Defendant consented only to a patdown for weapons, and the patdown revealed a small bulge in his pocket which was obviously not a weapon, so the plain feel exception did not apply. State v. Lee, 283 Kan. 771, 156 P.3d 1284 (2007):
In this case, the initial intrusion was the pat-down search for weapons. The pat-down search for weapons was lawful because Lee voluntarily consented to the search. However, we note that Lee did not consent to a general search. The officer specifically asked for permission to conduct a pat-down search for weapons and did not ask Lee to empty his pockets. Based on this evidence, the first requirement for the application of the plain feel exception has been met–the initial intrusion was lawful.
Likewise, the second requirement for the application of the plain feel exception was met. The discovery of the methamphetamine was inadvertent because the officer did not have any reason to believe that Lee would have methamphetamine in his pocket. The officers did not question Lee about drugs, and Lee did not behave as though he were under the influence of drugs.
Under the third requirement for the plain feel exception, the officer must have probable cause to believe that the object is evidence of a crime. However, the officer testified that he did not know what the object was when he felt it. The district court found that the officer could not reasonably have believed that the small, rolled-up plastic bag was a weapon. The State does not contest this finding, and it is supported by the evidence. The officer testified that weapons typically feel hard, and the small object in Lee’s pocket just felt like a bulge. Because the officer did not have probable cause to believe that the small object in Lee’s coin pocket was a weapon or evidence of a crime, the plain feel exception does not apply.
Lee consented to a pat-down search for weapons. However, the officer exceeded the scope of the search when he removed the plastic baggie containing methamphetamine from Lee’s coin pocket. Because the plain feel exception does not apply, the methamphetamine in Lee’s pocket was illegally seized in violation of Lee’s Fourth Amendment rights. Likewise, the discovery of the marijuana residue in Lee’s duffel bag was also illegal because it was a fruit of the illegal search of Lee’s pocket. See State v. Morris, 276 Kan. 11, 25-26, 72 P.3d 570 (2003) (suppressing evidence that was discovered after the defendant was illegally seized).
Government discusses only voluntariness of consent and fails to discuss the relation to the illegal arrest, which the court finds taints the consent. Court gives a helpful analysis of a circuit split. United States v. Henderson, 2007 U.S. Dist. LEXIS 30991 (S.D. Ohio April 25, 2007):
The issue before a court considering the validity of a consent to search following an illegal arrest is whether the consent sufficiently satisfies both the voluntariness and causal connection tests. This issue splits the circuits. The Sixth Circuit requires that a consent to search following an illegal seizure pass both the voluntariness and causal connection tests before a court may find it valid. See, e.g., United States v. Lopez-Arias, 344 F.3d 623, 629-30 (6th Cir. 2003); United States v. Caicedo, 85 F.3d 1184, 1190 (6th Cir. 1996); United States v. Bradley, 922 F.2d 1290, 1296 (6th Cir. 1991); United States v. Richardson, 949 F.2d 851, 859 (6th Cir. 1991); United States v. Buchanan, 904 F.2d 349, 356 (6th Cir. 1990). As noted in one of the circuit’s leading cases:
“Therefore, following Supreme Court precedent, we have repeatedly held that if a consent to search is given after an illegal seizure, evidence obtained pursuant to the consent to search must be suppressed, unless the consent is sufficiently attenuated from the illegal seizure such that the consent is the product of an intervening act of free will.”
Lopez-Arias, 344 F.3d at 629 (citations omitted).
In assessing causal connection, the Sixth Circuit follows Brown and requires a court to apply attenuation factors to an otherwise voluntary consent following an illegal arrest. These factors include “the length of time between the illegal seizure and the consent, the presence of intervening circumstances, the purpose and flagrancy of the official misconduct, and whether the officers read the suspect his Miranda rights before he consented.” Lopez-Arias, 344 F.3d at 630. No single factor is dispositive. Brown, 422 U.S. at 603-04. The government bears the burden of persuasion to establish attenuation. Kaupp v. Texas, 538 U.S. 626, 633 (2003).
Applying this law to the present facts, the Court first notes that, in its memorandum supporting its motion for reconsideration, the Government exclusively focuses its argument on establishing the voluntariness of Madden’s post-arrest consent to search the Wynde Tree Residence. See Doc. 122. The Government’s failure to address any causal connection between Madden’s illegal arrest and her voluntary consent negates the Government’s conclusion that Madden “validly consented” to the search of the Wynde Tree Residence. Consequently, as a matter of law, the Government’s contention that Madden’s voluntary consent validated the police’s search of the Wynde Tree Residence fails.
By failing to address the Sixth Circuit’s causal connection test, the Government cannot demonstrate clear error of law. Further, by misapplying the law, the Government fails the facts. As the Court discussed in its April 13, 2007 Opinion and Order regarding Madden, see Doc. 111, the police illegally seized Madden at the January 11, 2007 roadside stop. Without probable cause, Captain Heffernan put Madden in the back seat of his police car and then, upon orders of Special Agent Lucas and with Detective Clark, transported her to the parking lot of the Fourth District Station and, ultimately, to an interrogation room at the Justice Center. Id. Lucas testified that, throughout Madden’s stay in Heffernan’s police car and the interrogation room, she “was not free to go.” Id. No event intervened between her illegal seizure and her eventual consent to search. See, e.g., Buchanan, 904 F.2d at 356 (noting that “[d]issipation of the taint resulting from an illegal entry ordinarily involves showing that there was some significant intervening time, space, or event”) (internal quotation and citation omitted)). The police did not allow Madden to use a phone; she did not contact a lawyer. Id. Without an intervening event, the “taint” of Madden’s illegal arrest did not dissipate before the police obtained her otherwise voluntary consent to search the Wynde Tree Residence.
Furthermore, as detailed in the April 13, 2007 Opinion and Order, the illegality of Madden’s arrest was blatant. [Doc. 111.] Upon orders from Special Agent Lucas, Captain Heffernan and Detective Clark kept Madden in the back of Heffernan’s police car for nearly four hours.
Nervousness alone is not reasonable suspicion, but it is pertinent. Add evasiveness, and it is reasonable suspicion. Camp v. State, 983 So. 2d 1141 (Ala. Crim. App. 2007).*
Fact that defendant was handcuffed before the search incident did not lessen that officer’s ability to legally conduct it. Meister v. State, 864 N.E.2d 1137
(Ind. App. 2007).*
