Lead Opinion
Whеn two police officers encountered three men in a self-storage facility and ordered them to the ground, the men were protected by the Fourth Amendment to the United States Constitution. When those protections were violated, the evidence obtained as a result was tainted and should have been suppressed at a subsequent trial of one of the men. Because that evidence was instead admitted after the violation of the man’s federal constitutional rights, we must now reverse his conviction and remand.
Facts and Procedural History
Robert Dunlap owned a self-storage facility in Elkhart County, Indiana. He began to suspect that a renter of one of his twenty-four-hour climate-controlled storage units, Dennis Collins, was living in his storage unit in violation of the rental agreement. On the evening of August 25, 2009, Dunlap confronted Collins about his suspicions, but Collins denied living in the unit. Later that same night, Dunlap returned to the storage facility and noticed several cars parked behind the climate-controlled building. He then called the police to request assistance iri helping him remove Collins from the facility.
Sergeant Michael McHenry of the Elk-hart County Sheriffs Department responded to Dunlaр’s call shortly after midnight the morning of August 26. Sergeant McHenry requested another officer to assist and was joined a few minutes later by Officer Dustin Lundgren. The two officers and Dunlap entered the storage building and encountered three individuals outside Collins’s storage unit — Collins, James El-ler, and Kevin Clark. Clark was carrying a black bag that he then dropped to the ground.
The officers ordered Collins, Eller, and Clark to sit on the ground and identify themselves.. They then began to question Clark about the contents of the black bag, and specifically whether it contained any narcotics or contraband. Clark eventually admitted that there was marijuana in the bag, and Sergeant McHenry opened the bag and searched it. The search revealed a butane lighter, clear plastic baggies, pill bottles, methamphetamine, pseudoephed-rine pills, and a digital scale. The presence of these items led Sergeant McHenry to believe that Clark was dealing in a controlled substance.
The officers continued qdestioning Clark, during which Clark told them that his car was on the property. Sergeant McHenry located the vehicle backed up behind the storage building; as he apрroached he noted that the windows were down and the interior of the car smelled
Sergeant McHenry then went to his patrol car and got his K9 partner Falco, a certified narcotics detection dog. Sergeant McHenry returned to Clark’s car and walked Falco around it. The K9 alerted to the exterior of the car and Sergeant McHenry found a half-burned marijuana cigarette on the top of the trunk, where the window met the trunk lid, that the officers had missed in their initial search. At that point Sergeant McHenry stopped his search, drafted a search warrant for authorization to search Clark’s car, and contacted the Indiana State Police for assistance investigating and clearing the meth lab. Officer Lundgren then took Clark into custody and transported him to jail.
Clark was not read his Miranda
The State charged Clark with Dealing in Methamphetamine as a class B felony,
Against the trial judge’s recommendation, Clark initially elected to represent himself and requested only stand-by counsel. He filed a motion to suppress his confession as well as the evidence found in the black bag and in his trunk. After a series of hearings, discovery requests, and depositions, the trial court denied his motion.
At trial, the State introduced evidence that the weight of the methamphetamine found in Clark’s bag was 1.22 grams, additional methamphetamine powder found in the tool box from Clark’s trunk weighed 1.39 grams, and the collective weight of the 192 pseudoephedrine pills from Clark’s bag weighed 28.07 grams. As evidence that Clark was attempting to manufacture more than three grams of methamphetamine, the State called Indiana State
Clark appealed, arguing that his motion to suppress was improperly denied and that Trooper Shortt should not have been allowed to testify with respect to a conversion ratio of pseudoephedrine to methamphetaminе. (Appellant’s Br. at 1.) The Court of Appeals affirmed. Clark v. State,
Standard of Review
We review the denial of a motion to suppress in a manner similar to reviewing the sufficiency of the evidence. Holder v. State,
However, though Clark presents this appeal as the denial of a motion to suppress, his case proceeded to trial where he renewed his objection to the admission of this evidence. In such an instance “the question of whether the trial court erred in denying a motion to suppress is no longer viable.” Cochran v. State,
The general admission оf evidence at trial ús a matter we leave to the
Discussion
The Fourth Amendment to the U.S. Constitution protects persons from unreasonable search and seizure by prohibiting, as a general rule, searches and seizures conducted without a warrant supported by probable cause. U.S. Const, amend. IV; Berry v. State,
Here, the officers encountered Clark, Collins, and Eller and after a short period of time Clark admitted that there was marijuana in the black bag that he had been carrying. When the officers searched the bag they found not only marijuana but items indicating that Clаrk might be involved in dealing methamphetamine. This led the officers to Clark’s car, from which they could detect the smell of burnt marijuana coming out of open windows. Concerned that there was an active methamphetamine lab in the car, the officers unlocked the vehicle’s trunk, removed a rolling case capable of holding a portable meth lab and searched it. Finding the lab inactive, they replaced it, closed the trunk, and then conducted another search of the car using a K9 officer.
