author: Malone, J.:

text:
    STATE of Kansas, Appellant, v. Richard William MANWARREN II, Appellee.
    No. 119,520
    Court of Appeals of Kansas.
    Opinion filed April 12, 2019
    Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellant.
    Shannon S. Crane, of Hutchinson, for appellee.
    Before Bruns, P.J., Malone and Powell, JJ.
   Malone, J.:

The State brings this interlocutory appeal of the district court's order granting a motion to suppress evidence filed by Richard W. Manwarren II. The case involves what both parties agree began as a welfare check or public safety stop involving Manwarren and a law enforcement officer in Reno County. But after it was clear to the officer that Manwarren was not in need of any help, the officer requested and retained Manwarren's identification card to run a warrant check. When the officer discovered an outstanding warrant for Manwarren, the officer arrested him and found drugs and drug paraphernalia on his person. The district court suppressed the evidence, finding that the detention was illegal and that the State failed to meet its burden of proving that the attenuation doctrine should be applied to allow the admission of the evidence.

On appeal, the State argues that the entire encounter between Manwarren and the officer was voluntary and not a seizure; but if the encounter was an unlawful seizure, then the taint of any illegal detention was attenuated by the discovery of the unrelated and valid arrest warrants, making the evidence admissible under Utah v. Strieff , 579 U.S. ----, 136 S.Ct. 2056, 195 L.Ed.2d 400 (2016). For the reasons we will carefully explain in this opinion, we disagree with the State and affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The facts are straightforward and undisputed. On July 17, 2016, at about 11:40 a.m., Officer Michael Rivers and another officer with the Hutchinson Police Department received a report that a man was lying in a ditch off Highway 61 in rural Reno County and might be injured. The officers responded to the call and found Manwarren lying in the grass about 5 feet from the highway. It was a bright and sunny day. As the officers arrived in their patrol car, Manwarren stood up and walked toward the officers to greet them. The parties agree that the encounter began as a welfare check, also called a public safety stop. Rivers testified that at the beginning of the encounter, there was no indication of criminal activity and Manwarren did not appear to be injured or intoxicated.

Rivers asked Manwarren whether he was okay, and Manwarren replied that he was waiting for a ride that was less than 30 minutes away. Manwarren added that he was homeless and had been camping nearby, and he was waiting for a friend to take him back into town. At that point, Rivers did not believe that Manwarren was a danger to himself or others, nor had Manwarren committed a crime by sitting by the side of the road.

Rivers then asked for Manwarren's identification "so [he] could identify who [he] was speaking with." Manwarren produced a Kansas photo ID card that included a physical description and a photograph that clearly depicted Manwarren. Then, instead of returning the identification card to Manwarren, Rivers retained the card and called dispatch to run a warrant check. Dispatch responded that Manwarren had an active warrant for "failure to appear." About five minutes had elapsed from the beginning of the encounter until dispatch informed Rivers of the outstanding warrant.

A third officer arrived on the scene in another patrol car. After confirming the warrant, Rivers placed Manwarren under arrest. After placing Manwarren in handcuffs, another officer asked whether Manwarren had anything the officer "should know about," and Manwarren stated that he had drugs in his pocket and scales in his backpack. Rivers searched Manwarren and the backpack and found these items. Soon thereafter, Manwarren's ride arrived at the scene. The officers allowed Manwarren's friend to take some of his personal belongings, but they seized the evidence and transported Manwarren to jail. The entire encounter was captured on Rivers' body camera.

On July 21, 2016, the State charged Manwarren with possession of methamphetamine with intent to sell, possession of drug paraphernalia with intent to distribute a controlled substance for sale, and possession of hydrocodone. Manwarren filed a motion to suppress the evidence. In the motion, Manwarren argued that his initial voluntary encounter or welfare check with the officers was converted to an investigatory detention without reasonable suspicion of criminal activity, so the evidence obtained as a result of the illegal detention must be suppressed.

The district court held a hearing on the motion to suppress on May 16, 2018. Rivers testified at the hearing and his body camera video was admitted into evidence. The State argued that the entire encounter between Manwarren and the officers was voluntary, but even if the encounter was an unlawful seizure, then the taint of any illegal detention was attenuated by the discovery of the unrelated and valid arrest warrants, making the evidence admissible under the United States Supreme Court's decision in Strieff .

On June 4, 2018, the district court filed an order with findings of fact and legal analysis of the issues presented in the motion to suppress. The district court found that Rivers illegally detained Manwarren to run a warrant check because it was beyond the scope of a welfare stop and there was no reasonable suspicion of criminal activity. The district court explained:

"The encounter between Officer Rivers and [Manwarren] was not consensual. [Manwarren] was not told he was free to leave or to refuse the request for his identification. [Manwarren] was on foot. Officer Rivers was in a vehicle, accompanied by a total of three other officers. A reasonable person in [Manwarren]'s position would have felt compelled to remain at the scene and to follow instructions. Officer Rivers exceeded the scope of a safety stop after he determined [Manwarren] was not in need of help. Nothing about [Manwarren] indicated impairment or a need for assistance. [Manwarren] was in a public place having apparently walked to his location. Sitting or lying down in a public place, especially when a person is on foot, and especially when a person is walking as a mode of transportation and not just for pleasure or to walk the dog, should not arouse suspicion. Officer Rivers asked [Manwarren] what his name is as the Fourth Amendment allows but when Officer Rivers asked for [Manwarren]'s identification and took it to run a warrant check the stop became an investigatory detention. Officer Rivers had no basis to formulate a reasonable suspicion that [Manwarren] was violating the law. The detention was illegal."

As for the application of the attenuation doctrine, the district court found:

"[Manwarren] was searched within minutes of the initial encounter. The time elapsed between the illegality and the acquisition of the evidence was negligible. Officer Rivers did discover an outstanding warrant, an intervening circumstance dissipating the taint of the illegal police contact. The encounter occurred on a sunny summer day in the middle of the day on a busy roadway. [Manwarren] showed respect to the officers and complied with every request made. Nothing about [Manwarren]'s appearance or conduct suggested he should be subjected to the indignity of a roadside search, visible to all passersby. The State argues Utah v. Strieff requires denying [Manwarren]'s motion. In the Strieff case the Supreme Court noted that the illegal detention occurred in connection with a bona fide investigation of a suspected drug house. Justice Thomas writing for the majority noted that the officer saw the defendant leave a suspected drug house and the officer's suspicion about the house was based on an anonymous tip and personal observations. The Strieff case is distinguishable. While this court has no evidence to suggest the unlawful detention was part of any systemic or recurrent police misconduct, the detention certainly did not occur in connection with a bona fide criminal investigation. The State has failed to sustain the burden of proving that the attenuation doctrine should be applied. Because the evidence was seized as a result of an unconstitutional search, without the benefit of the attenuation doctrine the evidence must be suppressed."

Based on its findings and legal analysis, the district court granted Manwarren's motion to suppress. The State filed a timely notice of appeal. We have jurisdiction over the interlocutory appeal under K.S.A. 2018 Supp. 22-3603.

On appeal, the State claims the district court "erred in granting [Manwarren's] motion to suppress under the facts of this case." The State first argues that the entire encounter between Manwarren and the law enforcement officers was voluntary and that the district court erred when it found the detention was illegal. Second, the State contends that even if the encounter was an unlawful seizure, then the taint of any illegal detention was attenuated by the discovery of the unrelated and valid arrest warrants, making the evidence admissible under Strieff .

In response, Manwarren argues that his encounter with the officers was not consensual and that the district court correctly found the detention was illegal. He also argues that the attenuation doctrine should not be applied under these facts to allow the admission of the evidence.

The standard of review for a district court's decision on a motion to suppress has two parts. The appellate court reviews the district court's factual findings to determine whether they are supported by substantial competent evidence. The ultimate legal conclusion, however, is reviewed using a de novo standard. In reviewing the factual findings, the appellate court does not reweigh the evidence or assess the credibility of witnesses. State v. Hanke , 307 Kan. 823, 827, 415 P.3d 966 (2018). When the material facts supporting the district court's decision on a motion to suppress evidence are not in dispute, the ultimate question of whether to suppress the evidence is a question of law over which an appellate court has unlimited review. 307 Kan. at 827, 415 P.3d 966.

WAS MANWARREN ILLEGALLY DETAINED ?

The State first argues that the entire encounter between Manwarren and the law enforcement officers was voluntary and that the district court erred when it found the detention was illegal. Conversely, Manwarren argues that his encounter with the officers was not consensual and that the district court correctly found the detention was illegal.

