author: BRODY, Justice.

text:
    Mario AYALA, Claimant-Appellant, v. ROBERT J. MEYERS FARMS, INC., Employer, and State Insurance Fund, Surety, Defendants-Respondents.
    Docket No. 46186
    Supreme Court of Idaho, Boise, May 2019 Term.
    Opinion Filed: July 12, 2019
    Stephan, Kvanvig, Stone & Trainor, Twin Falls, for appellant. L. Clyel Berry argued.
    Augustine Law Offices, PLLC, Boise, for respondents. Paul J. Augustine argued.
   BRODY, Justice.

This is a worker's compensation case. Mario Ayala was injured while driving a company truck in 2009, and was injured again in 2013 after falling from a ladder. The Industrial Commission assigned his claims to a referee for a hearing. After the hearing, but before the referee issued "recommended findings and determination" in accordance with Idaho Code section 72-717, the Industrial Commission reassigned the case to itself over Ayala's objection. Citing the referee's backlog of cases and a need for efficiency, the Industrial Commission issued an order finding that Ayala's low-back condition was not causally related to his 2009 truck wreck, that he was not totally and permanently disabled under the odd-lot worker doctrine, and that he suffered disability of 40% of the whole person inclusive of impairment of his 2009 and 2013 industrial accidents. We set aside the Commission's findings of fact, conclusions of law and order because Ayala was denied due process when the Industrial Commission reviewed Ayala's claims and issued a decision without the referee's recommended findings and determination. We also set aside the Industrial Commission's post-hearing order on motion for reconsideration dated June 22, 2018 and order on motion for reconsideration, modification and consolidation dated June 22, 2018 and remand this case for a new hearing.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mario Ayala was sixty-five years old at the time his worker's compensation claims went to hearing. He was born to a rural family in Mexico in 1951, where he completed only the third grade. At eight-years-old, he dropped out of school to help his father with plowing and caring for animals on a farm. He moved to the United States in 1974 in pursuit of a better life and became a citizen of the United States in 1992. He has lived in Bruneau, Idaho since moving to the states, and has worked primarily on farms. Since 1995, he has worked as a foreman for Meyers Farms on a 1,250 acre tract that produces potatoes, corn, and alfalfa.

In October, 2009, Ayala was driving a work truck to get a replacement part for farm equipment. A tire on the truck blew out, causing the vehicle to swerve back and forth, striking guardrails on both sides of the road. Not wearing a seatbelt, Ayala was thrown about inside of the vehicle and was injured.

Ayala filed a complaint for worker's compensation benefits arising out of the truck wreck in November 2012. There is no dispute that as a result of the collision he sustained injuries to his neck, left shoulder, and left elbow, each of which required surgery. What is in dispute is whether Ayala sustained an injury to his lower back. The State Insurance Fund and Meyers Farms claim that, at most, the collision resulted in the temporary aggravation of pre-existing arthritis and that any present need for surgery was not the result of an industrial accident. While Ayala's claim for benefits was pending, he fell from a ladder while working and injured his right knee, requiring him to undergo total knee replacement surgery. He filed another complaint for benefits.

The Industrial Commission assigned Ayala's claims to a referee who then consolidated the matters for hearing. The referee conducted a hearing on October 26, 2016 where Ayala and Morgan Meyers, a principal of the employer, testified. After the hearing was over, the parties, in accordance with Industrial Commission rules of procedure, conducted post-hearing depositions of expert witnesses and submitted final briefing. The referee finally took the matter under advisement on November 3, 2017.

About two months later, the Industrial Commission sent a letter to counsel for both parties informing them that the referee was facing a backlog of cases. The letter explained that the Commission was concerned about a delay and was willing to make its decision based on the record adduced. The letter also explained that if the parties were not willing to have the Commissioners do the review without the benefit of the referee's recommendations, the matter would be handled by the referee in due course:

The Commissioners are concerned about the delay this will cause in getting a decision out. The Commissioners are willing to write this decision on the record adduced to expedite moving this along. If you are willing for the Commissioners to do so, we will reassign the case and will proceed accordingly. If not, resolution of the case will be handled by Referee Powers in due course.

Ayala declined the Commission's offer, with Ayala's lawyer stating in a letter that, "the decision rendered would ... be absent the consideration of Mr. Ayala's observational credibility which I believe to be an important consideration in this case."

On April 9, 2018, without any recommendations from the referee, the Commission issued a seventy-one page decision on Ayala's claims. Before addressing the merits of Ayala's claims, the decision explained that the Commission's duty to manage a docket in a timely fashion supported its decision to overrule Ayala's objection to the Commission issuing a decision before the referee made recommendations:

This matter was originally heard by Referee Powers. At the time this matter came under advisement, on November 3, 2017, the assigned Referee faced a significant case backlog that would result in a delay of this decision. In an effort to minimize the anticipated delay, the Commission contacted the parties to suggest that the case be decided on the record by the Commission. The parties responded, stating that due to observational credibility issues relating to Claimant's presentation at hearing, they preferred to have the case decided by the Referee who observed Claimant at hearing. However, as developed infra, the outcome in this case does not depend on an assessment of whether Claimant appeared to testify credibly at hearing. It does, to some extent, depend on a comparison of Claimant's testimony, with other evidence of record. While we are sensitive to the desires of the parties, our obligation to manage our docket to promote timely decisions supports assignment of this matter to the Commission.

After the Commission's decision was issued, Ayala filed a Motion for Reconsideration, Motion to Reopen, For Modification of Award upon Consideration of a Change in the Nature or Extent of Claimant's Disablement and/or to Correct a Manifest Injustice; and for Consolidation. In these post-award motions, Ayala requested that a 2017 industrial accident be consolidated with the 2009 and 2013 industrial accidents at issue in the Commission's order. He also requested that his award be modified because the wages he received after the Commission's order were much less than anticipated, causing a significant and substantial change in the nature or extent of his disablement. Ayala also complained of the lack of observational credibility of his testimony before the Commission because they did not have the benefit of receiving recommendations from the referee who conducted the hearing before issuing its findings. And, Ayala asked the Commission to reconsider its analysis regarding the effect of his age under Idaho Code section 72-430.

