State v. Taylor James Fairchild

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 44617
STATE OF IDAHO, ) 2018 Opinion No. 10
)
Plaintiff-Appellant, ) Filed: March 7, 2018
)
v. ) Karel A. Lehrman, Clerk
)
TAYLOR JAMES FAIRCHILD, )
)
Defendant-Respondent. )
)
Appeal from the District Court of the Third Judicial District, State of Idaho,
Canyon County. Hon. George A. Southworth, District Judge.
Order granting motion to suppress, affirmed in part and reversed in part.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for appellant. Kenneth K. Jorgensen argued.
Eric D. Fredericksen, State Appellate Public Defender; Reed P. Anderson, Deputy
Appellate Public Defender, Boise, for respondent. Reed P. Anderson argued.
________________________________________________
HUSKEY, Judge
The State appeals from the district court’s order granting Taylor James Fairchild’s motion
to suppress evidence of methamphetamine. The State argues: (1) the officer had reasonable
suspicion to conduct an investigatory stop; and (2) even if the officer lacked reasonable
suspicion, discovery of a valid arrest warrant attenuated the evidence from any unlawfulness.
The district court’s order granting Fairchild’s motion to suppress is affirmed in part and reversed
in part.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A citizen contacted the sheriff’s office to report what he thought was odd behavior. The
citizen identified himself by name and provided his address. He asked, “I was wondering if I
could have somebody sent out[?] I’m a little concerned about a transaction or something going
down behind my house.” He further explained, “two cars just come up really fast and pull
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around and meet up and they get out and they’re just both just sitting in the truck together . . . [.]
It could be nothing but too often things happen back there and the way they pulled up so fast it
looks like [unintelligible].” The location was the dead-end of a paved street after the last
entrance to the neighborhood, which terminated at the edge of private, field property. Beyond
the paved dead-end, a dirt path continued into the field. The paved dead-end provided no access
to any other area unless a vehicle turned around and left the way it came.
The citizen further provided a description of the vehicles, including their license plate
numbers. One of the vehicles was a Dodge Ram pickup and the other was a dark-colored
Hyundai. An officer was dispatched to the area. While en route, the officer ran the license plate
numbers and learned the pickup was registered to an individual the officer knew was a drug user.
The officer testified that because two vehicles were involved, he requested an assisting officer to
respond to the scene as well.
When the officer arrived, he saw the two vehicles driving away. The pickup drove away
from the officer into the privately owned field. The Hyundai, driven by Fairchild, drove towards
the officer away from the dead-end on the paved road. As it did so, the officer turned on his
overhead lights and motioned the driver to stop. Fairchild stopped.
The officer walked over to Fairchild and asked for identification and Fairchild provided
his driver’s license. The officer communicated the information on the driver’s license to
dispatch. Dispatch reported an outstanding warrant for Fairchild, but stated it needed to confirm
the warrant’s existence and validity by viewing the original paperwork. While dispatch was
confirming the warrant, the officer asked Fairchild questions. The questions included asking
where Fairchild was coming from and whether he had interactions with the driver of the pickup.
Fairchild said he was in the area, having spent the night with a friend who lived nearby, and
denied any contact with the driver of the pickup. The officer then explained why he was in the
area and continued to ask Fairchild why he was there. Fairchild continued to deny any contact
with the pickup driver.
Finally, the officer asked Fairchild if he was on probation and Fairchild indicated that he
was, for a paraphernalia charge. The officer asked Fairchild to step out of the car and asked
Fairchild if he would consent to a search. Fairchild stepped out of the car. The officer
conducted a pat-down frisk, but also reached into Fairchild’s pocket. After reaching into
Fairchild’s pocket, the officer found a small baggie of a white, powdery substance which was
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later confirmed to be methamphetamine. The officer then arrested Fairchild, placed him in
handcuffs, and read him his Miranda 1 rights.
The assisting officer, who had since arrived on the scene, watched Fairchild as the
original officer retrieved gloves from his patrol car. While at his patrol car, the original officer
again contacted dispatch which confirmed that a valid warrant for Fairchild’s arrest existed. The
officer resumed searching Fairchild, discovering a second baggie of what was later confirmed to
be methamphetamine.
Fairchild was charged with possession of a controlled substance. He filed a motion to
suppress the methamphetamine evidence, reasoning that the officer did not have a reasonable
suspicion to stop Fairchild. But even if the stop was valid, Fairchild argued, the stop
subsequently exceeded the scope of the purpose of the original stop when the officer detained
Fairchild while the officer ran a check for warrants. Finally, Fairchild argued there was no
intervening circumstance that purged the taint of the initial illegality--either the stop or the
continued detention--and specifically requested the drugs found in Fairchild’s pocket incident to
arrest be suppressed.
