Discovering arrest warrants: intervening police conduct and foreseeability.

• Author: Kimberly, Michael

On July 8, 2001 in Lake Park, Florida, Anthony Frierson was sitting in his 1981 Plymouth sedan on Old Dixie Highway waiting for the light to turn green. Once the green turn arrow appeared, he turned left without using his signal. Although turning without a signal does not violate Florida traffic laws, (1) Officer Steven Miller observed Frierson malting the turn and pulled him over illegally. (2) When asked, Frierson provided the officer with his license, which Miller used to run a warrants check. The check revealed an outstanding warrant for Frierson's arrest for failure to appear in traffic court. On the basis of that warrant, Officer Miller arrested Frierson and conducted a search incident to arrest. That search revealed an illegal firearm, for which Frierson was charged and later convicted. (3)

In State v. Frierson, the Florida Supreme Court upheld the conviction, permitting entry of the firearm into evidence. The court reasoned that "the outstanding arrest warrant was a judicial order directing the arrest of respondent whenever the respondent was located," and thus "the search was incident to the outstanding warrant and not incident to the illegal stop." (4) Although the suspicionless traffic stop violated the Federal Constitution, the discovery of the outstanding arrest warrant had constituted an "intervening circumstance that dissipate[d] the taint of the illegal action." (5)

A growing number of state supreme courts and federal courts of appeals disagree over the question addressed in Frierson: whether the discovery of an outstanding warrant in the course of an illegal detention dissipates the "taint" of the initial illegality, permitting entry of evidence seized in a search incident to arrest. Because warrants checks are routine features of many police-citizen encounters, (6) this question is a matter of substantial practical importance. Eight courts have concluded that because officers must execute arrest warrants when they discover them and because searches incident to arrest are constitutional, the discovery of an arrest warrant is an intervening circumstance that attenuates the taint of an initially illegal encounter and permits entry of the evidence. (7) At least seven other state high courts and federal courts of appeals have concluded that evidence obtained in a search made pursuant to an illegally discovered arrest warrant constitutes fruit of the poisonous tree and should be suppressed. (8)

This Comment supports a middle ground, arguing that evidence should be suppressed when the discovery of an arrest warrant during the course of an illegal detention is the foreseeable result of intervening police conduct. This approach better accommodates the exclusionary rule's purpose of deterring illegal searches and seizures. (9)

For example, police often employ an investigatory technique known as a field interview. According to this strategy, officers canvass high-crime neighborhoods, randomly stopping pedestrians without any suspicion of criminal activity. (10) An officer initiates consensual contact with a pedestrian and asks to see his identification. When the pedestrian complies, the officer holds on to it while running a warrants check, a process that can take as long as fifteen minutes. Several courts have concluded that retaining the citizen's identification for a warrants check effects a seizure of the pedestrian. (11)

Because it is foreseeable that the warrants check will reveal any open warrants for a particular individual, the Frierson rule incentivizes officers to retain the identification unconstitutionally in order to run the check. If the check does not reveal a warrant, then the officer lets the individual go, having spent only a few minutes of time. If the warrants check does reveal an open warrant, the officer obtains legal authorization to conduct a search incident to the arrest, and the unconstitutionality of the stop is rendered irrelevant. Only when the discovery of an arrest warrant is not foreseeable--such as when an individual volunteers without police solicitation that he has an open warrant, or when the officer has independent knowledge of an open warrant (12)--ill suppression fail to prevent future unconstitutional detentions. Courts, therefore, should suppress evidence found in a search incident to an arrest during an illegal detention any time the discovery of the warrant is the foreseeable result of intervening police conduct.

1. THE EXCLUSIONARY RULE AND ATTENUATION

   The exclusionary rule is a settled fixture of Fourth Amendment law. The Supreme Court has explained that "[i]n order to make effective the fundamental constitutional guarantees of sanctity of the home and inviolability of the person ... evidence seized during an unlawful search [can] not constitute proof against the victim of the search." (13) This exclusionary rule is expressly fashioned as a "judicially created means of deterring illegal searches and seizures." (14) The rule, however, has never operated as an absolute bar. Courts decline to apply the rule in two categories of circumstances in which suppression would have little or no deterrent effect. First, the exclusionary rule does not apply where the illegality is not a but-for source of the evidence sought to be excluded. (15) Suppression of evidence that would have been discovered notwithstanding the illegal conduct will not succeed in deterring the illegal conduct.

   Second, the...