Running wants and warrants during welfare check is flagrantly illegal conduct

Rick Kittel won in State v. Ellis, No. 120,046 (Kan. August 7, 2020), obtaining reversal and remand in a Lyon County drug possession prosecution. Police received a report from a convenience store that a woman had been in a restroom for an extended time. An officer knocked on the bathroom door and the woman inside said she was okay, but having stomach problems. When Ms. Ellis came out of the bathroom, she gave her drivers license to the officer, who gave it to dispatch for wants and warrants. While interacting with Ms. Ellis, the officer saw her hands shaking and asked her if she had been using drugs, which she denied. The officer asked to search her, but Ms. Ellis refused but admitted that she had drugs in her person. The officer learned that Ms. Ellis had a probation violation warrant, arrested Ms. Ellis, searched her wallet, and found drugs and paraphernalia.

On appeal, the state argued that the attenuation doctrine should be applied to excuse any improper search or seizure. The COA held that the search exceeded the scope of a proper welfare check and ordered suppression.

The KSC held that the officer's initial contact with Ms. Ellis was lawful as a welfare check and that the officer could legally obtain a drivers' license. But the KSC went on to hold that the officer exceeded the scope of a proper welfare check by retaining the drivers' license and running a wants and warrants check:

Here, Kent had no reasonable suspicion that Ellis was committing, had committed, or was about to commit a crime. Kent testified that he saw no evidence of criminal activity and that Ellis assured him that she was not in need of assistance. Kent nevertheless retained her license and placed a call to dispatch for the express purpose of extending his investigation into whether she had any outstanding warrants. He directed her to go outside and call for someone to pick her up, and he interrogated her about drug use and told her he wanted to search her belongings. All of these activities broke the chain of lawful conduct that began when he responded to a welfare call.

The KSC recognized that at first blush, it appeared that the attenuation doctrine may have relieved the state from the exclusionary rule. But upon closer review, it held that it did not apply:

The problem for the State in the present case is that Kent was already engaging in an unconstitutional criminal investigation of Ellis before he received information about the possible warrant. He continued to exercise control over her, escorting her (or, in the words of the district court, "cajol[ing] her") outside the store and directing her to call for her ride, before the warrant was confirmed. Under the State's theory, police could approach random people on the street, demand their identification cards, and run warrant checks on them. If no warrant came up, then the detainee would be released—no harm, no foul. If a warrant came up, then the warrant would attenuate the unconstitutional stop and justify arrests and searches incident thereto. The police could routinely carry out criminal investigatory detentions of all citizens without risking suppression of discovered evidence.

The KSC also held that retaining the license and running wants and warrants is so far outside of the purpose of the welfare check that the officer's behavior was flagrant. As a result, the KSC refused to apply the attenuation doctrine and ordered suppression.