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State v. Wilburn

Court of Appeals of Kansas

August 15, 2014


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[Copyrighted Material Omitted]

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Appeal from Johnson District Court; SARA WELCH, judge.



1. A " puppy dog look," defined as the look a puppy gives a person when it has done something wrong and the puppy knows it has done something wrong, is an insufficient basis to stop and detain an individual who has otherwise done nothing to indicate he or she is committing, has committed, or is about to commit a crime.

2. Even though a defendant lacks a possessory or property interest in a motor vehicle that would enable a direct challenge to its search, he or she may still contest the lawfulness of the detention and seek to suppress evidence as the fruit of the illegal detention.

3. If the prosecution can establish by a preponderance of the evidence that otherwise unlawfully obtained evidence ultimately or inevitably would have been discovered by lawful means, the evidence is admissible under the inevitable discovery doctrine. The burden is on the State to demonstrate ultimate admissibility.

4. The inevitable discovery doctrine does not invite speculation about the possible series of events under which the evidence may have been discovered but requires an affirmative showing of a reasonable probability that the evidence would inevitably be discovered through lawful means already initiated when the seizure was made.

Vanessa M. Riebli, assistant district attorney, Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant.

Catherine A. Zigtema, of Law Office of Kate Zigtema LC, of Lenexa, for appellee.



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Arnold-Burger, J.:

In February 2012, Lancelot Joshua Wilburn and a companion were stopped by two Overland Park detectives at Oak Park Mall. Suspecting criminal activity, the detectives detained the two men and confiscated their cell phones. A bizarre sequence of events unfolded from this detention, resulting in an intercepted phone call, four arrests, the search of a fraudulently rented Kia, and the discovery of a large amount of evidence tying Wilburn to a fraud ring. But because the detectives lacked reasonable suspicion to stop and detain Wilburn, the district court suppressed all evidence stemming from his detention, including the statements made by his companion, and the evidence seized from the Kia.

The State appeals this ruling on three bases: (1) Wilburn lacked standing to challenge his companion's statements; (2) Wilburn lacked standing to challenge the search of the Kia; and (3) discovery of the Kia and its contents was inevitable. After a review of the evidence and the law we find: (1) Wilburn had standing to challenge his companion's statements; (2) even though Wilburn had no standing to challenge the search of the Kia, its contents were still properly excluded as fruit of the poisonous tree; and (3) the discovery of the Kia and its contents was not inevitable. Accordingly, we affirm the decision of the district court suppressing the companion's statements and the items found in the Kia.

Factual and Procedural History

To quote the district court, the facts of this case are " a pit full of snakes that are swirling around with one another" combined with " a law school final in criminal procedure." We will do our best to summarize the events of February 2012.

Detective Byron Pierce from the Overland Park Police Department was dispatched to Oak Park Mall in Overland Park. Pierce, who specializes as a fraud and financial crimes investigator, arrived with Detective Lance Jordan to investigate fraud at Barnes & Noble. Specifically, dispatch said that an African-American woman was committing check fraud at the store and had been detained. As Pierce exited his vehicle, he noticed two African-American men in the parking lot, walking away from Barnes & Noble and staring at him. The men were dressed appropriately and did not appear threatening or to be carrying contraband. However, one of the men appeared to fixate on Pierce, giving him what he termed " 'the look.'" Pierce explained this look at the preliminary hearing:

" Say, for instance, you have a puppy at home and you put the puppy in a kennel and you go off to work. Somehow that puppy is able to defeat that lock on the door and the puppy is running loose all day long. You walk in the door, greeted by the puppy, and the first thing that comes to mind is, What are you doing out? And the puppy is looking at you, What are you doing home? You're both looking at each other like, well, I've been up to no good and, as the pet owner, I'm saying, What have you been into? It's 'the look.'"

Because of this look and his experience investigating fraud and financial crimes, Pierce suspected that one or both of the men may have been secondarily involved with the check fraud at Barnes & Noble. When Pierce turned around toward the men, they began to separate and walk quickly away; Pierce alerted Jordan, and they pursued the men. The detectives stopped the men--later identified as Wilburn and Raymond Curtis-- either just inside or just outside the nearby Dillard's store and handcuffed them.

Detectives then questioned Wilburn and Curtis, learning--albeit through some evasiveness--that they originated from California and that they arrived in a vehicle. Pierce felt that the men's stories conflicted in a suspicious manner. As such, Pierce detained Wilburn and Curtis and placed them in a police car. Importantly, he also confiscated their cell phones. After attempting to question both men further, Pierce left to interview the woman detained at Barnes & Noble, who ultimately had no connection to either Wilburn or Curtis.

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While Pierce was in Barnes & Noble, one of the seized cell phones began to ring, ringing " almost continually" during his interview with the check fraud suspect. Pierce answered the phone after the interview, and a female said, " 'Hey, I'm over at Chick-fil-A, come get me.'" Because Wilburn originally said he and Curtis were alone at the mall, Pierce and Jordan found the call suspicious and proceeded to investigate. At the restaurant, they encountered two women--Tori Condoll and Markima Carroll--with a number of shopping bags. When asked about any potential connection to Wilburn, Condoll told Pierce that Wilburn was her boyfriend. The women consented to a search of their bags, and the detectives found receipts indicating that a third woman, Kathryn Green, had bought the items. The women stated that an aunt purchased the items but could not explain who Green was, leading the detectives to suspect the items were the fruits of identity theft.