The State argued that even if there was no reasonable, articulable suspicion to stop and/or
detain Fairchild, the evidence found was attenuated from the alleged police misconduct. The
State specifically argued, “Assuming an illegal stop in Defendant’s case, the discovery of the
evidence was not the result of exploitation of the illegality. Rather, the taint of the unlawful
conduct was sufficiently dissipated to allow admission of the evidence.”
At the hearing on the motion to suppress, the district court asked the parties if the fact
that the officer received information that there may have been a warrant, but did not receive
verification that the warrant was valid and still in effect until after he had already searched
Fairchild, made any difference concerning the attenuation doctrine. Based on this question, the
State was permitted to submit an affidavit about this issue.
Thereafter, the State submitted additional briefing about the applicability of the
attenuation doctrine after the officer was informed of the warrant but before the warrant had been
confirmed. According to the State, “Dispatch notified the officer of a warrant against the
Defendant. The officer received that notification prior to finding the first baggie of white crystal
substance. However, Dispatch then had to confirm that the warrant was still valid and not just in
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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their database.” Further, “When notified of a warrant, they (i.e. law enforcement) would detain
at that point, pending confirmation . . . .” The State goes on to note:
There are two pieces of potential evidence in this case: two baggies of
white crystal substance. The first baggie was found after the officer was notified
of a warrant against Defendant. The second baggie was found after the officer
received confirmation of that warrant from Dispatch. The State earlier argued
that assuming law enforcement performed an illegal traffic stop of Defendant, the
discovery of the evidence is admissible pursuant to the attenuation doctrine.
The State recognizes that the Court may find it more difficult to apply the
attenuation doctrine to the first baggie of substance inasmuch as the warrant had
not yet been confirmed by Dispatch and Defendant was apparently not yet under
arrest for that warrant.
Finally, the State argued that the first baggie was admissible under the inevitable discovery
doctrine.
The district court granted Fairchild’s motion to suppress, concluding the officer’s
investigatory stop was not justified by reasonable suspicion, but even if the stop was lawful, the
frisk resulting in the discovery of the first baggie exceeded the scope of a limited pat-down.
Next, the district court determined the attenuation doctrine did not apply to the discovery of the
second baggie of methamphetamine. As a result, the district court granted Fairchild’s motion to
suppress both baggies of methamphetamine. The State timely appeals. The district court case
was stayed pending the outcome of this appeal.
II.
STANDARD OF REVIEW
The standard of review of a suppression motion is bifurcated. When a decision on a
motion to suppress is challenged, we accept the trial court’s findings of fact that are supported by
substantial evidence, but we freely review the application of constitutional principles to the facts
as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a
suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts,
weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina,
127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d
659, 662 (Ct. App. 1999).
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III.
ANALYSIS
The State asserts the district court erred when it granted Fairchild’s motion to suppress.
First, the State argues the totality of the circumstances supplied the officer with reasonable
suspicion to conduct an investigatory stop. Second, the State argues that dispatch’s initial report
of a warrant was sufficient for the officer to arrest Fairchild and search him incident to that
arrest, resulting in the discovery of both baggies of methamphetamine. Third, the State contends
that, alternatively, if the officer did not have reasonable suspicion to conduct the investigatory
stop, the discovery of Fairchild’s warrant attenuated any unlawfulness of the stop from the
discovery of the methamphetamine baggies.
A. The Officer Had Reasonable Suspicion to Stop Fairchild
Investigatory detentions are permissible when justified by an officer’s reasonable
articulable suspicion that a person has committed, or is about to commit, a crime. State v.
Morgan, 154 Idaho 109, 112, 294 P.3d 1121, 1124 (2013). “Reasonable suspicion must be based
on specific, articulable facts and the rational inferences that can be drawn from those facts.
Reasonable suspicion requires more than a mere hunch or inchoate and unparticularized
suspicion.” Id. (citations omitted). The reasonableness of the suspicion must be evaluated upon
the totality of the circumstances at the time of the stop. State v. Ferreira, 133 Idaho 474, 483,
988 P.2d 700, 709 (Ct. App. 1999). This standard requires less than probable cause but more
than mere speculation or instinct on the part of the officer. Id. An officer may draw reasonable
inferences from the facts in his or her possession, and those inferences may be drawn from the
officer’s experience and law enforcement training. State v. Montague, 114 Idaho 319, 321, 756
P.2d 1083, 1085 (Ct. App. 1988). “A determination that reasonable suspicion exists, however,
need not rule out the possibility of innocent conduct.” United States v. Arvizu, 534 U.S. 266, 277
(2002).
