No attenuation

Charles O'Hara won in State v. Wagner, No. 97,643 (Kan. App. March 21, 2008), reversing some Lyon County burglary convictions based on Fourth Amendment violations. Officers had stopped a car without probable cause and later obtained some confessions to the burglaries. The main issue was whether the confessions were so attenuated that they could be admitted despite the illegal seizure:

Our Supreme Court has set forth four factors to be considered when determining whether a defendant's confession followed by an illegal arrest is admissible: (1) whether Miranda warnings were given; (2) the proximity of the illegal arrest and the statement or confession; (3) the purpose and flagrancy of the officer's misconduct; and (4) other intervening circumstances. State v. Hill, 281 Kan. [136, 153, 130 P.3d 1 (2006)].

. . . .

As in Hill, the only factor weighing in favor of attenuating the unlawful arrest and admitting Wagner's confession is that Wagner was given Miranda warnings before he made his statements. The remaining three factors all weigh in favor of suppressing Wagner's confession. Wagner was kept in continuous police custody between his illegal arrest and his confession at the police station. During those 10 hours, he was questioned, his truck was searched, and he was taken to jail where he was booked on suspicion of burglary. The flagrancy of the deputies' misconduct was not justified based on the circumstances surrounding the arrest and search. Finally, there were no intervening circumstances between Wagner's arrest and his interrogation sufficient to purge the taint of Wagner's illegal arrest and the illegal search of his truck. As a result, the record does not contain substantial competent evidence to support the trial court's finding that any taint resulting from the seizure of the evidence or Wagner's arrest was attenuated by the time Wagner was questioned at the police department.

Under all of the circumstances, the connection between Wagner's illegal arrest and the illegal search of his truck and Wagner's confession cannot be deemed "so attenuated as to dissipate the taint." See Nardone [ v. United States, 308 U.S. 338, 341 (1939)]. Because Wagner's confession resulted from the exploitation of the unlawful arrest and the evidence obtained during the unlawful search of his truck, Wagner's confession was inadmissible at trial and should have been suppressed. Accordingly, we reverse Wagner's convictions and remand the case for a new trial without Wagner's confession or statements.

Judge Leben concurred disagreeing that the officer's conduct was so flagrant, but still concluding that the remaining factors did not support attenuation.

Here is a link to FourthAmendment.com's coverage of the case.

[Update: the state did not file a PR and the mandate issued on April 24, 2008.]