The Commission denied all of Ayala's motions. In the order denying the motions, the Commission explained that the change in compensation was the loss of a bonus, and Ayala does not explain why he did not receive a bonus. Additionally, the Commission again asserted that observational credibility was not an issue in this case. The Commission explained that while age is a factor to be considered under Idaho Code section 72-430, the statute does not require the Commission to award higher disability in all circumstances merely because a claimant is older. Finally, the Commission decided that there was no basis to reopen the case to correct a manifest injustice due to Ayala's changed circumstances with the new injury and less pay, because it concluded that a claimant must show a change in the nature and extent of his physical injury to successfully pursue a claim under Idaho code section 72-719(1)(a).

Ayala timely appealed.

II. STANDARD OF REVIEW

"When reviewing a decision by the Industrial Commission, this Court exercises free review over the Commission's conclusions of law, but will not disturb the Commission's factual findings if they are supported by substantial and competent evidence." Aguilar v. Indus. Special Indem. Fund, 164 Idaho 893, 899, 436 P.3d 1242, 1248 (2019) (citing Green v. Green , 160 Idaho 275, 280, 371 P.3d 329, 334 (2016) ).

Substantial and competent evidence is relevant evidence that a reasonable mind may accept to support a conclusion. Substantial and competent evidence is more than a scintilla of evidence, but less than a preponderance. [This Court] will not disturb the Commission's conclusions on the weight and credibility of the evidence unless those conclusions are clearly erroneous.

Id. (citing Hope v. Indus. Special Indem. Fund, 157 Idaho 567, 570-71, 338 P.3d 546, 549-50 (2014) ). "This Court freely reviews the Commission's interpretation of the workers' compensation statutes." Id.

"A claimant has the burden of proving a probable, not merely a possible, causal connection between the employment and the injury or disease." Reyes v. Idaho Supreme Potatoes, 133 Idaho 385, 386, 987 P.2d 297, 298 (1999) (quoting Beardsley v. Idaho Forest Indus., 127 Idaho 404, 406, 901 P.2d 511, 513 (1995) ). All facts and inferences are viewed "in the light most favorable to the party who prevailed before the Commission and liberally construes the provisions of the worker's compensation law in favor of the employee, in order to serve the humane purpose for which the law was promulgated." Hamilton v. Alpha Servs., LLC, 158 Idaho 683, 688, 351 P.3d 611, 616 (2015) (internal citations omitted). This Court will not reweigh the evidence or consider whether it would have reached a different conclusion than the Commission from the evidence presented. Eacret v. Clearwater Forest Indus., 136 Idaho 733, 735, 40 P.3d 91, 93 (2002).

III. ANALYSIS

A. The Commission violated Ayala's due process right to a fair hearing by issuing an order without reviewing findings and determinations from the referee.

Ayala argues that the Commission erred by issuing an opinion without recommended findings and determinations from the referee and that it acted in excess of the statutory authority granted to it in Idaho Code section 72-717. SIF, on the other hand, argues that Idaho Code section 72-717 authorizes the Commission to either adopt or reject a referee's findings, so it is immaterial that the referee did not prepare such findings. SIF also contends that Ayala received due process in the hearing before the referee, and the hearing was recorded in a transcript for the Commission to review. We hold that the Commission violated Ayala's due process right to a fair hearing.

Even though the Idaho Industrial Commission is an administrative agency situated within the executive department of our state government, the commissioners exercise judicial functions in their role as adjudicators of private disputes between workers and their employers and sureties. See, e.g., I.C. § 72-501(5) ("As an official exercising judicial functions, [a member of the commission] shall not engage in partisan political activities and shall conform his conduct to commonly acceptable standards of judicial ethics."). Arthur Larson in his leading treatise on worker's compensation law explained that, "in the spectrum of administrative agencies ... the compensation commission ... while deciding controverted claims ... is as far towards the judicial end of the spectrum as it is possible to go without being an outright court." Arthur Larson, Workers' Compensation, § 79:90 (Desk ed. 2000). The Commission, as part of its many duties and responsibilities, is authorized to adopt rules and regulations governing judicial matters. I.C. § 72-508. Much like this Court has adopted the Idaho Rules of Civil Procedure, the Commission has adopted the Judicial Rules of Practice and Procedure (JRP) to protect the rights of the parties from the time a worker's compensation complaint is filed until a decision is rendered.

Section 72-506(1) of the Idaho Code authorizes the Commission to appoint a referee to conduct hearings on its behalf:

Any investigation, inquiry or hearing which the commission has power to undertake or hold may be undertaken or held by or before any member thereof or any hearing officer, referee or examiner appointed by the commissioner.

I.C. § 72-506(1). JRP Rule 10 also provides that "[h]earings are held by one or more Commissioners or a Referee appointed by the Commission."

The parties' main contention in this case centers on the relationship between a referee and the Commission. Section 72-717 governs the Commission's review of a claim where the hearing has been conducted by a referee. The statute states that if a matter is assigned to a referee, the record of that hearing together with the referee's "recommended findings and determination" shall be submitted to the Commission for its review:

If the matter has been assigned for hearing by a member, hearing officer, referee, or examiner, the record of such hearing, together with the recommended findings and determination, shall be submitted to the commission for its review and decision.

I.C. § 72-717. If the Commission approves and confirms a referee's decision, then the referee's decision becomes the decision of the Commission:

Every finding, order, decision or award made by any ... referee ... pursuant to such ... hearing, when approved and confirmed by the commission, and ordered filed in its office, shall be deemed to be the finding, order, decision or award of the commission.

