source: Caselaw Access Project

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text:
    STATE of Kansas, Appellee, v. Ronald COTTRELL, Appellant.
    No. 114,635
    Supreme Court of Kansas.
    Opinion filed July 19, 2019.
    Rick Kittel, of Kansas Appellate Defender Office, was on the brief for appellant.
    Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
   The opinion of the court was delivered by Stegall, J.:

Ronald Cottrell sold prescription narcotics to an undercover detective in a QuikTrip parking lot in Sedgwick County. A jury convicted him of distributing of a controlled substance and conspiring to distribute a controlled substance. On appeal, he claims the conspiracy jury instruction, which alleged five overt acts in furtherance of the conspiracy, presented either a multiple acts or alternative means problem. He also challenges the denial of his motion for acquittal. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 5, 2013, Eduardo Padron, an undercover detective with the Wichita Police Department, set up a controlled drug buy from Jennifer Curtis based on a tip that she was selling prescription drugs illegally. Padron texted Curtis and asked "what kind of pills" she sold. Curtis responded, "Ok well my father is the one with the product id have to get ahold of him what ya need he has everything." Pardon requested 8 oxycodone pills and 20 hydrocodone pills, which are prescription narcotics. Before long, Curtis texted back, "He's got yours ready when you are[.]" They decided to meet at a QuikTrip later that day, around 5 p.m.

Undercover officers conducted surveillance of the QuikTrip before Padron arrived. One officer observed several people lingering outside the QuikTrip who appeared to be watching for law enforcement, and two of them spoke with Curtis. The officer described this as "counter surveillance" activity. When Padron arrived, he parked his unmarked car in a parking lot next to the QuikTrip. The car was equipped with an interior video camera.

Padron notified Curtis of his location, but she did not approach his vehicle. Instead, she stayed near the QuikTrip and texted Padron, "Still waitin on mah pops." About 20 minutes later, a blue pickup truck arrived and parked between Padron's car and the QuikTrip. Curtis walked over to the truck and contacted the driver. As she stood beside the truck, she called Padron and asked him to relocate to the post office. Padron refused to do so, and in the background of the call, he heard a male voice say "Fuck it, let's just do it here."

At this point, Cottrell exited the driver's side of the truck, walked over to Padron's vehicle, and entered the passenger side. Inside Patron's vehicle, Cottrell exchanged a pill bottle for $350 cash. Padron's video camera captured the exchange, which lasted about 30 seconds. The video was played for the jury, but only the audio recording is included on the record on appeal. The audio is fuzzy at times, but it is clear that Cottrell introduced himself as "Randy"; said he did not usually meet people; called Curtis his "daughter"; and described the bottle as an "8 and 20." Then Cottrell returned to his truck, spoke with Curtis for a little while, and drove away. A forensic scientist later testified that the pill bottle contained 20 hydrocodone pills and 8 oxycodone pills.

About a week later, Padron texted Curtis about buying more oxycodone. Curtis replied, "[L]emme get with my pops how many u need?" Padron requested 10 pills. He also asked Curtis to let him know when she had the pills in her possession. But Curtis hesitated and explained, "My dad wont lemme that cuz its his business I just bring in the clientel I handle customers only no money no merch." Eventually, the second sale fell through because Curtis stopped responding to Padron's texts.

The State charged Cottrell with distribution of hydrocodone, distribution of oxycodone, and conspiracy to distribute a controlled substance. At trial, the State called three witnesses: Padron, a surveillance officer, and the forensic scientist who identified the drugs. When the State rested, defense counsel moved for judgment of acquittal, claiming the State presented insufficient evidence of the charges. The court denied the motion.

The defense called Cottrell as its only witness. He insisted that he did not know what was inside the bottle and that he blindly followed Curtis' directions because he needed the money. He explained that Curtis and his son were dating before his son's death, and after his death, Cottrell loaned her money to pay the bills. He testified that Curtis told him to come to QuikTrip to pick up the money she owed him; when he arrived, she told him to exchange the pill bottle for the money; and he naïvely complied to get his repayment.

Defense counsel asked why Cottrell called the bottle "8 and 20" in his conversation with Padron. Cottrell explained that he learned the phrase from Curtis-when he asked her what the bottle was, she said it was "8 and 20." Cottrell claimed he did not know what this meant, but he exchanged the bottle anyway because, in his words, he "got mad and thought in the split second and went, fuck it, you know." On cross-examination, the prosecutor held up the pill bottle and asked Cottrell if he could see what was inside it. Cottrell admitted that he could see pills. The prosecutor also asked if Cottrell kept the money Padron gave him. Cottrell said he handed the money straight to Curtis and did not keep any of it.

Two jury instructions are relevant to this appeal. First, the charging document and the conspiracy jury instruction alleged the same five overt acts committed in furtherance of the conspiracy to distribute a controlled substance:

"1. JENNIFER M. CURTIS responded to Officer Padron's text inquiry with details on prices and where to go to conclude the sale of hydrocodone and oxycodone.
"2. JENNIFER M. CURTIS contacted RONALD D. COTTRELL, JR., with the sales order she obtained from Officer Padrone [sic ] and had, RONALD D. COTTRELL, JR., appear at the designated time and place with the pills Officer Padron ordered.
"3. RONALD D. COTTRELL, JR., went to the transaction site which JENNIFER M. CURTIS had brokered between Officer Padron and RONALD D. COTTRELL, JR.
"4. JENNIFER M. CURTIS waited by RONALD D. COTTRELL, JR.'s vehicle while he went to Officer Padron's vehicle and conducted the exchange brokered by JENNIFER M. CURTIS.
"5. JENNIFER M. CURTIS met with RONALD D. COTTRELL, JR. at his vehicle after the brokered transaction with Officer Padron was completed."

Second, the culpable mental state instruction stated: "As it relates to Distribution of a Controlled Substance, the State must prove the defendant committed the crimes knowingly ." (Emphasis added.) At the time, Cottrell did not object to these instructions, and he even asked for "knowingly" to be listed as the culpable mental state for distribution of a controlled substance.

In the end, the jury found Cottrell guilty on all counts. At sentencing, Cottrell renewed his motion for judgment of acquittal, but the court denied it again. The Sedgwick County District Court sentenced Cottrell to a total of 68 months' imprisonment with 36 months' postrelease supervision.

On appeal, Cottrell argues: (1) The district court erred when it failed to give a unanimity instruction because the State alleged multiple overt acts in furtherance of the conspiracy; (2) alternatively, the overt acts alleged were alternative means to commit the crime of conspiracy, and the State failed to produce sufficient evidence to support each one; (3) the district court erred when it instructed the jury that "knowingly" was the culpable mental state for distribution of a controlled substance; and (4) the district court erred when it denied his motion for judgment of acquittal because the evidence was insufficient to support the charges.

The Court of Appeals affirmed, holding that no unanimity instruction was required because the allegation of several overt acts in furtherance of one conspiracy does not present a multiple acts case. State v. Cottrell , 53 Kan. App. 2d 425, Syl. ¶ 3, 390 P.3d 44 (2017). Similarly, the panel held that alleged overt acts committed in furtherance of one conspiracy are not alternative means requiring jury unanimity. 53 Kan. App. 2d 425, Syl. ¶ 6, 390 P.3d 44. Finally, the panel held that Cottrell invited any error by requesting the challenged culpable mental state instruction and the district court did not err in denying his motion for judgment of acquittal. 53 Kan. App. 2d at 436-37, 440-41, 390 P.3d 44. We granted Cottrell's petition to review each of these holdings.

ANALYSIS

No unanimity instruction was required because alleging several overt acts in furtherance of one conspiracy does not present a multiple acts case.

Cottrell claims this is a multiple acts case because the State alleged several overt acts in furtherance of the conspiracy, as reflected in the jury instruction, and thus a unanimity instruction was required to ensure the jury agreed about which overt act supported the crime. The State argues there is no multiple acts problem because it presented evidence of only one conspiracy-to sell the "8 and 20" drugs to Padron-and the overt acts supporting that conspiracy are not separate crimes.

"When several acts are alleged, any of which could constitute the crime charged, the court is presented with a multiple acts case." State v. Bailey , 292 Kan. 449, 458, 255 P.3d 19 (2011). In a multiple acts case,

" 'the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, courts require that either the State elect the particular criminal act upon which it will rely for conviction or that the district court instruct the jury that all jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt.' " 292 Kan. at 458, 255 P.3d 19 (quoting State v. Dixon, 289 Kan. 46, Syl. ¶ 7, 209 P.3d 675 [(2009)] ).

Here, the State did not elect which overt act to rely on. So if Cottrell is correct that alleging several overt acts creates a multiple acts problem, then a unanimity instruction was required.

