State v. Williams

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,617

STATE OF KANSAS,
Appellant,

v.

DERON D. WILLIAMS,
Appellee.


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.
Voluntary encounters between law enforcement officers and citizens are not
considered seizures and do not trigger the protections of the Fourth Amendment to the
United States Constitution.

3.
A person is seized by a police officer, thereby triggering an analysis of the police
action under the Fourth Amendment to the United States Constitution, when the officer,
by means of physical force or show of authority, has in some way restrained the liberty of
a citizen.

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4.
When no physical force is involved, a seizure by show of police authority occurs
when the totality of circumstances surrounding the incident would communicate to a
reasonable person that he or she is not free to disregard the officer's questions, decline the
officer's requests, or otherwise terminate the encounter, and the person submits to the
show of authority.

5.
Some factors to consider in applying the totality of the circumstances test are: the
presence of more than one officer, the display of a weapon, physical contact by the
officer, use of a commanding tone of voice, activation of sirens or flashers, a command to
halt or approach, and an attempt to control the ability to flee. This list of factors is neither
exhaustive nor exclusive. Moreover, no one factor is legally determinative, dispositive, or
paramount. The outcome does not turn on the presence or absence of a single controlling
or infallible touchstone and requires careful scrutiny of all the surrounding circumstances.

6.
When a criminal defendant challenges the State's use of evidence allegedly
obtained in violation of the defendant's rights under the Fourth Amendment to the United
States Constitution, the State bears the burden to establish the lawfulness of the
challenged search or seizure. When the State fails to meet that burden, the evidence may
be suppressed through application of the exclusionary rule.

7.
One exception to the exclusionary rule is the doctrine of attenuation. Under the
doctrine, the poisonous taint of an unlawful search or seizure dissipates when the
connection between the unlawful police conduct and the challenged evidence becomes
attenuated.
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8.
When evidence would not have come to light but for the illegal actions of law
enforcement, the relevant question is whether officers discovered the allegedly tainted
evidence through exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.

9.
To determine whether law enforcement officers obtained allegedly tainted
evidence through exploitation of an illegality, courts generally consider (1) the time that
elapsed between the illegality and the acquisition of the evidence sought to be
suppressed, (2) the presence of any intervening circumstances, and (3) the purpose and
flagrancy of the official misconduct. But no one factor is controlling, and other factors
may also be relevant to the attenuation analysis.

10.
Whether the taint of a prior illegality has been purged by sufficient attenuation
between the unlawful conduct of a police officer and the discovery of the challenged
evidence is a question of fact that appellate courts review under a substantial competent
evidence standard.

11.
The discovery of an arrest warrant following an illegal detention is of minimal
importance in attenuating the taint from the illegal detention from the evidence
discovered during a search incident to an arrest on the warrant.

Review of the judgment of the Court of Appeals in an unpublished opinion filed January 22,
2010. Appeal from Wyandotte District Court; THOMAS L. BOEDING, judge. Opinion filed May 17, 2013.
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Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is
affirmed in part and reversed in part.

Edmond D. Brancant, deputy district attorney, argued the cause, and Michael J. Nichols, assistant
district attorney, Jerome A. Gorman, district attorney, and Steve Six, attorney general, were on the brief
for appellant.

Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, argued the cause and was on the brief for
appellee.

The opinion of the court was delivered by

MORITZ, J.: The State charged Deron Williams with one count of cocaine
possession after law enforcement officers arrested him on an outstanding warrant and
discovered cocaine in his shoe. The district court granted Williams' motion to suppress
the cocaine, concluding officers unlawfully detained Williams before discovering the
arrest warrant when they took his identification to run a warrants check and that unlawful
detention tainted the evidence found in the search, requiring its suppression. The State
appealed and a divided panel of the Court of Appeals reversed the district court's
suppression decision. State v. Williams, No. 101,617, 2010 WL 348286 (Kan. App. 2010)
(unpublished opinion). We granted Williams' petition for review. See 290 Kan. 1104
(2010).