An informant’s tip to an officer may give rise to reasonable suspicion when it would
warrant a man of reasonable caution in the belief that a stop was appropriate. Alabama v. White,
496 U.S. 325, 329 (1990) (citations omitted). Whether a tip amounts to reasonable suspicion
depends on the substance, source, and reliability of the information provided; the more reliable
the tip, the less information is required to establish reasonable suspicion. State v. Swindle, 148
Idaho 61, 65, 218 P.3d 790, 794 (Ct. App. 2009). Factors indicative of reliability include, among
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others, whether the informant reveals his or her identity and the basis of his or her knowledge,
whether the location of the informant is known, whether the information was based on firsthand
observations of events as they were occurring, and whether the information the informant
provided was subject to immediate confirmation or corroboration by law enforcement. Id.
To determine whether the officer had reasonable suspicion to conduct an investigatory
stop with Fairchild, we look to the totality of the circumstances. The officer was responding to
an informant’s tip about what the informant thought was odd behavior: two vehicles pulled up
very quickly into a paved, dead-end road, parked, and then the drivers sat in one of the cars for at
least ten minutes, all in a place where the informant felt strange things happened too often. The
informant exhibited numerous factors indicating reliability. First, the citizen revealed his
identity by providing his name. Second, the citizen provided his address. Thus, if necessary, the
officer could assess the citizen’s credibility at a later time. Third, the citizen provided
information based on his firsthand observation of the vehicles parked behind his house. Fourth,
the information the citizen provided was immediately confirmed by the officer. While en route
to the scene, the officer ran the license plate information the citizen provided and found the
vehicles matched the citizen’s description. Further, when the officer arrived at the scene, he
viewed two vehicles that matched the description in the described location. Thus, the substance,
source, and reliability of the citizen’s tip provided, at minimum, a substantial step towards the
officer’s reasonable suspicion.
Beyond the information provided by the citizen, the officer independently made other
observations. First, while running the license plate information en route to the scene, the officer
discovered that the owner of the pickup was a drug user with whom the officer had previous
experience. Second, upon the officer’s arrival at the scene, he observed the vehicles driving
away from the scene in different directions, the pickup across a privately owned field.
Together, these specific, articulable facts and the rational inference that the officer drew
from the facts--that the drivers of the vehicles had just committed or were attempting to commit
a drug crime--rise to the level of reasonable suspicion. When the officer stopped Fairchild, he
was not merely acting according to a hunch, instinct, or speculation, but according to the facts
which his experience and law enforcement training identified as reasonably suspicious.
Fairchild argues these facts were not certain enough to rise to the level of reasonable
suspicion. Specifically, he narrows in on the informant’s statements that there was a “transaction
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or something” happening and that it “could be nothing but too often things happen back there” to
argue that the informant himself was uncertain what the drivers of the vehicles were doing.
Additionally, Fairchild contends that because the informant never saw either of the drivers
consume drugs or exchange money, his information cannot lead to reasonable suspicion.
Leaning on these arguments, the district court noted that the pickup driver could have been
someone other than the pickup’s owner. These arguments confuse uncertainty with a lack of
reasonable suspicion and discount the purpose of the reasonable suspicion standard: to allow
officers to proceed and “confirm or dispel” their suspicion of a crime. State v. Williams, 162
Idaho 56, 64, 394 P.3d 99, 107 (Ct. App. 2016). Indeed, Fairchild argues that reasonable
suspicion cannot exist where there is a possibility that the witnessed conduct could be innocent
in nature. This cannot be true. A determination that reasonable suspicion exists need not rule
out the possibility of innocent conduct--an officer’s actions during an investigatory stop will do
that. Navarette v. California, ___ U.S. ___, 134 S. Ct. 1683, 1691 (2014). Otherwise, officers
would be forced to divine the criminality of suspicious conduct without investigation.
The officer in this case, based on the specific and articulable facts above, properly
proceeded to investigate Fairchild’s conduct so he could confirm or dispel his suspicion that a
drug crime had been attempted or committed. Therefore, the district court erred when it found
the officer’s stop of Fairchild was not justified by reasonable suspicion.
B. Dispatch’s Confirmation of the Existence of a Valid Warrant for Fairchild’s Arrest
Informs the Suppression Analysis
The parties dispute whether the attenuation doctrine can be applied to the officer’s
discovery of the first baggie of methamphetamine, the second baggie, or both. The answer
hinges upon the precise moment when the officer could validly arrest Fairchild pursuant to the
warrant dispatch reported.