I.C. § 72-506(2).

Ayala claims that section 72-717 mandates that the Commission have a referee's recommended findings and determination before it reviews the hearing record and makes its decision. SIF responds that, pursuant to Idaho Code section 75-506(2), any findings of fact made by a referee are only recommendations, which the Commission may either reject or deny at its discretion. This Court has confirmed this interpretation by stating, "The findings of fact made by [a] referee [are] merely recommendations to the Industrial Commission. Upon reviewing those findings, it could either adopt them or enter its own findings." Lorca-Merono v. Yokes Washington Foods, Inc., 137 Idaho 446, 451, 50 P.3d 461, 466 (2002). Additionally, this Court has held that the Commission does not even need to explain why it did not adopt certain recommendations made by a referee and that the Commission ultimately decides what weight may be given to certain facts or experts. Id. Thus, the position of the SIF is that "[i]t is immaterial that the referee did not prepare recommended findings of fact and conclusions of law because the Commission could have disregarded them and reached its own findings and conclusions ...." SIF's argument goes too far.

To begin with, SIF's argument undermines the vital role that referees play in the adjudicatory process. The referee is typically assigned a case at the time the complaint is filed and handles all of the pre-hearing motions that arise. During the life of the claim, the referee becomes familiar with the parties, the issues, and the evidence in a way that the Commission, which functions much more like an appellate court in a case where a referee has been assigned, simply cannot. The referee is the eyes and ears of the Commission, and like a trial judge, is the person best-situated to make recommended findings of fact and a determination. While we recognize the Industrial Commission does not have an obligation to accept a referee's recommendations, section 72-717 makes it clear that the Commission does have an obligation to have those recommendations in hand before reviewing the case and making a decision. The referee's recommendations may contain important insight and conclusions that the Commission would otherwise miss.

Adopting SIF's position would also impair this Court's review of Commission decisions. The Supreme Court of the United States recognized nearly seventy years ago that a referee's findings play an important role in determining whether there is substantial and competent evidence to support a decision-making board's conclusions. In Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), The U.S. Supreme Court explained:

We do not require that the examiner's findings be given more weight than in reason and in the light of judicial experience they deserve. The 'substantial evidence' standard is not modified in any way when the Board and its examiner disagree. We intend only to recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board's than when he has reached the same conclusion. The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case. To give it this significance does not seem to us materially more difficult than to heed the other factors which in sum determine whether evidence is 'substantial.'

Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496-97, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (emphasis added). We are persuaded by this reasoning. When taking up a worker's compensation case, this Court must have a complete record, including the referee's recommended findings of fact and determinations, in order to do a meaningful review.

While the significance we attach to the referee's recommendations will vary from case to case, there is simply no justification for failing to have those recommendations in the record.

Due process and the plain language of Idaho Code section 72-717 demand that the referee's recommended findings of fact and determination be reviewed by the Commission when a hearing has been conducted. A hearing is not a mere formality-it is an integral component of due process because it provides a claimant with an opportunity to be heard in a meaningful time and in a meaningful manner. See Floyd , 164 Idaho at 663-64, 434 P.3d at 1270. However, due process is not a rigid concept-"the protections and safeguards necessary vary according to the situation." Meyers v. Hansen , 148 Idaho 283, 292, 221 P.3d 81, 90 (2009). In Boise Tower Assocs., LLC v. Hogland, 147 Idaho 774, 215 P.3d 494 (2009), we set forth the U.S. Supreme Court's balancing test that determines the adequacy of a particular process:

Due process ... is not a technical conception with a fixed content unrelated to time, place and circumstances .... Due process is flexible and calls for such procedural protections as the particular situation demands .... Identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id. at 780-81, 215 P.3d at 500-01 (quoting Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (internal brackets and citations omitted)).

Applying the Mathews ' balancing test to this case, the Commission violated Ayala's due process right to a meaningful hearing. Ayala has a substantial interest in his worker's compensation claims. As explained above, the risk of an erroneous deprivation of Ayala's interest, while not an absolute certainty, is high because the Commission's decision to reassign the case impairs this Court's obligation to conduct a meaningful review of all issues presented on appeal. There would not have been any additional fiscal burden on the Commission to allow the referee to issue recommendations before the Commission made its decision. The only additional administrative burden would have been the passage of time, which in this case would have been an insignificant burden. The reality is that Ayala's claim had been pending for five years when the referee took the matter under advisement. Why docket management became such a pressing issue two months later when the Industrial Commission reassigned the case to itself over Ayala's objection is something the record simply does not address. While we understand the Commission's need to manage its caseload, the decision to take the reins of this case at that juncture deprived Ayala of a meaningful right to be heard. The Supreme Court of the United States made it clear long ago that government efficiency cannot trump due process:

The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.
Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of [the individual]. It therefore cannot stand.

Stanley v. Illinois, 405 U.S. 645, 656-57, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

On a final note, the Commission presented its decision to adjudicate the matter solely on the record, without hearing live testimony or reviewing a referee's report, as conditional on the approval of both parties. The Commission told Ayala in its January 2018 letter that if he had an objection to its issuance of a decision based on the record he could make an objection by a specified date and the case would proceed in due course with the referee. Ayala made a timely objection; nonetheless, the Industrial Commission ignored its earlier statement to the parties and issued a decision a few months later without further discussion. The Commission laid out a process for the handling of Ayala's claim and then shifted course without further notice. This is the kind of move that undermines public confidence in a fair and impartial tribunal. Therefore, we set aside the Industrial Commission's order and remand the case for a new hearing.

