attenuation doctrine in Utah

2012The dissent places emphasis on the “closely related” aspect of the relationship between the three exceptions, noting that it was unlikely that the “Utah Supreme Court would have allowed the evidence discovered in [Topanotes] if only the State had urged the attenuation doctrine instead of the ‘closely related’ inevitable discovery doctrine.” See infra ¶ 56 (quoting Terzado‐ Madruga, 897 F.2d at 1113 ).

2012Id. 20100541‐CA 5 ¶9 Although Topanotes is nearly factually identical to the present case,4 the Utah Supreme Court was analyzing whether drug evidence discovered pursuant to arrest on a warrant discovered following an illegal detention could be admitted under the inevitable discovery doctrine, not the attenuation doctrine.

2012Compare Topanotes, 2003 UT 30, ¶ 16 (noting that “[a] crucial element of inevitable discovery is independence; there must be some ‘independent basis for discovery’” (citation omitted)), with State v. Newland, 2010 UT App 380, ¶¶ 9, 11 , 253 P.3d 71 (requiring a causal connection between the initial illegality and the challenged evidence for application of the attenuation doctrine and focusing on whether the evidence is obtained “‘by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint’” (quoting Wong Sun v. United States, 371 U.S. 47

2012In this case, we are called upon to apply the related doctrine of attenuation, whereby evidence that is derivative of an illegal search or seizure will not be suppressed if obtained “by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 488 (1963).

2017See State v. Strieff , 2015 UT 2 , ¶¶ 41-56, 357 P.3d 532 (pointing out that the attenuation exception and inevitable discovery exception dictated different outcomes in that case and concluding that the attenuation doctrine did not apply, while observing that "[t]he terms and conditions of the exclusionary rule have been meted out by the Supreme Court in a piecemeal ... fashion," and that "[t]his case implicates a gap of substantial significance"), rev'd , --- U.S. ----, 136 S.Ct. 2056 , 195 L.Ed.2d 400 (2016) (applying the attenuation doctrine); Lynn Adelman & Jon Deitrich, Saying What the La

2017See State v. Strieff , 2015 UT 2 , ¶¶ 41-56, 357 P.3d 532 (pointing out that the attenuation exception and inevitable discovery exception dictated different outcomes in that case and concluding that the attenuation doctrine did not apply, while observing that "[t]he terms and conditions of the exclusionary rule have been meted out by the Supreme Court in a piecemeal ... fashion," and that "[t]his case implicates a gap of substantial significance"), rev'd , --- U.S. ----, 136 S.Ct. 2056 , 195 L.Ed.2d 400 (2016) (applying the attenuation doctrine); Lynn Adelman & Jon Deitrich, Saying What the La

2015The court of appeals affirmed under the attenuation exception to the exclusionary rule recognized in Brown v. Illinois, 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975).

2015The court of appeals affirmed under the attenuation exception to the exclusionary rule recognized in Brown v. Illinois, 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975).

1995Two days later, this court issued its opinion in State v. Thurman, 846 P.2d 1256 (Utah 1993), setting forth the framework for a correct attenuation analysis.

1995Thurman reaffirmed that the primary goal of an attenuation analysis is to "deter the police from engaging in illegal conduct even though that conduct may be followed by a voluntary consent." Id. at 1263 .

2015Thus, the Green court extended 'the attenuation doctrine to a case involving the discovery of an outstanding warrant in the course of an unlawful arrest, 6 It did so *543 on the basis of its conclusion that the "purpose" of the stop in question was not to seek evidence against the defendant in question' (Green) but "to obtain evidence against" a third party (Williams), and that there was "no evidence of bad faith on the part of the police," or any indication that "the police exploitled] the stop in order to search [Green's] automobile." Id. at 523 . 7 ¶39 A second set of cases deems the discov

2015Thus, the Green court extended 'the attenuation doctrine to a case involving the discovery of an outstanding warrant in the course of an unlawful arrest, 6 It did so *543 on the basis of its conclusion that the "purpose" of the stop in question was not to seek evidence against the defendant in question' (Green) but "to obtain evidence against" a third party (Williams), and that there was "no evidence of bad faith on the part of the police," or any indication that "the police exploitled] the stop in order to search [Green's] automobile." Id. at 523 . 7 ¶39 A second set of cases deems the discov

2012This attenuation analysis requires the court to analyze and balance three factors: "[the temporal proximity of the [unlawfal detention] and the [search], the presence of intervening cireumstances, and, particularly, the purpose and flagrancy of the official misconduct." Brown, 422 U.S. at 603-04 , 95 S.Ct. 2254 (citation and footnotes omitted); accord State v. Arroyo, 796 P.2d at 690 n. 4.

