State v. Manwarren

No. 119,520

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

RICHARD WILLIAM MANWARREN II,
Appellee.

SYLLABUS BY THE COURT

1.
When the material facts supporting the district court's decision on a motion to
suppress evidence are not in dispute, the ultimate question of whether to suppress the
evidence is a question of law over which an appellate court has unlimited review.

2.
Kansas courts have recognized four types of police-citizen encounters: voluntary
encounters, investigatory detentions or Terry stops, public safety stops, and arrests.

3.
The legality of a public safety stop can be evaluated in three steps. First, as long as
there are objective, specific, and articulable facts from which a law enforcement officer
would suspect that a citizen needs help or is in peril, the officer has the right to stop and
investigate. Second, if the citizen needs aid, the officer may take appropriate action to
render assistance. Third, once the officer is assured that the citizen is not in peril or is no
longer in need of assistance, any actions beyond that constitute a seizure, implicating the
protections provided by the Fourth Amendment to the United States Constitution.

1
4.
In applying the public safety rationale to justify a police-citizen encounter, courts
employ careful scrutiny so the protections of the Fourth Amendment are not emasculated.
A public safety stop is not for investigative purposes. A public safety stop must be
divorced from the detection, investigation, or acquisition of evidence relating to the
violation of a criminal statute.

5.
The Kansas Supreme Court has held that a law enforcement officer's mere request
for identification or identifying information generally will not constitute a seizure. But an
officer's retention of an identification card is one factor to be considered in applying the
totality of the circumstances test, and that factor may, absent offsetting circumstances,
mean a reasonable person would not feel free to leave or otherwise terminate an
encounter with the officer.

6.
Under the facts of this case, what began as a valid public safety stop evolved into
an illegal detention when a law enforcement officer retained a citizen's identification card
to run a warrant check after it was clear to the officer that the citizen was not in need of
any help, and there was no reasonable suspicion of criminal activity to extend the scope
of the encounter.

7.
The exclusionary rule is a judicially created remedy that prohibits the introduction
of evidence obtained in violation of a person's constitutional rights in order to deter future
violations.

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8.
One exception to the exclusionary rule is the doctrine of attenuation. Under the
attenuation doctrine, evidence is admissible when the connection between
unconstitutional police conduct and the evidence is remote or has been interrupted by
some intervening circumstance, so that the interest protected by the constitutional
guarantee that has been violated would not be served by suppression of the evidence.

9.
Under an attenuation analysis, courts generally consider (1) the time that elapsed
between the illegal police 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. No one factor is controlling, and other factors may
also be relevant to the analysis.

10.
Whether attenuation sufficiently purged the taint of illegal police conduct is a
question of fact that appellate courts review under a substantial competent evidence
standard. The burden is on the State to show that the attenuation doctrine should be
applied to allow the admission of the evidence.

11.
For a constitutional violation to be flagrant, more severe police misconduct is
required than the mere absence of proper cause for the seizure. In examining the
flagrancy of official misconduct, factors such as an officer's regular practices and
routines, an officer's reason for initiating the encounter, the clarity of the law forbidding
the illegal conduct, and the objective appearance of consent may all be important in this
inquiry.

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12.
Under the facts of this case, the district court's finding that the State failed to meet
its burden of proving that the attenuation doctrine should be applied is supported by
substantial evidence in the record.

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed April 12, 2019. Affirmed.

Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellant.

Shannon S. Crane, of Hutchinson, for appellee.

Before BRUNS, P.J., MALONE and POWELL, JJ.

MALONE, J.: The State brings this interlocutory appeal of the district court's order
granting a motion to suppress evidence filed by Richard W. Manwarren II. The case
involves what both parties agree began as a welfare check or public safety stop involving
Manwarren and a law enforcement officer in Reno County. But after it was clear to the
officer that Manwarren was not in need of any help, the officer requested and retained
Manwarren's identification card to run a warrant check. When the officer discovered an
outstanding warrant for Manwarren, the officer arrested him and found drugs and drug
paraphernalia on his person. The district court suppressed the evidence, finding that the
detention was illegal and that the State failed to meet its burden of proving that the
attenuation doctrine should be applied to allow the admission of the evidence.

