State v. Tatro

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 118,237

STATE OF KANSAS,
Appellant,

v.

ERICA RENEE TATRO,
Appellee.

SYLLABUS BY THE COURT

1.
Under the exclusionary rule, if a criminal defendant challenges the State's use of
evidence obtained in violation of the Fourth Amendment to the United States
Constitution, a court may suppress the primary evidence obtained as a direct result of an
illegal search or seizure and evidence later discovered and found to be derivative of an
illegality. But the exclusionary rule has never been interpreted to proscribe the use of
illegally seized evidence in all proceedings or against all persons. Instead, to trigger the
exclusionary rule, police conduct must be sufficiently deliberate, reckless, or grossly
negligent, or, in some circumstances, recurring or systemic negligence, so that exclusion
can meaningfully deter it.

2.
The attenuation doctrine is an exception to the exclusionary rule. It applies 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.

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3.
No bright-line rule defines when the attenuation doctrine applies. Rather, courts
must examine the particular facts of each case and determine whether those
circumstances attenuate the taint of illegality.

4.
When a party appeals a ruling based on the attenuation doctrine, the appellate
court considers a question of fact it must review to determine whether it is supported by
substantial competent evidence. Substantial competent evidence possesses both relevance
and substance and furnishes a substantial basis in fact from which a court can reasonably
resolve the issues. An appellate court does not reweigh evidence, pass on the credibility
of witnesses, or resolve conflicts in the evidence.

5.
The United States Supreme Court has identified three nonexclusive factors for
determining whether the attenuation doctrine applies. First, courts look to the temporal
proximity between the unconstitutional conduct and the discovery of evidence to
determine how closely the discovery of evidence followed the unconstitutional seizure.
Second, courts consider intervening circumstances. Third, and particularly significant, a
court examines the purpose and flagrancy of the official misconduct. No one factor is
controlling, and other factors also may be relevant to the attenuation analysis.

6.
Under the attenuation doctrine's temporal proximity factor, a finding of attenuation
is not generally appropriate unless substantial time elapses between an unlawful act and
the discovery of evidence.

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7.
Under Utah v. Strieff, 579 U.S. __, 136 S. Ct. 2056, 195 L. Ed. 2d 400 (2016), a
valid, preexisting, and untainted arrest warrant is an intervening factor that strongly
favors the State. This holding abrogates that portion of State v. Moralez, 297 Kan. 397,
415, 300 P.3d 1090 (2013), holding the discovery of a preexisting warrant carries little
weight when applying the attenuation doctrine. It does not abrogate other portions of
Moralez.

8.
Whether the third attenuation factor of purposeful or flagrant misconduct weighs
in favor of suppression turns on multiple factors, including whether the officer acted in
good faith, committed multiple unconstitutional acts during the unconstitutional seizure,
or acted as part of a systemic and recurrent pattern of police misconduct. As to the factor
of good faith, the officer's subjective state of mind weighs heavily. Courts should
generally find purposeful and flagrant misconduct if: (1) the impropriety of the official's
misconduct was obvious or the official knew, at the time, that his or her conduct was
likely unconstitutional but still engaged in it; and (2) the misconduct was investigatory in
design and purpose and executed in the hope that something might turn up.

Review of the judgment of the Court of Appeals in an unpublished opinion filed April 13, 2018.
Appeal from Saline District Court, RENE S. YOUNG, judge. Opinion filed July 26, 2019. Judgment of the
Court of Appeals reversing the district court is reversed, and the case is remanded with directions.

Brock R. Abbey, assistant county attorney, argued the cause, and Ellen H. Mitchell, county
attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellant.

Joel Ensey, of Salina Regional Public Defender's Office, of Salina, argued the cause and was on
the briefs for appellee.

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The opinion of the court was delivered by

LUCKERT, J.: Applying the Fourth Amendment to the United States Constitution,
the United States Supreme Court has developed a remedy that prohibits the admission of
evidence obtained in violation of a person's constitutional rights. That remedy, known as
the exclusionary rule, seeks to deter future constitutional violations by police officers and
applies only when it furthers the rule's purpose. Several exceptions to the rule define
situations in which the Supreme Court has determined the purpose is not served. This
appeal focuses on one such exception—the attenuation doctrine. Under this exception, a
court may admit evidence obtained as a result of an unconstitutional seizure if the
connection between the unconstitutional police conduct and the discovery of the evidence
is remote or has been sufficiently interrupted by an intervening circumstance, as long as
the police did not commit the misconduct purposefully or flagrantly. See Utah v. Strieff,
579 U.S. __, 136 S. Ct. 2056, 2061-64, 195 L. Ed. 2d 400 (2016).