2012This attenuation analysis requires the court to analyze and balance three factors: “[t]he temporal proximity of the [unlawful detention] and the [search], the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct.” Brown, 422 U.S. at 603–04 (citation and footnotes omitted); accord State v. Arroyo, 796 P.2d at 690 n.4.

2017See State v. Strieff , 2015 UT 2 , ¶¶ 41-56, 357 P.3d 532 (pointing out that the attenuation exception and inevitable discovery exception dictated different outcomes in that case and concluding that the attenuation doctrine did not apply, while observing that "[t]he terms and conditions of the exclusionary rule have been meted out by the Supreme Court in a piecemeal ... fashion," and that "[t]his case implicates a gap of substantial significance"), rev'd , --- U.S. ----, 136 S.Ct. 2056 , 195 L.Ed.2d 400 (2016) (applying the attenuation doctrine); Lynn Adelman & Jon Deitrich, Saying What the La

2017See State v. Strieff , 2015 UT 2 , ¶¶ 41-56, 357 P.3d 532 (pointing out that the attenuation exception and inevitable discovery exception dictated different outcomes in that case and concluding that the attenuation doctrine did not apply, while observing that "[t]he terms and conditions of the exclusionary rule have been meted out by the Supreme Court in a piecemeal ... fashion," and that "[t]his case implicates a gap of substantial significance"), rev'd , --- U.S. ----, 136 S.Ct. 2056 , 195 L.Ed.2d 400 (2016) (applying the attenuation doctrine); Lynn Adelman & Jon Deitrich, Saying What the La

2017See State v. Strieff , 2015 UT 2 , ¶¶ 41-56, 357 P.3d 532 (pointing out that the attenuation exception and inevitable discovery exception dictated different outcomes in that case and concluding that the attenuation doctrine did not apply, while observing that "[t]he terms and conditions of the exclusionary rule have been meted out by the Supreme Court in a piecemeal ... fashion," and that "[t]his case implicates a gap of substantial significance"), rev'd , --- U.S. ----, 136 S.Ct. 2056 , 195 L.Ed.2d 400 (2016) (applying the attenuation doctrine); Lynn Adelman & Jon Deitrich, Saying What the La

2017See State v. Strieff , 2015 UT 2 , ¶¶ 41-56, 357 P.3d 532 (pointing out that the attenuation exception and inevitable discovery exception dictated different outcomes in that case and concluding that the attenuation doctrine did not apply, while observing that "[t]he terms and conditions of the exclusionary rule have been meted out by the Supreme Court in a piecemeal ... fashion," and that "[t]his case implicates a gap of substantial significance"), rev'd , --- U.S. ----, 136 S.Ct. 2056 , 195 L.Ed.2d 400 (2016) (applying the attenuation doctrine); Lynn Adelman & Jon Deitrich, Saying What the La

2015See also People v. Padgett, 932 P.2d 810, 816-17 (Colo.1997) (holding that the subsequent discovery of a possible warrant did not overcome the other factors favoring suppression); People v. Mitchell, 355 Ill.App.3d 1030 , 291 Ill.Dec. 786 , 824 N.E.2d 642, 650 (2005) (justifying the refusal to extend the attenuation doctrine on the ground that suppression "appears to be the only way to deter police from randomly stopping citizens for the purpose of running warrant checks"); State v. Soto, 143 N.M. 631 , 179 P.3d 1239, 1244-45 (N.M.Ct.App.2008) (relying on Mitchell, holding that an outstanding