We agree with the State that Clark’s admission that there was marijuana in his bag gave the officers probable cause to arrest Clark for possessing marijuana. (Appellee’s Br. at 15); see Robles v. State,
Likewise, the smell of burnt marijuana emanating from Clark’s car windows, to a trained officer, would provide such an officer with probable cause sufficient to justify searching at least the open interior of the car. State v. Hawkins,
All of this, however, rests on a threshold requirement that the officers’ initial stop of Clark and the subsequent warrantless search of Clark’s bag satisfied the requirements of the Fourth Amendment. For the reasons we discuss below, they did not.
I. The Seizure of Clark
Encounters between law enforcement officers and public citizens take a variety of forms, some of which do not implicate the protections of the Fourth Amendment and some of which do. Finger v. State,
As we said, it is undeniable that the officers here had probable cause to arrest Clark once he admitted to possessing marijuana. But at issue is how to categorize the encounter up until that point and whether it complied with — or even needed to comply with — the Fourth Amendment.
Determining whether this was a consensual encounter or some level of detention “turns on an evaluation, under all the circumstances, of whether a reasonable person would feel free to disregard the police and go about his or her business.” Id. (citing California v. Hodari D.,
The State argues that “Sergeant McHenry’s initial approach to Clark was a consensual encounter,” a position that the trial court appears to have rejected although the State presented this position at the suppression hearing.
At the suppression hearing, Clark questioned Sergeant McHenry about the encounter, asking “[w]hen you entered the building, did you demand anything of the three?” (Tr. at 118.) Sergeant McHenry responded ‘Tes. I ordered them to stop, stand still, so we can approach you based on the grounds we were going to identify you and find out what three people were doing in the storage shed at that late hour.” (Tr. at 118.) Dunlap likewise testified at the hearing that the officers encountered the men and “told them to stop and stand still.” (Tr. at 213.)
At trial, however, Sergeant McHenry recalled the encounter somewhat differently, testifying that “I just called to the gentlemen, ‘Hello. I would like to speak with you.’ And started talking to them in a conversation.” (Tr. at 423.) But on cross-examination, he was asked “Did you tell them, ‘Sit your butts on the ground’?” (Tr. at 463.) To which he replied “I can’t rеmember the exact verbiage, but I asked and they complied. There was no argument. There was no discussion.” (Tr. at 463.) And Officer Lundgren testified that “I believe [Sergeant McHenry] told them, ‘Stop’ or ‘Stay where they were at.’ ” (Tr. at 508.)
The evidence thus leaves the picture of the officers’ expression of authority muddled, although to be sure one of those four characterizations of the encounter (Sergeant McHenry’s description from the trial) is an outlier.
At the suppression hearing, Sergeant McHenry testified that he made the three men sit on the ground because “[t]here was three of them and only me and Officer Lundgren. It was unknown what activity they were up to. It was safer to have them sit on the ground.” (Tr. at 146.) At trial he further explained that “by having them sit on the ground, if they are going to do something that is going to be a danger to me, another officer, or that person that was with us it is going to be morе apparent and very more clear.” (Tr. at 424.) “They are going to have to go through a lot more body language to move so I can be much safer for myself.” (Tr. at 424.) But aside from the fact that there were three men at the storage locker, and only two police officers accompanied by one civilian, the record reflects no indication of a threat to officer safety. The men calmly complied with Sergeant McHenry’s demands, they displayed no weapons, and they made no belligerent or hostile comments or gestures.