The district court found that, "Officer Rivers asked [Manwarren] what his name is as the Fourth Amendment allows but when Officer Rivers asked for [Manwarren]'s identification and took it to run a warrant check the stop became an investigatory detention." Because the act of running a warrant check was beyond the scope of a welfare stop and there was no reasonable suspicion of criminal activity, the district court found that Rivers illegally detained Manwarren in violation of his constitutional rights.

We begin our analysis by turning to the text of the applicable constitutional provisions. The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Section 15 of the Kansas Constitution Bill of Rights contains similar language and provides "the same protection from unlawful government searches and seizures as the Fourth Amendment." See State v. Neighbors , 299 Kan. 234, 239, 328 P.3d 1081 (2014).

The rights protected by the Fourth Amendment are tested any time a law enforcement officer encounters a citizen in a public place. The rules that courts apply to safeguard the protections of the Fourth Amendment depends on the type of encounter that is involved in each particular case.

Kansas courts have recognized four types of police-citizen encounters. The first type is a voluntary encounter, which is not considered a seizure under the Fourth Amendment. State v. Lee, 283 Kan. 771, 774, 156 P.3d 1284 (2007). The second type is an investigatory detention or Terry stop, in which an officer may detain any person in a public place if the officer reasonably suspects that the 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) ; K.S.A. 22-2402(1). The third type of encounter is a public safety stop, in which an officer may approach a person to check on his or her welfare when the officer can articulate specific facts showing a concern for the public's safety. See State v. Vistuba, 251 Kan. 821, 824, 840 P.2d 511 (1992). The fourth type of encounter between an officer and a citizen is an arrest. See K.S.A. 22-2401.

The parties here agree that the encounter between Rivers and Manwarren began as a welfare check/public safety stop. The Kansas Supreme Court first recognized the concept of a public safety stop in Vistuba, 251 Kan. 821, 840 P.2d 511. In that case, the officer testified that she observed erratic driving and was concerned that the driver might be impaired, but the officer specifically stated that she suspected no criminal activity from her observations. The Supreme Court determined the stop was lawful and held: "[A] civil or criminal infraction is not always essential to justify a vehicle stop. Safety reasons alone may justify the stop, if the safety reasons are based on specific and articulable facts. " 251 Kan. at 824, 840 P.2d 511.

In State v. Gonzales, 36 Kan. App. 2d 446, 141 P.3d 501 (2006), this court refined the appropriate justification for a public safety stop and the limited duration and scope of such a stop. In Gonzales, an officer stopped the defendant's vehicle when the officer observed a "bouncy" rear tire and an open hatch over the fuel cap. After the stop, the officer immediately asked for information about ownership of the vehicle and demanded the occupants' driver's licenses, rather than examining the problematic tire. After several minutes of questioning, the driver consented to a search of the vehicle. This court upheld the initial vehicle stop for public safety reasons, but this court also held the later search of the vehicle was illegal because the duration of the stop exceeded the scope of the public safety justification. 36 Kan. App. 2d at 458, 141 P.3d 501.

The Gonzales court determined that the legality of a public safety stop can be evaluated in three steps. First, as long as there are objective, specific, and articulable facts from which a law enforcement officer would suspect that a citizen needs help or is in peril, the officer has the right to stop and investigate. Second, if the citizen needs aid, the officer may take appropriate action to render assistance. Third, once the officer is assured that the citizen is not in peril or is no longer in need of assistance, any actions beyond that constitute a seizure, implicating the protections provided by the Fourth Amendment to the United States Constitution. 36 Kan. App. 2d at 456, 141 P.3d 501.

In applying the public safety rationale to justify a police-citizen encounter, courts employ careful scrutiny "so the protections of the Fourth Amendment are not emasculated." Gonzales, 36 Kan. App. 2d at 455, 141 P.3d 501. A public safety stop is not for investigative purposes. 36 Kan. App. 2d at 457, 141 P.3d 501. A public safety stop "must be divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." State v. Messner , 55 Kan. App. 2d 630, Syl. ¶ 2, 419 P.3d 642 (2018).

In Messner , a police officer stopped Christian Messner's vehicle after dispatch received a call reporting his odd behavior and requesting a welfare check. After stopping Messner, the police did little to check his welfare but instead seized his driver's license and checked for any warrants. This court held the officer "exceeded the limitations of the safety stop when he did more than speak with Messner to determine whether he was [all right] to drive." 55 Kan. App. 2d at 637, 419 P.3d 642. This court reasoned that the officer's act of taking Messner's driver's license and returning to his vehicle to run a warrant check was constitutionally impermissible, especially in light of the officer giving "no other reason for obtaining Messner's driver's license than to run it for wants and warrants." 55 Kan. App. 2d at 637, 419 P.3d 642 ; see also State v. Bluthardt , No. 116,401, 2017 WL 948330, at *3 (Kan. App. 2017) (unpublished opinion) (holding that an officer's act of retaining a driver's license to check for warrants turns both voluntary encounters and public safety stops into investigatory detentions).

Unlike in a public safety stop, which is not for investigative purposes, it is constitutionally permissible for a law enforcement officer to obtain a person's identification and check for outstanding warrants when the officer has reasonable suspicion to detain and investigate the person for criminal activity. See State v. Walker , 292 Kan. 1, 14-16, 251 P.3d 618 (2011). Likewise, as part of the routine investigation of a traffic infraction, the officer has a right to check the driver's license, inspect the vehicle's registration and proof of insurance, and determine whether there are outstanding warrants against the driver. State v. Jimenez , 308 Kan. 315, 325, 420 P.3d 464 (2018). In other words, once an officer has legal grounds to conduct an investigatory detention, the officer is free to check the person for outstanding warrants as part of the investigation.

Returning to our facts, Rivers and another officer responded to a call to check on Manwarren's welfare. After locating Manwarren on the side of the road, Rivers asked him if he was okay, and Manwarren replied that he was waiting for a ride that was less than 30 minutes away. Manwarren added that he was homeless and had been camping nearby, and he was waiting for a friend to take him back into town. At that point, there was no indication of criminal activity and Manwarren did not appear to be injured or intoxicated.

Rivers then asked for Manwarren's identification. The Kansas Supreme Court has held that a law enforcement officer's mere request for identification or identifying information generally will not constitute a seizure. See State v. Pollman , 286 Kan. 881, 888, 190 P.3d 234 (2008). But in Pollman , the court held that an officer's retention of an identification card is one factor to be considered in applying the totality of the circumstances test, and that factor may, absent offsetting circumstances, mean a reasonable person would not feel free to leave or otherwise terminate an encounter with the officer. 286 Kan. at 889, 190 P.3d 234.

Rivers had a right to ask for Manwarren's identification. But once Rivers retained the identification to run a warrant check, Manwarren was seized. At that point, no reasonable person would have felt free to leave or terminate the encounter. Based on Kansas caselaw cited above, the warrant check was beyond the scope of the welfare stop after it was clear to Rivers that Manwarren was not in need of any help. Likewise, there was no reasonable suspicion of criminal activity to extend the scope of the encounter.

The State points out that it only took Rivers a few minutes to run the warrant check and Manwarren would have remained on the side of the road waiting for his ride anyway. Although this fact may be true, it also remains true that no reasonable person would have felt free to leave or terminate the encounter once Rivers retained the identification. Rivers admitted in his testimony that it would not be "common practice" for a person to just walk away once an officer takes the person's identification. More importantly, there was no justification for Rivers to run a warrant check in the first place during a welfare stop, as such an encounter is not for investigative purposes and "must be divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Messner , 55 Kan. App. 2d 630, Syl. ¶ 2, 419 P.3d 642. Even a brief seizure must be reasonable under the Fourth Amendment.

The State also points out that Manwarren never requested his identification back so he could leave, and Rivers testified that he "absolutely" would have returned it with such a request. This fact might be important if Rivers had asked for Manwarren's permission to run the warrant check and told him that he was free to deny the request. Instead, Rivers simply retained the identification to run the warrant check without giving Manwarren any say in the matter. In this situation, no reasonable person would have felt free to leave or end the encounter without permission from the officer, and Manwarren would not have been expected to ask Rivers to return his identification.

Simply put, there was no justification for Rivers to run the warrant check as part of the welfare stop. Once Rivers determined that Manwarren was not in need of assistance, the welfare stop ended. By retaining Manwarren's identification and running a warrant check, the encounter became an investigatory detention even though Rivers had no reasonable and articulable suspicion that Manwarren was involved in any criminal activity. We agree with the district court that Rivers illegally detained Manwarren in violation of his constitutional rights when he retained the identification card to run a warrant check after it was clear to Rivers that Manwarren was not in need of any help.