Applying the attenuation doctrine factors defined by the United States Supreme
Court, the district court suppressed evidence derived from a search because it found that
the search resulted directly from a police officer's unconstitutional seizure of Erica Renee
Tatro. The Court of Appeals reversed, holding an intervening circumstance attenuated the
taint of an unlawful seizure and thus did not invalidate a later search. State v. Tatro, No.
118,237, 2018 WL 1770191, at *1, 4-7 (Kan. App. 2018) (unpublished opinion). On
review, we hold the district court erred in failing to consider the officer's discovery of an
arrest warrant as a circumstance that intervened between the officer's illegal detention of
Tatro and his search of her purse after arresting her on the warrant. But unlike the Court
of Appeals, we remand to the district court for further findings of facts. There remain
unanswered questions of fact and we remand for the district court to make all appropriate
findings of fact under the correct legal standard.

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 FACTUAL AND PROCEDURAL BACKGROUND

A Salina police officer stopped Tatro while she was walking in the middle of a
public street at around 3:30 a.m. The stop occurred in a neighborhood the officer
considered a high-crime area known for vehicle burglaries. He thought it suspicious that
Tatro was walking in the street and using a flashlight but acknowledged the area was very
dark and he only observed her using the light to see where she was walking.

The officer stopped Tatro and asked for identification. She could not provide it but
told the officer her name. He asked questions about where she lived and worked and
whether her roommate had any contact with someone he called, "Shorty." He then
conducted a warrant check, which showed Tatro had an outstanding arrest warrant. The
officer arrested Tatro based on the warrant. He then seized her purse and conducted a pat-
down search of her person. Minutes later, a second officer arrived on scene at which time
the first officer searched Tatro's purse and found a small plastic baggie and a pipe, both
of which contained methamphetamine residue.

The State charged Tatro with possession of drug paraphernalia. She moved to
suppress the evidence derived from the search of her purse, arguing the officer violated
her constitutional rights by detaining and searching her. The State responded by asserting
the officer initiated a voluntary encounter, not a seizure. The State alternatively argued
reasonable suspicion justified the detention if it was a seizure. Finally, the State asserted
that even if the seizure violated the Fourth Amendment to the United States Constitution,
the United States Supreme Court's attenuation doctrine analysis should be applied and the
drug paraphernalia discovered in the search of Tatro's purse should be admitted into
evidence. The State argued the officer's discovery of the warrant serves as a critical
intervening factor breaking the causal connection between any illegality in the initial stop
and the later discovery of evidence in the search incident to arrest.

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 The district court granted Tatro's motion, finding: (1) the encounter was not
voluntary; (2) the officer did not have reasonable suspicion for the stop; and (3) the later
discovery of the arrest warrant did not make the evidence admissible under the
attenuation doctrine.

The State filed a timely interlocutory appeal. The Court of Appeals upheld the
district court's findings that the encounter was involuntary and the officer's detention of
Tatro was unsupported by reasonable suspicion. But it reversed the district court's
ultimate decision, finding the officer's discovery of the arrest warrant before the search of
Tatro's purse presented an intervening cause that justified Tatro's arrest and a search
incident to the arrest. See State v. Tatro, No. 118,237, 2018 WL 1770191, at *1, 4-5, 7
(Kan. App. 2018) (unpublished opinion).

Tatro timely petitioned for and was granted review by this court. The State did not
cross-petition for review of the Court of Appeals' adverse findings. This court's
jurisdiction is proper under K.S.A. 20-3018(b) (petition for review of Court of Appeals
decision).

