State v. Williams

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NOT DESIGNATED FOR PUBLICATION

No. 120,898

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

ULYSSES WILLIAMS JR.,
Appellee.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed November 1, 2019. Reversed
and remanded.

Natasha Esau, assistant district attorney, Keith Schroeder, district attorney, and Derek Schmidt,
attorney general, for appellant.

Shannon S. Crane, of Hutchinson, for appellee.

Before POWELL, P.J., HILL and WARNER, JJ.

PER CURIAM: In this interlocutory appeal, the State argues the district court
improperly granted Ulysses Williams' motion to suppress evidence following an
investigatory stop in Hutchinson. The State contends its initial investigation was
supported by reasonable and articulable suspicion and that, even if the officers'
subsequent detention of Williams were unlawful, the discovery of a valid warrant only a
few minutes later attenuated the taint of any unlawful seizure. We agree. Thus, we
reverse and remand the case to the district court.

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FACTUAL BACKGROUND

Shortly before 7 a.m. on August 22, 2018, a concerned neighbor called the City of
Hutchinson Police Department and reported that she believed a man was trying to break
into a garage across the street. The neighbor had observed the man walking around the
garage and hiding when cars drove by; she thought his behavior was suspicious. She
reported that he was a black male in a long-sleeved shirt and a hat, carrying a bag.

Officer Raven Boettger responded to investigate the potential theft or burglary.
Upon her arrival, Officer Boettger introduced herself to a man who matched the
neighbor's description. The man later identified himself as Ulysses Williams Jr.

The entire interaction between Williams and Officer Boettger was recorded via the
officer's body camera. Williams had been talking to someone on the front stoop of a
house and walked toward Officer Boettger as she got out of her squad car. As she
approached, Williams told her, "I'm alright. . . . The lady probably called."

Williams informed Officer Boettger that he was storing his belongings in the back
of the house and that he had the homeowner's permission to do so. Williams explained he
was using the garage to store his things because he had been kicked out of his residence.
Officer Boettger asked Williams for the name of the homeowner, and Williams indicated
her name was "Logan."

Officer Boettger asked Williams if he had any identification on him, and Williams
responded that his identification was inside the house. At her request, however, Williams
provided his full name and date of birth.

Two more police officers arrived at the scene, and Officer Boettger asked
Williams to stay with them as she went to check with the homeowner to make sure
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everything was "on the up and up." Officer Boettger walked to the door of the house,
radioing dispatch to provide Williams' name and date of birth. The officer then knocked
on the door, spoke with the homeowner, confirmed the woman was Logan, and
confirmed that Williams had Logan's permission to use the garage.

After verifying Williams' story, Officer Boettger walked back to where Williams
was standing and talking with one of the other officers. The officers asked Williams
about his living situation and employment status. Williams never asked if he could leave,
nor did the officers inform him that their investigation had concluded. About 2½ minutes
after Officer Boettger had spoken with Logan—and about 5 minutes after she originally
arrived at the scene—dispatch advised Officer Boettger of an outstanding warrant for
Williams for a probation violation.

Officer Boettger informed Williams of the warrant. Williams became frustrated
and asked if he could give some of his belongings to Logan before he was arrested. The
officers placed Williams in handcuffs but allowed him to walk towards the house to give
some of his things to the homeowner. As he was attempting to do so, a clear plastic
container fell to the ground. The officers retrieved the container, which held
methamphetamine crystals. The officers then searched Williams, finding a glass pipe and
a set of brass knuckles.

The State charged Williams with possession of methamphetamine, possession of
drug paraphernalia, and criminal possession of a weapon. He moved to suppress all the
evidence seized, arguing Officer Boettger lacked reasonable suspicion to conduct her
investigation and that the later discovery of the warrant did not attenuate the taint of her
unconstitutional conduct. The district court granted Williams' motion and suppressed the
evidence, explaining:

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"The stop of defendant does not qualify as an allowed Terry stop. Defendant did
nothing to suggest he might be involved in criminal activity. The officer's inquiry went
beyond any reasonable amount of time, even assuming a Terry stop was authorized.
There was no evidence presented to support a finding that the warrant search was not the
purpose of the seizure. The discovery of the warrant was not an intervening
circumstance."

The case is now before this court on the State's interlocutory appeal from the
district court's suppression order.

DISCUSSION

The Fourth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment's Due Process Clause, protects "[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 also
guarantees that citizens shall be free from unreasonable searches and seizures and
provides "the same protection from unlawful government searches and seizures as the
Fourth Amendment." State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010).

