him to empty his pockets. Herrera picked up the 

action figures and began placing his hand in his right pocket, which had a pocketknife 

clipped to the inside of it. After telling Herrera to stop, Officer Baker removed three 

knives—a fixed-blade knife sheathed on Herrera's belt, the pocketknife clipped inside his 

right pocket, and a third small pocketknife in his pocket—and continued the pat-down. 

As he continued to search Herrera for weapons, Officer Baker felt the bulge of a 

plastic baggie in the coin pocket of Herrera's pants. Herrera told the officer the bulge was 

marijuana; he and Officer Baker both tried to reach for his pocket, resulting in a struggle. 

With the other officer's help, Officer Baker handcuffed Herrera and removed two baggies 

containing methamphetamine from Herrera's coin pocket. As a result of this encounter, 
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the State charged Herrera with possession of methamphetamine, possession of 

methamphetamine without a drug tax stamp (as neither baggie of methamphetamine had 

a drug tax stamp affixed), criminal possession of a weapon by a convicted felon, 

possession of drug paraphernalia, and interference with law enforcement. 

Herrera filed a motion to suppress the evidence obtained through the search, 

arguing Officer Baker lacked probable cause to search him because the dog alerted on the 

car, not on him personally. The district court held an evidentiary hearing on the motion. 

At the hearing, Officer Baker testified about his actions throughout the stop, including his 

decision to search Herrera for weapons and his subsequent discovery of the bulge in 

Herrera's coin pocket. The officer explained that he felt a plastic bag in Herrera's coin 

pocket and believed it "[p]ossibly [contained] illegal drugs," noting that it is common to 

find plastic baggies containing drugs in coin pockets. The district court denied the 

motion, finding that Officer Baker had discovered the drugs during his pat-down of 

Herrera, which was justified to protect the safety of the officers.

The case against Herrera proceeded to trial. After hearing testimony, watching

video footage of the interaction from Officer Baker's bodycam, and observing the knives, 

a jury convicted Herrera of all five charges. The district court imposed a controlling 54-

month prison sentence, ordering the sentences for the weapon- and two 

methamphetamine-possession convictions to be served consecutively, and 12 months'

postrelease supervision. 

DISCUSSION

Herrera appeals, raising several legal and evidentiary challenges to his 

convictions. In its briefing, the State has conceded error in two respects—acknowledging 

that Herrera's methamphetamine and drug tax stamp convictions are multiplicitous, and 

that the Kansas Supreme Court has found the statutory clause giving rise to Herrera's 
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criminal possession of a weapon conviction is unconstitutionally vague. See State v. 

Hensley, 298 Kan. 422, 438, 313 P.3d 814 (2013) (multiplicity); State v. Harris, 311 Kan. 

816, 824-26, 467 P.3d 504 (2020) (vagueness). Thus, the parties agree that Herrera's 

convictions for possession of methamphetamine and criminal possession of a weapon 

must be reversed, and those sentences must be vacated.

We are thus left to consider Herrera's challenges to his remaining three 

convictions: possession of methamphetamine without a drug tax stamp, possession of 

drug paraphernalia, and interference with law enforcement. In challenging these 

convictions, Herrera primarily argues that the district court erred when it denied his 

motion to suppress the evidence—that is, the baggies of methamphetamine—obtained 

during Officer Baker's pat-down search. He also argues that the court erred by not 

providing the jury with a limiting instruction regarding his previous felony conviction 

(which was introduced to prove an element of the criminal possession of a weapon 

charge). And he challenges the sufficiency of the evidence to support his convictions for 

possession of methamphetamine without a tax stamp and interference with law 

enforcement.

For the reasons explained below, we conclude the district court did not err when it 

denied Herrera's motion to suppress, as Officer Baker's pat-down search was reasonable 

and constitutionally permissible. We also find there is sufficient evidence in the record to 

support Herrera's convictions. And though the district court should have provided a 

limiting instruction regarding the use of Herrera's previous conviction, the absence of that 

instruction was not clear error that requires reversal. We thus affirm Herrera's three 

remaining convictions.
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1. The district court did not err when it denied Herrera's motion to suppress.

Herrera first argues the district court erred when it denied his motion to suppress. 

