State v. Moralez, No. 102,342.

CourtCourt of Appeals of Kansas
Writing for the CourtMALONE
Citation44 Kan.App.2d 1078,242 P.3d 223
PartiesSTATE of Kansas, Appellee, v. Joseph MORALEZ, Appellant.
Decision Date24 November 2010
Docket NumberNo. 102,342.
242 P.3d 223
44 Kan.App.2d 1078


STATE of Kansas, Appellee,
v.
Joseph MORALEZ, Appellant.


No. 102,342.

Court of Appeals of Kansas.

Nov. 24, 2010.

242 P.3d 226, 44 Kan.App.2d 1078

Syllabus by the Court

1. 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.

2. The Fourth Amendment to the United States Constitution provides that the right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated. Section 15 of the Kansas Constitution Bill of Rights contains similar language and provides protections identical to that provided under the Fourth Amendment.

3. There are four types of police-citizen encounters: voluntary encounters, investigatory detentions or Terry stops, public safety stops, and arrests.

4. A voluntary police-citizen encounter is not considered a seizure and does not require a law enforcement officer to have reasonable suspicion of criminal activity. In a voluntary encounter, the officer can ask the individual's name and request identification but cannot force the individual to answer.

5. 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. In applying the totality of the circumstances test in a Fourth Amendment context, no one factor is legally determinative, dispositive, or paramount.

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. Likewise, the subjective intent of a law enforcement officer is relevant

44 Kan.App.2d 1079
to an assessment of the officer's conduct only to the extent that such intent has been conveyed to the citizen.

7. Under 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. 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 illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.

8. The discovery of an outstanding arrest warrant may be an intervening circumstance which removes the taint of an illegal detention from the evidence acquired in a subsequent search incident to arrest, depending upon the purpose and flagrancy of the official misconduct that created the illegal detention.

Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, for appellant.

Chadwick J. Taylor, district attorney, Natalie Chalmers, assistant district attorney, and Steve Six, attorney general, for appellee.

Before MALONE, P.J., HILL and ATCHESON, JJ.

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 discovered

44 Kan.App.2d 1080
that the vehicle had an expired 30-day tag. Officer Mark
242 P.3d 227
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

44 Kan.App.2d 1081
of 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

242 P.3d 228
the encounter between Moralez and the officers was
44 Kan.App.2d 1082
voluntary, 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...

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6 practice notes
  • State v. Moralez, No. 102,342.
    • United States
    • United States State Supreme Court of Kansas
    • May 17, 2013
    ...a divided panel of the Court of Appeals affirmed the district court's suppression ruling and Moralez' conviction. State v. Moralez, 44 Kan.App.2d 1078, 242 P.3d 223 (2010), rev. granted 292 Kan. 968 (2011). We granted Moralez' petition for review under K.S.A. 20–3018(b), obtaining jurisdict......
  • State v. Strieff, No. 20100541–CA.
    • United States
    • Utah Court of Appeals
    • August 30, 2012
    ...cause to believe that a crime has been committed and that the person subject to the warrant has committed the crime.” State v. Moralez, 44 Kan.App.2d 1078, 242 P.3d 223, 231 (2010), review granted (Kan. 2011). In other words, a warrant provides cause for an arrest based on facts separate fr......
  • State v. Gardner, C.A. CASE NO. 24308
    • United States
    • United States Court of Appeals (Ohio)
    • November 4, 2011
    ...on an arrest warrant in Ohio has no Fourth Amendment protections against an unreasonable search and seizure." State v. Moralez (2010), 44 Kan.App.2d 1078, 1126, 242 P.3d 223, 251, review granted September 23, 2011. {¶ 23} Obviously, as Justice Frankfurter famously observed, many people who ......
  • State v. Vrabel, No. 108,930.
    • United States
    • Court of Appeals of Kansas
    • December 27, 2013
    ...notice to officers that any useful evidence they might obtain will be barred in a later criminal prosecution. See State v. Moralez, 44 Kan.App.2d 1078, 1122, 242 P.3d 223 (2010) (Atcheson, J., dissenting), rev. granted on other grounds 292 Kan. 968 (2011). K.S.A. 2012 Supp. 22–2401a does no......
  • Request a trial to view additional results
6 cases
  • State v. Moralez, No. 102,342.
    • United States
    • United States State Supreme Court of Kansas
    • May 17, 2013
    ...a divided panel of the Court of Appeals affirmed the district court's suppression ruling and Moralez' conviction. State v. Moralez, 44 Kan.App.2d 1078, 242 P.3d 223 (2010), rev. granted 292 Kan. 968 (2011). We granted Moralez' petition for review under K.S.A. 20–3018(b), obtaining jurisdict......
  • State v. Strieff, No. 20100541–CA.
    • United States
    • Utah Court of Appeals
    • August 30, 2012
    ...cause to believe that a crime has been committed and that the person subject to the warrant has committed the crime.” State v. Moralez, 44 Kan.App.2d 1078, 242 P.3d 223, 231 (2010), review granted (Kan. 2011). In other words, a warrant provides cause for an arrest based on facts separate fr......
  • State v. Gardner, C.A. CASE NO. 24308
    • United States
    • United States Court of Appeals (Ohio)
    • November 4, 2011
    ...on an arrest warrant in Ohio has no Fourth Amendment protections against an unreasonable search and seizure." State v. Moralez (2010), 44 Kan.App.2d 1078, 1126, 242 P.3d 223, 251, review granted September 23, 2011. {¶ 23} Obviously, as Justice Frankfurter famously observed, many people who ......
  • State v. Vrabel, No. 108,930.
    • United States
    • Court of Appeals of Kansas
    • December 27, 2013
    ...notice to officers that any useful evidence they might obtain will be barred in a later criminal prosecution. See State v. Moralez, 44 Kan.App.2d 1078, 1122, 242 P.3d 223 (2010) (Atcheson, J., dissenting), rev. granted on other grounds 292 Kan. 968 (2011). K.S.A. 2012 Supp. 22–2401a does no......
  • Request a trial to view additional results

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