BY THE COURT
Under the exclusionary rule, if a criminal defendant
challenges the State's use of evidence obtained in
violation of the Fourth Amendment to the United States
Constitution, a court may suppress the primary evidence
obtained as a direct result of an illegal search or seizure
and evidence later discovered and found to be derivative of
an illegality. But the exclusionary rule has never been
interpreted to proscribe the use of illegally seized evidence
in all proceedings or against all persons.
attenuation doctrine is an exception to the exclusionary
rule. It applies when the connection between unconstitutional
police conduct and the evidence is remote or has been
interrupted by some intervening circumstance, so that the
interest protected by the constitutional guarantee that has
been violated would not be served by suppression of the
bright-line rule defines when the attenuation doctrine
applies. Rather, courts must examine the particular facts of
each case and determine whether those circumstances attenuate
the taint of illegality.
a party appeals a ruling based on the attenuation doctrine,
the appellate court considers a question of fact it must
review to determine whether it is supported by substantial
competent evidence. The ultimate legal conclusion of whether
to suppress the evidence is reviewed de novo.
United States Supreme Court has identified three nonexclusive
factors for determining whether the attenuation doctrine
applies. First, courts look to the temporal proximity between
the unconstitutional conduct and the discovery of evidence to
determine how closely the discovery of evidence followed the
unconstitutional seizure. Second, courts consider intervening
circumstances. Third, and particularly significant, a court
examines the purpose and flagrancy of the official
misconduct. No one factor is controlling, and other factors
also may be relevant to the attenuation analysis.
Under the attenuation doctrine's temporal proximity
factor, a finding of attenuation is not generally appropriate
unless substantial time elapses between an unlawful act and
when a law enforcement officer obtains the evidence.
Development of probable cause to arrest based on a police
officer's discovery of evidence of a crime after the
officer has illegally detained an individual does not
attenuate the taint of an illegal seizure and allow admission
of evidence obtained in a later search. The probable cause
flows directly from the unlawful seizure and does not break
the causal connection between the Fourth Amendment violation
and the search. It is not, therefore, an intervening
Whether the third attenuation factor of purposeful or
flagrant misconduct weighs in favor of suppression turns on
multiple considerations, including whether the officer acted
in good faith, committed multiple unconstitutional acts
following the unconstitutional seizure, or acted as part of a
systemic and recurrent pattern of police misconduct. As to
the factor of good faith, the officer's subjective state
of mind weighs heavily. Courts should generally find
purposeful and flagrant misconduct if: (1) the impropriety of
the official's misconduct was obvious or the official
knew, at the time, that his or her conduct was likely
unconstitutional but still engaged in it; and (2) the
misconduct was investigatory in design and purpose and
executed in the hope that something might turn up.
of the judgment of the Court of Appeals in an unpublished
opinion filed September 8, 2017.
from Reno District Court, Timothy J. Chambers, judge.
of the Court of Appeals affirming the district court on the
single issue subject to our review is reversed. Judgment of
the district court is reversed and the case is remanded for
Randall Hodgkinson, of Kansas Appellate Defender Office,
argued the cause, and Kimberly Streit Vogelsberg, of the same
office, was on the briefs for appellant.
R. Davidson, assistant district attorney, argued the cause,
and Keith Schroeder, district attorney, and Derek Schmidt,
attorney general, were with him on the brief for appellee.
appeal, a Court of Appeals panel reversed Daniel J.
Christian's convictions and sentences, holding he did not
properly waive his right to a jury trial. But the panel also
provided guidance on remand about Christian's motion to
suppress evidence seized after a police officer
unconstitutionally detained him. The panel applied the
attenuation doctrine, concluding the district court could
admit the evidence. The panel's holding rests mainly on
its determination that a police officer's discovery of an
expired tag on Christian's vehicle presented an
intervening circumstance that attenuated the taint of the
officer's unconstitutional seizure of Christian.
State v. Christian, No. 116, 133, 2017 WL 3947406,
at *1, 4-5, 9 (Kan. App. 2017) (unpublished opinion). We
reverse that holding because the discovery of the expired tag
did not break the causal chain set in motion by the illegal
and Procedural Background
lawfully parked his car on a public street and sat there for
a period of time. An unidentified caller contacted police to
report a suspicious car in front of her house. A Hutchinson
police officer responded and saw a car matching the one
described by the caller. The car's driver-later
identified as Christian-ducked down as the officer drove
past. The officer parked his patrol car perpendicular to the
rear of Christian's car, activated his emergency lights,
and got out to make contact. As he approached the car, he
noticed its license tag had expired. The officer asked
Christian for his driver's license and proof of
insurance. Christian produced a valid driver's license
but did not have proof of insurance. The officer told
Christian to exit the vehicle, and he arrested Christian for
failure to provide proof of insurance.
tried to take his keys with him, but the officer instructed
him to put them on the car's roof. Another officer then
arrived and asked Christian about a small silver container on
Christian's key chain. Christian responded he kept pills
in it and, when asked, consented to a search of the
container. It contained a "[g]reen leafy
vegetation" consistent with marijuana. The first officer
then placed Christian under arrest for possession of
marijuana, and the officers searched Christian's vehicle.
The search revealed ...