State v. Moralez

Malone, J.:

Joseph Moralez appeals his conviction of possession or control of a hallucinogenic drug. Moralez claims the district court erred by denying his motion to suppress the evidence. Specifically, Moralez claims that he was unlawfully seized by law enforcement officers and that the discovery of an outstanding warrant did not purge the taint of the unlawful police conduct. We conclude that even if Moralez was unlawfully detained by the law enforcement officers, the subsequent good-faith discovery of the arrest warrant purged the taint of the unlawful conduct and justified the search incident to the arrest.

On August 25, 2007, at 2:48 a.m., Topeka Police Officer Damon Whisman was on routine patrol when he noticed a parked vehicle with its lights on and he stopped to investigate. Whisman discov*1080ered that the vehicle had an expired 30-day tag. Officer Mark Hilt arrived at the scene shortly thereafter in a separate vehicle. While Whisman and Hilt were looking at the parked vehicle, Moralez came out onto a second-floor balcony of a nearby apartment and asked the officers what they were doing. Whisman asked Moralez if the vehicle belonged to him. Moralez tried to discuss the vehicle with Whisman from the balcony, but eventually Moralez came down to the parking lot because he and Whisman were having a hard time hearing.

In the parking lot, Whisman asked Moralez who owned the vehicle, and Moralez said the owner was Melody Legate, who was upstairs in the apartment. Moralez testified that he offered to get Legate, but the officers asked him not to go anywhere. Whisman denied that the officers asked Moralez to stay. In any event, Moralez testified that he felt free to leave, regardless of the officers’ request that he stay. Whisman also testified that he considered Moralez free to leave at that point, although he never conveyed this belief to Moralez.

Within a few minutes, Legate came down to the parking lot and discussed the expired tag with Whisman. Moralez was not part of this conversation but stayed close by. Whisman then asked Legate and Moralez to provide identification. Whisman testified that he asked Moralez for his identification just to document him as a witness. Whisman testified that if Moralez had denied his request for identification or had refused to give his name, there was nothing that he would have done. Moralez provided Whisman with a Kansas identification card, and Legate provided her Kansas driver’s license.

For no stated reason, Whisman checked both identifications for warrants, and the dispatcher informed him that Moralez possibly had a county warrant. When Whisman found out there was a possible warrant on Moralez, he told him to “stay right there” until the warrant could be confirmed. Whisman testified it is his responsibility as a law enforcement officer to arrest any person who is the subject of a confirmed warrant. The dispatcher confirmed the warrant, and Whisman arrested Moralez at 3:04 a.m. Upon being arrested, Moralez indicated to Whisman that he had a bag *1081of marijuana in his right front pocket. Whisman searched Moralez incident to the arrest and seized the marijuana from his pocket.

The State charged Moralez with one count of possession or control of a hallucinogenic drug. Moralez filed a motion to suppress the marijuana and the statements he made in relation to the marijuana, claiming that the search violated his rights under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights. After hearing testimony from Whisman and Moralez, the district court denied the motion to suppress. The district court found that the encounter between Moralez and the law enforcement officers was voluntary. The district court also found that even if Moralez was unlawfully detained, the subsequent discovery of the arrest warrant purged the taint of the unlawful detention because the officers’ conduct was not flagrant.

The case proceeded to a bench trial, and Moralez renewed his objection to the admission of the evidence. The district court overruled the objection and found Moralez guilty as charged. The district court sentenced Moralez to 13 months’ imprisonment, with probation and mandatory drug treatment. Moralez timely appealed his conviction.

On appeal, Moralez claims the district court erred by denying his motion to suppress the evidence. When reviewing the denial of a motion to suppress evidence, an appellate court reviews the factual findings underlying the district court’s decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those factual findings by a de novo standard. The appellate court does not reweigh the evidence. State v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009).

Moralez makes two contentions on appeal. First, Moralez claims that his encounter with the law enforcement officers was an unlawful detention rather than a voluntary encounter. Second, Moralez claims that the discovery of the outstanding warrant during his unlawful detention did not purge the taint of the unlawful police conduct. We will examine these contentions in turn because if we conclude the encounter between Moralez and the officers was *1082voluntary, we do not need to address whether the discovery of the warrant purged the taint of unlawful police conduct.

Moralez’ Encounter with the Law Enforcement Officers

Moralez first claims that his encounter with the law enforcement officers was an unlawful detention rather than a voluntary encounter. Although Moralez testified that he felt free to leave, he argues that under the totality of the circumstances the conduct of the officers would not have conveyed to a reasonable person that he was free to end the encounter and leave.

We will begin by setting forth the applicable constitutional provisions. The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Section 15 of Kansas Constitution Bill of Rights contains similar language and “provides protections identical to that provided under the Fourth Amendment to the United States Constitution.” State v. Morris, 276 Kan. 11, 17, 72 P.3d 570 (2003).