But the threshold question is whether this is a multiple acts case. To this end, we must determine "whether jurors heard evidence of multiple acts, each of which could have supported conviction on a charged crime," which is a question of law subject to unlimited review. State v. De La Torre , 300 Kan. 591, 596, 331 P.3d 815 (2014). More precisely, we must determine whether a jury instruction alleging several overt acts in furtherance of a conspiracy creates a multiple acts problem and thus requires a unanimity instruction.

" 'Multiple acts' are legally and factually separate incidents that independently satisfy the elements of the charged offense." 300 Kan. at 598, 331 P.3d 815. The charged offense at issue is conspiracy. K.S.A. 2012 Supp. 21-5302(a) states:

"A conspiracy is an agreement with another person to commit a crime or to assist in committing a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by such person or by a co-conspirator."

Thus, conspiracy contains two elements: " ' "(1) An agreement between two or more persons to commit or assist in committing a crime and (2) the commission by one or more of the conspirators of an overt act in furtherance of the object of the conspiracy." ' " State v. Butler , 307 Kan. 831, 842, 416 P.3d 116 (2018) (quoting State v. Hill , 252 Kan. 637, 641, 847 P.2d 1267 [(1993)] ).

As the Court of Appeals aptly said, "In a conspiracy case, it is the agreement that is the crux of the offense." Cottrell , 53 Kan. App. 2d at 431, 390 P.3d 44 ; see Sacharoff, Conspiracy as Contract , 50 U. Cal. Davis L. Rev. 405, 408 (2016) ("Sometimes the conspirators fail in their objective, or change their minds; courts still punish them because the agreement itself is the harm and deserves punishment."). Indeed, "[a] single conspiracy can last for years, with many of its substantive offenses being completed during that time" but only the single agreement may be punished. State v. Pham , 281 Kan. 1227, 1254, 136 P.3d 919 (2006). As we explained in Pham ,

" 'A single continuing conspiracy, however diverse its objects, cannot be broken down into component sub-agreements for the purpose of multiple punishments or multiple prosecutions. When separate conspiracies are alleged and both are founded on a general conspiracy statute, the relevant inquiry is whether there existed more than one agreement to perform an illegal act or acts.' " 281 Kan. at 1256, 136 P.3d 919 (quoting State v. Mincey , 265 Kan. 257, 268, 963 P.2d 403 [(1998)] ).

Put simply, a single conspiracy consists of one agreement, and a defendant may only be convicted of conspiracy if the State alleges and proves that the defendant or a co-conspirator committed an overt act in furtherance of that agreement. See K.S.A. 2012 Supp. 21-5302(a) ; see also 15A C.J.S., Conspiracy § 146 ("The function of an overt act requirement is simply to manifest that the conspiracy is at work."). There may be one or many overt acts committed in furtherance of a single conspiracy. But a multiple acts problem requires evidence of "separate incidents that independently satisfy the elements of the charged offense." De La Torre , 300 Kan. at 598, 331 P.3d 815. For conspiracy, that means multiple acts require multiple agreements. Or, to state the same principle in reverse, no matter how many overt acts the State proved in this case, Cottrell could only ever be convicted of one conspiracy.

The State presented arguments and evidence about one agreement between Cottrell and Curtis: to illegally sell hydrocodone and oxycodone to Padron on June 5, 2013. The jury instruction on conspiracy listed that same agreement. Thus, we agree with the Court of Appeals when it held:

"[A] single agreement to commit several crimes constitutes one conspiracy. By the same reasoning, multiple agreements to commit separate crimes constitute multiple conspiracies. Here, there was only one conspiracy alleged: the distribution of controlled substances. Because none of the overt acts charged in furtherance of that conspiracy are factually and legally sufficient to constitute a crime in and of themselves, there is no risk here that the jury could have found multiple conspiracies. ...
"... Because the facts of this case support only one conspiracy to distribute controlled substances, a multiple acts instruction would not have been proper." Cottrell , 53 Kan. App. 2d at 431-32, 390 P.3d 44.

See State v. Enriquez , 46 Kan. App. 2d 765, 775-76, 266 P.3d 579 (2011) ("the overt acts of a conspiracy do not present a multiple acts situation").

A jury instruction that lists several overt acts in furtherance of a conspiracy does not create alternative means for the crime of conspiracy.

Cottrell argues that if the overt acts alleged in the jury instruction are not multiple acts, then they must be alternative means for the crime of conspiracy. And if the overt acts are alternative means, then the State failed to produce sufficient evidence to support each one. The State does not contest that the overt acts listed in the instruction are alternative means. Instead, the State argues that sufficient evidence supports each alternative means, and any error was harmless.

" 'In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. In reviewing an alternative means case, a court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.' " Bailey , 292 Kan. at 458, 255 P.3d 19 (quoting Dixon , 289 Kan. 46, Syl. ¶ 7, 209 P.3d 675 ).

In other words, in "an alternative means case, we must conduct what we have termed a 'super-sufficiency' analysis. That is, sufficient evidence must support each of the alternative means charged to ensure that the verdict is unanimous as to guilt." Butler , 307 Kan. at 841, 416 P.3d 116.

As before, we begin with the threshold question: Are the overt acts listed in the jury instruction alternative means for the crime of conspiracy? See Butler , 307 Kan. at 841, 416 P.3d 116 ("[W]e must initially consider whether the jury was ever presented with an alternative means case."). This is a question of statutory interpretation subject to unlimited review. 307 Kan. at 841, 416 P.3d 116. And despite the State's admission that the jury instructions presented alternative means, we will independently determine questions of law. See State v. Hankins , 304 Kan. 226, 232, 372 P.3d 1124 (2016) (holding that this court will not permit parties to stipulate to legal conclusions from admitted facts).

"Alternative means issues arise when the statute and any instructions that incorporate it list distinct alternatives for a material element of the crime." State v. Sasser , 305 Kan. 1231, 1239, 391 P.3d 698 (2017). In recent years, we clarified that "[a]lternative means are legislatively determined, distinct, material elements of a crime, as opposed to legislative descriptions of the material elements or of the factual circumstances that would prove the crime." State v. Foster , 298 Kan. 348, Syl. ¶ 4, 312 P.3d 364 (2013) ; see State v. Brown , 295 Kan. 181, 184, 284 P.3d 977 (2012). For example, the inherently dangerous felonies that support the charge of felony murder are alternative means. See Bailey , 292 Kan. at 458, 255 P.3d 19 ; K.S.A. 2018 Supp. 21-5402(c) (listing the crimes that qualify as an "inherently dangerous felony").

Recently in Butler , we held the plain language of the conspiracy statute does not set forth alternative means for committing an overt act. 307 Kan. at 842, 416 P.3d 116 (citing Cottrell , 53 Kan. App. 2d at 433, 390 P.3d 44 ). Thus, the Cottrell panel was correct on this point. But even so, this case presents a question that Butler declined to address: whether a jury instruction that lists more than one overt act in furtherance of a conspiracy creates an alternative means problem.

In Butler , the instruction given for conspiracy to commit aggravated robbery alleged a "string of connected events" that amounted to one overt act: " 'The defendant or any party to the agreement acted in furtherance of the agreement by discussing and planning the aggravated robbery, arrived at the location, and carried out the plan. ' " 307 Kan. at 842, 844, 416 P.3d 116. Butler argued this instruction presented the jury with three alternative means for committing the overt act. He based this argument on two cases, Enriquez and State v. Smith , 268 Kan. 222, 993 P.2d 1213 (1999).

In Enriquez , the jury instruction for conspiracy to commit first-degree murder alleged three distinct overt acts, separated by the disjunctive "or":

"a. Purchasing tools at two locations in Dodge City, Kansas; or
"b. Requesting additional members to be part of the plan; or
"c. That the defendant, Noel Trejo-Medrano, and Joel Mendoza-Soto traveled from Nebraska to Dodge City, Kansas, to put the plan into place [.]" 46 Kan. App. 2d at 772-73, 266 P.3d 579.

The Enriquez panel held that this instruction created three alternative means for the overt act in furtherance of the conspiracy. 46 Kan. App. 2d 765, Syl. ¶ 7, 266 P.3d 579.

In Smith , "we expressed concern when a jury is given a list of possible overt acts-any of which may satisfy the overt act requirement-'a danger could exist that the jury was not unanimous as to the act or acts it relied upon for the conviction.' " (Emphasis added.) Butler , 307 Kan. at 844, 416 P.3d 116 (quoting Smith , 268 Kan. at 230, 993 P.2d 1213 ). But ultimately, "we found no error where the jurors were individually polled, and the jury affirmed it was unanimous as to the particular overt act." Butler , 307 Kan. at 844, 416 P.3d 116 ; see Smith , 268 Kan. at 230, 993 P.2d 1213.