DOES THE ATTENUATION DOCTRINE ALLOW THE ADMISSION OF THE EVIDENCE ?

Because Manwarren's detention was illegal, the next question is whether the evidence should be suppressed under the exclusionary rule. The exclusionary rule is a judicially created remedy that prohibits the introduction of evidence obtained in violation of a person's constitutional rights in order to deter future violations. State v. Baker , 306 Kan. 585, 590, 395 P.3d 422 (2017). But there are recognized exceptions to the exclusionary rule that allow the admission of evidence initially discovered in violation of a person's constitutional rights. One such exception is known as the attenuation doctrine.

The United States Supreme Court recently explained the attenuation doctrine as follows: "Evidence is admissible 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.' [Citation omitted.]" Strieff , 136 S.Ct. at 2061. Stated differently, " '[u]nder the attenuation doctrine, courts have found that the poisonous taint of an unlawful search or seizure dissipates when the connection between the unlawful police conduct and the challenged evidence becomes attenuated.' " State v. Moralez , 297 Kan. 397, 409, 300 P.3d 1090 (2013), abrogated by Utah v. Strieff , --- U.S. ----, 136 S.Ct. 2056, 195 L.Ed.2d 400 (2016).

We begin our analysis by addressing the Kansas Supreme Court's decision in Moralez , which arose from factual circumstances very similar to those in this case. Joseph Moralez' encounter with police began as a voluntary one, but officers obtained Moralez' identification card and, without reasonable suspicion of criminal activity, detained him while they checked for warrants. Upon discovery of an outstanding warrant for Moralez' arrest, officers arrested him and found drugs in his pocket. The State charged Moralez with felony possession of marijuana, and he moved to suppress the evidence. The district court denied the motion and a divided panel of this court affirmed. 297 Kan. at 400, 300 P.3d 1090.

Our Supreme Court granted review to clarify its earlier opinions "regarding the effect of the discovery of an outstanding arrest warrant during an unlawful detention." 297 Kan. at 400, 300 P.3d 1090. The court first held, under the facts of the case, that Moralez' voluntary encounter with law enforcement evolved into an unlawful detention when the officers retained Moralez' identification card and detained him while running a warrant check. 297 Kan. at 408, 300 P.3d 1090. Next, the court held that under the facts of the case, the officers' discovery of Moralez' outstanding arrest warrant did not purge the taint of the unlawful detention. 297 Kan. at 417, 300 P.3d 1090. In particular, the Moralez court held: " '[T]he subsequent discovery of a warrant is of minimal importance in attenuating the taint from an illegal detention upon evidence discovered during a search incident to an arrest on the warrant.' " 297 Kan. at 415, 300 P.3d 1090. The Moralez court expressly noted:

"Were it otherwise, law enforcement officers could randomly stop and detain citizens, request identification, and run warrants checks despite the lack of any reasonable suspicion to support the detention, knowing that if the detention leads to discovery of an outstanding arrest warrant, any evidence discovered in the subsequent search will be admissible against the defendant in a criminal proceedings unrelated to the lawful arrest." 297 Kan. at 415, 300 P.3d 1090.

We will now address in more detail the United States Supreme Court's decision in Strieff . The Court granted certiorari in Strieff to resolve disagreement on the question of applying the attenuation doctrine when an unconstitutional stop leads to the discovery of a valid arrest warrant and the later discovery of evidence. See Strieff , 136 S.Ct. at 2060. When it issued its opinion in 2016, the Strieff Court specifically cited Moralez , 297 Kan. at 415, 300 P.3d 1090, as an example of cases that "assign[ ] little significance to the discovery of the warrant." 136 S.Ct. at 2060.

Strieff involved a police-citizen encounter that was an investigatory detention from the outset. While conducting intermittent surveillance of a residence identified in an anonymous tip about drug activity, Officer Douglas Fackrell saw Edward Strieff leave the residence. Believing there was reasonable suspicion that Strieff was involved in criminal activity, Fackrell stopped him in a nearby parking lot. Fackrell obtained Strieff's identification, checked with the dispatcher, and learned of an outstanding arrest warrant for Strieff. Fackrell arrested Strieff and searched him, finding drugs and drug paraphernalia.

In the resulting criminal proceedings, Strieff moved to suppress the evidence, arguing that Fackrell lacked reasonable suspicion for the stop. The district court denied the motion, finding that the existence of a valid arrest warrant sufficiently attenuated the connection between the stop and the discovery of the contraband. The Utah Court of Appeals affirmed, but the Utah Supreme Court reversed, holding that only a defendant's voluntary act could sufficiently break the connection between an illegal search and evidence subsequently discovered. The United States Supreme Court granted certiorari to apply the attenuation doctrine to the facts of the case, assuming without deciding that Fackrell's initial stop was unconstitutional. 136 S.Ct. at 2060, 2062.

Citing Brown v. Illinois , 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the Strieff Court identified three factors that guide a court's analysis of whether the attenuation doctrine applies to allow the admission of evidence discovered after a violation of a person's constitutional rights: (1) The " 'temporal proximity' " between the unconstitutional conduct and the discovery of the evidence; (2) " 'the presence of intervening circumstances' "; and (3) the " 'the purpose and flagrancy of the official misconduct.' " 136 S.Ct. at 2061-62. No one factor is controlling, and other factors may be relevant to the attenuation analysis. See Brown , 422 U.S. at 603, 95 S.Ct. 2254 (declining to adopt any "talismanic test" and cautioning that attenuation doctrine depends on the circumstances of each case).

The Strieff Court found that the temporal proximity between the illegal stop and the search at issue-only minutes-favored suppressing the evidence. 136 S.Ct. at 2062. But the Court found that the presence of intervening circumstances-including the discovery of the valid arrest warrant-strongly favored not suppressing the evidence. 136 S.Ct. at 2062-63. As for the third factor, the Court found that Fackrell's conduct was not flagrant and did not seek to serve an improper purpose. 136 S.Ct. at 2063. The Court reasoned that because the exclusionary rule is meant to deter police misconduct, invoking that rule in this instance would serve little purpose where, as the Court interpreted it, Fackrell simply made some "good-faith mistakes" in illegally stopping Strieff and his conduct thereafter was lawful. 136 S.Ct. at 2063. Moreover, the Court found there was no evidence that Fackrell's behavior in stopping Strieff was part of a systemic pattern of police misconduct. 136 S.Ct. at 2063. The Court held the evidence

"was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. Although the illegal stop was close in time to Strieff's arrest, that consideration is outweighed by two factors supporting the State. The outstanding arrest warrant for Strieff's arrest is a critical intervening circumstance that is wholly independent of the illegal stop. The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that Officer Fackrell's illegal stop reflected flagrantly unlawful police misconduct." 136 S.Ct. at 2063.

Although the facts in Strieff and Moralez are distinguishable, the Court's decision in Strieff abrogates that part of the Kansas Supreme Court's holding in Moralez that the subsequent discovery of a warrant is of "minimal importance" in attenuating the taint from an illegal detention upon evidence discovered during a search incident to an arrest on the warrant. See Moralez , 297 Kan. at 415, 300 P.3d 1090. But the remainder of the holdings and conclusions of law on other issues in Moralez remain in effect.

We now turn to the district court's analysis of the attenuation doctrine in Manwarren's case. Here, the district court distinguished Strieff , finding that the officer in that case was involved in "a bona fide investigation of a suspected drug house" when the illegal detention occurred. On appeal, the State correctly points out that the Strieff Court drew no distinction between "bona fide" and non-"bona fide" investigations in terms of applying the attenuation doctrine. But we do not interpret the district court's order as trying to distinguish between bona fide investigations and non-bona fide investigations. Instead, we interpret the district court's order as trying to distinguish between stops that are investigatory-such as the one in Strieff -and stops that are not investigatory, such as voluntary encounters or public safety stops. In that regard, we agree with the district court that Strieff is materially distinguishable from Manwarren's case because it did not implicate a welfare check or public safety stop but rather involved an unfounded investigatory detention as the result of the officer's good-faith mistakes.

In rejecting the application of the attenuation doctrine in Manwarren's case, the district court found that the "time elapsed between the illegality and the acquisition of the evidence was negligible." The district court also found that Rivers "did discover an outstanding warrant, an intervening circumstance dissipating the taint of the illegal police contact." But it does not appear that the district court expressly addressed the purpose and flagrancy of the police misconduct. The district court ultimately found that the "State has failed to sustain the burden of proving that the attenuation doctrine should be applied."

