State v. Wagner

179 P.3d 1149, 39 Kan. App. 2d 279, 2008 Kan. App. LEXIS 50
CourtCourt of Appeals of Kansas
DecidedMarch 21, 2008
Docket97,643
StatusPublished
Cited by1 cases

This text of 179 P.3d 1149 (State v. Wagner) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wagner, 179 P.3d 1149, 39 Kan. App. 2d 279, 2008 Kan. App. LEXIS 50 (kanctapp 2008).

Opinions

Green, J.;

Michael Wagner was arrested for suspicious activity and read his Miranda rights. He was interrogated at the scene. In a later interrogation, Wagner confessed to committing several burglaries. Wagner moved to suppress his confession and statements. Although the trial court determined that Wagner had been illegally arrested without a warrant or probable cause and that the officers’ later search of his pickup truck was unlawful, the trial court found that any taint resulting from the officers’ illegality had attenuated by the time of his confession. Therefore, we must determine whether the connection between Wagner’s illegal arrest and the unlawful search of his truck and Wagner’s later confession was sufficiently attenuated, rendering his confession admissible. Under the facts of this case, the connection between the officers’ illegality and Wagner’s confession cannot be deemed sufficiently attenuated as to purge the taint. Accordingly, we reverse and remand for a new trial without Wagner’s confession or statements.

[281]*281At 2:17 a.m. on January 22, 2006, Deputy Adam Thompson was on routine patrol in Lyon County when he noticed an unoccupied pickup truck with Sedgwick County tags parked partially on the side of a rural road near the Emporia airport. A field bounded by a barbed wire fence separated the airport from the rural road. The truck was approximately 200 to 300 yards from the airport. Upon approaching the truck, Thompson noticed that the driver s side window was partially down and that the keys were in the ignition. The hood of the truck was still hot. Standing outside the truck, Thompson could see a couple of computers,- a box that appeared to contain a GPS system, a camera, and a cell phone inside the truck.

Thompson called for backup, and three other deputies arrived at the scene. One of the deputies testified that he could also see a black briefcase that had the name “Cessna” on it. The deputies heard something in a brush pile near the truck but were unable to locate anyone in the area. Thompson got into the truck and took the keys out of the ignition in order to slow the driver down in the event that the driver returned to the truck while the deputies were searching the area. According to Thompson, his decision to investigate further was based on the fact that there was an “unoccupied vehicle that, you know, there’s all these electronics in there, the windows half down, keys in the ignition, you know, on a county road where there’s . . . there’s nothing there, something, you know, something’s going on.” While searching the nearby field, the deputies discovered that several strands of the barbed wire fence, which was approximately a car’s length away from the truck, had been freshly cut. Thompson put the keys back in the ignition when the deputies finished searching the area.

After searching the area, the deputies drove to a place where they could watch the truck and wait for it to leave. The deputies stopped the truck sometime between 3 a.m. and 3:35 a.m. as it was leaving the area. At least three deputies in three separate patrol cars were involved in the stop. Deputy Daniel Evans ordered the driver, who was later identified as Wagner, to turn off the truck, throw the keys out the window, get out of the truck, and lie on the ground. Evans had his gun pointed at the truck. After Wagner [282]*282complied with Evan’s orders, Thompson handcuffed Wagner and walked him to his patrol car. Thompson read Wagner his Miranda rights and interviewed him outside of the patrol car. The passenger, Melissa Choate, was escorted out of the car, handcuffed, and given her Miranda rights. Choate was interviewed separately from Wagner. According to Thompson, both Wagner and Choate were wearing dark clothing.

Wagner told Thompson that he was coming from Wichita to Emporia to meet a friend to play paintball. Nevertheless, Wagner did not know where his friend lived, did not have a phone number, and never made contact with him. On the other hand, Choate said that she and Wagner were on their way back to Wichita from Kansas City where they had been visiting Wagner’s sister. Either Wagner or Choate said that they had stopped for a “relationship.” When Thompson discovered that Wagner’s and Choate’s stories did not match, he and another deputy searched the truck. Thompson did not see any additional items in the truck to those that he had seen when the truck was parked on the side of the road. The search of the truck lasted for 20 to 30 minutes and occurred approximately 15 to 20 minutes after the truck was stopped. The deputies did not have permission to search the truck.

Thompson grabbed one of the laptop computers out of the truck and called into dispatch the serial number on the laptop. Thompson discovered that the laptop had been reported stolen in Denver, Colorado. Thompson then took the rest of the electronics out of the truck and called in their serial numbers to dispatch. None of those items were reported stolen. One of the bags in the truck had the name “Cessna” on it. During their search of the truck, the deputies discovered a pair of bolt cutters and a pair of pliers in the toolbox in the back of the truck.

The deputies contacted the Emporia Police Department for assistance. Once the Emporia police officers arrived at the scene, Thompson took Wagner to the Lyon County Jail where he was booked under suspicion of burglaiy. Choate was taken to the Lyon County Jail by a different deputy. Wagner’s truck was impounded by the Emporia police.

[283]*283Sometime after the arrest, the Emporia police discovered that someone had broken into several hangars at the Emporia Airport. It is unclear when the deputies learned this information. Based on the deputies’ testimony, it is undisputed that the deputies did not know about the burglary when they stopped and handcuffed Wagner. One of the deputies indicated that they learned about the burglary around the time they discovered that the laptop computer had been stolen. Another deputy testified that he went to the airport around 3:45 or 4 a.m. to speak with Emporia police officers who had discovered the burglary. After seeing some shoe prints at the airport, the deputy returned to the scene of the stop and noted that Wagner’s shoes were similar in design to the shoe prints. Thompson’s testimony indicated that he knew about the burglary by the time Wagner was booked into jail.

Wagner was brought from the Lyon County Jail to the Emporia Police Department around 1:34 that afternoon (January 22, 2006). Detective Dennis Delmott and FBI agent Mike Miller interviewed Wagner. Before the interview began, Delmott gave Wagner a form that contained his Miranda rights and also read these rights to Wagner at around 1:43 p.m. Wagner waived his rights and agreed to speak with Delmott and Miller. During the interview, Delmott provided Wagner with a soft drink and also offered Wagner some food from the vending machine. Delmott testified that Wagner would have been allowed to go to the bathroom if Wagner had asked. Wagner’s handcuffs were removed for the interview.

Wagner initially expressed concern about the legal implications of his interview. Delmott told Wagner that there was a possibility he could be charged in federal court, in Lyon County, and in other counties. Nevertheless, Delmott told Wagner that possibly other jurisdictions would choose to save money and time and not prosecute him if he was being prosecuted in Lyon County. Delmott told Wagner that the best tiling he could do would be to cooperate.

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Related

State v. Wagner
179 P.3d 1149 (Court of Appeals of Kansas, 2008)

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Bluebook (online)
179 P.3d 1149, 39 Kan. App. 2d 279, 2008 Kan. App. LEXIS 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wagner-kanctapp-2008.