Butler reasoned that Enriquez and Smith were distinguishable because in those cases the conspiracy instruction listed several overt acts, but in Butler , the instruction listed a sequence of events that constituted one overt act. Thus, we held that the single overt act listed in the Butler instruction did not constitute alternative means. 307 Kan. at 843-44, 416 P.3d 116. In so holding, we explained that "resolving Butler's claim does not necessitate an analysis of whether Enriquez and Smith remain valid after our decision in Brown , 295 Kan. 181, 284 P.3d 977, in which we established a statutory test for determining if alternative means existed. Butler's case presents a distinguishable set of facts." 307 Kan. at 844, 416 P.3d 116.

Today's case presents a fact pattern like Enriquez and Smith , where the jury instruction listed more than one overt act in furtherance of the conspiracy. Thus, we must pick up where Butler left off and determine whether the instruction here creates alternative means for the overt act in furtherance of the conspiracy, even though the conspiracy statute does not. We note, however, that Smith 's cautionary comment about the possible "danger" of giving the jury "a list of possible overt acts" is not controlling- Smith did not rule on the merits of the question at hand. Smith , 268 Kan. at 230, 993 P.2d 1213.

Recent caselaw distinguishes alternative means-which arise when a statute's plain language lists distinct alternatives for a material element of the crime-and mere descriptions of a material element or factual circumstance. When we explained this distinction in Brown , we noted that descriptions of an element in a jury instruction do not create alternative means:

"The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. But merely describing a material element or a factual circumstance that would prove the crime does not create alternative means, even if the description is included in a jury instruction ." ( Emphasis added.) 295 Kan. at 194, 284 P.3d 977.

Indeed, descriptions of material elements "are secondary matters-options within a means-that do not, even if included in a jury instruction , raise a sufficiency issue that requires a court to examine whether the option is supported by evidence." ( Emphasis added.) 295 Kan. at 200, 284 P.3d 977.

Following Brown , we affirm that only the language of a statute can create alternative means for a crime. If the statute lists "alternative, distinct, material elements" of a crime, then it creates alternative means. 295 Kan. at 194, 284 P.3d 977. But a jury instruction that lists descriptions of how a material element might be satisfied does not, on its own, create alternative means. To hold otherwise would permit a jury instruction to override legislative intent and effectively revise the criminal code.

Thus, we affirm that the conspiracy statute does not set forth alternative means for committing an overt act.

Butler , 307 Kan. at 842, 416 P.3d 116 ; see K.S.A. 2018 Supp. 21-5302(a). We also overrule Enriquez and hold that a jury instruction listing more than one overt act in furtherance of a conspiracy does not create alternative means. Instead, such an instruction merely describes the factual scenarios that could prove the material element of an overt act.

Cottrell invited any jury instruction error.

Next, Cottrell argues the district court erred when it instructed the jury that "knowingly" was the culpable mental state for distribution of a controlled substance. Instead, he claims the correct culpable mental state is "intentionally," based on State v. Hall , No. 109,602, 2014 WL 3843085 (Kan. App. 2014) (unpublished opinion). The State counters that Cottrell's argument is precluded by invited error. The Court of Appeals agreed with the State, holding that Cottrell invited any error because he "not only appears to have submitted his written requested jury instructions including knowingly as the mental state for the distribution charge but also affirmatively asked the district court to issue that instruction at the jury instruction conference." Cottrell , 53 Kan. App. 2d at 440-41, 390 P.3d 44.

We review alleged jury instruction errors through a multistep process. See, e.g., State v. Plummer , 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012). The first step is reviewability, a concept that includes invited error. State v. Fleming , 308 Kan. 689, 695, 423 P.3d 506 (2018). "Whether the invited error doctrine applies is a question of law over which this court has unlimited review." Sasser , 305 Kan. at 1235, 391 P.3d 698.

The record indicates that both parties submitted proposed jury instructions to the district court, but Cottrell's are oddly missing from the record. The record also does not show when Cottrell submitted his proposed instructions. That said, we conclude the record is sufficient to determine whether Cottrell invited any error because defense counsel discussed his proposed instruction on distribution of a controlled substance-and asked for "knowingly" to be the culpable mental state-at the jury instruction conference:

"THE COURT: I'm just looking at your instructions you've identified, actually in your instructions-
"[DEFENSE COUNSEL]: I've put intentionally as it relates to conspiracy to commit, and I had a typo, should be conspiracy to commit distribution of a controlled substance. So I specifically listed that crime, which is an intentional crime. Then down below knowingly, as it relates to distribution of the controlled substance, the State must prove the defendant committed the crimes knowingly."

Defense counsel stuck to that request throughout the jury instruction conference. In fact, only one dispute arose over the mental state for drug distribution-the parties agreed that "knowingly" was the right culpable mental state, but they disagreed where to put "knowingly" in the instructions. Defense counsel wanted to place "knowingly" within the definition of distribution of a controlled substance; the prosecutor wanted to place "knowingly" in a stand-alone culpable mental state instruction. In the end, the final instruction read: "Knowingly: As it relates to Distribution of a Controlled Substance, the State must prove the defendant committed the crimes knowingly. A defendant acts knowingly when the defendant is aware that his conduct was reasonably certain to cause the result complained about by the State." Defense counsel said he did not object to the final instruction.

We recently clarified that

"the invited-error doctrine does not automatically apply every time a party requests an instruction at trial but then, on appeal, claims the district court erred by giving it. Instead, appellate courts must engage in a searching analysis of the facts of the case to determine whether the complaining party truly invited the error." Fleming , 308 Kan. at 689-90, 423 P.3d 506.

There is no "bright-line rule" for applying the invited error doctrine, and context matters. Sasser , 305 Kan. at 1235, 391 P.3d 698 ; see Fleming , 308 Kan. at 702, 423 P.3d 506 (explaining that "the nature of the error ... and the circumstances surrounding the drafting of instructions" are critical to an invited error analysis). On the one hand, "the mere failure to object to a proposed instruction at the instructions conference does not trigger the doctrine." 308 Kan. at 702, 423 P.3d 506. "On the other hand, when a defendant actively pursues what is later argued to be an error, then the doctrine most certainly applies." Sasser , 305 Kan. at 1236, 391 P.3d 698. The fact that a defendant submitted a proposed instruction before trial does not prevent applying the invited error doctrine if the error "was as obvious before trial as after trial." Fleming , 308 Kan. at 703, 423 P.3d 506.

We conclude that Cottrell invited any error because he "actively pursue[d]" an instruction for distribution of a controlled substance that included a knowing culpable mental state. See Sasser , 305 Kan. at 1236, 391 P.3d 698. Cottrell was unwavering in this request, and any error "was as obvious before trial as after trial." See Fleming , 308 Kan. at 703, 423 P.3d 506. Not to mention, defense counsel stated on the record that he did not object to the final instruction. On these facts, we hold invited error precludes us from reaching the merits of Cottrell's jury instruction challenge.

The district court did not err when it denied Cottrell's motion for acquittal.

Lastly, Cottrell argues the district court erred when it denied his motion for acquittal because the State presented insufficient evidence that he (1) agreed with Curtis to distribute the controlled substances and (2) knowingly distributed them. A challenge to a denial of a motion for acquittal is, at the core, a challenge to the sufficiency of the evidence. See State v. Raskie , 293 Kan. 906, 919, 269 P.3d 1268 (2012). Thus, we must determine whether, in a light most favorable to the prosecution, a rational fact-finder could have found Cottrell guilty beyond a reasonable doubt. See 293 Kan. at 919-20, 269 P.3d 1268. We do not reweigh evidence, assess witness credibility, or resolve conflicting evidence. 293 Kan. at 920, 269 P.3d 1268.

First, Cottrell argues the State failed to prove that he agreed with Curtis to distribute drugs because it presented no evidence about his communications with Curtis about the events at QuikTrip. Indeed, the only direct evidence about their communications that day came from Cottrell's testimony, and Cottrell painted his participation in an innocent light. In effect, Cottrell claims direct evidence needed to prove the agreement occurred. But on the contrary, "[t]he agreement element of a conspiracy charge need not be proved by direct evidence; it may be supported by circumstantial evidence." State v. Davis , 284 Kan. 728, 737, 163 P.3d 1224 (2007) ; see, e.g., State v. Morton , 217 Kan. 642, 643, 538 P.2d 675 (1975) ("It is well established in this jurisdiction that a conviction of even the gravest offense may be sustained by circumstantial evidence."). Or, put differently, the "meeting of the minds" required for conspiracy "may be expressed or implied from the acts of the parties." Smith , 268 Kan. at 228, 993 P.2d 1213. And the State presented sufficient circumstantial evidence that Cottrell agreed with Curtis to distribute the drugs.

