State v. Jefferson

1




IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 98,742


STATE OF KANSAS,
Appellee,

v.

JAZWANE JEFFERSON,
Appellant.


SYLLABUS BY THE COURT

1.
The Fourth Amendment to the United States Constitution guarantees "[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." Section 15 of the Kansas Constitution Bill of Rights
provides the same guarantee.

2.
A warrantless seizure of a vehicle is per se unreasonable unless one of the
recognized exceptions to the warrant requirement applies.

3.
Under the automobile exception to the warrant requirement, which is a subclass of
the probable-cause-plus-exigent-circumstances exception, the mobility of the vehicle
provides the exigent circumstances without the necessity of proving anything more. If a
vehicle is readily mobile and probable cause exists to believe the vehicle contains
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contraband or evidence of a crime, the Fourth Amendment to the United States
Constitution does not require a warrant for police to search the vehicle.

4.
If the State fails to meet its burden to establish the lawfulness of a challenged
search or seizure, any evidence obtained through exploitation of the illegal search or
seizure may be suppressed through application of the exclusionary rule.

5.
The fruit of the poisonous tree doctrine is one facet of the exclusionary rule and
extends the scope of the exclusionary rule to bar admission of evidence directly or
indirectly obtained as a result of unlawful police conduct.

6.
One exception to the exclusionary rule is the attenuation doctrine. Under the
attenuation doctrine, courts have found that the poisonous taint of an unlawful search or
seizure dissipates when the connection between the unlawful police conduct and the
challenged evidence becomes attenuated.

7.
The State bears the burden to establish sufficient attenuation to purge the taint of
an illegal search or seizure and avoid application of the exclusionary rule.

8.
In determining whether a defendant's confession is sufficiently attenuated from a
preceding illegal search or seizure, a court should consider: (1) whether Miranda
warnings were given, (2) the temporal proximity of the illegal conduct and the statement,
(3) the purpose and flagrancy of the officers' misconduct, and (4) other intervening
3



circumstances. But no one factor controls, and other factors may be relevant to the
analysis.

9.
State v. Kirby, 12 Kan. App. 2d 346, 744 P.2d 146 (1987), aff'd 242 Kan. 803, 751
P.2d 1041 (1988), is disapproved to the extent it suggests a defendant's act of contacting
law enforcement officers to retrieve the defendant's illegally seized property is purely
personal and will automatically constitute an act of free will sufficient to purge the taint
of an illegal seizure.

10.
Convictions of felony murder and criminal discharge of a firearm at an occupied
vehicle or dwelling are not multiplicitous even when the charges arise from the same
conduct and involve the same victim.

11.
Under K.S.A. 21-3107(2)(a), criminal discharge of a firearm, as defined in K.S.A.
21-4217(a), is a lesser included offense of criminal discharge of a firearm at an occupied
dwelling, as defined in K.S.A. 21-4219(b).

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed September 6,
2013. Reversed and remanded with directions.

Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, argued the cause and was on a brief for
appellant, and Jazwane Jefferson, appellant pro se, filed a supplemental pro se brief.

Edmond D. Brancart, deputy district attorney, argued the cause, and Michael A. Russell, chief
deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
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The opinion of the court was delivered by

MORITZ, J.: Jazwane Jefferson appeals his convictions of first-degree felony
murder and the underlying felony of criminal discharge of a firearm at an occupied
dwelling. Jefferson primarily argues the district court erred in failing to suppress his
statements, which Jefferson contends were obtained through the officers' exploitation of
the illegal seizure of his car. We agree with Jefferson that the officers unlawfully seized
his car and then used that illegal seizure to obtain his incriminating statements. Further,
we conclude the State failed to establish under the totality of the circumstances that
Jefferson's statements were sufficiently attenuated from the preceding illegal seizure.
Accordingly, we reverse the district court's suppression ruling, reverse Jefferson's
convictions, and remand for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Deborah Jackson was shot and killed in her home in Kansas City, Kansas, the
victim of a drive-by shooting. After an investigation, the State charged Jefferson with
several counts relating to Jackson's murder, including first-degree felony murder based
on the underlying felony of criminal discharge of a firearm at an occupied dwelling,
criminal discharge of a firearm at an occupied dwelling resulting in great bodily harm,
and conspiracy to commit criminal discharge of a firearm at an occupied dwelling.

Before trial, Jefferson moved to suppress incriminating statements he made to
detectives during an interview, claiming his statements stemmed from the detectives'
illegal seizure of his car. After an evidentiary hearing, the district court denied Jefferson's
suppression motion.

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At trial, the State presented evidence related to the crime scene and homicide
investigation, including Jefferson's videotaped statement to detectives. In that statement,
Jefferson identified the participants in Jackson's shooting as himself, Marcus Carson,
Arthur Herron, Joshua Jones, and Steve Coleman. According to Jefferson, on the day of
the shooting, he and the other men armed themselves with guns before getting into a
white van driven by Coleman. Jefferson carried a .40 caliber Smith and Wesson pistol.
When they arrived at the Jackson home, Carson told everyone to "shoot the house," and
everyone in the van fired their weapons. Jefferson stated he did not know which house he
was shooting at, but he fired his weapon so that the other men in the vehicle would not
think that he was scared or would report the crime. At trial, Jefferson essentially
reiterated the admissions he made in his videotaped interview.

