State v. Hummons

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0309-PR
Appellee, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-CR 09-0281
MICHAEL QUINCY HUMMONS, )
) Pima County
Appellant. ) Superior Court
) No. CR20083448
)
)
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Pima County
The Honorable Teresa A. Godoy, Judge Pro Tem

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals Division Two
225 Ariz. 254, 236 P.3d 1201 (App. 2010)

VACATED
________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Laura P. Chiasson, Assistant Attorney General Tucson
Attorneys for State of Arizona

ROBERT J. HIRSH, PIMA COUNTY PUBLIC DEFENDER Tucson
By Lisa M. Hise, Assistant Public Defender
Attorneys for Michael Quincy Hummons
________________________________________________________________

B R U T I N E L, Justice

¶1 Michael Hummons was convicted of possessing a narcotic
drug and drug paraphernalia. The court of appeals affirmed,

holding that the trial court did not err in denying a motion to

suppress evidence found during a search incident to arrest.

Assuming Hummons had been illegally detained, the court of

appeals found that the arresting officer’s search was incident

to an arrest on an outstanding warrant and, therefore,

sufficiently attenuated from the illegal detention so as to

avoid suppression. State v. Hummons, 225 Ariz. 254, 257-58

¶¶ 8-11, 236 P.3d 1201, 1204-05 (App. 2010). We granted review

to address the attenuation doctrine as applied to warrant checks

resulting in arrest. We have jurisdiction pursuant to Article

6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-

120.24.

I. FACTS AND PROCEDURAL BACKGROUND

¶2 “We view the facts in the light most favorable to

support the trial court’s ruling on the motion to suppress.”

State v. Cook, 115 Ariz. 188, 192, 564 P.2d 877, 881 (1977). In

analyzing a ruling on a motion to suppress, we consider “only

the evidence presented at the suppression hearing.” State v.

Garcia, 224 Ariz. 1, 7 ¶ 6, 226 P.3d 370, 376 (2010).

¶3 In August 2008, Tucson Police Officer Martha Lewis was

on patrol, when she noticed Hummons walking down the sidewalk

carrying a new-looking weed trimmer with a neatly wrapped

extension cord. Hummons caught her attention because his
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disheveled appearance contrasted with the pristine equipment he

was carrying. Additionally, the officer was aware of recent

thefts from nearby yards.

¶4 Officer Lewis approached Hummons to determine who he

was and what he was doing. Hummons agreed to speak with her and

was polite, but appeared nervous and avoided eye contact.

Hummons said he was coming from his house; but when asked where

he lived, he pointed in the direction in which he had been

walking. After Officer Lewis expressed confusion, Hummons said

he owned two homes and was out doing work with the weed trimmer.

She noted that the weed trimmer did not look as if it had been

used. She then asked to see his identification card, which

Hummons voluntarily provided. While holding the card, the

officer conducted a warrant check.1

¶5 Although the warrant check revealed a misdemeanor

arrest warrant, Officer Lewis decided to tell Hummons about the

warrant, but not arrest him. As she began to explain, however,

he became belligerent and she opted to arrest him on the

warrant. In a search incident to that arrest, Officer Lewis

discovered drugs and drug paraphernalia in his backpack.

¶6 Hummons moved to suppress this evidence, arguing that

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It is unclear how long the warrant check took. Officer Lewis
testified that the warrant search took place five to ten minutes
into her discussion with Hummons and also that the entire
interaction lasted no more than ten minutes.
3
it was obtained as the result of an illegal detention. The

trial court denied the motion, finding the officer’s encounter

with Hummons consensual. Without addressing the consent issue,

the court of appeals affirmed, concluding that even if Hummons

had been illegally detained during the warrant check, the

discovery of the arrest warrant constituted an intervening

circumstance that dissipated the taint of any prior illegality.

Hummons, 225 Ariz. at 257-58 ¶¶ 8-11, 236 P.3d at 1204-05.

