State v. Wilburn

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No. 110,250

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

LANCELOT JOSHUA WILBURN,
Appellee.


SYLLABUS BY THE COURT

1.
A "puppy dog look," defined as the look a puppy gives a person when it has done
something wrong and the puppy knows it has done something wrong, is an insufficient
basis to stop and detain an individual who has otherwise done nothing to indicate he or
she is committing, has committed, or is about to commit a crime.

2.
Even though a defendant lacks a possessory or property interest in a motor vehicle
that would enable a direct challenge to its search, he or she may still contest the
lawfulness of the detention and seek to suppress evidence as the fruit of the illegal
detention.

3.
If the prosecution can establish by a preponderance of the evidence that otherwise
unlawfully obtained evidence ultimately or inevitably would have been discovered by
lawful means, the evidence is admissible under the inevitable discovery doctrine. The
burden is on the State to demonstrate ultimate admissibility.

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4.
The inevitable discovery doctrine does not invite speculation about the possible
series of events under which the evidence may have been discovered but requires an
affirmative showing of a reasonable probability that the evidence would inevitably be
discovered through lawful means already initiated when the seizure was made.

Appeal from Johnson District Court; SARA WELCH, judge. Opinion filed August 15, 2014.
Affirmed.

Vanessa M. Riebli, assistant district attorney, Shawn E. Minihan, assistant district attorney,
Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant.

Catherine A. Zigtema, of Law Office of Kate Zigtema LC, of Lenexa, for appellee.

Before MALONE, C.J., ARNOLD-BURGER, J., and BUKATY, S.J.

ARNOLD-BURGER, J.: In February 2012, Lancelot Joshua Wilburn and a
companion were stopped by two Overland Park detectives at Oak Park Mall. Suspecting
criminal activity, the detectives detained the two men and confiscated their cell phones. A
bizarre sequence of events unfolded from this detention, resulting in an intercepted phone
call, four arrests, the search of a fraudulently rented Kia, and the discovery of a large
amount of evidence tying Wilburn to a fraud ring. But because the detectives lacked
reasonable suspicion to stop and detain Wilburn, the district court suppressed all evidence
stemming from his detention, including the statements made by his companion, and the
evidence seized from the Kia.

The State appeals this ruling on three bases: (1) Wilburn lacked standing to
challenge his companion's statements; (2) Wilburn lacked standing to challenge the
search of the Kia; and (3) discovery of the Kia and its contents was inevitable. After a
review of the evidence and the law we find: (1) Wilburn had standing to challenge his
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companion's statements; (2) even though Wilburn had no standing to challenge the search
of the Kia, its contents were still properly excluded as fruit of the poisonous tree; and (3)
the discovery of the Kia and its contents was not inevitable. Accordingly, we affirm the
decision of the district court suppressing the companion's statements and the items found
in the Kia.

FACTUAL AND PROCEDURAL HISTORY

To quote the district court, the facts of this case are "a pit full of snakes that are
swirling around with one another" combined with "a law school final in criminal
procedure." We will do our best to summarize the events of February 2012.

Detective Byron Pierce from the Overland Park Police Department was dispatched
to Oak Park Mall in Overland Park. Pierce, who specializes as a fraud and financial
crimes investigator, arrived with Detective Lance Jordan to investigate fraud at Barnes &
Noble. Specifically, dispatch said that an African-American woman was committing
check fraud at the store and had been detained. As Pierce exited his vehicle, he noticed
two African-American men in the parking lot, walking away from Barnes & Noble and
staring at him. The men were dressed appropriately and did not appear threatening or to
be carrying contraband. However, one of the men appeared to fixate on Pierce, giving
him what he termed "'the look.'" Pierce explained this look at the preliminary hearing:

"Say, for instance, you have a puppy at home and you put the puppy in a kennel and you
go off to work. Somehow that puppy is able to defeat that lock on the door and the puppy
is running loose all day long. You walk in the door, greeted by the puppy, and the first
thing that comes to mind is, What are you doing out? And the puppy is looking at you,
What are you doing home? You're both looking at each other like, well, I've been up to
no good and, as the pet owner, I'm saying, What have you been into? It's 'the look.'"

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Because of this look and his experience investigating fraud and financial crimes,
Pierce suspected that one or both of the men may have been secondarily involved with
the check fraud at Barnes & Noble. When Pierce turned around toward the men, they
began to separate and walk quickly away; Pierce alerted Jordan, and they pursued the
men. The detectives stopped the men—later identified as Wilburn and Raymond Curtis—
either just inside or just outside the nearby Dillard's store and handcuffed them.

Detectives then questioned Wilburn and Curtis, learning—albeit through some
evasiveness—that they originated from California and that they arrived in a vehicle.
Pierce felt that the men's stories conflicted in a suspicious manner. As such, Pierce
detained Wilburn and Curtis and placed them in a police car. Importantly, he also
confiscated their cell phones. After attempting to question both men further, Pierce left to
interview the woman detained at Barnes & Noble, who ultimately had no connection to
either Wilburn or Curtis.