ANALYSIS

The Fourth Amendment 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." U.S. Const. amend. IV. By prohibiting "unreasonable" searches and
seizures, the Fourth Amendment inferentially allows "reasonable" ones. Reasonable
searches and seizures include those supported by a valid warrant or by one of the
warrant-requirement exceptions defined by the United States Supreme Court. State v.
Doelz, 309 Kan. 133, 140, 432 P.3d 669 (2019). When, as here, a criminal defendant

6
seeks to suppress evidence obtained from a search following a warrantless seizure, the
legality of both the seizure and the search present intertwined questions because an
unlawful seizure may taint the search and make it unconstitutional. State v. Thompson,
284 Kan. 763, 772, 166 P.3d 1015 (2007); see K.S.A. 22-2402; see also Terry v. Ohio,
392 U.S. 1, 18, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). And Tatro presents such an
intertwined argument when she argues her unlawful initial detention taints the later
search and makes it unreasonable.

As this appeal stands before us, the first step of Tatro's intertwined argument—
whether an unreasonable seizure occurred—has been determined. Tatro prevailed on this
prong of the argument in the district court. There, the district court rejected the State's
argument that the officer acted constitutionally by either (1) initiating a voluntary
encounter or (2) detaining Tatro based on reasonable suspicion that she had committed,
was committing, or was about to commit a crime. The Court of Appeals affirmed the
district court on these points. But it disagreed with the rest of the district court's analysis
of the attenuation doctrine issue. See Tatro, 2018 WL 1770191, at *4-7.

Tatro sought our review of the Court of Appeals' analysis of the attenuation
doctrine. When she filed that petition, the State needed to respond with a cross-petition or
conditional cross-petition for review if it wanted us to review the panel's holding that the
officer unconstitutionally detained Tatro. See Supreme Court Rule 8.03(c)(3) (2019 Kan.
S. Ct. R. 56) ("The purpose of a cross-petition is to seek review of specific holdings the
Court of Appeals decided adversely to the cross-petitioner."). It did not, and we thus
accept without review the Court of Appeals' holding that the officer unconstitutionally
seized Tatro, potentially tainting the officer's later search of her purse. See State v. Gray,
306 Kan. 1287, 1292-93, 403 P.3d 1220 (2017) (holding failure to cross petition on
adverse holding meant this court would not review it); Supreme Court Rule 8.03(i)(1)
(2019 Kan. S. Ct. R. 58) ("[T]he issues before the Supreme Court include all issues
7
properly before the Court of Appeals that the petition for review, cross-petition, or
conditional cross-petition allege were decided erroneously by the Court of Appeals.").

As a result, we consider the sole issue presented in Tatro's petition for review: Did
the district court properly exclude the evidence obtained in the search of Tatro's purse or,
under the attenuation doctrine, did the discovery of an arrest warrant purge the taint of the
illegal stop and allow the admission of the alleged drug paraphernalia? Some background
on the exclusionary rule and the attenuation doctrine provide context to that issue and our
discussion.

Under the exclusionary rule, if a criminal defendant challenges the State's use of
evidence obtained in violation of the Fourth Amendment, a court may suppress the
"primary evidence obtained as a direct result of an illegal search or seizure" and
"evidence later discovered and found to be derivative of an illegality," the so-called "'fruit
of the poisonous tree.'" Segura v. United States, 468 U.S. 796, 804, 104 S. Ct. 3380, 82 L.
Ed. 2d 599 (1984); see 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) (same). But "'the exclusionary rule has never
been interpreted to proscribe the use of illegally seized evidence in all proceedings or
against all persons.'" Brown v. Illinois, 422 U.S. 590, 599-600, 95 S. Ct. 2254, 45 L. Ed.
2d 416 (1975) (quoting United States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 38
L. Ed. 2d 561 [1974]). Instead, "[t]o 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." Herring v. United States, 555 U.S. 135,
144, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009).

8
 The United States Supreme Court has recognized several exceptions to the
exclusionary rule. Some of these "exceptions involve the causal relationship between the
unconstitutional act and the discovery of evidence." Strieff, 136 S. Ct. at 2061. Here, the
State has placed one of those exceptions—the attenuation doctrine—in issue. The
attenuation doctrine applies "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.'" Strieff, 136 S. Ct.
at 2061 (quoting Hudson v. Michigan, 547 U.S. 586, 593, 126 S. Ct. 2159, 165 L. Ed. 2d
56 [2006]); see Brown, 422 U.S. at 603.