Through the testimony of several witnesses, including Jefferson, the State
established that Jackson's shooting was the last in a series of shootings that occurred on
that day. Some of the shootings were committed either by Carson or Jackson's adult son,
Eric Jackson. Jackson's husband testified that Eric Jackson and the Carson family had an
ongoing feud.

At the close of evidence, the district court granted Jefferson's request to dismiss
the conspiracy charge. During the jury instruction conference, the district court denied
Jefferson's request for a lesser included offense instruction on criminal discharge of a
firearm. The jury found Jefferson guilty of first-degree felony murder and the underlying
felony of criminal discharge of a firearm at an occupied dwelling resulting in great bodily
harm.

The district court sentenced Jefferson to life in prison with no possibility of parole
for 20 years, plus a consecutive prison term of 59 months. Jefferson appeals.

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Our jurisdiction to consider this appeal arises under K.S.A. 22-3601(b)(1) (Furse
1995) (direct criminal appeal; life sentence imposed; off-grid crime).

THE DISTRICT COURT ERRED IN DENYING THE DEFENDANT'S SUPPRESSION MOTION

Citing the Fourth Amendment to the United States Constitution, Jefferson claims
the district court erroneously denied his motion to suppress incriminating statements he
made to detectives. Jefferson argues the detectives illegally seized his car without a
warrant or probable cause and his statements derived from this illegal seizure should have
been suppressed as fruit of the poisonous tree.

The State contends the detectives lawfully seized Jefferson's vehicle based on
probable cause to believe the vehicle might contain evidence related to the homicide and
properly impounded the vehicle until they could obtain a search warrant based on that
belief. Alternatively, the State argues the district court properly denied the suppression
motion because Jefferson's statements were sufficiently attenuated from any illegal
seizure.

Standard of Review

Without reweighing the evidence, we review the factual underpinnings of a district
court's suppression ruling under a substantial competent evidence standard. But we
review the court's ultimate legal conclusion regarding suppression de novo. State v.
Edwards, 291 Kan. 532, 545, 243 P.3d 683 (2010).

Suppression Hearing and District Court Ruling

The following factual summary is based on the testimony of the only witness at
the suppression hearing, Detective Greg Lawson.
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Jackson was shot on September 20, 2004. About 30 minutes after the shooting,
officers located the white van used in the shooting but found no weapons in the van.
Based on their investigation, including their knowledge of other shootings occurring the
same day as Jackson's shooting, Lawson and his partner, Detective Michael York,
initially suspected Marcus Carson and brothers Arthur Herron and Alex Herron of
participating in Jackson's shooting.

But 9 days after the shooting, Jefferson became a suspect when Alex Herron
advised Lawson that Carson and Jefferson came to the Herrons' home after Jackson's
shooting. After speaking with Alex Herron, the detectives verified Jefferson's address and
identified a Monte Carlo parked in his apartment complex's parking lot as belonging to
Jefferson.

Nearly 1 month after Jackson's shooting, Arthur Herron advised Lawson that
Jefferson participated in the shooting. Then, on Saturday, October 23, 2004, Arthur
Herron gave a videotaped statement to detectives implicating himself, Jefferson, Carson,
Coleman, and Jones in the shooting.

Immediately after obtaining Arthur Herron's statement, Lawson and York went to
Jefferson's apartment complex. When they arrived at the complex, they observed
Jefferson's car parked in the parking lot with the engine running, and they saw a person
they believed to be Jefferson walking towards the car. Lawson said, "[H]ello," identified
himself as a detective, and advised Jefferson he needed to speak with him. Jefferson then
fled on foot from the detectives.

Leaving the car unattended, Lawson and York chased Jefferson. But they lost sight
of Jefferson and could not locate him even after canvassing the neighborhood. When
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Lawson and York returned to the apartment complex parking lot about 15 minutes later,
they found that Jefferson's car engine had been turned off and the keys had been removed
from the ignition. Lawson testified he knew the keys were in Jefferson's car before the
detectives chased Jefferson because "[t]he vehicle was started and the column wasn't
punched."

The detectives knocked on Jefferson's apartment door but received no response.
Lawson and York decided to "tow[] the car in preparation to obtain a search warrant for
any kind of weapons or evidence of any kind that would reference this homicide due to
the confession of Mr. Herron and then Mr. Jefferson was involved and was, in fact, our
main weapon [sic]."

York placed a card on Jefferson's apartment door with the following handwritten
message: "Jazwane, if you want your car back, please give me a call. We can talk,
York." Lawson testified York left the note so Jefferson would know the police possessed
his car.

The officers had Jefferson's car towed to a secure location that same afternoon,
Saturday, October 23, 2004. Soon thereafter, Lawson left for Missouri to investigate a
different case. According to Lawson, he and York did not work on Sunday and Monday,
but they planned to obtain a search warrant when they returned to work on Tuesday.

Lawson testified he prepared an affidavit for the search warrant but did not present
it to a judge or meet with the district attorney. Nevertheless, Lawson claimed the affidavit
asserted: (1) Arthur Herron identified Jefferson as one of the shooters in Jackson's
shooting, (2) officers recovered no weapons in the van involved in the shooting, and (3)
Jefferson ran from the detectives when they approached him at his apartment complex.
Lawson testified that when he prepared the affidavit, he had no specific knowledge that
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weapons would be found in Jefferson's car, but he believed they might find "weapons,
shell casings and/or bullets" in the car. Lawson later clarified he was "in the process" of
preparing the affidavit the morning the detectives interviewed Jefferson and that the
detectives "were going to go in front of a judge before" they picked up Jefferson. Finally,
when the district court judge indicated he would order the State to produce the affidavit,
Lawson admitted he never actually printed the affidavit but claimed he might have saved
it on his computer's hard drive.

