State v. Strieff

IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

State of Utah, ) OPINION
)
Plaintiff and Appellee, ) Case No. 20100541‐CA
)
v. ) FILED
) (August 30, 2012)
Edward Joseph Strieff Jr., )
) 2012 UT App 245
Defendant and Appellant. )

‐‐‐‐‐

Third District, Salt Lake Department, 071900011
The Honorable Michele M. Christiansen

Attorneys: Elizabeth A. Lorenzo and Robert K. Engar, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee

‐‐‐‐‐

Before Judges Voros, Thorne, and Roth.

ROTH, Judge:

¶1 Edward Joseph Strieff Jr. appeals from his convictions for attempted possession
of a controlled substance and possession of drug paraphernalia. Strieff contends that
the district court erroneously denied his motion to suppress the evidence underlying
these convictions by applying an intervening circumstances exception not recognized
by Utah law or the Utah Constitution. Because we conclude that the district court
applied the proper test and correctly denied the motion to suppress, we affirm.
 BACKGROUND

¶2 After receiving an anonymous tip that drug activity was occurring at a home in
South Salt Lake, Utah, Officer Doug Fackrell conducted intermittent surveillance of the
home for approximately three hours over a one‐week period. In the course of his
surveillance, Officer Fackrell observed short‐term traffic at the house, which in his
experience was consistent with drug sales activity. Consequently, Officer Fackrell
decided he needed to “find out what was going on [in] the house.”

¶3 Officer Fackrell then saw Strieff leave the home on foot. Although he had not
witnessed Strieff’s arrival at the house, Officer Fackrell believed, based on his
observations of other short‐term traffic at the location, that Strieff was a short‐term
visitor who might be involved in drug activity, so he followed Strieff in his unmarked
vehicle. When Strieff approached a 7‐Eleven, Officer Fackrell pulled alongside him,
stepped out of his vehicle, and identified himself as a police officer. The officer then
asked Strieff what he had been doing at the house. Officer Fackrell also requested
identification, and Strieff produced an identification card, which the officer retained
while he ran a warrants check. That inquiry revealed a “small traffic warrant.” As a
result, Officer Fackrell arrested Strieff and, in the course of conducting a search incident
to the arrest, discovered “a white crystal substance” that “tested positive for
methamphetamine,” “a small green plastic scale” covered with a “white powder
residue,” and a glass pipe. Strieff was subsequently charged with unlawful possession
of a controlled substance and possession of drug paraphernalia.

¶4 Strieff moved to suppress the methamphetamine and paraphernalia evidence,
asserting that it had been obtained as the result of an illegal seizure. The State conceded
that Officer Fackrell had illegally detained Strieff1 but argued that the evidence was

1. The parties agree that Officer Fackrell’s detention of Strieff was a level two encounter
that required reasonable, articulable suspicion that Strieff was engaged in criminal
wrongdoing. See generally State v. Hansen, 2002 UT 125, ¶ 35, 63 P.3d 650 (recognizing
three levels of encounters between police and the public and stating that a level two
detention requires the officer to have “‘specific and articulable facts and rational
inferences [that] . . . give rise to a reasonable suspicion a person has [committed] or is
(continued...)

20100541‐CA 2
nevertheless admissible because it “was discovered during a search incident to a lawful
warrant‐arrest. . . . [and therefore] was not a product of the initial detention.” See
generally Wong Sun v. United States, 371 U.S. 471, 488 (1963) (stating that “the more apt
question” in determining whether evidence obtained from “the illegal actions of the
police” should be suppressed is “whether, granting establishment of the primary
illegality, the evidence . . . has been come at by exploitation of that illegality or instead
by means sufficiently distinguishable to be purged of the primary taint”); State v.
Arroyo, 796 P.2d 684, 690 n.4 (Utah 1980) (employing a three‐part test for determining
whether evidence is obtained through exploitation of an illegal search or seizure, which
requires consideration of the temporal proximity between the discovery of the evidence
and the initial illegality, the presence or absence of intervening circumstances, and the
purpose and flagrancy of the officer’s misconduct).

¶5 The district court agreed with the State, concluding that although the illegal
seizure and the search occurred in quick succession and their temporal proximity
therefore weighed in favor of suppression, an intervening circumstance—the discovery
of the warrant—and the officer’s lack of purposefulness and flagrancy in detaining
Strieff weighed against exclusion of the evidence. The district court concluded that, on
balance, the attenuation factors supported a determination that the discovery of the
evidence was not a result of exploitation of the initial illegality and denied Strieff’s
motion to suppress. Strieff entered conditional guilty pleas2 to attempted possession of
a controlled substance and possession of drug paraphernalia. He now appeals,

1. (...continued)
committing a crime’” (quoting United States v. Werking, 915 F.2d 1404, 1407 (10th Cir.
1990))). The State has conceded that Officer Fackrell lacked the required degree of
suspicion, and, for purposes of this decision, we assume that the initial detention was
unlawful.

2. A conditional guilty plea reserves the defendant’s right to appeal a denial of a
motion to suppress and “allows withdrawal of the plea if [the] defendant’s arguments
in favor of suppression are accepted by the appellate court.” State v. Sery, 758 P.2d 935,
938 (Utah Ct. App. 1988).

20100541‐CA 3
asserting that the district court applied a test not recognized by Utah law to deny his
motion to suppress.

ISSUE AND STANDARD OF REVIEW

¶6 Strieff recognizes that both the United States Supreme Court and the Utah
Supreme Court have applied the attenuation doctrine for the purpose of assessing
whether evidence obtained during a search or seizure conducted in violation of the
Fourth Amendment must be suppressed or whether it is sufficiently separate from the
initial illegality to be purged of any taint. See Wong Sun, 371 U.S. at 487–88; Arroyo, 796
P.2d at 690 n.4. Strieff contends, however, that in considering the warrant as an
intervening circumstance, the district court went beyond the bounds of the attenuation
doctrine as it has been recognized under Utah law.3 We review the district court’s
denial of a motion to suppress for correctness. See State v. Tripp, 2010 UT 9, ¶ 23, 227
P.3d 1251. We likewise review the court’s interpretation of precedent in reaching its
decision to suppress for correctness. See generally Ellis v. Estate of Ellis, 2007 UT 77, ¶ 6,

3. Strieff purports to raise a challenge under both the Fourth Amendment to the federal
constitution and its state constitution counterpart, article 1, section 14. While Strieff
effectively develops the general notion that Utah courts have recognized that article 1,
section 14 can provide greater protection than the Fourth Amendment, his criticism of
the district court’s attenuation analysis relies on Utah cases addressing application of
the attenuation doctrine only in the context of the federal constitution. See, e.g., State v.
Thurman, 846 P.2d 1256 (Utah 1993); State v. Arroyo, 796 P.2d 684 (Utah 1990); State v.
Newland, 2010 UT App 380, 253 P.3d 71. And neither those cases, nor any other Utah
cases discussing the attenuation doctrine, suggest that its application would differ
under the state constitution. Furthermore, Strieff does not explain how the state
constitution might provide broader or different protections in this context than does the
federal constitution. Strieff’s claim is therefore more accurately viewed as a contention
that the district court failed to properly apply the attenuation doctrine as it has been
adopted by the Utah courts. Consequently, we must decline Strieff’s invitation to
separately analyze the attenuation doctrine under article I, section 14 of the Utah
Constitution. See generally State v. Van Dyke, 2009 UT App 369, ¶ 17 n.4, 223 P.3d 465
(declining to engage in an independent analysis under the state constitution when the
defendant did not supply any legal analysis or authority).

20100541‐CA 4
169 P.3d 441 (stating the standard for reviewing the district court’s interpretation of
precedent).

ANALYSIS

I. State v. Topanotes

¶7 As a threshold matter, we address Strieff’s contention that the methamphetamine
and paraphernalia evidence discovered by Officer Fackrell following the warrant arrest
must be suppressed under the reasoning of the Utah appellate courts in State v.
Topanotes, 2003 UT 30, 76 P.3d 1159, and a number of other cases. Unlike the dissent, we
are not persuaded that Topanotes is controlling authority in this case. But, because of the
similarity of the facts between the two cases and the dissent’s thoughtful discussion of
Topanotes, we engage in a separate analysis to explain how we distinguish it from the
case before us.

¶8 The Fourth Amendment protects against unreasonable searches and seizures.
See U.S. Const. amend. IV. The exclusionary rule is a judicial remedy that renders
“evidence obtained by searches and seizures in violation of the Constitution . . .
inadmissible in state court.” Mapp v. Ohio, 367 U.S. 643, 655 (1961). The exclusionary
rule is not absolute, however; evidence seized as a result of an illegal search or seizure
may be admissible under three “closely related but analytically distinct” exceptions:
independent source, inevitable discovery, and attenuation. See United States v. Terzado‐
Madruga, 897 F.2d 1099, 1113 (11th Cir. 1990). Under the independent source doctrine,
challenged evidence is admissible despite the constitutional violation “if it derived from
a lawful source independent of the illegal conduct.” Id. The inevitable discovery
doctrine is an extension of the independent source doctrine and deems admissible
evidence discovered during an illegal search or seizure “if it inevitably or ultimately
would have been discovered by lawful means without reference to the police
misconduct.” Id. And the attenuation doctrine considers whether the “causal
connection between the constitutional violation and the discovery of the evidence has
become so attenuated as to dissipate the taint” of the initial illegality, making
suppression unnecessary as a deterrent. Id.

20100541‐CA 5
¶9 Although Topanotes is nearly factually identical to the present case,4 the Utah
Supreme Court was analyzing whether drug evidence discovered pursuant to arrest on
a warrant discovered following an illegal detention could be admitted under the
inevitable discovery doctrine, not the attenuation doctrine. The dissent places emphasis
on the “closely related” aspect of the relationship between the three exceptions, noting
that it was unlikely that the “Utah Supreme Court would have allowed the evidence
discovered in [Topanotes] if only the State had urged the attenuation doctrine instead of
the ‘closely related’ inevitable discovery doctrine.” See infra ¶ 56 (quoting Terzado‐
Madruga, 897 F.2d at 1113). However closely related these doctrines are, they are
nevertheless “analytically distinct,” and we believe that our treatment of the warrant
discovery in this case as an issue of first impression under the attenuation doctrine is
therefore justified. Compare Topanotes, 2003 UT 30, ¶ 16 (noting that “[a] crucial element
of inevitable discovery is independence; there must be some ‘independent basis for
discovery’” (citation omitted)), with State v. Newland, 2010 UT App 380, ¶¶ 9, 11, 253
P.3d 71 (requiring a causal connection between the initial illegality and the challenged
evidence for application of the attenuation doctrine and focusing on whether the
evidence is obtained “‘by exploitation of the illegality or instead by means sufficiently
distinguishable to be purged of the primary taint’” (quoting Wong Sun v. United States,
371 U.S. 471, 488 (1963))).