2015See also People v. Padgett, 932 P.2d 810, 816-17 (Colo.1997) (holding that the subsequent discovery of a possible warrant did not overcome the other factors favoring suppression); People v. Mitchell, 355 Ill.App.3d 1030 , 291 Ill.Dec. 786 , 824 N.E.2d 642, 650 (2005) (justifying the refusal to extend the attenuation doctrine on the ground that suppression "appears to be the only way to deter police from randomly stopping citizens for the purpose of running warrant checks"); State v. Soto, 143 N.M. 631 , 179 P.3d 1239, 1244-45 (N.M.Ct.App.2008) (relying on Mitchell, holding that an outstanding

2015See State v. Moralez, 297 Kan. 397 , 300 P.3d 1090, 1102 (2013). 8 These cases are motivated by the concern that "Iwlere 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." Id. at 1102. 9 And they narrowly cireumseribe the applicability of the attenuation doctrine by concluding that (a) the short time between an unlawful detention and a search incident to an arrest on an outstanding warrant "weighs heavily" against attenuation, 10 and (b) an improp

2015See State v. Moralez, 297 Kan. 397 , 300 P.3d 1090, 1102 (2013). 8 These cases are motivated by the concern that "Iwlere 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." Id. at 1102. 9 And they narrowly cireumseribe the applicability of the attenuation doctrine by concluding that (a) the short time between an unlawful detention and a search incident to an arrest on an outstanding warrant "weighs heavily" against attenuation, 10 and (b) an improp

2015See United States v. Ceccolini, 435 U.S. 268, 276 , 98 S.Ct. 1054 , 55 L.Ed.2d 268 (1978) (noting that the Court has "declined to adopt a 'per se' or *541 'but for' rule that would make inadmissible any evidence, whether tangible or live-witness testimony, which somehow came to light through a chain of causation that began with an illegal arrest").

2015See United States v. Ceccolini, 435 U.S. 268, 276 , 98 S.Ct. 1054 , 55 L.Ed.2d 268 (1978) (noting that the Court has "declined to adopt a 'per se' or *541 'but for' rule that would make inadmissible any evidence, whether tangible or live-witness testimony, which somehow came to light through a chain of causation that began with an illegal arrest").

2015See also People v. Padgett, 932 P.2d 810, 816-17 (Colo.1997) (holding that the subsequent discovery of a possible warrant did not overcome the other factors favoring suppression); People v. Mitchell, 355 Ill.App.3d 1030 , 291 Ill.Dec. 786 , 824 N.E.2d 642, 650 (2005) (justifying the refusal to extend the attenuation doctrine on the ground that suppression "appears to be the only way to deter police from randomly stopping citizens for the purpose of running warrant checks"); State v. Soto, 143 N.M. 631 , 179 P.3d 1239, 1244-45 (N.M.Ct.App.2008) (relying on Mitchell, holding that an outstanding

2015See also Padgett, 932 P.2d at 816-17 (stating that the evidence was obtained directly as a result of the unlawful stop "without sufficient intervening time and circumstances to carry the prosecutions' burden of proof. to demonstrate dissipation of the taint"); Bailey, 338 P.3d at 713 (stating that the short time between the unlawful detention and the discovery of the challenged evidence makes it "less likely" to "break ... the causal chain"). x 11 .

2015Unlike the Second and Tenth Circuits, which use a "high level of confidence" standard, some circuits require only a "reasonable probability" that the challenged evidence would have been discovered lawfully, Compare, eg., United States v. Marrocco, 578 F.3d 627 , 639-40 & n. 24 (7th (using an "intermediate standard" in concluding that the inevitable discovery rule applies where "investigating officers undoubtedly would have followed routine" to obtain evidence), with United States v. Heath, 455 F.3d 52, 60 (2d Cir.2006) (concluding that the. inevitable discovery rule will be applicable only whe

2015See State v. Worwood, 2007 UT 47, ¶¶11-12 , 164 P.3d 397 .

2015See State v. Worwood, 2007 UT 47, ¶¶11-12 , 164 P.3d 397 .

