Sunday, September 07, 2014

Puppy dog look is insufficient to detain

Catherine A. Zigtema won in State v. Wilburn, No. 110,250 (Kan. App. Aug. 15, 2014) affirming Judges Welch's suppression orders in a Johnson County fraud case.

I won't try to summarize facts in this case that the district court described as "a pit full of snakes that are swirling around with one another" combined with "a law school final in criminal procedure."  But the detention that led to evidence used in the prosecution was premised on a hunch:
At the time of the stop, the officers had no reasonable and articulable suspicion that Wilburn or Curtis had committed any crime. Pierce testified that the sole basis for the stop was the puppy dog "look." We have no trouble concluding that a puppy dog look is insufficient to establish a reasonable and articulable suspicion of criminal activity. This was nothing more than a hunch. "[A] hunch has never been the benchmark of a proper police seizure." The hunch resulted in Wilburn's arrest and subsequently in Pierce answering Wilburn's phone, which he had seized. Still based upon his hunch, Pierce proceeded to the Chick-fil-A where the whole case started to come together.
The state argued that Mr. Wilburn lacked standing to contest a subsequent search of a car that he did not own.  But the COA held that under the "fruit of the poisonous tree" doctrine," Mr. Wilburn did have standing:
Although Epperson and Olivares-Rangel involve slightly different fact patterns than those at issue here, the principle guiding those cases—namely, that a defendant may challenge derivative evidence from an illegal seizure of his or her person regardless of his or her interest (or lack of interest) in that evidence—is sound when applied to the facts of this case. This case, like Mosley, revolves around an illegal stop and detention, not the search of an automobile. Pierce and Jordan lacked reasonable suspicion to stop Wilburn; as a result of their illegal actions, a string of events unraveled, ultimately leading the detectives to the Kia and the evidence within. The illegality of that stop is unaffected by Wilburn's lack of possessory or ownership interest in the Kia, and the violation of his rights is not somehow cured by this lack of interest. The evidence was uncovered as a result of that initial illegal act and must therefore remain suppressed.
The COA also rejected the state's inevitable discovery theory as too speculative and thus affirmed Judge Welch.

[Update: the state filed a PR on September 15, 2014.]

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