State v. Ellis ( 2020 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 120,046
STATE OF KANSAS
Appellee,
v.
SHELBIE ELLIS,
Appellant.
SYLLABUS BY THE COURT
1.
A law enforcement officer who has available objective, specific, and articulable
facts creating a suspicion that an individual needs help or is in peril may stop and
investigate the situation.
2.
If an individual has been stopped subsequent to a legitimate suspicion that she or
he needs aid, the officer may take appropriate action to render assistance.
3.
Once the officer is assured that an individual is not in peril or is no longer in need
of assistance, any actions beyond that constitute a seizure, implicating the protections
provided by the Fourth Amendment to the United States Constitution.
1
4.
A law enforcement officer's mere request for identification or identifying
information generally will not constitute a seizure.
5.
The nature of a police-citizen encounter can change, and what may begin as a
consensual encounter can transform into an investigative detention if the police conduct
changes.
6.
Police may not lawfully extend a welfare check by running a warrant check on an
individual who is the subject of the check unless some other circumstances support
prolonging the check and converting it into a detention.
7.
Under the attenuation doctrine, the poisonous taint of an unlawful search or
seizure may dissipate when the connection between unlawful police conduct and
challenged evidence becomes attenuated.
8.
The State bears the burden of establishing sufficient attenuation to purge the taint
of an illegal search or seizure and avoid application of the exclusionary rule.
9.
To demonstrate that the taint of an illegal seizure has dissipated, the government
must prove, from the totality of the circumstances, a sufficient attenuation or break in the
2
causal connection between the illegal detention and the discovery of incriminating
evidence.
10.
The development of probable cause to arrest an individual, after a police officer's
discovery of evidence of a crime when the officer has illegally detained an individual,
does not attenuate the taint of an illegal seizure and allow admission of evidence obtained
in a later search.
11.
Probable cause flowing directly from an unlawful seizure does not break the
causal connection between the Fourth Amendment violation and a search and is therefore
not an intervening circumstance.
12.
Once a law enforcement officer has legal grounds to conduct an investigatory
detention, the officer is free to check an individual for outstanding warrants as part of the
investigation. If a warrant is discovered, then an arrest may follow and evidence
consequent to the arrest is admissible.
Review of the judgment of the Court of Appeals in 57 Kan. App. 2d 477, 453 P.3d 882 (2019).
Appeal from Lyon District Court; W. LEE FOWLER, judge. Opinion filed August 7, 2020. Judgment of the
Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed, and the
case is remanded to the district court with directions.
Rick Kittel, of Kansas Appellate Defender Office, was on the briefs for appellant.
3
Laura L. Miser, assistant county attorney, and Marc Goodman, county attorney, and Derek
Schmidt, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
ROSEN, J.: Shelbie Ellis appeals from the denial of her motion to suppress
evidence relating to possessing drugs and from her subsequent conviction. The Court of
Appeals reversed, and this court granted the State's petition for review.
FACTUAL AND PROCEDURAL HISTORY
On the afternoon of January 20, 2018, an employee of a Casey's General
Store in Emporia called in a police report that a woman had been in a store
restroom stall for about 45 minutes and had been seen at one point on her hands
and knees. Police officers Eric Law and William Kent were dispatched to the store
for a welfare check, with Kent arriving at the scene first. The employee told Kent
that the woman had told her she was "fine."
According to Officer Kent's affidavit, he went to the restroom door,
knocked, and announced, "Police department." He told the woman the business
staff was concerned about her being in the restroom for so long and had asked the
police to check on her. According to Kent, the woman replied "she was feeling
well and asked if she needed to come out." Kent asked her to step out so he "could
see if she was ok." She told him "she had stomach issues due to her eating
something."
4
Kent asked to see her driver's license, and he identified her as Shelbie Ellis.
He held onto her license and placed a call to dispatch asking them to run the
license information for possible outstanding warrants. Ellis told Kent that she and
a friend were on their way to Michigan from Stafford, Kansas. She said that her
friend was waiting in the car for her.
Kent directed her to step outside the store to see whether the friend was still
around, and at about this time Officer Law arrived at the scene. Ellis walked
around to the south of the building and then said the friend must have left,
probably trying to find characters for a mobile Pokémon game. Kent then directed
Ellis to call the friend to come get her. While this was going on, Kent received a
report from the police dispatcher that Ellis had a possible outstanding warrant
from Rice County, Kansas, for a probation violation.
As Ellis was attempting to call her friend, Kent observed her hands shaking.