¶10 Indeed,

[t]he inevitable discovery doctrine allows the admission of
evidence that was seized illegally if it would have been
seized legally eventually. . . . In contrast, the attenuation
doctrine admits evidence that is obtained with the authority
of law provided that the evidence was not come at by the
exploitation of a prior illegal act.

State v. Eserjose, 259 P.3d 172, 183 (Wash. 2011) (en banc) (emphasis and internal
quotation marks omitted). Using the inevitable discovery doctrine, courts therefore
consider whether, given the facts and circumstances surrounding the discovery of
evidence, the police would have discovered the evidence anyway in the absence of the

4. For a fuller discussion of the factual similarities between the two cases, see the
dissenting opinion at paragraph 43.

20100541‐CA 6
initial illegality. See Topanotes, 2003 UT 30, ¶ 14. In such a case, the exclusionary rule is
deemed inapplicable because “[t]he causal chain between the illegality and the
discovered evidence [would have been] broken [by] the evidence [being] . . . discovered
through independent and lawful activity—in other words through an independent
source.” State v. Worwood, 2007 UT 47, ¶ 43, 164 P.3d 397 (internal quotation marks
omitted); see also Nix v. Williams, 467 U.S. 431, 459 (1984) (Brennan, J., dissenting) (noting
that the inevitable discovery exception is a corollary of the independent source doctrine
that requires a “hypothetical finding” that the evidence would have been discovered
despite the illegality). If the evidence would not necessarily have been discovered, then it
must be excluded to effect the primary purpose of the exclusionary rule: to deter
unconstitutional police conduct. See Topanotes, 2003 UT 30, ¶ 19 (“Allowing the
evidence [where it might not have been discovered absent the illegality] would provide
no deterrent at all to future unlawful detentions.”). With the attenuation doctrine,
however, the illegality is not disregarded but instead is the lens through which the
discovery of the evidence must be examined in order to determine whether suppression
is appropriate. See generally State v. Arroyo, 796 P.2d 684, 690 n.4 (Utah 1990)
(identifying temporal proximity, intervening circumstances, and purpose and flagrancy
of the officer’s conduct as the factors a court must consider in determining whether the
discovery of evidence is attenuated from the initial illegality). This is because the
“attenuation analysis does not apply . . . absent an initial finding of at least some causal
connection between the illegality and the testimony.” Terzado‐Madruga, 897 F.2d at
1116. Thus, “[e]ven if the illegality is the ‘but for’ reason for the evidence’s discovery, it
should still be admitted if it is sufficiently attenuated to dissipate the taint of the
illegality.” Worwood, 2007 UT 47, ¶ 44 (internal quotation marks omitted). Under this
analysis, the degree to which the initial illegality was purposeful and flagrant and the
degree to which the mechanism that led to discovery of the evidence (e.g., an
apparently voluntary statement or consent to search or, as here, the discovery of an
arrest warrant) was affected by the initial illegality are considered together in order to
determine whether the evidence was so tainted that it ought to be suppressed. See infra
¶¶ 22, 30–33.

¶11 Which exclusionary rule exception is being applied not only affects how a court
views the circumstances surrounding the illegality but might also result in the
development of a factual record with a different focus on what is relevant, i.e., where
certain facts are added or omitted or are given more or less attention and weight. For
example, in an inevitable discovery case, the court focuses on what would have

20100541‐CA 7
happened if the police misconduct had not occurred. The purpose and flagrancy with
which the officer acted—the central component of an attenuation analysis—is therefore
of little, if any, consequence because the facts are viewed in a light where the illegality is
disregarded. Indeed, the purpose and flagrancy of the officer’s conduct in Topanotes is
not even mentioned, much less assessed. In an attenuation analysis, on the other hand,
the circumstances surrounding the illegality and discovery of evidence are at the heart
of the inquiry, and little emphasis is placed on what might have occurred if the officer
had not illegally seized or searched the defendant. Thus, although both exceptions
strive to temper the harsh consequences of the exclusionary rule in circumstances where
police misconduct is unlikely to be deterred by suppression, they employ “analytically
distinct” methods for assessing whether apparently “tainted” evidence has been
sufficiently cleansed. See, e.g., United States v. Fialk, 5 F.3d 250, 251 (7th Cir. 1993)
(declining to consider the attenuation doctrine when the government argued only
inevitable discovery despite the attenuation doctrine being “better fitted” to the facts of
the case); Terzado‐Madruga, 897 F.2d at 1113, 1116 (admitting evidence pursuant to the
inevitable discovery and independent source doctrines but not the attenuation
doctrine). Because the analytical approaches of the inevitable discovery and the
attenuation doctrines are sufficiently distinct, we do not believe that Topanotes, which
evaluates the admissibility of evidence discovered pursuant to a warrant arrest under
the inevitable discovery doctrine, constrains our analysis under the separate attenuation
doctrine.5

5. Strieff has directed us to a number of other cases in which evidence discovered
during the search incident to an arrest on a valid warrant was suppressed. See State v.
Johnson, 805 P.2d 761, 764 (Utah 1991); State v. Swanigan, 699 P.2d 718, 719 (Utah 1985)
(per curiam); State v. Chism, 2005 UT App 41, ¶ 22, 107 P.3d 706; State v. Valdez, 2003 UT
App 100, ¶¶ 20–21, 68 P.3d 1052; State v. Sykes, 840 P.2d 825, 829 (Utah Ct. App. 1992);
State v. Hansen, 837 P.2d 987, 989 (Utah Ct. App. 1992); State v. Munsen, 821 P.2d 13, 16
(Utah Ct. App. 1991). None of these cases, however, involve an analysis of any of the
exceptions to the exclusionary rule. Rather, they seem to support a conclusion that the
determination of the admissibility of evidence after an initial illegality can vary
depending on the legal theory that is applied. As we have noted, the independent
source, inevitable discovery, and attenuation doctrines are often applied in factually
analogous situations, but because they each focus on the facts from somewhat different
legal perspectives, their results may differ.

20100541‐CA 8
 II. Attenuation Analysis

¶12 In the case before us, the district court applied an attenuation analysis to reach its
conclusion that the evidence found in the search incident to arrest was admissible
despite the unconstitutional stop that led to the discovery of the warrant.6 “In cases
involving the admissibility of evidence obtained as a consequence of police misconduct,
the United States Supreme Court has eschewed a ‘but for’ test” in favor of the more
nuanced attenuation analysis. State v. Arroyo, 796 P.2d 684, 688 (Utah 1990).

We need not hold that all evidence is fruit of the poisonous
tree simply because it would not have come to light but for
the illegal actions of the police. Rather, the more apt
question in such a case is whether granting establishment of
the primary illegality, the evidence to which instant
objection is made has been come at by exploitation of the
illegality or instead by means sufficiently distinguishable to
be purged of the primary taint.

Wong Sun, 371 U.S. at 487–88. Thus, application of the rule must take into account its
underlying justifications: the “exclusionary principle is driven by dual ‘considerations
of deterrence and of judicial integrity.’” State v. Grayson, 336 S.W.3d 138, 147 (Mo. 2011)
(en banc) (quoting Brown v. Illinois, 422 U.S. 590, 599 (1975)). In this regard,

[the exclusionary rule’s] purpose is to deter—to compel
respect for the constitutional guaranty in the only effectively
available way—by removing the incentive to disregard it.
But [d]espite its broad deterrent purpose, the exclusionary
rule has never been interpreted to proscribe the use of
illegally seized evidence in all proceedings or against all
persons.

Brown, 422 U.S. at 599–600 (second alteration in original) (internal quotation marks
omitted). When a warrant is discovered during the course of an illegal detention, as

6. The State has not argued for the evidence’s admissibility under the inevitable
discovery or independent source doctrines.

20100541‐CA 9
was the case here, “any analysis to determine whether the evidence seized . . . should be
suppressed must involve a balancing of the mutual concerns of discouraging police
conduct that results in the illegal detention of a citizen, while recognizing the legitimate
interest of the state in enforcing outstanding arrest warrants.” State v. Frierson, 926 So.
2d 1139, 1145–46 (Fla. 2006) (Anstead, J., concurring). Hence, where a warrant
discovered after an initial illegality leads to the discovery of evidence of a crime, the
underlying principle of the attenuation doctrine must be taken into account in
determining whether that evidence ought to be suppressed: “‘The notion of the
“dissipation of the taint” attempts to [mark] the point at which the detrimental
consequences of illegal police action become so attenuated that the deterrent effect of
the exclusionary rule no longer justifies its cost . . . [, i.e.,] to mark the point of
diminishing returns of the deterrence principle.’” McBath v. State, 108 P.3d 241, 248–49
(Alaska Ct. App. 2005) (first alteration and omission in original) (quoting 6 Wayne R.
LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.4(a) (4th ed. 2004)).

¶13 The United States Supreme Court and the Utah Supreme Court have applied a
three‐part test to determine whether evidence obtained following an unconstitutional
police action is sufficiently attenuated from the initial illegality to dissipate any taint.
This attenuation analysis requires the court to analyze and balance three factors: “[t]he
temporal proximity of the [unlawful detention] and the [search], the presence of
intervening circumstances, and, particularly, the purpose and flagrancy of the official
misconduct.” Brown, 422 U.S. at 603–04 (citation and footnotes omitted); accord State v.
Arroyo, 796 P.2d at 690 n.4.