While Pierce was in Barnes & Noble, one of the seized cell phones began to ring,
ringing "almost continually" during his interview with the check fraud suspect. Pierce
answered the phone after the interview, and a female said, "'Hey, I'm over at Chick-fil-A,
come get me.'" Because Wilburn originally said he and Curtis were alone at the mall,
Pierce and Jordan found the call suspicious and proceeded to investigate. At the
restaurant, they encountered two women—Tori Condoll and Markima Carroll—with a
number of shopping bags. When asked about any potential connection to Wilburn,
Condoll told Pierce that Wilburn was her boyfriend. The women consented to a search of
their bags, and the detectives found receipts indicating that a third woman, Kathryn
Green, had bought the items. The women stated that an aunt purchased the items but
could not explain who Green was, leading the detectives to suspect the items were the
fruits of identity theft.

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In part due to a conversation with Nordstrom's loss prevention team and in part
due to his interview with Condoll, Pierce determined that at least Condoll and Carroll—
and possibly all four suspects (Condoll, Carroll, Wilburn, and Curtis)—had arrived at the
mall in a sport utility vehicle (SUV). When a search determined that none of the suspects
had keys on their person, Pierce announced to the other officers working the case that
they needed to look for keys to such a vehicle. Another officer then remembered a
passerby outside of Barnes & Noble handing him a set of dropped keys, which he had
turned into mall security. Pierce asked mall security to search the parking lot for the car
matching the keys; the vehicle in question ended up being a blue Kia SUV with
California license plates parked just north of Barnes & Noble. Nordstrom and Target bags
were visible in the car, as was clothing. Running the tags revealed that the Kia had been
rented in California by a woman named Kathryn Green.

Ultimately, Pierce obtained a search warrant for the Kia, inside of which he and
other officers recovered Nordstrom and Target purchases thought to be the fruits of
criminal activity, as well as "instruments of fraud and forgery, counterfeit American
Express Traveler's Cheques," and counterfeit credit cards naming Kathryn Green as the
cardholder. Later, Condoll informed law enforcement that she was working for Wilburn
using fraudulent credit cards and traveler's checks. Moreover, a third party later contacted
Pierce and provided him with counterfeit driver's licenses, including one that purported to
be Kathryn Green but had Condoll's picture on it.

In connection with the foregoing series of events, the State charged Wilburn with
20 offenses, including multiple counts of theft, forgery, identity theft, and a single count
of criminal use of a financial card. Wilburn subsequently moved to suppress all evidence
obtained subsequent to Pierce stopping him and Curtis outside Dillard's. Wilburn argued
that Pierce lacked reasonable suspicion to stop him and that, even if reasonable suspicion
did exist, Pierce exceeded the scope of his investigatory stop by detaining him. Moreover,
Wilburn contended that detectives lacked probable cause to arrest him. Because every
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seizure from the initial stop to the arrest was an illegal one, Wilburn argued that all
evidence obtained from that stop needed to be suppressed as fruit of that initial illegality.
The State argued that reasonable suspicion existed to stop Wilburn and that Pierce never
exceeded the scope of the investigatory stop. Additionally, the State contended that both
inevitable discovery and the attenuation doctrine applied, rendering the evidence
admissible.

The district court heard the motion to suppress in multiple stages. The first portion
of the motion was heard by Judge John Bennett over at least two dates. For the most part,
the facts developed at this hearing are not relevant to this appeal. However, Jordan
testified about the amount of credit card and check fraud that occurs at Oak Park Mall,
the structure of the groups that commit these types of fraud, and the events that occurred
when he and Pierce encountered Wilburn and Curtis outside Barnes & Noble.
Importantly, Jordan indicated that, while he and Pierce were at Chick-fil-A with Condoll
and Carroll, Pierce spoke to another detective on the phone. That detective reported that
earlier in the day, he had spoken to Nordstrom personnel about a group of individuals
who were perpetrating credit card fraud at the mall. That detective also informed Pierce
that the group in question originated from California, furthering the connection between
Wilburn, Curtis, and the fraudulent transactions. Moreover, one of the females appeared
on a surveillance video recovered from Nordstrom, which led to the arrest of all four
suspects.

Other testimony developed during the hearing before Judge Bennett included the
evidentiary foundation of certain information downloaded from cell phones in the case,
Pierce's explanation for why he needed the cell phone data downloaded, and some
confusion over the timeline between when Pierce answered the phone call from Condoll
and when he arrived at Chick-fil-A.

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The district court's comments at the close of argument suggest that the pertinent
issues at the this stage of the hearing concerned whether the initial stop was legal,
whether Pierce answered Wilburn's phone (rather than Curtis'), and whether the State
could prove that the evidence from the Kia was discovered through means independent
from the phone call. After argument, the district court ruled that the detectives lacked
reasonable suspicion to stop Wilburn and Curtis in Dillard's. The court also found that the
State was unable to establish that Pierce had answered Curtis' phone and not Wilburn's
phone. Because Pierce lacked reasonable suspicion to stop Wilburn, answering Wilburn's
phone was also impermissible, requiring the suppression of all evidence obtained as a
result of that phone call as fruit of the poisonous tree. As for the question of the
independent basis to tie Wilburn to Condoll, Carroll, and the Kia, the district court
reserved dismissing the case to allow the State to review evidence and attempt to prove
that such an independent basis existed. At that time, the State requested a 1-week
continuance to "evaluate whether or not we are going to interlock the motion to
suppress," as well as to gather information for the remaining issues.

The State ultimately elected against an appeal of the March 2013 ruling, and in
April and June 2013, Judge Sara Welch heard the second stage of the motion to suppress.
This hearing addressed only the applicability of the doctrines of inevitable discovery and
independent source, Wilburn's standing to challenge the search of the Kia, and Wilburn's
standing to challenge the use of Curtis' statements. Nothing in this hearing disrupted
Judge Bennett's ruling; rather, it served to address the outstanding issues raised by the
parties.

