SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0309-PR
Appellee, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-CR 09-0281
MICHAEL QUINCY HUMMONS, )
) Pima County
Appellant. ) Superior Court
) No. CR20083448
)
)
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Pima County
The Honorable Teresa A. Godoy, Judge Pro Tem
AFFIRMED
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Opinion of the Court of Appeals Division Two
225 Ariz. 254, 236 P.3d 1201 (App. 2010)
VACATED
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THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Laura P. Chiasson, Assistant Attorney General Tucson
Attorneys for State of Arizona
ROBERT J. HIRSH, PIMA COUNTY PUBLIC DEFENDER Tucson
By Lisa M. Hise, Assistant Public Defender
Attorneys for Michael Quincy Hummons
________________________________________________________________
B R U T I N E L, Justice
¶1 Michael Hummons was convicted of possessing a narcotic
drug and drug paraphernalia. The court of appeals affirmed,
holding that the trial court did not err in denying a motion to
suppress evidence found during a search incident to arrest.
Assuming Hummons had been illegally detained, the court of
appeals found that the arresting officer’s search was incident
to an arrest on an outstanding warrant and, therefore,
sufficiently attenuated from the illegal detention so as to
avoid suppression. State v. Hummons, 225 Ariz. 254, 257-58
¶¶ 8-11, 236 P.3d 1201, 1204-05 (App. 2010). We granted review
to address the attenuation doctrine as applied to warrant checks
resulting in arrest. We have jurisdiction pursuant to Article
6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-
120.24.
I. FACTS AND PROCEDURAL BACKGROUND
¶2 “We view the facts in the light most favorable to
support the trial court’s ruling on the motion to suppress.”
State v. Cook, 115 Ariz. 188, 192, 564 P.2d 877, 881 (1977). In
analyzing a ruling on a motion to suppress, we consider “only
the evidence presented at the suppression hearing.” State v.
Garcia, 224 Ariz. 1, 7 ¶ 6, 226 P.3d 370, 376 (2010).
¶3 In August 2008, Tucson Police Officer Martha Lewis was
on patrol, when she noticed Hummons walking down the sidewalk
carrying a new-looking weed trimmer with a neatly wrapped
extension cord. Hummons caught her attention because his
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disheveled appearance contrasted with the pristine equipment he
was carrying. Additionally, the officer was aware of recent
thefts from nearby yards.
¶4 Officer Lewis approached Hummons to determine who he
was and what he was doing. Hummons agreed to speak with her and
was polite, but appeared nervous and avoided eye contact.
Hummons said he was coming from his house; but when asked where
he lived, he pointed in the direction in which he had been
walking. After Officer Lewis expressed confusion, Hummons said
he owned two homes and was out doing work with the weed trimmer.
She noted that the weed trimmer did not look as if it had been
used. She then asked to see his identification card, which
Hummons voluntarily provided. While holding the card, the
officer conducted a warrant check.1
¶5 Although the warrant check revealed a misdemeanor
arrest warrant, Officer Lewis decided to tell Hummons about the
warrant, but not arrest him. As she began to explain, however,
he became belligerent and she opted to arrest him on the
warrant. In a search incident to that arrest, Officer Lewis
discovered drugs and drug paraphernalia in his backpack.
¶6 Hummons moved to suppress this evidence, arguing that
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It is unclear how long the warrant check took. Officer Lewis
testified that the warrant search took place five to ten minutes
into her discussion with Hummons and also that the entire
interaction lasted no more than ten minutes.
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it was obtained as the result of an illegal detention. The
trial court denied the motion, finding the officer’s encounter
with Hummons consensual. Without addressing the consent issue,
the court of appeals affirmed, concluding that even if Hummons
had been illegally detained during the warrant check, the
discovery of the arrest warrant constituted an intervening
circumstance that dissipated the taint of any prior illegality.
Hummons, 225 Ariz. at 257-58 ¶¶ 8-11, 236 P.3d at 1204-05.
