State v. Tatro

• Citation: 445 P.3d 173
• Decision Date: 26 July 2019
• Docket Number: No. 118,237,118,237
• Parties: STATE of Kansas, Appellant, v. Erica Renee TATRO, Appellee.
• Court: United States State Supreme Court of Kansas

445 P.3d 173

STATE of Kansas, Appellant,

v.Erica Renee TATRO, Appellee.

No. 118,237

Supreme Court of Kansas.

Opinion filed July 26, 2019.

Brock R. Abbey, assistant county attorney, argued the cause, and Ellen H. Mitchell, county attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellant.

Joel Ensey, of Salina Regional Public Defender's Office, of Salina, argued the cause and was on the briefs for appellee.

The opinion of the court was delivered by Luckert, J.:

Applying the Fourth Amendment to the United States Constitution, the United States Supreme Court has developed a remedy that prohibits the admission of evidence obtained in violation of a person's constitutional rights. That remedy, known as the exclusionary rule, seeks to deter future constitutional violations by police officers and applies only when it furthers the rule's purpose. Several exceptions to the rule define situations in which the Supreme Court has determined the purpose is not served. This appeal focuses on one such exception—the attenuation doctrine. Under this exception, a court may admit evidence obtained as a result of an unconstitutional seizure if the connection between the unconstitutional police conduct and the discovery of the evidence is remote or has been sufficiently interrupted by an intervening circumstance, as long as the police did not commit the misconduct purposefully or flagrantly. See Utah v. Strieff , 579 U.S. ––––, 136 S. Ct. 2056, 2061-64, 195 L. Ed. 2d 400 (2016).

Applying the attenuation doctrine factors defined by the United States Supreme Court, the district court suppressed evidence derived from a search because it found that the search resulted directly from a police officer's unconstitutional seizure of Erica Renee Tatro. The Court of Appeals reversed, holding an intervening circumstance attenuated the taint of an unlawful seizure and thus did not invalidate a later search. State v. Tatro , No. 118,237, 2018 WL 1770191, at *1, 4-7 (Kan. App. 2018) (unpublished opinion). On review, we hold the district court erred in failing to consider the officer's discovery of an arrest warrant as a circumstance that intervened between the officer's illegal detention of Tatro and his search of her purse after arresting her on the warrant. But unlike the Court of Appeals, we remand to the district court for further findings of facts. There remain unanswered questions of fact and we remand for the district court to make all appropriate findings of fact under the correct legal standard.

FACTUAL AND PROCEDURAL BACKGROUND

A Salina police officer stopped Tatro while she was walking in the middle of a public street at around 3:30 a.m. The stop occurred in a neighborhood the officer considered a high-crime area known for vehicle burglaries. He thought it suspicious that Tatro was walking in the street and using a flashlight but acknowledged the area was very dark and he only observed her using the light to see where she was walking.

The officer stopped Tatro and asked for identification. She could not provide it but told the officer her name. He asked questions about where she lived and worked and whether her roommate had any contact with someone he called, "Shorty." He then conducted a warrant check, which showed Tatro had an outstanding arrest warrant. The officer arrested Tatro based on the warrant. He then seized her purse and conducted a pat-down search of her person. Minutes later, a second officer arrived on scene at which time the first officer searched Tatro's purse and found a small plastic baggie and a pipe, both of which contained methamphetamine residue.

The State charged Tatro with possession of drug paraphernalia. She moved to suppress the evidence derived from the search of her purse, arguing the officer violated her constitutional rights by detaining and searching her. The State responded by asserting the officer initiated a voluntary encounter, not a seizure. The State alternatively argued reasonable suspicion justified the detention if it was a seizure. Finally, the State asserted that even if the seizure violated the Fourth Amendment to the United States Constitution, the United States Supreme Court's attenuation doctrine analysis should be applied and the drug paraphernalia discovered in the search of Tatro's purse should be admitted into evidence. The State argued the officer's discovery of the warrant serves as a critical intervening factor breaking the causal connection between any illegality in the initial stop and the later discovery of evidence in the search incident to arrest.

The district court granted Tatro's motion, finding: (1) the encounter was not voluntary; (2) the officer did not have reasonable suspicion for the stop; and (3) the later discovery of the arrest warrant did not make the evidence admissible under the attenuation doctrine.