A. The District Court Applied the Correct Attenuation Test.

¶14 Strieff contends that the district court failed to properly apply this three‐part
attenuation analysis, instead adopting a novel intervening circumstances exception
from United States v. Green, 111 F.3d 515 (7th Cir. 1997), that permits a district court to
treat the discovery of an outstanding warrant as conclusive evidence of attenuation.
The encounter in Green began with two police officers driving behind a blue Chevrolet
that one of them recognized as having been parked the night before in front of a house
belonging to a felon wanted on warrants. See id. at 517. The officers thought that the
felon might be in the car or that, at the very least, the occupants might know where he
was. See id. When the vehicle pulled into a driveway, the officers blocked its exit with
their car, a move the Seventh Circuit later determined had resulted in the

20100541‐CA 10
unconstitutional seizure of both its occupants. See id. at 517, 520. The officers
discovered a warrant for the passenger in the course of confirming his identification.
See id. at 517. A search of the vehicle incident to the passenger’s arrest yielded crack
cocaine and a gun belonging to the driver. See id. The officers then arrested the driver.
See id. The driver moved to suppress the evidence, asserting that it was discovered as
the result of a search tainted by the illegal seizure. See id. The district court disagreed,
and the Seventh Circuit affirmed the denial of the driver’s motion to suppress. See id. at
517–18.

¶15 According to Strieff, while the Seventh Circuit “ostensibly appl[ied] the
[attenuation] factors to the facts in Green,” the court actually “created what it termed the
‘intervening circumstances exception,’” under which the discovery of a warrant
automatically attenuates an illegal seizure from evidence discovered in the search
incident to arrest. Although Strieff is correct that Green does refer to a warrant‐focused
“intervening circumstances exception,” see id. at 522–23, we do not read the decision as
elevating the discovery of a warrant to a supervening circumstance that eliminates any
attenuation analysis. Rather, the Green court considered all three prongs of the
attenuation analysis and decided that, on balance, they weighed against exclusion. See
id. at 521–23 (noting that although the illegal stop and the search were temporally
proximate, the warrant constituted an intervening circumstance and the record did not
reveal any bad faith on the part of the officers because, though inappropriate, “the
purpose of the stop was not to seek evidence against the [occupants]” or “to search the
automobile”). Its description of the rationale behind its decision to admit the evidence
as an “intervening circumstance exception” therefore appears to be a form of shorthand
used to describe a circumstance where the presence of a warrant tipped the balance
against suppression.7

7. Some courts have employed a warrant‐focused intervening circumstances exception
in the manner Strieff contends that Green did, that is, by treating the discovery of a
warrant as an independently sufficient basis to deny suppression in the face of an initial
illegality. None of them relied on Green as a basis for such a decision, however. See,
e.g., State v. Cooper, 579 S.E.2d 754, 758 (Ga. Ct. App. 2003) (stating, without regard for
the temporal proximity or the nature of the officers’ misconduct, that the officers’
intervening discovery of a warrant and arrest of the defendant attenuated the link
between the illegal detention and the evidence obtained); State v. Thompson, 438 N.W.2d
(continued...)

20100541‐CA 11
¶16 Indeed, the district court in the case before us did not appear to rely on Green as
the source of a new one‐step approach that treated discovery of a warrant as a per se
basis for denying the motion to suppress, as Strieff claims it did. Rather, the court
employed the three‐part attenuation analysis adopted by the Utah Supreme Court. In
its findings of fact, conclusions of law, and order denying Strieff’s motion to dismiss,
the district court identified the three factors of the attenuation analysis and then
separately considered each, assessing the relevant evidence and making a
determination about whether that factor weighed for or against suppression. Although
the court concluded that an arrest warrant constitutes an intervening circumstance, it
did not give this factor dispositive weight. Instead, the court, “[w]eighing the factors in
their totality,” determined “suppression to be an inappropriate remedy” because
“Officer Fackrell did not exploit the initial unlawful detention to search [Strieff’]s
person.” While the district court noted that Officer Fackrell “did not cause and could
not have anticipated” the arrest warrant, we do not read this statement to indicate that
the court believed that the warrant was sufficient on its own to attenuate the initial
illegal detention from the methamphetamine and paraphernalia discovered during the
search. Rather, it appears that the court considered the discovery of the warrant to be
an intervening circumstance that did not arise as the result of purposeful or flagrant
conduct by the officer and therefore provided a basis for the search that was not an
exploitation of the illegal detention. In other words, in the district court’s view, Officer
Fackrell did not deliberately detain Strieff in violation of his constitutional rights in the
hope of turning up a warrant that would then justify a search. Because we conclude

7. (...continued)
131, 137 (Neb. 1989) (determining, without considering the other two factors, that the
immediate discovery of a warrant for the defendant attenuated the taint of the illegal
stop and the identification of the defendant as a robbery suspect in a subsequent
lineup); cf. State v. Walker‐Stokes, 180 Ohio App. 3d 36, 2008‐Ohio‐6552, 903 N.E.2d 1277,
at ¶ 40 (“[B]ecause as a matter of law, an outstanding arrest warrant operates to deprive
its subject of the reasonable expectation of privacy the Fourth Amendment protects, the
exclusionary rule does not apply to the search and seizure of that subject that would
otherwise be illegal . . . .” (emphasis omitted)). But see State v. Gardner, 2d District No.
24308, 2011‐Ohio‐5692, at ¶¶ 37–38 (explaining that the discovery of the warrant must
be “removed, unrelated, unforseen, and independent from the unlawful stop and
seizure” for the evidence to be admissible), appeal allowed, 131 Ohio St. 3d 1483 (Ohio
Mar. 21, 2012).

20100541‐CA 12
that the district court employed the correct attenuation test, the question remaining is
whether the court properly analyzed the three required factors and reached an
appropriate conclusion.

B. The District Court Carried Out an Appropriate Attenuation Analysis.

¶17 In making its decision to deny Strieff’s motion to suppress, the district court
analyzed each of the required factors in the attenuation analysis and properly weighed
and balanced them. We discuss each factor in turn.

1. Temporal Proximity

¶18 Neither party takes issue with the district court’s finding that the time between
Officer Fackrell’s initial stop of Strieff and the search incident to arrest was “relatively
short.” Close temporal proximity generally favors suppression. See State v.
Shoulderblade, 905 P.2d 289, 293 (Utah 1995) (“A brief time lapse between a Fourth
Amendment violation and [the evidence obtained] often indicates exploitation because
the effects of the misconduct have not had time to dissipate.”). However,

[u]nlike the intervening circumstances and the purpose and
flagrancy factors, . . . temporal proximity does not directly
address the relationship between the police misconduct and
the . . . search but rather is a circumstance surrounding these
events. As a result, its relative probative value expands and
contracts depending on the particular facts of any given case.

State v. Newland, 2010 UT App 380, ¶ 14, 253 P.3d 71 (citation and internal quotation
marks omitted). Here, the proximity between the illegal detention and the search was
short because Officer Fackrell quickly became aware of a pending warrant, placed
Strieff under arrest, and searched him incident to that arrest. The significance of that
warrant as an intervening circumstance will ultimately affect how we view the relative
weight of temporal proximity in this case. Thus, while the temporal proximity factor
appears to weigh in favor of suppression, its effect on the overall balance among the
factors must be assessed within the broader factual context.

20100541‐CA 13
 2. Intervening Circumstances

¶19 The significance of a subsequently‐discovered arrest warrant in attenuating the
taint of an illegal detention presents an issue of first impression in Utah.

Case law from other state and federal courts[, however,]
uniformly holds that the discovery of an outstanding arrest
warrant prior to a search incident to arrest constitutes an
intervening circumstance that may—and, in the absence of
purposeful or flagrant police misconduct, will—attenuate
the taint of the antecedent unlawful [detention].

People v. Brendlin, 195 P.3d 1074, 1076 (Cal. 2008) (emphasis omitted).8

8. The California Supreme Court concludes that the jurisdictions that have considered
the issue have universally treated the discovery of an arrest warrant as an intervening
circumstance. Our independent research supports that conclusion, as none of the cases
we have located from jurisdictions that have addressed this question appear to have
adopted a contrary rule. See, e.g., United States v. Gross, 662 F.3d 393, 404 (6th Cir. 2011);
United States v. Simpson, 439 F.3d 490, 495–96 (8th Cir. 2006); United States v. Green, 111
F.3d 515, 522 (7th Cir. 1997); McBath v. State, 108 P.3d 241, 248 (Alaska Ct. App. 2005);
State v. Hummons, 253 P.3d 275, 278 (Ariz. 2011); People v. Brendlin, 195 P.3d 1074, 1080
(Cal. 2008), cert. denied, 129 S. Ct. 2008 (2009); People v. Hillyard, 589 P.2d 939, 941 (Colo.
1979) (en banc), questioned in dicta by People v. Padgett, 932 P.2d 810, 816 (Colo. 1997) (en
banc), discussed by People v. Martinez, 200 P.3d 1053, 1055 n.1 (Colo. 2009) (en banc)
(recognizing tension between Hillyard and dicta in Padgett but neither “address[ing] nor
resolv[ing] th[at] tension”); State v. Frierson, 926 So. 2d 1139, 1144 (Fla. 2006), cert. denied,
549 U.S. 1082 (2006); State v. Cooper, 579 S.E.2d 754, 758 (Ga. Ct. App. 2003); State v. Page,
103 P.3d 454, 459–60 (Idaho 2004); People v. Mitchell, 824 N.E.2d 642, 649 (Ill. App. Ct.
2005); State v. Martin, 179 P.3d 457, 462–63 (Kan. 2008), cert. denied, 555 U.S. 880 (2008);
Hardy v. Commonwealth, 149 S.W.3d 433, 436 (Ky. Ct. App. 2004); State v. Hill, 97‐2551, p.
8–9 (La. 11/6/98); 725 So. 2d 1282, 1287; Cox v. State, 916 A.2d 311, 323 (Md. 2007); People
v. Reese, 761 N.W.2d 405, 412 (Mich. Ct. App. 2008); State v. Grayson, 336 S.W.3d 138, 147
(Mo. 2011) (en banc); State v. Thompson, 438 N.W.2d 131, 137 (Neb. 1989); State v. Shaw,
2011 WL 2622375, *5 (N.J. Super. Ct. App. Div. 2011) (per curiam), cert. granted, 34 A.3d
(continued...)