No bright-line rule defines when the attenuation doctrine applies. Rather, courts
must examine the particular facts of each case and determine whether those
circumstances attenuate the taint of illegality. Brown, 422 U.S. at 603. Given that
requirement, when a party appeals a ruling based on the attenuation doctrine, the
appellate court considers a question of fact that must be reviewed to determine whether it
is supported by substantial competent evidence. See State v. Smith, 286 Kan. 402, 420,
184 P.3d 890, cert. denied 555 U.S. 1062 (2008). "Substantial competent evidence is that
which possesses both relevance and substance and which furnishes a substantial basis in
fact from which the issues can reasonably be resolved." State v. Sharp, 289 Kan. 72, 88,
210 P.3d 590 (2009). In reviewing a district court's factual findings for substantial
competent evidence, "[a]n appellate court does not 'reweigh evidence, pass on the
credibility of witnesses, or resolve conflicts in the evidence.'" Sharp, 289 Kan. at 80
(quoting State v. Harris, 284 Kan. 560, Syl. ¶ 9, 162 P.3d 28 [2007]); see State v. Hanke,
307 Kan. 823, 827, 415 P.3d 966 (2018) (holding appellate review of ruling on motion to
suppress raises questions of fact to be reviewed for substantial competent evidence and
an ultimate legal conclusion reviewed de novo).

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 To aid a district court's weighing of the facts, the United States Supreme Court in
Brown, 422 U.S. at 603-04, identified three factors to be considered in determining
whether the attenuation doctrine applies. This court later applied those factors. See State
v. Moralez, 297 Kan. 397, 415, 300 P.3d 1090 (2013); State v. Williams, 297 Kan. 370,
Syl. ¶ 9, 300 P.3d 1072 (2013). More recently in Strieff, the United States Supreme Court
reiterated the Brown factors:

"First, we look to the 'temporal proximity' between the unconstitutional conduct and the
discovery of evidence to determine how closely the discovery of evidence followed the
unconstitutional search. Second, we consider 'the presence of intervening circumstances.'
Third, and 'particularly' significant, we examine 'the purpose and flagrancy of the official
misconduct.'" 136 S. Ct. at 2062.

Pointedly significant to our analysis, no one factor controls, 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
where confession follows unlawful arrest; but noting that giving Miranda warnings is
relevant factor to consider in determining whether confession was sufficiently attenuated
from unlawful arrest); State v. Martin, 285 Kan. 994, 1003, 179 P.3d 457, cert. denied
555 U.S. 880 (2008) (noting that no single factor is dispositive).

We turn to the district court's application of these factors.

Temporal proximity

As to the first Brown factor of temporal proximity, the Streiff Court "declined to
find that this factor favors attenuation unless 'substantial time' elapses between an
unlawful act and when the evidence is obtained." Strieff, 136 S. Ct. at 2062. Because just
minutes had passed between an illegal detention of Edward Joseph Strieff, Jr., and the
10
discovery of drug contraband on him, the "short time interval counsel[ed] in favor of
suppression." 136 S. Ct. at 2062.

Here, the district court found the first factor weighs in favor of suppression
because the evidence was discovered shortly after the unlawful seizure. And the Court of
Appeals affirmed this finding after discussing the evidence supporting that conclusion.
The officer's body camera video showed that just a few minutes elapsed between the
initial stop and the arrest of Tatro and the search of her belongings. Tatro, 2018 WL
1770191, at *5.

Before us, the State does not dispute this finding, and the evidence supports it. We
thus hold the district court did not err in finding that the first factor weighs in favor of
suppression.

Intervening factor

As to the second factor, the State relied heavily on the officer's discovery of a
warrant for Tatro's arrest as an intervening factor. The district court, in a conclusory
fashion, stated: "As to the second factor, the Court does not find there were any
intervening circumstances." The Court of Appeals disagreed, relying heavily on Strieff,
136 S. Ct. 2056. See Tatro, 2018 WL 1770191, at *5-7.

Strieff clarified the importance of an arrest warrant as an intervening factor. After
Brown, a split of authority had developed about the importance of an arrest warrant as an
intervening circumstance. See Strieff, 136 S. Ct. at 2060; Moralez, 297 Kan. at 413
(collecting and discussing decisions). The United States Supreme Court granted review in
Strieff to resolve that split and, in doing so, specifically mentioned this court's Moralez

11
decision in which we joined other states assigning "little significance" to the discovery of
a warrant. Strieff, 136 S. Ct. at 2060.