He asked her if she had been using drugs that day. She said that she had not but
she was aware her hands were shaking. Kent then asked her if he could search her
bag for drugs. She replied, "Please don't." He followed up by asking what she had
been doing in the restroom. She replied, "I would never use drugs in a public
restroom, but I do have drugs in my purse. I have meth and a pipe in my purse."
After Ellis finally contacted the driver and asked him to come back for her,
based on a confirmation of the warrant report from the dispatcher, Kent placed her
in handcuffs and read her her Miranda rights. He escorted Ellis to the back of his
patrol car and then searched her wallet, where he found a clear plastic baggie
containing a crystalline substance. In her makeup bag, he found a glass pipe
wrapped inside two stockings. He then transported her to the county jail, where
5
she was confined on the outstanding warrant and the pending drug charges. A field
kit gave a positive test for methamphetamine for the crystalline substance and
residue in the glass pipe.
On January 22, 2018, the State filed a complaint charging Ellis with one
count of possession of methamphetamine and one count of possessing drug
paraphernalia. Through counsel, Ellis filed a motion to suppress, arguing that the
seizure and subsequent search exceeded the scope of the encounter. The State filed
a response, arguing that the attenuation doctrine set out in Utah v. Strieff, 579 U.S.
___, 136 S. Ct. 2056, 195 L. Ed. 2d 400 (2016), legitimized the seizure.
Following an evidentiary hearing, the district court denied the motion to
suppress. The court also denied a motion to reconsider. Ellis elected to go to a trial
before the bench, where she again objected to the introduction of the drug
evidence. The court found her guilty of both counts. On August 15, 2018, the court
sentenced her to a standard term of 13 months of incarceration with 12 months of
postrelease supervision for the methamphetamine charge and a concurrent term of
6 months for the paraphernalia charge. The court then placed her on probation for
a period of 18 months. She took a timely appeal to the Court of Appeals.
The panel of the Court of Appeals unanimously reversed, holding that the
investigatory detention exceeded the scope of the welfare check and the evidence
obtained as a result should have been suppressed. State v. Ellis, 57 Kan. App. 2d
477, 489-90, 453 P.3d 882 (2019). This court granted the State's petition for
review and noted Ellis' response.
6
The State urges this court to decide that the Court of Appeals either ignored
or misunderstood the attenuation doctrine, which states that, following a legitimate
seizure, the discovery of a valid arrest warrant legitimizes further detention and
consequent searches. For the reasons set out below, we disagree with the position
that the State advocates.
ANALYSIS
When a party appeals a ruling based on the attenuation doctrine, the
appellate court considers questions of fact that it reviews to determine whether the
facts are supported by substantial competent evidence. The appellate court then
reviews the district court's ultimate legal conclusion de novo. State v. Christian,
310 Kan. 229, 235, 445 P.3d 183 (2019); see State v. Hanke, 307 Kan. 823, 827,
415 P.3d 966 (2018) (general standard of review for reviewing district court
decision on motion to suppress).
We will initially address whether Officer Kent lawfully engaged with Ellis
and requested her identification and will conclude that he did. We will then
address whether Kent lawfully detained Ellis and will conclude that he did not.
Finally, we will address whether the attenuation doctrine mitigates the unlawful
detention and will conclude that it does not. We will conclude that the Court of
Appeals correctly held that the evidence used against Ellis should have been
suppressed.
The Fourth Amendment to the United States Constitution provides: "The
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated." Section 15 of
7
the Kansas Constitution Bill of Rights contains similar language and provides "the
same protection from unlawful government searches and seizures as the Fourth
Amendment." See State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014).
This court first recognized the concept of a public safety stop in State v. Vistuba,
251 Kan. 821, 840 P.2d 511 (1992), disapproved in part on other grounds by State v.
Field, 252 Kan. 657, 847 P.2d 1280 (1993). In that case, the officer testified that she
observed erratic driving and was concerned that the driver might be impaired, but the
officer specifically stated that she suspected no criminal activity from her observations.
The Supreme Court determined the stop was lawful and held: "[A] civil or criminal
infraction is not always essential to justify a vehicle stop. Safety reasons alone may
justify the stop, if the safety reasons are based on specific and articulable facts." 251
Kan. at 824.
In State v. Gonzalez, 36 Kan. App. 2d 446, 456, 141 P.3d 501 (2006), the Court of
Appeals adopted a three-part test to determine the legality of a public safety stop. First, as
long as there are objective, specific, and articulable facts from which an experienced law
enforcement officer would suspect that a citizen needs help or is in peril, the officer has
the right to stop and investigate. Second, if the citizen needs aid, the officer may take
appropriate action to render assistance. Third, once the officer is assured that the citizen
is not in peril or is no longer in need of assistance, any actions beyond that constitute a
seizure, implicating the protections provided by the Fourth Amendment. This court has
never adopted the Gonzalez test, but, in State v. Marx, 289 Kan. 657, 662-64, 215 P.3d
601 (2009), we discussed the test without expressly applying, adopting, or rejecting it.
