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State v. Weddle3/14/2000
fficient because the court never addressed whether Defendant's consent could have been tainted by his illegal detention.
In determining whether the evidence should be excluded as fruit of the poisonous tree or if Defendant's consent validates the search, the government has the dual requirement of showing (1) the consent was voluntary and (2) whether it has "sufficient independence from the prior illegality to purge the taint of that illegality." State v. Miller, 894 S.W.2d 649, 655 (Mo. banc 1995). Consent is invalid if it is the product of duress or coercion, either express or implied. Woolfolk, 3 S.W.3d at 831. Voluntariness of consent is determined by looking at the totality of the circumstances and assessing whether an objective observer would conclude the person made a free and unconstrained choice to consent. State v. Leavitt, 993 S.W.2d 557, 563 (Mo. App. W.D. 1999). Again, the focus here is on whether the defendant would feel free to leave. Woolfolk, 3 S.W.3d at 831.
Here, the evidence presented by the State showed Defendant's consent was not voluntary. As discussed above, a reasonable person in Defendant's position would not have felt free to leave. Instead, Defendant was merely submitting to a claim of lawful authority, which does not satisfy the State's burden of proving Defendant's consent was voluntary. Royer, 460 U.S. at 497, 103 S.Ct. at 1324; Leavitt, 993 S.W.2d at 563.
In addition, any consent was tainted by Defendant's illegal detention.
In determining whether to suppress evidence obtained through a voluntary consent to search given after an illegal seizure, we address three factors:
(1) the temporal proximity of the illegality and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. Miller, 894 S.W.2d at 655; See also, Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62 (1975).
Here, the factors weigh against a finding of attenuation. Wirt obtained Defendant's consent within 2-3 minutes of illegally detaining him. He did not advise Defendant that he had the right to refuse to consent. No intervening circumstances existed. Moreover, the actions taken by the police in this case border on flagrant. Under the circumstances presented, we find Defendant's consent tainted by the illegal seizure. See, Id. at 656.
Therefore, we grant Defendant's first point. The trial court erred in denying Defendant's motion to suppress and should have excluded State's exhibits 1 through 25. As a consequence of our finding, we do not consider his remaining points on appeal. Without the evidence located in the van, there is insufficient evidence to convict Defendant of any of the charges. By reason of the overwhelming evidence in favor of Defendant, this Court will not remand for another suppression hearing and/or new trial. See, State v. Davis, 985 S.W.2d 876 (Mo. App. E.D. 1998). We reverse Defendant's convictions and order him discharged. See, Id. at 657; Woolfolk, 3 S.W.3d at 832-33; Slavin, 944 S.W.2d at 321; Rodriquez, 904 S.W.2d at 538.
Reversed.
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