Whether attenuation sufficiently purged the taint of illegal police conduct is a question of fact that appellate courts review under a substantial competent evidence standard. Moralez , 297 Kan. at 410, 300 P.3d 1090. But in Manwarren's case, where the evidence on the issue is undisputed, we can employ de novo review. See Hanke , 307 Kan. at 827, 415 P.3d 966. The burden is on the State to show that the attenuation doctrine should be applied to allow the admission of the evidence. See K.S.A. 22-3216(2) (the burden of proving that the search and seizure were lawful shall be on the prosecution).

Application of the attenuation doctrine to Manwarren's case

The first factor generally considered by courts in an analysis under the attenuation doctrine is the "temporal proximity" between the unconstitutional conduct and the discovery of the evidence. Strieff , 136 S.Ct. at 2062. Here, the time span between Manwarren's illegal detention and the discovery of the evidence during the search incident to his arrest was not long, which weighs in favor of suppression.

The second factor that guides a court's analysis of whether the attenuation doctrine applies is the presence of any intervening circumstances. Strieff , 136 S.Ct. at 2062. As the district court found, Rivers discovered that Manwarren had active warrants, an intervening circumstance dissipating the taint of the illegal police contact. But for the reasons already stated, the genesis of this encounter as a welfare check and the complete lack of any justification for the investigation into whether Manwarren had outstanding warrants materially distinguish this case from Strieff . Thus, although the existence of the outstanding warrants should not be minimized and certainly weighs against suppression, it is not controlling here just because it appeared to be controlling in Strieff .

The third factor that guides a court's analysis of whether the attenuation doctrine applies is the "purpose and flagrancy of the official misconduct." Strieff , 136 S.Ct. at 2062. In Strieff , the Supreme Court emphasized that "[f]or the violation to be flagrant, more severe police misconduct is required than the mere absence of proper cause for the seizure." 136 S.Ct. at 2064. The Kansas Supreme Court has stated that in examining the flagrancy of official misconduct, " '[f]actors such as an officer's regular practices and routines, an officer's reason for initiating the encounter, the clarity of the law forbidding the illegal conduct, and the objective appearance of consent may all be important in this inquiry.' " Moralez , 297 Kan. at 416, 300 P.3d 1090.

Here, Rivers was polite and courteous throughout his encounter with Manwarren. It appears that Rivers did not subjectively understand that he was violating Manwarren's constitutional rights. But his conduct of running a warrant check as part of a welfare stop is clearly in violation of well-established Kansas caselaw, going back to Vistuba in 1992, which emphasizes that a public safety or welfare stop is not for investigative purposes and must end as soon as the officer determines the citizen is not in need of help. See Vistuba , 251 Kan. at 824, 840 P.2d 511 ; Gonzales , 36 Kan. App. 2d at 457, 141 P.3d 501. Thus, the clarity of Kansas law forbidding Rivers' illegal conduct supports a finding of flagrant official misconduct.

Moreover, Rivers testified that, based on his training, he runs a warrant check every time he has a public encounter with any citizen. He testified that his understanding of departmental policy was: "If we, you know, make contact with anybody out there, we get their name and date of birth, check for warrants." Rivers later confirmed that when making contact with a pedestrian, "I identify the people I'm speaking with, so that way I know who I'm speaking with. And, yes, when I do identify them ... I do run them." Later, when asked whether it was his "understanding you can walk up to somebody and take their I.D. and run them for wants and warrants," Rivers responded, "Yes." He also agreed that he "routinely follow[s] that procedure."

Contrary to the district court's finding that there was "no evidence to suggest the unlawful detention was part of any systemic or recurrent police misconduct," we find that the evidence in the record supports the opposite conclusion. Rivers testified that he believes it is constitutionally permissible to take a person's identification and check for warrants in any public encounter with any citizen, and he does so in every case. While this understanding may be correct when the encounter is an investigatory detention, it is not the case for a public safety stop based on well-established Kansas law. Unlike the misconduct of the police officer in Strieff , Rivers' misconduct cannot be characterized as a good-faith mistake, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence. Instead, it is misconduct in need of deterrence and, as such, justifies applying the exclusionary rule.

Here, when Rivers discovered that Manwarren had an active warrant, he had an obligation to arrest him. He also had the right to conduct a safety search incident to the arrest. But it does not follow that any evidence seized during the search is admissible in a later prosecution of Manwarren based on the evidence found during the search. When the running of the warrant check is what makes the detention illegal in the first place, it stands to reason that the discovery of the warrant alone will not always attenuate the illegal police conduct. Otherwise, the end will always justify the means.

To sum up, in applying the public safety rationale to justify a police-citizen encounter, courts employ careful scrutiny "so the protections of the Fourth Amendment are not emasculated." Gonzales , 36 Kan. App. 2d at 455, 141 P.3d 501. The State argues that the United States Supreme Court's decision in Strieff stands for the proposition "that the discovery of an outstanding warrant attenuates any taint of an otherwise illegal detention." But the Court's decision in Strieff does not go that far. Here, the district court's finding that the State failed to meet its burden of proving that the attenuation doctrine should be applied is supported by substantial evidence in the record. As a result, we conclude the district court did not err in granting Manwarren's motion to suppress the evidence.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    In the INTEREST OF J.S., a Minor Child.
    No. 120,193
    Court of Appeals of Kansas.
    Opinion filed May 3, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Troy H. NELSON, Appellant.
    No. 119,491
    Court of Appeals of Kansas.
    Opinion filed May 3, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Janell M. HAMMARLUND, Appellant.
    No. 119,435
    Court of Appeals of Kansas.
    Opinion filed May 3, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Brenda Jo JOHNSON, Appellant.
    No. 119,049
    Court of Appeals of Kansas.
    Opinion filed May 3, 2019
    Dismissed.


text:
    STATE of Kansas, Appellee, v. Craig L. KIRKENDOLL, Appellant.
    No. 119,516
    Court of Appeals of Kansas.
    Opinion filed May 3, 2019
    Submitted for summary disposition by the parties pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Sergio Jesus NUNEZ, Appellant.
    Nos. 119 194 119,195
    Court of Appeals of Kansas.
    Opinion filed May 3, 2019
    Submitted by the parties for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    Jesus A. LOYO, Appellant, v. STATE of Kansas, Appellee.
    No. 119,016
    Court of Appeals of Kansas.
    Opinion filed May 3, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Vernon Scott DARNELL, Appellant.
    No. 119,922
    Court of Appeals of Kansas.
    Opinion filed May 3, 2019
    Submitted by the parties for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    In the MATTER OF the ESTATE OF Esther M. BAUMAN.
    No. 119,498
    Court of Appeals of Kansas.
    Opinion filed May 3, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Tyler Lee DAWSON, Appellant.
    No. 119,446
    Court of Appeals of Kansas.
    Opinion filed May 3, 2019
    Sentence vacated. Remanded with directions.


text:
    STATE of Kansas, Appellee, v. Jose I. CUELLAR, Appellant.
    No. 119,323
    Court of Appeals of Kansas.
    Opinion filed May 3, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Brendan L. BECKER, Appellant.
    No. 119,122
    Court of Appeals of Kansas.
    Opinion filed May 3, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Demareo SCOTT, Appellant.
    No. 119,928
    Court of Appeals of Kansas.
    Opinion filed May 3, 2019
    Submitted for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Akira T. BROWN, Appellant.
    No. 119,058
    Court of Appeals of Kansas.
    Opinion filed May 3, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Carl M. BURRIS, Appellant.
    No. 118,053
    Court of Appeals of Kansas.
    Opinion on remand filed May 3, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Ronnell COPPAGE, Appellant.
    Nos. 115 585 116,874
    Court of Appeals of Kansas.
    Opinion filed May 3, 2019.
    Affirmed.


text:
    In the INTERESTS OF A.W. and M.W., Minor Children.
    No. 120,373
    Court of Appeals of Kansas.
    Opinion filed May 10, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Bryce Anthony PJESKY, Appellant.
    No. 119,256
    Court of Appeals of Kansas.
    Opinion filed May 3, 2019.
    Affirmed.


text:
    In the INTEREST OF L.C., a Minor Child.
    No. 120,124
    Court of Appeals of Kansas.
    Opinion filed May 3, 2019.
    Affirmed.


text:
    In the MATTER OF the ESTATE OF Dorothy A. DETERS.
    No. 119,296
    Court of Appeals of Kansas.
    Opinion filed May 3, 2019
    Affirmed in part, reversed in part. Remanded with directions.