After considering the officer’s testimony, the officer’s affidavit, and the officer’s body
camera footage, the district court concluded that Fairchild’s warrant was confirmed after the
officer had discovered the first baggie of methamphetamine on Fairchild’s person. Thus, the
district court, taking this as the precise moment when the officer could validly arrest Fairchild,
considered the attenuation doctrine only for the second baggie.
The State argues the precise moment the officer could arrest Fairchild was when dispatch
initially reported Fairchild’s warrant, even though dispatch told the officer that it had not yet
confirmed the warrant. As such, the State argues the attenuation doctrine applies to the
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discovery of both baggies of methamphetamine. It contends the district court’s finding to the
contrary amounts to clear error.
A review of the district court’s finding shows that it was supported by substantial
evidence. The officer testified that dispatch notified him that Fairchild “had a warrant. They had
to confirm it, which requires them to go to the warrant section in dispatch, get out the actual
paperwork, and look at the warrant to verify that the warrant is still valid and not just in their
database.” The officer further testified that as soon as dispatch inputs a suspect’s information,
it comes up on [the officer’s patrol car computer screen] potentially they have a
warrant if it’s through Canyon County or Caldwell. Other agencies it doesn’t first
show up like that, but ours it does.
So then that’s when they have to verify. So after they notify me that what
we call code one, they’re 1099, that’s when I requested they check and advise, so
check the warrant, advise me if it’s valid.
The officer also indicated it is his practice to detain an individual when dispatch reports a
warrant, but waits to take the individual into custody until the warrant is confirmed.
Additionally, the officer submitted an affidavit containing a statement that “the warrant
had been confirmed . . . subsequent to informing Defendant he was under arrest for the warrant,
and thus subsequent to the Canyon County Sheriff’s Officer Dispatch confirming the existence
of a warrant against Defendant, I discovered a second baggie of white crystal substance.”
Together, the officer’s testimony and affidavit show that he was waiting to confirm both the
warrant’s existence and the warrant’s validity, despite the variety of terms he used to describe the
process. Thus, we affirm the district court’s finding.
The State’s argument that officers may effectuate an arrest upon report of a warrant
whose existence or validity is unclear has no support. The State cites a number of cases for this
argument, but none relate an instance where dispatch told an officer there was an unconfirmed
warrant, much less an instance where the officer validly made an arrest before the existence of
the warrant was confirmed. Rather, these cases relate scenarios where an officer proceeded upon
a warrant without dispatch indicating it must still confirm the warrant’s existence.
Because the State argues that the officer could initiate Fairchild’s arrest immediately after
dispatch’s initial report of a warrant, it also argues that both baggies of methamphetamine were
obtained as a search incident to arrest. A review of the record shows that this theory was not
argued before the district court. Thus, it is not preserved for review. State v. Garcia-Rodriguez,
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162 Idaho 271, 275, 396 P.3d 700, 704 (2017). Only the State’s alternative theory, that the
attenuation doctrine applies to suppress both baggies of methamphetamine, remains.
The moment the officer received confirmation that a valid warrant existed for Fairchild’s
arrest divides the attenuation analysis. Before the warrant was confirmed, the officer knew only
that an arrest warrant for Fairchild might exist; after confirmation, the officer had a certainty that
one did exist. Knowledge that a warrant might exist is insufficient to provide a basis for an
officer to effectuate an arrest or search. Thus, the officer could not validly arrest or search
Fairchild until the existence of a valid warrant was confirmed.
1. The initial illegality relevant to the attenuation doctrine analysis is the
officer’s unlawful frisk
The district court found the officer’s act of searching Fairchild without confirmation of
the warrant was illegal. We find it was initially illegal. Consequently, we agree with the district
court that the discovery of the first baggie of methamphetamine was the product of an unlawful
investigatory frisk.
A warrantless search is presumptively unreasonable unless it falls within certain special
and well-delineated exceptions to the warrant requirement. Coolidge v. New Hampshire, 403
U.S. 443, 454-55 (1971); Ferreira, 133 Idaho at 479, 988 P.2d at 705. In Terry v. Ohio, 392
U.S. 1 (1968), the United States Supreme Court created a stop-and-frisk exception to the United
States Constitution’s Fourth Amendment warrant requirement. The stop and the frisk constitute
two independent actions, each requiring a distinct and separate justification. State v. Babb, 133
Idaho 890, 892, 994 P.2d 633, 635 (Ct. App. 2000); State v. Fleenor, 133 Idaho 552, 556, 989
P.2d 784, 788 (Ct. App. 1999).