Regarding standing, Wilburn and the State essentially agreed to ask that the
district court take judicial notice of the transcript from the preliminary hearing when
considering whether Wilburn had a possessory interest in the Kia sufficient to allow him
to challenge the search. The parties agreed that the basic facts included that the Kia was
rented by Condoll and Carroll with fraudulent identification and credit cards and that
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Wilburn orchestrated the rental. The legal argument focused on whether the fraudulent
rental rendered the Kia stolen. After some discussion, the district court agreed to take
judicial notice of the transcript and reserve ruling on the standing issue. The State then
proceeded to present evidence regarding inevitable discovery and independent source. A
brief overview of this evidence is as follows.

The loss prevention manager from Nordstrom, Elizabeth Rynerson, testified that
on that day she was alerted to two women who were attempting to purchase items with a
faulty credit card and identification from California that appeared to have been altered.
The identity being used was Kathryn Green. Rynerson testified that Nordstrom personnel
linked one of the women to a dark-colored SUV and that two individuals were sitting in
the car. Rynerson contacted Detective Justin Russell, who "specializes in financial
identity theft crimes," about the suspicious transactions.

Officer Jason Goddard of the Overland Park Police Department testified that, after
he arrived to assist with the Barnes & Noble call and while Wilburn and Curtis were
detained, a passerby approached him with a set of car keys for a Kia that the passerby
found in the parking lot. Goddard handed the keys off to a passing mall security officer.
Goddard testified that he later informed Pierce about the keys in question.

Eugene Carnales, director of security at the mall, testified that when a lost item
such as a set of keys is found at the mall, it is held by mall security until an individual
comes in, describes the item, and provides identification. This entire process is reported
and recorded. Carnales also explained that if a vehicle remains in the parking lot for
approximately 5 days, security will consider it abandoned and contact the police to ensure
the vehicle is not stolen or otherwise accounted for before towing. Carnales did add on
cross-examination that, if an abandoned car is blocking traffic or was used in a crime, he
will have it towed before the 5-day period expires.

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A risk manager from Enterprise Leasing (Enterprise), Christopher Buck, testified
that whenever a car owned by Enterprise is towed by the company the mall employs, that
company will contact Enterprise to retrieve it. Enterprise will then inspect the vehicle at
their facility, looking for damage and also any property that may be left behind. Buck
explained that any suspicious or fraudulent material is reported to the authorities. When
shown photographs of the evidence recovered from the Kia, Buck confirmed that
Enterprise would have contacted the police about those items. Buck also testified that the
Kia in this case was rented from Enterprise in Los Angeles, California, but that the
transaction turned out to be a fraudulent one. However, Buck acknowledged that
Enterprise only learned about the fraud in April 2012, after the Kia had been returned to
Enterprise by law enforcement.

Russell testified about the call from Rynerson, explaining that he did not intend to
respond to Nordstrom that day because the suspects had left the store and because he
wanted Rynerson to gather information such as video surveillance and the credit card
transaction information prior to investigating. But that same afternoon, Russell and Pierce
spoke on the phone about whether Russell "could have [Pierce's] off-duty that evening
because" Pierce was dealing with "a couple of people in custody that were from
California." Because Rynerson had told Russell that the women at Nordstrom originated
from California, Russell told Pierce about the Nordstrom call. Russell testified that, but
for the conversation with Pierce, he would not have followed up on the Nordstrom call
until "[p]robably the next day." He explained that part of the investigation would have
been looking for the vehicle Rynerson described during the next evening, when the mall
was closed.

Pierce testified about his experience investigating retail fraud perpetrated by
organized groups at Oak Park Mall, many of whom originate from New York or Los
Angeles. Pierce then recounted his initial encounter with Wilburn and Curtis, Curtis'
behavior and demeanor, and his reasons for asking about what vehicle the men arrived in.
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Pierce revealed that he called Russell because it was after 5 p.m. and Pierce—still "tied
up" on the case—needed someone to cover an off-duty obligation at 6 p.m. Learning
about the Nordstrom call from Russell led Pierce to suspect Curtis was connected to the
fraud at Nordstrom. Pierce also recounted his own conversations with Rynerson
regarding the fraud and the "dark-colored SUV."

In regard to the keys that Goddard found, Pierce testified that after searching all
four suspects (who at that point had been arrested) and finding no keys, he generally
informed all the officers involved in the investigation about the missing keys. After
Goddard informed Pierce about the keys found by the passerby, Pierce requested that
mall security "get the key fob, hit the alarm, and find that vehicle" associated with those
keys. Security located the Kia—which matched Rynerson's description—10 to 15 yards
away from where the keys were found, loaded with Nordstrom bags. The car was towed
and searched pursuant to a warrant by Pierce and a member of the United States Secret
Service (Secret Service) who was partnered with the police department.

Pierce also testified about the evidence found in the Kia, including the traveler's
checks and credit cards. Pierce further explained that Curtis was released the day after the
February 2012 events because the police lacked evidence to hold him as part of the fraud
ring. However, Pierce testified even after a suspect is released, his department and the
Secret Service continue to investigate and follow up with that individual.