In part due to a conversation with Nordstrom's loss prevention team and in part due to his interview with Condoll, Pierce determined that at least Condoll and Carroll-- and possibly all four suspects (Condoll, Carroll, Wilburn, and Curtis)--had arrived at the mall in a sport utility vehicle (SUV). When a search determined that none of the suspects had keys on their person, Pierce announced to the other officers working the case that they needed to look for keys to such a vehicle. Another officer then remembered a passerby outside of Barnes & Noble handing him a set of dropped keys, which he had turned into mall security. Pierce asked mall security to search the parking lot for the car matching the keys; the vehicle in question ended up being a blue Kia SUV with California license plates parked just north of Barnes & Noble. Nordstrom and Target bags were visible in the car, as was clothing. Running the tags revealed that the Kia had been rented in California by a woman named Kathryn Green.

Ultimately, Pierce obtained a search warrant for the Kia, inside of which he and other officers recovered Nordstrom and Target purchases thought to be the fruits of criminal activity, as well as " instruments of fraud and forgery, counterfeit American Express Traveler's Cheques," and counterfeit credit cards naming Kathryn Green as the cardholder. Later, Condoll informed law enforcement that she was working for Wilburn using fraudulent credit cards and traveler's checks. Moreover, a third party later contacted Pierce and provided him with counterfeit driver's licenses, including one that purported to be Kathryn Green but had Condoll's picture on it.

In connection with the foregoing series of events, the State charged Wilburn with 20 offenses, including multiple counts of theft, forgery, identity theft, and a single count of criminal use of a financial card. Wilburn subsequently moved to suppress all evidence obtained subsequent to Pierce stopping him and Curtis outside Dillard's. Wilburn argued that Pierce lacked reasonable suspicion to stop him and that, even if reasonable suspicion did exist, Pierce exceeded the scope of his investigatory stop by detaining him. Moreover, Wilburn contended that detectives lacked probable cause to arrest him. Because every seizure from the initial stop to the arrest was an illegal one, Wilburn argued that all evidence obtained from that stop needed to be suppressed as fruit of that initial illegality. The State argued that reasonable suspicion existed to stop Wilburn and that Pierce never exceeded the scope of the investigatory stop. Additionally, the State contended that both inevitable discovery and the attenuation doctrine applied, rendering the evidence admissible.

The district court heard the motion to suppress in multiple stages. The first portion of the motion was heard by Judge John Bennett over at least two dates. For the most part, the facts developed at this hearing are not relevant to this appeal. However, Jordan testified about the amount of credit card and check fraud that occurs at Oak Park Mall, the structure of the groups that commit these types of fraud, and the events that occurred when he and Pierce encountered Wilburn and Curtis outside Barnes & Noble. Importantly, Jordan indicated that, while he and Pierce were at Chick-fil-A with Condoll and Carroll, Pierce spoke to another detective on the phone. That detective reported

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that earlier in the day, he had spoken to Nordstrom personnel about a group of individuals who were perpetrating credit card fraud at the mall. That detective also informed Pierce that the group in question originated from California, furthering the connection between Wilburn, Curtis, and the fraudulent transactions. Moreover, one of the females appeared on a surveillance video recovered from Nordstrom, which led to the arrest of all four suspects.

Other testimony developed during the hearing before Judge Bennett included the evidentiary foundation of certain information downloaded from cell phones in the case, Pierce's explanation for why he needed the cell phone data downloaded, and some confusion over the timeline between when Pierce answered the phone call from Condoll and when he arrived at Chick-fil-A.

The district court's comments at the close of argument suggest that the pertinent issues at the this stage of the hearing concerned whether the initial stop was legal, whether Pierce answered Wilburn's phone (rather than Curtis'), and whether the State could prove that the evidence from the Kia was discovered through means independent from the phone call. After argument, the district court ruled that the detectives lacked reasonable suspicion to stop Wilburn and Curtis in Dillard's. The court also found that the State was unable to establish that Pierce had answered Curtis' phone and not Wilburn's phone. Because Pierce lacked reasonable suspicion to stop Wilburn, answering Wilburn's phone was also impermissible, requiring the suppression of all evidence obtained as a result of that phone call as fruit of the poisonous tree. As for the question of the independent basis to tie Wilburn to Condoll, Carroll, and the Kia, the district court reserved dismissing the case to allow the State to review evidence and attempt to prove that such an independent basis existed. At that time, the State requested a 1-week continuance to " evaluate whether or not we are going to interlock the motion to suppress," as well as to gather information for the remaining issues.

The State ultimately elected against an appeal of the March 2013 ruling, and in April and June 2013, Judge Sara Welch heard the second stage of the motion to suppress. This hearing addressed only the applicability of the doctrines of inevitable discovery and independent source, Wilburn's standing to challenge the search of the Kia, and Wilburn's standing to challenge the use of Curtis' statements. Nothing in this hearing disrupted Judge Bennett's ruling; rather, it served to address the outstanding issues raised by the parties.

Regarding standing, Wilburn and the State essentially agreed to ask that the district court take judicial notice of the transcript from the preliminary hearing when considering whether Wilburn had a possessory interest in the Kia sufficient to allow him to challenge the search. The parties agreed that the basic facts included that the Kia was rented by Condoll and Carroll with fraudulent identification and credit cards and that Wilburn orchestrated the rental. The legal argument focused on whether the fraudulent rental rendered the Kia stolen. After some discussion, the district court agreed to take judicial notice of the transcript and reserve ruling on ...

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