II. DISCUSSION

A. Attenuation Doctrine

¶7 Law enforcement officers have wide latitude to

approach people and engage them in consensual conversation. See

Florida v. Royer, 460 U.S. 491, 497 (1983) (holding officers do

not violate Fourth Amendment by approaching citizen in public

place and asking permission to question). They are also free to

request identification. See I.N.S. v. Delgado, 466 U.S. 210,

216, 218 (1984) (holding law enforcement request for

identification not tantamount to seizure; finding no

constitutional violation when law enforcement conduct “consisted

simply of questioning employees and arresting those they had

probable cause to believe were unlawfully present”); see also

Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt County.,

542 U.S. 177, 188-89 (2004) (upholding state law requiring

disclosure of identity to officers); Florida v. Bostick, 501
4
U.S. 429, 437 (1991) (explaining no seizure occurs when police

ask to examine identification). If an officer engaging in a

consensual encounter with a citizen discovers an arrest warrant,

the arrest is valid and any evidence discovered during a search

incident to arrest is admissible. See United States v.

Robinson, 414 U.S. 218, 235 (1974) (emphasizing that search

incident to arrest requires no additional justification).

Consent, however, is the hallmark of such an encounter.

¶8 Although the trial court found Officer Lewis’s

encounter with Hummons consensual, the court of appeals assumed,

without deciding, that Officer Lewis illegally detained Hummons

before discovering the warrant and then arresting and searching

him. The court therefore considered whether the search was

sufficiently attenuated from any illegal detention so as to

allow the seized evidence to be admitted.

¶9 In Brown v. Illinois, the Supreme Court applied three

factors to determine whether the taint of illegal conduct is

sufficiently attenuated from a subsequent search to avoid the

exclusionary rule. 422 U.S. 590, 603-04 (1975). Under Brown, a

court must consider first, the time elapsed between the

illegality and the acquisition of evidence; second, the presence

of intervening circumstances; and third, the purpose and

flagrancy of the official misconduct. Id. Although Brown

involved a confession following an illegal search, Arizona
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courts have applied the attenuation doctrine to other

situations. See, e.g., State v. Guillen, 223 Ariz. 314, 317

¶ 14, 223 P.3d 658, 661 (2010) (applying attenuation doctrine to

consent search following allegedly illegal search); State v.

Blackmore, 186 Ariz. 630, 634-35, 925 P.2d 1347, 1351-52 (1996)

(upholding search following allegedly illegal arrest); State v.

Miller, 186 Ariz. 314, 320-21, 921 P.2d 1151, 1157-58 (1996)

(upholding admission of statements made after illegal arrest).

¶10 The court of appeals correctly determined that the

first Brown factor favored suppression. The officer discovered

the drugs and paraphernalia shortly after the stop. But, as the

court of appeals correctly noted, this is the least important

Brown factor. See State v. Reffitt, 145 Ariz. 452, 459, 702

P.2d 681, 688 (1988); see also McBath v. State, 108 P.3d 241,

248 (Alaska 2005) (noting that “in essentially every case,” the

time between an illegal stop and the discovery of evidence is

short).

¶11 Regarding Brown’s second factor, the discovery of a

valid arrest warrant is an intervening circumstance because it

provides a legal basis for the arrest notwithstanding an illegal

seizure. See Ariz. R. Crim. P. 3.1(c) (warrant issued upon

probable cause); 3.3(b) (warrant executed by arrest of

defendant); see also People v. Murray, 728 N.E.2d 512, 517 (Ill.

App. Ct. 2000) (holding it would be “illogical and nonsensical”
6
to suggest police cannot arrest subject of illegal detention

after discovery of valid warrant). A law enforcement officer

who previously lacked even reasonable suspicion, by discovering

a valid warrant, gains probable cause not just to detain, but to

arrest. Cf. Whiteley v. Warden, Wyo. State Penitentiary, 401

U.S. 560, 568-69 (1971) (holding invalid warrant did not create

probable cause for arrest). If the warrant is valid, the arrest

is valid regardless of how the individual officer came to know

about the warrant. See United States v. Hudson, 405 F.3d 425,

439 (6th Cir. 2005) (holding that initial illegal detention

“does not call into question” validity of arrest pursuant to

valid warrant; “[w]here the police effectuate an arrest in an

illegal manner but nonetheless have probable cause to make the

arrest, the proper Fourth Amendment remedy is to exclude only

that evidence which is a fruit of the illegality”); see also

State v. Spreitz, 190 Ariz. 129, 144, 945 P.2d 1260, 1275 (1997)

(holding that as long as officers possess a valid warrant, the

subjective intent of officers is irrelevant).

¶12 The court of appeals, however, overemphasized the

importance of the warrant as an intervening circumstance in

attenuating an illegal detention’s taint upon evidence

discovered in a search incident to arrest. See Hummons, 225

Ariz. at 257 ¶ 11, 236 P.3d at 1204 (citing United States v.

