              IN THE SUPREME COURT OF THE STATE OF KANSAS

                                        No. 116,133

                                    STATE OF KANSAS,
                                        Appellee,

                                             v.

                                   DANIEL J. CHRISTIAN,
                                       Appellant.


                              SYLLABUS BY THE COURT

1.
       Under the exclusionary rule, if a criminal defendant challenges the State's use of
evidence obtained in violation of the Fourth Amendment to the United States
Constitution, a court may suppress the primary evidence obtained as a direct result of an
illegal search or seizure and evidence later discovered and found to be derivative of an
illegality. But the exclusionary rule has never been interpreted to proscribe the use of
illegally seized evidence in all proceedings or against all persons.


2.
       The attenuation doctrine is an exception to the exclusionary rule. It applies when
the connection between unconstitutional police conduct and the evidence is remote or has
been interrupted by some intervening circumstance, so that the interest protected by the
constitutional guarantee that has been violated would not be served by suppression of the
evidence obtained.




                                              1
3.
       No bright-line rule defines when the attenuation doctrine applies. Rather, courts
must examine the particular facts of each case and determine whether those
circumstances attenuate the taint of illegality.


4.
       When a party appeals a ruling based on the attenuation doctrine, the appellate
court considers a question of fact it must review to determine whether it is supported by
substantial competent evidence. The ultimate legal conclusion of whether to suppress the
evidence is reviewed de novo.


5.
       The United States Supreme Court has identified three nonexclusive factors for
determining whether the attenuation doctrine applies. First, courts look to the temporal
proximity between the unconstitutional conduct and the discovery of evidence to
determine how closely the discovery of evidence followed the unconstitutional seizure.
Second, courts consider intervening circumstances. Third, and particularly significant, a
court examines the purpose and flagrancy of the official misconduct. No one factor is
controlling, and other factors also may be relevant to the attenuation analysis.


6.
       Under the attenuation doctrine's temporal proximity factor, a finding of attenuation
is not generally appropriate unless substantial time elapses between an unlawful act and
when a law enforcement officer obtains the evidence.


7.
       Development of probable cause to arrest based on a police officer's discovery of
evidence of a crime after the officer has illegally detained an individual does not
                                               2
attenuate the taint of an illegal seizure and allow admission of evidence obtained in a
later search. The probable cause flows directly from the unlawful seizure and does not
break the causal connection between the Fourth Amendment violation and the search. It
is not, therefore, an intervening circumstance.


8.
        Whether the third attenuation factor of purposeful or flagrant misconduct weighs
in favor of suppression turns on multiple considerations, including whether the officer
acted in good faith, committed multiple unconstitutional acts following the
unconstitutional seizure, or acted as part of a systemic and recurrent pattern of police
misconduct. As to the factor of good faith, the officer's subjective state of mind weighs
heavily. Courts should generally find purposeful and flagrant misconduct if: (1) the
impropriety of the official's misconduct was obvious or the official knew, at the time, that
his or her conduct was likely unconstitutional but still engaged in it; and (2) the
misconduct was investigatory in design and purpose and executed in the hope that
something might turn up.


        Review of the judgment of the Court of Appeals in an unpublished opinion filed September 8,
2017. Appeal from Reno District Court, TIMOTHY J. CHAMBERS, judge. Opinion filed July 26, 2019.
Judgment of the Court of Appeals affirming the district court on the single issue subject to our review is
reversed. Judgment of the district court is reversed and the case is remanded for further proceedings.


        Randall Hodgkinson, of Kansas Appellate Defender Office, argued the cause, and Kimberly Streit
Vogelsberg, of the same office, was on the briefs for appellant.


        Andrew R. Davidson, assistant district attorney, argued the cause, and Keith Schroeder, district
attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.




                                                     3
The opinion of the court was delivered by


       LUCKERT, J.: In this appeal, a Court of Appeals panel reversed Daniel J.
Christian's convictions and sentences, holding he did not properly waive his right to a
jury trial. But the panel also provided guidance on remand about Christian's motion to
suppress evidence seized after a police officer unconstitutionally detained him. The panel
applied the attenuation doctrine, concluding the district court could admit the evidence.
The panel's holding rests mainly on its determination that a police officer's discovery of
an expired tag on Christian's vehicle presented an intervening circumstance that
attenuated the taint of the officer's unconstitutional seizure of Christian. State v.
Christian, No. 116,133, 2017 WL 3947406, at *1, 4-5, 9 (Kan. App. 2017) (unpublished
opinion). We reverse that holding because the discovery of the expired tag did not break
the causal chain set in motion by the illegal seizure.