On appeal, the State argues that the entire encounter between Manwarren and the
officer was voluntary and not a seizure; but if the encounter was an unlawful seizure, then
the taint of any illegal detention was attenuated by the discovery of the unrelated and
valid arrest warrants, making the evidence admissible under Utah v. Strieff, 579 U.S. ___,

4
136 S. Ct. 2056, 195 L. Ed. 2d 400 (2016). For the reasons we will carefully explain in
this opinion, we disagree with the State and affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The facts are straightforward and undisputed. On July 17, 2016, at about 11:40
a.m., Officer Michael Rivers and another officer with the Hutchinson Police Department
received a report that a man was lying in a ditch off Highway 61 in rural Reno County
and might be injured. The officers responded to the call and found Manwarren lying in
the grass about 5 feet from the highway. It was a bright and sunny day. As the officers
arrived in their patrol car, Manwarren stood up and walked toward the officers to greet
them. The parties agree that the encounter began as a welfare check, also called a public
safety stop. Rivers testified that at the beginning of the encounter, there was no indication
of criminal activity and Manwarren did not appear to be injured or intoxicated.

Rivers asked Manwarren whether he was okay, and Manwarren replied that he
was waiting for a ride that was less than 30 minutes away. Manwarren added that he was
homeless and had been camping nearby, and he was waiting for a friend to take him back
into town. At that point, Rivers did not believe that Manwarren was a danger to himself
or others, nor had Manwarren committed a crime by sitting by the side of the road.

Rivers then asked for Manwarren's identification "so [he] could identify who [he]
was speaking with." Manwarren produced a Kansas photo ID card that included a
physical description and a photograph that clearly depicted Manwarren. Then, instead of
returning the identification card to Manwarren, Rivers retained the card and called
dispatch to run a warrant check. Dispatch responded that Manwarren had an active
warrant for "failure to appear." About five minutes had elapsed from the beginning of the
encounter until dispatch informed Rivers of the outstanding warrant.

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 A third officer arrived on the scene in another patrol car. After confirming the
warrant, Rivers placed Manwarren under arrest. After placing Manwarren in handcuffs,
another officer asked whether Manwarren had anything the officer "should know about,"
and Manwarren stated that he had drugs in his pocket and scales in his backpack. Rivers
searched Manwarren and the backpack and found these items. Soon thereafter,
Manwarren's ride arrived at the scene. The officers allowed Manwarren's friend to take
some of his personal belongings, but they seized the evidence and transported Manwarren
to jail. The entire encounter was captured on Rivers' body camera.

On July 21, 2016, the State charged Manwarren with possession of
methamphetamine with intent to sell, possession of drug paraphernalia with intent to
distribute a controlled substance for sale, and possession of hydrocodone. Manwarren
filed a motion to suppress the evidence. In the motion, Manwarren argued that his initial
voluntary encounter or welfare check with the officers was converted to an investigatory
detention without reasonable suspicion of criminal activity, so the evidence obtained as a
result of the illegal detention must be suppressed.

The district court held a hearing on the motion to suppress on May 16, 2018.
Rivers testified at the hearing and his body camera video was admitted into evidence. The
State argued that the entire encounter between Manwarren and the officers was voluntary,
but even if the encounter was an unlawful seizure, then the taint of any illegal detention
was attenuated by the discovery of the unrelated and valid arrest warrants, making the
evidence admissible under the United States Supreme Court's decision in Strieff.

On June 4, 2018, the district court filed an order with findings of fact and legal
analysis of the issues presented in the motion to suppress. The district court found that
Rivers illegally detained Manwarren to run a warrant check because it was beyond the
scope of a welfare stop and there was no reasonable suspicion of criminal activity. The
district court explained:

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 "The encounter between Officer Rivers and [Manwarren] was not consensual.
[Manwarren] was not told he was free to leave or to refuse the request for his
identification. [Manwarren] was on foot. Officer Rivers was in a vehicle, accompanied by
a total of three other officers. A reasonable person in [Manwarren]'s position would have
felt compelled to remain at the scene and to follow instructions. Officer Rivers exceeded
the scope of a safety stop after he determined [Manwarren] was not in need of help.
Nothing about [Manwarren] indicated impairment or a need for assistance. [Manwarren]
was in a public place having apparently walked to his location. Sitting or lying down in a
public place, especially when a person is on foot, and especially when a person is
walking as a mode of transportation and not just for pleasure or to walk the dog, should
not arouse suspicion. Officer Rivers asked [Manwarren] what his name is as the Fourth
Amendment allows but when Officer Rivers asked for [Manwarren]'s identification and
took it to run a warrant check the stop became an investigatory detention. Officer Rivers
had no basis to formulate a reasonable suspicion that [Manwarren] was violating the law.
The detention was illegal."