text:
    Gregory E. BELL, Appellant, v. STATE of Kansas, Appellee.
    No. 118,812
    Court of Appeals of Kansas.
    Opinion filed May 3, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Shanon Patrick WILLIAMS, Appellant.
    No. 119,450
    Court of Appeals of Kansas.
    Opinion filed May 10, 2019
    Affirmed.


text:
    Apprentice Juan DESHAZER, Appellant, v. STATE of Kansas, Appellee.
    No. 119,055
    Court of Appeals of Kansas.
    Opinion filed May 10, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Michael Anthony ALLEN, Appellant.
    No. 118,824
    Court of Appeals of Kansas.
    Opinion filed May 10, 2019
    Affirmed.


text:
    In the INTEREST OF A.T., a Minor Child.
    No. 120,211
    Court of Appeals of Kansas.
    Opinion filed May 10, 2019
    Affirmed.


text:
    In the INTEREST OF R.G., a Minor Child.
    No. 120,300
    Court of Appeals of Kansas.
    Opinion filed May 10, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Kaylee Jo EVANS, Appellant.
    No. 120,168
    Court of Appeals of Kansas.
    Opinion filed May 10, 2019
    Submitted for summary disposition pursuant K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Jorge Ivan HERNANDEZ, Appellant.
    No. 119,353
    Court of Appeals of Kansas.
    Opinion filed May 10, 2019
    Affirmed. Remanded with instructions.


text:
    STATE of Kansas, Appellee, v. Tamika PLEDGER, Appellant.
    No. 118,391
    Court of Appeals of Kansas.
    Opinion filed May 10, 2019
    Affirm.


text:
    STATE of Kansas, Appellee, v. Nathaniel Ray DIPMAN, Appellant.
    No. 118,493
    Court of Appeals of Kansas.
    Opinion filed May 10, 2019
    Affirmed.


text:
    In the INTERESTS OF P.L. and L.L., Minor Children.
    No. 120,220
    Court of Appeals of Kansas.
    Opinion filed May 10, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Vincent LOMAX, Appellant.
    No. 119,080
    Court of Appeals of Kansas.
    Opinion filed May 10, 2019
    Affirmed.


text:
    Teill S. REYNOLDS, Appellant, v. KANSAS CITY, KS Police Dept., et al., Appellees.
    No. 119,372
    Court of Appeals of Kansas.
    Opinion filed May 10, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Richard E. TIMMONS, Appellant.
    No. 119,830
    Court of Appeals of Kansas.
    Opinion filed May 10, 2019
    Submitted for summary disposition pursuant K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    Brandon BLAKESLEE, Appellee, v. MANSEL CONSTRUCTION, and Farm Bureau Property & Casualty Insurance Company, Appellants.
    No. 119,887
    Court of Appeals of Kansas.
    Opinion filed May 10, 2019
    Dismiss.


text:
    RJA DOZER SERVICE LLC, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF FORD COUNTY, Kansas, comprised of Shawn Tasset, Chris Boys, and Ken Snook ; and Debbie Cox, Ford County Clerk, Appellees.
    No. 119,811
    Court of Appeals of Kansas.
    Opinion filed May 10, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Lara Leann SHOBE, Appellant.
    No. 119,725
    Court of Appeals of Kansas.
    Opinion filed May 10, 2019
    Submitted for summary disposition pursuant K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed in part. Dismissed in part.


text:
    STATE of Kansas, Appellee, v. Eric Scott PETERS, Appellant.
    No. 120,063
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019
    Submitted for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirm.


text:
    STATE of Kansas, Appellee, v. John Patrick STEVENSON, Appellant.
    No. 120,051
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019
    Submitted for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirm.


text:
    James David BONE, Appellant, v. STATE of Kansas, Appellee.
    No. 119,371
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Anthony J. OTANO, Appellant.
    No. 119,294
    Court of Appeals of Kansas.
    Opinion filed May 10, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Jesus Neftali VAZQUEZ-MATEO, Appellant.
    No. 120,370
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019
    Submitted for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirm.


text:
    STATE of Kansas, Appellee, v. Austin James DICKEY, Appellant.
    No. 120,277
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019
    Submitted for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirm.


text:
    STATE of Kansas, Appellant, v. William Allen FORD, Appellee.
    No. 119,698
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019
    Reversed. Remanded with directions.


text:
    STATE of Kansas, Appellee, v. Julious Lee GOODRIDGE, Appellant.
    No. 119,466
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Fernando DOMINGUEZ, Appellant.
    No. 119,746
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Alfred D. TYLER, Appellant.
    No. 119,559
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019
    Submitted for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirm.


text:
    UNITED METHODIST HOMES, d/b/a Aldersgate Village, Appellant, v. KANSAS DEPARTMENT FOR AGING AND DISABILITY SERVICES, Appellee.
    No. 119,043
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019.
    Reversed. Remanded with directions.


text:
    STATE of Kansas, Appellee, v. Hanbit J. CHANG, Appellant.
    No. 118,837
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019.
    Affirmed.


text:
    Terry WALLING, Appellant, v. STATE of Kansas, Appellee.
    No. 120,102
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019
    Affirmed.


text:
    STATE of Kansas, Appellant, v. Ralph WEAVER, Appellee.
    No. 119,956
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Francois WILLIAMS, Appellant.
    No. 119,404
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019.
    Affirmed.


text:
    QUIVIRA CROSSING SHOPS, INC., Appellant, v. CITY OF LENEXA, Kansas, Appellee.
    No. 119,341
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Dustin Jamar FRANKLIN, Appellant.
    No. 120,003
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019
    Submitted for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirm.


text:
    Kimberley LEE-THORNTON, Appellee, v. Adebayo OGUNMENO, Appellant.
    No. 119,290
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Danny L. ALEXANDER, Appellant.
    118,270 118,271
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Manuel A. RIVAS, Appellant.
    No. 119,462
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019
    Affirm. Reverse in part. Remand.


text:
    STATE of Kansas, Appellee, v. William Michael FLENNIKEN IV, Appellant.
    No. 119,343
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019
    Affirmed.


text:
    Wayne THORPE and Kevin Thorpe, Appellees, v. The RYAN E. KRAFT TRUST, Appellant.
    No. 118,960
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019.
    Reversed. Remanded.


text:
    Isaac James ALLEN, Appellant, v. STATE of Kansas, Appellee.
    No. 118,929
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Sherra STAPLETON, Appellant.
    No. 118,796
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019
    Affirmed.


text:
    IN RE Parenting of: T.P.D.C., A Minor Child.
    Tami Disney, Petitioner and Appellant, v. Brandon Staat, Respondent, Appellee, and Cross-appellant.
    DA 18-0236
    Supreme Court of Montana.
    Submitted on Briefs: April 10, 2019 Decided: May 7, 2019
    Affirmed.


text:
    STATE of Montana, Plaintiff and Appellee, v. Brian Thomas NORVELL, Defendant and Appellant.
    DA 17-0456
    Supreme Court of Montana.
    Submitted on Briefs: March 13, 2019 Decided: May 7, 2019
    For Appellant: Laura Reed, Attorney at Law, Missoula, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Marcia Boris, Lincoln County Attorney, Jeffrey Zwang, Deputy County Attorney, Libby, Montana
   Justice Jim Rice delivered the Opinion of the Court.

¶1 Brian Thomas Norvell (Norvell) appeals his conviction of aggravated assault, in violation of § 45-5-202, MCA, upon his no contest plea, in the Nineteenth Judicial District Court, Lincoln County. We reverse and remand for dismissal without prejudice.

¶2 We consider the following issue:

Did the District Court err by denying Norvell's motion to dismiss for unnecessary delay between his arrest and initial appearance?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 As alleged, on May 9, 2016, Norvell struck a cyclist with his car while driving on a highway near Libby, Montana. Norvell initially fled, but soon returned to the collision scene in a different car while law enforcement was investigating. Norvell approached United States Border Patrol Agent Luis Granado (Granado), who was the first law enforcement officer to arrive on the scene, said "I am the one that nailed him," and asked Granado to "give his best regards to the cyclist's family." Norvell handed Granado a wallet, which was later identified as the victim's. Granado observed that Norvell was "pretty worked up" and "breathing heavy." Norvell indicated he was going to leave the scene, so Granado had Norvell wait in a law enforcement vehicle until additional law enforcement arrived.

¶4 Montana Highway Patrol Trooper Anthony Jenson (Jenson) responded to the scene and took over the investigation. Jenson made contact with Norvell, who refused to answer questions. Jenson observed that Norvell's eyes were red, bloodshot, and watery. Because Norvell was detained in a law enforcement vehicle, Jenson advised Norvell of his Miranda rights. Jenson then continued investigating, including speaking to a witness and documenting the scene.