While we agree with the district court that the officers unlawfully detained
Williams, we conclude the unlawful detention occurred at an earlier stage in the
encounter than did the district court. Specifically, we agree with the Court of Appeals
dissent that officers unlawfully detained Williams at the inception of the encounter when
they (1) pulled over and parked their patrol vehicle next to Williams as he walked along a
sidewalk early in the morning in an isolated area; (2) activated the car's emergency lights;
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(3) got out of the patrol car and stood on either side of Williams; and (4) immediately
began asking Williams questions, all without any reasonable suspicion of his involvement
in any criminal activity. We hold under these circumstances, a reasonable person would
not have felt free to decline to answer the officers' questions or to otherwise terminate the
encounter.

Further, applying the attenuation analysis from State v. Martin, 285 Kan. 994, 179
P.3d 457, cert. denied 555 U.S. 880 (2008), as clarified in State v. Moralez, 297 Kan.
___, ___ P.3d ___ (No. 102,342, this day decided), we hold the officers' discovery of an
outstanding arrest warrant during Williams' unlawful detention did not purge the taint of
that unlawful detention. Accordingly, we reverse the Court of Appeals' decision and
affirm the district court's suppression ruling.

FACTUAL AND PROCEDURAL BACKGROUND

The relevant facts are undisputed. Williams' encounter with police began about
2:30 a.m., as patrolling Kansas City, Kansas, police officer Andrew Lewis observed
Williams walking westbound on the sidewalk running parallel to Quindaro Boulevard in
a vicinity known to law enforcement as a "high crime, high drug" area. Lewis, who was
accompanied by a second officer, did not suspect Williams of committing any crimes;
nevertheless, he decided to stop Williams for what Lewis characterized as a "pedestrian
check."

Lewis testified at the suppression hearing the purpose of a pedestrian check is to
ask the pedestrian about what is happening in the area and whether he or she has seen any
suspicious activity.

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In this instance, Lewis pulled his patrol car next to the sidewalk where Williams
was walking and activated his "wigwags,"—two yellow lights on the back of the light bar
atop the patrol car—in order to warn traffic he had stopped on the side of the road. As
Lewis opened the door of his patrol car, Williams stopped walking and stood near the
rear of the patrol car. Both officers got out of the vehicle; Lewis stood near the trunk of
the patrol car, and the second officer stood by the passenger door.

Lewis then questioned Williams about where he had been, where he was going,
and whether he had seen anything suspicious in the area. After several minutes, Lewis
requested Williams' identification to "see if he's got a warrant."

After Lewis ran a computer check and discovered an outstanding warrant, the
officers arrested Williams, took him to the county jail, and searched him, discovering
cocaine in his shoe.

District Court's Ruling on Motion to Suppress

After the State charged Williams with possession of cocaine, he moved to
suppress the cocaine, arguing he was unlawfully seized without reasonable suspicion and
the unlawful seizure tainted the evidence found pursuant to his arrest. Williams also
argued the discovery of the warrant did not purge the taint of the unlawful seizure. The
State agreed that the officers lacked reasonable suspicion of any criminal activity by
Williams but argued reasonable suspicion was unnecessary because the encounter
commenced as a voluntary encounter and remained voluntary throughout the encounter.
Alternatively, the State argued that even if the officers unlawfully detained Williams, the
discovery of the outstanding arrest warrant constituted an intervening circumstance that
purged the taint of the unlawful detention.

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Following an evidentiary hearing, the district court granted Williams' suppression
motion. The court found the encounter between Williams and the two officers began as a
voluntary encounter but evolved into an unlawful detention when Lewis requested
Williams' identification. In so holding, the district court relied on several facts, including
the presence of two police officers, the patrol car's flashing emergency lights, Williams'
location between the two officers during questioning, and the absence of any reasonable
suspicion of Williams' involvement in criminal activity. However, the district court did
not consider the State's alternative attenuation argument. The State appealed.