As for the application of the attenuation doctrine, the district court found:

"[Manwarren] was searched within minutes of the initial encounter. The time
elapsed between the illegality and the acquisition of the evidence was negligible. Officer
Rivers did discover an outstanding warrant, an intervening circumstance dissipating the
taint of the illegal police contact. The encounter occurred on a sunny summer day in the
middle of the day on a busy roadway. [Manwarren] showed respect to the officers and
complied with every request made. Nothing about [Manwarren]'s appearance or conduct
suggested he should be subjected to the indignity of a roadside search, visible to all
passersby. The State argues Utah v. Strieff requires denying [Manwarren]'s motion. In the
Strieff case the Supreme Court noted that the illegal detention occurred in connection
with a bona fide investigation of a suspected drug house. Justice Thomas writing for the
majority noted that the officer saw the defendant leave a suspected drug house and the
officer's suspicion about the house was based on an anonymous tip and personal
observations. The Strieff case is distinguishable. While this court has no evidence to
suggest the unlawful detention was part of any systemic or recurrent police misconduct,
the detention certainly did not occur in connection with a bona fide criminal
investigation. The State has failed to sustain the burden of proving that the attenuation
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 doctrine should be applied. Because the evidence was seized as a result of an
unconstitutional search, without the benefit of the attenuation doctrine the evidence must
be suppressed."

Based on its findings and legal analysis, the district court granted Manwarren's
motion to suppress. The State filed a timely notice of appeal. We have jurisdiction over
the interlocutory appeal under K.S.A. 2018 Supp. 22-3603.

On appeal, the State claims the district court "erred in granting [Manwarren's]
motion to suppress under the facts of this case." The State first argues that the entire
encounter between Manwarren and the law enforcement officers was voluntary and that
the district court erred when it found the detention was illegal. Second, the State contends
that even if the encounter was an unlawful seizure, then the taint of any illegal detention
was attenuated by the discovery of the unrelated and valid arrest warrants, making the
evidence admissible under Strieff.

In response, Manwarren argues that his encounter with the officers was not
consensual and that the district court correctly found the detention was illegal. He also
argues that the attenuation doctrine should not be applied under these facts to allow the
admission of the evidence.

The standard of review for a district court's decision on a motion to suppress has
two parts. The appellate court reviews the district court's factual findings to determine
whether they are supported by substantial competent evidence. The ultimate legal
conclusion, however, is reviewed using a de novo standard. In reviewing the factual
findings, the appellate court does not reweigh the evidence or assess the credibility of
witnesses. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018). When the material
facts supporting the district court's decision on a motion to suppress evidence are not in

8
dispute, the ultimate question of whether to suppress the evidence is a question of law
over which an appellate court has unlimited review. 307 Kan. at 827.

WAS MANWARREN ILLEGALLY DETAINED?

The State first argues that the entire encounter between Manwarren and the law
enforcement officers was voluntary and that the district court erred when it found the
detention was illegal. Conversely, Manwarren argues that his encounter with the officers
was not consensual and that the district court correctly found the detention was illegal.

The district court found that, "Officer Rivers asked [Manwarren] what his name is
as the Fourth Amendment allows but when Officer Rivers asked for [Manwarren]'s
identification and took it to run a warrant check the stop became an investigatory
detention." Because the act of running a warrant check was beyond the scope of a welfare
stop and there was no reasonable suspicion of criminal activity, the district court found
that Rivers illegally detained Manwarren in violation of his constitutional rights.

We begin our analysis by turning to the text of the applicable constitutional
provisions. The Fourth Amendment to the United States Constitution provides: "The
right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated." Section 15 of the Kansas
Constitution Bill of Rights contains similar language and provides "the same protection
from unlawful government searches and seizures as the Fourth Amendment." See State v.
Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014).

The rights protected by the Fourth Amendment are tested any time a law
enforcement officer encounters a citizen in a public place. The rules that courts apply to
safeguard the protections of the Fourth Amendment depends on the type of encounter that
is involved in each particular case.

