{"id":7659,"date":"2012-10-31T20:46:29","date_gmt":"2012-09-03T06:44:55","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-09-03T06:44:55","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=7659","title":{"rendered":"Utah applies attenuation to find a SI to a warrant found on an illegal stop was not unreasonable."},"content":{"rendered":"

Defendant was stopped as a potential drug buyer leaving a house occasionally surveilled for apparent drug dealing. He was asked for his ID, and that led to finding a warrant for his arrest and he was searched incident to that arrest, not the original stop. The court finds that the stop was a Fourth Amendment violation, but attenuation analysis favored the state, and the search incident was not suppressed. State v. Strieff<\/a>, 2012 UT App 245, 716 Utah Adv. Rep. 26, 286 P.3d 317 (2012). The court gives a lengthy expose of Utah and Supreme Court case law on attenuation. Valuable reading for litigators, and maybe LEOs too. Just a paragraph:<\/p>\n

[*P27] The court’s conclusion that Officer Fackrell’s conduct was neither purposeful nor flagrant is further supported by the circumstances of the encounter as a whole. The officer’s misconduct amounted to a misjudgment, one of constitutional proportion certainly, but a single misstep over the constitutional boundary rather than a deliberate transgression. See generally Rawlings v. Kentucky, 448 U.S. 98, 110 (1990) (stating that conduct premised on an error about the officer’s authority “does not rise to the level of conscious or flagrant misconduct requiring prophylactic exclusion” of evidence); People v. Brendlin, 195 P.3d 1074, 1080 (Cal. 2008) (“[A] mere ‘mistake’ with respect to the… law[] does not establish that the… stop was pretextual or in bad faith.”). Moreover, from Strieff’s perspective, the degree of intrusion upon his rights, though real, was relatively minor. Even without reasonable, articulable suspicion, Officer Fackrell could legally have stopped Strieff and asked to see his identification, noted his name and date of birth, and then run a warrants check while Strieff remained free to leave. See, e.g., State v. Hansen, 2002 UT 125, \u00b6 34, 63 P.3d 650 (stating that there is no Fourth Amendment seizure when an encounter is consensual, as evidenced by a person voluntarily responding to noncoercive police questioning); State v. Deitman, 739 P.2d 616, 618 (Utah 1984) (per curiam) (concluding that no detention occurs when an officer merely asks a defendant for identification and for an explanation of his or her activities). Had a warrant then turned up, the officer would have had a constitutional basis for detaining Strieff as well as a professional obligation to arrest him. The situation that actually developed in this case is not so different as to suggest that the detention was either a deliberate or glaring violation of Strieff’s constitutional rights or the result of official indifference to them. And, although we accept the State’s concession that Strieff was not free to leave because Officer Fackrell retained his identification, we note that the furthest Officer Fackrell may have taken Strieff’s identification was to the officer’s nearby vehicle. Recognizing that such a minimal encroachment does not justify a Fourth Amendment violation, we nevertheless view the relatively slight intrusion as support for the district court’s conclusion that Officer Fackrell was not acting purposefully or flagrantly in detaining Strieff. See generally State v. Martin, 179 P.3d 457, 463-64 (Kan. 2008) (taking into account all the circumstances surrounding the officers’ encounter with the defendant, including the relatively minimal intrusion upon the defendant’s privacy by engaging him in a brief conversation about his activities, to conclude that the officer’s conduct was not purposeful). The purpose and flagrancy factor therefore weighs against suppression.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-7659","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/7659","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=7659"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/7659\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=7659"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=7659"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=7659"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}