For example, Curtis texted Padron that her father was the one with the product; that she was waiting on him to complete the transaction; that she brought in the clientele but he ran the business. These texts suggest that Cottrell ran an illegal drug business with Curtis' assistance, and the two worked together to complete the sale to Padron. But Cottrell's actions speak loudly as well. At QuikTrip, officers observed Cottrell speak with Curtis directly before and after the sale. Cottrell personally exchanged the pill bottle for cash, which was caught on video. And finally, Cottrell described the pill bottle as an "8 and 20" and referenced his "daughter" during the exchange, suggesting the two coordinated the sale together. Viewed in a light most favorable to the State, this evidence is sufficient to prove that Cottrell agreed with Curtis to distribute the drugs.

Second, Cottrell argues that he did not knowingly distribute controlled substances. In support, he points to his own testimony that he did not understand what was happening and did not know what was in the bottle. We assume without deciding that knowingly is the required culpable mental state for this crime. And in the context of controlled substances, we have recently clarified that a knowing culpable mental state can be disproved if a mistake of fact is shown. State v. Rizal , 309 Kan. ----, ----, 445 P.3d 734 (2019) (holding "a mistake of fact about the nature of a controlled substance-meaning the actual belief that it is 'some other lawful substance' that is not controlled, State v. Rosa , 304 Kan. 429, 437, 371 P.3d 915 (2016) -could negate the knowledge requirement").

Essentially, Cottrell argues the jury should have given his testimony-that he did not know what was in the bottle or that it contained a controlled substance-more credibility and discounted the significant circumstantial evidence against him. But, of course, we do not reweigh credibility. Raskie , 293 Kan. at 920, 269 P.3d 1268. And the circumstantial evidence supporting his knowledge that he was distributing controlled substances was significant. For instance, Curtis' texts about the quantity of drugs and her father's involvement in the sale, combined with Cottrell's comment to Padron about the "8 and 20" bottle, suggest that Cottrell understood the sale involved a controlled substance. Not to mention, a reasonable juror could find that Cottrell's story was farfetched, to say the least-that he blindly exchanged a pill bottle (called an "8 and 20") for cash in a stranger's car at a gas station and had no idea the bottle contained illicit drugs. Given this, a reasonable jury could have weighed the conflicting testimonies and found the knowledge requirement met beyond a reasonable doubt.

Affirmed.


text:
    STATE of Kansas, Appellant, v. Lee Sawzer SANDERS, Appellee.
    No. 118,640
    Supreme Court of Kansas.
    Opinion filed July 26, 2019.
    Rachel L. Pickering, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the briefs for appellant.
    Reid T. Nelson, of Capital and Conflicts Appeals Office, argued the cause, and was on the briefs for appellee.
   The opinion of the court was delivered by Luckert, J.:

In this interlocutory appeal of a district court order suppressing evidence, the State argues the district court committed two errors. A Court of Appeals panel rejected the State's argument about one error but agreed with the State on another. Specifically, it rejected the argument that the district court erred by concluding police officers lacked reasonable suspicion to detain Lee Sawzer Sanders. But it agreed with the State that the attenuation doctrine applied and the district court should not have suppressed the evidence obtained in a search of Sanders. In invoking the attenuation doctrine, the panel noted that, after the officers seized and searched Sanders, they discovered a preexisting arrest warrant. This discovery attenuated the taint of the unconstitutional seizure, according to the panel. See State v. Sanders , No. 118640, 2018 WL 2375258, at *1, 5-7 (Kan. App. 2018) (unpublished opinion).

Sanders petitioned for review arguing the panel erred in applying the attenuation doctrine under these facts. And the State cross-petitioned arguing the panel erred in holding the officers lacked reasonable suspicion to detain Sanders and in failing to consider its alternative argument that the inevitable discovery doctrine also provides a basis for concluding the district court should not have suppressed the evidence.

We granted review and now reverse the Court of Appeals panel and affirm the district court. We agree with the district court's and the panel's determinations that the officers lacked reasonable suspicion to detain Sanders. We disagree, however, with the panel's application of the attenuation doctrine. The panel held the officers' discovery of a warrant interrupted the causal chain between the detention and the search. But the search of Sanders occurred before the officers discovered the arrest warrant. While the officers searched some possessions they had seized after they discovered the warrant, the search incident to arrest exception to the warrant requirement-the exception discussed by the Court of Appeals-did not apply because the items were no longer in Sanders' reach or control. And while, for the first time on appeal, the State offers the inevitable discovery doctrine as an exception to the exclusionary rule and the inventory search exception as an alternative basis to justify the search, it failed to preserve these arguments and we decline to address them. We thus conclude the district court did not err in suppressing the evidence obtained when the officers searched Sanders.

FACTUAL AND PROCEDURAL BACKGROUND

Sanders was stopped by two Topeka Police Officers, Raph Belt and Cody Purney, in a restaurant's parking lot. The officers provided differing accounts of the event. Officer Belt testified he and Officer Purney had just finished investigating an unrelated incident and were seated in their parked patrol car when they noticed Sanders trying to open the door of a nearby car. Officer Belt testified that Sanders saw the officers, walked away from the car, and went into a nearby alleyway. In contrast, Officer Purney testified they had not been responding to a call but were driving down the road in what he described as "self-initiated activity" or "free mode." Officer Purney stated he had not seen Sanders trying to get into the car. Instead, Officer Belt told him he saw Sanders close the car door and go down the alleyway. Officer Belt alleged Sanders tried to conceal himself in the alleyway. He testified he "[k]ind of hollered at [Sanders], 'hey, I would like to speak with you.' " Officer Belt claimed Sanders ran from him, although Sanders ultimately stayed in the vicinity of the restaurant and returned to the car, which officers later learned belonged to Sanders. At that point, Officer Belt physically contacted Sanders and placed him in handcuffs.

Officer Belt then asked Sanders if he had any weapons on his person, and Sanders said he had a knife in his pocket. Officer Belt conducted a pat-down of Sanders' person and felt an item he thought was a pocket knife that turned out to be a key. Officer Belt asked Sanders where the knife might be. Sanders told him it might be in his vehicle but he was not sure. Officer Belt asked to search Sanders for the knife and Sanders agreed. Officer Belt found a methamphetamine pipe, deck of cards, and "a prison or a jail I.D." Officer Purney then ran a warrant check and discovered an outstanding arrest warrant. Sanders was arrested and Officer Belt went through the items taken from Sanders' person, finding a small bag containing methamphetamine inside the card deck.

The State charged Sanders with possession of methamphetamine and possession of drug paraphernalia. Sanders filed a motion to suppress evidence, arguing he had been unlawfully seized and searched. The district court granted Sanders' motion, finding the officers' testimony conflicting and "too much of the answers to the questions or the scenario posed by the officers appears to be that of filling in the blanks after the fact as opposed to what they did, why they did it at the time." The district court found it was "not clear that the officer was truly investigating or making contact with somebody who was committing or had committed or was about to commit a crime." The court also said it

"watched the officers and their facial expressions as they testified separately and watched and listened to what their conduct was, the things that might have been questionable, they could not recall, were not aware of, and it was things that they seemed-the impression I get from listening to their testimony is that they pieced things together after the fact."

Additionally, the district court found "contradictions and inconsistency in the testimony between the officers that doesn't really balance or fit the two with each other," and stated:

"The other part-well, my initial issue is the contact that the officer had in taking the defendant into custody, I have great difficulty with and I've tried to look at the fact of balancing whether the-I don't remember if it's the Attenuation Doctrine. You know, at some point, they find out there's a warrant but my belief, counsel, is that the activity or that the whole issue of seizing the defendant, I have great difficulty with based on the testimony that I've heard."

The district court held: "I still think the whole thing had been set up to be able to make contact and do those things with the defendant. Then they find out about the warrant."

The State filed an interlocutory appeal. The Court of Appeals upheld the district court's finding that the officers lacked reasonable suspicion to detain Sanders. But the panel reversed the district court's decision to suppress the evidence based on the United States Supreme Court's attenuation doctrine analysis in Utah v. Strieff , 579 U.S. ----, 136 S. Ct. 2056, 2060-62, 195 L. Ed. 2d 400 (2016), because of the discovery of the arrest warrant. See Sanders , 2018 WL 2375258, at *1, 5-7.

Sanders timely petitioned for review and the State filed a timely cross-petition. We granted review of Sanders' petition and the State's cross-petition. Our jurisdiction is proper under K.S.A. 20-3018(b) (petition for review of Court of Appeals decision).

