SYLLABUS
BY THE COURT
1.
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. Instead, to
trigger the exclusionary rule, police conduct must be
sufficiently deliberate, reckless, or grossly negligent, or,
in some circumstances, recurring or systemic negligence, so
that exclusion can meaningfully deter it.
2. The
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
evidence obtained.
3. No
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.
4. When
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. Substantial competent evidence possesses
both relevance and substance and furnishes a substantial
basis in fact from which a court can reasonably resolve the
issues. An appellate court does not reweigh evidence, pass on
the credibility of witnesses, or resolve conflicts in the
evidence.
5. The
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.
6.
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
the discovery of evidence.
7.
Under Utah v. Strieff, 579 U.S.___, 136 S.Ct. 2056,
195 L.Ed.2d 400 (2016), a valid, preexisting, and untainted
arrest warrant is an intervening factor that strongly favors
the State. This holding abrogates that portion of State
v. Moralez, 297 Kan. 397, 415, 300 P.3d 1090 (2013),
holding the discovery of a preexisting warrant carries little
weight when applying the attenuation doctrine. It does not
abrogate other portions of Moralez.
8.
Whether the third attenuation factor of purposeful or
flagrant misconduct weighs in favor of suppression turns on
multiple factors, including whether the officer acted in good
faith, committed multiple unconstitutional acts during 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.
Review
of the judgment of the Court of Appeals in an unpublished
opinion filed April 13, 2018.
Appeal
from Saline District Court, Rene S. Young, judge.
Brock
R. Abbey, assistant county attorney, argued the cause, and
Ellen H. Mitchell, county attorney, and Derek Schmidt,
attorney general, were with him on the briefs for appellant.
Joel
Ensey, of Salina Regional Public Defender's Office, of
Salina, argued the cause and was on the briefs for appellee.
LUCKERT, J.
Applying
the Fourth Amendment to the United States Constitution, the
United States Supreme Court has developed a remedy that
prohibits the admission of evidence obtained in violation of
a person's constitutional rights. That remedy, known as
the exclusionary rule, seeks to deter future constitutional
violations by police officers and applies only when it
furthers the rule's purpose. Several exceptions to the
rule define situations in which the Supreme Court has
determined the purpose is not served. This appeal focuses on
one such exception-the attenuation doctrine. Under this
exception, a court may admit evidence obtained as a result of
an unconstitutional seizure if the connection between the
unconstitutional police conduct and the discovery of the
evidence is remote or has been sufficiently interrupted by an
intervening circumstance, as long as the police did not
commit the misconduct purposefully or flagrantly. See
Utah v. Strieff, 579 U.S. ___, 136 S.Ct. 2056,
2061-64, 195 L.Ed.2d 400 (2016).
Applying
the attenuation doctrine factors defined by the United States
Supreme Court, the district court suppressed evidence derived
from a search because it found that the search resulted
directly from a police officer's unconstitutional seizure
of Erica Renee Tatro. The Court of Appeals reversed, holding
an intervening circumstance attenuated the taint of an
unlawful seizure and thus did not invalidate a later search.
State v. Tatro, No. 118, 237, 2018 WL 1770191, at
*1, 4-7 (Kan. App. 2018) (unpublished opinion). On review, we
hold the district court erred in failing to consider the
officer's discovery of an arrest warrant as a
circumstance that intervened between the officer's
illegal detention of Tatro and his search of her purse after
arresting her on the warrant. But unlike the Court of
Appeals, we remand to the district court for further findings
of facts. There remain unanswered questions of fact and we
remand for the district court to make all appropriate
findings of fact under the correct legal standard.
Factual
and Procedural Background
A
Salina police officer stopped Tatro while she was walking in
the middle of a public street at around 3:30 a.m. The stop
occurred in a neighborhood the officer considered a
high-crime area known for vehicle burglaries. He thought it
suspicious that Tatro was walking in the street and using a
flashlight but acknowledged the area was very dark and he
only observed her using the light to see where she was
walking.
The
officer stopped Tatro and asked for identification. She could
not provide it but told the officer her name. He asked
questions about where she lived and worked and whether her
roommate had any contact with someone he called,
"Shorty." He then conducted a warrant check, which
showed Tatro had an outstanding arrest warrant. The officer
arrested Tatro based on the warrant. He then seized her purse
and conducted a pat-down search of her person. Minutes later,
a second officer arrived on scene at which time the first
...