by Douglas Ankney

The Supreme Court of Kansas ruled that an officer’s discovery of an expired license plate subsequent to an illegal seizure did not attenuate the evidence obtained as a result of the illegal seizure. 

Daniel Christian lawfully parked his car on a public street and sat there for some time. A Hutchison police officer responded to a report of a suspicious vehicle. The officer parked his patrol car perpendicular to the rear of Christian’s car, activated his police lights, and got out to initiate contact. As the officer approached the car, he observed the license tag had expired. The officer asked Christian for his driver’s license and proof of insurance.

Christian produced a valid license but did not have proof of insurance. The officer arrested Christian for failure to provide proof of insurance.

The officer instructed Christian to put his keys on the roof. Christian gave permission to another officer to search a small silver container on the keychain. Marijuana was discovered in the container. Christian was arrested for possession of marijuana, and the officers searched his vehicle. They found two digital scales, more marijuana, and methamphetamine. Christian filed a motion to suppress the evidence, arguing the officers obtained it as a result of an illegal seizure.

The district court determined Christian was seized when the first officer activated his police lights. The court further determined the officer had probable cause for the seizure and denied the motion. The district court accepted Christian’s waiver of a jury trial and convicted him of all counts at a bench trial. A panel of the Court of Appeals reversed, holding that Christian did not properly waive his right to a jury trial. The panel also addressed the suppression motion because the issue could arise again on remand. The panel found that the initial seizure was unsupported by probable cause but upheld the denial of the motion on the attenuation doctrine analysis of Utah v. Strieff, 136 S. Ct. 2056 (2016). The Kansas Supreme Court granted further review on the suppression issue.

The Supreme Court accepted the Court of Appeals’ finding that the seizure of Christian was unlawful, which ordinarily requires suppression of any evidence obtained as a result of the seizure. Suppression of evidence results from applying the exclusionary rule under which courts may suppress the primary evidence obtained as a direct result of an illegal search or seizure, and suppress any evidence later discovered and found to be a derivative of the illegality. Segura v. United States, 468 U.S. 796 (1984). The exclusionary rule deprives the prosecution of the evidence in order to deter police from violating citizens’ Fourth Amendment rights. Id. But the U.S. Supreme Court has recognized several exceptions to the exclusionary rule, including the attenuation doctrine. Strieff. 

The attenuation doctrine applies when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained. Id. Courts are to consider three factors when determining if the attenuation doctrine applies: (1) the time that elapsed between the unconstitutional conduct and the discovery of the evidence, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the misconduct. Id. The first factor does not favor attenuation unless a significant amount of time has elapsed.

The Kansas Supreme Court observed that very little time passed between the unlawful seizure and the discovery of evidence. Thus, the first factor favored suppression, not attenuation. As to the second factor, the Court of Appeals had compared it to the Strieff analysis.

In Strieff, the State had discovered a pre-existing arrest warrant. The warrant served as an intervening circumstance, i.e., even though the defendant was initially unlawfully seized, because the officers would have been compelled by the warrant to make a lawful arrest. Any evidence obtained after the lawful arrest would not be subject to exclusion. This meant the warrant attenuated the evidence from the initial unlawful seizure. Strieff. 

In the present case, the Court of Appeals reasoned the officer’s discovery of the expired license plate was comparable to the discovery of a warrant. The Kansas Supreme Court disagreed. 

In Strieff, it was largely because the warrant was pre-existing that it attenuated the taint of the unconstitutional seizure. In the present case, the discovery of the expired tag came after the unlawful seizure and was comparable to discovery of evidence after an illegal arrest. Consequently, the second factor also weighed in favor of suppression. The Court concluded the record did not provide sufficient facts to review the third factor. But the Court determined that even if nothing in the record revealed flagrancy, the attenuation doctrine did not apply in this case.

In conclusion, the Court disagreed with and disapproved of the panel’s guidance on the suppression issue, agreed with the panel’s determination that the officer lacked reasonable suspicion for the initial detention, and did not change the panel’s ruling that Christian’s conviction be reversed due to an improper jury waiver. 

Accordingly, the Court reversed the panel’s affirmance of the district court’s denial of the suppression motion and remanded to the district court for further proceedings consistent with the Court’s opinion. See: State v. Christian, 445 P.3d 183 (Kan. 2019). 

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