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 Kansas courts have recognized four types of police-citizen encounters. The first
type is a voluntary encounter, which is not considered a seizure under the Fourth
Amendment. State v. Lee, 283 Kan. 771, 774, 156 P.3d 1284 (2007). The second type is
an investigatory detention or Terry stop, in which an officer may detain any person in a
public place if the officer reasonably suspects that the person is committing, has
committed, or is about to commit a crime. See Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct.
1868, 20 L. Ed. 2d 889 (1968); K.S.A. 22-2402(1). The third type of encounter is a public
safety stop, in which an officer may approach a person to check on his or her welfare
when the officer can articulate specific facts showing a concern for the public's safety.
See State v. Vistuba, 251 Kan. 821, 824, 840 P.2d 511 (1992). The fourth type of
encounter between an officer and a citizen is an arrest. See K.S.A. 22-2401.

The parties here agree that the encounter between Rivers and Manwarren began as
a welfare check/public safety stop. The Kansas Supreme Court first recognized the
concept of a public safety stop in Vistuba, 251 Kan. 821. In that case, the officer testified
that she observed erratic driving and was concerned that the driver might be impaired, but
the officer specifically stated that she suspected no criminal activity from her
observations. The Supreme Court determined the stop was lawful and held: "[A] civil or
criminal infraction is not always essential to justify a vehicle stop. Safety reasons alone
may justify the stop, if the safety reasons are based on specific and articulable facts."
251 Kan. at 824.

In State v. Gonzales, 36 Kan. App. 2d 446, 141 P.3d 501 (2006), this court refined
the appropriate justification for a public safety stop and the limited duration and scope of
such a stop. In Gonzales, an officer stopped the defendant's vehicle when the officer
observed a "bouncy" rear tire and an open hatch over the fuel cap. After the stop, the
officer immediately asked for information about ownership of the vehicle and demanded
the occupants' driver's licenses, rather than examining the problematic tire. After several
minutes of questioning, the driver consented to a search of the vehicle. This court upheld

10
the initial vehicle stop for public safety reasons, but this court also held the later search of
the vehicle was illegal because the duration of the stop exceeded the scope of the public
safety justification. 36 Kan. App. 2d at 458.

The Gonzales court determined that the legality of a public safety stop can be
evaluated in three steps. First, as long as there are objective, specific, and articulable facts
from which a law enforcement officer would suspect that a citizen needs help or is in
peril, the officer has the right to stop and investigate. Second, if the citizen needs aid, the
officer may take appropriate action to render assistance. Third, once the officer is assured
that the citizen is not in peril or is no longer in need of assistance, any actions beyond that
constitute a seizure, implicating the protections provided by the Fourth Amendment to
the United States Constitution. 36 Kan. App. 2d at 456.

In applying the public safety rationale to justify a police-citizen encounter, courts
employ careful scrutiny "so the protections of the Fourth Amendment are not
emasculated." Gonzales, 36 Kan. App. 2d at 455. A public safety stop is not for
investigative purposes. 36 Kan. App. 2d at 457. A public safety stop "must be divorced
from the detection, investigation, or acquisition of evidence relating to the violation of a
criminal statute." State v. Messner, 55 Kan. App. 2d 630, Syl. ¶ 2, 419 P.3d 642 (2018).

In Messner, a police officer stopped Christian Messner's vehicle after dispatch
received a call reporting his odd behavior and requesting a welfare check. After stopping
Messner, the police did little to check his welfare but instead seized his driver's license
and checked for any warrants. This court held the officer "exceeded the limitations of the
safety stop when he did more than speak with Messner to determine whether he was [all
right] to drive." 55 Kan. App. 2d at 637. This court reasoned that the officer's act of
taking Messner's driver's license and returning to his vehicle to run a warrant check was
constitutionally impermissible, especially in light of the officer giving "no other reason
for obtaining Messner's driver's license than to run it for wants and warrants." 55 Kan.

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App. 2d at 637; see also State v. Bluthardt, No. 116,401, 2017 WL 948330, at *3 (Kan.
App. 2017) (unpublished opinion) (holding that an officer's act of retaining a driver's
license to check for warrants turns both voluntary encounters and public safety stops into
investigatory detentions).

