Reid T. Nelson won in State v. Sanders, No. 118,640 (Kan. July 26, 2019), affirming Judge Braun's suppression order in a Shawnee County drug possession prosecution. Judge Braun found that the officers' lacked reasonable suspicion to detain Mr. Sanders. The state appealed claiming, among other things, that even if the seizure was illegal, the attenuation doctrine applied to prevent application of the exclusionary rule. The COA agreed that the seizure was illegal, but also that the attenuation doctrine applied based on later discovery of an arrest warrant. The KSC granted review.
On the issue of whether the initial stop was illegal, the KSC agreed with the district court and the COA that the state failed to show reasonable suspicion, despite the officer's perception that Mr. Sanders had fled:
First, as we have discussed, it is not clear that Sanders had spotted the police. In contrast, the driver in Smith admitted that he had. Second, nothing in this record establishes that Sanders was not going about his business at that point. All the record contains about a possible attempt at concealment is Officer Belt's claim that Sanders attempted to hide behind a drainpipe in the alleyway. Often an officer's impression of an individual's actions would be enough to support a reasonable suspicion. Here, however, the district court discounted Officer Belt's testimony finding "too much of the answers to the questions or the scenario posed by the officers appears to be that of filling in the blanks after the fact as opposed to what they did, why they did it at the time."
In addition, the officer's belief, assertion, or hunch is not the critical consideration. Rather, a question of fact arises about whether Sanders intended to conceal himself or was merely standing by the drainpipe for some innocent purpose. But the district court did not specifically address the possibility of concealment and made no factual findings on this point.
Despite the lack of an explicit ruling, the State failed to object or request a clarification. A party must object to inadequate findings of fact or conclusions of law to preserve the issue for appeal. When a party fails to object, an appellate court can presume the district court found all facts necessary to support its judgment. Remand is necessary only where the record does not support such a presumption and the lack of findings precludes meaningful review.
The KSC held that the record supported the district court's findings regarding the officers' credibility and that it would not reweigh them.
On the issue of attenuation, the KSC reviewed the factors set out in Brown v. Illinois, 422 U.S. 590 (1975) to determine whether a particular Fourth Amendment violation is sufficiently attenuated to allow use of evidence discovered after the violation. The KSC agreed that temporal proximity weighed in favor of Mr. Sanders and that a warrant can be an intervening circumstance favoring the state. But because the search took place in this case before discovery of the warrant, the KSC held that the this circumstance was less compelling. Finally, the KSC held that the final factor "purpose and flagrancy of the official misconduct" was perhaps the most critical fact and favored Mr. Sanders:
Here, the district court found: "I still think the whole thing had been set up to be able to make the contact and do those things with [Sanders]. Then they find out about the warrant." And "those things" the district court referred to were questioning Sanders and conducting a frisk. It further found the officers pieced together their justifications after the fact. In other words, the district court found the officers did not have a subjective, good-faith belief that their actions were justified when they initiated the seizure. Instead, they acted on the hope something would turn up. Their actions were purposeful and flagrant misconduct.
As to another flagrancy consideration, the United States Supreme Court found it significant that the officer in Strieff acted legally after he made an unconstitutional seizure. Here, the officers made an unlawful seizure and then conducted two warrantless searches. And the State has failed to establish a valid exception to the warrant requirement for either search. In other words, the officers committed several unconstitutional violations.
In summary, the panel erred in concluding there is "no evidence in the record to suggest that the officers' seizure—albeit overzealous—constitute[d] flagrant misconduct." The third factor weighs in favor of suppression. The district court properly reached that conclusion when it mentioned the attenuation doctrine and said: "[T]hey find out that there's a warrant but my belief, counsel, is that the activity or that the whole issue of seizing the defendant, I have great difficulty with based on the testimony that I've heard." The district court also found the "issue [with] seizing the defendant" was that it was set up. Even if no other Brown factor weighed in favor of suppression, the officers' flagrant misconduct would tip the scale. But all three factors tip that way. The district court did not err in suppressing the evidence.
The KSC also rejected the state's late attempt to argue for the inevitable discovery doctrine and, therefore, affirmed Judge Braun's suppression order.
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