20100541‐CA 14
¶20 To determine what role a subsequently‐discovered warrant should play in an
attenuation analysis under Utah law, we must first decide what constitutes an
intervening circumstance. “Intervening circumstances are events that create a clean
break in the chain of events” leading to the discovery of incriminating evidence.
Newland, 2010 UT App 380, ¶ 15. “Typically, the intervening circumstance which
dissipates the taint involves a voluntary act by the defendant, such as the voluntary
confession or consent to search given after an illegal search or seizure.” United States v.
Green, 111 F.3d 515, 522 (7th Cir. 1997); cf. United States v. Bailey, 691 F.2d 1009, 1017–18
(11th Cir. 1982) (“[T]he police may legally arrest a defendant for a new, distinct crime,
even if the new crime is in response to police misconduct and causally connected
thereto.”); State v. Earl, 2004 UT App 163, ¶¶ 24–25, 92 P.3d 167 (concluding that by
giving a false name and birth date, the defendant committed the crime of false
identification, which constituted an intervening illegal act justifying arrest). Strieff
encourages us to draw from this historical pattern a proscription on treating anything
other than a voluntary act by the defendant as an intervening circumstance. But the
focus of concern in determining whether evidence obtained following an illegal
detention ought to be suppressed is not necessarily the nature of the intervening
circumstance but rather on whether there is a sufficient separation between the initial

8. (...continued)
783 (N.J. 2011); State v. Soto, 2008‐NMCA‐032, ¶¶ 26–27, 143 N.M. 631, 179 P.3d 1239,
cert. granted, 143 N.M. 667 (N.M. Feb. 28, 2008) (No. 30,894), cert. quashed, 146 N.M. 728
(N.M. 2009); Gardner, 2011‐Ohio‐5692, at ¶ 37; Jacobs v. State, 2006 OK CR 4, ¶¶ 8–11, 128
P.3d 1085, 1088–89; Reed v. State, 809 S.W.2d 940, 947 (Tex. Ct. App. 1991); cf. State v.
Rothenberger, 440 P.2d 184, 185–86 (Wash. 1968) (concluding that the causal link between
a purportedly illegal arrest and discovery of evidence was broken by an outstanding
warrant under the related independent source doctrine).
The Indiana Court of Appeals, however, has a split of authority that has not yet
been reconciled, with one appellate court recognizing the discovery of a warrant as an
intervening circumstance and another rejecting that approach. Compare Quinn v. State,
792 N.E.2d 597, 600–01 (Ind. Ct. App. 2003) (considering the warrant to be an
intervening circumstance), with Sanchez v. State, 803 N.E.2d 215, 222–23 (Ind. Ct. App.
2004) (distinguishing Quinn and declining to treat the warrant as an intervening
circumstance), cert. denied, 812 N.E.2d 804 (Ind. 2004).

20100541‐CA 15
illegality and the subsequent discovery of the evidence to attenuate the discovery of the
evidence from the effects of the earlier police misconduct. See Wong Sun v. United States,
371 U.S. 471, 487–88 (1963). Often the circumstance that intervenes is some apparently
voluntary action by the person detained, but voluntariness is not a logically necessary
constraint on the attenuation doctrine; rather, any event that effectively breaks the chain
between the possibly coercive effects of the illegal stop on the free will of the person
detained and the discovery of the evidence can serve the purpose. Because the
discovery of a warrant sets in motion a legal process that can be entirely independent of
the lingering effects of the illegal stop, a warrant can be such an attenuating
circumstance.

¶21 “The discovery of an outstanding arrest warrant informs the law enforcement
officer that a magistrate has found there is probable cause to believe that a crime has
been committed and that the person subject to the warrant has committed the crime.”
State v. Moralez, 242 P.3d 223, 231 (Kan. Ct. App. 2010), review granted (Kan. 2011). In
other words, a warrant provides cause for an arrest based on facts separate from the
illegal detention and on the judgment of an official removed from the immediate
circumstances. See Reed v. State, 809 S.W.2d 940, 947 (Tex. Ct. App. 1991); accord Jacobs v.
State, 2006 OK CR 4, ¶ 9, 128 P.3d 1085, 1089 (“[D]iscovery of outstanding warrants is a
significant intervening event which gives police probable cause to arrest a defendant
independent from an illegal stop and seizure.”). Indeed, the court in United States v.
Green, 111 F.3d 515 (7th Cir. 1997), reasoned that there is “less ‘taint’” when an
outstanding arrest warrant intervenes than when the intervening circumstance is the
defendant’s voluntary act. See id. at 522. This is because once a warrant is discovered,
there is a legal basis for a search that does not require any choice by the defendant, such
as in the case of a confession or consent to search, that could be influenced by the
lingering effects of the initial illegality. See id. And while an illegal stop might create a
situation that could result in an actual crime, such as resisting arrest or disobeying a
police command, for which the person detained could be legally arrested and searched,
a search incident to arrest on an outstanding warrant does not stem from an act that
may have been provoked by the initial illegal detention. See id. Put differently, when
the officer does not conduct a search of the person until after the discovery of the
warrant, “[t]he challenged evidence [i]s thus the fruit of the outstanding warrant, and
[i]s not obtained through exploitation of the unlawful . . . stop.” See generally Brendlin,
195 P.3d at 1080. For these reasons, we agree with the courts of other jurisdictions that a

20100541‐CA 16
warrant is an intervening circumstance that ought to be considered in the attenuation
analysis.9

9. As Judge Thorne explains in his dissenting opinion, see infra ¶ 49 note 3, Utah courts
have historically considered intervening circumstances involving events that occur after
the initial police illegality and before the mechanism that leads to the discovery of the
controverted evidence. In those cases, the evidence‐producing mechanisms were
volitional acts, such as a consent to search, a statement or confession, or the commission
of a new crime. The dissent suggests that the warrant itself cannot be an intervening
circumstance, as other jurisdictions have treated it, but rather is another type of
mechanism by which evidence is discovered and is subject to taint by the initial
illegality, unless there are circumstances that intervene to cleanse that taint. We believe
that this criticism overlooks the function of the attenuation analysis in these
circumstances.
In cases involving evidence‐producing mechanisms that are volitional acts, the
courts have necessarily been concerned with what circumstances might have intervened
prior to the occurrence of the mechanism in order to be assured that the voluntary
nature of the mechanism was not tainted by the initial illegality. Intervening
circumstances, therefore, have traditionally included events that demarcate a separation
between the defendant’s voluntary act and any potential coercion stemming from the
police misconduct, such as the passage of time (an indicator so effective in gauging the
likelihood that the defendant’s acts were truly the product of free will that it has taken
its place as a separate factor in the attenuation analysis), a change of location,
notification of the rights to remain silent or to consult an attorney, events that affect the
dynamics of the relationship with law enforcement (such as an appearance before a
magistrate, a release from custody, or retention of counsel), and so on. See generally
State v. Newland, 2010 UT App 380, ¶ 15, 253 P.3d 71 (identifying some intervening
circumstances).
But when the mechanism of discovery, by its nature, is not subject to the
contaminating influence of unconstitutional police conduct, the taint analysis inherent
in the temporal proximity and intervening circumstances factors becomes far less
complicated. A warrant, for example, stands alone as a basis for an arrest and resulting
search. Thus, the kind of intervening events (passage of time, notification of rights,
release from custody, etc.) that are so important to assessing the validity of evidence‐
(continued...)

20100541‐CA 17
¶22 The discovery of a warrant, however, cannot by itself dissipate the taint of an
initial illegality because such a per se rule could “‘create[] a new form of police
investigation’ by routinely illegally seizing individuals, knowing that the subsequent
discovery of a warrant would provide after‐the‐fact justification for illegal conduct.”
State v. Hummons, 253 P.3d 275, 278 (Ariz. 2011) (alteration in original) (quoting United
States v. Gross, 624 F.3d 309, 320–21 (6th Cir. 2010)). Thus, treating a warrant as an
intervening circumstance does pose the potential for abuse, and we recognize that
blanket exclusion of the evidence, the result Strieff urges us to adopt, would act as a
deterrent to such conduct. The United States Supreme Court, however, has “never
suggested that the exclusionary rule must apply in every circumstance in which it
might provide marginal deterrence.” Herring v. United States, 129 S. Ct. 695, 700 (2009)
(internal quotation marks omitted). Rather, “[t]o trigger the exclusionary rule, police
conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is worth the price paid by the justice system.”
See id. at 702. We believe the purpose and flagrancy factor of the attenuation analysis
ensures that courts strike an appropriate balance in warrant discovery situations
between the benefits of deterrence of police misconduct and the cost to the justice
system when pertinent evidence is excluded. Thus, the third attenuation factor, the
“purpose and flagrancy of the official misconduct, dovetails with the [intervening
circumstances] factor,” and the “officers’ reasons for detaining the subject and the
flagrancy of the invasion on the subject’s privacy” are critical to the weight to be
accorded to the discovery of a warrant. State v. Martin, 179 P.3d 457, 463 (Kan. 2008).

9. (...continued)
producing mechanisms that are the product of volitional acts are not particularly
relevant. Hence, virtually all the attenuation cases in other jurisdictions refer to the
discovery of a warrant as itself an “intervening circumstance” (as do we), simply
recognizing that it establishes a valid basis for a search incident to arrest that is
inherently independent from the police illegality and therefore not subject to its taint.
See, e.g., Simpson, 439 F.3d at 495–96; Brendlin, 195 P.3d at 1080. In other words, the
discovery of a warrant is likely to resolve the contamination question—which is really
the central focus of the first two factors in the attenuation analysis—against
suppression. As we discuss next, where a valid arrest warrant is the intervening
circumstance, the third factor in the attenuation analysis, purpose and flagrancy, takes
on the greatest importance in determining whether suppression is appropriate.

20100541‐CA 18
 3. Purpose and Flagrancy

¶23 The purpose and flagrancy of the officer’s unlawful conduct that began the
encounter is the factor that most “‘directly relates to the deterrent value of
suppression.’” State v. Newland, 2010 UT App 380, ¶ 17, 253 P.3d 71 (quoting State v.
Thurman, 846 P.2d 1256, 1263 (Utah 1993)). This factor requires a court to assess
whether the officer’s conduct was both purposeful, that is, “‘the misconduct was
investigatory in design and purpose and executed in the hope that something might
turn up,’” and flagrant, meaning “‘the impropriety of the offic[er]’s misconduct was
obvious or the offic[er] knew, at the time, that his conduct was likely unconstitutional
but engaged in it nevertheless.’” See id. ¶ 20 (quoting United States v. Simpson, 439 F.3d
490, 496 (8th Cir. 2006)).