Herrera challenges this ruling in two respects: He asserts that Officer Baker lacked 

probable cause to search him generally, and that Officer Baker exceeded the permissible

scope of the pat-down search for weapons by reaching into his pockets. We do not find 

these arguments persuasive.

We review the factual underpinnings of a district court's decision on a motion to 

suppress evidence for substantial competent evidence and its ultimate legal conclusion de 

novo. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014). When the material facts are 

not in dispute—as here—whether evidence should be suppressed is a question of law 

over which our review is unlimited. State v. Stevenson, 299 Kan. 53, 57-58, 321 P.3d 754 

(2014). Although a defendant initiates a constitutional challenge to a search or seizure by 

filing a motion to suppress the evidence in question, the State has the burden to prove any 

challenged police conduct was permissible. State v. Cleverly, 305 Kan. 598, 605, 385 

P.3d 512 (2016).

The Fourth Amendment to the United States Constitution, made applicable to the 

states through the Fourteenth Amendment's Due Process Clause, protects "[t]he right of 

the people to be secure in their persons, houses, papers, and effects, against unreasonable 

searches and seizures." Section 15 of the Kansas Constitution Bill of Rights provides "the 

same protection from unlawful government searches and seizures as the Fourth

Amendment." State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010).

Both provisions broadly prohibit unreasonable searches and seizures. See State v. 

Christian, 310 Kan. 229, 233-34, 445 P.3d 183 (2019). But they also "inferentially 

allow[] 'reasonable' ones." 310 Kan. at 234. Reasonable searches are executed under a 

valid warrant or justified by one of the recognized exceptions to the warrant requirement. 
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310 Kan. at 234. Two of these exceptions are relevant in this case: the stop-and-frisk 

exception and the plain-feel exception. 

Under the stop-and-frisk exception, an officer conducting an investigative stop

may pat down a person for weapons if the officer reasonably suspects doing so is 

necessary for the officer's safety. See K.S.A. 22-2402(1)-(2); State v. Bannon, 306 Kan. 

886, 892, 398 P.3d 846 (2017). The need to conduct a limited search for weapons must be 

supported by more than a mere hunch; it requires a particularized and objective basis for 

the suspicion. See State v. Pollman, 286 Kan. 881, Syl. ¶ 4, 190 P.3d 234 (2008)

(defining reasonable suspicion). And the officer's actions must conform to the limited 

purpose of the frisk. Accord State v. Spagnola, 295 Kan. 1098, 1106-07, 289 P.3d 68 

(2012) (searching pockets exceeded scope of frisk because it was not directed toward 

confirming or dispelling officer-safety concerns).

The plain-feel exception applies when, during an otherwise lawful encounter, an 

officer inadvertently discovers evidence whose incriminating character is immediately 

apparent. State v. Lee, 283 Kan. 771, Syl. ¶ 6, 156 P.3d 1284 (2007). "'Immediately 

apparent'" requires probable cause to believe the discovered object is evidence of a crime. 

283 Kan. at 779. Probable cause entails a reasonable belief, based on the officer's 

knowledge and the surrounding facts and circumstances, that the person being searched 

committed a specific crime. Smith v. Kansas Dept. of Revenue, 291 Kan. 510, Syl. ¶ 1, 

242 P.3d 1179 (2010).

Neither party disputes that Officer Baker could lawfully conduct an investigatory 

stop. And given Herrera's admission that he had multiple knives, including a knife 

clipped to his pocket that the officer could observe, the parties agree Officer Baker had 

reasonable suspicion to pat down Herrera for weapons. But Herrera argues the officer 

lacked probable cause to continue searching him after finding the three knives. And he 

asserts that Officer Baker exceeded the bounds of the frisk when he asked Herrera if he 
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possessed anything illegal and by reaching into his pockets. The State asserts the plainfeel exception permitted Baker to seize the drugs.

To Herrera's first point, we disagree that Officer Baker's safety concerns dissipated 

when the officer found the three knives Herrera admitted to possessing. The Constitution 

did not require Officer Baker to accept Herrera's statements; rather, he was allowed to 

continue his pat-down search until his concerns were reasonably allayed. 