The Strieff Court first addressed a threshold question of whether the attenuation
doctrine even applies when the State relies on the discovery of a warrant as an
intervening factor. The Court held that trial courts should apply the doctrine and the
three-factor test set out in Brown if a preexisting warrant was discovered. 136 S. Ct. at
2061. To this extent, the Strieff Court upheld the Moralez court's use of Brown's three-
factor attenuation doctrine analysis. And the Strieff Court did not disturb the Moralez
court's reasoning on any point other than the weight to be given to the discovery of a
"valid, pre-existing, and untainted arrest warrant." See 136 S. Ct. at 2061. On that point,
the Strieff Court held an officer's discovery of an arrest warrant is an intervening factor
that "strongly favors the State." 136 S. Ct. at 2062. This holding abrogates that portion of
our decision in Moralez that joined other courts in giving little weight to the warrant as an
intervening circumstance. But it abrogated only that portion of Moralez.

Tatro makes a passing argument that we should continue to give little weight to
the discovery of an arrest warrant. But this court based its Moralez holding on the Fourth
Amendment, and this court must follow the United States Supreme Court's interpretation
of the United States Constitution. 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."). This means we
must follow Strieff unless we determine a different rule applies under the Kansas
Constitution. But Tatro does not explain why a different rule would apply in Kansas, and
develops no argument on this point. At best, the point was incidentally raised but not
argued, which is akin to failing to brief the issue. See State v. Williams, 303 Kan. 750,
758, 368 P.3d 1065 (2016) (issue not briefed is considered waived and abandoned); State
v. Sprague, 303 Kan. 418, 425, 362 P.3d 828 (2015) (point raised incidentally in a brief
12
and not argued is also considered abandoned). Nor did she support the point with citation
to pertinent authority or otherwise explain why it was sound. We thus consider her
argument waived and abandoned. See State v. Murray, 302 Kan. 478, 486, 353 P.3d 1158
(2015) (failure to support a point with pertinent authority or show why it is sound despite
a lack of supporting authority or in the face of contrary authority is like failing to brief
the issue).

Relying on the Fourth Amendment, the State cited Strieff to the district court. But,
without explanation, the district court not only gave the arrest warrant little weight, it
apparently gave it no weight, finding no intervening circumstance existed. The Court of
Appeals held the district court erred:

"[T]he facts related to the respective officer's knowledge of pre-existing arrest warrants
before the initial illegal detentions in the present case and Strieff are legally
indistinguishable. Both [officers] . . . respectively stopped Tatro and Strieff for the
investigation of criminal activity. For purposes of the Strieff court's analysis, both
[officers] . . . lacked reasonable suspicion to detain the individuals. During the course of
the illegal detention, both officers learned that the individuals possessed valid arrest
warrants. Accordingly, the existence of an arrest warrant on Tatro provides an
intervening circumstance that dissipates the taint of the initial illegal seizure under the
reasoning of Strieff." Tatro, 2018 WL 1770191, at *6.

On this point, we agree with the Court of Appeals. Given Strieff's holdings (1) that
a preexisting, valid, and untainted arrest warrant presents an intervening circumstance
and (2) this intervening circumstance carries great weight, we hold substantial competent
evidence does not support the district court's finding that there was no intervening
circumstance. As the Strieff Court observed, "'[a] warrant is a judicial mandate to an
officer to . . . make an arrest, and the officer has a sworn duty to carry out its provisions.'
United States v. Leon, 468 U.S. 897, 920 n.21, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)."
Strieff, 136 S. Ct. at 2062. Simply put, an officer cannot ignore the warrant's mandate to
13
make an arrest while faithfully carrying out his or her official duties. See 136 S. Ct. at
2062-63.

Here, the officer discovered an arrest warrant that predated his encounter with
Tatro. And Tatro has not argued the warrant was tainted, invalid, or related to the reasons
the officer initiated the stop. Upon learning of the warrant, the officer had an independent
duty to arrest Tatro entirely unrelated to the reasons for the initial stop. In other words,
the arrest was lawful even if the initial seizure was not. And once the officer made a
lawful arrest based on the warrant, he had the authority to search Tatro and her purse
under the search incident to lawful arrest exception to the warrant requirement. The
second factor strongly favors the State. See 136 S. Ct. at 2062-63. Again, however, no
single factor controls and all factors must be considered. See Brown, 422 U.S. at 600-04.