We deem the Gonzalez test appropriate in analyzing the legality of the search in the
present case.
8
While not a vehicle stop, Kent's contact with Ellis was justified by safety reasons
based on specific and articulable facts. The testimony was uncontroverted that Kent
initiated his contact with Ellis in response to a store employee's concerns for Ellis' health
or safety. Ellis had spent an unusually long time in the restroom and had been observed
on her hands and knees on the floor. When he arrived, Kent inquired whether she was all
right, consistent with an investigation into her wellbeing. Ellis replied that she was
feeling generally well but was dealing with some digestive issues. This interaction was
lawful.
Kent did not stop with the welfare inquiry; he proceeded to ask Ellis for
identification. This was also lawful. This court has held that a law enforcement officer's
mere request for identification or identifying information generally will not constitute a
seizure. See State v. Pollman, 286 Kan. 881, 888, 190 P.3d 234 (2008). Kent viewed
Ellis' license and determined that she was who she purported to be and was not a minor or
using false identification. At this time, the welfare check had been completed. The
officer's actions up to this point were lawful.
The nature of a police-citizen encounter can change, however, and what may begin
as a welfare check can transform into an investigative detention if the police conduct
changes. See, e.g., Pollman, 286 Kan. at 888-89 (voluntary encounter); City of Topeka v.
Grabauskas, 33 Kan. App. 2d 210, 99 P.3d 1125 (2004) (community caretaking
function).
The evidence is compelling that Kent unlawfully detained Ellis. He kept her
driver's license, he escorted her out of the restroom and out of the store, and he directed
her to place calls for a ride. This was clearly more than a welfare check; she reasonably
would have felt she was being subject to a criminal investigation and she was not free to
9
leave. Her testimony at the hearing on the motion to suppress was that she did not feel
free to leave after she handed Kent her license and she was not free to ask for her license
back.
In Pollman, we held that an officer's retention of an identification card is one
factor to be considered in applying the totality of the circumstances test for whether an
interaction was consensual, and, without offsetting circumstances, that factor may mean a
reasonable person would not feel free to leave or otherwise terminate an encounter with
the officer. 286 Kan. at 889. Here, there were no apparent offsetting circumstances that
might have led Ellis to believe she was free to end the contact with Kent.
Furthermore, the presence of more than one officer increases the coerciveness of
an encounter, and, although the presence of two uniformed and armed officers does not
automatically transform every police-citizen encounter into a nonconsensual one, it is a
relevant factor for courts to consider in determining whether a citizen's interaction with
law enforcement is consensual. United States v. Hernandez, 847 F.3d 1257, 1266 (10th
Cir. 2017). Officer Law arrived while Kent was escorting Ellis out of the store, and the
presence of two police officers for what was supposed to be a welfare check on a possibly
ill customer would certainly have given Ellis reason to believe she was being detained
and was not free to leave.
In order for an officer to go beyond a voluntary encounter or a public safety check
and detain a person for further investigation, the officer must have "'reasonable suspicion
the seized individual is committing, has committed, or is about to commit a crime or
traffic infraction. [Citations omitted.]'" State v. Chapman, 305 Kan. 365, 370, 381 P.3d
458 (2016).
10
This case does not involve a traffic stop, but it involves the scope of an
investigation and warrant check that the police may undertake when they have no
indication of criminal activity of a particular individual. In that respect, it resembles the
circumstances in State v. Damm, 246 Kan. 220, 787 P.2d 1185 (1990), where this court
reviewed evidence produced following a vehicle stop after an officer observed its
taillights were defective. After he stopped the car, the officer demanded identification
from the driver and his two passengers. The check on one of the passengers revealed an
outstanding arrest warrant, whereupon the officer arrested the passenger and then
searched the car. The search turned up drugs and related paraphernalia, and the officer
arrested all three occupants. This court suppressed the evidence, holding:
"The officer in this case had no reasonable suspicion that there were outstanding
warrants for the passengers. He had no report of the commission of a crime, saw nothing
within the car which would indicate to him that the occupants had committed any
offense, and had no reasonable justification for requiring identification of the passengers
and running record checks on them. The seizure of the three occupants of the vehicle
while 'routine record checks' were made of all occupants was unreasonable.
"Without the unreasonable detention, the officer had no reason to arrest [the
passengers or the driver]. Without the arrest, there could be no search. Without the
search, there was no evidence against [the defendant driver]. The detention and search
being unlawful, the evidence is inadmissible as fruit of the poisonous tree. [Citations
omitted.]" 246 Kan. at 224-25.