The State filed a timely interlocutory appeal. The Court of Appeals upheld the district court's findings that the encounter was involuntary and the officer's detention of Tatro was unsupported by reasonable suspicion. But it reversed the district court's ultimate decision, finding the officer's discovery of the arrest warrant before the search of Tatro's purse presented an intervening cause that justified Tatro's arrest and a search incident to the arrest. See State v. Tatro , No. 118,237, 2018 WL 1770191, at *1, 4-5, 7 (Kan. App. 2018) (unpublished opinion).

Tatro timely petitioned for and was granted review by this court. The State did not cross-petition for review of the Court of Appeals' adverse findings. This court's jurisdiction is proper under K.S.A. 20-3018(b) (petition for review of Court of Appeals decision).

ANALYSIS

The Fourth Amendment 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." U.S. Const. amend. IV. By prohibiting "unreasonable" searches and seizures, the Fourth Amendment inferentially allows "reasonable" ones. Reasonable searches and seizures include those supported by a valid warrant or by one of the warrant-requirement exceptions defined by the United States Supreme Court. State v. Doelz , 309 Kan. 133, 140, 432 P.3d 669 (2019). When, as here, a criminal defendant seeks to suppress evidence obtained from a search following a warrantless seizure, the legality of both the seizure and the search present intertwined questions because an unlawful seizure may taint the search and make it unconstitutional. State v. Thompson , 284 Kan. 763, 772, 166 P.3d 1015 (2007) ; see K.S.A. 22-2402 ; see also Terry v. Ohio , 392 U.S. 1, 18, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). And Tatro presents such an intertwined argument when she argues her unlawful initial detention taints the later search and makes it unreasonable.

As this appeal stands before us, the first step of Tatro's intertwined argument—whether an unreasonable seizure occurred—has been determined. Tatro prevailed on this prong of the argument in the district court. There, the district court rejected the State's argument that the officer acted constitutionally by either (1) initiating a voluntary encounter or (2) detaining Tatro based on reasonable suspicion that she had committed, was committing, or was about to commit a crime. The Court of Appeals affirmed the district court on these points. But it disagreed with the rest of the district court's analysis of the attenuation doctrine issue. See Tatro , 2018 WL 1770191, at *4-7.

Tatro sought our review of the Court of Appeals' analysis of the attenuation doctrine. When she filed that petition, the State needed to respond with a cross-petition or conditional cross-petition for review if it wanted us to review the panel's holding that the officer unconstitutionally detained Tatro. See Supreme Court Rule 8.03(c)(3) (2019 Kan. S. Ct. R. 56) ("The purpose of a cross-petition is to seek review of specific holdings the Court of Appeals decided adversely to the cross-petitioner."). It did not, and we thus accept without review the Court of Appeals' holding that the officer unconstitutionally seized Tatro, potentially tainting the officer's later search of her purse. See State v. Gray , 306 Kan. 1287, 1292-93, 403 P.3d 1220 (2017) (holding failure to cross petition on adverse holding meant this court would not review it); Supreme Court Rule 8.03(i)(1) (2019 Kan. S. Ct. R. 58) ("[T]he issues before the Supreme Court include all issues properly before the Court of Appeals that the petition for review, cross-petition, or conditional cross-petition allege were decided erroneously by the Court of Appeals.").

As a result, we consider the sole issue presented in Tatro's petition for review: Did the district court properly exclude the evidence obtained in the search of Tatro's purse or, under the attenuation doctrine, did the discovery of an arrest warrant purge the taint of the illegal stop and allow the admission of the alleged drug paraphernalia? Some background on the exclusionary rule and the attenuation doctrine provide context to that issue and our discussion.

Under the exclusionary rule, if a criminal defendant challenges the State's use of evidence obtained in violation of the Fourth Amendment, a court may suppress the "primary evidence obtained as a direct result of an illegal search or seizure" and "evidence later discovered and found to be derivative of an illegality," the so-called " ‘fruit of the poisonous tree.’ " Segura v. United States , 468 U.S. 796, 804, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984) ; see Wong Sun v. United States , 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963) (explaining fruit of poisonous tree doctrine); State v. Deffenbaugh , 216 Kan. 593, 598, 533 P.2d 1328 (1975) (same). But " ‘the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons.’ " Brown v. Illinois , 422 U.S. 590, 599-600, 95 S. Ct. 2254, 45...