¶5 Jenson learned that Norvell was on probation for a prior felony offense in Idaho. Jenson contacted Norvell's probation officer, Darrell Vanderhoef (Vanderhoef), who advised Jenson that Norvell had violated his probation by operating a motor vehicle with a suspended license and fleeing the scene of a crash involving injury. Vanderhoef verbally authorized Jenson to arrest Norvell, so Jenson took Norvell into custody for violation of probation and transported him to the Lincoln County Detention Center (Detention Center).

¶6 The next day, May 10, Vanderhoef filed an authorization to pick up and hold Norvell with the Detention Center, and met with Norvell there. Norvell told Vanderhoef that he had driven his vehicle someplace into the woods between the crash scene and the Koocanusa Bridge. Law enforcement located Norvell's vehicle near that location several hours later, although the record does not establish whether this finding occurred as a result of Norvell's statement to Vanderhoef.

¶7 On May 12, 2016, Vanderhoef provided the Detention Center with an arrest warrant, which stated that Norvell should be held for an "Investigative hold: New felony charges to be filed in Lincoln County." The warrant erroneously stated that Norvell was on parole and that because he was an "interstate offender" he was not entitled to bond.

¶8 Jenson continued the collision investigation over approximately twelve more days, then submitted a report to the Lincoln County Attorney's Office. Jenson located the vehicle Norvell was driving; interviewed witnesses and the victim's family; retrieved four dollars in cash the victim was carrying in his wallet at the time he was struck; gathered physical evidence such as the bicycle and the victim's clothing; and interviewed the victim, who stated that Norvell drove up to him shortly before the collision and asked what time it was, then turned his vehicle around and drove by very slowly while staring at him.

¶9 During this investigatory period, Norvell remained in custody for the alleged probation violation and did not make an initial appearance, even though Lincoln County judges held court during this time. On May 19, a public defender discovered Norvell in the Detention Center and, given the apparent lack of a pending charge, filed a petition for a writ of habeas corpus on his behalf on May 24. On May 25, the State filed a complaint in Lincoln County Justice Court charging Norvell with felony aggravated assault, and Norvell made an initial appearance on the charge the next day, May 26. Seventeen days passed between the time of Norvell's initial arrest for violating probation and his initial appearance for aggravated assault. He was not provided counsel during this time.

¶10 Norvell was diagnosed with schizophrenia at a young age, but apparently had not been taking his medication at the time he struck the cyclist, and his condition was in decline. Although the Detention Center staff was aware of Norvell's condition, Norvell was not provided some of his medications, in part because staff believed he was not actually taking them, and his condition continued to decline. Norvell was placed in solitary confinement for being disruptive. On June 8, Norvell's attorney filed a motion requesting Norvell be taken to the state hospital because he could not assist in his own defense. The District Court granted the motion, ordering Norvell's transfer on June 8, but the state hospital did not have capacity to receive Norvell until July 11. In the meantime, on July 1, Norvell was charged with assaulting a peace officer in the Detention Center. When Norvell was transferred to the state hospital on July 11, the doctor conducting the intake evaluation described Norvell as being in "an acutely psychotic state." After receiving treatment, Norvell was discharged from the state hospital and returned to the Detention Center in September 2016. On September 26, Norvell was arraigned, wherein the District Court found, without objection, he was fit to proceed.

¶11 On November 21, Norvell filed a motion to dismiss, arguing his initial appearance was unnecessarily delayed in violation of both § 46-7-101, MCA, and his constitutional right to due process. Norvell sought dismissal of his charges with prejudice and suppression of all evidence gathered during the period of the delay. The District Court conducted a hearing and, on March 21, 2017, entered an order denying the motion to dismiss. Although attributing the delay to the probation violation, the District Court nonetheless reasoned that "during that delay information related to the current case was obtained and shared with the investigating officer," and thus impacted the aggravated assault case. It reasoned that the proper remedy was suppression of evidence obtained against Norvell "as a result of the delay attributable to the alleged probation violations," which it determined to be only Norvell's May 10 statement to Vanderhoef about the vehicle.

¶12 On May 27, 2017, Norvell pled no contest to the charge of aggravated assault, reserving the right to appeal the denial of his motion to dismiss for delay in his initial appearance. Norvell appeals.

STANDARD OF REVIEW

¶13 "The grant or denial of a motion to dismiss in a criminal case is a question of law, which we review de novo." State v. Gatlin , 2009 MT 348, ¶ 15, 353 Mont. 163, 219 P.3d 874. "We review a district court's grant or denial of a motion to suppress to determine whether the court's findings are clearly erroneous and whether those findings were applied correctly as a matter of law." State v. Gill , 2012 MT 36, ¶ 10, 364 Mont. 182, 272 P.3d 60. "Whether an initial appearance is sufficient to satisfy the requirements of § 46-7-101(1), MCA, which requires a person who is arrested to be taken without unnecessary delay before the nearest and most accessible judge, is a question of statutory construction, which we review for correctness." Gatlin , ¶ 16. Finally, "[w]e exercise plenary review of constitutional questions." State v. Covington , 2012 MT 31, ¶ 13, 364 Mont. 118, 272 P.3d 43.

DISCUSSION

¶14 Did the District Court err by denying Norvell's motion to dismiss for unnecessary delay between his arrest and initial appearance?

¶15 Norvell argues that his constitutional rights were violated when he suffered an unnecessary 17-day delay between his arrest on May 9, 2016, and his initial appearance on May 26, 2016, which justifies dismissal of the aggravated assault charge with prejudice. In response, the State denies an unnecessary delay occurred because Norvell was charged for aggravated assault on May 25, 2016, and his initial appearance occurred the next day, and thus, any delay is not attributable to this proceeding.

¶16 A person who has been arrested "must be taken without unnecessary delay before the nearest and most accessible judge for an initial appearance." Section 46-7-101(1), MCA ; accord Gatlin , ¶ 19 ; State v. Strong , 2010 MT 163, ¶ 9, 357 Mont. 114, 236 P.3d 580. Section 46-1-202(3), MCA, defines "arrest" as the "taking [of] a person into custody in the manner authorized by law." The "unnecessary delay" standard applies to the period between a defendant's arrest and his initial appearance, regardless of when the State files the complaint. See Hope v. State , 2003 MT 191, ¶ 15, 316 Mont. 497, 74 P.3d 1039 ; see also Strong , ¶ 10 (calculating unnecessary delay under § 46-7-101(1), MCA, from the date of arrest to the date of the initial appearance).

¶17 We have recognized the importance of § 46-7-101, MCA, explaining "the requirement for a prompt initial appearance protects the defendant from being jailed and held incommunicado for indefinite and possibly protracted periods of time. Closely associated with the requirement of a prompt initial appearance is the requirement that a defendant be informed without unnecessary delay of the important rights set out in § 46-7-102, MCA. These two sections together ensure that a criminal prosecution begins promptly and with a recognition of the defendant's essential rights." Strong , ¶ 11 (citations omitted); see also Gatlin , ¶¶ 22-23 ; State v. Dieziger , 200 Mont. 267, 270, 650 P.2d 800, 802 (1982).

¶18 Here, the record shows Norvell was arrested on May 9, 2016, for violations of his probation and, as such, was subject to a 72-hour probationary hold. Section 46-23-1012(3), MCA. Within that 72-hour period, a probation officer must either conduct an intervention hearing, arrange for the probationer to appear before a magistrate to set bail, or authorize the detention center to release the probationer. Section 46-23-1012(3), MCA. None of these occurred, and a revocation petition or other proceeding based upon the probation violation was not initiated. Thus, the basis for Norvell's detention for violation of probation expired at the end of the 72-hour hold period, on May 12, and he was subject to release.

¶19 However, on May 12, Vanderhoef provided an arrest warrant to the Detention Center for the purpose, as stated in the warrant, of holding Norvell for "[n]ew felony charges to be filed in Lincoln County." With the expiration of the probationary hold and the absence of any probationary proceeding, this was, valid or not, effectively an arrest related to, not probation violations, but to the expected new criminal charge, despite delivery of the warrant by a probation officer. Thus, local law enforcement and prosecutors became responsible for Norvell's detention, and the "unreasonable delay" clock started to run in anticipation of action to either commence a proceeding upon probable cause for which Norvell would be brought before a magistrate, or to release him. Instead, another 14 days elapsed between this arrest and Norvell's appearance on May 26 on the aggravated assault charge. While the charge was filed only one day before, Norvell's detention since May 12 was for the purpose of that prospective charge and counted toward, and constituted, "unnecessary delay" in appearance under § 46-7-101, MCA.