In any event, Lawson testified that on Monday, October 25, 2004, Jefferson called
York. According to Lawson, York advised Jefferson the detectives would be "returning
to work on Tuesday, October 26, and we told him to give us a call and he could come
down to the detective bureau and we could talk about the situation." Jefferson further
advised York he would be at the detective bureau around 11 a.m. that Tuesday, October
26, 2004. But Jefferson did not arrive when expected. Lawson testified:

"I don't remember if he called Detective York or Detective York called him to ask what
the delay was, but he had said that he did not have a ride. His ride had fell through. He
could not make it down there and Detective York asked him if he wanted us to pick him
up or did he anticipate getting a ride in the near future. Mr. Jefferson said, well, you
might as well come pick me up. I don't know whether a ride may be coming. So that's
what we did."

Lawson and York picked up Jefferson at his apartment and advised him they
"were in the process of obtaining a search warrant for the car" and planned to search the
car after obtaining the warrant. According to Lawson, Jefferson told the officers,
"[T]here's nothing in the car. I can assure you of that. You know, I have nothing to hide.
You can search the car." Further, Jefferson agreed to sign a written consent permitting a
search of his car "in order to cooperate with the investigation."

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When they arrived at the detective bureau, the detectives took Jefferson to an
interview room and immediately advised him of his Miranda rights. See Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). About 15 minutes into
the interview, Jefferson agreed to provide an audiotaped statement. Before taking the
statement, detectives Mirandized Jefferson a second time, and Jefferson signed both a
written Miranda waiver form and a written consent to search his car. The detectives read
the Miranda waiver form to Jefferson a third time at the start of his audiotaped statement.
In that statement, Jefferson told detectives he had heard about Jackson's shooting but he
had no firsthand knowledge of it.

After Jefferson gave the audiotaped statement, detectives suggested his statements
conflicted with other evidence discovered during the investigation, and they encouraged
him to tell the truth. Jefferson eventually admitted his participation in the shooting and
provided information consistent with the information detectives received from Arthur
Herron. Jefferson also agreed to provide a videotaped statement memorializing his
admissions.

At the start of the videotaped statement, detectives again Mirandized Jefferson,
who indicated he understood his rights and that he had not been coerced or mistreated by
the detectives. The detectives arrested Jefferson after he gave the statement.

According to Lawson, the detectives eventually searched Jefferson's car pursuant
to Jefferson's consent and found nothing of evidentiary value.

Following the suppression hearing, the district court ruled that the detectives could
reasonably have believed that evidence related to the homicide would be found in
Jefferson's car based on Lawson's testimony that the detectives suspected Jefferson was
involved in Jackson's homicide, officers had not found any of the weapons used in the
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homicide, and Jefferson had fled from the vicinity of his car when officers approached
him. Further, the district court noted that the detectives eventually planned to question
Jefferson as a homicide suspect based on leads they had already developed.

In ultimately denying Jefferson's suppression motion, the district judge
commented, "Whether [the detectives] used the car as leverage to elicit a statement from
[Jefferson], I think that's—that's stretching it." At trial, the district court reaffirmed its
suppression ruling, overruling Jefferson's renewed objection to the introduction of his
videotaped statement.

The detectives unlawfully seized Jefferson's car.

In this appeal, Jefferson primarily challenges the district court's denial of his
motion to suppress. The Fourth Amendment to the United States Constitution guarantees
"[t]he right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." Section 15 of the Kansas Constitution Bill of Rights
provides the same guarantee. See State v. Thompson, 284 Kan. 763, 772, 779-80, 166
P.3d 1015 (2007).

Jefferson argues the detectives lacked probable cause to seize his car, acting in
violation of the Fourth Amendment. A warrantless seizure of a vehicle is per se
unreasonable unless one of the recognized exceptions to the Fourth Amendment's warrant
requirement applies. See State v. Fisher, 283 Kan. 272, 292, 154 P.3d 455 (2007).

"Under the automobile exception to the Fourth Amendment's warrant
requirement, which is a subclass of the probable-cause-plus-exigent-circumstances
exception, the mobility of the vehicle provides the exigent circumstances without the
necessity of proving anything more. If a vehicle is readily mobile and probable cause
exists to believe the vehicle contains contraband or evidence of a crime, the Fourth
12



Amendment does not require a warrant for police to search the vehicle." State v. Sanchez-
Loredo, 294 Kan. 50, Syl. ¶ 4, 272 P.3d 34 (2012).

"'Probable cause' to search a vehicle can be established if the totality of the
circumstances indicates there is a 'fair probability' that the vehicle contains contraband or
evidence [of a crime]." 294 Kan. at 55. And, if law enforcement officers have probable
cause to search a vehicle at the scene, they also have probable cause to seize the vehicle
and search it at a later, more convenient time. See 294 Kan. at 56-57 (agreeing with
Chambers v. Maroney, 399 U.S. 42, 52, 90 S. Ct. 1975, 26 L. Ed. 2d 419 [1970], that if
probable cause exists there is no significant distinction "'between on the one hand seizing
and holding a car before presenting the probable cause issue to a magistrate and on the
other hand carrying out an immediate search without a warrant'"); State v. Taylor, 217
Kan. 706, 710-11, 538 P.2d 1375 (1975) ("If the police had probable cause to search the
truck at the time it was discovered and defendant arrested, they had probable cause to
impound it and search it at a later, more convenient time.").

