Derivative evidence cannot attenuate initial illegal conduct

Kimberly Streit Vogelsberg and Randall L. Hodgkinson won in State v. Christian, No. 116,133 (Kan. July 26, 2019), obtaining reversal in a Reno County drug prosecution. Officers had arrested Mr. Christian for failure to provide proof of insurance. During the arrest, an officer directed Mr. Christian to put his keys on the roof of the car and asked about an attached silver container. Mr. Christian said that he kept pills in it and consented to a search. The search revealed marijuana. The officer then arrested Mr. Christian for possession of marijuana and searched the car, revealing other drug evidence.

The COA held that the initial seizure was not supported by reasonable suspicion, but held that the evidence should not be suppressed under the attenuation doctrine. On review, the KSC only reached the issue of whether the attenuation doctrine applied. The KSC held that there was temporal proximity because no substantial amount of time passed between the unlawful act and discovery of the evidence. In particular, the KSC rejected the state's claim that intervening circumstances were present:

Christian's arrest did not result from the officer fulfilling his duty to execute a preexisting arrest warrant. Instead, the panel found the officer had discretion to arrest Christian for no proof of insurance. Detaining Christian for the expired tag and arresting him for no proof of insurance were not "ministerial act[s]" consistent with the officer's "'sworn duty to carry out [the] provisions'" of an arrest warrant. Rather, these were discretionary acts within his investigatory role as a law enforcement officer. 

In addition, unlike a valid, preexisting warrant unrelated to the stop, the bases relied on to detain—the expired tag—and arrest Christian—the lack of proof of insurance—arose from and were directly related to the unlawful initial detention. Granted, these facts supported probable cause that crimes had been committed. But all of the officer's actions flowed from and were tainted by the unconstitutional seizure. To rule otherwise would allow derivative evidence to attenuate the initial illegality. But that is not the attenuation doctrine's purpose.

Finally, the KSC held that the officer's actions were flagrant because it could not be reasonable for officers to search a car for evidence of lack of proof of insurance. As a result, the KSC held that the attenuation doctrine could not apply in this case.