Flagrancy

The third factor—the purpose and flagrancy of the official misconduct—is perhaps
the most critical to the analysis. See Strieff, 136 S. Ct. at 2062 (identifying this factor as
"'particularly' significant"). Its significance arises because it focuses on the primary
purpose of the exclusionary rule—deterring police misconduct. See State v. Talkington,
301 Kan. 453, 487, 345 P.3d 258 (2015) ("'To trigger the exclusionary
rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter
it.' Herring v. United States, 555 U.S. 135, 144, 129 S. Ct. 695, 172 L. Ed. 2d 496
[2009]."). Thus, under Strieff, even if an officer conducts a proper search incident to
lawful arrest after discovering a warrant, the evidence may still be suppressed if the
officer engaged in flagrant police misconduct. See Strieff, 136 S. Ct. at 2063-64. "For the
violation to be flagrant, more severe police misconduct is required than the mere absence
of proper cause for the seizure." Strieff, 136 S. Ct. at 2064.

14
 In Strieff, when considering whether the officer's conduct was flagrant, the United
States Supreme Court examined whether the officer acted in good faith; determined that
the officer's "decision to initiate the stop was mistaken, [but] his conduct thereafter was
lawful"; and concluded "there is no indication that this unlawful stop was part of any
systemic or recurrent police misconduct." 136 S. Ct. at 2063.

Here, whether the third factor weighs in favor of suppression turns on the officer's
subjective state of mind. In other words, did the officer act in good faith? Did he honestly
but mistakenly believe he had reasonable suspicion to detain Tatro and did so as part of a
bona fide investigation of suspected criminal activity, not merely in the hope something
would turn up? See Strieff, 136 S. Ct. at 2063-64. In Brown, 422 U.S. at 605, the United
States Supreme Court expanded on facts in that case that suggested the police officer's
conduct had been purposeful. The Tenth Circuit and other courts have summarized that
discussion, itemizing considerations:

"[P]urposeful and flagrant misconduct is generally found where: '(1) the impropriety of
the official's misconduct was obvious or the official knew, at the time, that his conduct
was likely unconstitutional but engaged in it nevertheless; and (2) the misconduct was
investigatory in design and purpose and executed "in the hope that something might turn
up."' United States v. Simpson, 439 F.3d 490, 496 (8th Cir. 2006) (quoting Brown, 422
U.S. at 605). Additionally, it may be significant that the 'officers ha[d] no right
whatsoever to detain the person from whom consent is sought.'" United States v. Fox, 600
F.3d 1253, 1261 (10th Cir. 2010).

Consistent with these considerations, this court has found flagrant misconduct
where an officer knowingly detains someone without authority. See State v. Cleverly, 305
Kan. 598, 612, 385 P.3d 512 (2016). And Cleverly adheres to the United States Supreme
Court's flagrancy standard. See Kaupp v. Texas, 538 U.S. 626, 628, 633, 123 S. Ct. 1843,
155 L. Ed. 2d 814 (2003) (flagrant misconduct where a warrantless arrest was made in

15
the arrestee's home after police were denied a warrant and at least some officers knew
they lacked probable cause); Taylor v. Alabama, 457 U.S. 687, 692-94, 102 S. Ct. 2664,
73 L. Ed. 2d 314 (1982) (flagrant misconduct where arrest made without probable cause
to interrogate suspect in hope that something might turn up); see also Fox, 600 F.3d at
1261-62 (flagrant misconduct where officer detained motorist without reasonable
suspicion to obtain consent to search in hope something might turn up); United States v.
Shaw, 464 F.3d 615, 630-31 (6th Cir. 2006) (flagrant misconduct where arrest made
without probable cause to conduct interrogation in the hope that something might turn
up).

The district court did not specifically discuss these considerations. But it found the
officer "did not testify that he had reasonable suspicion to believe [Tatro] had committed,
was committing, or was about to commit a crime when he made contact with her." And it
labeled the officer's conduct as "egregious" and concluded the third factor weighed in
favor of suppression.

The Court of Appeals came to the opposite conclusion after stating it was "not
possible to distinguish" the officer's conduct here from that of the officer in Strieff. Tatro,
2018 WL 1770191, at *7. In comparing the officers' conduct, the panel stated:

"Both officers presumably possessed the subjective belief that they possessed reasonable
suspicion to conduct an investigation. [The officer here] clearly believed he possessed
reasonable suspicion to stop Tatro to investigate the rash of vehicle burglaries in the area,
and the State has presented an appellate argument that [the officer's] knowledge and
experience created reasonable suspicion." 2018 WL 1770191, at *7.