Court of Appeals' Decision

A divided Court of Appeals panel reversed the district court's suppression ruling,
with the majority characterizing the entire encounter between Williams and the officers
as voluntary. Alternatively, the majority applied Martin to conclude that even if officers
unlawfully detained Williams, the discovery of the outstanding arrest warrant and the
nonegregious nature of the officers' actions sufficiently attenuated the discovery of the
contraband from the unlawful detention. Williams, 2010 WL 348286, at *1-4. In a
concurring opinion, Judge Buser more thoroughly considered the totality of the
circumstances test before also concluding the entire encounter was voluntary. 2010 WL
348286, at *4-8 (Buser, J., concurring).

In a dissenting opinion, Judge Standridge reasoned the officers unlawfully
detained Williams at the beginning of the encounter. Further, applying Martin's
attenuation analysis, Judge Standridge would have held that the discovery of the
outstanding warrant did not purge the taint of the unlawful detention, requiring
suppression of the cocaine. Williams, 2010 WL 348286, at *8-13 (Standridge, J.,
dissenting).

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ANALYSIS

Williams seeks review of two issues: (1) whether the Court of Appeals erred in
characterizing Williams' interaction with law enforcement officers as voluntary rather
than as an unlawful detention, and (2) whether the Court of Appeals erred in alternatively
applying Martin's attenuation analysis to conclude the officers' intervening discovery of
an arrest warrant purged the taint of any unlawful detention as to the evidence discovered
following Williams' arrest.

The officers unlawfully detained Williams at the commencement of the encounter without
reasonable suspicion of his involvement in any criminal activity.

Williams claims officers unlawfully detained him at the commencement of the
encounter, or, at the very least, when Lewis requested his identification to run a warrants
check. The State contends the officers engaged in a voluntary encounter with Williams
during which Lewis requested but did not demand Williams' identification.

As discussed below, we need not determine whether Williams was detained
without reasonable suspicion when officers requested his identification and ran a
warrants check. Cf. Moralez, 297 Kan. at ___, slip op. at 10-15 (concluding defendant's
voluntary encounter with officers evolved into unlawful detention when, without
reasonable suspicion of criminal activity, the officers requested and took possession of
defendant's identification card and retained it to run a warrants check). Instead, we
conclude under the factual circumstances of this case, the officers unlawfully detained
Williams at the beginning of the encounter with no reasonable suspicion whatsoever of
his involvement in criminal activity.

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
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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).

Voluntary encounters are not considered seizures and do not trigger the
protections of the Fourth Amendment. See State v. Pollman, 286 Kan. 881, 887, 190 P.3d
234 (2008); State v. Morris, 276 Kan. 11, 19, 72 P.3d 570 (2003). It is well established
that

"'law enforcement officers do not violate the Fourth Amendment by merely approaching
an individual on the street or in another public place, by asking him if he is willing to
answer some questions, by putting questions to him if he is willing to listen, or by
offering in evidence in a criminal prosecution his voluntary answers to such questions.'"
Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991) (quoting
Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 75 L. Ed. 2d 229 [1983]).

And a voluntary encounter is not transformed into a seizure simply because an
individual responds to questions or provides identification when approached and
questioned by an officer. See INS v. Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 80 L.
Ed. 2d 247 (1984) ("While most citizens will respond to a police request, the fact that
people do so, and do so without being told they are free not to respond, hardly eliminates
the consensual nature of the response."); United States v. Laboy, 979 F.2d 795, 798 (10th
Cir. 1992) ("A voluntary encounter involves the voluntary cooperation of a citizen with
noncoercive questioning."); see also State v. Lee, 283 Kan. 771, 775-78, 156 P.3d 1284
(2007) (concluding voluntary encounter did not evolve into investigatory detention
"simply because the officer asked Lee for permission to conduct a pat-down search for
weapons" and the defendant "chose to voluntarily comply" with officer's request).