Thus, even if Sergeant McHenry did approach the three men in a calm manner and politely say “Hello, I would like to speak with you,” once he required the men to sit on the ground so he could respond more quickly to their movements — once he employed his authority to control and restrict their freedom to depart — the encounter moved past what would be considered “consensual.” No reasonable person would have believed they were free to simply get up and walk away under those circumstances.
Even though the encounter was not consensual, Sergeant McHenry still did not need probable cause to detain Clark if he was conducting merely a brief investigatory stop falling short of traditional arrest. This sort of brief detention, commonly called a Terry
In other words, the stop “must be justified by some objective manifesta
The trial court found that “the officers were called to investigate suspicious activities at the storage facility” and so “were authorized to briefly detain the suspects and to protect themselves by controlling the placement of the individuals and requesting identification.” (App. at 80.) The State argues that the officers’ investigatory stop was supported by reasonable suspicion because Dunlap contacted police after growing concerned that Collins was living in his rental unit, and if so was violating his rental contract. (Appellee’s Br. at 14-15.) We disagree.
The State’s argument is premised on the theory that Collins was trespassing by living in his rental unit. (Appellee’s Br. at 14-15.) But this theory is not borne out by the record. A person commits criminal trespass when, not having a contractual interest in a property, hе or she knowingly or intentionally enters (or refuses to leave) the real property of another after having been asked to leave. Ind.Code § 35^13-2-2(a)(1), (2) (2008). Denial of entry may be through personal communication, whether oral or written. Ind.Code § 35-43-2-2(b)(1).
Nothing in the record indicates that Dunlap denied Collins entry into the storage facility. Dunlap asked Collins if Collins was living in the storage facility and Collins denied doing so. Nothing indicates that Dunlap then told Collins to leave and not return, either orally or in writing.
As Clark puts it, the officers were there “to insure a peaceful meeting between a landlord and a tenant regarding an aspect of a contractual lease agreement.” (Appellant’s Br. at 4, 7.) We think this is the best assessment of their purpose. Dunlap was not reporting the commission of a criminal trespass (or, for that matter, a drug-related offense) — what Dunlap wanted from the police was support in removing Collins from the facility, if in fact Collins was inside and living in the unit.
And even if Sergeant McHenry and Officer Lundgren subjectively believed in good faith that Collins was or might be criminally trespassing, “simple ‘good faith on the part of the arresting officer is ' not enough.’ ” Terry v. Ohio,
As we have said, reasonable suspicion must be based on specific and articulable facts — an objective manifestation — and not an officer’s unparticularized hunch. Here, such specific and articulable facts are lacking.
Sergeant McHenry testified that the storage facility was located in a bad neighborhood where crimes and drugs are common, but had no reason to suspect drug or narcotics activity was going on inside when he arrived. And the facility’s location alone cannot support a finding of reasonable suspicion. See Bridgewater v. State,
Thus viewed in an objective totality, the two officers entered a twenty-four-hour storage facility located in a rough neighborhood and found three men standing outside one of the storage units. One man
Notably, they saw nothing illegal or responsive to Dunlap’s complaint or anything appearing to constitute narcotics use, dealing, or manufacturing. None of the men turned away, evaded, or fled when officers shouted at them. See id. (avoiding or turning away from police also not enough to constitute reasonable suspicion alone but headlong flight is “certainly suggestive” of wrongdoing (quoting Illinois v. Wardlow,
II. The Fruit of the Poisonous Tree
Generally speaking, еvidence obtained pursuant to an unlawful seizure must be excluded under the fruit of the poisonous tree doctrine. Sanchez v. State,
Clark argues that his confession and the evidence seized from his black bag should have been suppressed as the product of his illegal detention. (Appellant’s Br. at 10.) He also argues that the evidence seized from his car should have been suppressed as the fruit of the black bag search’s poisonous tree. (Appellant’s Br. at 11.) Applying the three factors from Sanchez, he argues that the time between the search of the black bag and the search of his car is insignificant, there were no intervening circumstances, and that “it is clear that the officers went too far” in
In response, the State presents nothing. The State rests its entire argument on its theory that Clark was lawfully detained and the black bag lawfully searched. “Therefore, Clark’s fruit of the poisonous tree argument is inapplicable to these circumstances. As such, no analysis pursuant to Wong Sun v. United States,
