Opinion
No. 105,087.
2013-06-21
STATE of Kansas, Appellee, v. Ernest BEYE, Appellant.
Appeal from Wilson District Court; David W. Rogers, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Jill E. Chard, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wilson District Court; David W. Rogers, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Jill E. Chard, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ARNOLD–BURGER and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
The Kansas Supreme Court remands this case for reconsideration of our previously issued opinion in light of its recent decision in State v. Moralez, 297 Kan. ––––, 300 P.3d 1090 (2013), 2013 WL 2129114. In Moralez, the Supreme Court found that the subsequent discovery of an arrest warrant is of minimal importance in attenuating the taint from an illegal detention upon evidence discovered incident to an arrest on the warrant. 2013 WL 2129114, Syl. ¶ 16. In this case, police unlawfully stopped Ernest Beye. During the course of the stop, the officer discovered Beye had an outstanding arrest warrant. He was arrested on the warrant, and he was searched incident to his arrest. Police found methamphetamine and drug paraphernalia in Beye's pockets. In denying Beye's motion to suppress the evidence, the district court concluded, and we subsequently affirmed, that the intervening circumstance of the officer's discovery of the arrest warrant purged the taint of the illegal detention and that the drugs and paraphernalia were properly seized during a valid search incident to Beye's arrest on that warrant. In light of the Moralez decision, we conclude that Beye's unlawful detention did not purge the taint of the evidence recovered subsequent to his arrest. Accordingly, we reverse the district court's suppression ruling, reverse Beye's conviction, and remand for further proceedings.
Factual and Procedural History
The facts are not in dispute. Shortly after midnight, an Altoona resident called the Wilson County Sheriff's office to report the attempted theft of gas cans from his property. Deputy Chris Allen was dispatched to investigate. Two individuals wearing dark shirts and blue jeans had been seen taking the gas cans and then dropping them when the resident took off in pursuit. About a half hour after the incident, Allen saw a car driving on Main Street a few blocks away. The car was properly registered, had functioning lights, and was being operated in compliance with all applicable traffic laws. Allen could see there was just one occupant in the vehicle. Based solely on the car's proximity to the earlier gas can incident, Allen stopped the car. The driver was not wearing a dark shirt or blue jeans. Allen asked the driver about his destination, and the driver said he was lost and looking for a friend's house. Allen took the man's driver's license, which identified him as Ernest Beye, back to his patrol car and called it into dispatch. Dispatch advised Allen that Beye had an outstanding arrest warrant. After arresting Beye on the warrant, Allen searched Beye's pockets and found methamphetamine and drug paraphernalia.
Beye was subsequently charged with felony possession of methamphetamine in violation of K.S.A.2006 Supp. 65–4160(a), and misdemeanor possession of drug paraphernalia in violation of K.S.A.2006 Supp. 65–4152(a)(2).
Prior to trial, Beye moved to suppress the evidence seized from his pockets. He argued the traffic stop was illegal because Allen lacked reasonable suspicion to stop him, so all evidence seized as a result was inadmissible as fruit of the poisonous tree. The State responded that it was a valid investigatory traffic stop. Alternatively, the State argued that even if the traffic stop was illegal, the evidence was nonetheless admissible because it was discovered as a result of the intervening circumstance of Allen's arrest of Beye on the outstanding warrant.
The district court conducted a hearing on Beye's suppression motion. In denying the motion, the district court rejected the State's argument that there was a valid investigatory traffic stop but agreed with its alternative argument that the evidence was, nonetheless, admissible. More specifically, the court held that the Kansas Supreme Court's decision in State v. Jones, 270 Kan. 526, 17 P.3d 359 (2001), controlled, concluding that the taint of the illegal detention was purged by virtue of Beye's arrest on the arrest warrant, which was followed by a lawful search incident to that arrest.
The parties thereafter submitted the case for a bench trial on stipulated facts and admission of the supporting evidence subject to Beye's ongoing objections to its admissibility. Upon overruling those objections, the court found Beye guilty as charged. We later affirmed that decision in State v. Beye, No. 105,087, 2012 WL 401680 (Kan.App.2012) (unpublished opinion). On May 20, 2013, the Supreme Court granted Beye's petition for review, summarily reversed our decision, and remanded the case to us for reconsideration in light of the Moralez decision.
Standard of Review
The parties do not dispute the material facts underlying the district court's denial of Beye's motion to suppress. Thus, this court conducts an unlimited review of the district court's legal conclusion that suppression of the evidence was unwarranted under those facts. See State v. Fitzgerald, 286 Kan. 1124, 1126, 192 P.3d 171 (2008).
Analysis
The parties agree for purposes of this appeal that the initial traffic stop and detention of Beye was unlawful. The sole issue on remand is whether the Moralez decision requires us to reverse Beye's conviction. So we begin with a review of that decision.
We review the Moralez decision.