ANALYSIS

All issues before us relate to a warrantless seizure and search and the district court's decision to suppress the evidence obtained as a result. In reviewing the granting or denial of a motion to suppress evidence, we determine whether the factual findings underlying the district court's decision are supported by substantial competent evidence. Its ultimate legal conclusions are reviewed de novo. In doing so, we do not reweigh evidence or make credibility determinations. See State v. Patterson , 304 Kan. 272, 274, 371 P.3d 893 (2016). The State bears the burden of proving the lawfulness of its search and seizure. State v. Reiss , 299 Kan. 291, 296, 326 P.3d 367 (2014).

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. State v. Ramirez , 278 Kan. 402, 404, 100 P.3d 94 (2004). The United States Supreme Court has interpreted this prohibition to require law enforcement officers who seize an individual or who conduct a search to have either a warrant or a basis for relying on one of the specific and well-recognized exceptions to the warrant requirement. See Riley v. California , 573 U.S. 373, 382, 134 S. Ct. 2473, 2482, 189 L. Ed. 2d 430 (2014) ; State v. Neighbors , 299 Kan. 234, 239, 328 P.3d 1081 (2014).

Before considering whether a search was lawful, a court should consider the legality of the initial seizure, as an unlawful seizure may taint the fruits of the later search. See State v. Thompson , 284 Kan. 763, 777, 166 P.3d 1015 (2007). One exception to the warrant requirement allows an officer to stop and briefly detain an individual without a warrant when the officer has an articulable and reasonable suspicion, based in fact, that the detained person is committing, has committed, or is about to commit a crime. See Terry v. Ohio , 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) ; State v. Epperson , 237 Kan. 707, 711-12, 703 P.2d 761 (1985).

To have reasonable suspicion to detain an individual, "[a] police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry , 392 U.S. at 21, 88 S.Ct. 1868. The suspicion must have " 'a particularized and objective basis' " and be something more than "an unparticularized suspicion or hunch." State v. DeMarco , 263 Kan. 727, 735, 952 P.2d 1276 (1998) (quoting Ornelas v. United States , 517 U.S. 690, 696, 116 S. Ct. 1657, 134 L. Ed. 2d 911 [1996], and citing United States v. Sokolow , 490 U.S. 1, 7, 109 S. Ct. 1581, 104 L. Ed. 2d 1 [1989] ). Although the United States Supreme Court has recognized that "the concept of reasonable suspicion is somewhat abstract," it has "deliberately avoided reducing it to ' "a neat set of legal rules." ' " United States v. Arvizu , 534 U.S. 266, 274, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002).

With that background in mind, we turn to the parties' three arguments that (1) the district court erred by ruling the officers did not have reasonable suspicion to detain Sanders, (2) the district court erred by failing to apply the attenuation doctrine exception to the exclusionary rule, and (3) the Court of Appeals erred by not applying the inevitable discovery doctrine.

1. The officers lacked reasonable suspicion to detain Sanders.

The first argument we consider is one presented by the State. It argues the Court of Appeals panel erred by upholding the district court's finding that the officers lacked reasonable suspicion. See Sanders , 2018 WL 2375258, at *5-6.

First, the State asserts the panel erred in concluding the officers lacked reasonable suspicion to pursue Sanders rather than focusing on whether the officers had reasonable suspicion when they seized Sanders. The State is correct to the extent that the Constitution prohibits an unreasonable seizure, and Sanders was not seized until he stopped or yielded to a show of authority. Thus, as the State argues, we do not look only at what the officers observed before they began to pursue Sanders. We must also examine the officers' observations between the time they began pursuing him and when he finally stopped. See California v. Hodari D. , 499 U.S. 621, 628-29, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991) (foot chase did not become a seizure until defendant stopped); State v. Sharp , 305 Kan. 1076, 1084-85, 390 P.3d 542 (2017) (reasonable suspicion is a fluid concept and the existence of reasonable suspicion may change once new facts are observed by officers).

Establishing these points of law does not translate to an error by the district court or the Court of Appeals, however. The district court correctly applied the law by considering all the circumstances up until the officers took custody of Sanders. It stated: "[M]y initial issue is the contact that the officer had in taking the defendant into custody, I have great difficulty...." And the Court of Appeals considered events from the time the officers saw Sanders until they physically detained him. So we begin our analysis with the understanding the district court and Court of Appeals considered all the evidence weighing on reasonable suspicion, including Sanders' alleged unprovoked flight and attempt to secrete himself.

Second, in arguing the district court erred, the State focuses on evidence that it characterizes as Sanders' attempt to conceal himself and to flee from police. The State argues these circumstances support reasonable suspicion. And these points are critical to the State's argument. In its cross-petition, the State does not argue there was reasonable suspicion absent these two factors. And the State essentially conceded as much at the suppression hearing, stating: "Your Honor, defense would be correct if this individual hadn't run and tried to conceal himself by the building." The State has thus abandoned the point that the officers lacked reasonable suspicion before they began pursuing Sanders. See Supreme Court Rule 8.03(c)(3) (2019 Kan. S. Ct. R. 53) (cross-petitioner must raise issues adversely decided by the Court of Appeals to preserve them for review).

But the officers' observations before that point are relevant to our consideration because Illinois v. Wardlow , 528 U.S. 119, 124-25, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000), instructs us to consider the totality of the circumstances when unprovoked flight is a major component of the argument that reasonable suspicion exists. See 528 U.S. at 124, 120 S.Ct. 673. So we begin our discussion at the initial sighting of Sanders by the officers.

Officer Belt testified he saw Sanders "messing with the [door] handle" and may have had a key or something else in his hand. In contrast, Officer Purney did not see what happened but testified that Officer Belt told him he saw Sanders close the door. Neither officer testified they saw Sanders approach the vehicle, and Officer Belt did not testify whether he observed anyone inside the vehicle before he saw Sanders. Based on these observations, there was no basis to infer Sanders was attempting to enter or break into the vehicle as opposed to having exited the vehicle, locked the door with a key, and pulled the handle to ensure the door was locked before walking away.

Even if Sanders was approaching the vehicle, the officers' observations did not support a reasonable inference of criminal activity. Officer Belt testified he did not see any apparent burglary tools in Sanders' possession. And Sanders' actions were visible, not only to the police but to others. The officers' encounter with Sanders occurred in the early evening hours in a lit parking lot next to a well-travelled city street. The restaurant was open for business and was next to an apartment building. The officers did not testify to any reason to suspect Sanders was not a customer or employee of the restaurant or a resident or guest at the apartments. In other words, nothing about Sanders' behavior when the officers first spotted him creates a reasonable suspicion he had committed, was committing, or was about to commit a crime.

Next, Sanders walked away from the car. Even assuming he saw the officers, his walking away, standing alone, does not provide reasonable suspicion to detain. See Florida v. Royer , 460 U.S. 491, 497-98, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (law enforcement officers may approach and seek to speak with an individual; yet, without reasonable suspicion to detain the individual, the person is free to refuse to answer the officer's questions and simply walk away, and doing so does not furnish reasonable suspicion); Epperson , 237 Kan. at 713, 703 P.2d 761 ("That the men appeared startled when the patrol car emerged from the alley, that the passenger appeared to reach down to the floorboard area, and that the men got out of the car and started to walk away, is not indicative of criminal activity.").

Sanders then walked into the alleyway and, according to Officer Belt, attempted to conceal himself behind a drainpipe. The State argues that an attempt at concealment supports reasonable suspicion and cites United States v. Smith , 396 F.3d 579, 585 (4th Cir. 2005). There, a driver, after seeing a police roadblock, turned off a highway to avoid the officers. Quoting Wardlow , 528 U.S. at 124-25, 120 S.Ct. 673, the Fourth Circuit Court of Appeals stated that " '[h]eadlong flight' or other 'nervous, evasive behavior' in response to a roadblock may contribute to reasonable suspicion that the driver is engaged in criminal activity.... Such evasive behavior is 'not going about one's business.' " Smith , 396 F.3d at 584. Smith is distinguishable for two reasons.

First, as we have discussed, it is not clear that Sanders had spotted the police. In contrast, the driver in Smith admitted that he had. 396 F.3d at 582. Second, nothing in this record establishes that Sanders was not going about his business at that point. All the record contains about a possible attempt at concealment is Officer Belt's claim that Sanders attempted to hide behind a drainpipe in the alleyway. Often an officer's impression of an individual's actions would be enough to support a reasonable suspicion. Here, however, the district court discounted Officer Belt's testimony finding "too much of the answers to the questions or the scenario posed by the officers appears to be that of filling in the blanks after the fact as opposed to what they did, why they did it at the time."

In addition, the officer's belief, assertion, or hunch is not the critical consideration. Rather, a question of fact arises about whether Sanders intended to conceal himself or was merely standing by the drainpipe for some innocent purpose. See State v. Kettler , 299 Kan. 448, 467, 325 P.3d 1075 (2014) (intent is a question of fact that "may be inferred from the established circumstances of a case, provided the inferences are reasonable"). But the district court did not specifically address the possibility of concealment and made no factual findings on this point.