Our caselaw makes it clear that police may not lawfully extend a welfare check by
running a warrant check on an individual who is the subject of the check unless some
other circumstances support prolonging the check and converting it into a detention.
11
Here, Kent had no reasonable suspicion that Ellis was committing, had committed,
or was about to commit a crime. Kent testified that he saw no evidence of criminal
activity and that Ellis assured him that she was not in need of assistance. Kent
nevertheless retained her license and placed a call to dispatch for the express purpose of
extending his investigation into whether she had any outstanding warrants. He directed
her to go outside and call for someone to pick her up, and he interrogated her about drug
use and told her he wanted to search her belongings. All of these activities broke the
chain of lawful conduct that began when he responded to a welfare call.
The district court judge in the present case, however, attached no importance to
Kent retaining Ellis' license after he confirmed that she was in no danger or in need of
medical attention. The judge declared that, once Ellis handed him her identification, Kent
was free to perform a record check on her. At the hearing on Ellis' motion to reconsider,
the judge went further, saying that Kent "cajoled her out of the bathroom" and there was
nothing unlawful about then checking to see if she "had some pick up order or
something."
In light of the holdings of this court and the Court of Appeals, the district court's
understanding of the law was incorrect. Checking to see if Ellis "had some pick up order"
exceeded the scope of the safety check. It was completely unnecessary to serve the
purpose for which Kent was dispatched, and it converted the stop into an investigatory
stop and search without reasonable suspicion of criminal activity.
Having determined that Kent's conduct constituted an unlawful seizure and
consequent search, we next consider whether the evidence should have been suppressed.
12
Suppression results from applying the exclusionary rule under which a court may
suppress the "primary evidence obtained as a direct result of an illegal search or seizure"
and "evidence later discovered and found to be derivative of an illegality"—the so-called
"'fruit of the poisonous tree'"—if it finds officers obtained evidence in violation of the
Fourth Amendment. Segura v. United States, 468 U.S. 796, 804, 104 S. Ct. 3380, 82 L.
Ed. 2d 599 (1984); see Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9
L. Ed. 2d 441 (1963) (explaining fruit of the poisonous tree doctrine); State v.
Deffenbaugh, 216 Kan. 593, 598, 533 P.2d 1328 (1975) (same).
But "'the exclusionary rule has never been interpreted to proscribe the use of
illegally seized evidence in all proceedings or against all persons.'" Brown v. Illinois, 422
U.S. 590, 600, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975) (quoting United States v.
Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 38 L. Ed. 2d 561 [1974]); see Christian, 310
Kan. at 235.
The exclusionary doctrine has four major exceptions: (1) when police acted in
"good faith" reliance on legal authority, such as warrants, statutes, or caselaw; (2) when
subsequent information was gathered from a source independent of the poisoned tree; (3)
when the information would have been inevitably discovered, regardless of the illegality;
or (4) when there has been sufficient attenuation between the illegality and the discovery
of the evidence such that the taint of the illegality has been dissipated. Herring v. United
States, 555 U.S. 135, 142-44, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009) (good faith);
Murray v. United States, 487 U.S. 533, 537, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988)
(independent source); Nix v. Williams, 467 U.S. 431, 443-44, 104 S. Ct. 2501, 81 L. Ed.
2d 377 (1984) (inevitable discovery); Hudson v. Michigan, 547 U.S. 586, 593, 126 S. Ct.
2159, 165 L. Ed. 2d 56 (2006) (attenuation doctrine).
13
It is upon the last of these exceptions that the State seeks to hang its hat in this
case. It argues that the discovery of an outstanding warrant attenuated the illegality of the
detention and legitimized arresting Ellis and subsequently searching her, resulting in the
discovery of drugs and paraphernalia.
Under the attenuation doctrine, the poisonous taint of an unlawful search or
seizure dissipates when the connection between the unlawful police conduct and the
challenged evidence becomes attenuated. State v. Jefferson, 297 Kan. 1151, 1162, 310
P.3d 331 (2013). The State bears the burden of establishing sufficient attenuation to
purge the taint of an illegal search or seizure and avoid application of the exclusionary
rule. To demonstrate that the taint of an illegal seizure has dissipated, the government
must prove, from the totality of the circumstances, a sufficient attenuation or break in the
causal connection between the illegal detention and the conduct leading to the discovery
of incriminating evidence. See Jefferson, 297 Kan. at 1162.
In Utah v. Strieff, 579 U.S. ___, 136 S. Ct. 2056, 2061, 195 L. Ed. 2d 400 (2016),
the United States Supreme Court explored and further explained the attenuation doctrine.
