Should evidence seized incident to a lawful arrest on an outstanding warrant be suppressed because the warrant was discovered during an investigatory stop later found to be unlawful?
Lower court opinion: State v. Strieff, ___ P.3d ___, 2015 WL 223953 (Utah Jan. 16, 2015)
This case concerns the applicability of the “attenuation” exception to the exclusionary rule to a fact pattern addressed in a number of lower-court opinions but not by the Supreme Court. The basic factual scenario involves an unlawful detention leading to the discovery of an outstanding arrest warrant followed by a search incident to arrest. The attenuation doctrine asks whether the fruit of the search is tainted by the initial unlawful detention, or whether the taint is dissipated by an intervening circumstance.
According to the Utah Supreme Court, the lower courts are in “disarray” in their application of the attenuation doctrine to the outstanding warrant scenario. In some courts the discovery of an outstanding warrant is deemed a “compelling” or dispositive “intervening circumstance,” purging the taint of an initially unlawful detention upon a showing that the detention was not a “purposeful” or “flagrant” violation of the Fourth Amendment. E.g., United States v. Green, 111 F.3d 515, 522-23 (7th Cir. 1997). In other courts, by contrast, the outstanding warrant is a matter of “minimal importance,” and the attenuation doctrine’s applicability is strictly limited. E.g., United States v. Gross, 662 F.3d 393 (6th Cir. 2011); State v. Moralez, 300 P.3d 1090, 1102 (Kan. 2013); State v. Hummons, 253 P.3d 275, 278 (Ariz. 2011).
Adding to the disarray, the Utah court adopted a third approach, holding that the attenuation doctrine simply doesn’t apply where the police unlawfully stop the defendant and then find an outstanding warrant. The court concluded the attenuation doctrine is “limited to the general fact pattern that gave rise to its adoption in the United States Supreme Court—[i.e., scenarios involving] a voluntary act of a defendant’s free will (as in a confession or consent to search). For cases arising in the context of two parallel acts of police work—one unlawful and the other lawful—we interpret the Supreme Court’s precedents to dictate the applicability of a different exception (inevitable discovery).” (Slip op. ¶3).
Wisconsin has no published case addressing whether or how the attenuation doctrine applies in this situation. Green, of course, established the rule for the Seventh Circuit, so the Supreme Court’s resolution of this case may change our circuit’s precedent.