¶20 The State argues that, if the Court concludes the delay was attributable to the aggravated assault proceeding, the District Court's analysis finding little prejudice, and suppressing only Norvell's May 10 statement, should be affirmed. Norvell argues he suffered prejudice from the delay that requires dismissal of the charge with prejudice, noting the State obtained a confession from him, gathered other evidence, deprived him of access to counsel, and placed him in solitary confinement that contributed to his decline into an acutely psychotic state.

¶21 Formerly, our precedent favored, as a remedy for violation of § 46-7-101(1), MCA, the suppression of all evidence obtained during any "unnecessary delay." See State v. Benbo , 174 Mont. 252, 261-62, 570 P.2d 894, 899-900 (1977) ; State v. Rodriguez , 192 Mont. 411, 418, 628 P.2d 280, 284 (1981) ; Dieziger , 200 Mont. at 270, 650 P.2d at 802 ; State v. Beach , 217 Mont. 132, 149-50, 705 P.2d 94, 105-06 (1985) ; Hope , ¶ 14. However, we have since determined that dismissal of the case is the more appropriate remedy for a violation of § 46-7-101(1), MCA. Gatlin , ¶¶ 22-23 ; Strong , ¶ 14 (because "unnecessarily delaying a defendant's initial appearance before a judge 'shocks' the concepts of fundamental fairness and due process ... suppression remedy is insufficient").

¶22 Gatlin concerned the related issue of a failure to inform the defendant of his right to counsel at his initial appearance, in violation of §§ 46-7-102(1)(b) and 46-8-101, MCA. Gatlin , ¶ 18. While we found that "[n]eglecting to inform an incarcerated defendant of his right to counsel ... taints the fundamental fairness of all subsequent proceedings[,]" Gatlin , ¶ 23, and thus dismissed the information filed against the defendant, we declined to dismiss with prejudice. Gatlin , ¶ 31. We reasoned that, if the record showed the defendant "was not prejudiced by the inadequacy of his initial appearance or by an unreasonable delay, we should decline to dismiss the charges with prejudice." Gatlin , ¶ 26. We noted the County Attorney took no steps to advance the case against Gatlin while he was without counsel, no critical confrontations between Gatlin and the prosecution had taken place, no new evidence was gathered against him, that the presence of counsel would have provided no additional protection, and the State did not profit from the violation. Gatlin , ¶ 27.

¶23 Here, as the District Court concluded, the only piece of challenged evidence that could relate to the unnecessary delay was the statement Norvell made while in detention to Vanderhoef about the whereabouts of Norvell's vehicle. The record does not conclusively establish that this statement led to the discovery of the vehicle or whether the vehicle would inevitably have been otherwise located. While the investigation continued while Norvell was detained, there is no demonstration that counsel appointed at a timely initial appearance could have "provided additional protection from the prosecution" of the charge, or that "the State profited" by the error. Gatlin , ¶ 27. Norvell argues that appointed counsel could have sought medical treatment and transfer to the state hospital, but, as the District Court found, Norvell had discontinued his medication prior to his detention and was already decompensating. This was resolved after treatment in the state hospital, leaving him with "minimal residual symptoms" and fit to proceed to trial. We conclude that Norvell did not experience prejudice from the delay that would require dismissal of the charge with prejudice. See Gatlin , ¶ 26.

¶24 The judgment and sentence entered herein is reversed and this case is remanded to the District Court with instructions to dismiss the charge of aggravated assault without prejudice.

We concur:

MIKE McGRATH, C.J.

BETH BAKER, J.

LAURIE McKINNON, J.

JAMES JEREMIAH SHEA, J.

      Norvell argues that the pre-appearance delay here implicates fundamental constitutional due process protections on which § 46-7-101, MCA, is based. Indeed, "[a]lmost every element of a 'first appearance' under state statutes or the Federal Rules of Criminal Procedure serves to enforce or give meaning to important individual rights that are either expressly granted in the Constitution or are set forth in Supreme Court precedent." Coleman v. Frantz , 754 F.2d 719, 724 (7th Cir. 1985) (holding a defendant's "eighteen-day detention without an appearance before a judge or magistrate was a deprivation of liberty without due process of law."); see also Holloway v. Del. Cnty. Sheriff , 700 F.3d 1063, 1069-70 (7th Cir. 2012). Pre-appearance delays can also implicate the Fourth Amendment: "the standards and procedures for arrest and detention have been derived from the Fourth Amendment and its common-law antecedents.... [T]he Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest." Gerstein v. Pugh , 420 U.S. 103, 111, 114, 95 S. Ct. 854, 861, 863, 43 L.Ed.2d 54 (1975) ; see also County of Riverside v. McLaughlin , 500 U.S. 44, 57-58, 111 S. Ct. 1661, 1670-71, 114 L.Ed.2d 49 (1991) ; Powell v. Nevada , 511 U.S. 79, 80, 114 S. Ct. 1280, 1281, 128 L.Ed.2d 1 (1994) ; Manuel v. City of Joliet , --- U.S. ----, 137 S. Ct. 911, 917-18, 197 L.Ed.2d 312 (2017). The same would be true under the Montana Constitution's protections of due process of law and against unreasonable searches and seizures. Mont. Const. art. II, §§ 11, 17. However, we need not reach these constitutional issues given that relief can be granted under § 46-7-101, MCA.


text:
    STATE of Montana, Plaintiff and Appellee, v. Perry L. BURNETT, Jr., Defendant and Appellant.
    DA 18-0394
    Supreme Court of Montana.
    Submitted on Briefs: April 17, 2019 Decided: April 30, 2019
    Affirm.


text:
    STATE of Montana, Plaintiff and Appellee, v. Joseph L. JOHNSON, Defendant and Appellant.
    DA 18-0019
    Supreme Court of Montana.
    Submitted on Briefs: March 20, 2019 Decided: May 7, 2019
    Affirm.


text:
    STATE of Montana, Plaintiff and Appellee, v. Christopher William CHAVIS, Defendant and Appellant.
    DA 17-0240
    Supreme Court of Montana.
    Submitted on Briefs: March 27, 2019 Decided: May 7, 2019
    For Appellant: Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Paul Chaon, Deputy County Attorney, Billings, Montana
   Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Christopher Chavis (Chavis) appeals the Order & Memorandum Denying Defendant's Motion to Dismiss or For New Trial in the Alternative issued by the Thirteenth Judicial District Court, Yellowstone County, on June 2, 2017.

¶2 We restate the issue on appeal as follows:

Did the District Court err when it denied Chavis's motion for a new trial?

¶3 We reverse and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 Chavis was charged with felony Partner or Family Member Assault on December 1, 2015. Prior to trial, Chavis requested discovery from the State, including photographs in the possession of "any law enforcement official or other interested parties cooperating with investigating authorities dealing with all incidents out of which the charges arose" and any material which "through due diligence may be learned from the investigating officers or the witnesses in this case which is exculpatory in nature or favorable to Defendant." The State never indicated the existence of any evidence sought in discovery to be held by or in the control of another agency such that Chavis should seek subpoena directed to the other agency, but instead represented the opposite. On June 9, 2016, the State, in response to Chavis's motion to compel, represented Chavis had "received the full discovery in this matter from the State."

¶5 At trial, Chavis testified in his defense, asserting a justifiable use of force defense. Chavis testified that while he and M.M. were driving to work, the two argued, M.M. struck him in the face, and grabbed the steering wheel. While trying not to crash, Chavis's hand hit M.M.'s face when he blindly pushed her away. Chavis testified he developed a black eye under his right eye from M.M.'s assault. During closing argument, the State attempted to rebut Chavis's self-defense claim arguing, "The officers looked for an injury, there were none. The black eye didn't appear later, you have no evidence other than the Defendant's statement." On July 18, 2016, Chavis was found guilty of the offense.