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The Totality of the Circumstances Test

An encounter is no longer voluntary and "a person is seized, thereby triggering a
Fourth Amendment analysis of the police action, 'when an officer, by means of physical
force or show of authority, has in some way restrained the liberty of a citizen.'" Morris,
276 Kan. at 17 (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 20 L. Ed. 2d
889 [1968]). When no physical force is involved, a seizure by show of authority occurs
when the totality of circumstances surrounding the incident would communicate to a
reasonable person the person is not free to disregard the officer's questions, decline the
officer's requests, or otherwise terminate the encounter, and the person submits to the
show of authority. See Pollman, 286 Kan. at 887 (noting a person's interaction with law
enforcement is voluntary "if under the totality of the circumstances an officer's conduct
conveys to a reasonable person that he or she is free to refuse the officer's requests or
otherwise end the encounter"); Morris, 276 Kan. at 18-19 (phrasing the question as
whether circumstances surrounding the incident "would communicate to reasonable
person that he or she is not free to leave").

Some factors to consider in applying the totality of the circumstances test are:
"the presence of more than one officer, the display of a weapon, physical contact by the
officer, use of a commanding tone of voice, activation of sirens or flashers, a command to
halt or approach, and an attempt to control the ability to flee." State v. McGinnis, 290
Kan. 547, 553, 233 P.3d 246 (2010). This list of factors is neither exhaustive nor
exclusive. Moreover, "'no one factor is legally determinative, dispositive, or paramount.
The outcome does not turn on the presence or absence of a single controlling or infallible
touchstone and requires careful scrutiny of all the surrounding circumstances.' [Citation
omitted.]" 290 Kan. at 553.

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Thus, we first determine whether, under the totality of the circumstances, a
reasonable person in Williams' position would have felt free to disregard Lewis'
questions, decline his request for identification, or otherwise terminate the encounter.

Although the rationale of the Court of Appeals majority opinion is somewhat
unclear, the majority appears to conclude that a reasonable person in Williams' position
would have felt free to disregard Lewis' questions and continue walking; thus, the entire
encounter between Lewis and Williams was voluntary. Williams, 2010 WL 348286, at
*1-4 (commenting that "the police in this case did not act with much force" or "exhibit
overbearing behavior" and concluding the officers' actions in merely questioning
defendant and requesting identification "appear allowable").

However, in a concurring opinion, Judge Buser provided a rationale for the
majority's conclusion regarding the voluntariness of the consent. The concurrence
suggests that the totality of the circumstances shows that Williams did not submit to a
show of authority because Lewis only activated "wigwag" lights to warn other traffic he
had stopped his patrol car; Lewis maintained a conversational tone with Williams and did
not command him to stop walking; there was no evidence the officers displayed their
weapons; the officers did not surround Williams but instead stood 5 to 7 feet away from
him; the encounter occurred in public view; the officers did not touch or physically
restrain Williams; and Lewis retained Williams' identification only briefly to conduct a
warrants check. Judge Buser acknowledged the presence of "a few of the 10 factors
typically associated with a police officer's show of authority," including that the officers
wore uniforms, Lewis did not inform Williams he was free to go, and Lewis briefly
retained Williams' identification. 2010 WL 348286, at *4-5 (Buser, J., concurring).

In contrast, in a dissenting opinion, Judge Standridge concludes the encounter
between Williams and the officers began as an involuntary detention. 2010 WL 348286,
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at *8, 11 (Standridge, J., dissenting). The dissent reasons that regardless of the nature of
the questions asked by Lewis during the encounter, the officers' actions "would have
conveyed to a reasonable person that he or she was not free to leave." 2010 WL 348286,
at *10. In particular, the dissent points out the officers stopped their patrol car on the
street immediately in front of Williams, Lewis activated his wigwag lights, and "two fully
uniformed police officers exit[ed] the car and position[ed] themselves so that Williams
was between the two of them." 2010 WL 348286, at *10. The dissent also finds several
additional facts persuasive, including that officers did not request that Williams answer
questions but instead immediately initiated questioning; the officers retained Williams'
identification for a period of time; and the officers did not advise Williams he could
terminate the encounter. 2010 WL 348286, at *11.