B. Ayala is not entitled to attorney fees pursuant to Idaho Code section 72-804.

Ayala contends that he is entitled to attorney fees pursuant to Idaho Code section 72-804, that states in part, "If the commission or any court before whom any proceedings are brought under this law determines that the employer ... contested a claim for compensation made by an injured employee ... without reasonable ground ... the employer shall pay reasonable attorney fees in addition to the compensation provided by this law." The basis of his claim is that SIF and the employer engaged in "unreasonable and deceptive" conduct in relation to the handling of certain expert witnesses (specifically, the failure to provide certain medical records which Ayala claims were supportive of his claims). We did not reach the merits of Ayala's argument because we determined that the Industrial Commission violated Ayala's due process right. SIF and the employer's decision to defend the Industrial Commission's handling of Ayala's claims was reasonable, and as such, there is no statutory basis to award fees against them. We also decline to award costs pursuant to Rule 40 of the Idaho Appellate Rules.

IV. CONCLUSION

In light of the foregoing, the merits of the other issues raised on appeal will not be addressed because any opinion on those matters would be advisory only. The findings of fact, conclusions of law, and order dated April 9, 2018; the order on motion for reconsideration dated June 22, 2018; and the order on motion for reconsideration, modification and consolidation dated June 22, 2018 of the Idaho State Industrial Commission are hereby set aside and this case is remanded for a new hearing.

Chief Justice BURDICK, Justices STEGNER, MOELLER, and Justice Pro Tem WALTERS concur.


source: Caselaw Access Project

license: Public Domain

text:
    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 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.' " Sharp , 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) (holding 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.

Pointedly significant to our analysis, no one factor controls, 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 turn to the district court's application of these factors.

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. Because just minutes had passed between an illegal detention of Edward Joseph Strieff, Jr., and the discovery of drug contraband on him, the "short time interval counsel[ed] in favor of suppression." 136 S. Ct. at 2062.

Here, the district court found the first factor weighs in favor of suppression because the evidence was discovered shortly after the unlawful seizure. And the Court of Appeals affirmed this finding after discussing the evidence supporting that conclusion. The officer's body camera video showed that just a few minutes elapsed between the initial stop and the arrest of Tatro and the search of her belongings. Tatro , 2018 WL 1770191, at *5.

Before us, the State does not dispute this finding, and the evidence supports it. We thus hold the district court did not err in finding that the first factor weighs in favor of suppression.

Intervening factor

As to the second factor, the State relied heavily on the officer's discovery of a warrant for Tatro's arrest as an intervening factor. The district court, in a conclusory fashion, stated: "As to the second factor, the Court does not find there were any intervening circumstances." The Court of Appeals disagreed, relying heavily on Strieff , 136 S. Ct. 2056. See Tatro , 2018 WL 1770191, at *5-7.

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 review 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 of Brown 's three-factor attenuation doctrine analysis. 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." See 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. 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 .

Tatro makes a passing argument that we should continue to give little weight to the discovery of an arrest warrant. But this court based its Moralez holding on the Fourth Amendment, and this court must follow the United States Supreme Court's interpretation of the United States Constitution. 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 unless we determine a different rule applies under the Kansas Constitution. But Tatro does not explain why a different rule would apply in Kansas, and develops no argument on this point. At best, the point was incidentally raised but not argued, which is akin to failing to brief the issue. See State v. Williams , 303 Kan. 750, 758, 368 P.3d 1065 (2016) (issue not briefed is considered waived and abandoned); State v. Sprague , 303 Kan. 418, 425, 362 P.3d 828 (2015) (point raised incidentally in a brief and not argued is also considered abandoned). Nor did she support the point with citation to pertinent authority or otherwise explain why it was sound. We thus consider her argument waived and abandoned. See State v. Murray , 302 Kan. 478, 486, 353 P.3d 1158 (2015) (failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is like failing to brief the issue).

Relying on the Fourth Amendment, the State cited Strieff to the district court. But, without explanation, the district court not only gave the arrest warrant little weight, it apparently gave it no weight, finding no intervening circumstance existed. The Court of Appeals held the district court erred:

"[T]he facts related to the respective officer's knowledge of pre-existing arrest warrants before the initial illegal detentions in the present case and Strieff are legally indistinguishable. Both [officers] ... respectively stopped Tatro and Strieff for the investigation of criminal activity. For purposes of the Strieff court's analysis, both [officers] ... lacked reasonable suspicion to detain the individuals. During the course of the illegal detention, both officers learned that the individuals possessed valid arrest warrants. Accordingly, the existence of an arrest warrant on Tatro provides an intervening circumstance that dissipates the taint of the initial illegal seizure under the reasoning of Strieff ." Tatro , 2018 WL 1770191, at *6.

On this point, we agree with the Court of Appeals. Given Strieff 's holdings (1) that a preexisting, valid, and untainted arrest warrant presents an intervening circumstance and (2) this intervening circumstance carries great weight, we hold substantial competent evidence does not support the district court's finding that there was no intervening circumstance. As the Strieff Court observed, " '[a] warrant is a judicial mandate to an officer to ... make an arrest, and the officer has a sworn duty to carry out its provisions.' United States v. Leon , 468 U.S. 897, 920 n.21, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)." Strieff , 136 S. Ct. at 2062. Simply put, an officer cannot ignore the warrant's mandate to make an arrest while faithfully carrying out his or her official duties. See 136 S. Ct. at 2062-63.

Here, the officer discovered an arrest warrant that predated his encounter with Tatro. And Tatro has not argued the warrant was tainted, invalid, or related to the reasons the officer initiated the stop. Upon learning of the warrant, the officer had an independent duty to arrest Tatro entirely unrelated to the reasons for the initial stop. In other words, the arrest was lawful even if the initial seizure was not. And once the officer made a lawful arrest based on the warrant, he had the authority to search Tatro and her purse under the search incident to lawful arrest exception to the warrant requirement. The second factor strongly favors the State. See 136 S. Ct. at 2062-63. Again, however, no single factor controls and all factors must be considered. See Brown , 422 U.S. at 600-04, 95 S.Ct. 2254.