Strieff involved a police-citizen encounter that was an investigatory detention from the
outset. While conducting intermittent surveillance of a residence identified in an
anonymous tip about drug activity, a police officer observed the defendant leave the
residence. Believing there was reasonable suspicion that the defendant was involved in
criminal activity, the officer stopped him in a nearby parking lot. The officer obtained his
identification, checked with the dispatcher, and learned of an outstanding arrest warrant
for the defendant. The officer arrested him and searched him, finding drugs and drug
paraphernalia.
14
In the resulting criminal proceedings, the defendant moved to suppress the
evidence, arguing that the police officer lacked reasonable suspicion for the stop. The
district court denied the motion, finding that the existence of a valid arrest warrant
sufficiently attenuated the connection between the stop and the discovery of the
contraband. The Utah Court of Appeals affirmed, but the Utah Supreme Court reversed,
holding that only a defendant's voluntary act could sufficiently break the connection
between an illegal search and evidence subsequently discovered. The United States
Supreme Court granted certiorari to apply the attenuation doctrine to the facts of the case,
assuming without deciding that the initial stop was unconstitutional.
The Strieff Court held that an officer's discovery of a valid, preexisting arrest
warrant attenuated the connection between an unlawful investigatory stop and drug-
related evidence seized from the defendant during a search incident to arrest. 136 S. Ct. at
2062-63. Under this doctrine, evidence obtained through an unconstitutional seizure is
admissible if the connection between the unconstitutional police conduct and the
discovery of the evidence is remote or has been sufficiently interrupted by an intervening
circumstance, so long as the police did not commit the misconduct purposefully or
flagrantly. Particularly relevant to our present case is that, in Strieff, the stop was made
consequent to a bona fide criminal investigation. This court recognized and applied
Strieff in State v. Tatro, 310 Kan. 263, 445 P.3d 173 (2019), and Christian, 310 Kan. 229.
The State in the present case urges this court to apply the attenuation doctrine as
articulated in Strieff to preserve the admissibility of the seized evidence. The State
complains that a recent line of cases from this court and the Court of Appeals essentially
eviscerates the attenuation doctrine. Despite the State's passionate argument, we conclude
that the facts of this case render application of the attenuation doctrine inappropriate.
15
No bright-line rule defines when the attenuation doctrine applies. Courts must,
instead, examine the facts of each case to determine whether the circumstances attenuate
the taint of illegality. Christian, 310 Kan. at 235.
The Strieff Court identified three nonexclusive factors for determining whether the
attenuation doctrine applies. First, courts look to the temporal proximity between the
unconstitutional conduct and the discovery of incriminating evidence to determine how
closely the discovery of the evidence was linked to the unconstitutional seizure. Second,
courts consider intervening circumstances. Third, courts examine the purpose and
flagrancy of the official misconduct. No single factor is controlling, and other factors
may also be relevant to the analysis. See Strieff, 236 S. Ct. at 2062; Christian, 310 Kan.
229, Syl. ¶ 5.
We now apply the three Strieff factors to the facts of the present case. It should be
noted that the district court made no ruling on attenuation or the Strieff factors, instead
deciding that Kent's conduct was completely lawful and they had a right to run Ellis'
license to see if she "had some pick up order or something."
a. Temporal proximity
This factor tends to support suppression. Kent testified that the encounter outside
the store lasted "a few minutes," or "[a]round five minutes." Law confirmed Kent's
testimony that no more than 10 minutes elapsed between the encounter at the store
bathroom and the warrant confirmation and arrest.
A finding of attenuation is not generally appropriate unless significant time
elapses between an unlawful act and when law enforcement obtains the evidence.
16
Christian, 310 Kan. 229, Syl. ¶ 6. In Strieff, the Supreme Court held that the temporal
factor does not favor attenuation unless "'substantial time'" elapses between an unlawful
act and when the evidence is obtained, and the passage of only "minutes" "counsels in
favor of suppression." 136 S. Ct. at 2062. The Court cited to Brown v. Illinois, 422 U.S.
590, 604-05, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975), where a time interval of "less than
two hours" separated the unconstitutional arrest and the resulting incriminating statement,
and the short time interval was a factor supporting suppression.
Here, the time lapse was, at most, 10 minutes. In fact, the district court, in ruling
against suppression, found it was "a very short period of time" between the detention and
the receipt of the incriminating warrant information. The passage of so little time weighs
heavily in favor of suppression in this case.
b. Intervening circumstances
This factor, at first blush, weighs heavily in favor of the State.