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

Courts have struggled with the delineation between a voluntary encounter and an investigatory detention. In a voluntary encounter, the citizen is always free to leave or terminate the encounter. *1083State v. McKeown, 249 Kan. 506, 509, 819 P.2d 644 (1991). “[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen.” Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). In a voluntary encounter, the officer can ask the individual’s name and request identification but cannot force the individual to answer. McKeown, 249 Kan. at 509. A voluntary encounter is not considered a seizure and does not require the officer to have reasonable suspicion of criminal activity. State v. Young, 37 Kan. App. 2d 700, 704, 157 P.3d 644 (2007). Conversely, a person is seized when there is a show of authority which, in view of all the circumstances surrounding the incident, would communicate to a reasonable person that he or she is not free to leave and the person submits to the show of authority. Morris, 276 Kan. at 18-19. A seizure requires the officer to have reasonable suspicion of criminal activity. Young, 37 Kan. App. 2d at 704.

Law enforcement interaction with a citizen is consensual, not a seizure, if under the totality of the circumstances the officer’s conduct conveys to a reasonable person that he or she is free to refuse the officer’s requests or otherwise end the encounter. State v. McGinnis, 290 Kan. 547, Syl. ¶ 3,223 P.3d 246 (2010). In applying the totality of the circumstances test in a Fourth Amendment context, no one factor is legally determinative, dispositive, or paramount. The outcome does not turn on the presence or absence of a single controlling or infallible touchstone and requires careful scrutiny of all the surrounding circumstances. 290 Kan. 547, Syl. ¶ 5. Because the determination of whether a reasonable person would feel free to terminate an encounter or refuse to answer questions is fact-driven, no list of factors can be exhaustive or exclusive. 290 Kan. 547, Syl. ¶ 6.

Under the test for determining whether a reasonable person would feel free to refuse an officer’s requests or otherwise end a police-citizen encounter, an objective standard is applied. The citizen’s subjective state of mind is not a relevant factor. State v. Thompson, 284 Kan. 763, 809-10, 166 P.3d 1015 (2007). Likewise, *1084the subjective intent of a law enforcement officer is relevant to an assessment of the officer s conduct only to the extent that such intent has been conveyed to the citizen. 284 Kan. at 807.

Returning to our facts, Moralez initiated his contact with the law enforcement officers. Whisman asked Moralez for his identification in order to document him as a witness. Whisman testified that if Moralez had denied his request for identification or had refused to give his name, there was nothing he would have done. These factors support a conclusion that the encounter was voluntary. On the other hand, Moralez points to the evidence that there were two officers involved, that they did not inform him of his right to end the encounter, and that they held his identification card while checking for outstanding warrants. These factors support a conclusion that under an objective standard, a reasonable person would not have felt free to refuse the officers’ requests or otherwise end the encounter. If Moralez was being objectively detained by the officers under a show of authority, then the seizure was unlawful because the State concedes the officers had no reasonable suspicion that Moralez was involved in criminal activity.

In finding that the encounter was voluntary, the district court focused on Moralez’ testimony that he felt free to leave, regardless of the officers’ request that he stay. Indeed, Moralez testified repeatedly that he felt free to end the encounter and leave. However, the test for determining whether a police-citizen encounter is voluntary is an objective one, and Moralez’ subjective state of mind is not a relevant factor. See Thompson, 284 Kan. at 809-10. Likewise, Whisman’s subjective belief that Moralez was free to leave is not a relevant factor because Whisman never conveyed this belief to Moralez. See 284 Kan. at 807.

In analyzing the nature of the encounter between Moralez and the officers, the district court failed to make specific findings of fact. In this regard, there was one key factual dispute between Moralez’ testimony and Whisman’s testimony that was never resolved by the district court. Moralez testified that the officers asked him not to go anywhere as soon as he came down to the parking lot. Whisman denied that the officers asked Moralez to stay until after Whisman learned there was a possible warrant. The resolution *1085of this factual dispute may be critical in reaching the ultimate legal conclusion whether the encounter between Moralez and the officers was voluntary.

If the nature of the encounter between Moralez and the law enforcement officers was the only issue on appeal, we would remand the case to district court to make further findings of fact. However, the district court denied the motion to suppress on the alternative ground that even if Moralez was unlawfully detained, the subsequent discovery of the arrest warrant purged the taint of the unlawful detention. We will address that issue next.

Discovery of the Arrest Warrant

Moralez claims that the discovery of the outstanding warrant did not purge the taint of the unlawful police conduct. For the purposes of our analysis of this issue, we will assume that at some point the encounter between Moralez and the law enforcement officers became an unlawful detention. The question then becomes whether the discovery of the arrest warrant purged the taint of the unlawful detention and justified the search incident to the arrest.

