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The State charged Deron Williams with one count of cocaine possession after law enforcement officers arrested him on an outstanding warrant and discovered cocaine in his shoe. The district court granted Williams’ motion to suppress the cocaine, concluding officers unlawfully detained Williams before discovering the arrest warrant when they took his identification to run a warrants check and that unlawful detention tainted the evidence found in the search, requiring its suppression. The State appealed and a divided panel of the Court of Appeals reversed the district court’s suppression decision, State v. Williams, No. 101,617,
While we agree with the district court that the officers unlawfully detained Williams, we conclude the unlawful detention occurred at an earlier stage in the encounter than did the district court. Specifically, we agree with the Court of Appeals dissent that officers unlawfully detained Williams at tire inception of the encounter when they (1) pulled over and parked their patrol vehicle next to Williams as he walked along a sidewalk early in the morning in an isolated area; (2) activated the car’s emergency lights; (3) got out of the patrol car and stood on either side of Williams; and (4) immediately began asking Williams questions, all without any reasonable suspicion of his involvement in any criminal activity. We hold under these circumstances, a reasonable person would not have felt free to decline to answer the officers’ questions or to otherwise terminate the encounter.
Further, applying the attenuation analysis from State v. Martin,
Factual and Procedural Background
The relevant facts are undisputed. Williams’ encounter with police began about 2:30 a.m., as patrolling Kansas City, Kansas, police officer Andrew Lewis observed Williams walking westbound on the sidewalk running parallel to Quindaro Boulevard in a vicinity known to law enforcement as a “high crime, high drug” area. Lewis, who was accompanied by a second officer, did not suspect Williams of committing any crimes; nevertheless, he decided to stop Williams for what Lewis characterized as a “pedestrian check.”
Lewis testified at the suppression hearing the purpose of a pedestrian check is to ask the pedestrian about what is happening in the area and whether he or she has seen any suspicious activity.
In this instance, Lewis pulled his patrol car next to the sidewalk where Williams was walking and activated his “wigwags,”'—-two yellow lights on the back of the light bar atop the patrol car—in order to warn traffic he had stopped on the side of the road. As Lewis opened the door of his patrol car, Williams stopped walking and stood near the rear of the patrol car. Both officers got out of the vehicle; Lewis stood near the trunk of the patrol car, and the second officer stood by the passenger door.
Lewis then questioned Williams about where he had been, where he was going, and whether he had seen anything suspicious in the area. After several minutes, Lewis requested Williams’ identification to “see if he’s got a warrant.”
After Lewis ran a computer check and discovered an outstanding warrant, the officers arrested Williams, took him to the county jail, and searched him, discovering cocaine in his shoe.
After the State charged Williams with possession of cocaine, he moved to suppress the cocaine, arguing he was unlawfully seized without reasonable suspicion and the unlawful seizure tainted the evidence found pursuant to his arrest. Williams also argued the discovery of the warrant did not purge the taint of the unlawful seizure. The State agreed that the officers lacked reasonable suspicion of any criminal activity by Williams but argued reasonable suspicion was unnecessary because the encounter commenced as a voluntary encounter and remained voluntary throughout the encounter. Alternatively, the State argued that even if the officers unlawfully detained Williams, the discovery of the outstanding arrest warrant constituted an intervening circumstance that purged the taint of the unlawful detention.
Following an evidentiary hearing, the district court granted Williams’ suppression motion. The court found the encounter between Williams and the two officers began as a voluntary encounter but evolved into an unlawful detention when Lewis requested Williams’ identification. In so holding, the district court relied on several facts, including the presence of two police officers, the patrol car’s flashing emergency lights, Williams’ location between the two officers during questioning, and the absence of any reasonable suspicion of Williams’ involvement in criminal activity. However, the district court did not consider the State’s alternative attenuation argument. The State appealed.