Flagrancy

The third 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.

Here, whether the third factor weighs in favor of suppression turns on the officer's subjective state of mind. In other words, did the officer act in good faith? Did he honestly but mistakenly believe he had reasonable suspicion to detain Tatro 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 officer's conduct had been purposeful. The Tenth Circuit and other courts have summarized that discussion, itemizing 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 State v. Cleverly , 305 Kan. 598, 612, 385 P.3d 512 (2016). 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 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).

The district court did not specifically discuss these considerations. But it found the officer "did not testify that he had reasonable suspicion to believe [Tatro] had committed, was committing, or was about to commit a crime when he made contact with her." And it labeled the officer's conduct as "egregious" and concluded the third factor weighed in favor of suppression.

The Court of Appeals came to the opposite conclusion after stating it was "not possible to distinguish" the officer's conduct here from that of the officer in Strieff . Tatro , 2018 WL 1770191, at *7. In comparing the officers' conduct, the panel stated:

"Both officers presumably possessed the subjective belief that they possessed reasonable suspicion to conduct an investigation. [The officer here] clearly believed he possessed reasonable suspicion to stop Tatro to investigate the rash of vehicle burglaries in the area, and the State has presented an appellate argument that [the officer's] knowledge and experience created reasonable suspicion." 2018 WL 1770191, at *7.

The Court of Appeals, however, did not discuss the district court's finding that the officer's action was egregious-a term that seems at least a close cousin to flagrancy. And we find it hard to reconcile the district court's conclusion of egregious conduct with the Court of Appeals statement that the officer "presumably " possessed a subjective belief that a reasonable suspicion existed. As the district court found, the officer did not testify that he had such a belief. And the record shows he used equivocal language when testifying about the events. Further, as the Court of Appeals held, reasonable suspicion did not support the stop. Tatro walked in the middle of the street, carrying a purse, a bottle of water, and a flashlight to see where she was walking on the very dark street. She was not near any cars and had no burglary tools. The video reflects that the officer approached her and said:

"The reason I'm making contact with you is that it's kind of late ... we have people that kind of uh get into situations where we have vehicle burglaries that take place and all that kind of stuff. So we're just going to have to I.D. people and just kind of see what they're up to and what not."

The officer did not discuss any specific concerns about vehicle burglaries with Tatro. He asked for her name, date of birth, address, and other biographical information, including where she worked and with whom she lived. He also asked if her roommate had a relationship with someone called "Shorty." The entire exchange seemed aimed more at having information about who had been in the area if evidence of a vehicle burglary later arose. At the suppression hearing, he testified that car burglaries often occurred late at night. But he stopped short of saying he believed Tatro herself had committed, was committing, or was about to commit a vehicular burglary or any other crime.

It is unclear from the record if the officer acted on a good-faith belief he had reasonable suspicion of criminal activity or if his purpose was investigatory in design and purpose and executed " 'in the hope that something might turn up.' " Brown , 422 U.S. at 605, 95 S.Ct. 2254. Given the conflicting inferences that can be drawn from the record, the Court of Appeals erred in presuming the officer acted in good faith and subjectively believed that reasonable suspicion existed. The officer's subjective beliefs and intent present questions of fact that turn on the weight and credibility of the evidence. Cf. State v. Gonzalez-Sandoval , 309 Kan. 113, 124, 431 P.3d 850 (2018) (district court's finding that the State "honestly believed" factual statements made to justify a peremptory strike was a credibility determination); 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"). And appellate courts do not weigh facts or determine credibility. Sharp , 289 Kan. at 80, 210 P.3d 590.

The district court did not explain what facts it relied on in support of its conclusion of egregious behavior. It made no finding about the officer's subjective belief. Nor did the court make an express credibility determination about the officer's testimony. And it is hard to discern if the district court's error on the intervening factor tainted its findings about flagrancy. These circumstances leave us unable to resolve the third factor.

Remand

When a district court fails to make adequate findings and the parties fail to object to those findings, we sometimes presume the court made the findings necessary to support its conclusion. See State v. Dern , 303 Kan. 384, 394, 362 P.3d 566 (2015) ; State v. Herbel , 296 Kan. 1101, 1119, 299 P.3d 292 (2013). But the presumption does not arise and remand is necessary if the lack of findings precludes meaningful review. See State v. Neighbors , 299 Kan. 234, 240, 328 P.3d 1081 (2014). This appeal presents such a circumstance. The district court's findings are too unclear to determine whether it correctly decided the third factor. As the Court of Appeals noted, the facts here parallel those in Strieff . We cannot tell if the district court distinguished those facts or, as it failed to do on the second factor, did not apply Strieff . We therefore remand for further proceedings.

On remand, the district court must determine whether the officer honestly but mistakenly believed he had reasonable suspicion of criminal activity, or whether he knew he lacked authority to detain Tatro or did not reasonably believe he had that authority. And the district court must determine whether the officer detained Tatro in the hope that something would turn up during the stop. Then the court must consider those findings in the context of the other Brown factors to determine whether suppression furthers the purpose of the exclusionary rule.

CONCLUSION

The judgment of the Court of Appeals is reversed. The case is remanded to the district court with directions.


text:
    STATE of Kansas, Appellee, v. Daniel J. CHRISTIAN, Appellant.
    No. 116,133
    Supreme Court of Kansas.
    Opinion filed July 26, 2019.
    Randall Hodgkinson, of Kansas Appellate Defender Office, Topeka, argued the cause, and Kimberly Streit Vogelsberg, of the same office, was on the briefs for appellant.
    Andrew R. Davidson, assistant district attorney, argued the cause, and Keith Schroeder, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
   The opinion of the court was delivered by Luckert, J.:

In this appeal, a Court of Appeals panel reversed Daniel J. Christian's convictions and sentences, holding he did not properly waive his right to a jury trial. But the panel also provided guidance on remand about Christian's motion to suppress evidence seized after a police officer unconstitutionally detained him. The panel applied the attenuation doctrine, concluding the district court could admit the evidence. The panel's holding rests mainly on its determination that a police officer's discovery of an expired tag on Christian's vehicle presented an intervening circumstance that attenuated the taint of the officer's unconstitutional seizure of Christian.