In Wong Sun, federal agents arrested James Toy under circumstances that were found to not be supported by probable cause. Wong Sun,
The U.S. Supreme Court held that Toy’s declarations were the fruits of the federal agent’s illegal arrest and should have been suppressed. “[VJerbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers’ action in the present case is no less the ‘fruit’ of official illegality than the more common tangible fruits of the unwarranted intrusion.” Id. at 485,
Brown v. Illinois,
The Court noted the overlap between the Fourth and Fifth Amendment, and how the exclusionary rule can be used to effectuate interests under both, id. at 599-601,
Nevertheless, the Court also rejected an inverse rule, where the lack of Miranda warnings would automatically mean the taint had not been purged, because “[i]t is entirely possible, of course ... that persons arrested illegally frequently may decide to confеss, as an act of free will unaffected by the initial illegality.” Id. Thus “[t]he question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive.” Id. The warnings are “an important factor,” but “not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant.” Id. at 603-04,
Weighing these factors, the Supreme Court found that Brown’s statement should have been suppressed because it occurred within two hours of his initial arrest and no intervening event occurred of any significance whatsoever, and it likened his situation much closer to Toy than Wong Sun — so close that the Court found permitting Brown’s statements would require overruling Wong Sun. Id. at 604 n. 11, 605,
Analysis of the factors for attenuation here leads us to the same result. The time elapsed between Clark’s unlawful detention and his statement is exceptionally brief. In Brown, the Court highlighted an elapsed time of less than two hours and in Wong Sun the inculpatory statements were given “almost immediately.” Wong Sun,
Moreover, while we acknowledge that the circumstances of Clark’s detention were less dramatic and intense than those leading to the arrests of Toy and Brown, falling short of a full arrest and lacking the violence and overt threats of-violence, we cannot discount the “quality of purposefulness” present in the three minutes between the initial encounter and Clark’s detention. Though the officers were on the scene to support Dunlap as he potentially confronted Collins, after placing Clark in a position of physical control and restraint the questioning almost immediately shifted to an inquisition concerning the contents of Clark’s bag and whether there was contraband inside — a line of inquiry wholly unrelated to the initial “criminal trespass” investigation and unsupported by any form of reasonable suspicion or probable cause. (Tr. at 107, 294.)
Clark initially did not directly answer the question, but said that there was “stuff’ in the bag. (Tr. at 178.) And at that point, as Clark puts it well, “when he apparently didn’t give the officers a detailed enough answer they threatened him with the use of their canine.” (Appellant’s Br. at 13.) Specifically, the officers informed Clark that they had a K9 outside and that they would bring the dog in and it would alert to any narcotics in the bag.
Thus, in a very short period of time what began as (at most) police support of an essentially civil matter turned quickly into a fishing expedition for narcotics employing threats of a K9 officer as the bait and hook — an expedition bordering on interrogation and wholly unsupported by probable cause or reasonable suspicion, or anything other than the officers’ apparent hunch.
We therefore conclude that Clark’s statement confessing to possessing marijuana in his black bag was not such an act of free will as to purge the primary taint of his unlawful detention and the statement should have been suppressed. And though it probably would seem obvious, the same must be true of the evidence found inside Clark’s bag after it was searched. The search was conducted immediately after Clark’s admission, with no time or intervening event and was an effort to validate the response to the officer’s questioning— questioning, as we have said, that was unsupported by probable cause or reasonable suspicion that Clark was engaged in narcotics dealing or possession. Accordingly, it was error to admit the evidence found in Clark’s bag.
The issue then remains whether it was error to admit the evidence found in Clark’s car. His windows were rolled down and the smell of burnt marijuana was evident to the officers as they approached. They opened his trunk and the container inside because they were concerned that an active rolling meth lab might be contained within, but they then brought a K9 officer to circle the car. That K9 alerted on actual marijuana found on the trunk, and that K9 alert was used as the probable cause basis for a warrant to search the vehicle again.