The stop is justified if there is a reasonable and articulable suspicion that the individual
has committed or is about to commit a crime. Florida v. Royer, 460 U.S. 491 (1983); Terry, 392
U.S. at 30; State v. DuValt, 131 Idaho 550, 553, 961 P.2d 641, 644 (1998); Ferreira, 133 Idaho
at 479, 988 P.2d at 705. However, merely because there are reasonable grounds to justify a
lawful investigatory stop, such grounds do not automatically justify a frisk for weapons. Babb,
133 Idaho at 892, 994 P.2d at 635. An officer may frisk an individual if the officer can point to
specific and articulable facts that would lead a reasonably prudent person to believe that the
individual with whom the officer is dealing may be armed and presently dangerous and nothing
in the initial stages of the encounter serves to dispel this belief. Terry, 392 U.S. at 27; Babb, 133
Idaho at 892, 994 P.2d at 635; Fleenor, 133 Idaho at 555, 989 P.2d at 787. In our analysis of a
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frisk, we look to the facts known to the officer on the scene and the inferences of risk of danger
reasonably drawn from the totality of those specific circumstances. Babb, 133 Idaho at 892, 994
P.2d at 635; Fleenor, 133 Idaho at 555, 989 P.2d at 787. A frisk is carefully limited to the search
of an individual’s outer clothing for the purpose of discovering weapons. Terry, 392 U.S. at 30.
Officers may only remove objects that feel like weapons. State v. Faith, 141 Idaho 728, 730, 117
P.3d 142, 144 (Ct. App. 2005). Removing objects that do not feel like weapons transforms the
frisk into a search for evidence. Id.
In this case, while there was reasonable suspicion to initiate the investigatory stop, the
district court found no indication that Fairchild was armed or dangerous to justify the officer’s
frisk for weapons. The State makes no argument and presents no facts to the contrary. Thus, the
officer’s frisk of Fairchild was an unlawful search in violation of the Fourth Amendment. And
even if the frisk itself were lawful, the officer exceeded the scope of the frisk by reaching into
one of Fairchild’s pockets and removing the first baggie of methamphetamine. The officer
should have limited the frisk to a pat-down of Fairchild’s outer clothing during which he could
have determined that the baggie did not feel like a weapon and therefore, could not be removed
from Fairchild’s pocket. Because he removed the baggy from Fairchild’s pocket, the frisk was
transformed into an unlawful search for evidence. As this search was not justified by an
exception to the warrant requirement, the first baggie of methamphetamine must be suppressed
pursuant to the exclusionary rule. As explained below, the attenuation doctrine does not apply to
alter this conclusion.
2. The attenuation doctrine applies only to the second baggie of
methamphetamine
Under the federal constitution, applying the exclusionary rule and suppressing evidence is
done for two purposes: (1) to deter lawless conduct by law enforcement, and (2) to close the
doors of the courts to any use of evidence unconstitutionally obtained. Wong Sun v. United
States, 371 U.S. 471, 486 (1963). The attenuation doctrine analyzes situations where there is
some Fourth Amendment violation and the court must determine whether the resulting evidence
was obtained by exploitation of that illegality or instead, by means sufficiently attenuated from
that illegality such that the taint of the illegality is purged. See Brown v. Illinois, 422 U.S. 590
(1975). Thus, the attenuation doctrine permits the use of evidence that would normally be
suppressed as fruit of police misconduct if the causal chain between the misconduct and the
discovery of the evidence has been sufficiently attenuated. Nardone v. United States, 308 U.S.
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338, 341 (1939); State v. Hoak, 107 Idaho 742, 749, 692 P.2d 1174, 1181 (1984). In applying
the attenuation doctrine, the test is “whether, granting establishment of the primary illegality, the
evidence to which instant objection is made has been come at by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun, 371
U.S. at 488. The Idaho Supreme Court has employed the three-factor test from Brown to
determine attenuation: (1) the elapsed time between the misconduct and the acquisition of the
evidence; (2) the occurrence of intervening circumstances; and (3) the flagrancy and purpose of
the police misconduct. 2 State v. Page, 140 Idaho 841, 846, 103 P.3d 454, 459 (2004).
In Page, an officer observed Page walking down a residential street at 2:00 a.m. carrying
some bags. Id. at 842, 103 P.3d at 455. The officer approached Page and asked if he could talk
to him; Page agreed. After inquiring about Page’s well-being, the officer asked for Page’s
identification and then retained the identification while he went back to his patrol vehicle and
discovered an active arrest warrant for Page. The officer arrested Page and searched him
incident to arrest, discovering methamphetamine. Page was charged with possession of a
controlled substance and filed a motion to suppress, which was granted by the district court. Id.