2015See also People v. Padgett, 932 P.2d 810, 816-17 (Colo.1997) (holding that the subsequent discovery of a possible warrant did not overcome the other factors favoring suppression); People v. Mitchell, 355 Ill.App.3d 1030 , 291 Ill.Dec. 786 , 824 N.E.2d 642, 650 (2005) (justifying the refusal to extend the attenuation doctrine on the ground that suppression "appears to be the only way to deter police from randomly stopping citizens for the purpose of running warrant checks"); State v. Soto, 143 N.M. 631 , 179 P.3d 1239, 1244-45 (N.M.Ct.App.2008) (relying on Mitchell, holding that an outstanding

2015This approach was articulated in a dissenting opinion in State v. Frierson 926 So.2d 1139 (Fla.2006) (Pariente, C.J., dissenting).

2015Id. at 1149-50 (relying on Brown's articulation of the attenuation doctrine in terms of "whether a confession [that] is the product of a free will" can be deemed an "intervening event" cutting off the causal connection to the unlawful arrest).

2015See also Padgett, 932 P.2d at 816-17 (stating that the evidence was obtained directly as a result of the unlawful stop "without sufficient intervening time and circumstances to carry the prosecutions' burden of proof. to demonstrate dissipation of the taint"); Bailey, 338 P.3d at 713 (stating that the short time between the unlawful detention and the discovery of the challenged evidence makes it "less likely" to "break ... the causal chain"). x 11 .

2012See generally State v. Van Dyke, 2009 UT App 369 , ¶ 17 n.4, 223 P.3d 465 (declining to engage in an independent analysis under the state constitution when the defendant did not supply any legal analysis or authority). 20100541‐CA 4 169 P.3d 441 (stating the standard for reviewing the district court’s interpretation of precedent).

2012See generally State v. Van Dyke, 2009 UT App 369 , ¶ 17 n.4, 223 P.3d 465 (declining to engage in an independent analysis under the state constitution when the defendant did not supply any legal analysis or authority). 20100541‐CA 4 169 P.3d 441 (stating the standard for reviewing the district court’s interpretation of precedent).

2012Compare Topanotes, 2003 UT 30, ¶ 16 (noting that “[a] crucial element of inevitable discovery is independence; there must be some ‘independent basis for discovery’” (citation omitted)), with State v. Newland, 2010 UT App 380, ¶¶ 9, 11 , 253 P.3d 71 (requiring a causal connection between the initial illegality and the challenged evidence for application of the attenuation doctrine and focusing on whether the evidence is obtained “‘by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint’” (quoting Wong Sun v. United States, 371 U.S. 47

2012Under these circumstances, I have little trouble in concluding that the balancing of interests shifts squarely in favor of suppression of the evidence,10 while leaving the validity of the arrest based upon the warrant untouched. ¶56 In any event, I remain convinced that, for purposes of Utah law, my evaluation of the attenuation factors is supported by State v. Topanotes, 2003 UT 30 , 76 P.3d 1159 .

2012State v. Eserjose, 171 Wash.2d 907 , 259 P.3d 172, 183 (2011) (en bane) (emphasis and internal quotation marks omitted).

2012State v. Eserjose, 259 P.3d 172, 183 (Wash. 2011) (en banc) (emphasis and internal quotation marks omitted).

2012See generally State v. Van Dyke, 2009 UT App 369 , ¶ 17 n.4, 223 P.3d 465 (declining to engage in an independent analysis under the state constitution when the defendant did not supply any legal analysis or authority). 20100541‐CA 4 169 P.3d 441 (stating the standard for reviewing the district court’s interpretation of precedent).

2012People v. Brendlin, 45 Cal.4th 262 , 85 Cal.Rptr.3d 496 , 195 P.3d 1074, 1076 (2008) (emphasis omitted). 8 120 To determine what role a subsequently-discovered warrant should play in an attenuation analysis under Utah law, we must first decide what constitutes an intervening cireumstance.

2012People v. Brendlin, 45 Cal.4th 262 , 85 Cal.Rptr.3d 496 , 195 P.3d 1074, 1076 (2008) (emphasis omitted). 8 120 To determine what role a subsequently-discovered warrant should play in an attenuation analysis under Utah law, we must first decide what constitutes an intervening cireumstance.

2012See Martin, 179 P.3d at 463 (''The third factor, the purpose and flagrancy of the official misconduct, dovetails with the second factor....").

2012See Martin, 179 P.3d at 463 (“The third factor, the purpose and flagrancy of the official misconduct, dovetails with the second factor . . . .”).