Nor do we find the fact that Officer Baker removed two action figures that were 

sticking out of Herrera's jacket pockets invalidates the search. It is true that pat-down 

searches must generally be limited to outer clothing. See Spagnola, 295 Kan. at 1106-07. 

But Officer Baker's limited removal of those items, which was followed by Herrera's 

removal of the other contents of his jacket pockets, did not convert the weapons frisk into 

a search—particularly as one of the knives was clipped to the right pocket. This action 

was a reasonable effort to determine what other weapons, if any, Herrera had that might 

jeopardize the officers or others at the scene.

Herrera argues that Officer Baker transformed the pat-down into a general search 

for evidence when the officer asked Herrera if he possessed anything illegal, citing State 

v. Burton, 37 Kan. App. 2d 916, 159 P.3d 209 (2007). In Burton, a police officer 

conducting an unjustified frisk asked the defendant if he possessed anything illegal, 

resulting in the discovery of marijuana. The court held the drugs were inadmissible 

because the officer's question turned the weapon frisk into a general search for evidence. 

And a causal connection existed between the unlawful search and discovery of the 

marijuana, requiring its suppression. 37 Kan. App. 2d at 923.

The facts here are markedly different from Burton. Officer Baker asked Herrera if 

he possessed anything illegal while he was searching him for—and found several—

weapons. In other words, Officer Baker asked his question not as part of a fishing 
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expedition unmoored to any constitutional justification, but with reasonable suspicion 

that justified the pat-down. 

After reviewing the totality of the circumstances before us, we agree with the State 

that this case fits squarely within the plain-feel exception to the warrant requirement. 

Officer Baker was conducting a legal frisk for weapons when he felt a bulge in the coin 

pocket of Herrera's pants. The officer indicated that, in his experience, people often carry 

illegal drugs in baggies in their coin pockets, and the bulge felt like it matched this 

description. More importantly, Herrera informed the officer that the bulge was an illegal 

substance—marijuana. Though the baggies actually contained methamphetamine, 

Herrera's statement provided the necessary probable cause to search Herrera's coin pocket 

and remove the baggies. 

The district court did not err by denying Herrera's motion to suppress.

2. The evidence in the record is sufficient to support Herrera's convictions of 

possession of methamphetamine without a drug tax stamp and interference with 

law enforcement. 

Herrera also argues the evidence at trial was insufficient to support his convictions 

for possession of methamphetamine without a drug tax stamp and interference with law 

enforcement. He asserts that the record does not show that he knowingly possessed 

methamphetamine—the mental culpability required for the crime—because he told 

Officer Baker he had marijuana, not methamphetamine, in his pocket. And he asserts the 

State failed to show that he substantially interfered with the officers' duties. We find 

neither argument persuasive. 

When a defendant challenges the sufficiency of the evidence, an appellate court 

reviews the evidence "in a light most favorable to the State to determine whether a 

rational factfinder could have found the defendant guilty beyond a reasonable doubt." 
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State v. Rosa, 304 Kan. 429, Syl. ¶ 1, 371 P.3d 915 (2016). The court does not reweigh 

the evidence, resolve evidentiary conflicts, or reassess witness credibility. State v. Keel, 

302 Kan. 560, 566, 357 P.3d 251 (2015). Instead, we examine all the evidence presented 

at trial—both direct and circumstantial—and any reasonable inferences that evidence 

yields to determine if there is evidence in the record supporting each element of the 

crimes charged. See State v. Dobbs, 297 Kan. 1225, 1238, 308 P.3d 1258 (2013).

Herrera first argues the evidence was insufficient to convict him of possession of 

methamphetamine without a drug tax stamp, as he did not knowingly possess that 

substance. It is true that Herrera informed Officer Baker that the substance in his coin 

pocket was marijuana, not methamphetamine. But that does not mean the jury had to 

believe this statement. To the contrary, there was ample evidence in the record to show 

Herrera knowingly possessed the methamphetamine. Most notably, Officer Baker found 

the methamphetamine in Herrera's pocket, and the jury could infer that Herrera knew 

what he was carrying. In short, evidence in the record supports the elements of the 

offense. See K.S.A. 2020 Supp. 21-5706(a); K.S.A. 79-5208.