We do not find the causal connection between the detention and the search so attenuated as to dissipate the taint of the initial Fourth Amendment violation. The time elapsed between the detention and the search of the vehicle was very short— within only a few minutes of Clark’s admission, the officers are looking for the keys to his trunk. And there were no significant intervening circumstances. The officers went almost straight from the search of the bag to a search for — and of— Clark’s vehicle. The only events that occurred during this time were Sergeant McHenry running Clark’s name to check for warrants and Clark being placed in Officer Lundgren’s patrol car. Neither, however, is significant enough to attenuate the connection between the Fourth Amendment violation and the evidence seized.
But in addition to when the connection between the illegal search or seizure and the discovery of the evidence has become so attenuated as to dissipate
Here, not only has the State chosen not to argue the existence of one of these exceptions on appeal, but we find neither is supported by the record. No independent source pointed the officers in the direction of Clark’s vehicle, much less provided cause to believe it contained a meth lab. Nothing indicates that the officers learned this, for example, from Collins, Eller, or Dunlap. And while it is true that the K9 alerted to the presence of marijuana in the vehicle, that was only after the officers had located the car by questioning Clark, approached it, searched it, found contrаband, and then returned with the dog. The K9 is not an “independent source” in this circumstance — he is an active member of the police team involved that night being deployed only after the officers had already located the evidence.
Moreover, the record indicates that Sergeant McHenry and Officer Lundgren met Dunlap outside the storage facility’s locked gate, parking in an external parking lot. From there, Dunlap opened the security gate and they walked straight into the climate-controlled storage building where Collins rented a unit, approaching the building from the east and entering it from one of two doors on that side. They then immediately spotted Collins, Eller, and Clark. Clark’s car, however, was parked on the opposite side of the climate-controlled building — the west side — backed up to the building and in a small parking lot between that and another series of storage units. The officers did not pass it on their way into the building, nor was it visible from where their cars were parked. Dunlap knew the car — and at least one other— was on the property, but the record does not indicate that he informed or directed the officers to it — thеy discovered this only from questioning Clark.
Nothing indicates that the officers were actively searching for Clark or for a rolling meth lab in a car matching his vehicle’s description. See Nix,
We therefore are left with the conclusion that Clark’s admission to possessing marijuana, the marijuana and other contents of his black bag, and the contents and state of his vehicle, were all fruits of his unlawful detention. As such, all of this evidence should have been suppressed and it was error to admit it at trial.
Conclusion
The violation of Clark’s Fourth Amendment rights in this case was the direct jumping-off point to the discovery and seizure of all of the substantive evidence used to convict him. Because none of that evidence should have been admitted at a trial against him, the conviction cannot stand.
The State may of course retry Clark if it can introduce evidence of his guilt that was obtained in a manner not prohibited by the Fourth Amendment. We therefore reverse Clark’s conviction for attempted dealing in methamphetamine and remand for proceedings consistent with this opinion.
Notes
. Miranda v. Arizona,
. Ind.Code § 35-48-4-1.1(a)(2)(C) (2008).
. Ind.Code§ 35-48-4-14.5(e) (2008).
. Ind.Code§ 35-48-4-11(1) (2008).
. Ind.Code§ 35-48-4-1.1(b)(1).
. Ind.Code § 35-48-4-1.1(a)(1)(A), (b)(1); Ind.Code § 35-41-5-1 (2008). It is not clear from the record what became of the other two counts, but at trial Clark was only charged with the class A felony.
. Clark then filed a motion to correct error which the trial court also denied.
. We note, thоugh, that Clark expressed a clear intent to seek an interlocutory appeal at the conclusion of his arguments on his motion to suppress, asking for certified transcripts of the hearing “so I can appeal the decision if need be.” (Tr. at 311.) The trial court judge, however, actively dissuaded him from seeking an interlocutory appeal by informing Clark that the motion would not be certified even if he requested it, telling him "You can't just appeal something because you don’t like it.” (Tr. at 311-12.)
. The biggest implication from this shift in standard of review is that when "the foundational evidence [at trial] is not the same [as at the suppression hearing], the trial court must make its determination based upon the testimony and evidence presented at trial.” Kelley,
Ultimately this has little impact on our consideration of Clark’s case because Clark’s objections to the constitutionality of the evidence at trial were expressly based on the grounds and evidence presented in the pretrial suppression hearings and it is clear that the trial court’s rulings on admissibility were based on that evidence and the grounds presented in his order on the motion to suppress. And in any event, the critical circumstances leading to our conclusion today were presented as evidence at both the suppression hearing and the trial.