On cross-examination, Pierce revealed that by the time Russell called and Pierce
went to Nordstrom, Wilburn had been detained and "effectively under arrest" for "at least
a couple hours." Pierce acknowledged that, because Wilburn was detained, he was unable
to leave the mall with or without the Kia.

Steve Hatch, a Secret Service agent who participates in financial crime
investigation out of the Kansas City Secret Service office, testified about how his agency
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tracks and investigates financial crimes in various jurisdictions across the country. Hatch,
who helped search the Kia, testified that they found a ticket issued to Wilburn by Kansas
Highway Patrol in the glove box. He also testified about how he determined Green was a
victim of identity theft and not the true renter of the Kia. He explained that some of
Carroll's actual belongings, including her driver's license, were also recovered from the
Kia. Hatch further testified that Wilburn's name came up during the search, and that,
upon investigating Wilburn's history with the Secret Service, he uncovered other cases
involving Wilburn. Hatch contacted other agents within the Secret Service to learn more
about Wilburn's past cases, and he verified that he would have continued investigating
the case in relation to events in other jurisdictions based on the contents of the car alone.
Hatch also testified about how the evidence in the Kia led him to other stores in the
Overland Park area where Green's identity was fraudulently used.

On cross-examination, Hatch explained that the search warrant was executed the
day after the initial events at Oak Park Mall and that the information he recovered from
the other stores was discovered "outside of five days" from Wilburn's arrest.

Agent Matthew Mitchell, also from the Secret Service, testified about his
involvement with Wilburn through an earlier fraud case out of Utah and his contact with
Hatch regarding the events at Oak Park Mall. Mitchell discussed what steps he would
have taken to further develop the Secret Service's case against Wilburn and the others
involved in the fraud ring. Mitchell testified how the items found in the Kia would have
led him to Carroll and allowed him to link the Oak Park fraud to both the original theft of
Green's identity and other crimes.

After the close of evidence, the district court and parties discussed setting over the
argument portion of the hearing to a later date. During this discussion, confusion arose as
to whether Curtis' statements during the initial detention had been suppressed by Judge
Bennett's March ruling. The State contended that Curtis' statements could not be
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suppressed by the March ruling because Wilburn lacked standing to challenge the
admission of the statements. With Curtis' statements about arriving from California in a
vehicle and the Kia's keys being lost—thus rendering the Kia immobile—the State
argued that it was only a matter of time before the Kia was discovered, towed,
inventoried, and subject to law enforcement investigation. With Secret Service
involvement, the State reasoned that Wilburn's role in the fraud would inevitably have
been discovered. Wilburn rejected this assertion and argued that all the evidence obtained
by Pierce and other officers—from answering the cell phone to the search of the Kia—
originated from the unlawful stop, and that the State's inevitable discovery and
independent source arguments were predicated on the Kia being towed after remaining in
the Oak Park parking lot for 5 days. Moreover, Wilburn contended that, but for his
unlawful detention, he could have recovered the keys and removed the Kia from the
parking lot, thus preventing a future towing.

In terms of standing, the State argued that because the Kia was rented with a false
identity using stolen credit cards, it was stolen and Wilburn lacked any interest or
expectation of privacy sufficient to allow him to challenge its search. Wilburn contended
that although the Kia was not lawfully rented, it was not actually stolen. The district court
reserved its ruling pending further briefing and argument by the parties.

The district court concluded the hearing and issued its ruling in June 2013.
Regarding Wilburn's standing to challenge the search of the Kia, the district court
determined that the Kia was rented with fraudulent documents. Moreover, the district
court accepted the presumption in K.S.A. 2013 Supp. 21-5804(a)(1) (giving of a false
identification or a fictitious name is prima facie evidence of intent to permanently deprive
the owner of the property) and found "that the Kia was stolen at the time it was
discovered by Overland Park [detectives]." Because the Kia was stolen and because
Wilburn never "claimed either a proprietary or possessory interest" in it, he lacked
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standing to challenge the search. However, the district court determined it could not end
its inquiry with the question of standing.

The district court returned to Curtis' statements to law enforcement—statements
"which arguably forged a link in the chain which led from the defendants to the dark-
colored Kia"—and determined that they were "as much a fruit of the poisonous tree as
would have been a bag of marijuana seized from his pocket during the course of th[e]
unlawful detention." Because Wilburn and Curtis "were stopped at the same time in the
same place by the same officer for the same reason," Wilburn had standing to challenge
the admission of Curtis' statements and no attenuating circumstances lifted the taint of the
unlawful detention.

Without Curtis' statements, the district court ruled that the "chain of events from
the lost keys to the discovery of the car and its contents [was] not inevitable." Similarly,
the district court ruled that but for the arrest of the four suspects, it was unlikely that
Pierce and Russell would have tied the fraud at Nordstrom to Wilburn, Curtis, and the
lost keys. In short, "Curtis's statements are outcome determinative of the inevitable
discovery argument made by the State," and the State "failed to prove . . . that the vehicle
or the identities of the female suspects would have been inevitably or ultimately
discovered." The district court also rejected the State's independent source argument.
These rulings were memorialized in a journal entry.

The State timely appealed but limited its appeal to "Judge Sara Welch's order
entered on June 26th, 2013 suppressing evidence."





