Appeal from Shawnee District Court; NANCY E. PARRISH, judge.
SYLLABUS BY THE COURT 1. The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Section 15 of the Kansas Constitution Bill of Rights provides the same guarantee. 2. Voluntary encounters between law enforcement officers and citizens are not considered seizures and do not trigger the protections of the Fourth Amendment to the United States Constitution. 3. A person is seized by a police officer, thereby triggering an analysis of the police action under the Fourth Amendment to the United States Constitution, when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. 4. If there is no physical force involved, a seizure by show of police authority occurs when the totality of circumstances surrounding the incident would communicate to a reasonable person that he or she is not free to leave and the person submits to the show of authority. 5. A law enforcement officer's mere request for identification or identifying information generally will not constitute a seizure. 6. An officer's retention of an identification card is one factor to be considered in applying the totality of circumstances test, and that factor may, absent offsetting circumstances, mean a reasonable person would not feel free to leave or otherwise terminate an encounter with the officer. 7. Even a brief seizure must be reasonable under the Fourth Amendment to the United States Constitution. A brief, investigatory detention, also known as a Terry stop, is constitutional and statutorily permitted if an objective officer would have a reasonable and articulable suspicion that the detainee committed, is about to commit, or is committing a crime. 8. When a criminal defendant challenges the State's use of evidence allegedly obtained in violation of the defendant's rights under the Fourth Amendment to the United States Constitution, the State bears the burden to establish that the challenged search or seizure was lawful. When the State fails to meet that burden, the evidence may be suppressed through application of the exclusionary rule. 9. One exception to the exclusionary rule is the doctrine of attenuation. Under the attenuation doctrine, the poisonous taint of an unlawful search or seizure dissipates when the connection between the unlawful police conduct and the discovery of the challenged evidence becomes attenuated. 10. When evidence would not have come to light but for the illegal actions of the police, the relevant question is whether officers discovered the allegedly tainted evidence through exploitation of the illegal conduct or instead by means sufficiently distinguishable to be purged of the primary taint. 11. Whether the taint of illegal police conduct has been sufficiently purged through attenuation is a question of fact that appellate courts review under a substantial competent evidence standard. 12. Under an attenuation analysis, courts generally consider (1) the time that elapsed between the illegal police conduct and the acquisition of the evidence sought to be suppressed, (2) the presence of any intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. But no one factor is controlling, and other factors may also be relevant to the analysis.
13. When an outstanding arrest warrant is discovered during an unlawful detention, the unlawful detention does not taint the lawful arrest on the outstanding warrant, nor does it prevent the officer from conducting a safety search pursuant to that arrest; but it does taint any evidence discovered during the unlawful detention or during a search incident to the lawful arrest. 14. To the extent that State v. Martin, 285 Kan. 994, 179 P.3d 457, cert. denied 555 U.S. 880 (2008), or any of this court's prior cases can be read to suggest that the discovery of an outstanding arrest warrant always constitutes an intervening circumstance for purposes of attenuation, we expressly disapprove that suggestion. The discovery of an outstanding arrest warrant is relevant to the attenuation analysis but is not independently sufficient to support attenuation. 15. When evidence is discovered after an unlawful detention and discovery of an arrest warrant, the framework articulated in State v. Martin, 285 Kan. 994, 179 P.3d 457, cert. denied 555 U.S. 880 (2008), applies. The three factors generally considered in performing an attenuation analysis-temporal proximity, presence of intervening circumstances, and purpose and flagrancy of police misconduct-are not exclusive, nor are they necessarily entitled to equal weight. Instead, consideration of all relevant factors will necessarily depend on the particular facts presented in each case. 16. In clarifying State v. Martin, 285 Kan. 994, 179 P.3d 457, cert. denied 555 U.S. 880 (2008), we hold that for purposes of applying the second factor of the attenuation analysis, the subsequent discovery of an arrest warrant is of minimal importance in
attenuating the taint from an illegal detention upon evidence discovered incident to an arrest on the warrant. 17. In clarifying State v. Martin, 285 Kan. 994, 179 P.3d 457, cert. denied 555 U.S. 880 (2008), we hold that, for purposes ofapplying the third factor of the attenuation analysis, factors such as an officer's regular practices and routines, an officer's reason for initiating the encounter, the clarity of the law forbidding the illegal conduct, and the objective appearance of consent may all be important considerations. By focusing on officer conduct, courts may distinguish between ordinary encounters that happen to devolve into illegal seizures and intentionally illegal seizures for the purpose of discovering warrants.
The opinion of the court was delivered by: Moritz, J.
Review of the judgment of the Court of Appeals in 44 Kan. App. 2d 1078, 242 P.3d 223 (2010).
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed, and the case is remanded.
The opinion of the court was delivered by MORITZ, J.
During what began as a voluntary encounter, two law enforcement officers retained Joseph Moralez' identification card and detained him while conducting a warrants check, all without any reasonable suspicion of criminal activity by Moralez.
After discovering an outstanding warrant for Moralez, officers arrested Moralez and seized marijuana from his pocket. The State charged Moralez with felony possession of marijuana, and Moralez sought to suppress the marijuana as the fruit of an unlawful detention. The district court denied the motion and subsequently convicted Moralez as charged. On direct appeal, a divided panel of the Court of Appeals affirmed the district court's suppression ruling and Moralez' conviction. State v. Moralez, 44 Kan. App. 2d 1078, 242 P.2d 223 (2010), rev. granted 292 Kan. 968 (2011). We granted Moralez' petition for review under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).