Unlike in a public safety stop, which is not for investigative purposes, it is
constitutionally permissible for a law enforcement officer to obtain a person's
identification and check for outstanding warrants when the officer has reasonable
suspicion to detain and investigate the person for criminal activity. See State v. Walker,
292 Kan. 1, 14-16, 251 P.3d 618 (2011). Likewise, as part of the routine investigation of
a traffic infraction, the officer has a right to check the driver's license, inspect the
vehicle's registration and proof of insurance, and determine whether there are outstanding
warrants against the driver. State v. Jimenez, 308 Kan. 315, 325, 420 P.3d 464 (2018). In
other words, once an officer has legal grounds to conduct an investigatory detention, the
officer is free to check the person for outstanding warrants as part of the investigation.

Returning to our facts, Rivers and another officer responded to a call to check on
Manwarren's welfare. After locating Manwarren on the side of the road, Rivers asked him
if he was okay, and Manwarren replied that he was waiting for a ride that was less than
30 minutes away. Manwarren added that he was homeless and had been camping nearby,
and he was waiting for a friend to take him back into town. At that point, there was no
indication of criminal activity and Manwarren did not appear to be injured or intoxicated.

Rivers then asked for Manwarren's identification. The Kansas Supreme Court has
held that a law enforcement officer's mere request for identification or identifying
information generally will not constitute a seizure. See State v. Pollman, 286 Kan. 881,
888, 190 P.3d 234 (2008). But in Pollman, the court held that an officer's retention of an
identification card is one factor to be considered in applying the totality of the
circumstances test, and that factor may, absent offsetting circumstances, mean a

12
reasonable person would not feel free to leave or otherwise terminate an encounter with
the officer. 286 Kan. at 889.

Rivers had a right to ask for Manwarren's identification. But once Rivers retained
the identification to run a warrant check, Manwarren was seized. At that point, no
reasonable person would have felt free to leave or terminate the encounter. Based on
Kansas caselaw cited above, the warrant check was beyond the scope of the welfare stop
after it was clear to Rivers that Manwarren was not in need of any help. Likewise, there
was no reasonable suspicion of criminal activity to extend the scope of the encounter.

The State points out that it only took Rivers a few minutes to run the warrant
check and Manwarren would have remained on the side of the road waiting for his ride
anyway. Although this fact may be true, it also remains true that no reasonable person
would have felt free to leave or terminate the encounter once Rivers retained the
identification. Rivers admitted in his testimony that it would not be "common practice"
for a person to just walk away once an officer takes the person's identification. More
importantly, there was no justification for Rivers to run a warrant check in the first place
during a welfare stop, as such an encounter is not for investigative purposes and "must be
divorced from the detection, investigation, or acquisition of evidence relating to the
violation of a criminal statute." Messner, 55 Kan. App. 2d 630, Syl. ¶ 2. Even a brief
seizure must be reasonable under the Fourth Amendment.

The State also points out that Manwarren never requested his identification back
so he could leave, and Rivers testified that he "absolutely" would have returned it with
such a request. This fact might be important if Rivers had asked for Manwarren's
permission to run the warrant check and told him that he was free to deny the request.
Instead, Rivers simply retained the identification to run the warrant check without giving
Manwarren any say in the matter. In this situation, no reasonable person would have felt

13
free to leave or end the encounter without permission from the officer, and Manwarren
would not have been expected to ask Rivers to return his identification.

Simply put, there was no justification for Rivers to run the warrant check as part of
the welfare stop. Once Rivers determined that Manwarren was not in need of assistance,
the welfare stop ended. By retaining Manwarren's identification and running a warrant
check, the encounter became an investigatory detention even though Rivers had no
reasonable and articulable suspicion that Manwarren was involved in any criminal
activity. We agree with the district court that Rivers illegally detained Manwarren in
violation of his constitutional rights when he retained the identification card to run a
warrant check after it was clear to Rivers that Manwarren was not in need of any help.

DOES THE ATTENUATION DOCTRINE ALLOW THE ADMISSION OF THE EVIDENCE?

Because Manwarren's detention was illegal, the next question is whether the
evidence should be suppressed under the exclusionary rule. The exclusionary rule is a
judicially created remedy that prohibits the introduction of evidence obtained in violation
of a person's constitutional rights in order to deter future violations. State v. Baker, 306
Kan. 585, 590, 395 P.3d 422 (2017). But there are recognized exceptions to the
exclusionary rule that allow the admission of evidence initially discovered in violation of
a person's constitutional rights. One such exception is known as the attenuation doctrine.