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ANALYSIS

Our standard of review

The State appeals from the suppression of evidence, which it is statutorily
permitted to do. K.S.A. 2013 Supp. 22-3603. In reviewing the granting or denial of a
motion to suppress evidence, this court must determine whether the factual findings
underlying the trial court's decision are supported by substantial competent evidence. The
appellate courts do not reweigh the evidence, reassess the credibility of the witnesses, or
resolve conflicting evidence. The ultimate legal conclusion drawn from those factual
findings, however, is reviewed under a de novo standard. State v. Martinez, 296 Kan.
482, 485, 293 P.3d 718 (2013). However, questions of standing—a component of
jurisdiction—are subject to unlimited review on appeal. State v. Gilbert, 292 Kan. 428,
431-32, 254 P.3d 1271 (2011).

The notice of appeal was specific to Judge Welch's rulings.

We begin by clarifying the issues we will examine on appeal. Judge Bennett
decided after an evidentiary hearing on March 22, 2103, that both Wilburn and Curtis
were unlawfully stopped and detained by police. Under that ruling, Judge Bennett found
that the officers had no reasonable and articulable suspicion upon which to base their stop
of both men. Accordingly, all evidence obtained after the stop was suppressed. In
anticipation of dismissal for lack of evidence, Judge Bennett gave the State a chance to
present an argument at a separate hearing that the evidence would still be admissible
based on either the independent source doctrine or inevitable discovery "independent of
this suppression ruling." The case was set for such a hearing before Judge Welch.
According to the transcript of that hearing, Judge Welch was asked to decide not only
inevitable discovery and the independent source doctrine, but also whether Wilburn had
standing to challenge Curtis' statements to police and the search of the Kia. Apparently,
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the parties submitted additional briefing on the topic, but it is not included in the record
on appeal. Judge Welch approached the case from the point in time where Judge Bennett
had concluded the detention was unlawful. She did not revisit that ruling.

Wilburn argues correctly that appellate jurisdiction only exists when the appeal
conforms to statutory requirements. See State v. Garza, 295 Kan. 326, 329, 286 P.3d 554
(2012). Moreover, the appellate court only obtains jurisdiction over the rulings identified
in the notice of appeal. 295 Kan. at 329. A general notice of appeal may be read liberally
to include issues not specifically named, but a "limited and specific" notice limits the
appellant to those issues or judgments enumerated therein. See State v. G.W.A., 258 Kan.
703, 707, 906 P.2d 657 (1995); see also State v. Laurel, 299 Kan. 668, 673-74, 325 P.3d
1154 (2014) (citing Gates v. Goodyear, 37 Kan. App. 2d 623, 626-29, 155 P.3d 1196,
rev. denied 284 Kan. 945 [2007], for the proposition that a notice of appeal citing two
specific district court rulings is insufficient to confer jurisdiction over other issues not
addressed in those rulings).

In this case, the State specifically appealed "Judge Sara Welch's order entered on
June 26, 2013 suppressing evidence." Judge Welch assumed the correctness of Judge
Bennett's ruling and went on to address the issues she was asked by the parties to decide.
Accordingly, Wilburn argues that the court does not have jurisdiction to consider Judge
Bennett's ruling because it is not mentioned in the notice of appeal. We agree but find
that even if we consider the sole issue decided by Judge Bennett, that being the legality of
the stop, we would not reach a different conclusion than Judge Bennett.

The stop of Wilburn was not based upon a reasonable suspicion of past, current, or
future criminal activity.

The parties do not dispute the fact that this was an involuntary stop and seizure.
Pierce and Jordan stopped Wilburn and Curtis in or just outside Dillard's through a show
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of authority. "Without making an arrest, a law enforcement officer may stop any person
in a public place whom such officer reasonably suspects is committing, has committed or
is about to commit a crime and may demand of the name, address of such suspect and an
explanation of such suspect's actions." K.S.A. 22-2402(1). "Even a brief seizure must be
'reasonable' under the Fourth Amendment." State v. Moralez, 297 Kan. 397, 404, 300
P.3d 1090 (2013). A brief, investigatory detention is both constitutional and statutorily
permitted if an objective officer would have a reasonable and articulable suspicion that
the detainee committed, is about to commit, or is committing a crime. 297 Kan. at 405.

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." Martinez, 296 Kan. at 488. 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. Therefore, even if Judge Bennett's ruling on the legality of the stop and the
resulting suppression of the evidence obtained had been properly appealed, we find it was
supported by substantial evidence and we reached the same legal conclusion.

The Fourth Amendment principles at issue in Judge Welch's rulings are reviewed.

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.'" State v. Moralez, 297 Kan. 397, 404, 300 P.3d 1090
(2013). This right is also present in Section 15 of the Kansas Constitution Bill of Rights.
297 Kan. at 404. When a defendant alleges a violation of these rights and challenges the
admission of evidence based on that violation, the State must "establish the lawfulness of
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the challenged search or seizure." 297 Kan. at 408-09. If the State cannot meet this
burden, the exclusionary rule may apply and suppress the evidence. 297 Kan. at 409.

The exclusionary rule is a judicially created remedy which exists to prevent the
use of unconstitutionally obtained evidence in a criminal proceeding and applies when
such suppression would act to deter illegal conduct by the State. State v. Karson, 297
Kan. 634, 639, 304 P.3d 317 (2013). An important part of the exclusionary rule is the
"fruit of the poisonous tree" doctrine, which "extend[s] the scope of the exclusionary rule
to bar not only evidence directly seized, but also evidence indirectly obtained as a result
of information learned or leads obtained in the unlawful search." State v. Deffenbaugh,
216 Kan. 593, 598, 533 P.2d 1328 (1975). This doctrine applies to all derivative
evidence, be it physical or testimonial. 216 Kan. at 598.