On appeal, the Court held the initial encounter was consensual and was accomplished
pursuant to the officer’s community caretaker function. Id. at 844, 103 P.3d at 457. However,
the Court also held the totality of the circumstances demonstrated no compelling need for the
officer to seize the identification and conduct a warrant check, nor were there facts present that
legitimized the detention of Page once the officer determined, pursuant to his community
caretaker function, that Page was not in need of assistance. Further, there was no particularized
or objective justification for detaining Page. Id. at 845, 103 P.3d 458. Nonetheless, after
utilizing the Brown factors to determine whether the illegal conduct was sufficiently attenuated
from the discovery of the resulting evidence, the Court found the evidence admissible because
the existence of a valid warrant sufficiently attenuated the initial misconduct from the subsequent
discovery of the evidence. Page, 140 Idaho at 847-48, 103 P.3d at 459-60. In examining the
flagrant and purposeful factor, the Court cited Brown and noted the Brown Court did not
condone the officer’s conduct in the case but ruled that it was not so shocking as to tilt the scales
against attenuation. Page, 140 Idaho at 846, 204 P.3d at 459. Given that standard, the Page
2
Brown indicated that the test is a totality of the circumstances test, yet focused on these
three factors. Brown v. Illinois, 422 U.S. 590, 603-04 (1975).
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Court noted the officer’s conduct was not flagrant nor was his purpose improper and reversed the
grant of the motion to suppress. Id. at 846-47, 103 P.3d at 459-60.
In Utah v. Strieff, ___ U.S. ___, 136 S. Ct. 2056 (2016), the United States Supreme Court
addressed the same issue presented in Page. There, after receiving an anonymous tip, the officer
surveilled a house for suspected drug activity. Id. at ___, 136 S. Ct. at 2059. The officer
surveilled the house for about a week and noticed visitors who stayed only a short period of time,
which raised his suspicion that drugs were being dealt from the house. Id. One day the officer
watched Strieff leave the house. Id. at ___, 136 S. Ct. at 2060. The officer detained Strieff and
requested Strieff produce his identification card, which Strieff produced. The officer retained the
identification while conveying the information to dispatch. Dispatch confirmed there was an
outstanding arrest warrant for Strieff. The officer arrested Strieff, searched him incident to
arrest, and found methamphetamine. Id.
The United States Supreme Court recognized there was no reasonable suspicion to detain
Strieff but ultimately held a valid, pre-existing warrant sufficiently attenuated the discovery of
evidence from the initial illegality. Id. at ___, 136 S. Ct. at 2063. The Court analyzed the three
factors set forth in Brown. When discussing the third factor--whether the police misconduct was
both flagrant and purposeful--the Court noted: “For the violation to be flagrant, more severe
police misconduct is required than the mere absence of proper cause for the seizure.” Strieff, ___
U.S. at ___, 136 S. Ct. at 2064. The Court found the officer was at most negligent in stopping
Strieff and made two good faith mistakes. Id. at ___, 136 S. Ct. at 2063. The officer’s first
mistake was concluding Strieff may have been conducting a drug transaction. Second, the
officer should have asked Strieff whether he would speak with him, instead of demanding that
Strieff do so.
The United States Supreme Court noted the subsequent search of Strieff was a valid
search incident to arrest. Additionally, the Strieff Court held there was no indication that the
unlawful stop was part of any systemic or recurrent police misconduct and the evidence
suggested that the stop was an isolated instance of negligence that occurred in connection with a
bona fide investigation of a suspected drug house. As a result, the Court ultimately concluded
the officer’s “errors in judgment” did not rise to the level of a purposeful or flagrant violation of
Strieff’s Fourth Amendment rights. Id.
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After Strieff, the Idaho Supreme Court considered a similar case in State v. Cohagan, 162
Idaho 717, 404 P.3d 659 (2017). In that case, an officer thought he saw an individual who had
an outstanding arrest warrant on the corner of a street. Id. at 719, 404 P.3d at 661. The officer,
joined by a junior officer, turned around to get a better look, but the individual had entered a
grocery store. The officers entered the store and the junior officer approached the individual,
examined his driver’s license, and determined that he, Cohagan, was not who the senior officer
suspected. Both officers then exited the store, but received a request to return to obtain
surveillance video for an unrelated incident. While the junior officer was obtaining the video,
the senior officer decided to confirm the identification of Cohagan because the junior officer was
new to the force. The senior officer found Cohagan in the store and as he approached Cohagan,
he realized Cohagan was not the individual he suspected had an outstanding warrant. Yet, the
senior officer proceeded to ask Cohagan his name, examined his identification, and requested
dispatch run a warrant check. Dispatch replied that Cohagan might have a warrant so the senior
officer put his hand on Cohagan’s shoulder and told him to walk to the front of the store to wait
for the warrant to be confirmed. Once dispatch confirmed Cohagan’s warrant, the officers
arrested him. Id. During a search incident to his arrest, the officers discovered a device with
methamphetamine residue. Id. at 719-20, 404 P.3d at 661-62.