The United States Supreme Court recently explained the attenuation doctrine as
follows: "Evidence is admissible when the connection between unconstitutional police
conduct and the evidence is remote or has been interrupted by some intervening
circumstance, so that 'the interest protected by the constitutional guarantee that has been
violated would not be served by suppression of the evidence obtained.' [Citation
omitted.]" Strieff, 136 S. Ct. at 2061. Stated differently, "'[u]nder the attenuation doctrine,
courts have found that the poisonous taint of an unlawful search or seizure dissipates

14
when the connection between the unlawful police conduct and the challenged evidence
becomes attenuated.'" State v. Moralez, 297 Kan. 397, 409, 300 P.3d 1090 (2013),
abrogated by Utah v. Strieff, 136 S. Ct. 2056.

We begin our analysis by addressing the Kansas Supreme Court's decision in
Moralez, which arose from factual circumstances very similar to those in this case.
Joseph Moralez' encounter with police began as a voluntary one, but officers obtained
Moralez' identification card and, without reasonable suspicion of criminal activity,
detained him while they checked for warrants. Upon discovery of an outstanding warrant
for Moralez' arrest, officers arrested him and found drugs in his pocket. The State
charged Moralez with felony possession of marijuana, and he moved to suppress the
evidence. The district court denied the motion and a divided panel of this court affirmed.
297 Kan. at 400.

Our Supreme Court granted review to clarify its earlier opinions "regarding the
effect of the discovery of an outstanding arrest warrant during an unlawful detention."
297 Kan. at 400. The court first held, under the facts of the case, that Moralez' voluntary
encounter with law enforcement evolved into an unlawful detention when the officers
retained Moralez' identification card and detained him while running a warrant check.
297 Kan. at 408. Next, the court held that under the facts of the case, the officers'
discovery of Moralez' outstanding arrest warrant did not purge the taint of the unlawful
detention. 297 Kan. at 417. In particular, the Moralez court held: "'[T]he 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.'"
297 Kan. at 415. The Moralez court expressly noted:

"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

15
 outstanding arrest warrant, any evidence discovered in the subsequent search will be
admissible against the defendant in a criminal proceedings unrelated to the lawful arrest."
297 Kan. at 415.

We will now address in more detail the United States Supreme Court's decision in
Strieff. The Court granted certiorari in Strieff to resolve disagreement on the question of
applying the attenuation doctrine when an unconstitutional stop leads to the discovery of
a valid arrest warrant and the later discovery of evidence. See Strieff, 136 S. Ct. at 2060.
When it issued its opinion in 2016, the Strieff Court specifically cited Moralez, 297 Kan.
at 415, as an example of cases that "assign[] little significance to the discovery of the
warrant." 136 S. Ct. at 2060.

Strieff involved a police-citizen encounter that was an investigatory detention from
the outset. While conducting intermittent surveillance of a residence identified in an
anonymous tip about drug activity, Officer Douglas Fackrell saw Edward Strieff leave
the residence. Believing there was reasonable suspicion that Strieff was involved in
criminal activity, Fackrell stopped him in a nearby parking lot. Fackrell obtained Strieff's
identification, checked with the dispatcher, and learned of an outstanding arrest warrant
for Strieff. Fackrell arrested Strieff and searched him, finding drugs and drug
paraphernalia.

In the resulting criminal proceedings, Strieff moved to suppress the evidence,
arguing that Fackrell lacked reasonable suspicion for the stop. The district court denied
the motion, finding that the existence of a valid arrest warrant sufficiently attenuated the
connection between the stop and the discovery of the contraband. The Utah Court of
Appeals affirmed, but the Utah Supreme Court reversed, holding that only a defendant's
voluntary act could sufficiently break the connection between an illegal search and
evidence subsequently discovered. The United States Supreme Court granted certiorari to

16
apply the attenuation doctrine to the facts of the case, assuming without deciding that
Fackrell's initial stop was unconstitutional. 136 S. Ct. at 2060, 2062.

Citing Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 45 L. Ed. 2d 416
(1975), the Strieff Court identified three factors that guide a court's analysis of whether
the attenuation doctrine applies to allow the admission of evidence discovered after a
violation of a person's constitutional rights: (1) The "'temporal proximity'" between the
unconstitutional conduct and the discovery of the evidence; (2) "'the presence of
intervening circumstances'"; and (3) the "'the purpose and flagrancy of the official
misconduct.'" 136 S. Ct. at 2061-62. No one factor is controlling, and other factors may
be relevant to the attenuation analysis. See Brown, 422 U.S. at 603 (declining to adopt
any "talismanic test" and cautioning that attenuation doctrine depends on the
circumstances of each case).