The district court did not err in finding that Curtis' statement to detectives could not be
used against Wilburn.

When Wilburn and Curtis were unlawfully stopped and detained by police, Curtis
told the officers "'I'm from California'" and "'[w]e arrived in a vehicle.'" Even though
Judge Bennett found that the stop was unlawful and the evidence should be suppressed,
the State asserts that Wilburn lacks standing to challenge the statements made by Curtis.
Accordingly, it seeks the ability to use these statements against Wilburn in an effort to
connect him to the Kia with a California license plate. Because the facts are not in
dispute, we review the court's legal conclusion de novo.

In support of this contention, the State relies primarily on cases involving Miranda
warnings rather than those involving the Fourth Amendment—and overlooks the clear
guidance provided by State v. Hodges, 252 Kan. 989, 851 P.2d 352 (1993). There, an
officer trailed a slow-moving car for quite some time, suspicious that the car might be
involved in some of the many burglaries that recently occurred in Manhattan's business
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district. Another officer finally stopped the car as it neared the interstate, but without
witnessing a traffic infraction and without "reason to believe that the suspects were trying
to flee or elude [the officers] or that a crime was going to be committed." 252 Kan. at
991. The driver consented to a search of the car, where burglary tools (screwdrivers and a
pry bar) were discovered. The next day, after being arrested and charged, one of the
passengers confessed, implicating another passenger, Hodges, in a number of business
burglaries. The district court suppressed the evidence and the passenger's confession as
fruit of the illegal traffic stop.

On appeal by the State, our Supreme Court took up a number of issues, including
Hodges' standing to challenge the other passenger's statements. 252 Kan. at 1002.
Although the State contended that Hodges' argument amounted to a vicarious assertion of
the passenger's Fourth Amendment rights, the court rejected this assertion. 252 Kan. at
1003-05. Instead, the court observed that "Hodges was subject to the illegal car stop and
is arguing that the confession is fruit of the poisonous tree" and that, as such fruit, "the
defendant had standing to seek suppression of [the passenger's] confession." 252 Kan. at
1005. However, the court ultimately refused to suppress the passenger's confession
because it was sufficiently separated from the illegal stop; specifically, the confession
occurred the next day after he requested to speak to police in an effort to make a deal that
would benefit him. In other words, the court applied the attenuation doctrine to allow the
confession into evidence. 252 Kan. at 1008-09.

Like Hodges, Wilburn sought to suppress Curtis' statements only as fruits of the
shared illegal stop. But unlike Hodges, the State raises no argument in favor of
attenuation or any other break in the chain of events between the illegal stop and Curtis'
statement—nor could it successfully make such an argument. As such, Wilburn clearly
had standing to object to the use of Curtis' statements, and the district court's decision in
that regard is affirmed.

19

The district court's finding that Wilburn lacked standing to challenge the search does not
lead to the conclusion that the evidence found in the Kia is admissible.

The district court found that the Kia was stolen and, therefore, Wilburn did not
have standing to challenge its search. But Judge Welch went on to conclude that the
evidence recovered from the Kia was inadmissible regardless of Wilburn's standing to
challenge the search because it would not have been discovered but for the illegal stop
and, as such, was the fruit of the illegal stop and seizure. The State, however, argues that
Wilburn's lack of standing requires reversal of this decision.

It appears that the State's position is that Wilburn's lack of standing to challenge
any search to the Kia controls the admissibility of the evidence—illegal seizure or not.
But a defendant's standing to challenge the search of a vehicle is not always
determinative of the search's admissibility. In State v. Epperson, 237 Kan. 707, 703 P.2d
761 (1985), an officer on patrol in the early hours of the morning noticed a parked BMW
with two men inside. The men appeared to be startled by the patrol car and, after some
action inside the car, exited the vehicle and began to walk away. The officer exited his
vehicle, caught up to the men, and spoke to them; they avoided directly answering his
questions. When the officer looked inside the BMW, which was unlocked and had its
window rolled down, he discovered an axe and two baggies that likely contained cocaine
in the car. He arrested the two men, but the district court suppressed the evidence in the
car because "the officer did not have a reasonable or articulable suspicion of criminal
activity to justify an investigative stop" and "the initial seizure of the defendants, the
search of the car, and the seizure of the cocaine was unlawful." 237 Kan. at 709. The
State appealed first to this court and then to our Kansas Supreme Court.

After finding that the officer lacked grounds to stop the two men and that his
search of the car was unlawful, our Supreme Court moved on to a third question: Could
the evidence found in the car be admitted into evidence against the car's passenger? 237
20

Kan. at 714-16. Examining the relevant caselaw, the court determined that the passenger
lacked standing to challenge the unlawful search because he failed to meet his burden to
establish that the search violated his Fourth Amendment rights. 237 Kan. at 716-17. But
the passenger also contended that the evidence found in the car constituted the fruit of the
illegal stop and seizure. Our Supreme Court observed the following:

"We have held, and the rule is generally, that a passenger has no standing to challenge the
search of a car which does not belong to him. Here, however, the initial stop and seizure
of both [men] was illegal, and we have so held. The search of the car followed quickly
upon the heels of that illegal seizure. It would not seem logical to permit the evidence to
be used as against the former passenger and not as against the former driver." 237 Kan. at
717.