The evidence was similarly sufficient to support Herrera's conviction of 

interference with law enforcement. Herrera argues there was no evidence that he 

substantially hindered Officer Baker in the execution of his duties. See State v. Brown, 

305 Kan. 674, 690, 387 P.3d 835 (2017) (crime of interference with law enforcement 

requires a showing that the defendant "'substantially hindered or increased the burden of 

the officer in carrying out his official duty'"). Herrera asserts that when he reached into 

his pocket to retrieve the baggies, he was trying to help—not hinder—Officer Baker. 

While Herrera points to one inference the jury could have drawn from these facts, 

it is by no means the only reasonable inference available. The jury could have also 

concluded that Herrera's actions—attempting to reach into his pocket against Officer 

Baker's instructions, resulting in a struggle with Officer Baker that required another 
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officer's assistance and eventually led to Herrera being handcuffed—substantially 

interfered with the officers' ability to conduct the investigation. 

The evidence in the record was sufficient to support Herrera's convictions of 

possession of methamphetamine without a drug tax stamp and interference with law 

enforcement. 

3. Though a limiting instruction was warranted in this case, the absence of that 

instruction was not clear error.

At trial, Herrera stipulated that he had a 2016 felony conviction—an element of 

the offense of criminal possession of a weapon (which we reverse based on the State's 

concession and the Kansas Supreme Court's intervening decision in Harris). But Herrera 

did not request, and the district court did not provide, a limiting instruction as to what the 

jury could, and could not, draw from that evidence. In his final argument on appeal, 

Herrera asserts the failure to provide a limiting instruction was a clear error that requires 

a new trial. Although we agree the instruction likely should have been provided, we do 

not find that this error requires reversal. 

Appellate courts employ a multistep analysis when reviewing the omission of a 

jury instruction. This review includes two main components: error and reversibility. See 

State v. Kleypas, 305 Kan. 224, 301-02, 382 P.3d 373 (2016); State v. Williams, 295 Kan. 

506, Syl. ¶ 1, 286 P.3d 195 (2012). A district court errs when it fails to provide an 

instruction that is both legally and factually appropriate. When a district court has 

committed an instructional error, appellate courts must determine whether that error 

requires reversal. 295 Kan. 506, Syl. ¶ 4. And our standard for reversibility varies 

depending on whether the challenging party requested the instruction at trial. See 

Kleypas, 305 Kan. at 302. When, as here, no request was made, the failure to provide the 

instruction is reversible only when it was clearly erroneous—that is, when the appellate 
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court is firmly convinced the jury would have reached a different conclusion if the 

instruction had been given. Williams, 295 Kan. 506, Syl. ¶ 5.

Herrera argues that a limiting instruction would have been legally and factually 

appropriate to constrain the jury's consideration of his previous conviction. And the State 

concedes that this is likely true, as the Kansas Supreme Court has often assumed, without 

deciding, that courts should provide a limiting instruction whenever evidence of a prior 

crime is admitted, even when that prior crime is an element of the current offense. 

See State v. Chavez, 310 Kan. 421, 436, 447 P.3d 364 (2019); State v. Sims, 308 Kan. 

1488, 1505, 431 P.3d 288 (2018), cert. denied 140 S. Ct. 126 (2019). We are thus left to 

consider whether the omission of the instruction was clearly erroneous. 

We conclude it was not. The evidence against Herrera in this case was strong. He 

was found with baggies of methamphetamine in the coin pocket of his pants. He 

informed the officers that he had drugs in his pocket (though he claimed it was marijuana, 

not methamphetamine) and struggled with the officers to prevent them from retrieving 

that evidence. This encounter was caught on video by way of an officer's bodycam, with 

the video shown to the jury. And though the district court did not provide a limiting 

instruction regarding Herrera's previous conviction, both attorneys in closing argument 

limited their brief discussions of that fact to the weapon charge. In short, after reviewing 

the record, we are firmly convinced the jury would not have reached a different verdict if 

the court had provided a limiting instruction. 

We reverse Herrera's convictions for criminal possession of a weapon and 

possession of methamphetamine, and we vacate the sentences for those offenses. We 

affirm Herrera's convictions of possession of methamphetamine without a drug tax 

stamp, possession of drug paraphernalia, and interference with law enforcement. 

Affirmed in part, reversed in part, and sentence vacated in part.