II. DISCUSSION
A. Attenuation Doctrine
¶7 Law enforcement officers have wide latitude to
approach people and engage them in consensual conversation. See
Florida v. Royer, 460 U.S. 491, 497 (1983) (holding officers do
not violate Fourth Amendment by approaching citizen in public
place and asking permission to question). They are also free to
request identification. See I.N.S. v. Delgado, 466 U.S. 210,
216, 218 (1984) (holding law enforcement request for
identification not tantamount to seizure; finding no
constitutional violation when law enforcement conduct “consisted
simply of questioning employees and arresting those they had
probable cause to believe were unlawfully present”); see also
Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt County.,
542 U.S. 177, 188-89 (2004) (upholding state law requiring
disclosure of identity to officers); Florida v. Bostick, 501
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U.S. 429, 437 (1991) (explaining no seizure occurs when police
ask to examine identification). If an officer engaging in a
consensual encounter with a citizen discovers an arrest warrant,
the arrest is valid and any evidence discovered during a search
incident to arrest is admissible. See United States v.
Robinson, 414 U.S. 218, 235 (1974) (emphasizing that search
incident to arrest requires no additional justification).
Consent, however, is the hallmark of such an encounter.
¶8 Although the trial court found Officer Lewis’s
encounter with Hummons consensual, the court of appeals assumed,
without deciding, that Officer Lewis illegally detained Hummons
before discovering the warrant and then arresting and searching
him. The court therefore considered whether the search was
sufficiently attenuated from any illegal detention so as to
allow the seized evidence to be admitted.
¶9 In Brown v. Illinois, the Supreme Court applied three
factors to determine whether the taint of illegal conduct is
sufficiently attenuated from a subsequent search to avoid the
exclusionary rule. 422 U.S. 590, 603-04 (1975). Under Brown, a
court must consider first, the time elapsed between the
illegality and the acquisition of evidence; second, the presence
of intervening circumstances; and third, the purpose and
flagrancy of the official misconduct. Id. Although Brown
involved a confession following an illegal search, Arizona
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courts have applied the attenuation doctrine to other
situations. See, e.g., State v. Guillen, 223 Ariz. 314, 317
¶ 14, 223 P.3d 658, 661 (2010) (applying attenuation doctrine to
consent search following allegedly illegal search); State v.
Blackmore, 186 Ariz. 630, 634-35, 925 P.2d 1347, 1351-52 (1996)
(upholding search following allegedly illegal arrest); State v.
Miller, 186 Ariz. 314, 320-21, 921 P.2d 1151, 1157-58 (1996)
(upholding admission of statements made after illegal arrest).
¶10 The court of appeals correctly determined that the
first Brown factor favored suppression. The officer discovered
the drugs and paraphernalia shortly after the stop. But, as the
court of appeals correctly noted, this is the least important
Brown factor. See State v. Reffitt, 145 Ariz. 452, 459, 702
P.2d 681, 688 (1988); see also McBath v. State, 108 P.3d 241,
248 (Alaska 2005) (noting that “in essentially every case,” the
time between an illegal stop and the discovery of evidence is
short).
¶11 Regarding Brown’s second factor, the discovery of a
valid arrest warrant is an intervening circumstance because it
provides a legal basis for the arrest notwithstanding an illegal
seizure. See Ariz. R. Crim. P. 3.1(c) (warrant issued upon
probable cause); 3.3(b) (warrant executed by arrest of
defendant); see also People v. Murray, 728 N.E.2d 512, 517 (Ill.
App. Ct. 2000) (holding it would be “illogical and nonsensical”
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to suggest police cannot arrest subject of illegal detention
after discovery of valid warrant). A law enforcement officer
who previously lacked even reasonable suspicion, by discovering
a valid warrant, gains probable cause not just to detain, but to
arrest. Cf. Whiteley v. Warden, Wyo. State Penitentiary, 401
U.S. 560, 568-69 (1971) (holding invalid warrant did not create
probable cause for arrest). If the warrant is valid, the arrest
is valid regardless of how the individual officer came to know
about the warrant. See United States v. Hudson, 405 F.3d 425,
439 (6th Cir. 2005) (holding that initial illegal detention
“does not call into question” validity of arrest pursuant to
valid warrant; “[w]here the police effectuate an arrest in an
illegal manner but nonetheless have probable cause to make the
arrest, the proper Fourth Amendment remedy is to exclude only
that evidence which is a fruit of the illegality”); see also
State v. Spreitz, 190 Ariz. 129, 144, 945 P.2d 1260, 1275 (1997)
(holding that as long as officers possess a valid warrant, the
subjective intent of officers is irrelevant).
¶12 The court of appeals, however, overemphasized the
importance of the warrant as an intervening circumstance in
attenuating an illegal detention’s taint upon evidence
discovered in a search incident to arrest. See Hummons, 225
Ariz. at 257 ¶ 11, 236 P.3d at 1204 (citing United States v.