The Idaho Supreme Court considered application of the attenuation doctrine upon review
of Cohagan’s motion to suppress the methamphetamine evidence, analyzing the three Brown
factors. Cohagan, 162 Idaho at 721-24, 404 P.3d 663-66. In its analysis of the purposeful or
flagrant factor, the Court concluded there was no bona fide investigation because there were no
objective grounds to support the senior officer’s actions, especially when the senior officer knew
Cohagan was not the man he suspected had an outstanding warrant. Id. at 722-23, 404 P.3d at
664-65. The Court also noted there was no cause for the stop because there was no indication
that Cohagan was involved in illegal activity, no need to obtain Cohagan’s identification for a
second time, and no need for a warrant check as a precaution for officer safety. Id. at 724, 404
P.3d at 666. The Court characterized the senior officer’s actions as nothing more than a
suspicionless fishing expedition in the hope that something would turn up. Id. Thus, the Court
determined the purposeful or flagrant factor supported a finding of suppression. Id. at 726, 404
P.3d at 668.
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The Fourth Amendment violation at issue in this case is the officer’s unlawful
investigatory frisk of Fairchild, resulting in the discovery of the first baggie of methamphetamine
and prompting the officer to conduct a more complete search of Fairchild. To determine if this
illegality tainted the officer’s discovery of the second baggie of methamphetamine such that it is
fruit of a poisonous tree, we apply the Brown three-factor test.
As to the first factor, recent United States Supreme Court case law makes clear that the
relevant “temporal proximity” is between the police misconduct and the discovery of evidence.
Strieff, ___ U.S. at ___, 136 S. Ct. at 2062 (“First, we look to the ‘temporal proximity’ between
the unconstitutional conduct and the discovery of evidence to determine how closely the
discovery of evidence followed the unconstitutional search.”). This is consistent with this
Court’s holding that we look at the time between the police misconduct and the discovery of
evidence. See, e.g., State v. Liechty, 152 Idaho 163, 170, 267 P.3d 1278, 1285 (Ct. App. 2011)
(“The state concedes that the time between the seizure and the discovery of methamphetamine
was short.”).
Generally, this factor only favors attenuation when “substantial time” has passed between
the police misconduct and the discovery of evidence. Strieff, ___ U.S. at ___, 136 S. Ct. at 2062;
Kaupp v. Texas, 538 U.S. 626, 633 (2003); State v. Reynolds, 146 Idaho 466, 474, 197 P.3d 327,
335 (Ct. App. 2008) (abrogated on other grounds). For instance, in Strieff, the Court held that
because “only minutes” passed between an illegal stop and the discovery of drug contraband, this
factor weighed against attenuation. Strieff, ___ U.S. at ___, 136 S. Ct. at 2062.
The second factor of the Brown test concerns the presence of intervening circumstances.
Discovery of an arrest warrant can break the causal chain between unlawful conduct and the
discovery of evidence. Strieff, ___ U.S. at ___, 136 S. Ct. at 2063. “Where the discovery of an
arrest warrant constitutes the intervening circumstance, ‘it is an even more compelling case for
the conclusion that the taint of the original illegality is dissipated.’” United States v. Simpson,
439 F.3d 490, 495 (8th Cir. 2006) (quoting United States v. Green, 111 F.3d 515, 522 (7th Cir.
1997)).
The third factor regards purposeful or flagrant behavior as shown above during our
discussion of Page, Strieff, and Cohagan.
