And all evidence later obtained therefore must be excluded as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. McGinnis, 290 Kan. 547, 233 P.3d 246 (2010). The State responds that during the traffic stop, Reiss displayed unusual behavior which justified Ritter's decision to direct him back to his truck for officer safety purposes.
Law enforcement interaction with a person is consensual, not a seizure, if under the totality of the circumstances the 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. State v. McGinnis, 290 Kan. 547, 552, 233 P.3d 246 (2010). There are several objective factors that courts may consider to help determine whether a police-citizen encounter is voluntary or an investigatory detention, including 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 to approach, and an attempt to control the ability to flee.
[Citation omitted.]"' " State v. McGinnis, 290 Kan. 547, 551, 233 P.3d 246 (2010) (quoting State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 [2009]). Because the parties do not dispute the material facts, our suppression question is solely one of law.
[Citation omitted.]'"'" State v. Thomas, 291 Kan. 682, 246 P.3d 678 (2011) (citing State v. McGinnis, 290 Kan. 547, 551, 233 P.3d 246 [2010]). Walker contends that the facts material to our decision are not in dispute and, therefore, the question of whether to suppress is a question of law.
Sutton maintains that, considering the totality of the circumstances after removal of the handcuffs, a reasonable person in her place would not have felt free to leave, and therefore the encounter was not voluntary. She argues the methamphetamine later obtained must be excluded as "fruit of the poisonous tree" because the officers had illegally seized her when they discovered the evidence. See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. McGinnis, 290 Kan. 547, 552-53, 233 P.3d 246 (2010). The State counters that the encounter between Sutton and the officers was voluntary after removal of the handcuffs.
“This nonexhaustive and nonexclusive list includes: 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 to approach, and an attempt to control the ability to flee.” State v. McGinnis, 290 Kan. 547, 553, 233 P.3d 246 (2010).When evaluating the presence or absence of these factors in a given case, the court has instructed that the analysis should not be rigid.
Law enforcement interaction with a citizen is consensual, not a seizure, if under the totality of the circumstances the 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. State v. McGinnis, 290 Kan. 547, Syl. ¶ 3, 223 P.3d 246 (2010). In applying the totality of the circumstances test in a Fourth Amendment context, no one factor is legally determinative, dispositive, or paramount.
We have delineated several nonexclusive factors to consider in applying this test: “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). “ ‘[N]o one factor is legally determinative, dispositive, or paramount.
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.
When the State fails to meet its burden to establish the lawfulness of a challenged search or seizure, any derivative evidence obtained from the illegal search or seizure must be suppressed under the exclusionary rule. See State v. McGinnis, 290 Kan. 547, 551, 233 P.3d 246 (2010). "The fruit of the poisonous tree doctrine is 'one facet of the exclusionary rule' and 'extend[s] the scope of the exclusionary rule to bar' admission of evidence directly or indirectly obtained as a result of unlawful police conduct. State v. Deffenbaugh, 216 Kan. 593, 598, 533 P.2d 1328 (1975)."