¶24 According to Strieff, the evidence demonstrates a quality of purposefulness and
flagrancy in Officer Fackrell’s actions that weighs in favor of excluding the
methamphetamine and paraphernalia evidence. In particular, he claims that Officer
Fackrell “wanted to search Strieff . . . so he illegally stopped . . . Strieff and searched for
[a warrant].” Thus, he asserts, the “opportunity to discover the warrant depended
entirely on the illegal detention.” The district court, however, found that Officer
Fackrell stopped Strieff for the legitimate purpose of investigating a suspected drug
house. It further found Officer Fackrell credible when he testified that he believed that
the information known to him at the time was sufficient to support a reasonable,
articulable suspicion to detain Strieff, a belief that later turned out to be mistaken.
Strieff has challenged the denial of the motion to suppress on the basis that the district
court applied the wrong legal standard but has not challenged these fact findings, and
we therefore must accept them as the district court found them. See generally C & Y
Corp. v. General Biometrics, Inc., 896 P.2d 47, 52 (Utah Ct. App. 1995) (stating that where
the party has not challenged the factual findings, appellate courts “must accept th[e]
finding[s] as true”). Furthermore, when the undisputed findings of fact are sufficient to
support the district court’s legal conclusions, the failure to challenge the findings is
usually a basis for upholding the resulting conclusions—in this case, the court’s
conclusion that “[t]he stop was not a flagrant violation of the Fourth
Amendment[; r]ather it was a good faith mistake on the part of the officer . . . .”
However, the issue of what weight to give a warrant as an intervening circumstance in
the attenuation analysis presents a novel question in Utah, and the purpose and

20100541‐CA 19
flagrancy factor plays an integral role in that determination because it functions as an
indispensable safeguard of the constitutional right to be protected from unlawful search
and seizure. For these reasons, we think it worthwhile to examine the facts pertinent to
the trial court’s assessment of purposefulness and flagrancy in the context of applicable
case law from other jurisdictions in order to clarify how the discovery of a warrant and
the purpose and flagrancy factors interrelate.

¶25 While it is true, as Strieff contends, that Officer Fackrell’s actions were
“investigatory in nature,” most detentions are, so the analysis cannot simply end there.
Indeed, the purpose and flagrancy factor does not treat investigatory intent as
presumptively weighing in favor of exclusion; rather, the focus is on the sort of
investigation that began as or has morphed into a fishing expedition conducted in
conspicuous disregard of constitutional boundaries, see Newland, 2010 UT App 380,
¶ 20. In other words, for the initial illegality to be deemed purposeful and flagrant,
Officer Fackrell’s detention of Strieff must have been “‘investigatory in design and
purpose and executed in the hope that something might turn up’” and “‘the
impropriety of the . . . misconduct [must have been] obvious or [he must have known],
at the time, that his conduct was likely unconstitutional but [he] engaged in it
nevertheless.’” See id. (quoting Simpson, 439 F.3d at 496); see also Random House, Inc.,
Dictionary.com Unabridged, available at www.dictionary.reference.com/browse/flagrant
(last visited August 27, 2012) (defining “flagrant” as “shockingly noticeable or evident;
obvious; glaring”).

¶26 That was not the case here. In detaining Strieff, Officer Fackrell was relying on
information that appeared reliable. The anonymous tip about drug activity had been
corroborated to some extent by the officer’s personal observations. Officer Fackrell
testified that, in his experience, short‐term traffic at the frequency he observed during
different times of day throughout the course of a week was “enough [to] raise[] . . .
suspicion” about drug activity at the house. He further testified that “everybody [he]
saw visiting the house” stayed “[j]ust a couple minutes” and he assumed that Strieff
was one of those short‐term visitors. Although this was a questionable assumption
given that he did not see Strief arrive, unreasonableness alone is not the hallmark of
purpose and flagrancy. “[A]ll Fourth Amendment violations are by definition unlawful
and therefore unreasonable. . . . ‘[U]nreasonableness itself does not suggest that [an
officer’s] conduct was obviously improper or flagrant or that he knew it was likely

20100541‐CA 20
unconstitutional.’” Newland, 2010 UT App 380, ¶ 20 (second and third alterations in
original) (quoting United States v. Herrera‐Gonzalez, 474 F.3d 1105, 1113 (8th Cir. 2007)).
In addition, Officer Fackrell testified that he stopped Strieff so that he could further
investigate what was going on inside the house. There is no indication in the record
that the officer stopped Strieff with the purpose of checking for outstanding warrants,
and the district court found that he did not target Strieff in knowing or obvious
disregard of constitutional limitations. Cf. People v. Mitchell, 824 N.E.2d 642, 650, 644 (Ill.
App. Ct. 2005) (affirming the suppression of drug evidence because “the sole apparent
purpose of the detention [wa]s to check for a warrant” where the officer “did not think
[the defendant] was involved in anything criminal”); State v. Soto, 2008‐NMCA‐032,
¶¶ 1–2, 27, 143 N.M. 631, 179 P.3d 1239 (affirming the suppression of evidence because
“[t]he purpose of the stop—to obtain information from [the d]efendant—was directly
related to [the d]efendant’s ultimate arrest”). Rather, the facts support the district
court’s conclusion that Officer Fackrell “did not cause and could not have anticipated”
discovery of the arrest warrant.

¶27 The court’s conclusion that Officer Fackrell’s conduct was neither purposeful nor
flagrant is further supported by the circumstances of the encounter as a whole. The
officer’s misconduct amounted to a misjudgment, one of constitutional proportion
certainly, but a single misstep over the constitutional boundary rather than a deliberate
transgression. See generally Rawlings v. Kentucky, 448 U.S. 98, 110 (1990) (stating that
conduct premised on an error about the officer’s authority “does not rise to the level of
conscious or flagrant misconduct requiring prophylactic exclusion” of evidence); People
v. Brendlin, 195 P.3d 1074, 1080 (Cal. 2008) (“[A] mere ‘mistake’ with respect to the . . .
law[] does not establish that the . . . stop was pretextual or in bad faith.”). Moreover,
from Strieff’s perspective, the degree of intrusion upon his rights, though real, was
relatively minor. Even without reasonable, articulable suspicion, Officer Fackrell could
legally have stopped Strieff and asked to see his identification, noted his name and date
of birth, and then run a warrants check while Strieff remained free to leave. See, e.g.,
State v. Hansen, 2002 UT 125, ¶ 34, 63 P.3d 650 (stating that there is no Fourth
Amendment seizure when an encounter is consensual, as evidenced by a person
voluntarily responding to noncoercive police questioning); State v. Deitman, 739 P.2d
616, 618 (Utah 1984) (per curiam) (concluding that no detention occurs when an officer
merely asks a defendant for identification and for an explanation of his or her activities).
Had a warrant then turned up, the officer would have had a constitutional basis for

20100541‐CA 21
detaining Strieff as well as a professional obligation to arrest him. The situation that
actually developed in this case is not so different as to suggest that the detention was
either a deliberate or glaring violation of Strieff’s constitutional rights or the result of
official indifference to them. And, although we accept the State’s concession that Strieff
was not free to leave because Officer Fackrell retained his identification, we note that
the furthest Officer Fackrell may have taken Strieff’s identification was to the officer’s
nearby vehicle. Recognizing that such a minimal encroachment does not justify a
Fourth Amendment violation, we nevertheless view the relatively slight intrusion as
support for the district court’s conclusion that Officer Fackrell was not acting
purposefully or flagrantly in detaining Strieff. See generally State v. Martin, 179 P.3d 457,
463–64 (Kan. 2008) (taking into account all the circumstances surrounding the officers’
encounter with the defendant, including the relatively minimal intrusion upon the
defendant’s privacy by engaging him in a brief conversation about his activities, to
conclude that the officer’s conduct was not purposeful). The purpose and flagrancy
factor therefore weighs against suppression.

4. Balancing the Attenuation Factors

¶28 Finally, we address whether the district court correctly concluded that the
methamphetamine and paraphernalia evidence discovered on Strieff was sufficiently
attenuated from the initial illegal detention. “This balancing [test] necessitates
consideration of all factors without giving any of them dispositive weight . . . [, but
recognizes that t]he factors . . . are not of mathematically equal importance.” State v.
Newland, 2010 UT App 380, ¶ 26, 253 P.3d 71 (first alteration in original) (internal
quotation marks omitted).

¶29 With respect to temporal proximity, we recognize that Strieff’s illegal detention
and the discovery of the drugs and paraphernalia in his possession occurred within a
very short time period. As we have noted, however, the facts of a case affect the
relative weight of the temporal proximity factor. Because temporal proximity is “a
circumstance surrounding the[] events,” its relative probative value contracts when the
facts demonstrate that temporal proximity had little or no bearing on the subsequent
conduct of the police or the defendant. See generally id. ¶ 14 (internal quotation marks
omitted). “In routine police encounters that lead to warrants checks, there is almost
always no temporal break between the initial detention and the subsequent discovery of

20100541‐CA 22
the evidence.” State v. Moralez, 242 P.3d 223, 231 (Kan. Ct. App. 2010), review granted
(Kan. 2011); accord Brendlin, 195 P.3d at 1079 (“[Short temporal proximity] is the typical
scenario in essentially every case in this area.” (internal quotation marks omitted)).
And temporal proximity is less significant in the case where the intervening
circumstance is discovery of a warrant because it “is not a voluntary act by the
defendant” susceptible to exploitation or contamination by the recent illegality. See
United States v. Simpson, 439 F.3d 490, 495 (8th Cir. 2006). We therefore conclude that
the short time between the illegal detention and the discovery of the evidence is of
relatively little weight under the circumstances of this case.

¶30 While temporal proximity has little effect on the analysis in cases involving
discovery of a warrant, the intervening circumstance and purpose and flagrancy factors
“dovetail” in a way that makes them mutually interdependent in the attenuation
analysis. See Martin, 179 P.3d at 463 (“The third factor, the purpose and flagrancy of the
official misconduct, dovetails with the second factor . . . .”). The Alaska Court of
Appeals has distilled the relationship between the two factors in the following way:

If, during a non‐flagrant but illegal stop, the police learn the
defendant’s name, and the disclosure of that name leads to
the discovery of an outstanding warrant for the defendant’s
arrest, and the execution of that warrant leads to the
discovery of evidence, the existence of the arrest warrant
will be deemed an independent intervening circumstance
that dissipates the taint of the initial illegal stop vis‐à‐vis the
evidence discovered as a consequence of a search incident to
the execution of the arrest warrant.