The facts of Moralez are not complex. A police officer stopped at an apartment complex parking lot in the early hours of the morning to investigate an unoccupied and legally parked vehicle with its headlights on. As he did so, the headlights automatically turned off. He also noticed that the 30–day license tag on the vehicle had expired. Moralez called down to the officer from a second-floor apartment balcony and asked what was going on. He then came down to where the officer was standing. Moralez told the officer that the vehicle belonged to an acquaintance. The acquaintance ultimately joined Moralez and the officer at the scene. Moralez remained at the scene, and officers asked for his identification to document who they were talking to. The officer had the dispatcher run Moralez' name for warrants, which resulted in a hit. Moralez was arrested and admitted to having a small bag of marijuana in his pocket. He subsequently moved to suppress the marijuana and his postarrest admissions.
The State argued that the interaction between Moralez and the officers was a voluntary encounter and remained voluntary until the officers learned of the warrant. The Supreme Court agreed that the encounter began as voluntary, but found that it was transformed when the officer took possession of and retained Moralez' identification in order to perform the check for warrants. Because he was not suspected of any criminal activity at that point, the seizure was unlawful. Moralez, 2013 WL 2129114, at *7–8.
The Moralez court proceeded to discuss the attenuation doctrine and its application in Kansas when officers discover a warrant subsequent to an unlawful seizure. Moralez, 2013 WL 2129114, at *9. It started by turning to Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), and the United States Supreme Court's recognition that the primary purpose of the exclusionary rule was to deter unlawful conduct. The United States Supreme Court further clarified its position, holding that “ ‘the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons.’ [Citations omitted.]” 422 U.S. at 600. The primary question the Brown Court said needed to be answered when evidence would not have come to light but for the illegal actions of police was 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.” ‘ “ 422 U.S. at 599 (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 [1963] ). The Moralez court then went on to reiterate that in answering that question courts must consider “(1) the time that elapsed between the illegal conduct 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. [Citations omitted].” 2013 WL 2129114, at *10. These factors are not necessarily entitled to equal weight, no one factor is controlling, and they are not exclusive. 2013 WL 2129114, at *14.
Discovery of a warrant is considered to be an intervening circumstance when it follows an unlawful detention. But the Moralez court made a clear distinction between the taint of the arrest as opposed to the taint to the evidence discovered as a result of the arrest. The court expressly disapproved any suggestion in its prior decisions in State v. Martin, 285 Kan. 994, 179 P.3d 457,cert. denied555 U.S. 880 (2008), and State v. Jones, 270 Kan. 526, that the discovery of a warrant always dissipates the taint of an unlawful detention:
“Stated more succinctly, the 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.
“Were it otherwise, law enforcement officers could randomly stop and detain citizens, request identification, and run warrants checks despite the lack of any reasonable suspicion to support the detention, knowing that if the detention leads to discovery of an outstanding arrest warrant, any evidence discovered in the subsequent search will be admissible against the defendant in a criminal proceeding unrelated to the lawful arrest.” Moralez, 2013 WL 2129114, at *13
It concluded that the subsequent discovery of a warrant is of little importance in attenuating the taint upon evidence discovered during the search incident to the warrant arrest. The third Brown factor, the purpose and flagrancy of the official misconduct, must also be considered. Courts look to the officer's reason for initiating the encounter. In other words, was this simply a fishing expedition by police in hopes of discovering a basis for a search or was it part of the officer's regular practices and routine?
The Supreme Court found that the discovery of the marijuana on Moralez occurred within 16 minutes of the initial contact with police. This short period of time weighed heavily against the State in analyzing the first Brown factor.
As to the second factor, the court concluded that the discovery of the warrant was of minimal importance, neither weighing in favor of nor against suppression.
And finally, it found that the primary purpose of the exclusionary rule was to deter law enforcement from acting in contravention of the Fourth Amendment to the United States Constitution. So the Supreme Court examined the officer's actions to determine at what point officers were simply on a fishing expedition with no reasonable suspicion of criminal activity. It found that up to the point the officer obtained Moralez' identification to document who he was talking to, the actions were not flagrant. But once the officer retained the identification to run the warrant check, the officer's actions exceeded his stated purpose and became an investigatory detention that lacked any of the required reasonable suspicion. Accordingly, the third Brown factor also weighed against the State and in favor of suppression. 2013 WL 2129114, at *15–16. The court concluded that the scale was tipped in favor of Moralez and required application of the exclusionary rule to suppress introduction of any evidence obtained after the officer retained Moralez' identification.
We apply the Moralez decision to the facts of this case.