The Strieff Court found that the temporal proximity between the illegal stop and
the search at issue—only minutes—favored suppressing the evidence. 136 S. Ct. at 2062.
But the Court found that the presence of intervening circumstances—including the
discovery of the valid arrest warrant—strongly favored not suppressing the evidence. 136
S. Ct. at 2062-63. As for the third factor, the Court found that Fackrell's conduct was not
flagrant and did not seek to serve an improper purpose. 136 S. Ct. at 2063. The Court
reasoned that because the exclusionary rule is meant to deter police misconduct, invoking
that rule in this instance would serve little purpose where, as the Court interpreted it,
Fackrell simply made some "good-faith mistakes" in illegally stopping Strieff and his
conduct thereafter was lawful. 136 S. Ct. at 2063. Moreover, the Court found there was
no evidence that Fackrell's behavior in stopping Strieff was part of a systemic pattern of
police misconduct. 136 S. Ct. at 2063. The Court held the evidence

"was admissible because the unlawful stop was sufficiently attenuated by the pre-existing
arrest warrant. Although the illegal stop was close in time to Strieff's arrest, that

17
 consideration is outweighed by two factors supporting the State. The outstanding arrest
warrant for Strieff's arrest is a critical intervening circumstance that is wholly
independent of the illegal stop. The discovery of that warrant broke the causal chain
between the unconstitutional stop and the discovery of evidence by compelling Officer
Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that
Officer Fackrell's illegal stop reflected flagrantly unlawful police misconduct." 136 S. Ct.
at 2063.

Although the facts in Strieff and Moralez are distinguishable, the Court's decision
in Strieff abrogates that part of the Kansas Supreme Court's holding in Moralez 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. See Moralez, 297 Kan. at 415. But the remainder of the holdings and
conclusions of law on other issues in Moralez remain in effect.

We now turn to the district court's analysis of the attenuation doctrine in
Manwarren's case. Here, the district court distinguished Strieff, finding that the officer in
that case was involved in "a bona fide investigation of a suspected drug house" when the
illegal detention occurred. On appeal, the State correctly points out that the Strieff Court
drew no distinction between "bona fide" and non-"bona fide" investigations in terms of
applying the attenuation doctrine. But we do not interpret the district court's order as
trying to distinguish between bona fide investigations and non-bona fide investigations.
Instead, we interpret the district court's order as trying to distinguish between stops that
are investigatory—such as the one in Strieff—and stops that are not investigatory, such as
voluntary encounters or public safety stops. In that regard, we agree with the district court
that Strieff is materially distinguishable from Manwarren's case because it did not
implicate a welfare check or public safety stop but rather involved an unfounded
investigatory detention as the result of the officer's good-faith mistakes.

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 In rejecting the application of the attenuation doctrine in Manwarren's case, the
district court found that the "time elapsed between the illegality and the acquisition of the
evidence was negligible." The district court also found that Rivers "did discover an
outstanding warrant, an intervening circumstance dissipating the taint of the illegal police
contact." But it does not appear that the district court expressly addressed the purpose and
flagrancy of the police misconduct. The district court ultimately found that the "State has
failed to sustain the burden of proving that the attenuation doctrine should be applied."

Whether attenuation sufficiently purged the taint of illegal police conduct is a
question of fact that appellate courts review under a substantial competent evidence
standard. Moralez, 297 Kan. at 410. But in Manwarren's case, where the evidence on the
issue is undisputed, we can employ de novo review. See Hanke, 307 Kan. at 827. The
burden is on the State to show that the attenuation doctrine should be applied to allow the
admission of the evidence. See K.S.A. 22-3216(2) (the burden of proving that the search
and seizure were lawful shall be on the prosecution).

Application of the attenuation doctrine to Manwarren's case

The first factor generally considered by courts in an analysis under the attenuation
doctrine is the "temporal proximity" between the unconstitutional conduct and the
discovery of the evidence. Strieff, 136 S. Ct. at 2062. Here, the time span between
Manwarren's illegal detention and the discovery of the evidence during the search
incident to his arrest was not long, which weighs in favor of suppression.

