{"id":1935,"date":"2008-06-22T06:53:21","date_gmt":"2008-04-01T03:07:15","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-04-01T04:08:00","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1935","title":{"rendered":"KS: Unlawful detention revealing outstanding warrant does not always require suppression"},"content":{"rendered":"

Defendant was stopped on suspicion of attempting to urinate in public, but the officer really didn’t see anything. Defendant’s unlawful detention does not require suppression the finding of a separate warrant for the defendant’s arrest because the official misconduct was not flagrant. A dispute in the state’s case is resolved, but there is no bright line rule. State v. Martin<\/a>, 285 Kan. 994, 179 P.3d 457 (2008):<\/p>\n

We perceive that Damm<\/em> and Jones<\/em> are reconciled by recognizing that neither case establishes a bright line rule. The discovery of an outstanding arrest warrant does not always automatically wipe the slate clean for an officer unlawfully detaining the subject of the warrant. On the other hand, an unlawful detention that begets knowledge of an outstanding arrest warrant does not always automatically immunize the fugitive from prosecution for crimes discovered during the warrant arrest. In that regard, we note that the exclusionary rule is not absolute.<\/p>\n

“‘We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case 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. Maguire, Evidence of Guilt, 22 (1959).” [Wong Sun v. United States<\/em><\/a>,] 371 U.S. at 487-88.'” State v. Hodges<\/em>, 252 Kan. 989, 1006, 851 P.2d 352 (1993).<\/p>\n

Under the attenuation doctrine, courts have found that the poisonous taint of an unlawful search or seizure dissipates when the connection between the unlawful police conduct and the challenged evidence becomes attenuated. Nardone v. United States<\/em><\/a>, 308 U.S. 338, 84 L. Ed. 307, 60 S. Ct. 266 (1939). Although the Jones<\/em> opinion did not explicitly apply the attenuation doctrine, that doctrine appears to be the only way to explain its reference to officer bad faith and to reconcile it with the holding in Damm.<\/p>\n

The Green, Murray<\/em>, and Hill<\/em> cases relied upon by Jones<\/em> cite to Brown v. Illinois<\/em><\/a>, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975), which applied three factors to determine whether the causal chain has been sufficiently attenuated, so as to dissipate the taint of illegal conduct. Those factors are (1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. Brown<\/em>, 422 U.S. at 603-04. Presumably, Jones’<\/em> holding of an absence of officer bad faith referred to the third factor. However, all of the factors appear to be germane to the important determination of whether the State can avoid the exclusionary rule for its agents’ unlawful conduct.<\/p>\n

. . .<\/p>\n

The first factor weighs heavily against the State. Indeed, at oral argument, the State emphasized the short amount of time which elapsed between the initial encounter and the arrest with accompanying search. The law enforcement officers’ actions were continuous; there was no temporal break in the causal chain between illegality and evidence acquisition. However, Brown<\/em> instructed that “[n]o single fact is dispositive” in determining whether the evidence should be suppressed. Brown<\/em>, 422 U.S. at 603; see Green<\/em>, 111 F.3d at 521.<\/p>\n

The second factor, the presence of intervening circumstances, brings the outstanding arrest warrant into play. Under that circumstance, the law enforcement officer was put on notice that a court had determined there was probable cause to believe that Martin had committed a crime and that the court had issued an order for law enforcement to take Martin into custody. The warrant arrest of Martin was a lawful, perhaps mandatory, act. Thereupon, K.S.A. 22-2501 permitted, and officer safety recommended, that the officer search Martin’s person. Thus, the lawful warrant arrest for a prior crime, and ensuing lawful search incident to arrest, represent a potential break in the causal chain between the unlawful conduct of illegally detaining Martin and the retrieval of the challenged evidence.<\/p>\n

The third factor, the purpose and flagrancy of the official misconduct, dovetails with the second factor in this case. The determination of whether the intervening circumstance of discovering an outstanding warrant should attenuate the taint of a preceding unlawful detention, should be influenced by the officers’ reasons for detaining the subject and the flagrancy of the invasion on the subject’s privacy. In other words, did the officer exploit the unlawful conduct to get to the contraband. Cf. United States v. Melendez-Garcia<\/em>, 28 F.3d 1046, 1055 (10th Cir. 1994) (“[T]he ‘purpose and flagrancy’ prong of the Brown test can only be aimed at exploring whether the police have exploited their illegal search.”).<\/p>\n

While the circumstances might suggest that the officers’ purpose in requesting identification to run a warrant check was a fishing expedition, we do not perceive the conduct to be flagrant. The officers were drawn to the particular location because they observed a man who admitted to urinating or attempting to urinate in public. There is nothing to suggest that the officers’ ultimate goal in making contact with Martin, who was in the immediate vicinity of the urinator, was to search his person for drugs. Indeed, that suggestion is belied by the officers’ treatment of the lawbreaker, who was simply sent on his way after admitting to his transgression. Further, the intrusion upon Martin’s privacy involved a brief conversation in which Martin cooperatively engaged. But cf. State v. Epperson<\/em>, 237 Kan. 707, 712, 703 P.2d 761 (1985) (citing United States v. Brignoni-Ponce<\/em>, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 95 S. Ct. 2574 [1975]) (even a brief detention is a seizure implicating Fourth Amendment).<\/p>\n

Accordingly, we find that, considering the minimal nature and extent of the official misconduct, the outstanding arrest warrant was an intervening circumstance which sufficiently attenuated the taint of the unlawful detention so as to permit the admission of the fruits of the search incident to arrest.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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