KS: Inquiry to resolve an alleged emergency was reasonable, but extending detention to check warrants was unreasonable even under Strieff

Officers extending a safety check once the person was found to be fine just to see if there were warrants on the person went beyond the basis for the detention and was unreasonable. When the suspected emergency was resolved, the person should have been released. State case law has said since at least 1990 that running warrants on a detainee requires a reason other than just curiosity. Thus, attenuation under Strieff doesn’t favor the state. State v. Ellis, 2020 Kan. LEXIS 80 (Aug. 7, 2020), prior appeal State v. Ellis, 57 Kan. App. 2d 477, 453 P.3d 882 (2019):

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.]”

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.