State v. Christian , No. 116,133, 2017 WL 3947406, at *1, 4-5, 9 (Kan. App. 2017) (unpublished opinion). We reverse that holding because the discovery of the expired tag did not break the causal chain set in motion by the illegal seizure.

FACTUAL AND PROCEDURAL BACKGROUND

Christian lawfully parked his car on a public street and sat there for a period of time. An unidentified caller contacted police to report a suspicious car in front of her house. A Hutchinson police officer responded and saw a car matching the one described by the caller. The car's driver-later identified as Christian-ducked down as the officer drove past. The officer parked his patrol car perpendicular to the rear of Christian's car, activated his emergency lights, and got out to make contact. As he approached the car, he noticed its license tag had expired. The officer asked Christian for his driver's license and proof of insurance. Christian produced a valid driver's license but did not have proof of insurance. The officer told Christian to exit the vehicle, and he arrested Christian for failure to provide proof of insurance.

Christian tried to take his keys with him, but the officer instructed him to put them on the car's roof. Another officer then arrived and asked Christian about a small silver container on Christian's key chain. Christian responded he kept pills in it and, when asked, consented to a search of the container. It contained a "[g]reen leafy vegetation" consistent with marijuana. The first officer then placed Christian under arrest for possession of marijuana, and the officers searched Christian's vehicle. The search revealed two digital scales, some marijuana, and methamphetamine. A search of Christian's person also revealed a clear baggie inside his pocket.

The State charged Christian with possession of methamphetamine, possession of marijuana, and possession of drug paraphernalia. He filed a motion to suppress evidence, arguing officers obtained it as the result of an unlawful seizure. The State asserted the first officer had reasonable suspicion to initiate the stop and the discovery of the expired tag justified continuation of the detention. The State argued Christian consented to the search of the container on his key ring and the discovery of marijuana provided probable cause to arrest and reasons to believe the officers would find additional evidence of the crime in the vehicle. The State claimed the automobile exception based on probable cause plus exigent circumstances justified the officers' search of Christian's vehicle. The State further asserted the evidence in the wallet and container was admissible under the inevitable discovery doctrine because officers had arrested Christian, would have the vehicle towed, and would conduct an inventory search of the vehicle and a search of Christian's personal property upon intake at the jail.

The district court held an evidentiary hearing, following which it issued a written decision denying Christian's motion. The district court found officers seized Christian when the first officer pulled behind the vehicle and activated his emergency lights. The district court noted "[t]he State [employed] the shotgun approach in presenting its position. The questioning and answers of the officer were tailored to support a number of different legal theories supporting the search." But the district court determined the pertinent inquiry was whether the officer had reasonable suspicion for the stop and found it was a "close yes." It denied the motion to suppress, holding:

"When the officer observed the expired tag, the custody then expanded beyond the stage of reasonable suspicion. The lack of insurance justified an arrest. [Christian] consented to a search of the container on the key chain. The car was going to be towed and therefore the vehicle would have been inventoried."

The court accepted Christian's waiver of a jury trial and convicted him of all charges at an evidentiary bench trial. Christian filed a timely notice of appeal, raising three issues. The Court of Appeals reversed his convictions and sentence, holding he did not properly waive his right to a jury trial.

Even though that holding reversing his convictions rendered the other issues moot, the panel addressed the merits of Christian's suppression motion because the issue could arise again on remand. See Christian , 2017 WL 3947406, at *4-5. The panel found the initial seizure was unsupported by reasonable suspicion. But it upheld the denial of Christian's motion under a different legal rationale-the United States Supreme Court's attenuation doctrine analysis in Utah v. Strieff , 579 U.S. ----, 136 S. Ct. 2056, 195 L. Ed. 2d 400 (2016). The panel dismissed Christian's third argument-a challenge to his criminal history score-as moot. See Christian , 2017 WL 3947406, at *9.

Christian timely petitioned for this court's review on the attenuation and criminal history issues. This court granted Christian's petition only on the suppression issue. This means the criminal history issue argued by Christian is not before us. See Supreme Court Rule 8.03(i)(1) (2019 Kan. S. Ct. R. 53).

Our jurisdiction is proper under K.S.A. 20-3018(b) (petition for review of Court of Appeals decision).

ANALYSIS

Christian's petition presents a narrow issue about whether Strieff ' s attenuation doctrine analysis applies to allow the admission of the evidence. Some background helps put this issue in perspective because, while the issue is now narrow, it began before the district court with the broader question: Did the officers violate Christian's rights under the Fourth Amendment to the United States Constitution and, if so, should the court exclude any evidence derived from the seizure and search?

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 searches 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 detention that is a 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). The issue Christian presented to the district court was the intertwined question of whether an unlawful detention tainted the later search.

The district court found the officer seized Christian when he pulled behind Christian's vehicle and activated his emergency lights. But the district court applied one of the well-delineated exceptions to the requirement that a warrant justify a seizure, finding the officer had reasonable suspicion that a crime had been, was being, or was about to be committed. See Terry , 392 U.S. at 20-22, 88 S.Ct. 1868. The district court thus admitted the evidence. But the Court of Appeals disagreed, ruling the district court erred in finding that reasonable suspicion justified the initial detention. See Christian , 2017 WL 3947406, at *8.