. The State also argues that the search of Clark’s car was justified as a warrantless search incident to Clark's arrest. (Appellee’s Br. at 16-17.) This exception only permits "a search of the arrestee’s person and the area within his or her control.” VanPelt v. State,
This exception extends to the lawful arrest of a vehicle's occupant, which permits a search of the passenger compartment of the automobile and containers found therein. Stark v. State,
So here, though Clark was not within reaching distance of his vehicle when it was searched we agree that the exception would arguably apply as the smell of burnt marijuana would make it reasonable for the officers to believe that evidence of the offense to which Clark admitted — possessing marijuana — would be found inside. The search-incident exception alone, however, would not have justified the search of Clark’s trunk.
. The trial court’s order on Clark’s motion to suppress does not treat the encounter as consensual or cite the relevant case law to do so. Rather, the trial court analyzes the issue solely through the lens of a reasonable investigatory stop requiring — and in its view supported here by — reasonable suspicion.
. The full record on appeal reveals the answer with absolute clarity. Officer Lundgren was wearing a body mic throughout the encounter that recorded nearly all of the officers’ conversations from meeting with Dunlap to the search of Clark's car. More specifically, it recorded precisely what Sergeant McHenry said and the tone with which he said it when he encountered Clark, Eller, and Collins. At least some portions of this recording were played on multiple occasions during the suppression hearing, with Clark trying— valiantly but unsuccessfully — to have it admitted as substantive evidence no less than three times. He also cited it extensively in his motion to correct error, quoting again the language used by the officers. Nevertheless, it was not admitted as substantive evidence and we cannot (and also need not) consider it here. But we continue to urge those who
. We emphasize that we аre not disparaging Sergeant McHenry's professional assessment of the precautions he believed necessary. The point is only that given the circumstances here, those actions placed the encounter under the protections of the Fourth Amendment.
. Terry v. Ohio,
. In fact, at the suppression hearing Dunlap testified that it was his understanding that renters could not live in the storage units— but he could not actually confirm that this was a provision in the rental contract. Nor was the rental contact made a part of the record.
. And at the end of the night, Collins was not only not charged with criminal trespass, but he was the only one of the three men to walk away free — even though Dunlap observed that the personal items in his storage unit were stored "uniquely different than other rental people.” (Tr. at 236.) Collins had a hutch, a rug, a couch, liquor, and clothes in the unit, all tending to give the appearance that he was, in fact, living there.
. Sergeant McHenry had, however, already run a check to see if Collins had any outstanding warrants. He did not.
. Officer Lundgren also testified that they did not know who Clark, Eller, and Collins were when the officers encountered them outside the storage unit. He "was just advised that possibly Dennis Collins might be living in the storage facility there.” (Tr. at 170.)
. Even if we assumed Clark’s detention was supported by reasonable suspicion, and his admission freely given, that would still leave the search of his bag in constitutional doubt. The trial court upheld the search because Clark admitted to ownership of the bag and admitted that it contained marijuana and therefore the bag was subject to search for weapons "for purposes of officer safety” and because the admission provided probable cause for the search — and apparently obviated the warrant requirement. (App. at 80-81.) Neither is necessarily a given.
A search justified on Terry grounds is limited to "the individual’s outer clothing for weapons if the officer reasonably believes that the individual is armed and dangerous.” Westmoreland v. State,
But neither does Clark’s admission — providing probable cause to arrest him for marijuana possession — necessarily permit a war-rantless search in and of itself. Even though the admission would likely provide probable cause to believe that the marijuana was in the bag, as we have said ”[t]he existence of probable cause, of course, does not relieve police from the warrant requirement. 'Even when government agents may lawfully seize such a package to prevent loss or destruction of suspected contraband, the Fourth Amendment requires that they obtain a warrant before examining the contents of such a package.' ” Robles v. State,
Two such warrant exceptions might be rationally argued (though the State offers up neither, instead incorrectly — or incompletely — arguing that ”[t]he officers had probable cause to search Clark's bag after Clark admitted to possessing marijuana.” (Appellee's Br. at 15.)). First, exigent circumstances can sometimes justify a warrantless search when there is probable cause, but this exception "is not 'a per se rule to be applied indiscriminately to ... every object that has the capacity for movement. Rather, its application should depend upon an evaluation of attendant circumstances.’ " Id. at 664-65 (quoting United States v. Valen,
But while the exigent circumstances exception might apply because Clark's bag was easily transportable and contained easily disposed-of drug evidence, and the search incident exception might apply because Clark admitted the bag сontained the implements of the crime he committed (and also because it might conceivably contain a weapon that could harm the officers), the record is not clear in supporting either.
