A Welfare Check Gone Arrest: Attenuation Doctrine and the Fourth Amendment

Author: Dahnika Short, Staff Editor

State v. Ellis, No. 120,046 (Kan. August 8, 2020)

Issue: The attenuation doctrine renders illegally obtained evidence admissible when the connection between the evidence and the unconstitutional police conduct is sufficiently remote or attenuated. During a welfare check, an officer seized methamphetamine from Defendant Ellis, even though there was no indication of criminal conduct. Under the attenuation doctrine, is evidence of the methamphetamine admissible?

Answer: No.  The facts surrounding the encounter do not satisfy the attenuation doctrine’s factors, thus the evidence is inadmissible and suppression is appropriate.

Facts: Officer Kent responded to a welfare check on Ellis, who had been in a store restroom for 45 minutes.  Kent made contact and Ellis stated she was “feeling well.”  Kent requested she step outside.  Ellis informed Kent she was having “stomach issues.”  Kent requested Ellis’s license, retaining it while the two stepped outside.  Kent ran the license and received notice of a possible outstanding warrant.  Kent observed Ellis’s hands shaking and inquired about drug use.  Ellis denied using drugs while in the restroom.  When Kent asked to search her purse, Ellis replied, “Please don’t,” but admitted it contained methamphetamine and a pipe.  When dispatch confirmed the warrant, Kent placed Ellis in handcuffs, searched the purse, and found methamphetamine and a pipe.

Discussion: The court used the Strieff three-factor test to determine if the attenuation doctrine, which allows for the admission of illegally obtained evidence, applied.  The three factors are: temporal proximity, intervening circumstance, and flagrancy of police misconduct.  Temporal proximity weighed in favor of suppression as only ten minutes (not a “substantial time”) passed between the initial encounter and the arrest.  Intervening circumstances did not support the State because Kent conducted an unreasonable criminal investigation of Ellis before he discovered the outstanding warrant.  The investigation began with Kent’s request for, and retention of, Ellis’s license.  The flagrancy factor weighed in favor of suppression because Kent’s decision to search for warrants during the welfare check clearly violated established Kansas case law.  Because this encounter did not begin with reasonable suspicion of criminal activity, the Court distinguished it from cases where warrant discovery weighed in favor of applying the attenuation doctrine. 

Key Authorities:

State v. Chapman, 381 P.3d 458 (Kan. 2016) (holding reasonable suspicion of crime required to move beyond welfare check). https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/111572.pdf?ext=.pdf

Utah v. Strieff, 136 S. Ct. 2056 (2016) (establishing attenuation doctrine factors). https://www.supremecourt.gov/opinions/15pdf/14-1373_83i7.pdf

State v. Gonzales, 141 P.3d 501 (Kan. Ct. App. 2006) (finding welfare stops not for investigative purposes). https://www.kscourts.org/Cases-Opinions/Opinions/Published/State-v-Gonzales