McBath v. State, 108 P.3d 241, 248 (Alaska Ct. App. 2005). The Louisiana Supreme Court
explained the relationship more directly: “Undoubtedly, had the officer[] not learned
the defendant’s name due to the initial stop, [he] would not have discovered the
outstanding arrest warrant[].” See State v. Hill, 97‐2551, p. 8–9 (La. 11/6/98); 725 So. 2d
1282, 1287. But, the court points out, reliance on this kind of simple “causal link . . . to
suppress evidence [is] directly contrary to the dictates of the United States Supreme
Court because a per se ‘but for’ causation test has been specifically rejected as a basis for
a decision to suppress evidence.” Id. (citing Brown v. Illinois, 422 U.S. 590, 603 (1975)).

20100541‐CA 23
In other words, not only are the “officer[’s] reasons for detaining [a defendant] and the
flagrancy of the invasion on . . . privacy” critical to the determination of the weight to be
given to the warrant, see Martin, 179 P.3d at 463, so too are the means by which it was
discovered, see McBath, 108 P.3d at 248.

¶31 A number of jurisdictions have recognized this principle. In Jacobs v. State, 2006
OK CR 4, 128 P.3d 1085, the Oklahoma Court of Criminal Appeals held that such an
approach “balances a defendant’s right against illegal search and seizure with the
community’s expectation that a valid arrest warrant may be served upon a subject, even
if police learned about the arrest warrant after an illegal stop.” Id. ¶ 11. By taking into
account the officer’s intent and conduct in detaining the defendant as a meaningful
factor in the analysis, the “rule [effectively] discourages police from flagrantly illegal,
investigatory seizures” because at some point, the gravity of the misconduct will tip the
balance in favor of suppression. Id. But, “[a]t the same time, [the approach] does not
attempt to punish police for mistakes or errors made in good faith[ because s]uch
punishment would be unlikely to deter police misconduct.” Id. The Florida Supreme
Court has described the interrelationship of concerns in another way, reasoning that
because a “search was incident to the outstanding warrant and not incident to the illegal
stop,” “[t]he illegality of the stop d[id] not affect the continuing required enforcement of
the court’s order that respondent be arrested” where the officer was mistaken in his
justification for stopping the defendant and did not act in bad faith or under pretext.
State v. Frierson, 926 So. 2d 1139, 1144 (Fla. 2006).

¶32 But, “[w]here the seizure is flagrantly or knowingly unconstitutional or is
otherwise undertaken as a fishing expedition, the purpose and flagrancy factor will
make it unlikely that the [state] would be able to demonstrate an attenuation of the taint
of the initial unlawful seizure” even when the officers discover a warrant. People v.
Brendlin, 195 P.3d 1074, 1081 (Cal. 2008). For example, “[i]f the purpose of an illegal
stop or seizure is to discover a warrant—in essence, to discover an intervening
circumstance—the fact that a warrant is actually discovered cannot validate admission
of the evidence that is the fruit of the illegality.” State v. Hummons, 253 P.3d 275, 278
(Ariz. 2011); see also Jacobs, 2006 OK CR 4, ¶ 11 (stating that when officers engage in
“flagrantly illegal, investigatory seizures,” the discovery of a warrant does not attenuate
the initial illegal detention). Such was the case in People v. Mitchell, 824 N.E.2d 642 (Ill.
App. Ct. 2005), where the Illinois Appellate Court upheld a lower court ruling that

20100541‐CA 24
suppressed evidence discovered pursuant to an arrest on an outstanding warrant found
during an illegal detention because when the officers encountered the defendant
walking around his neighborhood at 5:00 a.m., they were not “‘really looking for
anyone who committed a crime,’” nor did they believe that the defendant needed help
or was involved in criminal activity. See id. at 644. The court reasoned that the evidence
was not purged of the taint of the illegal detention because “the officers stopped
defendant for no apparent reason other than to run a warrant check on him,”
evidencing a “complete disregard of citizens’ rights to be ‘secure in their person.’” Id. at
649; see also State v. Soto, 2008‐NMCA‐032, ¶¶ 27–28, 143 N.M. 631, 179 P.3d 1239
(affirming the suppression of drug evidence where the officers “stopped [the
d]efendant on the basis of nothing other than the vague notion that they would obtain
[the d]efendant’s personal information from him [in case any crimes were committed
that night in that area], and without any further suspicion, . . . ran a warrant check on
him” because the reason for the stop “was directly related to [the d]efendant’s ultimate
arrest”).

¶33 In summary, the significance of a warrant discovered during an illegal detention
depends upon the nature of the officer’s intent and conduct in effecting the stop. The
purpose and flagrancy factor thus acts as a mechanism to ensure that abusive police
tactics are not legitimized by after‐the‐fact justification through the discovery of a valid
warrant.

¶34 This conclusion and the analysis that leads to it to means that we must reject
Strieff’s argument that the remedy that most effectively deters unconstitutional police
conduct while still permitting reasonable enforcement of the law is to allow a police
officer to arrest a person on an outstanding warrant that is discovered during an illegal
detention but to suppress any evidence seized during a search incident to that arrest.
Strieff’s proposal apparently arises from a statement in United States v. Green, 111 F.3d
515 (7th Cir. 1997), in support of treating a warrant as an intervening circumstance, that
“[i]t would be startling to suggest that because the police illegally stopped an
automobile, they cannot arrest an occupant who is found to be wanted on a warrant—in
a sense requiring an official call of ‘Olly, Olly, Oxen Free.’” Id. at 521. We agree with
Strieff that this statement in Green proposes a rationale for considering the warrant as an
intervening circumstance that makes little sense. It is simply unnecessary to invalidate
the arrest itself in order to create a deterrence for police misconduct in effecting the

20100541‐CA 25
initial detention. While deterrence would undoubtedly result, the societal cost clearly
would be too high to justify such a rule. Rather, the approach we have adopted here of
treating a warrant as an intervening circumstance that, in the absence of purposefulness
or flagrancy, attenuates the evidence seized from the initial illegality, is a more nuanced
and satisfactory approach that provides adequate deterrence while avoiding
unnecessarily heavy societal burdens.10

10. In his dissent, our colleague articulately highlights how treating a preexisting
warrant as an intervening circumstance that is free from the taint of the illegality creates
the potential for abuse. See infra ¶ 52 note 7. As noted above, we share these concerns
but respectfully disagree that exclusion is the only adequate remedy. As we explained,
a per se exclusionary rule in the case of a warrant seems to turn the attenuation analysis
on its head because it would always exclude evidence produced by a mechanism that is
not subject to contamination by the illegality of the initial encounter—a valid arrest
warrant—while treating in a more nuanced way mechanisms that are clearly
susceptible to such taint, such as voluntary statements or consents to search. The
dissent seems to see the more pristine status of a warrant as too much of a temptation to
police, who would not have to clear the “taint” hurdle in the case of a warrant that
complicates the path to admissibility of evidence produced by volitional mechanisms
such as consent.
We do not dispute that the potential for abuse exists, but that potential exists in
all circumstances that fall within the scope of the attenuation doctrine, which was
created to more finely balance the costs and benefits of exclusion of evidence in just
such complicated circumstances. Further, we believe that district court judges are
capable of applying that doctrine in a way that will appropriately constrain the
incentive and potential for abuse in the case of intervening warrants, just as we have
trusted them to do where the evidence is discovered as a result of a voluntary act by the
defendant. As we have explained, the purpose and flagrancy prong of the attenuation
analysis is aimed directly at deterrence of illegal official conduct, and judges are aware
of the potential for abuse and well positioned to scrutinize an officer’s explanation of
the basis of the stop and the attendant circumstances in order to make appropriate use
of the exclusionary rule. Certainly other courts have managed to effectively police the
boundaries established here. See, e.g., People v. Mitchell, 824 N.E.2d 642, 650, 644 (Ill.
App. Ct. 2005) (affirming the suppression of drug evidence because “the sole apparent
(continued...)

20100541‐CA 26
¶35 Moreover, we are not persuaded that there is sufficient justification for
automatically separating the arrest from the evidence seized incident to that arrest
under such circumstances. Rather, the general presumption is that if an arrest is lawful
under the constitution, then any evidence that is discovered as a result of that arrest is
admissible. See generally United States v. Bailey, 691 F.2d 1009, 1018 (11th Cir. 1982)
(stating that even in the context of an illegal detention, the identification of a lawful
reason to arrest a suspect is grounds for effecting the arrest and conducting a search
incident to the arrest, the evidence of which may be used against the suspect). A rule of
automatic suppression is no more desirable or necessary than a rule that automatically
cleanses evidence found incident to arrest on a warrant from the taint of the initial
illegality. Rather, the attenuation doctrine provides a sufficient mechanism for sorting
through the circumstances so as to reach a principled conclusion as to whether
suppression of evidence is appropriate under the facts of each case.

¶36 We now consider the interrelationship of the intervening circumstance and
purpose and flagrancy factors in Strieff’s case. The district court found that Officer
Fackrell mistakenly believed he had reasonable, articulable suspicion to detain Strieff
and that his discovery of the warrant was not a deliberate exploitation of the unlawful
detention. The only information obtained from Strieff necessary to locate the warrant
was his name and date of birth. Although this information was learned during an
encounter later deemed to be illegal, it was sought as a matter of course, rather than
being the purpose of the stop itself. Most importantly, the search which yielded the
methamphetamine and paraphernalia evidence occurred incident to a lawful arrest
required by an outstanding arrest warrant. See generally Brendlin, 195 P.3d at 1080
(stating that where a search is not undertaken until a warrant is discovered, the
discovered “evidence was . . . the fruit of the outstanding warrant, and was not

10. (...continued)
purpose of the detention [wa]s to check for a warrant” where the officer “did not think
[the defendant] was involved in anything criminal”); State v. Soto, 2008‐NMCA‐032,
¶¶ 27–28, 143 N.M. 631, 179 P.3d 1239 (affirming the suppression of evidence because
“[t]he purpose of the stop—to obtain information from [the d]efendant—was directly
related to [the d]efendant’s ultimate arrest”). We believe the courts of this jurisdiction
to be equally up to the task.