Whenever an officer encounters a citizen in a public place, the rights protected by
the Fourth Amendment are implicated. The rules of law applied to safeguard the Fourth
Amendment's protections vary depending on the type of encounter between the individual
and law enforcement. Kansas courts have recognized four types of such encounters:
(1) voluntary encounters; (2) investigatory detentions; (3) public safety stops; and
(4) arrests. State v. Cleverly, 305 Kan. 598, 605, 385 P.3d 512 (2016).

An investigatory detention—also known as a "Terry stop" after Terry v. Ohio, 392
U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)—occurs when an officer detains a person
in a public place because the officer reasonably suspects the person "is committing, has
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committed or is about to commit a crime." K.S.A. 22-2402(1); see Terry, 392 U.S. at 21-
22. Stated slightly differently, an officer may generally detain an individual if "an
objective officer would have [had] a reasonable and articulable suspicion." State v.
Thomas, 291 Kan. 676, Syl. ¶ 8, 246 P.3d 678 (2011). A reasonable suspicion is "a
particularized and objective basis for suspecting the person stopped is involved in
criminal activity." 291 Kan. 676, Syl. ¶ 9. Reasonableness in this context is viewed
"'based on the totality of the circumstances'" and "'in terms as understood by those versed
in the field of law enforcement.'" 291 Kan. at 687 (quoting State v. Moore, 283 Kan. 344,
354, 154 P.3d 1 [2007]).

Whether reasonable suspicion exists is a question of law. Thomas, 291 Kan. at
688. Reasonable suspicion is a less rigorous standard than probable cause and requires a
showing considerably less than preponderance of the evidence. State v. Johnson, 293
Kan. 1, 6, 259 P.3d 719 (2011). But the standard requires more than an inchoate and
unparticularized suspicion or hunch of criminal activity. 293 Kan. at 6 (citing Illinois v.
Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 145 L. Ed. 2d 570 [2000]).

The exclusionary rule is the primary judicial remedy used to deter Fourth
Amendment violations and requires courts "to exclude unlawfully seized evidence in . . .
criminal trial[s]." Utah v. Strieff, 579 U.S. __, 136 S. Ct. 2056, 2061, 195 L. Ed. 2d 400
(2016). It applies to "'primary evidence obtained as a direct result of an illegal search or
seizure'" and to "'evidence later discovered and found to be derivative of an illegality.'"
136 S. Ct. at 2061 (quoting Segura v. United States, 468 U.S. 796, 804, 104 S. Ct. 3380,
82 L. Ed. 2d 599 [1984]). But at its core, the exclusionary rule is a judicially created
remedy that only applies when "'its deterrence benefits outweigh its substantial social
costs.'" Strieff, 136 S. Ct. at 2061 (quoting Hudson v. Michigan, 547 U.S. 586, 591, 126
S. Ct. 2159, 165 L. Ed. 2d 56 [2006]). In other words, "police conduct must be
sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable
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that such deterrence is worth the price paid by the justice system." Herring v. United
States, 555 U.S. 135, 144, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009).

The district court here found the exclusionary rule applied, and thus excluded the
evidence seized during the course of Williams' arrest and search. In particular, the court
found that the officers' investigation and detention of Williams did "not qualify as an
allowed Terry stop" because Williams "did nothing to suggest he might be involved in
criminal activity." The court also found that even if a Terry stop had been authorized at
some point, Officer Boettger's investigation "went beyond any reasonable amount of
time." Finally, the court concluded that the discovery of a warrant for Williams "was not
an intervening circumstance" that saved the evidence from the conduct the court found to
be illegal.

The State challenges this ruling in two related claims on appeal. First, the State
argues the district court should not have suppressed the evidence below because—
contrary to the district court's conclusion—Officer Boettger had a reasonable and
articulable suspicion that allowed her to detain and investigate Williams. Second, the
State asserts that even if the officers' detention of Williams was unlawful, the discovery
of the arrest warrant attenuated the illegal conduct from the subsequent search under
Strieff.

Appellate courts employ a two-step review to evaluate a district court's decision on
a motion to suppress. A reviewing court first determines whether the district court's
factual findings are supported by substantial competent evidence. Accord State v. Sharp,
289 Kan. 72, 88, 210 P.3d 590 (2009) (defining substantial competent evidence as "that
which possesses both relevance and substance and which furnishes a substantial basis in
fact from which the issues can reasonably be resolved"). The court then reviews de novo
the ultimate legal conclusion regarding the legality of law enforcement's conduct. State v.
Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014). When the material facts underlying the
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decision on a motion to suppress are not in dispute, a district court's grant or denial of
that motion is a question of law subject to unlimited review. State v. Hanke, 307 Kan.
823, 827, 415 P.3d 966 (2018).