                        FACTUAL AND PROCEDURAL BACKGROUND


       Christian lawfully parked his car on a public street and sat there for a period of
time. An unidentified caller contacted police to report a suspicious car in front of her
house. A Hutchinson police officer responded and saw a car matching the one described
by the caller. The car's driver—later identified as Christian—ducked down as the officer
drove past. The officer parked his patrol car perpendicular to the rear of Christian's car,
activated his emergency lights, and got out to make contact. As he approached the car, he
noticed its license tag had expired. The officer asked Christian for his driver's license and
proof of insurance. Christian produced a valid driver's license but did not have proof of
insurance. The officer told Christian to exit the vehicle, and he arrested Christian for
failure to provide proof of insurance.




                                               4
       Christian tried to take his keys with him, but the officer instructed him to put them
on the car's roof. Another officer then arrived and asked Christian about a small silver
container on Christian's key chain. Christian responded he kept pills in it and, when
asked, consented to a search of the container. It contained a "[g]reen leafy vegetation"
consistent with marijuana. The first officer then placed Christian under arrest for
possession of marijuana, and the officers searched Christian's vehicle. The search
revealed two digital scales, some marijuana, and methamphetamine. A search of
Christian's person also revealed a clear baggie inside his pocket.


       The State charged Christian with possession of methamphetamine, possession of
marijuana, and possession of drug paraphernalia. He filed a motion to suppress evidence,
arguing officers obtained it as the result of an unlawful seizure. The State asserted the
first officer had reasonable suspicion to initiate the stop and the discovery of the expired
tag justified continuation of the detention. The State argued Christian consented to the
search of the container on his key ring and the discovery of marijuana provided probable
cause to arrest and reasons to believe the officers would find additional evidence of the
crime in the vehicle. The State claimed the automobile exception based on probable cause
plus exigent circumstances justified the officers' search of Christian's vehicle. The State
further asserted the evidence in the wallet and container was admissible under the
inevitable discovery doctrine because officers had arrested Christian, would have the
vehicle towed, and would conduct an inventory search of the vehicle and a search of
Christian's personal property upon intake at the jail.


       The district court held an evidentiary hearing, following which it issued a written
decision denying Christian's motion. The district court found officers seized Christian
when the first officer pulled behind the vehicle and activated his emergency lights. The
district court noted "[t]he State [employed] the shotgun approach in presenting its
position. The questioning and answers of the officer were tailored to support a number of
                                              5
different legal theories supporting the search." But the district court determined the
pertinent inquiry was whether the officer had reasonable suspicion for the stop and found
it was a "close yes." It denied the motion to suppress, holding:


               "When the officer observed the expired tag, the custody then expanded beyond
       the stage of reasonable suspicion. The lack of insurance justified an arrest. [Christian]
       consented to a search of the container on the key chain. The car was going to be towed
       and therefore the vehicle would have been inventoried."


       The court accepted Christian's waiver of a jury trial and convicted him of all
charges at an evidentiary bench trial. Christian filed a timely notice of appeal, raising
three issues. The Court of Appeals reversed his convictions and sentence, holding he did
not properly waive his right to a jury trial.


       Even though that holding reversing his convictions rendered the other issues moot,
the panel addressed the merits of Christian's suppression motion because the issue could
arise again on remand. See Christian, 2017 WL 3947406, at *4-5. The panel found the
initial seizure was unsupported by reasonable suspicion. But it upheld the denial of
Christian's motion under a different legal rationale—the United States Supreme Court's
attenuation doctrine analysis in Utah v. Strieff, 579 U.S. __, 136 S. Ct. 2056, 195 L. Ed.
2d 400 (2016). The panel dismissed Christian's third argument—a challenge to his
criminal history score—as moot. See Christian, 2017 WL 3947406, at *9.


       Christian timely petitioned for this court's review on the attenuation and criminal
history issues. This court granted Christian's petition only on the suppression issue. This
means the criminal history issue argued by Christian is not before us. See Supreme Court
Rule 8.03(i)(1) (2019 Kan. S. Ct. R. 53).