The discovery of an arrest warrant can be an intervening factor that "strongly
favors the State." See Strieff, 136 S. Ct. at 2062. To a significant degree, it is the
preexisting nature of the warrant that attenuates the taint of the unconstitutional seizure.
Tatro, 310 Kan. at 272. The Strieff Court explained that a warrant is a judicial mandate
requiring that an officer conduct a search or make an arrest, and the officer has a duty to
carry out its provisions. 136 S. Ct. at 2062. This means that a valid warrant that is
unconnected to the stop independently compels the officer to make an arrest, and that
officer does not exercise discretion in executing the order.
17
The problem for the State in the present case is that Kent was already engaging in
an unconstitutional criminal investigation of Ellis before he received information about
the possible warrant. He continued to exercise control over her, escorting her (or, in the
words of the district court, "cajol[ing] her") outside the store and directing her to call for
her ride, before the warrant was confirmed. Under the State's theory, police could
approach random people on the street, demand their identification cards, and run warrant
checks on them. If no warrant came up, then the detainee would be released—no harm,
no foul. If a warrant came up, then the warrant would attenuate the unconstitutional stop
and justify arrests and searches incident thereto. The police could routinely carry out
criminal investigatory detentions of all citizens without risking suppression of discovered
evidence.
We specifically commented on this undesirable result in State v. Moralez, 297
Kan. 397, 415, 300 P.3d 1090 (2013). While Strieff abrogated a portion of Moralez that
held the discovery of a preexisting warrant carries little weight when applying the
attenuation doctrine, Strieff did not abrogate the other portions of Moralez. See State v.
Sanders, 310 Kan. 279, Syl. ¶ 13, 445 P.3d 1144 (2019).
This court has held that the development of probable cause to arrest after a police
officer's discovery of evidence of a crime when the officer has illegally detained an
individual does not attenuate the taint of an illegal seizure and allow admission of
evidence obtained in a later search. The probable cause flows directly from the unlawful
seizure and does not break the causal connection between the Fourth Amendment
violation and the search. Probable cause developed in such a way is, therefore, not an
intervening circumstance. Christian, 310 Kan. 229, Syl. ¶ 7.
18
In Christian, the Court of Appeals held that the initial investigatory stop was not
justified based on reasonable suspicion. State v. Christian, No. 116,133, 2017 WL
3947406, at *8 (Kan. App. 2019) (unpublished opinion). Because the State did not cross-
petition for review of that holding, the issue was not before this court and the case was
decided with the understanding that the initial detention and subsequent arrest were
unlawful. 310 Kan. at 234.
We held that detaining the defendant for an expired tag and arresting him for no
proof of insurance were not ministerial acts consistent with the officer's duty to carry out
the provisions of an arrest warrant. They were, instead, discretionary acts carried out in
the officer's investigatory law enforcement role. Christian, 310 Kan. at 238. The grounds
for detaining the defendant arose from and were directly related to the unlawful initial
detention. 310 Kan. at 238. "Discovering evidence of a crime when that discovery flows
directly from the unconstitutional seizure does not attenuate the taint of the Fourth
Amendment violation." 310 Kan. at 239.
Under Christian, Tatro, and Moralez, the discovery of an outstanding warrant was
not an attenuating factor in this case. Kent was detaining Ellis and conducting an
unreasonable criminal investigation of her before the so-called attenuating factor came
into play. The discovery of a warrant under these circumstances does not satisfy the
second factor of Strieff, an attenuating intervening circumstance.
c. Purpose and flagrancy of police misconduct
It has been the clearly stated law of this state since at least 1992 that public safety
or welfare checks based on specific and articulable facts are distinct from stops based on
reasonable suspicion of criminal activity. See, e.g., Vistuba, 251 Kan. at 824. Our
19
appellate courts have repeatedly held that a public safety check must end upon a
determination that the individual who has been stopped is not in need of assistance.
Whether purposeful or flagrant misconduct weighs in favor of suppression turns
on multiple considerations, including whether the officer acted in good faith, committed
multiple unconstitutional acts following the unconstitutional seizure, or acted as part of a
systemic and recurrent pattern of police misconduct. The officer's subjective state of
mind weighs heavily in evaluating good faith. Courts will generally find purposeful and
flagrant misconduct if the impropriety of the official's misconduct was obvious or the
official knew at the time that his or her conduct was likely unconstitutional but
nevertheless carried it out and if "the misconduct was investigatory in design and purpose
and executed in the hope that something might turn up." Christian, 310 Kan. 229, Syl.
¶ 8; see Tatro, 310 Kan. 263, Syl. ¶ 8; State v. Cleverly, 305 Kan. 598, 612, 385 P.3d 512
(2016).