In analyzing whether a reasonable person would have felt free to disregard the
officers' questions or to otherwise terminate the encounter under the facts here, the
concurring opinion emphasizes the circumstances that followed the initial stop while the
dissent focuses on the circumstances that caused Williams to stop walking. We agree
with the dissent that the officers' show of authority and the initial circumstances of the
encounter weigh heavily in favor of finding that a reasonable person in Williams' position
would have felt compelled to stop and would not have felt free to disregard Lewis'
questions, decline his request for identification, or otherwise terminate the encounter.

In this regard, we note the similarities between the facts of this case and the facts
before the New Mexico Supreme Court in State v. Soto, 143 N.M. 631, 179 P.3d 1239
(2008). There, the court found officers exhibited a show of authority even without
activating emergency lights when they pulled their patrol car alongside the defendant as
he rode his bicycle on an isolated public street at 2:30 a.m. The Soto court further
concluded the defendant submitted to the show of authority by stopping his bicycle. 143
N.M. at 632-35.
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In Soto, officers immediately began questioning the defendant about his activities,
asked him for identification, and retained his identification to run a warrant check.
Ultimately, the New Mexico court found this conduct, combined with the late hour and
the isolated location, would have caused a reasonable person to feel compelled to stop
and unable to leave. See 143 N.M. at 632-35; see also Morris, 276 Kan. at 21-24
(discussing how activation of emergency lights can be a show of authority and
concluding an individual's submission to such a show of authority can support finding of
an unlawful detention); State v. Epperson, 237 Kan. 707, 708, 713-14, 703 P.2d 761
(1985) (concluding officer unlawfully detained defendant when officer called out to him
to wait as he walked away from his car, defendant stopped walking in response, and
officer began asking general questions about defendant's reasons for being in the area).

As in Soto, we have no hesitation in concluding that a reasonable person in
Williams' circumstances would have felt compelled to stop and unable to leave. Those
circumstances include: (1) Williams was walking alone on a sidewalk at 2:30 a.m. on a
deserted street; (2) two officers in a patrol vehicle pulled up next to Williams as he
walked; (3) the officers activated their emergency lights; (4) the officers both got out of
their car and positioned themselves on either side of Williams; and (5) the officers
immediately began asking Williams questions without indicating he was free to leave.
And, as the State concedes, the officers lacked any reasonable suspicion of Williams'
involvement in any criminal activity; thus, the seizure was unlawful.

Accordingly, we reverse the Court of Appeals' conclusion that the stop began as a
voluntary encounter and remained a voluntary encounter, and we also reverse the district
court to the extent that it found the stop began as a voluntary encounter.

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Given the violation of Williams' Fourth Amendment right to be free from an
unreasonable seizure, we next consider whether the evidence obtained as a result of the
Fourth Amendment violation should have been suppressed through application of the
exclusionary rule.

The officers' discovery of an outstanding arrest warrant did not purge the taint of the
unlawful detention.

When a criminal defendant challenges the State's use of evidence allegedly
obtained in violation of the defendant's Fourth Amendment rights, the State bears the
burden to establish the lawfulness of the challenged search or seizure. McGinnis, 290
Kan. at 551. When the State fails to meet that burden, the evidence may be suppressed
through application of the exclusionary rule. See 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); 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); State v. Deffenbaugh, 216
Kan. 593, 598, 533 P.2d 1328 (1975) (describing fruit of poisonous tree doctrine as "one
facet of the exclusionary rule" and explaining doctrine is held "to extend 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").

A primary purpose of the exclusionary rule is deterrence. "[B]ut '[d]espite its
broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the
use of illegally seized evidence in all proceedings or against all persons.' [Citations
omitted.]" Brown v. Illinois, 422 U.S. 590, 599-600, 95 S. Ct. 2254, 45 L. Ed. 2d 416
(1975); see Herring, 555 U.S. at 144 ("To trigger the exclusionary rule, police conduct
must be sufficiently deliberate that exclusion can meaningfully deter it . . . . [T]he
exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in
some circumstances recurring or systemic negligence.").
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The Attenuation Doctrine

One recognized exception to the exclusionary rule is the doctrine of attenuation.
"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 (2008). When evidence "'would not have come to light but for the illegal
actions of the police,'" the relevant question is whether the allegedly tainted evidence was
discovered through "'exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.'" Brown, 422 U.S. at 599 (quoting
Wong Sun, 371 U.S. at 487-88).