We agree with the State that substantial competent evidence supports the district
court's factual findings that at the time detectives seized Jefferson's vehicle, detectives
knew that (1) officers found no weapons in the van used in the shooting, (2) Carson and
his associates were suspects in the shooting, (3) Alex Herron advised detectives that
Jefferson was with Carson after the shooting, (4) Arthur Herron identified Jefferson as
one of the shooters, and (5) Jefferson ran from detectives when they attempted to talk
with him.

But we disagree with the district court's legal determination that this information
established probable cause to seize Jefferson's car. Significantly, Jefferson had been a
suspect since 9 days after the shooting when Alex Herron told detectives Jefferson was
with Carson after the shooting. Lawson testified he and York attempted to locate
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Jefferson after speaking with Alex Herron and, at some point, they went to Jefferson's
apartment complex, verified his address, and identified his car. Despite the detectives'
awareness of the location of Jefferson's residence and vehicle, the detectives did not seek
a search warrant for Jefferson's vehicle at that time.

Nearly a month after Jackson's homicide, Jefferson became a primary suspect
when Arthur Herron told the detectives Jefferson participated in the shooting. Armed
with this statement, the detectives still failed to seek a search warrant for Jefferson's
vehicle. Instead, immediately after interviewing Arthur, the detectives went to Jefferson's
apartment complex hoping to talk to Jefferson.

Upon their arrival, Lawson and York saw Jefferson's car in the parking lot, noticed
the engine running, and saw Jefferson walking towards the car. But when Jefferson fled,
Lawson and York did not immediately secure the vehicle, despite their later suggestion
that it may have contained evidence related to Jackson's murder. Instead, Lawson and
York left Jefferson's car unattended with its engine running and chased Jefferson. When
they returned to the parking lot about 15 minutes later, they found Jefferson's car engine
had been turned off and the keys had been removed from the ignition. Finally, the
detectives knocked on the door of Jefferson's apartment and received no response before
they decided to tow his vehicle.

Thus, although Jefferson was a suspect in Jackson's shooting at the time the
detectives seized his vehicle, there is simply no evidence in the record linking the
shooting to Jefferson's vehicle. In fact, the evidence contradicts such a link. Detectives
had recovered the van used in the shooting and had found no weapons in that vehicle.
Moreover, the shooting occurred more than a month before detectives seized Jefferson's
vehicle, making any potential link between Jefferson's vehicle and the shooting even
more tenuous. Additionally, the detectives acted inconsistently with their later claim of
14



probable cause when they went to Jefferson's apartment—not to search his vehicle—but
only to talk with Jefferson. And finally, the detectives allowed Jefferson's car to remain
unattended, with keys in the ignition and the engine running, while they chased Jefferson.
The officers simply did not act in a manner indicating a fair probability that the vehicle
contained contraband or evidence of the homicide.

Under the totality of the circumstances, we find no support in the record for the
district court's conclusion that the detectives had probable cause to believe Jefferson's car
contained weapons or any other evidence related to Jackson's homicide.

The detectives exploited the illegal seizure of Jefferson's car to obtain his incriminating
statements, and those statements are not sufficiently attenuated from the illegal seizure.

Because the detectives unlawfully seized Jefferson's car, we must next consider
whether the exclusionary rule required suppression of his statements. See State v.
McGinnis, 290 Kan. 547, 551, 233 P.3d 246 (2010) (when State fails to meet its burden
to establish lawfulness of challenged search or seizure, any evidence obtained through
exploitation of the illegal search or seizure may be suppressed through application of the
exclusionary rule); see also Herring v. United States, 555 U.S. 135, 140-48, 129 S. Ct.
695, 172 L. Ed. 2d 496 (2009) (explaining limits and purposes of exclusionary rule).

Jefferson argues the exclusionary rule applies here because his incriminating
statements were the poisonous fruit of the illegal seizure. The fruit of the poisonous tree
doctrine is "one facet of the exclusionary rule" and "extend[s] the scope of the
exclusionary rule to bar" admission of evidence directly or indirectly obtained as a result
of unlawful police conduct. State v. Deffenbaugh, 216 Kan. 593, 598, 533 P.2d 1328
(1975); see also Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed.
2d 441 (1963) (explaining fruit of poisonous tree doctrine).

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But there are exceptions to the exclusionary rule. One such exception is the
attenuation doctrine, and the State contends that doctrine, rather than the fruit of the
poisonous tree doctrine, applies here. "Under the attenuation doctrine, courts have found
that the poisonous taint of an unlawful search or seizure dissipates when the connection
between the unlawful police conduct and the challenged evidence becomes attenuated."
State v. Martin, 285 Kan. 994, 1003, 179 P.3d 457, cert. denied 555 U.S. 880 (2008).

The State bears the burden to establish sufficient attenuation to purge the taint of
an illegal search or seizure and avoid application of the exclusionary rule. "To
demonstrate that the taint of an illegal seizure has dissipated, 'the government must prove,
from the totality of the circumstances, a sufficient attenuation or break in the causal
connection between the illegal detention and the consent.'" United States v. Fox, 600 F.3d
1253, 1259 (10th Cir. 2010).