20100541‐CA 27
obtained through exploitation of the” illegality). The discovery of the warrant and
resulting discovery of the evidence thus were not the product of the officer’s
exploitation of the initial illegality. See McBath v. State, 108 P.3d 241, 248 (Alaska Ct.
App. 2005) (“If, during a non‐flagrant but illegal stop, the police learn the defendant’s
name, and the disclosure of that name leads to the discovery of an outstanding warrant
for the defendant’s arrest, and the execution of that warrant leads to the discovery of
evidence, the existence of the arrest warrant will be deemed an independent intervening
circumstance that dissipates the taint of the initial illegal stop vis‐à‐vis the evidence
discovered as a consequence of a search incident to the execution of the arrest
warrant.”); State v. Hill, 97‐2551, p. 8–9 (La. 11/6/98); 725 So. 2d 1282, 1287 (same, citing
Brown v. Illinois, 422 U.S. 590, 603 (1975), for the proposition that the Supreme Court has
rejected a “but for” test as a basis for suppressing evidence).

¶37 Because the temporal proximity factor has relatively little weight and the other
two factors weigh in favor of admitting the drug evidence discovered while conducting
a search incident to Strieff’s arrest, we conclude that the district court properly weighed
and balanced the attenuation factors and appropriately denied Strieff’s motion to
suppress.

CONCLUSION

¶38 When a person is illegally detained, the discovery of a warrant is an intervening
circumstance that may eliminate the taint of the initial illegality from the evidence
discovered incident to the arrest on that warrant. The significance of the warrant,
however, depends upon the nature of the officer’s intent and conduct in effecting the
stop. The purpose and flagrancy factor therefore acts as a mechanism to ensure that
abusive police tactics are not legitimized by after‐the‐fact justification through the
discovery of a valid warrant.

¶39 Here, the discovery of the preexisting warrant was an intervening circumstance
that, coupled with the absence of purposefulness and flagrancy on the part of Officer
Fackrell in detaining Strieff, sufficiently attenuated the initial illegal detention from the
methamphetamine and drug paraphernalia found during the search incident to arrest

20100541‐CA 28
on the outstanding warrant. We therefore affirm the district court’s denial of the
motion to suppress.

____________________________________
Stephen L. Roth, Judge

‐‐‐‐‐

¶40 I CONCUR:

____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge

‐‐‐‐‐

THORNE, Judge (dissenting):

¶41 I respectfully dissent from the majority opinion. Although the majority opinion
marshals an impressive body of case law from other jurisdictions in support of its
analysis, I disagree with its ultimate conclusion that suppression of the evidence in this
case is not necessary to deter police misconduct. I believe that this case is most
appropriately analyzed under State v. Topanotes, 2003 UT 30, 76 P.3d 1159, a Utah
Supreme Court case with remarkably similar factual underpinnings that strongly
suggests that suppression is required here.

¶42 In Topanotes, two police officers had gone to the home of a recently‐arrested
prostitute to confirm her actual residence. See id. ¶ 2. While there, the officers
encountered a woman—Topanotes—who matched a description of someone else who

20100541‐CA 29
allegedly lived at the house. See id. Although the officers had no reasonable suspicion
or probable cause regarding Topanotes, they nevertheless “stopped her and asked for
identification” and then “perform[ed] a warrants check as part of ‘routine procedure’ or
‘common practice’” while retaining Topanotes’s identification card. See id. When the
warrants check revealed outstanding warrants for Topanotes, the officers arrested her,
searched her incident to arrest, and discovered heroin on her person. See id. ¶ 3. The
Utah Supreme Court ultimately held that the heroin should be suppressed despite the
existence of the warrants. See id. ¶ 22.

¶43 I find the factual situations in the instant case and Topanotes to be
indistinguishable for purposes of a Fourth Amendment attenuation analysis. In both
cases, the defendants were on foot when they were stopped and asked for identification
without reasonable suspicion or probable cause. In both cases, the police then illegally
detained the individuals by retaining their identification cards while performing
routine warrants checks.1 And in both cases, the police found outstanding warrants,
arrested the defendants on the warrants, searched them incident to their arrests, and
found contraband in their possession.

1. The majority opinion states, “Even without reasonable, articulable suspicion, Officer
Fackrell could legally have stopped Strieff and asked to see his identification, noted his
name and date of birth, and then run a warrants check while Strieff remained free to
leave.” See supra ¶ 27. So long as such a “stop” and request for identification was
entirely voluntary on Strieff’s part, I agree with the majority’s statement. See generally
State v. Hansen, 2002 UT 125, ¶ 34, 63 P.3d 650 (stating that there is no Fourth
Amendment seizure when an encounter is consensual). Here, however, even if Strieff
had been free to ignore Officer Fackrell’s questions and request for identification,
Fackrell clearly detained Strieff for Fourth Amendment purposes when he conducted a
warrants check while retaining Strieff’s identification card. See generally Salt Lake City v.
Ray, 2000 UT App 55, ¶ 17, 998 P.2d 274 (“Consequently, although Ray was not seized
by Officer Eldard’s original request for identification, this level one encounter escalated
into a level two stop when Eldard retained Ray’s identification while running the
warrant check. During this time a reasonable person would not have felt free to
leave.”).

20100541‐CA 30
¶44 What does distinguish Topanotes from this case is the specific legal doctrine at
issue. In Topanotes, the State argued for application of the inevitable discovery doctrine,
which “enables courts to look to the facts and circumstances surrounding the discovery
of the tainted evidence and asks whether the police would have discovered the
evidence despite the illegality.” See id. ¶ 14. In this case, we are called upon to apply
the related doctrine of attenuation, whereby evidence that is derivative of an illegal
search or seizure will not be suppressed if obtained “by means sufficiently
distinguishable to be purged of the primary taint.” Wong Sun v. United States, 371 U.S.
471, 488 (1963). These two exceptions to the exclusionary rule—along with a third
exception, the independent source doctrine—are “closely related but analytically
distinct.” See United States v. Terzado‐Madruga, 897 F.2d 1099, 1113 (11th Cir. 1990).

¶45 Even in light of the distinct legal doctrines involved, however, Topanotes’s
inevitable discovery analysis remains potent authority for the “closely related”
attenuation analysis at issue in the present case, see id., particularly considering the
nearly identical factual circumstances in the two cases. Reviewing the Topanotes
analysis, it is clear that the supreme court made rulings that are applicable to each of the
three attenuation factors employed by the majority in this case. Examining those three
factors in light of Topanotes leads me to the inevitable conclusion that the evidence in
this case should be suppressed.

¶46 As noted above, the district court in this case relied on the doctrine of attenuation
to determine that the evidence against Strieff need not be suppressed notwithstanding
its discovery after Strieff’s illegal detention. Utah courts have adopted a three‐part test
to determine when attenuating circumstances will purge evidence or statements from a
prior illegality by police. See State v. Arroyo, 796 P.2d 684, 691 n.4 (Utah 1990) (adopting
“‘temporal proximity of the arrest and the confession, the presence of intervening
circumstances,’” and “‘the purpose and flagrancy of the official misconduct’” as
relevant factors in determining whether exploitation of police illegality has occurred
(quoting Brown v. Illinois, 422 U.S. 590, 603–04 (1975)). In the context of a warrant
discovered after an illegal detention, the attenuation test considers the temporal
proximity of the initial illegality to the discovery of the warrant, the presence of
intervening circumstances, and the purpose and flagrancy of the illegal misconduct. Cf.
State v. Newland, 2010 UT App 380, ¶¶ 11–26, 253 P.3d 71 (applying the three‐part
attenuation test in the context of consent following an illegal search).

20100541‐CA 31
¶47 As to the first prong of this test, the majority opinion adopts the district court’s
finding that the time that had elapsed from Strieff’s illegal detention to the discovery of
the warrant and the resulting search incident to his arrest was “relatively short.” Since
the discovery of the warrant had actually occurred during Strieff’s illegal detention, I
would go further and characterize the warrant discovery and the illegal detention as
contemporaneous. Cf. State v. Topanotes, 2003 UT 30, ¶ 19, 76 P.3d 1159 (stating that “the
warrants check [was] performed contemporaneously with the illegal detention”).
Nevertheless, the majority and I are in agreement that the first prong of the attenuation
test weighs in favor of suppression.

¶48 I do, however, disagree with the majority’s conclusion that the contemporaneous
nature of the detention and the discovery of Strieff’s warrant is “of relatively little
weight under the circumstances of this case.” See supra ¶ 29. As a purely practical
matter, the contemporaneous nature of the detention and the warrant check deprived
Strieff of the opportunity to leave the scene or terminate the otherwise “voluntary”
encounter.2 Cf. id. ¶ 20 (“We find ‘most unrealistic’ the assumption that Topanotes
would have waited for the police to check for warrants and arrest her with heroin in her
possession even if she had not been unlawfully detained.”). The temporal confluence of
the illegal detention and the warrants check thus played a very direct role in the
discovery of the warrant and the ultimate discovery of the contraband.

¶49 As to the second attenuation factor, I acknowledge that other courts have
determined that the discovery of an arrest warrant constitutes an “intervening
circumstance” for purposes of an attenuation analysis. See, e.g., People v. Brendlin, 195
P.3d 1074, 1076 (Cal. 2008). However, under Utah law, there is nothing intervening

2. The law surrounding level one consensual encounters assumes that a person retains
the right to terminate the encounter and thereby end his or her contact with police. See
Hansen, 2002 UT 125, ¶ 34 (“A level one citizen encounter with a law enforcement
official is a consensual encounter wherein a citizen voluntarily responds to non‐coercive
questioning by an officer. Since the encounter is consensual, and the person is free to
leave at any point, there is no seizure within the meaning of the Fourth Amendment.”
(citation omitted)).