                                                    6
       Our jurisdiction is proper under K.S.A. 20-3018(b) (petition for review of Court of
Appeals decision).


                                         ANALYSIS


       Christian's petition presents a narrow issue about whether Strieff's attenuation
doctrine analysis applies to allow the admission of the evidence. Some background helps
put this issue in perspective because, while the issue is now narrow, it began before the
district court with the broader question: Did the officers violate Christian's rights under
the Fourth Amendment to the United States Constitution and, if so, should the court
exclude any evidence derived from the seizure and search?


       The Fourth Amendment provides: "The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated." U.S. Const. amend. IV. By prohibiting "unreasonable" searches and
seizures, the Fourth Amendment inferentially allows "reasonable" ones. Reasonable
searches and searches include those supported by a valid warrant or by one of the
warrant-requirement exceptions defined by the United States Supreme Court. State v.
Doelz, 309 Kan. 133, 140, 432 P.3d 669 (2019). When, as here, a criminal defendant
seeks to suppress evidence obtained from a search following a detention that is a seizure,
the legality of both the seizure and the search present intertwined questions because an
unlawful seizure may taint the search and make it unconstitutional. State v. Thompson,
284 Kan. 763, 772, 166 P.3d 1015 (2007); see K.S.A. 22-2402; see also Terry v. Ohio,
392 U.S. 1, 18, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The issue Christian presented to
the district court was the intertwined question of whether an unlawful detention tainted
the later search.




                                              7
         The district court found the officer seized Christian when he pulled behind
Christian's vehicle and activated his emergency lights. But the district court applied one
of the well-delineated exceptions to the requirement that a warrant justify a seizure,
finding the officer had reasonable suspicion that a crime had been, was being, or was
about to be committed. See Terry, 392 U.S. at 20-22. The district court thus admitted the
evidence. But the Court of Appeals disagreed, ruling the district court erred in finding
that reasonable suspicion justified the initial detention. See Christian, 2017 WL 3947406,
at *8.


         The State did not cross-petition for review of that ruling, so it is not properly
before this court. See Rule 8.03(b)(6)(C)(i) and (iii), (c)(3); State v. Gray, 306 Kan. 1287,
1292-93, 403 P.3d 1220 (2017). We, therefore, accept the panel's finding that the officer
unlawfully seized Christian. This determination would often lead to a ruling that the court
had to suppress the methamphetamine, marijuana, and drug paraphernalia discovered on
Christian and in his car.


         Suppression results from applying the exclusionary rule under which a court may
suppress the "primary evidence obtained as a direct result of an illegal search or seizure"
and "evidence later discovered and found to be derivative of an illegality," the so-called
"'fruit of the poisonous tree'" if it finds officers obtained evidence in violation of the
Fourth Amendment. Segura v. United States, 468 U.S. 796, 804, 104 S. Ct. 3380, 82 L.
Ed. 2d 599 (1984); see Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9
L. Ed. 2d 441 (1963) (explaining fruit of the poisonous tree doctrine); State v.
Deffenbaugh, 216 Kan. 593, 598, 533 P.2d 1328 (1975) (same). But "'the exclusionary
rule has never been interpreted to proscribe the use of illegally seized evidence in all
proceedings or against all persons.'" Brown v. Illinois, 422 U.S. 590, 599-600, 95 S. Ct.
2254, 45 L. Ed. 2d 416 (1975) (quoting United States v. Calandra, 414 U.S. 338, 348, 94
S. Ct. 613, 38 L. Ed. 2d 561 [1974]).
                                                8
       The United States Supreme Court has recognized several exceptions to the
exclusionary rule. Some of these "exceptions involve the causal relationship between the
unconstitutional act and the discovery of evidence." Strieff, 136 S. Ct. at 2061. Here, the
State has placed one of those exceptions—the attenuation doctrine—in issue. The
attenuation doctrine applies "when the connection between unconstitutional police
conduct and the evidence is remote or has been interrupted by some intervening
circumstance, so that 'the interest protected by the constitutional guarantee that has been
violated would not be served by suppression of the evidence obtained.'" Strieff, 136 S. Ct.
at 2061 (quoting Hudson v. Michigan, 547 U.S. 586, 593, 126 S. Ct. 2159, 165 L. Ed. 2d
56 [2006]); see Brown, 422 U.S. at 603.