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i. The attenuation doctrine does not apply to the first baggie of
methamphetamine, so it must be suppressed
An analysis of Brown’s second factor shows that the attenuation doctrine does not apply
to the first baggie of methamphetamine because there was no intervening circumstance to
attenuate the unlawful behavior from the discovery of evidence. Instead, the intervening
circumstance, dispatch’s report confirming the existence of a valid warrant for Fairchild’s arrest,
did not arise until after the first baggie of methamphetamine was discovered. Thus, the causal
chain between the officer’s unlawful frisk and the discovery of the first baggie of
methamphetamine remained intact. Because there was no intervening cause regarding the first
baggie of methamphetamine, we need not proceed to apply Brown’s first or third factors. We
conclude the attenuation doctrine does not apply to the search resulting in discovery of the first
baggie of methamphetamine, therefore, it must be suppressed under the exclusionary rule.
ii. The attenuation doctrine applies to the second baggie of
methamphetamine
Concerning the second baggie of methamphetamine, the first Brown factor weighs in
favor of suppression. A substantial amount of time did not pass between the officer’s unlawful
investigatory frisk and the officer’s discovery of the second baggie of methamphetamine. In
fact, the trial court found there was virtually no separation in time because the discovery of the
second baggie flowed directly from the discovery of the first. As soon as the officer discovered
the first baggie, Fairchild was handcuffed and read his Miranda rights; the officer retrieved
gloves from his patrol car, continued searching Fairchild, and then discovered the second baggie.
Only minutes passed during this uninterrupted process. For this reason, the temporal proximity
factor weighs in favor of suppressing the second baggie of methamphetamine.
The second Brown factor weighs in favor of attenuation. Fairchild’s arrest warrant, while
not confirmed until after the officer conducted an unlawful frisk, constitutes an intervening
circumstance that severed the causal chain extending from the unlawful frisk to the discovery of
the second baggie of methamphetamine. The existence of Fairchild’s warrant was confirmed, it
predated the officer’s frisk of Fairchild, and it was entirely unconnected with the frisk. Strieff,
___ U.S. at ___, 136 S. Ct. at 2062-63 (“Officer Fackrell’s arrest of Strieff thus was a ministerial
act that was independently compelled by the pre-existing warrant.”). After dispatch confirmed
the warrant, the officer was independently obliged to conduct a search of Fairchild. Id. Thus,
this factor weighs heavily in favor of attenuation.
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The purposeful or flagrant factor of the Brown test is dispositive for the second baggie of
methamphetamine. The district court found the main officer’s conduct was flagrant because of
“multiple procedural missteps,” which appear to include the officer’s judgment of reasonable
suspicion, the investigatory stop, and judgment of when he could act upon dispatch’s report of an
unconfirmed warrant. However, this finding aligns with the faulty reasoning Strieff argued in his
case; it conflates the standard for a frisk with the standard for flagrancy. Strieff, ___ U.S. at ___,
136 S. Ct. at 2064 (“Strieff argues, moreover, that Officer Fackrell’s conduct was flagrant
because he detained Strieff without the necessary level of cause (here, reasonable suspicion).”).
More severe misconduct is required than the absence of the officer’s cause for an investigatory
frisk. Id.
More severe misconduct is not present here. In fact, the district court found the officers
in this case did not have any ill will or improper motives and there is no evidence that they were
acting pursuant to systemic or recurrent police misconduct. Rather, the evidence suggests the
officer’s errors occurred in connection with a bona fide investigation of a suspected drug
transaction. Indeed, the officer proceeded on a reliable informant’s report and his own
observations which indicated to him the need to confirm or dispel criminal behavior. The officer
acted upon objective grounds which formed the basis of reasonable suspicion. This was not a
random, suspicionless fishing expedition conducted in the hope that something would turn up.
The officer’s conduct does not rise to the level of flagrancy. Therefore, this factor weighs in
favor of attenuation.
When considered together, the Brown factors weigh in favor of attenuation for the second
baggie of methamphetamine. The temporal proximity of the unlawful investigatory frisk to the
discovery of the second baggie of methamphetamine is not so significant to predominate over the
warrant’s function as an intervening cause or the officer’s non-flagrant conduct. Therefore, we
conclude the evidence of the second baggie of methamphetamine to be sufficiently attenuated
from the unlawful frisk and, thus, it should not be suppressed. We reverse the district court’s
order granting Fairchild’s motion to suppress as to the second baggie of methamphetamine.
IV.
CONCLUSION
The officer did have reasonable suspicion to stop Fairchild’s vehicle, but lacked
justification to conduct a frisk for weapons or remove the first baggie of methamphetamine from
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Fairchild’s pocket. We affirm the district court’s order granting Fairchild’s motion to suppress
as to the first baggie of methamphetamine. The second baggie of methamphetamine, obtained
subsequent to dispatch’s report confirming the existence of a valid warrant for Fairchild’s arrest,
was sufficiently attenuated from the unlawful frisk. We reverse the district court’s order
granting the motion to suppress the second baggie of methamphetamine.
Judge GUTIERREZ and Judge Pro Tem WALTERS, CONCUR.
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