20100541‐CA 32
about the discovery of Strieff’s warrant. “Intervening circumstances are events that
create a clean break in the chain of events between the misconduct and the [discovery of
a warrant].” Newland, 2010 UT App 380, ¶ 15 (internal quotation marks omitted).3
Officer Fackrell’s discovery of Strieff’s warrant was no “clean break in the chain of
events,” see id., but rather was the natural and immediate result of Officer Fackrell
illegally detaining Strieff and calling in a warrants check during that detention. Under
similar circumstances, the Utah Supreme Court has intimated as much. See Topanotes,
2003 UT 30, ¶ 19 (“There must be some other circumstance, something outside the
warrants check performed contemporaneously with the illegal detention, supporting
inevitable discovery ‘to prevent the inevitable discovery exception from swallowing the

3. State v. Newland, 2010 UT App 380, 253 P.3d 71, like many other Utah attenuation
cases, arose in the context of consent to search given after an initial illegality. In my
utilization of the quotation of Newland, I have altered the original word “consent” to
reflect the circumstances of this case, the “discovery of a warrant.” My choice of these
words is deliberate and, I believe, appropriate, but it does have substantive implications
for the intervening circumstances determination—obviously, if the “discovery of a
warrant” is the event that must be preceded by intervening circumstances, then that
same discovery cannot itself be the intervening circumstance that satisfies the
attenuation test. However, my formulation is consistent with Newland and Utah’s other
consent cases, which do not treat the consent as an intervening circumstance between
the initial illegality and the ultimate search. Rather, those cases look for circumstances
intervening between the illegality and the consent itself. See, e.g., Hansen, 2002 UT 125,
¶ 68 (“Next, we consider whether there were any intervening factors between [the]
misconduct and Hansen’s consent that may have mitigated the illegality. Intervening
circumstances may include such events as an officer telling a person he or she has the
right to refuse consent or to consult with an attorney.”); State v. Thurman, 846 P.2d 1256,
1274 (Utah 1993) (addressing consent obtained via a form that informed the defendant
of his “constitutional right not to have a search made of the premises described below
without a search warrant” and his “right to refuse to such a search”); Newland, 2010 UT
App 380, ¶ 15 (discussing the types of circumstances that can intervene “between the
misconduct and the . . . consent” (omission in original) (internal quotation marks
omitted)).

20100541‐CA 33
exclusionary rule.’” (emphasis added)). In similar fashion, I see no intervening
circumstances between the initial illegality here and the discovery of Strieff’s warrant.4

¶50 I also conclude that the third attenuation factor—whether Officer Fackrell’s
illegal conduct was “purposeful or flagrant,” see State v. Newland, 2010 UT App 380,
¶ 20, 253 P.3d 71—favors suppression in this case. I simply cannot agree with the
majority opinion that “[t]here is no indication in the record that the officer stopped
Strieff with the purpose of checking for outstanding warrants.” See supra ¶ 26. To the
contrary, Fackrell detained Strieff by retaining his identification while Fackrell called in
a warrants check. Fackrell’s intent in conducting this warrants check was, presumably,
to determine if Strieff had any outstanding warrants. See generally State v. Sisneros, 631
P.2d 856, 859 (Utah 1981) (“[A] person is presumed to intend the natural and probable
consequences of his acts.” (internal quotation marks omitted)). Thus, regardless of
Fackrell’s motivation for initially approaching Strieff,5 his detention of Strieff while
conducting a warrants check was clearly purposeful behavior intended to discover the
very warrant that led to Strieff’s arrest and search.

4. There conceivably could be instances where a warrant would not have been
discovered but for some police illegality and yet the resulting arrest is attenuated by
intervening circumstances. Suppose, for example, that Officer Fackrell illegally
detained Strieff for ten minutes of questioning but did not determine his identity or
discover the warrant. Then suppose that, shortly thereafter, Strieff was waiting to cross
a street and was recognized by a second officer who was driving by and was aware of
Strieff’s warrant. Strieff’s release by Officer Fackrell and the happenstance of his
subsequent encounter with the second officer would strike me as intervening
circumstances between the illegal detention and the discovery of the warrant—even
though, but for the illegal detention, Strieff would not have been waiting at that
particular intersection when the second officer drove by and recognized him as wanted
on a warrant.

5. Officer Fackrell initially stopped Strieff because Strieff had just left a suspected drug
house. This suggests to me that Fackrell’s stop of Strieff was motivated not only by a
desire to learn more about the activities occurring at the house but also by a desire to
investigate Strieff personally as a potential drug purchaser.

20100541‐CA 34
¶51 Further, “‘purpose and flagrancy’ [is] the most significant factor in a suppression
analysis because it ‘directly relates to the deterrent value of suppression.’” Newland,
2010 UT App 380, ¶ 17. In Topanotes, the supreme court determined under similar
circumstances that “[a]llowing the evidence in this situation would provide no
deterrent at all to future unlawful detentions.” See 2003 UT 30, ¶ 19. The clear import
of this statement, taken in context, is that suppressing the evidence would deter similar
future police misconduct.6 Given the direct relationship between deterrence and the
purposefulness and flagrancy of police misconduct, the supreme court’s holding that
suppression would serve a deterrent purpose under these circumstances seems to me to
be an implicit recognition that this type of police misconduct is purposeful or flagrant
for purposes of an attenuation analysis and is therefore a proper subject for deterrence.
See generally State v. Thurman, 846 P.2d 1256, 1263–64 (“[I]f the police had no ‘purpose’
in engaging in the misconduct . . . suppression would have no deterrent value.”).

¶52 The majority opinion does reflect a great effort to draw some line protecting the
public from purposeful or flagrant police abuse of warrants checks, and I applaud that
effort. However, I cannot agree with the majority’s conclusion that whether
suppression is appropriate in any given circumstance “depends upon the nature of the
officer’s intent and conduct in effecting the stop.” See supra ¶ 33.7 Warrants do not
reveal themselves, and they are generally only discovered when the police affirmatively
look for them. When such an intentional warrants check takes place during an illegal
detention, it is inevitably the case, at least in my opinion, that the detention has been
purposefully exploited to discover the warrant and that evidence discovered in a

6. I note that the warrants check in Topanotes was conducted “as part of ‘routine
procedure’ or ‘common practice.’” See State v. Topanotes, 2003 UT 30, ¶ 2, 76 P.3d 1159.

7. Indeed, such a standard seems to me to practically invite police officers to routinely
make illegal stops and warrants checks so long as some other reason for the stop can be
articulated. Under the majority’s rule, the articulated reason need not satisfy the Fourth
Amendment’s requirements for a legal stop but must only establish some reason for the
stop other than a bare desire to check for warrants. The ease with which this standard
could be satisfied by all but the most unimaginative police officers would, as a practical
matter, provide an incentive for police officers to make illegal stops and warrants
checks as a matter of routine.

20100541‐CA 35
contemporaneous search incident to arrest on the warrant should be suppressed to
deter such a practice.

¶53 In sum, I would conclude that all three of the attenuation factors weigh in favor
of suppression in this case and I would reverse the district court and suppress the
evidence found during the search incident to Strieff’s arrest. I reach this conclusion in
the face of the many warrant‐discovery cases from other jurisdictions, as cited in the
majority opinion, that have decided to the contrary—not to mention the carefully
constructed analysis of the majority opinion itself. Nevertheless, I just cannot get
around the fact that the evidence in this case was discovered as a direct result of police
misconduct and that, without suppression, there will be no deterrence of similar
misconduct in future encounters between pedestrians and police.

¶54 Ultimately, I agree with the majority that the attenuation analysis in these
circumstances involves a “balancing of the mutual concerns of discouraging police
conduct that results in the illegal detention of a citizen, while recognizing the legitimate
interest of the [S]tate in enforcing outstanding arrest warrants.” See State v. Frierson, 926
So. 2d 1139, 1145–46 (Fla. 2006) (Anstead, J., concurring). However, the State’s primary
and laudable interest in enforcing arrest warrants is to get those persons named therein
into custody to answer for the charges underlying the warrants.8 As to this primary
interest, I see little room for balancing. Whenever an arrest warrant is
discovered—however it is discovered—it is proper for police to arrest the person
named in the warrant. See, e.g., United States v. Green, 111 F.3d 515, 521 (7th Cir. 1997)
(“It would be startling to suggest that because the police illegally stopped an
automobile, they cannot arrest an occupant who is found to be wanted on a warrant—in
a sense requiring an official call of ‘Olly, Olly, Oxen Free.’”).

¶55 Many courts seem to end the attenuation analysis there, reasoning that because
searches are allowed incident to arrest, then a valid arrest necessarily means a valid
search. See, e.g., id. (“Because the arrest is lawful, a search incident to the arrest is also
lawful.”). However, I am completely comfortable with decoupling the validity of the
arrest from the admissibility of the resulting evidence for purposes of the Fourth

8. By contrast, searches incident to arrest are just that—incidental.

20100541‐CA 36
Amendment analysis.9 To me, the only question is whether suppression will reach back
past the warrant to deter the police illegality that led to the warrant’s discovery. In the
instant case, suppression would give police an incentive to ensure that they have
adequate grounds to stop citizens on the street and would ultimately deter similar
illegal detentions. Under these circumstances, I have little trouble in concluding that
the balancing of interests shifts squarely in favor of suppression of the evidence,10 while
leaving the validity of the arrest based upon the warrant untouched.

¶56 In any event, I remain convinced that, for purposes of Utah law, my evaluation
of the attenuation factors is supported by State v. Topanotes, 2003 UT 30, 76 P.3d 1159. I
simply cannot read that case and surmise that the Utah Supreme Court would have
allowed the evidence discovered in these circumstances if only the State had urged the
attenuation doctrine instead of the “closely related” inevitable discovery doctrine. See
United States v. Terzado‐Madruga, 897 F.2d 1099, 1113 (11th Cir. 1990). Unless and until
the Utah Supreme Court revisits Topanotes, the nearly identical factual situations
between that case and this one suggest that Topanotes is extremely persuasive, if not
binding, authority on the suppression issue in this case. Accordingly, I must dissent

9. In a sense, this situation is analogous to a double hearsay problem where an
exception cures one instance of hearsay but not the other. Cf. State v. Schreuder, 726 P.2d
1215, 1231 n.1 (Utah 1986) (“[D]ouble hearsay is admissible if both aspects qualify under
an exception to the hearsay rule . . . .” (Stewart, J., concurring in result)). Officer
Fackrell could neither detain Strieff without reasonable suspicion nor arrest him
without probable cause. The warrant cures any probable cause problem, but we are left
with the illegal detention. As with double hearsay, I would not allow the evidence
unless both impediments to admissibility are removed.

10. I note that certain types of evidence—e.g., a defendant’s DNA, scars, or tattoos—are
permanent enough in nature that they could reasonably be expected to be discovered
whenever the defendant would eventually be arrested on a warrant. Such evidence is
therefore not the sole product of the illegal discovery of the warrant at a particular time
and place because it would inevitably be discovered whenever the warrant was
executed. Accordingly, I would likely not suppress such evidence, even when a
defendant is arrested on a warrant discovered through an illegal detention. The drug
evidence at issue in this case is not this type of evidence.

20100541‐CA 37
from the majority opinion, and I would reverse the district court’s suppression ruling
and Strieff’s convictions below.

____________________________________
William A. Thorne Jr., Judge

20100541‐CA 38