Court of Appeals’ Decision
A divided Court of Appeals panel reversed the district court’s suppression ruling, with the majority characterizing the entire encounter between Williams and the officers as voluntary. Alternatively, tire majority applied Martin to conclude drat even if officers unlawfully detained Williams, the discovery of the outstanding arrest warrant and the nonegregious nature of the officers’ actions sufficiently attenuated the discovery of the contraband from the unlawful detention. Williams,
In a dissenting opinion, Judge Standridge reasoned the officers unlawfully detained Williams at the beginning of the encounter. Further, applying Martins attenuation analysis, Judge Standridge would have held that the discovery of the outstanding warrant did not purge the taint of the unlawful detention, requiring suppression of the cocaine. Williams,
Analysis
Williams seeks review of two issues: (1) whether tire Court of Appeals erred in characterizing Williams’ interaction with law enforcement officers as voluntary rather than as an unlawful detention, and (2) whether the Court of Appeals erred in alternatively applying Martin’s attenuation analysis to conclude the officers’ intervening discovery of an arrest warrant purged the taint of any unlawful detention as to the evidence discovered following Williams’ arrest.
The officers unlawfully detained Williams at the commencement of the encounter without reasonable suspicion of his involvement in any criminal activity.
Williams claims officers unlawfully detained him at the commencement of the encounter, or, at the very least, when Lewis requested his identification to run a warrants check. The State contends the officers engaged in a voluntary encounter with Williams during which Lewis requested but did not demand Williams’ identification.
As discussed below, we need not determine whether Williams was detained without reasonable suspicion when officers requested his identification and ran a warrants check. Cf. Moralez,
The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Section 15 of the Kansas Constitution Bill of Rights provides the same guarantee. See State v. Thompson,
Voluntary encounters are not considered seizures and do not trigger the protections of the Fourth Amendment. See State v. Pollman,
“ ‘law 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, by putting questions to him if he is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.’ ” Florida v. Bostick,501 U.S. 429 , 434,111 S. Ct. 2382 ,115 L. Ed. 2d 389 (1991) (quoting Florida v. Royer,460 U.S. 491 , 497,103 S. Ct. 1319 ,75 L. Ed. 2d 229 [1983]).
And a voluntary encounter is not transformed into a seizure simply because an individual responds to questions or provides identification when approached and questioned by an officer. See INS v. Delgado,
The Totality of the Circumstances Test
An encounter is no longer voluntary and “a person is seized, thereby triggering a Fourth Amendment analysis of the police action, when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.’ ” Morris,
Some factors to consider in applying the totality of the circumstances test are: “the presence of more than one officer, the display of a weapon, physical contact by the officer, use of a commanding tone of voice, activation of sirens or flashers, a command to halt or approach, and an attempt to control the ability to flee.” State v. McGinnis,
Thus, we first determine whether, under the totality of the circumstances, a reasonable person in Williams’ position would have felt free to disregard Lewis’ questions, decline his request for identification, or otherwise terminate the encounter.
Although the rationale of the Court of Appeals majority opinion is somewhat unclear, the majority appears to conclude that a reasonable person in Williams’ position would have felt free to disregard Lewis’ questions and continue walking; thus, the entire encounter between Lewis and Williams was voluntary. Williams,
However, in a concurring opinion, Judge Buser provided a rationale for the majority’s conclusion regarding the voluntariness of the consent. The concurrence suggests that the totality of the circumstances shows that Williams did not submit to a show of authority because Lewis only activated “wigwag” lights to warn other traffic he had stopped his patrol car; Lewis maintained a conversational tone with Williams and did not command him to stop walking; there was no evidence the officers displayed their weapons; the officers did not surround Williams but instead stood 5 to 7 feet away from him; the encounter occurred in public view; the officers did not touch or physically restrain Williams; and Lewis retained Williams’ identification only briefly to conduct a warrants check. Judge Buser acknowledged the presence of “a few of the 10 factors typically associated with a police officer’s show of authority,” including that the officers wore uniforms, Lewis did not inform Williams he was free to go, and Lewis briefly retained Williams’ identification.
In contrast, in a dissenting opinion, Judge Standridge concludes the encounter between Williams and the officers began as an involuntary detention.
In analyzing whether a reasonable person would have felt free to disregard die officers’ questions or to otherwise terminate the encounter under the facts here, die concurring opinion emphasizes the circumstances that followed the initial stop while the dissent focuses on the circumstances tiiat caused Williams to stop walking. We agree with the dissent that the officers’ show of authority and the initial circumstances of tire encounter weigh heavily in favor of finding that a reasonable person in Williams’ position would have felt compelled to stop and would not have felt free to disregard Lewis’ questions, decline his request for identification, or otherwise terminate die encounter.