The second factor that guides a court's analysis of whether the attenuation doctrine
applies is the presence of any intervening circumstances. Strieff, 136 S. Ct. at 2062. As
the district court found, Rivers discovered that Manwarren had active warrants, an
intervening circumstance dissipating the taint of the illegal police contact. But for the
reasons already stated, the genesis of this encounter as a welfare check and the complete

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lack of any justification for the investigation into whether Manwarren had outstanding
warrants materially distinguish this case from Strieff. Thus, although the existence of the
outstanding warrants should not be minimized and certainly weighs against suppression,
it is not controlling here just because it appeared to be controlling in Strieff.

The third factor that guides a court's analysis of whether the attenuation doctrine
applies is the "purpose and flagrancy of the official misconduct." Strieff, 136 S. Ct. at
2062. In Strieff, the Supreme Court emphasized that "[f]or the violation to be flagrant,
more severe police misconduct is required than the mere absence of proper cause for the
seizure." 136 S. Ct. at 2064. The Kansas Supreme Court has stated that in examining the
flagrancy of official misconduct, "'[f]actors such as an officer's regular practices and
routines, an officer's reason for initiating the encounter, the clarity of the law forbidding
the illegal conduct, and the objective appearance of consent may all be important in this
inquiry.'" Moralez, 297 Kan. at 416.

Here, Rivers was polite and courteous throughout his encounter with Manwarren.
It appears that Rivers did not subjectively understand that he was violating Manwarren's
constitutional rights. But his conduct of running a warrant check as part of a welfare stop
is clearly in violation of well-established Kansas caselaw, going back to Vistuba in 1992,
which emphasizes that a public safety or welfare stop is not for investigative purposes
and must end as soon as the officer determines the citizen is not in need of help. See
Vistuba, 251 Kan. at 824; Gonzales, 36 Kan. App. 2d at 457. Thus, the clarity of Kansas
law forbidding Rivers' illegal conduct supports a finding of flagrant official misconduct.

Moreover, Rivers testified that, based on his training, he runs a warrant check
every time he has a public encounter with any citizen. He testified that his understanding
of departmental policy was: "If we, you know, make contact with anybody out there, we
get their name and date of birth, check for warrants." Rivers later confirmed that when
making contact with a pedestrian, "I identify the people I'm speaking with, so that way I

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know who I'm speaking with. And, yes, when I do identify them . . . I do run them."
Later, when asked whether it was his "understanding you can walk up to somebody and
take their I.D. and run them for wants and warrants," Rivers responded, "Yes." He also
agreed that he "routinely follow[s] that procedure."

Contrary to the district court's finding that there was "no evidence to suggest the
unlawful detention was part of any systemic or recurrent police misconduct," we find that
the evidence in the record supports the opposite conclusion. Rivers testified that he
believes it is constitutionally permissible to take a person's identification and check for
warrants in any public encounter with any citizen, and he does so in every case. While
this understanding may be correct when the encounter is an investigatory detention, it is
not the case for a public safety stop based on well-established Kansas law. Unlike the
misconduct of the police officer in Strieff, Rivers' misconduct cannot be characterized as
a good-faith mistake, so that the interest protected by the constitutional guarantee that has
been violated would not be served by suppression of the evidence. Instead, it is
misconduct in need of deterrence and, as such, justifies applying the exclusionary rule.

Here, when Rivers discovered that Manwarren had an active warrant, he had an
obligation to arrest him. He also had the right to conduct a safety search incident to the
arrest. But it does not follow that any evidence seized during the search is admissible in a
later prosecution of Manwarren based on the evidence found during the search. When the
running of the warrant check is what makes the detention illegal in the first place, it
stands to reason that the discovery of the warrant alone will not always attenuate the
illegal police conduct. Otherwise, the end will always justify the means.

To sum up, in applying the public safety rationale to justify a police-citizen
encounter, courts employ careful scrutiny "so the protections of the Fourth Amendment
are not emasculated." Gonzales, 36 Kan. App. 2d at 455. The State argues that the United
States Supreme Court's decision in Strieff stands for the proposition "that the discovery of

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an outstanding warrant attenuates any taint of an otherwise illegal detention." But the
Court's decision in Strieff does not go that far. Here, the district court's finding that the
State failed to meet its burden of proving that the attenuation doctrine should be applied
is supported by substantial evidence in the record. As a result, we conclude the district
court did not err in granting Manwarren's motion to suppress the evidence.

Affirmed.

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