Despite the lack of an explicit ruling, the State failed to object or request a clarification. A party must object to inadequate findings of fact or conclusions of law to preserve the issue for appeal. See State v. Herbel , 296 Kan. 1101, 1119, 299 P.3d 292 (2013). When a party fails to object, an appellate court can presume the district court found all facts necessary to support its judgment. See State v. Dern , 303 Kan. 384, 394, 362 P.3d 566 (2015). Remand is necessary only where the record does not support such a presumption and the lack of findings precludes meaningful review. See State v. Neighbors , 299 Kan. 234, 240, 328 P.3d 1081 (2014).

Neither circumstance exists here. The district court concluded the officers lacked reasonable suspicion. And nothing in the record other than Officer Belt's supposition, which the district court appeared to find incredible, suggests that Sanders used the drainpipe as cover for concealing himself. The record reveals no details about the size and appearance of the drainpipe. Nor does the evidence otherwise explain why it was reasonable to believe a drainpipe would conceal someone. And a plethora of innocent explanations-smoking or making a call, for example-could explain why Sanders stood there.

Sanders apparently spotted the police at that time, if not before. And he then allegedly ran from the officers. But it is not clear that the district court believed Sanders ran. The court's findings about Sanders' running are mixed with its concerns about the inconsistencies in the officers' testimony.

In general, the district court was troubled by the officers' actions and conduct and began its ruling on the motion with: "All right. Counsel, this hearing is troublesome to the Court." To reiterate some of the other comments, because they frame our analysis, the district court found it was "not clear that the officer was truly investigating or was making contact with somebody who was committing or had committed or was about to commit a crime," and stated "the whole issue of seizing the defendant, I have great difficulty with based on the testimony that I've heard." The district court also stated the officers' testimony was inconsistent and they appeared to be "filling in the blanks after the fact," and "pieced things together after the fact." The record shows inconsistencies in the officers' testimony at the suppression hearing as well as discrepancies in what Officer Belt said at the suppression hearing and what he told Officer Purney at the time of the incident. The district court also found "[t]here were so many things that Officer Belt did not know," and stated it "watched the officers and their facial expressions as they testified ... and watched and listened to what their conduct was, the things that might have been questionable, they could not recall, were not aware of." And the record shows Officer Belt did not know or could not recall several details of the surrounding events.

As to the specifics of Sanders running, the duration and nature of the pursuit, and whether Sanders was walking or running are points of conflict or inconsistency in the officers' testimony. The district court mentioned the differing accounts before stating "[t]he defendant apparently walked away initially and then at some point, may have run from the officer." (Emphasis added.) At another point, the district court stated some evidence established "there was some running." But the court followed this statement by restating its concerns about the conflicting testimony and its observations of the officers' demeanor during that portion of their testimony. The district court's statements can be read as a finding that the officers alleged Sanders ran from them, not that the district court found that he did. And the district court's statement that Sanders "may have run from the officer" suggests it did not make a finding that Sanders ran. (Emphasis added.)

Again, the State failed to object to the district court's findings or lack of findings, or otherwise request a clarification. It thus did not preserve the issue for appeal. See Herbel , 296 Kan. at 1119, 299 P.3d 292. And given the district court's credibility concerns and the reasons given for its decision, we presume the district court properly considered the question of flight in reaching its ultimate conclusion. As a result, we need not remand for further findings. See Dern , 303 Kan. at 394, 362 P.3d 566 ; Neighbors , 299 Kan. at 240, 328 P.3d 1081.

Turning from the district court's analysis to that of the Court of Appeals panel, the State contends the panel did not properly consider Wardlow 's holding in its analysis. But the panel explicitly mentioned Wardlow and distinguished it for three reasons:

"First, there is no evidence in the record to establish that the [resturant's] parking lot was 'an area of expected criminal activity' nor did the State attempt to prove that it is in a high crime area. Second, there is no evidence in the record to suggest that the officers expected to encounter criminal activity in the [restaurant's] parking lot during business hours. Third, even if we assume that Sanders saw the patrol vehicle before he walked away from his car, walking away from one's car is not the type of 'headlong flight' referred to in Wardlow ." Sanders , 2018 WL 2375258, at *6.

These distinctions are valid.

In summary, the district court's assessment that the State failed to carry its burden of proving the lawfulness of the seizure largely rested on the district court's concerns about the credibility of the officers' accounts. We cannot reweigh evidence, determine credibility, or make independent factual findings. See Patterson , 304 Kan. at 274, 371 P.3d 893. The State has thus failed to show error in the conclusion of the district court that it was "not clear that the officer was truly investigating or making contact with somebody who was committing or had committed or was about to commit a crime." We, therefore, accept the lower courts' conclusions that the officers' initial seizure of Sanders was unsupported by reasonable suspicion.

2. The attenuation doctrine does not save the fruits of the unlawful seizure.

Sanders raises the next argument. He asserts the panel erred in considering the State's attenuation doctrine argument on appeal because the State did not raise the issue before the district court. We agree with Sanders that the State did not raise this issue to the district court. If it did, the point was incidentally raised by the prosecutor arguing that "it wasn't until after the warrant, after he was for sure going to jail that the methamphetamine was found inside the deck of cards." The State failed to cite caselaw about the attenuation doctrine. Specifically, it did not cite the case it now relies on, Utah v. Strieff , 579 U.S. ----, 136 S. Ct. 2056, 195 L. Ed. 2d 400 (2016). It even failed to use the words "attenuation doctrine" in its argument to the district court. But, as the Court of Appeals noted, the district court referenced the attenuation doctrine in its ruling:

"The other part ... I have great difficulty with and I've tried to look at the fact of balancing whether the-I don't remember if it's the Attenuation Doctrine. You know, at some point, they find out there's a warrant but my belief, counsel, is that the activity or that the whole issue of seizing the defendant, I have great difficulty with based on the testimony that I've heard."

Based on this brief reference, the Court of Appeals panel determined it could review the issue because the district court raised it sua sponte. See Sanders , 2018 WL 2375258, at *6. We agree that while brief, the district court did consider the doctrine and it made findings on the most critical of the attenuation doctrine factors-the flagrancy of the police conduct. To put those findings in perspective, some background of the doctrine is helpful.

The attenuation doctrine is an exception to the exclusionary rule. Strieff , 136 S. Ct. at 2061. 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 L. Ed. 2d 416 (1975) (quoting United States v. Calandra , 414 U.S. 338, 348, 94 S. Ct. 613, 38 L. Ed. 2d 561 [1974] ). Instead, "[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it.... [T]he exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." Herring v. United States , 555 U.S. 135, 144, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009).

The United States Supreme Court has recognized several exceptions to the exclusionary rule. Some of these "exceptions involve the causal relationship between the unconstitutional act and the discovery of evidence." Strieff , 136 S. Ct. at 2061. Here, the State has placed one of those exceptions-the attenuation doctrine-in issue. 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.' " Strieff , 136 S. Ct. at 2061 (quoting Hudson v. Michigan , 547 U.S. 586, 593, 126 S. Ct. 2159, 165 L. Ed. 2d 56 [2006] ); see Brown , 422 U.S. at 603, 95 S.Ct. 2254. No bright-line rule defines when the attenuation doctrine applies. Rather, courts must examine the particular facts of each case and determine whether those circumstances attenuate the taint of illegality. Brown , 422 U.S. at 603, 95 S.Ct. 2254.

Given that requirement, when a party appeals a ruling based on the attenuation doctrine, the appellate court considers a question of fact that must be reviewed to determine whether it is supported by substantial competent evidence. See State v. Smith , 286 Kan. 402, 420, 184 P.3d 890, cert. denied 555 U.S. 1062, 129 S.Ct. 628, 172 L.Ed.2d 639 (2008). "Substantial competent evidence is that which possesses both relevance and substance and which furnishes a substantial basis in fact from which the issues can reasonably be resolved." State v. Sharp , 289 Kan. 72, 88, 210 P.3d 590 (2009). In reviewing a district court's factual findings for substantial competent evidence, "[a]n appellate court does not 'reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.' " 289 Kan. at 80, 210 P.3d 590 (quoting State v. Harris , 284 Kan. 560, Syl. ¶ 9, 162 P.3d 28 [2007] ); see State v. Hanke , 307 Kan. 823, 827, 415 P.3d 966 (2018) (appellate review of ruling on motion to suppress raises questions of fact to be reviewed for substantial competent evidence and an ultimate legal conclusion reviewed de novo).