Kent testified that his sole purpose for going to the women's restroom at the store
was a welfare check; there was no information suggesting criminal activity. Ellis told
Kent she was having stomach issues. He testified that he had no information suggesting
that her behavior was the result of anything other than stomach issues. He testified that he
never asked her whether she needed medical assistance, and he didn't know if he asked
her whether she needed an ambulance. He took her driver's license immediately after she
emerged from the bathroom stall. He testified that she was able to walk and she did not
appear to be suffering from any critical medical situations. He acknowledged that the
welfare check had been satisfied by the time he took her license.
Kent openly conceded that the purpose of requesting her identification was to
transform the check into a criminal investigation. Kent asked her for her driver's license
20
"so I could run it, so I could let my dispatch know who I was talking to." He had no
indication of criminal activity at that time. He asked her to go outside with him to see if
the driver of a silver car he had seen in the parking lot was the person who gave her a
ride, and he kept possession of her driver's license during that time. Although he did not
physically restrain her while he waited with her by the parking lot, he retained the
license.
Kent did not receive the information of a possible Rice County warrant until after
he had taken her driver's license, walked her outside, directed her to call her ride to come
for her, and asked to search her purse. It was only after he was informed of the possible
warrant that he asked her whether she was using drugs in the restroom and learned from
her that she had drugs in her purse. He allowed her to finish her telephone call for a ride
and then placed her in handcuffs. He then received a dispatch confirming the warrant.
Testimony by the arresting officers at both the suppression hearing and the trial
revealed that their transformation of a safety check into a criminal investigatory detention
was "part of a systemic and recurrent pattern." See Christian, 310 Kan. 229, Syl. ¶ 8.
Kent testified that it was standard procedure in his department to keep the driver's
licenses of people whom he is called to assist for welfare checks so that he can run
warrant checks. Law testified that officers in his department don't always ask to see a
license when investigating a welfare call because "sometimes it's not necessary." He
offered no explanation why it would have been considered "necessary" in this case. He
confirmed that Ellis was not dressed in a fashion conducive to concealing a weapon and
she took no action that led either officer to believe that she would attempt to harm them.
21
Kent's decision to run a warrant check as part of a welfare stop violated well-
established Kansas caselaw, going back to Damm in 1990 and Vistuba in 1992, which
emphasized that a public safety or welfare stop is not for investigative purposes and must
end as soon as the officer determines the citizen is not in need of help. See Vistuba, 251
Kan. at 824; Damm, 246 Kan. at 224-25; Gonzalez, 36 Kan. App. 2d at 457. The clarity
of Kansas law forbidding Kent's illegal conduct supports a finding of flagrant official
misconduct. Furthermore, Kent testified that running identification cards pursuant to
safety checks was his standard practice. Routinely engaging in constitutionally forbidden
conduct does not convert that conduct into permissible police activity. See State v.
Manwarren, 56 Kan. App. 2d 939, 956, 440 P.3d 606, rev. denied 310 Kan. 1068 (2019).
We conclude that all three Strieff factors weigh against admissibility of the drug
evidence under the attenuation doctrine.
We acknowledge the position of the concurring opinion, but we note that the
three Strieff factors do not necessarily exist independent of one another. Temporal
proximity, the discovery of an arrest warrant, and the flagrancy of the police misconduct
may be intertwined and considered together. Flagrant misconduct and the presence of an
intervening factor may bear on each other, as the Eighth Circuit Court of Appeals
suggested in United States v. Lowry, 935 F.3d 638, 644 (8th Cir. 2019):
"But Strieff did not announce a per se rule that the discovery of a warrant would always
vitiate subsequent searches. Whether it is characterized as a part of the second element of
the attenuation test (that the intervening event be unconnected to the purpose for the stop)
or as a part of the third element of the attenuation test (that the officer not have a flagrant
or unconstitutional purpose), Strieff instructs that we should decline to find attenuation
where there is evidence that the police officer was engaged in a fishing expedition for old
warrants. [Citation omitted.]"
22
In the present case, unlike the circumstances in Strieff and Tatro, the police-citizen
contact began, not as part of a criminal investigation or suspicion of criminal activity, but
as a public welfare check. These facts substantially distinguish this case from the others.
The discovery of the warrant occurred after the flagrantly unlawful detention disguised as
a welfare check, and we conclude that, in such a circumstance, the warrant was not an
intervening factor favoring the State in this case.
The State complains that decisions by the Court of Appeals and this court have so
attenuated the attenuation doctrine that it has no room for operation in Kansas. This is not
the situation.