Green, 111 F.3d 515, 521 (7th Cir. 1997)) (holding existence of
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arrest warrant “compelling” case for finding dissipation). If
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.
See People v. Mitchell, 824 N.E.2d 642, 644, 649 -50 (Ill. App.
Ct. 2005) (affirming suppression of evidence when “officers
stopped defendant for no apparent reason other than to run a
warrant check”).
¶13 If, as the court of appeals suggested, a warrant
automatically dissipated the taint of illegality, law
enforcement could then “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. United States
v. Gross, 624 F.3d 309, 320-21 (6th Cir. 2010). We cannot
reconcile such a situation with the Fourth Amendment or the
logic of Wong Sun v. United States, 371 U.S. 471, 485 (1963)
(holding evidence that derived “so immediately from” violation
is fruit of illegality and should be suppressed). We therefore
hold that the subsequent discovery of a warrant is of minimal
importance in attenuating the taint from an illegal detention
upon evidence discovered during a search incident to an arrest
on the warrant.
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¶14 The purpose and flagrancy of illegal conduct, the
third Brown factor, however, goes to the very heart and purpose
of the exclusionary rule. See Brown, 422 U.S. at 603-604
(finding flagrancy of misconduct “particularly” important in
attenuation analysis); see also Herring v. United States, 555
U.S. 135, __, 129 S. Ct. 695, 701 (2009) (“The extent to which
the exclusionary rule is justified by . . . deterrence
principles varies with the culpability of the law enforcement
conduct.”); Guillen, 223 Ariz. at 318-19 ¶¶ 19-21, 223 P.3d at
662-63. Courts must consider the totality of circumstances in
determining whether the evidence should be suppressed. See
United States v. Wellins, 654 F.2d 550, 554 (9th Cir. 1981)
(finding of attenuation only appropriate upon consideration of
totality of circumstances). Factors such as an officer’s
regular practices and routines, an officer’s reason for
initiating the encounter, the clarity of the law forbidding the
illegal conduct, and the objective appearance of consent may all
be important in this inquiry. By focusing on officer conduct,
courts may distinguish between ordinary encounters that happen
to devolve into illegal seizures and intentionally illegal
seizures for the purpose of discovering warrants.
¶15 Applying Brown’s third factor, and assuming Hummons
was illegally detained, we hold that the totality of the
circumstances militate against suppressing the evidence. See
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State v. Frierson, 926 So.2d 1139, 1144 (Fla. 2006) (finding
“very significant the third factor in the Brown analysis” in
concluding taint of illegal stop dissipated by non-pretextual,
good faith discovery of outstanding arrest warrant). No
evidence at the suppression hearing indicated that Officer Lewis
routinely approaches citizens in the hopes of discovering
warrants in order to search them incident to arrest, nor did she
stop Hummons for this reason. Rather, she was engaged in other
police business when he caught her attention because he was
carrying new lawn equipment, yet appeared disheveled and was in
an area where there had recently been thefts from yards. She
approached Hummons, as she had the right to do, and engaged him
in consensual conversation. When he made confusing statements,
she asked to see his identification. While retaining his
identification, she conducted a quick check for warrants in his
presence.2 Officer Lewis further testified that once she had
discovered the warrant, she had intended to allow Hummons to
leave without arresting him. She changed her mind only when he
became belligerent. From this record, it is clear Officer Lewis
did not approach Hummons with the hope of arresting and
searching him, nor did she otherwise engage in purposeful or
2
We do not address whether Officer Lewis had reasonable suspicion
by the time she performed the warrant check- an issue neither
raised by the State in the court of appeals nor decided by that
court.
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flagrant illegality.
B. State Constitutional Argument
¶16 Hummons urges us to separately consider this matter
under Article 2, Section 8 of the Arizona Constitution. Because
the exclusionary rule is applied no more broadly under our state
constitution than it is under the federal constitution outside
the home-search context, we decline to do so. See Guillen, 223
Ariz. at 317 ¶ 13 n.1, 223 P.3d at 661 n.1.
III. CONCLUSION
¶17 For the foregoing reasons, we uphold the trial court’s
denial of Hummons’ motion to suppress evidence obtained during
the search incident to arrest and affirm his conviction, but
vacate the court of appeals’ opinion.
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Robert M. Brutinel, Justice
CONCURRING:
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Rebecca White Berch, Chief Justice
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Andrew D. Hurwitz, Vice Chief Justice
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W. Scott Bales, Justice
_____________________________________
A. John Pelander, Justice
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