Green, 111 F.3d 515, 521 (7th Cir. 1997)) (holding existence of
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arrest warrant “compelling” case for finding dissipation). If

the purpose of an illegal stop or seizure is to discover a

warrant— in essence, to discover an intervening circumstance—

the fact that a warrant is actually discovered cannot validate

admission of the evidence that is the fruit of the illegality.

See People v. Mitchell, 824 N.E.2d 642, 644, 649 -50 (Ill. App.

Ct. 2005) (affirming suppression of evidence when “officers

stopped defendant for no apparent reason other than to run a

warrant check”).

¶13 If, as the court of appeals suggested, a warrant

automatically dissipated the taint of illegality, law

enforcement could then “create[] a new form of police

investigation” by routinely illegally seizing individuals,

knowing that the subsequent discovery of a warrant would provide

after-the-fact justification for illegal conduct. United States

v. Gross, 624 F.3d 309, 320-21 (6th Cir. 2010). We cannot

reconcile such a situation with the Fourth Amendment or the

logic of Wong Sun v. United States, 371 U.S. 471, 485 (1963)

(holding evidence that derived “so immediately from” violation

is fruit of illegality and should be suppressed). We therefore

hold 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.
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¶14 The purpose and flagrancy of illegal conduct, the

third Brown factor, however, goes to the very heart and purpose

of the exclusionary rule. See Brown, 422 U.S. at 603-604

(finding flagrancy of misconduct “particularly” important in

attenuation analysis); see also Herring v. United States, 555

U.S. 135, __, 129 S. Ct. 695, 701 (2009) (“The extent to which

the exclusionary rule is justified by . . . deterrence

principles varies with the culpability of the law enforcement

conduct.”); Guillen, 223 Ariz. at 318-19 ¶¶ 19-21, 223 P.3d at

662-63. Courts must consider the totality of circumstances in

determining whether the evidence should be suppressed. See

United States v. Wellins, 654 F.2d 550, 554 (9th Cir. 1981)

(finding of attenuation only appropriate upon consideration of

totality of circumstances). Factors 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. By focusing on officer conduct,

courts may distinguish between ordinary encounters that happen

to devolve into illegal seizures and intentionally illegal

seizures for the purpose of discovering warrants.

¶15 Applying Brown’s third factor, and assuming Hummons

was illegally detained, we hold that the totality of the

circumstances militate against suppressing the evidence. See
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State v. Frierson, 926 So.2d 1139, 1144 (Fla. 2006) (finding

“very significant the third factor in the Brown analysis” in

concluding taint of illegal stop dissipated by non-pretextual,

good faith discovery of outstanding arrest warrant). No

evidence at the suppression hearing indicated that Officer Lewis

routinely approaches citizens in the hopes of discovering

warrants in order to search them incident to arrest, nor did she

stop Hummons for this reason. Rather, she was engaged in other

police business when he caught her attention because he was

carrying new lawn equipment, yet appeared disheveled and was in

an area where there had recently been thefts from yards. She

approached Hummons, as she had the right to do, and engaged him

in consensual conversation. When he made confusing statements,

she asked to see his identification. While retaining his

identification, she conducted a quick check for warrants in his

presence.2 Officer Lewis further testified that once she had

discovered the warrant, she had intended to allow Hummons to

leave without arresting him. She changed her mind only when he

became belligerent. From this record, it is clear Officer Lewis

did not approach Hummons with the hope of arresting and

searching him, nor did she otherwise engage in purposeful or

2
We do not address whether Officer Lewis had reasonable suspicion
by the time she performed the warrant check- an issue neither
raised by the State in the court of appeals nor decided by that
court.
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flagrant illegality.

B. State Constitutional Argument

¶16 Hummons urges us to separately consider this matter

under Article 2, Section 8 of the Arizona Constitution. Because

the exclusionary rule is applied no more broadly under our state

constitution than it is under the federal constitution outside

the home-search context, we decline to do so. See Guillen, 223

Ariz. at 317 ¶ 13 n.1, 223 P.3d at 661 n.1.

III. CONCLUSION

¶17 For the foregoing reasons, we uphold the trial court’s

denial of Hummons’ motion to suppress evidence obtained during

the search incident to arrest and affirm his conviction, but

vacate the court of appeals’ opinion.

_____________________________________
Robert M. Brutinel, Justice

CONCURRING:

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Rebecca White Berch, Chief Justice

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
A. John Pelander, Justice
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