As we previously discussed, a few minutes into the encounter between Moralez and law enforcement officers, Whisman asked Moralez for his identification. Whisman testified that if Moralez had denied his request for identification or had refused to give his name, there was nothing that he would have done. Whisman checked the identification for warrants, and the dispatcher informed him that Moralez possibly had a county warrant. Whisman testified it is his responsibility as a law enforcement officer to arrest any person who is the subject of a confirmed warrant. When the warrant was confirmed, Whisman arrested Moralez and discovered the marijuana in a search incident to the arrest.

Both parties agree this issue is controlled by State v. Martin, 285 Kan. 994, 179 P.3d 457, cert. denied 555 U.S. 880 (2008), so we will review that decision in some detail. In Martin, law enforcement officers stopped a man for urinating in public but released him after questioning. The officers then noticed the defendant standing about 20 feet away. The officers did not observe the defendant engaged in any suspicious activity. Nevertheless, the offi*1086cers “stopped" the defendant and asked for his identification. The defendant was cooperative, identified himself, and provided his date of birth. When the officers ran the information through dispatch, they discovered an outstanding warrant for the defendant’s arrest. Upon the defendant’s arrest, the officers searched his person and discovered marijuana. In the ensuing prosecution for possessing the marijuana, the defendant filed a motion to suppress the evidence. The district court overruled the motion on the ground that even if the defendant was subjected to an unlawful detention, the discovery of the outstanding warrant mandated his arrest and subsequent search.

On appeal, the Kansas Supreme Court discussed at length the effect of the outstanding warrant on the propriety of the defendant’s search. In conducting its analysis, the court presumed that the encounter between the law enforcement officers and the defendant was an unlawful detention. 285 Kan. at 998. The court began its analysis by discussing State v. Jones, 270 Kan. 526, 17 P.3d 359 (2001), in which the court had previously held that once officers acting in good faith discovered an outstanding warrant for the defendant’s arrest, they had a right to take the defendant into custody pursuant to the warrant and search the defendant incident to the arrest, even though the defendant might have been unlawfully detained prior to the discovery of the warrant. 270 Kan. 526, Syl. Without engaging in extensive analysis, the court in Jones reasoned that once a law enforcement officer discovers an outstanding warrant, the officer has the right and duty to arrest the person subject to the warrant whether the person had been lawfully or unlawfully detained prior to discovering the warrant. 270 Kan. at 527-29.

In Martin, the court expanded the analysis in Jones by noting that “[ujnder the attenuation doctrine, courts have found that the poisonous taint of an unlawful search or seizure dissipates when the connection between the unlawful police conduct and the challenged evidence becomes attenuated. [Citation omitted.]” 285 Kan. at 1003. In order to determine whether there is sufficient attenuation of the causal chain so as to dissipate the taint, a court should analyze three factors: “(1) the time elapsed between the *1087illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.” 285 Kan. at 1003 (citing Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 45 L. Ed. 2d 416 [1975]).

In applying the three attenuation factors, the court in Martin determined that the first factor weighed heavily against the State because the law enforcement officers’ actions were continuous and there was no temporal break in the causal chain between the illegality and the acquisition of the evidence. 285 Kan. at 1003. The court determined that the second factor weighed in favor of the State because the discovery of the outstanding arrest warrant constituted the presence of an intervening circumstance between the unlawful detention and the search of the defendant’s person. Indeed, the court determined that the defendant’s arrest on the warrant “was a lawful, perhaps mandatory, act.” 285 Kan. at 1003-04.

The court focused on the third factor, i.e., the purpose and flagrancy of the official misconduct. In analyzing this factor, the court stated:

“While the circumstances might suggest that the officers’ purpose in requesting identification to run a warrant check was a fishing expedition, we do not perceive the conduct to be flagrant. The officers were drawn to the particular location because they observed a man who admitted to urinating or attempting to urinate in public. There is nothing to suggest that the officers’ ultimate goal in making contact with [the defendant], who was in the immediate vicinity of the urinator, was to search his person for drugs. . . . Further, the intrusion upon [the defendant’s] privacy involved a brief conversation in which [the defendant] cooperatively engaged. [Citation omitted.]” 285 Kan. at 1004.

After analyzing all three factors, the court determined that the officers’ discovery of the outstanding arrest warrant was an intervening circumstance which sufficiently attenuated the taint of the unlawful detention. Thus, the court unanimously concluded that despite the defendant’s unlawful detention, the evidence discovered in the search incident to his arrest was admissible. 285 Kan. at 1005.