To aid a district court's weighing of the facts, the United States Supreme Court in Brown , 422 U.S. at 603-04, 95 S.Ct. 2254, identified three factors to be considered in determining whether the attenuation doctrine applies. This court later applied those factors. See State v. Moralez , 297 Kan. 397, 415, 300 P.3d 1090 (2013) ; State v. Williams , 297 Kan. 370, Syl. ¶ 9, 300 P.3d 1072 (2013).

More recently in Strieff , the United States Supreme Court reiterated the Brown factors:

"First, we look to the 'temporal proximity' between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. Second, we consider 'the presence of intervening circumstances.' Third, and 'particularly' significant, we examine 'the purpose and flagrancy of the official misconduct.' " 136 S. Ct. at 2062.

No one factor is controlling, and other factors also may be relevant to the attenuation analysis. See, e.g., Brown , 422 U.S. at 600-04, 95 S.Ct. 2254 (concluding that giving of Miranda warnings, standing alone, cannot support attenuation where confession follows unlawful arrest; but noting that giving Miranda warnings is relevant factor to consider in determining whether confession was sufficiently attenuated from unlawful arrest); State v. Martin , 285 Kan. 994, 1003, 179 P.3d 457, cert. denied 555 U.S. 880, 129 S.Ct. 192, 172 L.Ed.2d 138 (2008) (noting that no single factor is dispositive).

We now turn to the Court of Appeals' application of these factors.

2.1 Temporal proximity

As to the first Brown factor of temporal proximity, the Strieff Court "declined to find that this factor favors attenuation unless 'substantial time' elapses between an unlawful act and when the evidence is obtained." Strieff , 136 S. Ct. at 2062. Here, the district court did not make any explicit findings on the first factor. But the Court of Appeals panel determined "the first factor weighs in Sanders' favor due to the close proximity in the timing between the investigatory detention without reasonable suspicion and the discovery of the outstanding warrant." Sanders , 2018 WL 2375258, at *7.

We agree. The record does not show a substantial lapse in time between the initial detention and the discovery of evidence, and the State did not contest the panel's finding on this point. See Strieff , 136 S. Ct. at 2062 (because just minutes had passed between an illegal detention of Strieff and the discovery of drug contraband on him, the short time interval weighed in favor of suppression); Rule 8.03(c)(3) (cross-petitioner must raise issues adversely decided by the Court of Appeals to preserve the point for review). The first factor thus weighs in favor of suppression.

2.2 Intervening circumstances

As to the second factor, the panel held "we find that the second factor weighs in favor of the State in light of the preexisting arrest warrant, which provides an intervening circumstance that dissipates the taint of the initial unlawful seizure." Sanders , 2018 WL 2375258, at *7. The district court did not make explicit findings on this point, but in discussing the attenuation doctrine it stated that "at some point, they find out that there's a warrant." Although, the district court considered the discovery of the arrest warrant, it is not clear how it weighed that circumstance in its decision to not apply the attenuation doctrine. But the relevant facts are not in issue, and the weighing of this factor comes down to applying relevant precedent.

Strieff clarified the importance of an arrest warrant as an intervening factor. After Brown , a split of authority had developed about the importance of an arrest warrant as an intervening circumstance. See Strieff , 136 S. Ct. at 2060 ; Moralez , 297 Kan. at 413, 300 P.3d 1090 (collecting and discussing decisions). The United States Supreme Court granted certiorari in Strieff to resolve that split and, in doing so, specifically mentioned this court's Moralez decision in which we joined other states assigning "little significance" to the discovery of a warrant. Strieff , 136 S. Ct. at 2060.

The Strieff Court first addressed a threshold question of whether the attenuation doctrine even applies when the State relies on the discovery of a warrant as an intervening factor. The Court held that trial courts should apply the doctrine and the three-factor test set out in Brown if a preexisting warrant was discovered. 136 S. Ct. at 2061. To this extent, the Strieff Court upheld the Moralez court's use the attenuation doctrine and Brown 's three factors. And the Strieff Court did not disturb the Moralez court's reasoning on any point other than the weight to be given to the discovery of a "valid, pre-existing, and untainted arrest warrant." 136 S. Ct. at 2061. On that point, the Strieff Court held an officer's discovery of an arrest warrant is an intervening factor that "strongly favors the State." 136 S. Ct. at 2062. Because we are bound to follow the United States Supreme Court's interpretation of the United States Constitution, this holding abrogates that portion of our decision in Moralez that joined other courts in giving little weight to the warrant as an intervening circumstance. But it abrogated only that portion of Moralez. See State v. Lawson , 296 Kan. 1084, Syl. ¶ 1, 297 P.3d 1164 (2013) ("The United States Supreme Court's interpretation of the United States Constitution is controlling upon and must be followed by state courts."). This means we must follow Strieff and give significant weight to the discovery of a valid, preexisting arrest warrant as an intervening factor. See 136 S. Ct. at 2062.

Here, however, Sanders was searched and the evidence was seized from his person before the warrant was discovered. Strieff found the discovery of a warrant strongly favors the State because a warrant is a judicial mandate to make an arrest and once the arrest is made, the officer can search the arrestee's person within the permissible scope of the search incident to lawful arrest exception. See 136 S. Ct. at 2063. In other words, Strieff 's reasoning was specific to a search incident to arrest after the warrant is discovered. See 136 S. Ct. at 2059, 2061, 2063. And we have held "the search incident to arrest exception to the warrant requirement applies after an arrest has been made; it does not apply where there is a possibility that an arrest might occur." State v. Cleverly , 305 Kan. 598, 614, 385 P.3d 512 (2016).

Under similar facts, the Tenth Circuit Court of Appeals recently emphasized that the circumstance must intervene-that is, it must fall between the constitutional violation and the discovery of evidence. It thus held the second Brown factor favored the defendant seeking to suppress evidence "because the arrest warrant wasn't discovered until after the search." United States v. Gaines , 918 F.3d 793, 801 (10th Cir. 2019) ; see United States v. Gaines , 668 F.3d 170, 175 (4th Cir. 2012) (concluding evidence discovered before the defendant's independent criminal act cannot serve as "an intervening event" to purge the taint of an unlawful police action); United States v. Camacho , 661 F.3d 718, 730-31 (1st Cir. 2011) (concluding no intervening circumstances existed because the new ground for the search had arisen after discovery of the evidence); United States v. Beauchamp , 659 F.3d 560, 574 (6th Cir. 2011) (same).

Sanders was subject to an unlawful detention at the time of the search of his person. The warrant was not discovered until after Sanders had been searched, and it thus could not have provided lawful grounds to detain Sanders at the time of the search. The discovery of the warrant is thus not an intervening factor in the same sense as Strieff . See 136 S. Ct. at 2062-63.

We next must also consider what happened after the discovery of the arrest warrant because at that point Officer Belt rummaged through Sanders' property-namely, the deck of cards. To justify that search the State has mainly relied on Strieff . There, the United State Supreme Court upheld the search because the defendant had been lawfully arrested on the warrant and then the search had been lawfully conducted under the search incident to arrest exception to the warrant requirement. Strieff , 136 S. Ct. at 2063. Here, however, that exception does not apply. A search incident to arrest "may only include 'the arrestee's person and the area "within his immediate control"-construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.' " Arizona v. Gant , 556 U.S. 332, 339, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009) (quoting Chimel v. California , 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 [1969] ).

"That limitation, which continues to define the boundaries of the exception, ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy.... If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply." Gant , 556 U.S. at 339, 129 S.Ct. 1710.

Officer Belt had seized the deck of cards before Sanders' arrest. So when Officer Belt examined the cards and discovered the baggie of methamphetamine, the deck of cards was not on Sanders, not in his custody, and not under his control. And no evidence suggests Sanders, who the officers had handcuffed, could have reached into the cards at the time of the search. While Sanders' arrest based on the warrant was undisputedly lawful, the search incident to lawful arrest exception did not justify the search of the deck of cards. See Gant , 556 U.S. at 339, 129 S.Ct. 1710.

As we will discuss more fully, the State also argues the evidence should not have been suppressed because of the inevitable discovery doctrine. It contends that the discovery was inevitable because Sanders' personal possessions were inventoried by both Officer Belt and at book in at the Department of Corrections. We do not read the State's argument to be that an inventory search constituted an intervening circumstance. But, if we are wrong in our reading and that was its intended argument, we will more fully explain below various reasons the State failed to preserve the inventory search exception or the inevitable discovery doctrine for consideration on appeal. We thus hold neither justifies concluding an intervening circumstance attenuated the taint of the officers' unconstitutional seizure of Sanders.

