Friday, May 24, 2013

Attenuation doctrine clarified

Michael J. Bartee won in State v. Moralez, No. 102,342 (Kan. May 17, 2013), reversing a Shawnee County drug  conviction.  The KSC made it clear that while asking for identification does not generally constitute a seizure, retention of the card beyond the point needed for identification does:

[W]e cannot discern from the record how long [the officer] retained Moralez' identification card. But, as in Lopez, we know he did so longer than necessary to “document” speaking with Moralez. And, we know that [the officer] retained Moralez' identification while he conducted the warrants check despite lacking any suspicion that Moralez was engaged in any criminal activity.

Under these circumstances, we conclude [the officer] seized Moralez when [he] requested and took possession of Moralez' identification card and then retained it while running a check for outstanding warrants. Further, because [the officer] did not suspect Moralez of involvement in any criminal activity, the seizure was unlawful.

The KSC went on to consider whether, as the district court had found, discovery of an outstanding arrest warrant purged the taint of the illegal detention so that the exclusionary rule did not apply.  The KSC reviewed its precedent and clarified the operation of the attenuation doctrine:

We now recognize that in Jones we failed to distinguish between the lawfulness of an arrest based on an outstanding warrant discovered during an unlawful detention and the taint of the unlawful detention that may apply to evidence discovered pursuant to the lawful arrest. In Martin, we compounded this error by over-emphasizing the discovery of the outstanding warrant and the lawfulness of the arrest based on the warrant.

. . . .

To the extent that Martin or Jones have been or can be read to suggest that the discovery of an outstanding arrest warrant always constitutes an intervening circumstance that dissipates any taint, we now expressly disapprove that interpretation. Stated more succinctly, the preceding unlawful detention does not taint the lawful arrest on the outstanding warrant, nor does it prevent the officer from conducting a safety search pursuant to that arrest; but it does taint any evidence discovered during the unlawful detention or during a search incident to the lawful arrest.

Were it otherwise, law enforcement officers could randomly stop and detain citizens, request identification, and run warrants checks despite the lack of any reasonable suspicion to support the detention, knowing that if the detention leads to discovery of an outstanding arrest warrant, any evidence discovered in the subsequent search will be admissible against the defendant in a criminal proceeding unrelated to the lawful arrest.

 In this regard, we agree with the conclusion of the Arizona Supreme Court in applying the second Brown factor: “[T]he subsequent discovery of a warrant is of minimal importance in attenuating the taint from an illegal detention upon evidence discovered during a search incident to an arrest on the warrant.”

Specifically with regard to the third Martin factor—flagrancy of the official misconduct, the KSC denounced law enforcement “fishing expeditions” :

when law enforcement officers approach random citizens, request identification, and run warrants checks for no apparent reason, the officers clearly are performing investigatory detentions designed and executed in the hope that something might turn up. Though some have understood us to condone this practice in Martin, we now expressly disapprove of any language in Martin that could be interpreted as holding or suggesting that “fishing expeditions” by law enforcement officers are generally acceptable as long as the detention is brief and the officers are courteous. See Martin, 285 Kan. at 1004, 179 P.3d 457. In fact, quite the opposite may be true. Regardless of whether a suspicionless detention to identify a citizen and check that citizen for outstanding arrest warrants is characterized as a standard practice, a field interview, a pedestrian check, or a “fishing expedition,” such a detention can, and often will, demonstrate at least some level of flagrant police conduct.

Applying the clarified factors, the KSC held that the taint was not purged in this case:


To summarize our conclusions regarding the attenuation analysis, we hold that the first factor—the short time between Moralez' initial contact with police and the discovery of the marijuana—weighs heavily in favor of Moralez, while the second factor—the presence of intervening circumstances—essentially is neutral under the circumstances of this case. Therefore, our conclusion regarding the third factor and the flagrancy of the officer's conduct tips the balance in favor of Moralez and requires application of the exclusionary rule in this case.

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