Because the parties agree for purposes of this appeal that the initial traffic stop and detention of Beye was unlawful, we need only examine whether the discovery of the warrant purged the taint of the search incident to Beye's arrest. (1) Time elapsed between the illegality and the acquisition of the evidence
Allen requested that the dispatcher run Beye's driver's license information at 1:42 a.m., which was only 3 minutes after he had asked her to run the tag information as he was following Beye's car. Though not precisely clear, it appears that the warrant information then came up on the computer and was relayed to Allen in less than a minute. Because of the lack of a temporal break between the unlawful detention and discovery of the drugs, this short lapse of time weighs heavily in favor of suppression. See Moralez, 2013 WL 2129114, at *15. (2) Presence of intervening circumstances
In this case, just as in Moralez, the discovery of the warrant was of minimal importance and is therefore neutral in our balancing of the factors. See 2013 WL 2129114, at*15. (3) The purpose and flagrancy of the official misconduct
There is nothing in the record to suggest Allen's ultimate goal in contacting Beye was to search him for drugs. Allen was there to investigate a report of an attempted theft of gasoline in a small town in the early morning hours. Beye was the only person that Allen saw in the general vicinity of where the attempted theft took place. Once Allen started to follow him, Beye made several turns before Allen was able to initiate the traffic stop. So the officer's initial actions do not appear to be flagrant.
But once Allen stopped Beye, he could tell that Beye was the sole occupant and that he was not wearing a dark shirt or blue jeans, as described by the complaining party. Beye was cooperative and explained that he was lost. Allen offered no explanation for why he had dispatch run a computer check on Beye's license after his brief conversation, and there appears to have been no legitimate reason for him to do so. Allen also acknowledged that he “[pjrobably would have sent [Beye] on his way” were it not for the warrant. Like the facts in Moralez, we find that by keeping Beye's driver's license with no reasonable suspicion of criminal activity, the stop was transformed to a suspicionless investigatory detention. Accordingly, Allen acted flagrantly by conducting the warrant check. Therefore, the third factor weighs slightly in favor of suppression here.
In sum, after reviewing this case in light of our Supreme Court's recent decision in Moralez, as we were directed to do, we find that we are required to apply the exclusionary rule in this case and reverse the district court's suppression ruling and Allen's conviction and remand the case to the district court for further proceedings.
We address the doctrine of inevitable discovery.
As a final note, although not addressed in our prior opinion due to our finding that the search was proper, the State did raise an alternative argument in this case of inevitable discovery. In other words, once arrested on the warrant, jail personnel would have found the drugs and drug paraphernalia regardless of Allen's comments and search at the scene.
Attenuation and inevitable discovery are distinct exceptions to the exclusionary rule. United States v. Torres–Castro, 470 F.3d 992, 1001 (10th Cir.2006). The inevitable discovery doctrine provides that the State must establish “by a preponderance of the evidence that the unlawfully obtained evidence ultimately or inevitably would have been discovered by lawful means. ” (Emphasis added.) State v. Stowell, 286 Kan. 163, Syl. ¶ 1, 182 P.3d 1214 (2008). The United States Supreme Court has explained that “[t]he inevitable discovery doctrine, with its distinct requirements, is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.” Murray v. United States, 487 U.S. 533, 539, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988).
In this case, the fact that makes the discovery inevitable-a search at the jailarises from the illegal police conduct-an illegal detention and discovery of the warrant. The causal connection is still present, and there is no independent lawful source from which the evidence could have been obtained. Other courts that have addressed this issue have declined to extend the inevitable discovery rule in these circumstances. See State v. Grayson, 336 S.W.3d 138, 150–51 (Mo.2011) (officer's discovery of arrest warrant did not attenuate taint of unlawful stop, and neither independent source doctrine nor inevitable discovery applied); Proferes v. State, 116 Nev. 1136, 1141–42, 13 P.3d 955 (2000) (holding that although police could have performed warrants check and arrested defendant on outstanding warrant, they failed to follow proper police procedure and would not have inevitably discovered methamphetamine absent the illegal seizure); State v. Topanotes, 76 P.3d 1159, 1163–64 (Utah 2003) (fact or likelihood that makes discovery inevitable must arise from circumstances other than those disclosed by illegal search itself); State v. Flippo, 212 W. Va. 560, 579–80, 575 S.E.2d 170 (2002) (citing the majority view that so long as the police could have used lawful means to seize the evidence, the inevitable discovery rule will permit the evidence to be admitted into evidence).
In Moralez, the Supreme Court made crystal clear that officers may certainly arrest offenders on outstanding warrants and may conduct a safety search pursuant to the warrant arrest. But a warrant arrest following an unlawful detention “does taint any evidence discovered during the unlawful detention or during a search incident to the lawful arrest.” (Emphasis added.) 2013 WL 2129114, at *13. To hold that the inevitable discovery doctrine would allow admission of contraband found on Beye's person because it would eventually be recovered from him at the jail would eviscerate the rule announced in Moralez. Presumably, all warrant arrestees are eventually taken to the jail or the police station for bonding purposes and searched according to the facility's policy. Such a ruling would be contrary to the holding in Moralez as well as contrary to the stated purposes of the exclusionary rule. Accordingly, we find the State's argument that the inevitable discovery doctrine would prohibit the suppression of the challenged evidence lacks merit.
Reversed and remanded.