To answer that question we generally consider (1) the time that elapsed between
the illegality and the acquisition of the evidence sought to be suppressed, (2) the presence
of any intervening circumstances, and (3) the purpose and flagrancy of the official
misconduct. Brown, 422 U.S. at 603-04; see Martin, 285 Kan. at 1003. But no one factor
is controlling, and other factors also may be relevant to the attenuation analysis. See, e.g.,
Brown, 422 U.S. at 600-04 (concluding that giving of Miranda warnings, standing alone,
cannot support attenuation when confession follows unlawful arrest; but noting that
giving of Miranda warnings is relevant factor to consider in determining whether
confession was sufficiently attenuated from unlawful arrest); Martin, 285 Kan. at 1003
(noting no single factor is dispositive).

Whether the taint of a prior illegality has been purged by sufficient attenuation
between the unlawful conduct and the discovery of the challenged evidence is a question
of fact we review under a substantial competent evidence standard. See, e.g., State v.
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Smith, 286 Kan. 402, 420, 184 P.3d 890, cert. denied 555 U.S. 1062 (2008) (whether
causal break dissipated taint of unlawful detention is question of fact).

Although the attenuation analysis is fact-driven, and the district court failed to
consider the State's attenuation analysis, we may do so for the first time on appeal
because the record in this case is sufficiently developed. See Martin, 285 Kan. at 1003.

Both parties agree that Martin sets out the appropriate framework for applying the
attenuation doctrine, but they disagree on whether the discovery of the arrest warrant
provided sufficient attenuation between the unlawful detention and the discovery of
cocaine in Williams' shoe. In Martin, we presumed law enforcement officers unlawfully
detained the defendant, and we restricted "our analysis to the question . . . [of] whether
the discovery of an outstanding arrest warrant during an unlawful detention is an
intervening event which removes the taint of the unlawful detention from evidence
retrieved in a search incident to the warrant arrest." 285 Kan. at 998.

After clarifying that the discovery of the arrest warrant did not necessarily control
the outcome of the test, this court in Martin applied Brown's three-factor attenuation
analysis to conclude that the first factor weighed against attenuation because of the lack
of a temporal break between the unlawful detention and the discovery of the marijuana.
However, we held that the second factor weighed in favor of attenuation because the
discovery of the arrest warrant represented a "potential break" in the causal chain
between the unlawful detention and the discovery of the marijuana. Finally, we
concluded the third factor also weighed in favor of attenuation because the officers'
conduct in unlawfully detaining the defendant to obtain his identification and check for
warrants was not flagrant. Martin, 285 Kan. at 1003-04. Ultimately, we concluded:
"[C]onsidering the minimal nature and extent of the official misconduct, the outstanding
arrest warrant was an intervening circumstance which sufficiently attenuated the taint of
17



the unlawful detention so as to permit the admission of the fruits of the search incident to
arrest." 285 Kan. at 1005.

Clarification of State v. Martin in State v. Moralez

We recently revisited Martin and clarified our holding in that case in State v.
Moralez, 297 Kan. ___, ___ P.3d ___ (No. 102,342, this day decided), slip op. at 21-25.
In Moralez, we reaffirmed our conclusion in Martin regarding the appropriate framework
for analyzing an attenuation issue. But we clarified the significance of the discovery of an
outstanding arrest warrant in considering attenuation when that discovery occurs during
an unlawful detention.