Unlike in a public safety stop, which is not for investigative purposes, it is
constitutionally permissible for a law enforcement officer to obtain a person's
identification and check for outstanding warrants when the officer has reasonable
suspicion to detain and investigate the person for criminal activity. See State v. Walker,
292 Kan. 1, 14-16, 251 P.3d 618 (2011). Likewise, as part of the routine investigation of
a traffic infraction, the officer has a right to check the driver's license, inspect the
vehicle's registration and proof of insurance, and determine whether there are outstanding
warrants against the driver. State v. Jimenez, 308 Kan. 315, 325, 420 P.3d 464 (2018).
And, of course, if the public safety stop had in itself given Kent grounds to form a
reasonable suspicion that Ellis had engaged or was engaging in criminal activity, he could
have lawfully expanded the scope of the check into a criminal investigation, including a
warrant check.
In other words, once an officer has legal grounds to conduct an investigatory
detention, the officer is free to check the person for outstanding warrants as part of the
investigation. If a warrant is discovered, then, as the Supreme Court pointed out in Strieff,
23
an arrest may follow and evidence consequent to the arrest is admissible. 136 S. Ct. at
2062 (once police discover warrant, have obligation to arrest detainee); see United States
v. Leon, 468 U.S. 897, 920 n.21, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) ("'A warrant is
a judicial mandate to an officer to conduct a search or make an arrest, and the officer has
a sworn duty to carry out its provisions.'").
Despite repeated admonitions to the State that police may not use public welfare
checks as a basis for conducting background investigations and warrant checks for
citizens who may exhibit need for medical attention or police help, such conduct persists.
Our caselaw stands firmly against police detaining citizens and seizing their driver's
licenses when there is no indication that the citizens have engaged in criminal conduct.
See Chapman, 305 Kan. at 370; Moralez, 297 Kan. at 415; Vistuba, 251 Kan. at 824;
Damm, 246 Kan. 224-25; Manwarren, 56 Kan. App. 2d at 949-50; State v. Messner, 55
Kan. App. 2d 630, 636, 419 P.3d 642 (2018); State v. Griffith, No. 120,794, 2020 WL
399070, at *13-14 (Kan. App. 2020) (unpublished opinion); State v. Bluthardt, No.
116,401, 2017 WL 948330, at *3 (Kan. App. 2017) (unpublished opinion); cf. State v.
McKenna, 57 Kan. App. 2d 731, 735-40, 459 P.3d 1274, 1278-80 (2020), petition for rev.
filed March 2, 2020 (applying same analytic structure as other cases but finding particular
facts of case justified retaining defendant's license and running warrant check).
It may appear to be a harsh result to suppress evidence when arrest warrants are
readily available to police and when the evidence would certainly come to light after a
valid arrest. But here, as in several Court of Appeals decisions, it was unlawful police
conduct that led to the discovery of the warrant, and suppression is the long-standing
remedy for illegal government seizure and searches.
24
We, therefore, affirm the Court of Appeals decision reversing the district
court. The judgment of the district court is reversed, and the evidence seized
subsequent to the initial contact must be suppressed. The case is remanded for
further proceedings.
MICHAEL E. WARD, Senior Judge, assigned.1
***
STEGALL, J., concurring: I concur with the result we reach today, but write
separately to note that the majority appears to back away from the more stringent
requirements of Utah v. Strieff, 579 U.S. ___, 136 S. Ct. 2056, 195 L. Ed. 2d 400 (2016).
I would instead stick to our application of Strieff as outlined in State v. Tatro, 310 Kan.
263, 445 P.3d 173 (2019). In Tatro, we made it clear that the United States Supreme
Court had found that the discovery of a preexisting valid warrant is always an intervening
circumstance which effectively renders the first, temporal prong of the attenuation test
irrelevant, and which will always supersede the exclusionary rule unless the police
misconduct was purposeful or flagrant. See Tatro, 310 Kan. at 265, 273 ("[A] court may
admit evidence obtained as a result of an unconstitutional seizure if the connection
between the unconstitutional police conduct and the discovery of the evidence is remote
___________________________
1
REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 120,046
under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on
the court by the retirement of Chief Justice Lawton R. Nuss.
25
or has been sufficiently interrupted by an intervening circumstance, as long as the police
did not commit the misconduct purposefully or flagrantly. . . . [And] a preexisting, valid,
and untainted arrest warrant presents an intervening circumstance.").
Thus, under both Strieff and Tatro, when a preexisting valid warrant is discovered,
the only question remaining is whether the unconstitutional conduct was purposeful or
flagrant. Here, I agree with the majority that it was flagrant misconduct. But I would limit
the analysis in these circumstances to that question only.
LUCKERT, C.J., and WILSON, J., join the foregoing concurring opinion.
26