       No bright-line rule defines when the attenuation doctrine applies. Rather, courts
must examine the particular facts of each case and determine whether those
circumstances attenuate the taint of illegality. Brown, 422 U.S. at 603. Given that
requirement, when a party appeals a ruling based on the attenuation doctrine, the
appellate court considers a question of fact that it reviews to determine whether the fact is
supported by substantial competent evidence. See State v. Smith, 286 Kan. 402, 420, 184
P.3d 890, cert. denied 555 U.S. 1062 (2008). Then, the appellate court reviews the
district court's ultimate legal conclusion de novo. See State v. Hanke, 307 Kan. 823, 827,
415 P.3d 966 (2018).


       To aid a district court's weighing of the facts, the United States Supreme Court in
Brown, 422 U.S. at 603-04, identified three factors to be considered in determining
whether the attenuation doctrine applies. This court later applied those factors. See State
v. Moralez, 297 Kan. 397, 415, 300 P.3d 1090 (2013); State v. Williams, 297 Kan. 370,
Syl. ¶ 9, 300 P.3d 1072 (2013). More recently in Strieff, the United States Supreme Court
reiterated the Brown factors:
                                              9
       "First, we look to the 'temporal proximity' between the unconstitutional conduct and the
       discovery of evidence to determine how closely the discovery of evidence followed the
       unconstitutional search. Second, we consider 'the presence of intervening circumstances.'
       Third, and 'particularly' significant, we examine 'the purpose and flagrancy of the official
       misconduct.'" 136 S. Ct. at 2062.


       No one factor controls, and other factors may be relevant to the attenuation
analysis. See, e.g., Brown, 422 U.S. at 600-04; State v. Martin, 285 Kan. 994, 1003, 179
P.3d 457, cert. denied 555 U.S. 880 (2008).


       In this case, our analysis differs from most cases in which we review a district
court's application of the attenuation doctrine because the district court did not address
the issue. Rather, it was first considered in the panel's decision. The panel thus had to
take the findings made by the district court and fit them into factors the district court had
not considered. And while the State asked the panel to consider the doctrine, it never
argued why the Court of Appeals could consider the doctrine for the first time on appeal.
For good reason, we usually will not consider issues for the first time on appeal,
especially those that involve issues of fact like the attenuation doctrine. See State v.
Brown, 309 Kan. 369, 375, 435 P.3d 546 (2019). Here, based on the facts before us, we
have determined the guidance provided by the Court of Appeals is incorrect. So we too
will take the available facts, which are largely undisputed, and apply them, while also
pointing out where the parties may not have developed facts.


       Within those limitations, for guidance on remand, we discuss the panel's analysis
of the three attenuation doctrine factors.




                                                    10
       Temporal proximity


       In discussing the temporal proximity of the search to the unconstitutional seizure,
the panel stated:


               "As to the first factor, if a substantial amount of time passes between the
       illegality and the discovery of evidence, such a fact supports not suppressing the
       evidence. 136 S. Ct. at 2062. While it is true that an exact time between the illegal stop
       and the discovery of the evidence is not apparent from the record, we do know that the
       officer discovered Christian's expired license plate before he began his encounter with
       Christian." Christian, 2017 WL 3947406, at *9.


       We are not entirely certain how the panel weighed this factor. But nothing in the
record suggests a significant lapse in time between the unlawful seizure and the discovery
of evidence. The first factor does not "[favor] attenuation unless 'substantial time' elapses
between an unlawful act and when the evidence is obtained." Strieff, 136 S. Ct. at 2062.
Here, the first factor favors suppression.


       Intervening circumstances


       For the attenuation doctrine to apply, there must be a sufficient intervening event
to break the causal connection between the illegal seizure and the discovery of evidence.
See Brown, 422 U.S. at 603-04. In Strieff, the United States Supreme Court clarified the
importance of the discovery of an arrest warrant, holding it is an intervening factor that
"strongly favors the State." 136 S. Ct. at 2062. Here, the Court of Appeals panel relied on
this holding in Strieff and found "the discovery of the expired license plate was a
sufficient intervening circumstance which gave law enforcement justification in and of
itself to stop Christian's vehicle." Christian, 2017 WL 3947406, at *9. But the panel did
not explain how this was equivalent to the discovery of a warrant in Strieff. See
                                                    11
Christian, 2017 WL 3947406, at *9. And the State provided no argument to this effect in
its brief to the Court of Appeals. We determine the comparison fails.