In determining whether a defendant's confession is sufficiently attenuated from a
preceding illegal search or seizure we generally consider: (1) whether Miranda warnings
were given, (2) the temporal proximity of the illegal conduct and the statement, (3) the
purpose and flagrancy of the officers' misconduct, and (4) other intervening
circumstances. State v. Hill, 281 Kan. 136, 153, 130 P.3d 1 (2006); see State v. Knapp,
234 Kan. 170, 177, 671 P.2d 520 (1983). But no one factor controls, and other factors
may be relevant to the analysis. State v. Moralez, 297 Kan. 397, Syl. ¶ 12, 300 P.3d 1090
(2013); see also Fox, 600 F.3d at 1259 (noting that government must prove sufficient
attenuation under totality of circumstances).

Miranda Warnings

In this case, there is no dispute that Jefferson repeatedly received Miranda
warnings. While this factor weighs in favor of attenuation, the giving of Miranda
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warnings is never sufficient, standing alone, to purge the taint of an illegal seizure. See
Taylor v. Alabama, 457 U.S. 687, 690, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982) ("the
fact that the confession may be 'voluntary' for purposes of the Fifth Amendment, in the
sense that Miranda warnings were given and understood, is not by itself sufficient to
purge the taint of the illegal arrest"); Brown v. Illinois, 422 U.S. 590, 600-04, 95 S. Ct.
2254, 45 L. Ed. 2d 416 (1975) (concluding that giving of Miranda warnings, standing
alone, cannot support attenuation when confession follows unlawful arrest).

Temporal Proximity

The State argues the temporal proximity factor also weighs in favor of the State
because 3 days passed between the illegal seizure of Jefferson's car and Jefferson's
incriminating statements and Jefferson was not in custody during that time period. But
Jefferson argues this factor does not weigh in favor of attenuation because the detectives
continued to deprive him of his car during the entire 3-day period. Jefferson distinguishes
this case from Wong Sun, where officers unlawfully arrested the defendant and released
him, and several days later the defendant returned to meet with law enforcement officers
and confess.

We find Jefferson's reasoning persuasive. Jefferson's vehicle, not his person, was
the object of the illegal seizure, and nothing in the record indicates the detectives released
Jefferson's car to him before obtaining his incriminating statements.

Purposeful and Flagrant Conduct

We also agree with Jefferson that the detectives acted purposefully and flagrantly
in unlawfully seizing his vehicle. Significantly, rather than simply leaving a note to
apprise Jefferson that his car had been seized, York left a note stating, "Jazwane, if you
17



want your car back, please give me a call. We can talk, York." This note conveyed a clear
and simple message—Jefferson would not get his car back until he talked to York.

Nor does the record suggest York conveyed a different message when Jefferson
initially contacted York after receiving the note. Notably, York did not testify at the
suppression hearing, and Lawson's testimony regarding his secondhand knowledge of
York's phone conversation with Jefferson reinforced the message that the detectives were
holding Jefferson's vehicle in order secure Jefferson's presence. Specifically, Lawson
testified that York told Jefferson the detectives wanted to talk to him about the homicide.

Our finding that the detectives acted flagrantly is further supported by the
detectives' failure to take any substantial steps toward obtaining a search warrant either
before or after seizing Jefferson's car. As Jefferson points out, several days (and possibly
weeks) before the detectives seized Jefferson's vehicle, the detectives confirmed
Jefferson's address and the description of his car, yet they never sought a search warrant
until after they attempted to talk with him at his apartment. And the detectives abandoned
the vehicle when Jefferson fled, contradicting any belief that the car contained valuable
evidence of a homicide. Instead, the detectives seized Jefferson's car without probable
cause, taped what could be characterized as a "ransom" note on Jefferson's apartment
door, and then held the car for 3 days without applying for a search warrant. Ultimately,
Lawson testified he prepared but never printed an affidavit for the warrant, never spoke
to the district attorney about obtaining a warrant, and never went before a judge to apply
for a warrant. Taken together, these facts lend credence to Jefferson's assertion that "the
seizure of Jefferson's car was an unlawful ruse to force him to contact police."

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Intervening Circumstances

Finally, Jefferson contends there were no intervening circumstances to support
attenuation. Relying on State v. Kirby, 12 Kan. App. 2d 346, 744 P.2d 146 (1987), aff'd
242 Kan. 803, 751 P.2d 1041 (1988), the State emphasizes that after officers seized his
car, Jefferson called and spoke with York to arrange a meeting, and York told Jefferson
that the detectives wanted to discuss the homicide investigation.

In Kirby, law enforcement officers initiated a traffic stop, performed an unlawful
roadside search of the defendant's truck, seized the truck, and then performed an unlawful
inventory search in which they "rediscovered" items found during the initial roadside
search. Five days later, the defendant went to the police station to retrieve his truck and
spoke with a detective. After receiving Miranda warnings, the defendant signed a
statement confessing to a residential burglary and was arrested. Before trial, the district
court denied the defendant's motions to suppress the evidence seized from the truck and
his confession.

