Review of the judgment of the Court of Appeals in an unpublished decision filed February 16, 2007. Appeal from Douglas district court; PAULA B. MARTIN, judge. Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed, and the case is remanded.
1. When a defendant seeks to suppress evidence, claiming that a search resulted from an unlawful detention, the State has the burden of proving that the search was lawful.
2. A party that does not brief an issue is deemed to have waived or abandoned that issue.
3. Under the attenuation doctrine, a court may find that the poisonous taint of an unlawful search or seizure has dissipated because the connection between the unlawful law enforcement conduct and the challenged evidence became attenuated.
4. In determining whether the causal chain between unlawful conduct and the acquisition of evidence has been sufficiently attenuated, three factors are analyzed: (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. No single factor is necessarily dispositive.
5. A law enforcement officer who discovers an outstanding arrest warrant on an unlawfully detained person is permitted to execute the warrant by arresting the subject of the warrant.
6. The discovery of an outstanding arrest warrant may be an intervening circumstance which removes the taint of an illegal detention from the evidence acquired in a subsequent, permissible search incident to arrest, depending upon the purpose and flagrancy of the official misconduct that created the illegal detention.
The opinion of the court was delivered by: Johnson, J.
In his prosecution for possession of marijuana, Paul B. Martin unsuccessfully moved to suppress the evidence retrieved from his pocket. On appeal, the Court of Appeals reversed the district court and found that the evidence should have been suppressed. State v. Martin, No. 96,126, unpublished opinion filed February 16, 2007.
The State of Kansas seeks review, claiming that the Court of Appeals erred in failing to consider how the discovery of Martin's outstanding arrest warrant should affect the lawfulness of the search and that the Court of Appeals erroneously based its decision upon a theory that was not presented to the district court or briefed on appeal. Finding that the discovery of the arrest warrant presented an intervening event which removed the taint of the illegality of the preceding unlawful detention, we reverse.
The Court of Appeals succinctly described the factual background as follows:
"After officers observed a man exhibiting physical activity similar to that of someone attempting to urinate, they confronted the man and asked if that was his intent. He admitted his intent to urinate, and one of the officers told him, 'You were honest, why don't you just get out of here.' The man mounted his bicycle and rode away. The officers then noticed a second bicycle and saw Martin standing about 20 feet away. Although the arresting officer would later admit that he 'didn't see [Martin's] motion' and '[didn't] know what he intended to do,' the officers 'stopped' Martin and asked for his identification. Martin was cooperative, identified himself, and provided his date of birth. When the officers ran his name and birthdate through dispatch, they discovered an outstanding warrant for his arrest. Upon Martin's arrest the officers searched his person and found an Altoids tin containing a substance confirmed as marijuana." Martin, slip op. at 2.
In the ensuing prosecution for possessing the marijuana, Martin moved to suppress the evidence. Although defense counsel conceded that the initial encounter was permissible, Martin's attorney argued that the encounter became an unlawful detention when the officer called dispatch for a wants and warrants check. The district court announced that, because the defense had raised no issue as to the initial stop, the court would not address it. Declaring that it is always permissible for an officer to run a warrant check, the district court denied the motion to suppress.
Martin was convicted of possession of marijuana at a bench trial upon stipulated facts at which Martin preserved the suppression issue for appeal. Upon direct appeal, the Court of Appeals noted trial counsel's concession that the initial stop was a voluntary encounter, but opined that it "[disagreed] that any stop was justified." Slip op. at 4-5. Nevertheless, the Court of Appeals proceeded to analyze whether the encounter lost its consensual nature and became unlawful when the officers detained Martin to conduct a wants and warrants check. The Court of Appeals concluded:
"Whether one focuses upon the initial stop or the detention as an extension of a purported voluntary encounter, we conclude that Martin should not have been detained for a wants and warrants check under these circumstances, and we reverse the district court's refusal to suppress the evidence revealed during the subsequent search of his person." Slip op. at 6.
In its petition for review, the State argues that the Court of Appeals erred by: (1) failing to consider the controlling authority of State v. Jones, 270 Kan. 526, 17 P.3d 359 (2001); and (2) reversing the district court based upon a theory which was not presented to the district court or ...