       The Strieff Court limited its holding to "the discovery of a valid, preexisting, and
untainted arrest warrant." Strieff, 136 S. Ct. at 2061. In large part, it was the preexisting
nature of the warrant that attenuated the taint of the unconstitutional seizure. See State v.
Tatro, No. 118,237 (Slip op. at 12), this day decided. Here, the intervening circumstance
was not the discovery of an arrest warrant. Rather, it was the officer observing evidence
of a crime made apparent after the officer unlawfully seized Christian and in the course
of the officer's unconstitutionally initiated investigation. Christian argues this
circumstance distinguishes his arrest from that in Strieff, which was based on a valid,
untainted, and preexisting warrant unrelated to the stop. We agree with Christian.


       The Strieff Court emphasized that "'[a] warrant is a judicial mandate to an officer
to conduct a search or make an arrest, and the officer has a sworn duty to carry out its
provisions.'" Strieff, 136 S. Ct. at 2062 (quoting United States v. Leon, 468 U.S. 897, 920
n.21, 104 S. Ct. 3405, 82 L. Ed. 2d 677 [1984]). In other words, a valid warrant that
predates and is unconnected with the stop independently compels the officer to make an
arrest, and that order does not rest on the officer's exercise of discretion. Once arrested,
the officer can conduct a search incident to the arrest. But the search follows an
intervening "ministerial act" consistent with the officer's "'sworn duty to carry out [the]
provisions'" of the arrest warrant. (Emphasis added.) See Strieff, 136 S. Ct. at 2062-63.


       Christian's arrest did not result from the officer fulfilling his duty to execute a
preexisting arrest warrant. Instead, the panel found the officer had discretion to arrest
Christian for no proof of insurance. See Christian, 2017 WL 3947406, at *9. Detaining
Christian for the expired tag and arresting him for no proof of insurance were not
"ministerial act[s]" consistent with the officer's "'sworn duty to carry out [the]
                                              12
provisions'" of an arrest warrant. See Strieff, 136 S. Ct. at 2062-63. Rather, these were
discretionary acts within his investigatory role as a law enforcement officer.


       In addition, unlike a valid, preexisting warrant unrelated to the stop, the bases
relied on to detain—the expired tag—and arrest Christian—the lack of proof of
insurance—arose from and were directly related to the unlawful initial detention.
Granted, these facts supported probable cause that crimes had been committed. But all of
the officer's actions flowed from and were tainted by the unconstitutional seizure. To rule
otherwise would allow derivative evidence to attenuate the initial illegality. But that is
not the attenuation doctrine's purpose. See Brown, 422 U.S. at 602-05 (holding court
could not admit defendant's confession because Miranda warnings did not break causal
chain between an illegal arrest and statements later made).


       In United States v. Gaines, 918 F.3d 793, 802 (10th Cir. 2019), the Tenth Circuit
Court of Appeals recently rejected a similar argument under similar facts. There, police
received a call from a citizen reporting that a man in a red hat had just sold drugs in a
parking lot. Officers responded and pulled into the parking lot with their roof lights
activated. The officers then parked behind a car in which a man in red clothing sat. They
gestured for the man to get out of the car and, as he did, they smelled the odor of PCP and
observed an open container of alcohol. When the officers advised the defendant they
would detain him, he fled. Officers caught him and conducted a search, finding the
evidence at issue.


       The Tenth Circuit held the officers unconstitutionally seized the defendant. It then
turned to the government's arguments about the attenuation doctrine. One of the
arguments considered was whether the discovery of the open container and the smell of
PCP provided probable cause that would trigger the attenuation doctrine. The Tenth
Circuit rejected the argument because "even if probable cause existed, it would have
                                             13
flowed directly from the seizure. . . . So the discovery of evidence would still be traced
directly to the possible Fourth Amendment violation. . . . Given this direct causal
connection, the eventual development of probable cause would not trigger the attenuation
doctrine." Gaines, 918 F.3d at 802 (citing Wong Sun v. United States, 371 U.S. 471, 487-
88, 83 S. Ct. 407, 9 L. Ed. 2d 441 [1963]).


       The same conclusion applies here. Discovering evidence of a crime when that
discovery flows directly from the unconstitutional seizure does not attenuate the taint of
the Fourth Amendment violation.