The Court of Appeals panel in Kirby concluded both searches were unlawful, but
the panel nevertheless found the defendant's statements admissible at trial. The panel
rejected the defendant's argument that "[the defendant] was forced into presenting himself
to the detectives to get the truck back, which would not have occurred had there been no
illegal search and seizure of the truck" and that the Miranda warnings were insufficient to
purge the taint of the illegal seizure of the truck. 12 Kan. App. 2d at 357.

Specifically, the panel reasoned that the defendant had freely and voluntarily
contacted the officers knowing they possessed his truck and the stolen items found
therein and that the defendant's voluntary act attenuated the confession. 12 Kan. App. 2d
at 358. Additionally, the panel noted the defendant had not been arrested, "nor did he feel
19



any fear or pressure from the police to either initially contact them or subsequently meet
with the detective. His motive in going to the station and giving a statement was purely
personal." 12 Kan. App. 2d at 359.

Although this court summarily affirmed the panel's decision in Kirby, we now
disapprove of any language in Kirby suggesting a defendant's act of contacting law
enforcement officers to retrieve the defendant's illegally seized property is "purely
personal" and will automatically constitute an act of free will sufficient to purge the taint
of an illegal seizure. Further, we find the facts of this case distinguishable from the facts
in Kirby.

In Kirby, law enforcement officers clearly were interested in the defendant's
vehicle from the time of the stop and remained interested in the vehicle as demonstrated
by the inventory search. Here, in contrast, the detectives' actions indicate they developed
an interest in the vehicle only after Jefferson ran from them and could not be located.
These facts do not support the State's assertion that the detectives believed evidence of
the crime remained in Jefferson's car more than a month after Jackson's shooting.

Consequently, we have no hesitancy in concluding here that the detectives
exploited their illegal seizure of Jefferson's car to obtain his incriminating statements.
And the State has failed to establish under the totality of the circumstances that
Jefferson's statements are sufficiently attenuated from the preceding illegal seizure.
Accordingly, we reverse the district court's suppression ruling, reverse Jefferson's
convictions, and remand the case for further proceedings consistent with this opinion.

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THE STATE PRESENTED EVIDENCE SUFFICIENT TO SUPPORT JEFFERSON'S CONVICTIONS

Because we are reversing Jefferson's convictions and remanding for further
proceedings, we must also consider Jefferson's challenge to the sufficiency of the
evidence. If the evidence presented during the first trial was insufficient to support his
convictions, a second trial on the same charges would violate Jefferson's right to be free
from double jeopardy. See State v. Hernandez, 294 Kan. 200, 209, 273 P.3d 774 (2012)
(noting that when reversal is appropriate on at least one ground, court must address
challenge to sufficiency of evidence for double jeopardy purposes). Notably, even though
we have determined that the district court erred in admitting Jefferson's videotaped
statement, we must nevertheless consider that erroneously admitted evidence in
reviewing the sufficiency of the evidence presented at the first trial. See State v. Pabst,
268 Kan. 501, 512, 996 P.2d 321 (2000) (citing Lockhart v. Nelson, 488 U.S. 33, 41, 109
S. Ct. 285, 102 L. Ed. 2d 265 [1988], for proposition that reviewing court must consider
all evidence admitted by trial court in deciding whether retrial is permissible under
Double Jeopardy Clause).

Standard of Review

"'"When the sufficiency of the evidence is challenged in a criminal case, the standard of
review is whether, after review of all the evidence, viewed in the light most favorable to
the prosecution, the appellate court is convinced that a rational factfinder could have
found the defendant guilty beyond a reasonable doubt."' [Citation omitted.]" State v.
McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).

Analysis

In determining whether sufficient evidence supports a conviction, we do not
reweigh the evidence or the credibility of witnesses. 291 Kan. at 710. And, "[w]hile the
State must sustain its burden of proof on each element of an offense, circumstantial
21



evidence and the logical inferences therefrom can be sufficient to support a conviction of
even the most serious crime." State v. Herron, 286 Kan. 959, 967, 189 P.3d 1173 (2008).

The jury convicted Jefferson of (1) first-degree felony murder based on the
underlying felony of criminal discharge of a firearm at an occupied dwelling that resulted
in the death of Jackson, and (2) criminal discharge of a firearm at an occupied dwelling
that resulted in great bodily harm to Jackson.

First-degree felony murder is "the killing of a human being committed . . . in the
commission of, attempt to commit, or flight from an inherently dangerous felony."
K.S.A. 21-3401(b). Criminal discharge of a firearm at an occupied dwelling is an
inherently dangerous felony. K.S.A. 21-3436(a)(15).

The statute prohibiting criminal discharge of a firearm has been amended since
Jefferson's trial, but the statute in effect at the time of the shooting defined the crime as
"the malicious, intentional and unauthorized discharge of a firearm at a dwelling . . . in
which there is a human being." K.S.A. 21-4219(b). The State charged Jefferson with a
severity level 3 person felony based on the fact that the crime resulted in great bodily
harm to Jackson. See K.S.A. 21-4219(b) (setting forth varying severity levels of crime).
The trial court instructed the jury that the term "'intentionally' means conduct that is
purposeful and willful and not accidental." The trial court further instructed the jury that
the term "'[m]aliciously' means willfully doing a wrongful act without just cause or
excuse."