¶6 Near the end of July 2016, Chavis became aware of photographs in the possession of the State. These photographs were taken through the Telmate system at the Yellowstone County Detention Facility (YCDF) within a few days after Chavis's arrest while he was being held pending bail. The photographs showed Chavis with discoloration under his right eye consistent with Chavis's assertion M.M. attacked him resulting in a black eye and contradicting the State's assertion that there was no black eye. Chavis filed a timely Motion to Dismiss or for New Trial in the Alternative. Therein, Chavis sought dismissal of the charge against him for the State's Brady violation or, alternatively, a new trial based on the discovery of new evidence-the photos showing Chavis with a black eye. The State resisted the motion. In analyzing Chavis's Brady violation claim, the District Court concluded, "the State was in possession of the photographs ... which were favorable to the Defendant's claim of self-defense showing a mark under his right eye only a few days following his arrest[ ]" and that "there is a reasonable probability that these photographs may have changed the result of the proceeding since [Chavis] alleged justifiable use of force." The District Court also concluded that as the State was unaware of the photos prior to trial, it did not suppress them and that Chavis "could have obtained the photographs with reasonable diligence, a subpoena or a simple request to his attorney or their investigator for the Telmate information." In analyzing Chavis's alternative motion for a new trial, the District Court concluded: the photographs were discovered post-trial, were material and not merely cumulative, and there was a reasonable probability the evidence may have led to a different conclusion. The court, however, denied the motion concluding Chavis "could have found the photographs with reasonable diligence." Additional relevant facts are discussed below.

STANDARD OF REVIEW

¶7 Our review of constitutional questions, including asserted Brady violations, is plenary. State v. Ilk , 2018 MT 186, ¶ 15, 392 Mont. 201, 422 P.3d 1219. We review a district court's denial of a motion for a new trial for abuse of discretion. Ilk , ¶ 15.

DISCUSSION

¶8 Did the District Court err when it denied Chavis's motion for a new trial?

¶9 Chavis asserts a "new trial is required in the interest of justice" based on either the Clark analysis for newly discovered evidence or Brady violation analysis. See State v. Clark , 2005 MT 330, 330 Mont. 8, 125 P.3d 1099 ; Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963).

¶10 A court may grant a defendant a new trial if required in the interest of justice. Section 46-16-702(1), MCA. Pursuant to Clark , to prevail on a motion for a new trial based on newly discovered evidence, the defendant must satisfy a five-part test:

(1) The evidence must have been discovered since the defendant's trial;
(2) the failure to discover the evidence sooner must not be the result of a lack of diligence on the defendant's part;
(3) the evidence must be material to the issues at trial;
(4) the evidence must be neither cumulative nor merely impeaching; and
(5) the evidence must indicate that a new trial has a reasonable probability of resulting in a different outcome.

Clark , ¶ 34. The District Court determined Chavis satisfied parts 1, 3, 4, and 5, but determined part 2 was not met concluding, "the failure to discover the evidence sooner was a result of a lack of diligence on [Chavis's] part." The State asserts the District Court properly denied Chavis's motion for a new trial. We conclude the District Court abused its discretion when it determined the failure to discover the Telmate photographs sooner was a result of a lack of diligence on Chavis's part.

¶11 In evaluating whether a lack of diligence existed on Chavis's part, we must both analyze the use and control of the Telmate system and determine whether the State reasonably should have known of the Telmate photographs. Here, neither party disputes the photographs at issue were discovered post-trial. YCDF is operated by the Yellowstone County Sheriff's Office. The Billings Police Department arrested Chavis, the Yellowstone County Attorney's Office charged and prosecuted him, and the Yellowstone County Sheriff's Office detained Chavis on the charges until he posted bond. These entities routinely work together to arrest, charge, investigate, and detain defendants. These are the entities acting upon the government's behalf in this case. Telmate contracts with YCDF to provide inmates with telephone and additional video/internet services. When an inmate at YCDF makes a telephone call, the call is placed through the Telmate system. The Telmate system is a web-based system which automatically takes a picture of every inmate when he or she places a call, records the call, and stores the images and recordings within its database. The Telmate system has been used by YCDF since October 2013. Although Telmate maintains the system, law enforcement officers, investigators, and prosecutors have access to log into the system to listen to and retrieve call recordings as well as to access the pictures automatically taken by the system. It is not disputed that neither the State nor Chavis knew the photographs existed prior to trial.

¶12 The telephone system at YCDF is under its exclusive control. Since October 2013, YCDF has contracted with Telmate to provide a web-based, inmate calling system. Presumably, YCDF understood all the features and components of the system for which it contracted. Officers for the Yellowstone County Sheriff's Office were well aware that Telmate automatically took photos of inmates when an inmate accessed the Telmate system to place a call. Prosecutors, law enforcement, and the domestic violence investigator for the Billings Police Department-who was charged with reviewing jail calls and photos when assigned to do so by the county attorney's office-had full access to the Telmate system along with access to technical support from Telmate. The Telmate system did not advise inmates it automatically took and stored their picture upon accessing the system. No information was provided to inmates that they were permitted in any way to access the system to retrieve information from it. In fact, Captain Bofto testified that no Telmate photographs would be disseminated to an inmate without a subpoena. The Telmate system in operation at YCDF was within the exclusive control of the Yellowstone County Sheriff's Department and accessible to prosecutors and law enforcement including investigators subject to the direction of State prosecutors. Given the totality of the circumstances, it was an abuse of discretion for the District Court to conclude "neither the officers nor the prosecutor were aware of [Chavis's] Telmate photos" which were in their exclusive control and then ascribe a higher level of due diligence upon Chavis to discover the photographs. Under the circumstances here, the State, not Chavis, should have known of and discovered the photographs long before this matter went to trial. When Chavis discovered photographs were potentially available, he timely advised his counsel who made immediate inquiry and timely filed a motion for new trial. We find this to constitute due diligence on Chavis's part. As such, it is appropriate to reverse and remand this matter to the District Court for a new trial. As we have determined Chavis is entitled to a new trial based on newly discovered evidence, we find no need to address Chavis's asserted Brady violations.

CONCLUSION

¶13 The District Court abused its discretion when it determined the failure to discover newly discovered evidence-photographs tending to corroborate the defendant's justifiable use of force defense-sooner was a result of a lack of diligence on the defendant's part. The defendant acted with due diligence. The State, not the defendant, should have known of and discovered the photographs long before this matter went to trial.

¶14 Reversed and remanded to the District Court for a new trial.

We concur:

JAMES JEREMIAH SHEA, J.

BETH BAKER, J.

DIRK M. SANDEFUR, J.

JIM RICE, J.

      Prosecutors have a duty to learn of any favorable evidence known to others acting on the government's behalf in the case, including law enforcement. Kyles v. Whitley , 514 U.S. 419, 437, 115 S. Ct. 1555, 1567, 131 L.Ed.2d 490 (1995). The District Court did not analyze or discuss this requirement.

      On several occasions prior to 2014, this Court declined to find a Brady violation where the defense could have obtained the exculpatory evidence through the exercise of due diligence. In 2014, the Ninth Circuit Court of Appeals determined that a requirement of due diligence is contrary to federal law and unsound public policy in Amado v. Gonzalez , 758 F.3d 1119, 1136 (9th Cir. 2014). This Court acknowledged that holding in State v. Weisbarth , 2016 MT 214, ¶ 30, 384 Mont. 424, 378 P.3d 1195. In State v. Reinert , 2018 MT 111, ¶ 17 n.1, 391 Mont. 263, 419 P.3d 662, we stated that "[g]oing forward we will decide issues regarding the withholding of exculpatory evidence without reference to a reasonable diligence requirement."

      Brady violation analysis is quite similar to the Clark analysis. To prove a due process violation under Brady , a defendant must show: (1) the State possessed the evidence; (2) the prosecution suppressed the evidence; and (3) had the evidence been disclosed, a reasonable probability exists the outcome of the proceeding would have been different. Reinert , ¶ 17 (citing State v. Jackson , 2009 MT 427, ¶ 53, 354 Mont. 63, 221 P.3d 1213 ).

      The photographs are accessed via a separate tab in the website. Despite the Telmate system being in place for nearly 3 years and jail staff/law enforcement routinely accessing calls and call information, law enforcement and prosecution involved with Chavis's case did not know of the existence of any pictures taken or stored by the Telmate system. Post-trial when using the Telmate system, Chavis discovered his picture and showed it to his counsel. Chavis's attorney immediately requested a sergeant at YCDF access the pictures, which he was able to do, and requested the pictures be preserved pending his obtainment of a subpoena. Upon learning from defense counsel of the photographs, the State requested Katie Nash, domestic violence investigator for the Billings Police Department, look for the photographs. She had to call Telmate for technical assistance to learn how to access them.


text:
    FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff and Appellee, v. Gail STAFFORD, Defendant, Counter-Claimant and Appellant, v. Federal National Mortgage Association, and John Does 1-50, Counter-Defendants and Appellees.
    DA 18-0439
    Supreme Court of Montana.
    Submitted on Briefs: March 27, 2019 Decided: May 14, 2019
    Affirm. Deny.