The State did not cross-petition for review of that ruling, so it is not properly before this court. See Rule 8.03(b)(6)(C)(i) and (iii), (c)(3) ; State v. Gray , 306 Kan. 1287, 1292-93, 403 P.3d 1220 (2017). We, therefore, accept the panel's finding that the officer unlawfully seized Christian. This determination would often lead to a ruling that the court had to suppress the methamphetamine, marijuana, and drug paraphernalia discovered on Christian and in his car.

Suppression results from applying the exclusionary rule under which 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' " if it finds officers obtained evidence in violation of the Fourth Amendment. 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 the 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] ).

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 it reviews to determine whether the fact 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). Then, the appellate court reviews the district court's ultimate legal conclusion de novo. See State v. Hanke , 307 Kan. 823, 827, 415 P.3d 966 (2018).

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 controls, and other factors may be relevant to the attenuation analysis. See, e.g., Brown , 422 U.S. at 600-04, 95 S.Ct. 2254 ; 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).

In this case, our analysis differs from most cases in which we review a district court's application of the attenuation doctrine because the district court did not address the issue. Rather, it was first considered in the panel's decision. The panel thus had to take the findings made by the district court and fit them into factors the district court had not considered. And while the State asked the panel to consider the doctrine, it never argued why the Court of Appeals could consider the doctrine for the first time on appeal. For good reason, we usually will not consider issues for the first time on appeal, especially those that involve issues of fact like the attenuation doctrine. See State v. Brown , 309 Kan. 369, 375, 435 P.3d 546 (2019). Here, based on the facts before us, we have determined the guidance provided by the Court of Appeals is incorrect. So we too will take the available facts, which are largely undisputed, and apply them, while also pointing out where the parties may not have developed facts.

Within those limitations, for guidance on remand, we discuss the panel's analysis of the three attenuation doctrine factors.

Temporal proximity

In discussing the temporal proximity of the search to the unconstitutional seizure, the panel stated:

"As to the first factor, if a substantial amount of time passes between the illegality and the discovery of evidence, such a fact supports not suppressing the evidence. 136 S. Ct. at 2062. While it is true that an exact time between the illegal stop and the discovery of the evidence is not apparent from the record, we do know that the officer discovered Christian's expired license plate before he began his encounter with Christian." Christian , 2017 WL 3947406, at *9.

We are not entirely certain how the panel weighed this factor. But nothing in the record suggests a significant lapse in time between the unlawful seizure and the discovery of evidence. The first factor does not "[favor] attenuation unless 'substantial time' elapses between an unlawful act and when the evidence is obtained." Strieff , 136 S. Ct. at 2062. Here, the first factor favors suppression.

Intervening circumstances

For the attenuation doctrine to apply, there must be a sufficient intervening event to break the causal connection between the illegal seizure and the discovery of evidence. See Brown , 422 U.S. at 603-04, 95 S.Ct. 2254. In Strieff , the United States Supreme Court clarified the importance of the discovery of an arrest warrant, holding it is an intervening factor that "strongly favors the State." 136 S. Ct. at 2062. Here, the Court of Appeals panel relied on this holding in Strieff and found "the discovery of the expired license plate was a sufficient intervening circumstance which gave law enforcement justification in and of itself to stop Christian's vehicle." Christian , 2017 WL 3947406, at *9. But the panel did not explain how this was equivalent to the discovery of a warrant in Strieff . See Christian , 2017 WL 3947406, at *9. And the State provided no argument to this effect in its brief to the Court of Appeals. We determine the comparison fails.

The Strieff Court limited its holding to "the discovery of a valid, preexisting, and untainted arrest warrant." Strieff , 136 S. Ct. at 2061. In large part, it was the preexisting nature of the warrant that attenuated the taint of the unconstitutional seizure. See State v. Tatro , No. 118,237 (Slip op. at 12), --- Kan. ----, ----, 445 P.3d 173, 2019 WL 3367386 (2019), this day decided. Here, the intervening circumstance was not the discovery of an arrest warrant. Rather, it was the officer observing evidence of a crime made apparent after the officer unlawfully seized Christian and in the course of the officer's unconstitutionally initiated investigation. Christian argues this circumstance distinguishes his arrest from that in Strieff , which was based on a valid, untainted, and preexisting warrant unrelated to the stop. We agree with Christian.

The Strieff Court emphasized that " '[a] warrant is a judicial mandate to an officer to conduct a search or make an arrest, and the officer has a sworn duty to carry out its provisions.' " Strieff , 136 S. Ct. at 2062 (quoting United States v. Leon , 468 U.S. 897, 920 n.21, 104 S. Ct. 3405, 82 L. Ed. 2d 677 [1984] ). In other words, a valid warrant that predates and is unconnected with the stop independently compels the officer to make an arrest, and that order does not rest on the officer's exercise of discretion. Once arrested, the officer can conduct a search incident to the arrest. But the search follows an intervening "ministerial act" consistent with the officer's " 'sworn duty to carry out [the] provisions' " of the arrest warrant. (Emphasis added.) See Strieff , 136 S. Ct. at 2062-63.

Christian's arrest did not result from the officer fulfilling his duty to execute a preexisting arrest warrant. Instead, the panel found the officer had discretion to arrest Christian for no proof of insurance. See Christian , 2017 WL 3947406, at *9. Detaining Christian for the expired tag and arresting him for no proof of insurance were not "ministerial act[s]" consistent with the officer's " 'sworn duty to carry out [the] provisions' " of an arrest warrant. See Strieff , 136 S. Ct. at 2062-63. Rather, these were discretionary acts within his investigatory role as a law enforcement officer.