1. The officers had reasonable suspicion to investigate a possible theft or burglary
based on the neighbor's concerns.

The State first contends that Officer Boettger had a reasonable and articulable
suspicion that Williams was engaged in criminal behavior—such as theft, burglary, or
trespassing—and that the officers were properly performing an investigation based on the
information provided by dispatch. The State argues that the district court's ruling
amounted to a conclusion that the officers were required to ignore the information they
had received from dispatch as soon as Williams informed Officer Boettger he had
permission to be on the property. But that is not the law. Instead, the State correctly
points out that law enforcement may conduct an investigation when there is reasonable
suspicion of criminal activity.

Williams argues the district court correctly found that Officer Boettger did not
have reasonable suspicion of criminal activity and that, even assuming a Terry stop had
been authorized, the inquiry went beyond the length of time that was reasonable under
the circumstances in this case.

The evidence presented at the hearing on the motion to suppress consisted of
Officer Boettger's body camera footage, the call detail report created by Hutchinson
Police Department's dispatch, and the testimony of Officer Boettger. This evidence is not
in dispute, rendering the existence of reasonable suspicion a question of law subject to
unlimited review. See Hanke, 307 Kan. at 827.

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Whether reasonable suspicion exists is "'dependent upon both the content of the
information possessed by police and its degree of reliability.'" State v. Slater, 267 Kan.
694, 697, 986 P.2d 1038 (1999) (quoting Alabama v. White, 496 U.S. 325, 330, 110 S.
Ct. 2412, 110 L. Ed. 2d 301 [1990]). Our Kansas Supreme Court has recognized that a tip
given to law enforcement—that is, "[i]nformation received by police from an outside
source"—standing alone may "provide reasonable suspicion for an investigatory stop."
Slater, 267 Kan. 694, Syl. ¶ 3. The reliability of such a tip depends on its source and on
"the quantity and quality of the information received." 267 Kan. 694, Syl. ¶ 3. In general,
the most favored (and most reliable) tips are those where "the person giving the tip gives
the police his or her name and address or identifies himself or herself in such a way" that
the person "can be held accountable" for the accuracy of the information provided. 267
Kan. at 700.

When Officer Boettger arrived at the scene, she was investigating a possible
burglary based on information that had been provided by a neighbor. This information—
that a man carrying a bag was acting suspiciously, hiding from cars, and lurking around a
nearby garage—gave rise to reasonable suspicion of criminal activity. When the officer
received this information, she was then able to investigate its accuracy, including
detaining Williams until that investigation had concluded. And Officer Boettger also
acted within the permissible zone of police conduct when she provided Williams' name to
dispatch while she was conducting her investigation. See State v. Walker, 292 Kan. 1, 14-
16, 251 P.3d 618 (2011). The fact that Williams was not acting suspiciously when she
arrived and cooperated with the officers at the scene does not prevent law enforcement
from investigating the tip they had received.

Under the totality of the circumstances, we conclude the district court erred in
finding the officers lacked reasonable suspicion to conduct an investigation and detain
Williams until that investigation concluded.

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2. Even if Williams' detention exceeded the scope of the investigation, Williams'
arrest—and the accompanying search—were permissible because the discovery of
an arrest warrant for Williams sufficiently attenuated the search from any
unlawful conduct.

Williams also argues that even if his original detention was a valid Terry stop, the
officers exceeded the scope of the stop when they continued to surround and talk to him
after Officer Boettger had confirmed with Logan that Williams had her permission to
store things in her garage. At that point, Williams asserts, the detention became unlawful,
and the subsequently seized evidence should still be excluded. Accord State v. Smith, 286
Kan. 402, 410, 184 P.3d 890 (2008) ("'[A]n investigative detention must be temporary
and last no longer than is necessary to effectuate the purpose of the stop.'") (quoting
Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 [1983]). The State
argues that even if Williams was unlawfully detained, the discovery of an unconnected
and preexisting warrant attenuates the stop from the search and subsequent discovery of
the evidence. See Strieff, 136 S. Ct. at 2061.

As a preliminary matter, we are not convinced the officers continued to detain
Williams after their investigation ended. Officer Boettger testified that Williams was
seized and not free to leave until his story was confirmed with the homeowner. The body
camera footage shows Williams speaking with two officers, including Officer Boettger,
for roughly 2½ minutes after the conclusion of the investigation before dispatch
contacted the officers with information regarding Williams' warrant. The officers did not
specifically inform Williams he could leave, and he did not ask if their investigation was
finished. Williams was merely standing in Logan's yard; he was not constrained in any
fashion. It is unclear—and the district court made no finding—regarding whether
someone in Williams' position may have believed he was free to go.