In Moralez, officers detained the defendant by obtaining a copy of his
identification card and running a warrants check after he voluntarily engaged in a
conversation with officers who were investigating an expired tag on a car in an apartment
parking lot. As a result of the suspicionless detention, officers discovered an outstanding
warrant for Moralez' arrest and, pursuant to his arrest, discovered marijuana on his
person. The district court denied his suppression motion, and the Court of Appeals
affirmed.

In reversing the denial of Moralez' suppression motion, we expressly disapproved
of any language in Martin that could be interpreted to suggest that the discovery of an
arrest warrant during an unlawful detention represents an "intervening circumstance" that
independently purges the taint of the unlawful detention. Instead, we agreed with the
Arizona Supreme Court's conclusion that "'the subsequent discovery of a warrant is of
minimal importance in attenuating the taint from an illegal detention upon evidence
discovered during a search incident to an arrest on the warrant.'" Moralez, 297 Kan. at
___, slip op. at 23 (quoting State v. Hummons, 227 Ariz. 78, 81, 253 P.3d 275 [2011]).
18




Further, in Moralez, we acknowledged that at least some of our rationale in Martin
regarding the third factor—the purpose and flagrancy of the police misconduct—
conflicted with the rationale of Brown, and we expressly disapproved of any language in
Martin suggesting that "fishing expeditions" by law enforcement officers are generally
acceptable as long as the encounter is brief and the officers are courteous. See Moralez,
297 Kan. at ___, slip op. at 24-25. Finally, we noted that the three factors generally
considered in performing an attenuation analysis—temporal proximity, presence of
intervening circumstances, and purpose and flagrancy of police misconduct—are neither
exclusive nor necessarily entitled to equal weight. Instead, we pointed out that
consideration of the relevant factors will necessarily depend on the particular facts
presented in each case. See 297 Kan. at ___, slip op. at 25.

Applying this clarified attenuation analysis in Moralez, we held that the first
factor—the short time between Moralez' initial contact with police and the discovery of
the marijuana—weighed heavily in favor of Moralez, while the second factor—the
presence of intervening circumstances—was neutral under the circumstances of that case.
Regarding the third factor, we concluded the officers' conduct was not egregious because
their initial presence in the area was justified by their observance of a vehicle with its
lights on and an expired tag, and their conversation with Moralez, at least initially, was
voluntary. Nevertheless, we found the officers acted flagrantly by retaining Moralez'
identification for the stated purpose of "documenting" who they talked to, but then
exceeding that purpose by conducting a warrants check absent any suspicion whatsoever
of criminal activity. We held:

"In doing so, [the arresting officer] did more than round out his police report, he
conducted an investigatory detention with no suspicion of unlawful activity. Under these
19



circumstances, we conclude the third factor of the Brown attenuation analysis weighs
slightly in favor of suppression here." 297 Kan. at ___, slip op. at 27.

Ultimately, we concluded in Moralez that the officers' flagrant conduct tipped the
balance of the attenuation analysis in favor of Moralez, requiring application of the
exclusionary rule. 297 Kan. at ___, slip op. at 28.

Application of Attenuation Analysis

Here, application of the Martin attenuation analysis as clarified in Moralez weighs
even stronger in favor of suppressing the evidence found by officers. Specifically, as in
Moralez, the first factor weighs heavily in favor of suppression because officers
discovered the cocaine only shortly after unlawfully seizing Williams. Further, as in
Moralez, the second factor essentially is a nullity. Rather than constituting an
"intervening circumstance" between the unlawful detention and the discovery of cocaine
in Williams' shoe, the discovery of the arrest warrant was a direct consequence of the
unlawful detention. And, while the discovery of the outstanding warrant permitted the
officers to arrest Williams, it did not permit the State to utilize any evidence seized as a
result of the arrest. See 297 Kan. at ___, slip op. at 23 (noting that a "preceding unlawful
detention does not taint the lawful arrest on the outstanding warrant, nor does it prevent
the officer from conducting a safety search pursuant to that arrest; but it does taint any
evidence discovered during the unlawful detention or during a search incident to the
lawful arrest").