The Court of Appeals, however, did not discuss the district court's finding that the
officer's action was egregious—a term that seems at least a close cousin to flagrancy.
And we find it hard to reconcile the district court's conclusion of egregious conduct with
16
the Court of Appeals statement that the officer "presumably" possessed a subjective
belief that a reasonable suspicion existed. As the district court found, the officer did not
testify that he had such a belief. And the record shows he used equivocal language when
testifying about the events. Further, as the Court of Appeals held, reasonable suspicion
did not support the stop. Tatro walked in the middle of the street, carrying a purse, a
bottle of water, and a flashlight to see where she was walking on the very dark street. She
was not near any cars and had no burglary tools. The video reflects that the officer
approached her and said:

"The reason I'm making contact with you is that it's kind of late . . . we have people that
kind of uh get into situations where we have vehicle burglaries that take place and all that
kind of stuff. So we're just going to have to I.D. people and just kind of see what they're
up to and what not."

The officer did not discuss any specific concerns about vehicle burglaries with
Tatro. He asked for her name, date of birth, address, and other biographical information,
including where she worked and with whom she lived. He also asked if her roommate
had a relationship with someone called "Shorty." The entire exchange seemed aimed
more at having information about who had been in the area if evidence of a vehicle
burglary later arose. At the suppression hearing, he testified that car burglaries often
occurred late at night. But he stopped short of saying he believed Tatro herself had
committed, was committing, or was about to commit a vehicular burglary or any other
crime.

It is unclear from the record if the officer acted on a good-faith belief he had
reasonable suspicion of criminal activity or if his purpose was investigatory in design and
purpose and executed "'in the hope that something might turn up.'" Brown, 422 U.S. at
605. Given the conflicting inferences that can be drawn from the record, the Court of

17
Appeals erred in presuming the officer acted in good faith and subjectively believed that
reasonable suspicion existed. The officer's subjective beliefs and intent present questions
of fact that turn on the weight and credibility of the evidence. Cf. State v. Gonzalez-
Sandoval, 309 Kan. 113, 124, 431 P.3d 850 (2018) (district court's finding that the State
"honestly believed" factual statements made to justify a peremptory strike was a
credibility determination); State v. Kettler, 299 Kan. 448, 467, 325 P.3d 1075 (2014)
(intent is a question of fact that "may be inferred from the established circumstances of a
case, provided the inferences are reasonable"). And appellate courts do not weigh facts or
determine credibility. Sharp, 289 Kan. at 80.

The district court did not explain what facts it relied on in support of its conclusion
of egregious behavior. It made no finding about the officer's subjective belief. Nor did the
court make an express credibility determination about the officer's testimony. And it is
hard to discern if the district court's error on the intervening factor tainted its findings
about flagrancy. These circumstances leave us unable to resolve the third factor.

Remand

When a district court fails to make adequate findings and the parties fail to object
to those findings, we sometimes presume the court made the findings necessary to
support its conclusion. See State v. Dern, 303 Kan. 384, 394, 362 P.3d 566 (2015); State
v. Herbel, 296 Kan. 1101, 1119, 299 P.3d 292 (2013). But the presumption does not arise
and remand is necessary if the lack of findings precludes meaningful review. See State v.
Neighbors, 299 Kan. 234, 240, 328 P.3d 1081 (2014). This appeal presents such a
circumstance. The district court's findings are too unclear to determine whether it
correctly decided the third factor. As the Court of Appeals noted, the facts here parallel
those in Strieff. We cannot tell if the district court distinguished those facts or, as it failed

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to do on the second factor, did not apply Strieff. We therefore remand for further
proceedings.

On remand, the district court must determine whether the officer honestly but
mistakenly believed he had reasonable suspicion of criminal activity, or whether he knew
he lacked authority to detain Tatro or did not reasonably believe he had that authority.
And the district court must determine whether the officer detained Tatro in the hope that
something would turn up during the stop. Then the court must consider those findings in
the context of the other Brown factors to determine whether suppression furthers the
purpose of the exclusionary rule.

CONCLUSION

The judgment of the Court of Appeals is reversed. The case is remanded to the
district court with directions.

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