Such a finding is unnecessary, however, because the attenuation doctrine—an
exception to the exclusionary rule—applies in this case. That is, even if the officers'
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continued conversation with Williams after the investigation was an impermissible stop,
the information regarding Williams' warrant attenuated his subsequent arrest from any
unlawful detention.

Although courts generally exclude evidence found as a result of an unlawful stop
or seizure, the United States Supreme Court has indicated that "[e]vidence is admissible
when the connection between unconstitutional police conduct and the evidence is remote
or has been interrupted by some intervening circumstance." Strieff, 136 S. Ct. at 2061. In
such cases, "'the interest protected by the constitutional guarantee that has been violated
would not be served by suppression of the evidence obtained.'" 136 S. Ct. at 2061
(quoting Hudson, 547 U.S. at 593). Stated slightly differently, Kansas 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. Williams, 297 Kan. 370, 381, 300 P.3d 1072 (2013).

There is no bright-line rule defining when the attenuation doctrine applies. Instead,
in determining whether the discovery of evidence is sufficiently attenuated from unlawful
police conduct, courts consider three factors: (1) the temporal proximity between the
unlawful conduct and the discovery of the evidence in question; (2) the presence of
intervening circumstances (such as the discovery of a warrant); and (3) the purposes and
flagrancy of the official misconduct. Strieff, 136 S. Ct. at 2061-62; State v. Manwarren,
56 Kan. App. 2d 939, 952, 440 P.3d 606, rev. denied 310 Kan. ___ (September 11, 2019).
No one factor is controlling, and other considerations may be relevant to the attenuation
doctrine analysis. See Brown v. Illinois, 422 U.S. 590, 603, 95 S. Ct. 2254, 45 L. Ed. 2d
416 (1975) (declining to adopt any "talismanic test" and cautioning that the attenuation
doctrine depends on the circumstances of each case). The State bears the burden of
demonstrating the evidence is sufficiently removed from the illegal activity to permit its
admissibility. Cleverly, 305 Kan. at 611.

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In Strieff, the Court examined "whether th[e] attenuation doctrine applies when an
officer makes an unconstitutional investigatory stop; learns during that stop that the
suspect is subject to a valid arrest warrant; and proceeds to arrest the suspect and seize
incriminating evidence during a search incident to that arrest." 136 S. Ct. at 2059. The
Court held that even though the illegal stop in that case was "close in time to Strieff's
arrest," the unlawful conduct in performing the stop "was sufficiently attenuated by the
pre-existing arrest warrant." 136 S. Ct. at 2063. The Court found that the "outstanding
arrest warrant for Strieff's arrest [was] a critical intervening circumstance that [was]
wholly independent of the illegal stop." 136 S. Ct. at 2063. Thus, the "discovery of that
warrant broke the causal chain between the unconstitutional stop and the discovery of
evidence by compelling [the officer] to arrest Strieff." 136 S. Ct. at 2063.

Strieff directs the outcome in this case. See State v. Lawson, 296 Kan. 1084, Syl.
¶ 1, 297 P.3d 1164 (2013) ("The United States Supreme Court's interpretation of the
United States Constitution is controlling upon and must be followed by state courts.");
see also Daniel, 291 Kan. at 498 (Kansas Constitution provides the "the same protection
from unlawful government searches and seizures as the Fourth Amendment"). Although
Williams' arrest and the officers' subsequent discovery of the evidence at issue in this
case occurred only minutes after any potentially unlawful detention, the discovery of the
warrant gave rise to an independent obligation to arrest him. See Strieff, 136 S. Ct. at
2062. That is, the warrant is an intervening circumstance that sufficiently attenuates the
connection between any potentially unlawful conduct and the discovery of the evidence
in question. 136 S. Ct. at 2061-62.

Further, having observed the footage from Officer Boettger's body camera, we do
not find any conduct by the officers to be flagrant. It is constitutionally permissible for a
law enforcement officer to obtain an individual's personal information and check for
outstanding warrants when the officer has reasonable suspicion to detain and investigate
the person for criminal activity. See Walker, 292 Kan. at 14-16. The officers were
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conducting a permissible investigation and checked for warrants during the context of
that investigation. We note that even if one of the officers had specifically informed
Williams he was free to leave once Officer Boettger had spoken with the homeowner, the
officers would have received the information regarding Williams' arrest warrant roughly
two minutes later.

Under the facts of this case, even if the officers unlawfully prolonged Williams'
detention, the discovery of his warrant sufficiently attenuated any connection between
that conduct and the subsequent discovery of evidence of criminal activity. Thus, the
district court erred in applying the exclusionary rule here. We therefore reverse the
district court's suppression ruling and remand the case for further proceedings in light of
the admissibility of the discovered evidence.

Reversed and remanded.