For one thing, the record is clear that Clark placed the bag on the ground and up against a wall before complying with Sergeant McHenry's order to sit down. But it is not clear whether the bag was still in an area that
Nevertheless, because we find Clark's admission to be the direct result of his illegal detention we need not resolve such a hypothetical assessment of the search of his bag.
. By comparison, Wong Sun’s statement (which implicated Toy) was still admissible at trial becausе he was released after a lawful • arraignment, several days passed, and then he returned voluntarily. Wong Sun,
. Brown was arrested at gunpoint as he entered his home, having been named as the acquaintance of the victim (but not a suspect) in an unsolved murder. Brown,
. Vague responses are not illegal or necessarily indicative of criminal behavior. See Wardlow,
. Which was not an omission — it was a deliberate choice not to Mirandize Clark. Sergeant McHenry said as much, when he said the reason why he chose not to read Clark his Miranda warnings was "I had no reason to formally charge you with any charge or detain you on any charge at that time. I was merely conducting an initial investigation to the situation I was exposed to.” (Tr. at 114.) We are not saying that Miranda warnings are required in Teny stops, but the officer’s decision clearly reflects the general "fishing” nature of the questioning taking place in the context of a Teny stop unsupported by reasonable suspicion.
. It does not — cannot—matter that Sergeant McHenry and Officer Lundgren's hunch paid out in the form of Clark's confession and the later discoveries. "It is the law that the fruits of the search cannot be used to support or justify an illegal search.” Manson v. State,
. Sergeant McHenry ran the warrant check at sixteen minutes after midnight. Seven minutes later, the check came back showing a possible outstanding warrant for Clark in Florida, but within another five minutes Sergeant McHenry was told that the warrant was not extraditable and therefore not a valid basis for detaining Clark. A determination that a defendant is not wanted on an outstanding warrant cannot break the chain here, nor can the act of moving a defendant from one police-controlled location to another.
.To say nothing of the manner of searching the vehicle: searching the interior based on an open-air sniff of burnt marijuana, then taking Clark's keys to open the trunk and containers, then walking the K9 around the car, and only then asking for consent.
. This is the inverse rationale of the exclusionary rule itself, which prevents the prosecution from being "in a better position than it would have been in if no illegality had transpired.’’ Nix,
. This might be a different case if, for example, Sergeant McHenry brought Falco in with him when he entered the storage facility and the K9 independently alerted to the narcotics in Clark’s bag prior to the questioning.
. Without repeating the analysis in full, we note that it would also apply to the same evidence when it was re-found following execution of the search warrant.
. We therefore do not need to independently address the issue of whether Trooper Shortt's testimony was appropriate but instead summarily affirm that рortion of the Court of Appeals opinion. See Clark,
Dissenting Opinion
dissenting.
The Court’s thoughtful and meticulous parsing of the facts and the law, in the end, leaves one overarching question unanswered: what should the pólice have done?
When called at midnight to a 24-hour storage facility in a high-crime area to help the owner evict a customer improperly living in a unit, should they have refused to come? I doubt it. Once there, should they have declined to investigate further and not accompanied the owner from the gate to the unit? Again, I think not. Most critically, once they entered the unit and saw Clark drop his bag, should they have looked the other way and departed?
The breadth of the Court’s opinion notwithstanding, the issue essentially boils down to whether the officers had a reasonable and articulable suspicion that justifies their decision to conduct a Terry stop. Once they saw Clark drop his bag, I would conclude they did have such a suspicion, whatever the tone of their ensuing instructions. It was Clark’s subsequent admission, as the majority notes, that led to his arrest and all that followed — most of which this Court would approve, had it not found all that fruit poisoned for want of Terry suspicion.