The most significant case of the week, maybe the month, is this one from Iowa on Friday, State v. Lane, 2007 Iowa Sup. LEXIS 5 (January 19, 2007) (case name is free link), where the Iowa Supreme Court rejected Wong Sun for a Brown v. Illinois attenuation analysis (all of which seemed a little overdone under the circumstances which I save for the comment below). Remember, Wong Sun applied to searches and Brown applied to confessions, but the Iowa court found that Brown fit this case better, and it goes to great lengths to justify it. This was not, however, a great leap because the court cites other cases which have done the same.
We must address several factors to determine if Hogan’s consent was an exploitation of the previous illegality. In Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 2262-63,45 L. Ed. 2d 416, 427 (1975), the United States Supreme Court identified important factors to consider in a confession case. These factors included the temporal proximity between the illegality and the confession, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. Id. at 603, 95 S. Ct. at 2262-63, 45 L. Ed. 2d at 427; see State v. McCoy, 692 N.W.2d 6, 24 (Iowa 2005) (applying those factors). The present case, of course, is not a confession case, but a consent case. Nevertheless, the issues in each case are similar: whether the confession, or consent, is an exploitation of the prior illegality. The United States Supreme Court has recognized this similarity, see Florida v. Royer, 460 U.S. 491, 501, 103 S. Ct. 1319, 1326, 75 L. Ed. 2d 229, 238-39(1983), and other courts have consistently applied the factors identified in Brown to consent cases, see, e.g., Rodriguez, 945 P.2d at 1364 (analyzing the three factors identified in Brown); Hight, 781 A.2d at 14 (“[W]e find instructive the [three] factors considered relevant by the United States Supreme Court [in Brown].”); Borges, 511 N.E.2d at 59-60 (ordering the trial court to consider the issue according to, inter alia, the factors set forth in Brown); Hansen, 63 P.3d at 665-66 (“The United States Supreme Court has noted three factors that have particular relevance in reviewing the facts: [temporal proximity, intervening circumstances, and the purpose and flagrancy of the illegal conduct].”).
On temporal proximity, the court found the factors weighed in favor of attenuation because a fair amount of time apparently had passed. On presence of intervening circumstances, the court found that the defendant was advised of his right to refuse consent. On the purpose and flagrancy of the police misconduct, the court also found that that weighed in favor of attenuation. On a fourth question of “additional factors,” the court found that the fact that the illegal entry was of another building unrelated to the premises searched. The court added that this had nothing to do with the good faith exception to the exclusionary rule.
Comment: Maybe it’s just me, but I don’t see how the defendant had standing to complain of the first search anyway. Maybe I missed something. Or maybe the court did because they wanted to create this rule.
Avoiding a drunk driving roadblock is not reasonable suspicion without more, such as observing the defendant weaving. Here, there was no reasonable suspicion. State v. Heapy, 113 Haw. 283, 151 P.3d 764 (2007).
Crossing the fog line once in Kansas is not justification for a stop without more, such as weaving. State v. Ross, 149 P.3d 876 (Kan. App. January 19, 2007).*