The jury also was instructed on the theory of aiding and abetting. Under that
theory, a defendant may be held "criminally responsible for a crime committed by
another if such person intentionally aids, abets, advises, hires, counsels or procures the
other to commit the crime." K.S.A. 21-3205(1).
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"[M]ere association with a principal who actually commits a crime or mere presence in
the vicinity of the crime is itself insufficient to establish guilt as an aider and abettor.
However, when a person knowingly associates with an unlawful venture and participates
in a way that demonstrates willful furtherance of its success, guilt as an aider and abettor
is established. [Citations omitted.]" Herron, 286 Kan. at 968.

At trial and in his videotaped statement, Jefferson admitted he participated in
Jackson's shooting and that he was the only person armed with a .40 caliber Smith and
Wesson semiautomatic pistol. Although the State established that Jackson was killed by
bullets of a different caliber, it also proved that four of the .40 caliber Smith and Wesson
cartridge cases recovered from the van used in the shooting were fired from a single
weapon. Additionally, four of the bullets and bullet fragments recovered from the crime
scene at the Jackson home—one of which was embedded in the front door and one of
which was found in a bedroom—were .40 caliber Smith and Wesson bullets.

Further, at trial and in his videotaped statement, Jefferson testified he knew about
the shootings that had occurred earlier in the day before he got into the van with Carson,
Coleman, Arthur, and Jones, all of whom were armed, and that he knew others believed
Jackson's son was responsible for some of the earlier shootings.

Viewing this evidence in the light most favorable to the State, we conclude a
rational factfinder could have found beyond a reasonable doubt that Jefferson maliciously
and intentionally, without authorization, discharged a firearm at an occupied dwelling.
See K.S.A. 21-4219(b). Further, even though his bullets did not cause great bodily harm
to Jackson, a rational factfinder could have concluded beyond a reasonable doubt that
Jefferson was culpable for that harm because he knowingly associated with the unlawful
venture of discharging a firearm at the occupied dwelling and participated in a way that
23



demonstrated willful furtherance of its success. See K.S.A. 21-3205(1); Herron, 286 Kan.
at 968.

Finally, because the evidence is sufficient to sustain Jefferson's conviction for the
underlying felony of criminal discharge of a firearm at an occupied dwelling resulting in
great bodily harm, and it is undisputed that Jackson was killed during the commission of
that felony, the evidence also is sufficient to sustain Jefferson's felony- murder
conviction. Accordingly, a second trial on the same charges will not violate Jefferson's
right to be free from double jeopardy.

JEFFERSON'S CONVICTIONS ARE NOT MULTIPLICITOUS

Next, Jefferson claims his convictions are multiplicitous. The State argues,
however, that Jefferson's multiplicity claim is precluded by State v. Conway, 284 Kan.
37, Syl. ¶ 9, 159 P.3d 917 (2007), and State v. Walker, 283 Kan. 587, Syl. ¶ 23, 153 P.3d
1257 (2007). Though we have reversed Jefferson's convictions on other grounds, we will
address this issue because it may arise on remand. See Hernandez, 294 Kan. at 208-09
(noting that courts may address issues likely to arise on remand when reversing on other
grounds).

We have previously held that convictions of felony murder, K.S.A. 21-3401(b),
and criminal discharge of a firearm at an occupied vehicle or occupied dwelling, K.S.A.
21-4219(b), are not multiplicitous even when the charges arise from the same conduct
and involve the same victim. See State v. Farmer, 285 Kan. 541, 548-49, 175 P.3d 221
(2008) (rejecting multiplicity/double jeopardy claim when defendant was convicted of
first-degree felony murder and criminal discharge of firearm at occupied vehicle resulting
in great bodily harm based on shooting death of single victim); Walker, 283 Kan. at 609-
13 (rejecting multiplicity/double jeopardy claim when defendant was convicted of first-
24



degree felony murder and criminal discharge of firearm at occupied dwelling based on
shooting death of single victim). Accordingly, we reject Jefferson's multiplicity claim.

JEFFERSON'S REQUEST FOR A LESSER INCLUDED OFFENSE INSTRUCTION ON CRIMINAL
DISCHARGE OF A FIREARM WAS LEGALLY APPROPRIATE

Finally, since we are remanding this case for further proceedings, we briefly
address Jefferson's claim that the district court erred in denying his request for a lesser
included offense instruction on criminal discharge of a firearm. This issue is also likely to
arise on remand. See Hernandez, 294 Kan. at 208-09. Jefferson argues the instruction
was legally and factually appropriate, while the State contends the instruction was
properly omitted because criminal discharge of a firearm is not a lesser included offense
of criminal discharge of a firearm at an occupied dwelling and the facts did not support
giving the instruction.

Standards of Review

After the parties filed their briefs and presented oral arguments in this case, we
clarified the appropriate framework and standards for reviewing alleged instruction
errors:

"(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
next, the court should use an unlimited review to determine whether the instruction was
legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
25



denied 132 S. Ct. 1594 (2012)." State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d. 202
(2012).

Analysis

We conclude the requested instruction was legally appropriate. We agree with
Jefferson that criminal discharge of a firearm is a lesser included crime of criminal
discharge of a firearm at an occupied dwelling resulting in great bodily harm because it is
a lesser degree of the same crime. See K.S.A. 21-3107(2)(a).

At the time of Jackson's shooting, K.S.A. 21-4217(a) provided, in relevant part:

"(a) Criminal discharge of a firearm is the discharge of any firearm:
(1) Upon any land or nonnavigable body of water of another, without having
obtained permission of the owner or person in possession of such land; or
(2) upon or from any public road, public road right-of-way or railroad right-of-
way that adjoins land of another without having first obtained permission of the owner or
person in possession of such land."