Finally, the third factor in this case—the purpose and flagrancy of the officers'
conduct—weighs heavily in favor of suppression. Importantly, not only did the officers
lack reasonable suspicion of Williams' involvement in criminal activity, the record also
demonstrates no reason for the officers' encounter with Williams other than to conduct
what Officer Lewis described as a "pedestrian check," which, in this case, involved the
20



check for outstanding warrants. Cf. Moralez, 297 Kan. at ___, slip op. at 13 (concluding
third factor weighed only slightly in favor of suppression when defendant voluntarily
inserted himself into officer's investigation of expired tag on car defendant did not own);
Martin, 285 Kan. at 1004 (suggesting officers' encounter with defendant was justified, in
part, on defendant's misfortune of being in "immediate vicinity of the urinator" whose
actions drew officers to area).

In analyzing the third attenuation factor, we find the Illinois appellate court's
rationale in People v. Mitchell, 355 Ill. App. 3d 1030, 1031-38, 824 N.E.2d 642, appeal
denied 215 Ill. 2d 611 (2005), instructive. There, two officers approached the defendant
as he walked in his neighborhood at 5 a.m. and for no apparent reason asked him
questions, requested his identification, and ran a warrants check. After discovering an
outstanding traffic warrant, officers arrested and searched the defendant, discovering
cocaine.

In affirming the suppression of the cocaine, the Mitchell court concluded the third
factor—the purpose and flagrancy of the official misconduct—weighed heavily in favor
of suppression. Specifically, the court noted "the officers stopped defendant for no
apparent reason other than to run a warrant check on him. Thus, the purpose of the stop in
this case was directly related to the arrest of defendant, which then led directly to the
search of defendant." 355 Ill. App. 3d at 1037-38. Further, the court found the officers
exhibited bad faith in detaining the defendant for no reason, and therefore the evidence
obtained following the defendant's arrest exploited the original illegality. 355 Ill. App. 3d
at 1038. Finally, the Mitchell court pointed out that suppression under the facts presented
would further the goal of the exclusionary rule, noting "[suppression] appears to be the
only way to deter the police from randomly stopping citizens for the purpose of running
warrant checks." 355 Ill. App. 3d at 1038.

21



As we noted in Moralez, "[r]egardless of whether a suspicionless detention to
identify a citizen and check that citizen for outstanding arrest warrants is characterized as
a standard practice, a field interview, a pedestrian check, or a 'fishing expedition,' such a
detention can, and often will, demonstrate at least some level of flagrant police conduct."
Moralez, 297 Kan. at ___, slip op. at 25.

Such a detention is akin to an investigatory detention, and it is well established
and well known to law enforcement officers that an investigatory detention must be
supported by reasonable suspicion. See State v. Thomas, 291 Kan. 676, 687, 246 P.3d
678 (2011) (noting that brief, investigatory detention is constitutionally 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.' [Citations
omitted.]"); K.S.A. 22-2402(1) ("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."); see also State v.
Walker, 292 Kan. 1, 14-16, 251 P.3d 618 (2011) (when law enforcement officer has
reasonable suspicion to detain and investigate pedestrian, it is constitutionally permissible
for officer to obtain pedestrian's identification and check for outstanding warrants).

As we acknowledged in Moralez, the third factor of the Brown attenuation
analysis underscores the deterrent purpose of the exclusionary rule. Applying the
exclusionary rule in cases such as these "'appears to be the only way to deter the police
from randomly stopping citizens for the purpose of running warrant checks.'" Moralez,
297 Kan. ___, slip op. at 23 (quoting Mitchell, 355 Ill. App. 3d at 1038).

Because the discovery of cocaine in Williams' shoe directly resulted from the
exploitation of Williams' unlawful detention, we reverse the Court of Appeals' reversal of
22



the suppression ruling, and we affirm the district court's suppression ruling as correct for
the wrong reason.

The Court of Appeals' decision is reversed, and the district court's suppression
ruling is affirmed, but we reverse in part the district court to the extent it found that the
stop began as a voluntary encounter.