       Flagrancy


       The third factor—the purpose and flagrancy of the official misconduct—focuses
on the primary purpose of the exclusionary rule—deterring police misconduct. See
Strieff, 136 S. Ct. at 2062. "For the violation to be flagrant, more severe police
misconduct is required than the mere absence of proper cause for the seizure." Strieff, 136
S. Ct. at 2064. Today, in Tatro, we have delineated possible considerations in applying
the flagrancy factor. Tatro, No. 118,237 (Slip op. at 15). We noted that in Strieff the
Court examined whether the officer acted in good faith; determined that the officer's
"decision to initiate the stop was mistaken, [but] his conduct thereafter was lawful"; and
concluded "there is no indication that this unlawful stop was part of any systemic or
recurrent police misconduct." 136 S. Ct. at 2063. Focusing on the aspect of good faith,
we incorporated some considerations identified by the Tenth Circuit :


       "[P]urposeful and flagrant misconduct is generally found where: '(1) the impropriety of
       the official's misconduct was obvious or the official knew, at the time, that his conduct
       was likely unconstitutional but engaged in it nevertheless; and (2) the misconduct was
       investigatory in design and purpose and executed "in the hope that something might turn


                                                   14
       up."' United States v. Simpson, 439 F.3d 490, 496 (8th Cir. 2006) (quoting Brown, 422
       U.S. at 605)." United States v. Fox, 600 F.3d 1253, 1261 (10th Cir. 2010).


We also noted that this court has found flagrant misconduct where an officer knowingly
detains someone without authority. See State v. Cleverly, 305 Kan. 598, 612, 385 P.3d
512 (2016).


       Here, the Court of Appeals panel held:


               "Finally, as to the purpose and flagrancy of the police conduct, 136 S. Ct. at
       2062, we see nothing in the record that suggests this stop was related to a systemic or
       recurrent police misconduct. The officers were responding to a complaint about a
       suspicious vehicle. There was nothing to suggest that the officers' goal was to search
       Christian for drugs." Christian, 2017 WL 3947406, at *9.


       Christian does not dispute this. But we note he conceded only "the Court of
Appeals' finding that nothing suggested the stop was related to a systemic or recurrent
problem with police misconduct." The panel did not directly discuss the other types of
flagrancy discussed in Strieff and Fox. But it indirectly did so when it considered whether
the search—separated from the taint of the seizure—was constitutional. The panel at least
implied that the search of Christian's vehicle was a proper search incident to arrest for no
proof of insurance. See Christian, 2017 WL 3947406, at *9.


       This conclusion conflicts with the permissible scope for the search of a vehicle
under Arizona v. Gant, 556 U.S. 332, 351, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009)
("Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is
within reaching distance of the passenger compartment at the time of the search or it is
reasonable to believe the vehicle contains evidence of the offense of arrest."). In Gant,
the Court held officers could not search inside Gant's vehicle following his arrest "for
                                                   15
driving with a suspended license—an offense for which police could not expect to find
evidence in the passenger compartment of Gant's car." 556 U.S. at 344. Here, the panel
identified a lack of proof of insurance as the crime of arrest. See Christian, 2017 WL
3947406, at *9. Like Gant, it was not reasonable for the officers to believe they would
find evidence of that crime in Christian's vehicle. See 556 U.S. at 344.


       The panel's discussion was thus partially incorrect and narrow, lacking a
discussion of the officer's subjective good faith.


                                        CONCLUSION


       Even though we cannot fully evaluate the flagrancy factor, the other factors weigh
heavily toward a determination that there was no attenuation of the taint of the illegal
seizure and the district court should have suppressed the evidence derived from the
search. Even if nothing in the record revealed flagrancy, the attenuation doctrine does not
allow the admission of the evidence here.


       We thus disagree with and disapprove of the panel's guidance on the suppression
issue. This does not change the Court of Appeals' holding that the waiver of jury trial was
improper or its decision to reverse Christian's convictions and sentence for that reason.
Nor does it change the Court of Appeals' conclusion that the officer lacked reasonable
suspicion for the initial detention and, thus, the district court erred on that point. All we
decide is that, at least on the facts before us, the attenuation doctrine does not apply.


       The guidance judgment of the Court of Appeals affirming the district court on the
single issue subject to our review is reversed. Judgment of the district court is reversed
and the case is remanded for proceedings consistent with this opinion.


                                              16