In addition, unlike a valid, preexisting warrant unrelated to the stop, the bases relied on to detain-the expired tag-and arrest Christian-the lack of proof of insurance-arose from and were directly related to the unlawful initial detention. Granted, these facts supported probable cause that crimes had been committed. But all of the officer's actions flowed from and were tainted by the unconstitutional seizure. To rule otherwise would allow derivative evidence to attenuate the initial illegality. But that is not the attenuation doctrine's purpose. See Brown , 422 U.S. at 602-05, 95 S.Ct. 2254 (holding court could not admit defendant's confession because Miranda warnings did not break causal chain between an illegal arrest and statements later made).

In United States v. Gaines , 918 F.3d 793, 802 (10th Cir. 2019), the Tenth Circuit Court of Appeals recently rejected a similar argument under similar facts. There, police received a call from a citizen reporting that a man in a red hat had just sold drugs in a parking lot. Officers responded and pulled into the parking lot with their roof lights activated. The officers then parked behind a car in which a man in red clothing sat. They gestured for the man to get out of the car and, as he did, they smelled the odor of PCP and observed an open container of alcohol. When the officers advised the defendant they would detain him, he fled. Officers caught him and conducted a search, finding the evidence at issue.

The Tenth Circuit held the officers unconstitutionally seized the defendant. It then turned to the government's arguments about the attenuation doctrine. One of the arguments considered was whether the discovery of the open container and the smell of PCP provided probable cause that would trigger the attenuation doctrine. The Tenth Circuit rejected the argument because "even if probable cause existed, it would have flowed directly from the seizure.... So the discovery of evidence would still be traced directly to the possible Fourth Amendment violation.... Given this direct causal connection, the eventual development of probable cause would not trigger the attenuation doctrine." Gaines , 918 F.3d at 802 (citing Wong Sun v. United States , 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 [1963] ).

The same conclusion applies here. Discovering evidence of a crime when that discovery flows directly from the unconstitutional seizure does not attenuate the taint of the Fourth Amendment violation.

Flagrancy

The third factor-the purpose and flagrancy of the official misconduct-focuses on the primary purpose of the exclusionary rule-deterring police misconduct. See Strieff , 136 S. Ct. at 2062. "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. Today, in Tatro , we have delineated possible considerations in applying the flagrancy factor. Tatro , No. 118,237 (Slip op. at 15), --- Kan. at ----, 445 P.3d 173. We noted that in Strieff the 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. Focusing on the aspect of good faith, we incorporated some considerations identified by the Tenth Circuit:

"[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] )." United States v. Fox , 600 F.3d 1253, 1261 (10th Cir. 2010).

We also noted that this court has found flagrant misconduct where an officer knowingly detains someone without authority. See State v. Cleverly , 305 Kan. 598, 612, 385 P.3d 512 (2016).

Here, the Court of Appeals panel held:

"Finally, as to the purpose and flagrancy of the police conduct, 136 S. Ct. at 2062, we see nothing in the record that suggests this stop was related to a systemic or recurrent police misconduct. The officers were responding to a complaint about a suspicious vehicle. There was nothing to suggest that the officers' goal was to search Christian for drugs." Christian , 2017 WL 3947406, at *9.

Christian does not dispute this. But we note he conceded only "the Court of Appeals' finding that nothing suggested the stop was related to a systemic or recurrent problem with police misconduct." The panel did not directly discuss the other types of flagrancy discussed in Strieff and Fox . But it indirectly did so when it considered whether the search-separated from the taint of the seizure-was constitutional. The panel at least implied that the search of Christian's vehicle was a proper search incident to arrest for no proof of insurance. See Christian , 2017 WL 3947406, at *9.

This conclusion conflicts with the permissible scope for the search of a vehicle under Arizona v. Gant , 556 U.S. 332, 351, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009) ("Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest."). In Gant , the Court held officers could not search inside Gant's vehicle following his arrest "for driving with a suspended license-an offense for which police could not expect to find evidence in the passenger compartment of Gant's car." 556 U.S. at 344, 129 S.Ct. 1710. Here, the panel identified a lack of proof of insurance as the crime of arrest. See Christian , 2017 WL 3947406, at *9. Like Gant , it was not reasonable for the officers to believe they would find evidence of that crime in Christian's vehicle. See 556 U.S. at 344, 129 S.Ct. 1710.

The panel's discussion was thus partially incorrect and narrow, lacking a discussion of the officer's subjective good faith.

CONCLUSION

Even though we cannot fully evaluate the flagrancy factor, the other factors weigh heavily toward a determination that there was no attenuation of the taint of the illegal seizure and the district court should have suppressed the evidence derived from the search. Even if nothing in the record revealed flagrancy, the attenuation doctrine does not allow the admission of the evidence here.

We thus disagree with and disapprove of the panel's guidance on the suppression issue. This does not change the Court of Appeals' holding that the waiver of jury trial was improper or its decision to reverse Christian's convictions and sentence for that reason. Nor does it change the Court of Appeals' conclusion that the officer lacked reasonable suspicion for the initial detention and, thus, the district court erred on that point. All we decide is that, at least on the facts before us, the attenuation doctrine does not apply.

The guidance judgment of the Court of Appeals affirming the district court on the single issue subject to our review is reversed. Judgment of the district court is reversed and the case is remanded for proceedings consistent with this opinion.


text:
    STATE of Kansas, Appellee, v. John CEPEDA, Appellant.
    No. 119,670
    Court of Appeals of Kansas.
    Opinion filed July 26, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. August J. DENNY, Appellant.
    No. 120,118
    Court of Appeals of Kansas.
    Opinion filed August 2, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Garrett Lee BARNETT, Appellant.
    No. 120,162
    Court of Appeals of Kansas.
    Opinion filed August 2, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Sergio CERVANTES-PUENTES, Appellant.
    No. 119,867
    Court of Appeals of Kansas.
    Opinion filed August 2, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Lonnie A. DAVIDSON, Appellant.
    No. 119,759
    Court of Appeals of Kansas.
    Opinion filed August 2, 2019
    Affirmed.