Returning to our facts, the district court analyzed the effect of the discovery of Moralez’ outstanding warrant under the three factors set forth in Martin. As in Martin, the district court found that *1088the first factor, i.e., the time elapsed between the illegality and the acquisition of the evidence, weighed against the State. The district court found that the second factor, i.e., the presence of intervening circumstances, weighed in favor of the State. The district court focused on the third factor, i.e., the purpose and flagrancy of the official misconduct, and found that the officers’ conduct in this case was not flagrant or egregious. In so finding, the district court noted that Moralez repeatedly testified that he felt free to leave. The district court reasoned that if the officers’ conduct had been so egregious, “I don’t believe [Moralez] would have felt that he was free to leave.” Thus, the district court concluded that even if Moralez was unlawfully detained, the subsequent discovery of the arrest warrant purged the taint of the unlawful detention.

On appeal, we will review the three attenuation factors considered by the district court and discussed in Martin. We must review the district court’s factual findings for substantial competent evidence, but we review the district court’s ultimate legal conclusion by a de novo standard. Ransom, 289 Kan. at 380.

As the district court found, the first factor, i.e., the time elapsed between the illegality and the acquisition of the evidence, weighs against the State. But it would seem that this is almost always the case. In routine police encounters that lead to warrant checks, there is almost always no temporal break between the initial detention and the subsequent discovery of the evidence. The second factor, i.e., the presence of intervening circumstances, weighs in favor of the State. Again, it would seem that this is almost always the case. The discovery of an outstanding 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. At that point, it is the officers’ duty to execute the warrant by arresting the person named therein. See K.S.A. 22-2305.

As in Martin, we will focus on the third attenuation factor, i.e., the purpose and flagrancy of the official misconduct. In his brief, Moralez argues that “the officer’s goal in detaining Moralez, who was suspected of nothing illegal, was to check him for warrants, and, inevitably, if a warrant was found, to arrest and search him.” *1089But this assertion is not supported by the evidence. Here, as in Martin, there is nothing to suggest that the officers’ ultimate goal in contacting Moralez was to search his person for drugs. The officers were initially drawn to the particular location to investigate the vehicle with an expired 30-day tag. Indeed, Whisman and Moralez both testified that Moralez initiated the contact with the law enforcement officers. Whisman asked Moralez to provide his identification in order to document him as a witness. Whisman testified that if Moralez had denied his request for identification or had refused to give his name, there was nothing he would have done.

Whisman did not express any particular reason for running a warrant check on Moralez. Perhaps it was a fishing expedition. But in Martin, although the circumstances suggested that the officers’ purpose in running the warrant check was a fishing expedition, the court nonetheless stated: “We do not perceive [such] conduct to be flagrant.” 285 Kan. at 1004. Finally, as in Martin, the intrusion upon Moralez’ privacy involved a brief conversation in which Moralez cooperatively engaged. From the time Whisman first observed the parked vehicle to the time Moralez was arrested was 16 minutes. Although the record is not precise on the timing, presumably the amount of time involved in checking Moralez’ identification for warrants was only a few minutes.

If anything, the law enforcement officers’ conduct in Martin appears to have been more flagrant than the officers’ conduct here. In Martin, the law enforcement officers stopped the defendant for no purpose and immediately asked for his identification in order to run a warrant check. The officers detained the defendant until the warrant check was completed. When an outstanding warrant was discovered, the officers arrested and searched the defendant. Here, the encounter began as an investigation of a vehicle with an expired 30-day tag. Moralez initiated his contact with the law enforcement officers, not the other way around. Whisman later asked Moralez to provide his identification in order to document him as a witness. Whisman testified that if Moralez had denied his request for identification or had refused to give his name, there was nothing he would have done. If the purpose and flagrancy of the official *1090misconduct in Martin weighed in favor of attenuation, as our Supreme Court concluded, we must reach the same conclusion here.

In summaiy, we find the facts herein to be difficult to distinguish from the facts of Martin in any meaningful way. In both cases, the officers encountered a citizen with no suspicion of criminal activity. In both cases, the citizen was presumably unlawfully detained for a brief period of time. In both cases, there was nothing to suggest that the officers’ ultimate goal in contacting the citizen was to search the person for drugs. In both cases the officers requested the citizen’s identification and for no apparent reason decided to run a warrant check. In both cases, the officers detained the citizen until the warrant check was completed. In both cases, the officers discovered an outstanding arrest warrant and searched the citizen incident to the arrest which led to the seizure of evidence of a crime.

In Martin, the court held that the officers’ discoveiy of the outstanding arrest warrant was an intervening circumstance which sufficiently attenuated the taint of the unlawful detention so as to permit the admission of the evidence. 285 Kan. at 1005. The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan. 949 (2007). We have no indication our Supreme Court is departing from the unanimous precedent in Jones and Martin. Based on Jones and Martin, we conclude the district court did not err by denying the motion to suppress the evidence.

Affirmed.