Criminal discharge of a firearm at an occupied building was defined as "the
malicious, intentional and unauthorized discharge of a firearm at a dwelling . . . in which
there is a human being." K.S.A. 21-4219(b). Where, as here, the crime resulted in great
bodily harm, it was classified as a severity level 3 person felony. K.S.A. 21-4219(b).

We conclude that one who participates in a drive-by shooting at an occupied
dwelling necessarily violates K.S.A. 21-4217(a) by discharging his or her firearm "from
any public road . . . that adjoins land of another" without the landowner's permission. The
absence of the additional elements of malice, intent, and an occupied dwelling that are
required to establish a violation of K.S.A. 21-4219(b) supports Jefferson's position that
26



K.S.A. 21-4217(a) is a lesser degree of the same crime. Thus, the requested jury
instruction was legally appropriate.

Given our decision to remand this case for further proceedings, we need not
determine whether the instruction was factually appropriate or whether it was harmless to
omit the instruction. See Plummer, 295 Kan. 156, Syl. ¶ 1. Instead, we hold only that the
instruction was legally appropriate. If Jefferson is retried and he requests the same
instruction at his new trial and the district court finds factual support for the instruction,
the instruction should be given.

The district court's suppression ruling is reversed, Jefferson's convictions are
reversed, and this case is remanded for further proceedings consistent with this opinion.

* * *
BEIER, J., concurring: I join the court's opinion in all respects and write separately
only to point out an underlying assumption and the existence of competing arguments on
its accuracy.

In addressing Jefferson's sufficiency challenge, we assume without deciding that it
is appropriate to examine all of the evidence admitted at trial rather than limiting our
review to the evidence admitted minus that portion we have decided should have been
excluded as fruit of the poisonous tree. Jefferson did not argue that we should do
otherwise, which differentiates him from the defendant in State v. Henderson, 284 Kan.
267, 296-98, 160 P.3d 776 (2007), whose argument for limitation of the universe of
evidence to be considered on an insufficiency claim was not only made but accepted by
the State in its appellate brief. We followed the parties' lead in that case, despite our
citation to Lockhart v. Nelson, 488 U.S. 33, 41, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988).

27



In Lockhart, the United States Supreme Court stated that retrial of a criminal
defendant is permissible under the Double Jeopardy Clause as long as the evidence
offered in the original trial, even if erroneously admitted, was sufficient to sustain a guilty
verdict. 488 U.S. at 41-42. But Lockhart did not involve a situation in which the
impermissible evidence should have been excluded on a constitutional ground; rather, the
evidence was inadmissible because state law dictated that it lacked probative value. See
488 U.S. at 37; see also State v. Pabst, 268 Kan. 501, 512, 996 P.2d 321 (2000) (citing
Lockhart; reversal required because of prosecutorial misconduct; inadmissible evidence
not at issue).

There is no discernible sign that the Supreme Court is backing away from its
Lockhart language. See McDaniel v. Brown, 558 U.S. 120, 131, 130 S. Ct. 665, 175 L.
Ed. 2d 582 (2010) (quoting Lockhart, 488 U.S. at 41-42). And certain other jurisdictions
have interpreted that language to apply even when constitutional error required the
exclusion of admitted evidence. See, e.g., United States v. Quinn, 901 F.2d 522, 531 (6th
Cir. 1990) (testimony admitted in violation of Confrontation Clause considered in
sufficiency analysis).

But there is at least a colorable argument that Lockhart should be distinguished
when exclusion arises from constitutional error. There is also a colorable argument that
Kansas does or should do more to ensure that a constitutional right is not cheapened by
allowing retrial when the evidence admitted in the original trial minus the portion that
should have been excluded would not have proved the State's case. Virginia has adopted
such an approach. See Rushing v. Commonwealth, 284 Va. 270, 279-80, 726 S.E.2d 333
(2012) (appellate court may not consider evidence illegally admitted at trial when
reviewing sufficiency of the evidence; double jeopardy analysis appropriate only if
defendant retried), superseded by statute as stated in Bynum v. Commonwealth, No.
0854-12-1, 2013 WL 2393145, at *5-6 (Va. App. 2013) (unpublished opinion). If a
28



similar approach were to be taken in this case, I have serious doubts that Jefferson could
be retried. His convictions rested largely on words from his own mouth that we have now
ruled the jury should never have heard.

At this moment I am able to anticipate at least one counterargument to the two
arguments outlined in the preceding paragraph: When a defendant already is entitled to
reversal of a conviction because of nonharmless constitutional error in admission of
evidence, he or she is not also entitled to immunity from retrial under the Double
Jeopardy Clause if the State's evidence minus that which should have been excluded was
insufficient; because the State may have marshaled and presented more and/or different
evidence against the defendant if the erroneous exclusion ruling had not occurred. At
least one of our sister jurisdictions has taken this position. See Stephans v. State, 127
Nev. ___, 262 P.3d 727, 734 (2011) (consideration of all evidence appropriate because
appellate court cannot know what evidence might have otherwise been offered absent
improper ruling).

I look forward to hearing from able counsel on these and other arguments and
counterarguments concerning the meaning and reach of Lockhart in future cases.