Tuesday, September 11, 2007

Warrant is not a cure-all

Jennifer Conkling won in State v. Hughes, No. 96,394 (Kan. App. Aug. 31, 2007)(unpublished), getting a remand in a Butler County drug prosecution. Mr. Hughes had been stopped for no reason while walking down the street early in the morning and police checked his identification. The COA agreed that the detention was without reasonable suspicion and, therefore, improper. But the district court had relied on State v. Jones, 270 Kan. 526, 17 P.3d 359 (2001), which held that later discovery of an arrest warrant can purge any illegality. The COA acknowledged the KSC case, but held that the district court had to engage in an attenuation analysis before it could rely on that basis:
the three factors . . . . set forth in Brown v. Illinois, 422 U.S. 590, 603-04 (1975) to be considered in determining whether there is sufficient attenuation to dissipate the taint of illegal conduct: (1) the length of time between the conduct and the procurement of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. However, the ultimate question is still whether the evidence came from “ ‘the exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

We acknowledge the attenuation doctrine was not explicitly discussed in Jones. However, the Jones court relied on [United States v. Green, 111 F.3d 515 (7th Cir. 1997)], which in turn relied on the attenuation factors provided in Brown. Additionally, Jones specifically noted there was no evidence of bad faith on the part of the arresting officer, a rather clear reference to one of the Brown factors. We conclude the district court erred in not applying a taint analysis to the search and seizure issue as provided in Brown.

I wonder what that attenuation hearing looks like. I have seen several of these cases where law enforcement try to use a later discovered warrant to salvage an otherwise obviously illegal seizure.

[Update: the state did not file a PR and the mandate issued on October 4, 2007.]

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