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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