In tiiis regard, we note the similarities between the facts of this case and the facts before the New Mexico Supreme Court in State v. Soto,
As in Soto, we have no hesitation in concluding that a reasonable person in Williams’ circumstances would have felt compelled to stop and unable to leave. Those circumstances include: (1) Williams was walking alone on a sidewalk at 2:30 a.m. on a deserted street; (2) two officers in a patrol vehicle pulled up next to Williams as he walked; (3) the officers activated their emergency lights; (4) the officers both got out of their car and positioned themselves on either side of Williams; and (5) the officers immediately began asking Williams questions without indicating he was free to leave. And, as the State concedes, the officers lacked any reasonable suspicion of Williams’ involvement in any criminal activity; thus, the seizure was unlawful.
Accordingly, we reverse the Court of Appeals’ conclusion that the stop began as a voluntary encounter and remained a voluntary encounter, and we also reverse the district court to the extent that it found the stop began as a voluntary encounter.
Given the violation of Williams’ Fourth Amendment right to be free from an unreasonable seizure, we next consider whether the evidence obtained as a result of the Fourth Amendment violation should have been suppressed through application of the exclusionary rule.
The officers’ discovery of an outstanding arrest ivarrant did not purge the taint of the unlawful detention.
When a criminal defendant challenges the State’s use of evidence allegedly obtained in violation of the defendant’s Fourth Amendment rights, the State bears the burden to establish the lawfulness of the challenged search or seizure. McGinnis,
A primary purpose of the exclusionary rule is deterrence. “[B]ut ‘[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.’ [Citations omitted.]” Brown v. Illinois,
The Attenuation Doctrine
One recognized exception to the exclusionary rule is the doctrine of attenuation. “Under the attenuation doctrine,
To answer that question we generally consider (1) the time that elapsed between the illegality and the acquisition of the evidence sought to be suppressed, (2) the presence of any intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. Brown,
Whether the taint of a prior illegality has been purged by sufficient attenuation between the unlawful conduct and the discovery of the challenged evidence is a question of fact we review under a substantial competent evidence standard. See, e.g., State v. Smith,
Although the attenuation analysis is fact-driven, and the district court failed to consider tire State’s attenuation analysis, we may do so for the first time on appeal because the record in this case is sufficiently developed. See Martin,
Bodr parties agree that Martin sets out the appropriate framework for applying the attenuation doctrine, but they disagree on whether the discovery of the arrest warrant provided sufficient attenuation between the unlawful detention and the discovery of cocaine in Williams’ shoe. In Martin, we presumed law enforcement officers unlawfully detained the defendant, and we restricted “our analysis to the question . . . [of] whether the discoveiy of an outstanding arrest warrant during an unlawful detention is an intervening event which removes the taint of the unlawful detention from evidence retrieved in a search incident to the warrant arrest.”
After clarifying that the discoveiy of the arrest warrant did not necessarily control the outcome of the test, this court in Martin applied Browns three-factor attenuation analysis to conclude that the first factor weighed against attenuation because of the lack of a temporal break between the unlawful detention and the discovery of the marijuana. However, we held that the second factor weighed in favor of attenuation because the discovery of the arrest warrant represented a “potential break” in the causal chain between the unlawful detention and the discoveiy of the marijuana. Finally, we concluded the third factor also weighed in favor of attenuation because die officers’ conduct in unlawfully detaining die defendant to obtain his identification and check for warrants was not flagrant. Martin,
Clarification of State v. Martin in State v. Moralez
We recentiy revisited Martin and clarified our holding in that case in State v. Moralez,
In Moralez, officers detained the defendant by obtaining a copy of his identification card and running a warrants check after he voluntarily engaged in a conversation with officers who were investigating an expired tag on a car in an apartment parking lot. As a result of the suspicionless detention, officers discovered an outstanding warrant for Moralez’ arrest and, pursuant to his arrest, discovered marijuana on his person. The district court denied his suppression motion, and the Court of Appeals affirmed.