We conclude the officers unlawfully detained Moralez when they retained his identification card and ran a warrants check without reasonable suspicion of his involvement in criminal activity. Further, we clarify our opinion in State v. Martin, 285 Kan. 994, 179 P.3d 457, cert. denied 555 U.S. 880 (2008), regarding the effect of the discovery of an outstanding arrest warrant during an unlawful detention. Ultimately, we hold that under the facts of this case, the officers' discovery of Moralez' outstanding arrest warrant did not sufficiently purge the taint of his unlawful detention. Accordingly, we reverse the Court of Appeals' decision affirming the suppression ruling, reverse the district court's suppression ruling, reverse Moralez' conviction, and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
We have summarized below the hearing testimony of the arresting officer and the defendant.
Officer Whisman's Testimony
Around 2:48 a.m., patrolling Topeka Police Officer Damon Whisman stopped at an apartment complex parking lot to investigate an unoccupied and legally parked car with its headlights on. As he did so, the headlights automatically turned off. In the meantime, Whisman noticed the car's 30-day license tag had expired. At some point, Topeka Police Officer Mark Hilt arrived in a separate patrol car.
According to Whisman, the encounter with Moralez began when Moralez called down to Whisman from a second-floor apartment balcony and asked Whisman what was going on. Whisman did not recall whether he asked Moralez to come downstairs; in any event, Moralez went downstairs and joined the officers because either "[Whisman] was having a hard time hearing [Moralez] or [Moralez] was having a hard time hearing [Whisman]."
Whisman asked Moralez who owned the vehicle, and Moralez identified an acquaintance, Melody Legate, as its owner. Whisman testified he did not recall whether Moralez offered to go and get Legate. Ultimately, Hilt contacted Legate and Legate also joined the officers.
According to Whisman, Moralez remained in the area while officers spoke with Legate, but the officers did not include him in their conversation with Legate. Whisman testified he requested Moralez' identification at some point during Whisman's conversation with Legate because he "[j]ust want[ed] to document who [he] talked to." According to Whisman, Moralez provided a Kansas identification card and Legate provided a Kansas driver's license. Although Whisman admitted he did not suspect Moralez or Legate of committing any offenses, he requested that dispatch run both of their identifications to check for outstanding warrants.
When dispatch advised Whisman of a possible warrant for Moralez, Whisman instructed Moralez to remain there until Whisman could confirm the warrant. Whisman testified this was the only time he instructed Moralez to stay in the area, but he could not recall whether Moralez attempted to leave the area before being instructed to remain. Dispatch ultimately confirmed that Moralez had an outstanding warrant. Whisman arrested Moralez at 3:04 a.m. and asked Moralez if he had anything on him. Moralez admitted he had a small bag of marijuana in his pocket, and Whisman seized the marijuana.
Moralez testified his contact with the officers began when he went downstairs to get cigarettes from Legate's vehicle, saw the two police officers standing in the parking lot, and asked them what was going on. After identifying Legate as the owner of the vehicle with an expired tag, Moralez offered to go back into the apartment to get Legate, but Legate already was coming downstairs.
Moralez testified he heard the officers talking to Legate about the expired tag, but Moralez believed he was free to leave at that point because the conversation did not include him. He started to return to the apartment when the officers "asked [him] again not to go anywhere." Moralez testified he believed he was free to leave even after the officers told him not to go inside, but he chose not to do so out of respect for law enforcement. According to Moralez, when he asked the officers why they asked him not to go anywhere, "they said they wanted to run names or something," and they asked for his name.
Suppression Motion and the District Court's Ruling
After the State charged Moralez with felony possession of marijuana, he moved to suppress the marijuana and his post-arrest admission that he possessed marijuana. The State argued the encounter was voluntary because Moralez felt free to leave, but Moralez countered that regardless of his subjective belief that he was free to leave, objectively he was not free to leave because the officers instructed him to remain in the area. Moralez urged the district court to distinguish this court's ruling in Martin, arguing "the finding of the warrant was a direct consequence of an unlawful detention because [the officers] didn't have any real reason to stop him."
Focusing on Moralez' testimony that he felt free to leave, the district court concluded the encounter was voluntary and denied Moralez' suppression motion. Alternatively, the court found Martin indistinguishable and concluded the discovery of Moralez' outstanding arrest warrant purged the taint of any unlawful conduct by the officers. Ultimately, the district court found Moralez guilty as charged and imposed a prison sentence of 13 months but suspended the sentence and ordered Moralez to serve 12 months' probation.
Court of Appeals' Decision
On direct appeal, a divided panel of the Court of Appeals affirmed the suppression ruling and Moralez' conviction. Moralez, 44 Kan. App. 2d 1078. Citing deficiencies in the record, the majority declined to decide whether the officers unlawfully detained Moralez. 44 Kan. App. 2d at 1084-85. Instead, the majority applied Martin to conclude "that even if Moralez was unlawfully detained, the subsequent discovery of the arrest warrant purged the taint of the unlawful detention." Moralez,44 Kan. App. 2d at 1085, 1088-90.
In a dissenting opinion, Judge Atcheson concluded the officers unlawfully detained Moralez when Whisman "physically took possession of the identification card to run the warrant check." 44 Kan. App. 2d at 1097-100 (Atcheson, J., dissenting). Judge Atcheson strongly criticized Martin but ultimately concluded this court's analysis in Martin did not ...