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State v. Tatro

Supreme Court of Kansas

July 26, 2019

State of Kansas, Appellant,
Erica Renee Tatro, Appellee.


         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 ...

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