Because the stop was illegal, the passenger's rights were violated, and his "right to
challenge the search stem[med] not from the fact that he was previously a passenger in
the motor vehicle, but because he is a person who was unlawfully stopped and seized,
and because the search followed as a consequence thereof." 237 Kan. at 718. As such, the
court upheld the suppression of evidence. 237 Kan. at 718.

The United States Court of Appeals for the Tenth Circuit has held similarly,
explaining:

"'This court has repeatedly recognized that although a defendant may lack the requisite
possessory or ownership interest in a vehicle to directly challenge a search of that
vehicle, the defendant may nonetheless contest the lawfulness of his own detention and
seek to suppress evidence found in the vehicle as the fruit of the [defendant's] illegal
detention.' [Citations omitted.]" United States v. DeLuca, 269 F.3d 1128, 1132 (10th Cir.
2001).

Other federal courts of appeals agree with this conclusion. See United States v.
Bueno, 703 F.3d 1053, 1059 n.3 (7th Cir.), vacated on other grounds by Gonzalez-Zavala
21

v. United States, 569 U.S. ___, 133 S. Ct. 2830 (2013); United States v. Green, 275 F.3d
694, 699 (8th Cir. 2001) ("Even though [defendant] lacked a possessory or property
interest in the motor vehicle that would enable him to directly challenge the search, he
may still contest the lawfulness of his own detention and seek to suppress evidence as the
fruit of his illegal detention."). In a case involving a passenger who challenged guns
found in a car as the fruits of an illegal traffic stop, the Third Circuit cautioned:

"But we should not be distracted by the fact that this case involves evidence
found in a car. This is not an 'auto search' case. The search of the car is not before us; the
seizure of [the defendant] is. This case is about an illegal seizure by the police of the
defendant, pursuant to which evidence was discovered. The violation of [the defendant's]
Fourth Amendment rights was the traffic stop itself." United States v. Mosley, 454 F.3d
249, 253 (3d Cir. 2006).

Moreover, the Tenth Circuit has more broadly rejected "the proposition that the
fruit of the poisonous tree doctrine applies only when the defendant has standing
regarding both the violation which constitutes the poisonous tree and separate standing
regarding the evidence which constitutes the fruit of that poisonous tree." United States v.
Olivares-Rangel, 458 F.3d 1104, 1118 (10th Cir. 2006). In discussing whether a
defendant could challenge the contents of his immigration and criminal record "A-file" as
fruits of an illegal stop, the court explained: "A defendant's standing to challenge the
admissibility of evidence deemed fruit of an illegal search and seizure therefore arises
from the alleged violation of his Fourth Amendment rights by virtue of the primary
illegality." 458 F.3d at 1117, 1119. As such, "[t]here is no independent requirement that a
defendant also have standing or a proprietary interest in the items sought to be suppressed
under the fruits of the poisonous tree doctrine." 458 F.3d at 1119.

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
22

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.

As ancillary to this argument, the State contends that either Wilburn or Curtis
threw away the keys to the Kia, thereby intentionally abandoning it. It is well established
that "an individual who abandons property is not permitted to contest the legality of the
search and seizure of the property." State v. Ralston, 45 Kan. App. 2d 1024, 1027-28, 257
P.3d 814 (2011), rev. denied 293 Kan. 1112 (2012). Aside from the fact that nothing in
the record indicates that Wilburn and Curtis purposely threw away the keys—let alone
with the intention to abandon the Kia—the foregoing analysis still applies. Wilburn's stop
remains illegal, and the discovery of the Kia remains the last event in the chain that began
at that stop. As such, the district court's decision suppressing the evidence from the Kia,
even though Wilburn had no possessory interest in the Kia, is affirmed.

The inevitable discovery doctrine does not apply here.

The State lastly argues that the inevitable discovery doctrine applies and renders
the evidence in the Kia admissible. The State predicates this argument on two
assumptions: (1) that Curtis' statements, if admissible, would have provided a prompt
link between the Nordstrom fraud and Wilburn; and (2) that Wilburn and Curtis would
not have been able to recover the Kia's keys.

23

If the prosecution can establish by a preponderance of the evidence that otherwise
unlawfully obtained evidence ultimately or inevitably would have been discovered by
lawful means, the evidence is admissible under the inevitable discovery doctrine. The
burden is on the State to demonstrate ultimate admissibility. State v. Stowell, 286 Kan.
163, 166, 182 P.3d 1214 (2008). Importantly, "inevitable discovery involves no
speculative elements but focuses on demonstrated historical facts capable of ready
verification or impeachment." Nix v. Williams, 467 U.S. 431, 444 n.5, 104 S. Ct. 2501, 81
L. Ed. 2d 377 (1984). As noted by this court in State v. Mollett, No. 97,999, 2008 WL
3852167, at *12 (Kan. App. 2008) (unpublished opinion), rev. denied 287 Kan. 768
(2009), "the inevitable discovery exception does not invite speculation about the possible
series of events under which the evidence may have been discovered, but requires an
affirmative showing of a reasonable probability that the evidence would inevitably be
discovered through lawful means already initiated when the seizure was made."