In summary, the initial search of Sanders occurred before the discovery of the arrest warrant, and the warrant was not a circumstance that broke the causal chain between the unconstitutional seizure and the search. As to the search of the card deck after discovery of the arrest warrant, the State has failed to establish the applicability of an exception to the warrant requirement. Both before and after the discovery of the warrant, the officers conducted warrantless searches. And both were per se unreasonable because the State has failed to establish a valid exception to the warrant requirement. See Neighbors , 299 Kan. at 239, 328 P.3d 1081.

The second Brown factor favors suppression.

2.3 Flagrancy

The third attenuation doctrine factor-the purpose and flagrancy of the official misconduct-is perhaps the most critical to the analysis. See Strieff , 136 S. Ct. at 2062 (identifying this factor as " 'particularly' significant"). Its significance arises because it focuses on the primary purpose of the exclusionary rule-deterring police misconduct. See State v. Talkington , 301 Kan. 453, 487, 345 P.3d 258 (2015) (" 'To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it.' Herring v. United States , 555 U.S. 135, 144, 129 S. Ct. 695, 172 L. Ed. 2d 496 [2009]."). Thus, under Strieff , even if an officer conducts a proper search incident to lawful arrest after discovering a warrant, the evidence may still be suppressed if the officer engaged in flagrant police misconduct. See Strieff , 136 S. Ct. at 2063-64. "For the violation to be flagrant, more severe police misconduct is required than the mere absence of proper cause for the seizure." Strieff , 136 S. Ct. at 2064.

In Strieff , when considering whether the officer's conduct was flagrant, the United States Supreme Court examined whether the officer acted in good faith; determined that the officer's "decision to initiate the stop was mistaken, [but] his conduct thereafter was lawful"; and concluded "there is no indication that this unlawful stop was part of any systemic or recurrent police misconduct." 136 S. Ct. at 2063.

The first of these considerations of whether the officer acted in good faith turns on the officers' subjective state of mind. In other words, did they honestly but mistakenly believe they had reasonable suspicion to detain Sanders and did so as part of a bona fide investigation of suspected criminal activity, not merely in the hope something would turn up? See Strieff , 136 S. Ct. at 2063-64. In Brown , 422 U.S. at 605, 95 S.Ct. 2254, the United States Supreme Court expanded on facts in that case that suggested the police officers' conduct had been purposeful. The Tenth Circuit and other courts have summarized that discussion, itemizing some considerations:

"[P]urposeful and flagrant misconduct is generally found where: '(1) the impropriety of the official's misconduct was obvious or the official knew, at the time, that his conduct was likely unconstitutional but engaged in it nevertheless; and (2) the misconduct was investigatory in design and purpose and executed "in the hope that something might turn up." ' United States v. Simpson , 439 F.3d 490, 496 (8th Cir. 2006) (quoting Brown , 422 U.S. at 605 [95 S.Ct. 2254] ). Additionally, it may be significant that the 'officers ha[d] no right whatsoever to detain the person from whom consent is sought.' " United States v. Fox , 600 F.3d 1253, 1261 (10th Cir. 2010).

Consistent with these considerations this court has found flagrant misconduct where an officer knowingly detains someone without authority. See Cleverly , 305 Kan. at 612, 385 P.3d 512. And Cleverly adheres to the United States Supreme Court's flagrancy standard. See Kaupp v. Texas , 538 U.S. 626, 628, 633, 123 S. Ct. 1843, 155 L. Ed. 2d 814 (2003) (flagrant misconduct where a warrantless arrest was made in the arrestee's home after police were denied a warrant and at least some officers knew they lacked probable cause); Taylor v. Alabama , 457 U.S. 687, 692-94, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982) (flagrant misconduct where arrest made without probable cause in order to interrogate suspect in hope that something might turn up); see also Fox , 600 F.3d at 1261-62 (flagrant misconduct where officer detained motorist without reasonable suspicion to obtain consent to search in hope something might turn up); United States v. Shaw , 464 F.3d 615, 630-31 (6th Cir. 2006) (flagrant misconduct where arrest made without probable cause to conduct interrogation in the hope that something might turn up).

Here, the district court found: "I still think the whole thing had been set up to be able to make the contact and do those things with [Sanders]. Then they find out about the warrant." And "those things" the district court referred to were questioning Sanders and conducting a frisk. It further found the officers pieced together their justifications after the fact. In other words, the district court found the officers did not have a subjective, good-faith belief that their actions were justified when they initiated the seizure. Instead, they acted on the hope something would turn up. Their actions were purposeful and flagrant misconduct. See Kaupp , 538 U.S. at 628, 123 S.Ct. 1843 ; Taylor , 457 U.S. at 692-94, 102 S.Ct. 2664 ; Cleverly , 305 Kan. at 612, 385 P.3d 512.

As to another flagrancy consideration, the United States Supreme Court found it significant that the officer in Strieff acted legally after he made an unconstitutional seizure. 136 S. Ct. at 2063. Here, the officers made an unlawful seizure and then conducted two warrantless searches. And the State has failed to establish a valid exception to the warrant requirement for either search. In other words, the officers committed several unconstitutional violations.

In summary, the panel erred in concluding there is "no evidence in the record to suggest that the officers' seizure-albeit overzealous-constitute[d] flagrant misconduct." See Sanders , 2018 WL 2375258, at *7. The third factor weighs in favor of suppression. The district court properly reached that conclusion when it mentioned the attenuation doctrine and said: "[T]hey find out that there's a warrant but my belief, counsel, is that the activity or that the whole issue of seizing the defendant, I have great difficulty with based on the testimony that I've heard." The district court also found the "issue [with] seizing the defendant" was that it was set up. Even if no other Brown factor weighed in favor of suppression, the officers' flagrant misconduct would tip the scale. But all three factors tip that way. The district court did not err in suppressing the evidence.

3. The State failed to preserve its inevitable discovery argument.

Finally, the State argues the Court of Appeals erred in not considering its argument that the officers' practice of inventorying personal possessions upon arrest or on booking would sustain applying the inevitable discovery doctrine. Although it is not clear why the Court of Appeals did not consider the argument, we conclude the argument fails because the State has not overcome factual and procedural problems related to its argument.

First, and perhaps most problematic for the State, it did not raise the argument in the district court. The only citation to the record we find in the State's brief is the recitation of the fact that Officer Belt stated that when he searched the deck of cards he was packaging the seized items to take them to the Department of Corrections. "I was just going through to make sure I didn't miss anything at that point." But the State does not cite a point in the record where it explicitly asked the district court to consider whether the items would have been inevitably discovered or to apply the inventory exception to the warrant required. At best, the State points to the prosecutor's statement at a motion hearing that "it wasn't until after the warrant, after he was for sure going to jail that the methamphetamine was found inside the deck of cards." What the prosecutor wanted the district court to take from the statement is unclear. Even the State relies on the same statement to support its contention that it preserved its attenuation doctrine argument before the district court. The argument does not clearly invoke the separate exception of the inevitable discovery doctrine. Nor do we find any citation of authority to support applying the State's theory. The lack of any further discussion of or argument about the inevitable discovery doctrine by the parties or the district court conveys no one understood the doctrine to be in issue.

"Generally, parties may not raise constitutional issues for the first time on appeal unless they successfully argue that one of three recognized exceptions applies." State v. Alvarez , 309 Kan. 203, 209, 432 P.3d 1015 (2019). Based on this principle, Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 35) requires an appellant's brief-here, the State's brief before the Court of Appeals-to include "a pinpoint reference to the location in the record on appeal where the issue was raised and ruled on. If the issue was not raised below, there must be an explanation why the issue is properly before the court." The State provided neither a record citation nor an explanation of why the Court of Appeals could consider the issue for the first time on appeal. Thus, had the Court of Appeals acknowledged the State's argument, it would have been appropriate to decline to consider the merits given the State's failure to preserve the inevitable discovery doctrine or the inventory exception. See State v. Godfrey , 301 Kan. 1041, 1044, 350 P.3d 1068 (2015) ( Rule 6.02 [a][5] is to be strictly enforced). Litigants who ignore this rule risk a ruling that the issue has been waived or abandoned. State v. Williams , 298 Kan. 1075, 1085, 319 P.3d 528 (2014).

Simply put, the State has not preserved its arguments about either the inevitable discovery doctrine or an inventory search exception. We thus uphold the district court's suppression of the evidence.

CONCLUSION

The State failed to establish a legal basis for the officers' various actions throughout their encounter with Sanders. The officers lacked reasonable suspicion to detain Sanders or to search him. When they later discovered an arrest warrant, they had the duty to execute that warrant. But doing so did not attenuate the taint of the unlawful seizure, especially because of the officers' flagrant action. Thus, the district court appropriately suppressed the evidence based on the arguments presented to it. The State failed to preserve any other arguments it seeks to raise on appeal.

The judgment of the Court of Appeals reversing the district court is reversed. The judgment of the district court is affirmed.