In reversing the denial of Moralez’ suppression motion, we expressly disapproved of any language in Martin that could be interpreted to suggest that the discovery of an arrest warrant during an unlawful detention represents an “intervening circumstance” that independently purges the taint of the unlawful detention. Instead, we agreed with the Arizona Supreme Court’s conclusion 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.’ ” Moralez,
Further, in Moralez, we acknowledged that at least some of our rationale in Martin regarding the third factor—the purpose and flagrancy of the police misconduct—conflicted with the rationale of Brown, and we expressly disapproved of any language in Martin suggesting that “fishing expeditions” by law enforcement officers are generally acceptable as long as the encounter is brief and the officers are courteous. See Moralez,
Applying this clarified attenuation analysis in Moralez, we held that the first factor—the short time between Moralez’ initial contact with police and the discovery of the marijuana—weighed heavily in favor of Moralez, while the second factor—the presence of intervening circumstances—was neutral under the circumstances of that case. Regarding the third factor, we concluded the officers’ conduct was not egregious because their initial presence in the area was justified by their observance of a vehicle with its lights on and an expired tag, and their conversation with Moralez, at least initially, was voluntary. Nevertheless, we found the officers acted flagrantly by retaining Moralez’ identification for the stated purpose of “documenting” who they talked to, but tiren exceeding that purpose by conducting a warrants check absent any suspicion whatsoever of criminal activity. We held:
“In doing so, [tire arresting officer] did more than round out his police report, he conducted an investigatory detention with no suspicion of unlawful activity. Under these circumstances, we conclude the third factor of the Brown attenuation analysis weighs slightly in favor of suppression here.”297 Kan. at 418 .
Ultimately, we concluded in Moralez that the officers’ flagrant conduct tipped the balance of the attenuation analysis in favor of Moralez, requiring application of the exclusionary rule.
Application of Attenuation Analysis
Here, application of the Martin attenuation analysis as clarified in Moralez weighs even stronger in favor of suppressing the evidence found by officers. Specifically, as in Moralez, the first factor weighs heavily
Finally, the third factor in this case—the purpose and flagrancy of the officers’ conduct—weighs heavily in favor of suppression. Importantly, not only did the officers lack reasonable suspicion of Williams’ involvement in criminal activity, the record also demonstrates no reason for the officers’ encounter with Williams other than to conduct what Officer Lewis described as a “pedestrian check,” which, in this case, involved the check for outstanding warrants. Cf. Moralez,
In analyzing the third attenuation factor, we find the Illinois appellate court’s rationale in People v. Mitchell,
In affirming the suppression of the cocaine, the Mitchell court concluded the third factor—the purpose and flagrancy of the official misconduct—weighed heavily in favor of suppression. Specifically, the court noted “the officers stopped defendant for no apparent reason other than to run a warrant check on him. Thus, the purpose of the stop in this case was directly related to the arrest of defendant, which then led directly to the search of defendant.”
As we noted in Moralez, “[r]egardless of whether a suspicionless detention to identify a citizen and check that citizen for outstanding arrest warrants is characterized as a standard practice, a field interview, a pedestrian check, or a 'fishing expedition,’ such a detention can, and often will, demonstrate at least some level of flagrant police conduct.” Moralez,
Such a detention is akin to an investigatory detention, and it is well established and well known to law enforcement officers that an investigatory detention must be supported by reasonable suspicion. See State v. Thomas,
As we acknowledged in Moralez, the third factor of the Brown attenuation analysis underscores the deterrent purpose of the exclusionary rule. Applying the exclusionary rule in cases such as these “ ‘appears to be the only way to deter the police from randomly stopping citizens for the purpose of running warrant checks.’ ” Moralez,
Because the discovery of cocaine in Williams’ shoe directly resulted from the exploitation of Williams’ unlawful detention, we reverse the Court of Appeals’ reversal of the suppression ruling, and we affirm the district court’s suppression ruling as correct for the wrong reason.
The Court of Appeals’ decision is reversed, and the district court’s suppression ruling is affirmed, but we reverse in part the district court to the extent it found that the stop began as a voluntary encounter.