At the hearing before the district court, the State elicited testimony in support of
this position. Its path to inevitable discovery, as demonstrated by the testimony, is
essentially as follows:

 After remaining in the parking lot for 5 days, the Kia would have been
towed.
 Enterprise would have collected the car from the tow company.
 Enterprise would have inspected the Kia and inventoried its contents.
 Suspicious of the personal property left inside the vehicle, Enterprise would
have contacted law enforcement.
 Law enforcement would have recognized the property as evidence of fraud.
 Law enforcement would have contacted the Secret Service for assistance
with the investigation into the suspicious items in the Kia.
24

 The Secret Service would have used the items within the car, as well as
their internal agency resources, to tie the Kia to Carroll and Wilburn.
 The Secret Service would have also used the evidence from the Kia to find
the area stores that Wilburn and his compatriots had defrauded.
 Russell and Pierce would have spoken about the Nordstrom fraud at some
point, leading the men to discuss Curtis' statements about California and
further tying all the pieces together.

But the State's sequence of events is predicated both on the admissibility of Curtis'
statements, which we have found were not admissible, and on the assumption that the Kia
would have remained in the parking lot for 5 days. Even assuming that Curtis' statements
about coming from California were admissible, nothing in the record indicates that the
Kia would not have been recovered by either Wilburn or one of the other suspects. In
fact, Carnales, the director of mall security, testified that one recovers lost property by
describing the item and showing identification. Security then records the exchange and
returns the property to its owner. It is logical to assume that one of the four suspects
would have recovered the keys from the mall security office at some point that same day
and driven the Kia away, especially given the keys had been recovered and were safely
held in the mall security office. In fact, had Wilburn not been detained, he likely could
have recovered the Kia himself.

Moreover, many of the other links in the State's inevitable discovery chain are
very tenuous ones. Russell testified that, but for his phone call with Pierce, he likely
would not have investigated the Nordstrom call or looked for the vehicle associated with
that incident until the next day. Hatch testified that the information he recovered from the
other stores occurred after the search of the Kia and "outside of five days" from the initial
encounter between Wilburn and the detectives. And every link in the chain—from the
tow at the mall parking lot down to the interaction between the Secret Service and local
25

law enforcement—is predicated on prompt action by each individual and agency
involved. The situation is simply too speculative to constitute inevitable discovery.

The State attempts to analogize this case to those where discovery of the
incriminating evidence would be fairly immediate. See State v. Walker, 283 Kan. 587,
604-05, 153 P.3d 1257 (2007) (the independent police investigation, when combined with
the defendant's admissible statements, would have uncovered the vehicle used in the
crime); State v. McKessor, 246 Kan. 1, 7-8, 785 P.2d 1332 (1990) (apart from the public
safety exception, the gun would have been discovered approximately 2 hours later
pursuant to a valid search warrant); State v. Waddell, 14 Kan. App. 2d 129, 134-35, 784
P.2d 381 (1989) (the illegally frisked defendant would have been taken to jail and
processed regardless of the search). But the facts in those cases, unlike the facts in the
instant case, are quite straight-forward. In contrast, the State in State v. Mollett, No.
97,999, 2008 WL 3852167 (Kan. App. 2008) (unpublished opinion), rev. denied 287
Kan. 768 (2009), essentially argued that even had officers not illegally stopped a car
parked in a high-crime area, they would have run the tags, learned of the driver's
outstanding warrant, arrested him, and impounded the vehicle, thereby discovering stolen
property during an inventory search. This court rejected that argument as too speculative
as there was no concrete evidence demonstrating that the officers would definitely have
discovered the driver's warrant, arrested him, and impounded the vehicle, which he did
not own. 2008 WL 3852167, at *11-12. Similarly, in State v. Flesher, No. 94,175, 2006
WL 1379606, at *4 (Kan. App. 2006) (unpublished opinion), rev. denied 284 Kan. 948
(2007), this court rejected the inevitable discovery doctrine because the facts required the
State to "heap conjecture onto speculation to construct a scenario in which" the defendant
would leave a party drunk and somehow encounter law enforcement who would then
"identify him as a probable underage drinker."

Both Mollett and Flesher involve situations in which discovery of the evidence at
issue was certainly possible, but not inevitable. In this case, the Kia likely would not have
26

been towed until at least 5 days after the police encountered Wilburn and Curtis. Wilburn
and Curtis could have easily recovered the keys within those 5 days. Even if the car were
towed, Enterprise would still need time to inspect it, find the suspicious contents, and
contact law enforcement; even with that contact, local law enforcement and the Secret
Service would need to interface effectively to uncover Carroll's and Wilburn's
connections to the Kia—and then, to the fraud at Oak Park Mall.

This court reviews factual findings under the substantial evidence standard.
Martinez, 296 Kan. at 485. Substantial evidence refers to legal and relevant evidence that
a reasonable person could accept as being adequate to support a conclusion. State v. May,
293 Kan. 858, 862, 269 P.3d 1260 (2012). Given the frankly improbable chain of events
that unraveled at Oak Park Mall in February 2012 and the equally unlikely chain of
events required to discover the Kia without first detaining Wilburn and Curtis, it is clear
that the district court's conclusion was supported by substantial evidence. It is also legally
sound. As such, its decision is affirmed, and the evidence from the Kia was properly
suppressed.

We pause to note that the State fails to brief the argument it made in district court
concerning the independent source doctrine. Accordingly, we view it to have abandoned
any such claim and we will not address it here. See State v. Boleyn, 297 Kan. 610, 633,
303 P.3d 680 (2013) (an issue not briefed by the appellant is deemed waived and
abandoned).

Affirmed.