State v. Barnes

IN THE SUPREME COURT OF THE STATE OF KANSAS No. 127,097 STATE OF KANSAS, Appellee, v. RICO TEREZ BARNES, Appellant. SYLLABUS BY THE COURT 1. When reviewing a district court's decision on a motion to suppress, an appellate court—without reweighing the evidence—reviews the district court's findings of fact for substantial competent evidence and reviews the ultimate legal conclusion regarding the suppression of evidence de novo, considering the totality of the circumstances. 2. The Fourth Amendment guarantees protection against "unreasonable" searches and seizures; warrantless searches and seizures are per se unreasonable, subject to only a few carefully drawn exceptions, which include consent and the "plain view" exception. 3. An incriminating object in plain view may satisfy an exception to the prohibition on warrantless searches and seizures. For the exception to apply, the initial intrusion which afforded authorities the plain view must be lawful; the discovery of the evidence must be inadvertent; and the incriminating nature of the article must be immediately apparent to searching authorities. 1 4. The incriminating nature of an item is immediately apparent if the object gives officers probable cause to believe that the item is contraband or evidence of a crime; if the police lack probable cause to believe that an object or container in plain view is contraband without conducting some further search of the object, then its incriminating nature is not "immediately apparent" and the plain-view doctrine cannot justify its seizure. 5. An individual's valid consent to search provides an exception to the Fourth Amendment's prohibition on warrantless searches and seizures. In order for a consent to search to be valid, there must be clear and positive testimony that consent was unequivocal, specific, and freely given, and the consent must have been given without duress or coercion, express or implied. 6. The existence, voluntariness, and scope of a consent to search is a question of fact to be determined from the totality of the circumstances. In examining all the surrounding circumstances to determine if in fact a consent to search was coerced, a court must take account of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consented. 7. The State bears the burden of establishing, by a preponderance of the evidence, that an exception to the Fourth Amendment's warrant requirement applies. Review of the judgment of the Court of Appeals in an unpublished opinion filed August 8, 2025. Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Oral argument held April 8, 2026. 2 Opinion filed September 4, 2026. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed. Sean P. Randall, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant. Jacob M. Gontesky, assistant district attorney, argued the cause, and Maria C. Davies, assistant district attorney, Stephen M. Howe, district attorney, and Kris W. Kobach, attorney general, were on the briefs for appellee. PER CURIAM: Defendant Rico Terez Barnes asserts that two distinct constitutional violations required the suppression of drug evidence discovered following a traffic stop, and that the district court and Court of Appeals erred in concluding otherwise. Barnes' challenges require us to (1) put a finer point on what it means for the "incriminating character" of an object to be "immediately apparent" for purposes of the plain view exception to the warrant requirement, and (2) to evaluate the voluntariness and scope of Barnes' alleged consent to the search of his person. We conclude that the State carried its burden to establish that probable cause justified the seizure of suspected contraband under the plain view exception, and that defendant's consent to the search of his person was valid and the scope of that consent was not exceeded. Accordingly, we affirm Barnes' convictions. FACTS AND PROCEDURAL BACKGROUND One evening in early February 2022, Lenexa Police officers William Andruss and Ethan Salinas stopped Barnes' car because his license plate lights were out. Andruss approached the driver's side while Salinas approached on the passenger side. Barnes, who was smoking a cigarette, partially rolled down both front windows. 3  As Barnes was retrieving his driver's license, Salinas mouthed something to Andruss and indicated to the front passenger seat. Salinas later testified that he "observed, based on my training and experience, to be what they call a marijuana cigarette, otherwise known as a blunt, which [was] smoked down to a little portion of a marijuana cigarette" sitting on the front passenger seat. Salinas also admitted that, without looking at the actual item up close, he could not confirm that the "brownish" substance was marijuana, although he opined that "[i]t appeared to be burnt marijuana." Salinas later repeated that he believed the item to be a marijuana blunt upon first observing it. After Salinas pointed it out, Andruss asked Barnes, "Man, is that a blunt sitting on your front seat?" When Barnes asked, "Where?" Andruss responded, "Right there. Let me see that." Barnes handed the item to Andruss, who inspected it. Although Andruss could see that the item was a cigar stub from outside the car, the officers admitted that they did not know what was in the cigar wrapper, and that it could have been a legal substance. The item was apparently never tested for the presence of marijuana, and Barnes was never charged with possessing marijuana. Andruss directed Barnes to exit the car. Barnes denied that the item contained marijuana and denied having "any weed left in the car." Andruss then asked Barnes, "You got any weapons or anything like that on you?" Without waiting for a response, Andruss followed up with, "Do you mind if I search you?" Barnes responded, "No problem." Rather than a pat down, Andruss performed a full search of Barnes' person. Andruss found a baggie with a white crystalline substance in one of Barnes' zipped pockets; at that point, he placed Barnes under arrest and put him in the back of the patrol car. Andruss later testified that, had Barnes denied consent to the search of his person, Andruss "would have asked him to sit in front of my vehicle with his hands out of his pockets and conducted a search of his vehicle" based on the suspected marijuana. 4  The officers then searched Barnes' car and found a scale with "white residue consistent with methamphetamine on top." Although they had not smelled marijuana upon first approaching the car, Salinas testified that as they began this search, Salinas smelled marijuana "[i]mmediately upon opening the passenger door." District Court Proceedings The State charged Barnes with one count each of possession of methamphetamine and possession of drug paraphernalia. Barnes moved to suppress before trial, arguing that his consent was impermissibly coerced; that police extended the search beyond what Barnes consented to; and that the plain-view exception did not apply and, thus, the search of his vehicle was also unconstitutional. Both officers testified at the evidentiary hearing on the motion to suppress. As relevant to this appeal, the State argued (1) that Barnes' consent to search was valid and, even if it was not, the police would have searched him anyway because they would have searched his car based on the marijuana, and would thus have found "his scale [with] suspected methamphetamine residue on it," which would have led to Barnes' arrest and the inevitable discovery of the methamphetamine in his pocket; and (2) that the plain view exception gave the police probable cause to search based on the suspected blunt. The district court denied Barnes' motion. Findings relevant to its conclusion are discussed below. In announcing its decision, the district court said that the police only needed a "reasonable suspicion . . . that that was a marijuana blunt sitting on the seat." The district court also concluded that Barnes' consent was valid and that the police would have searched him "anyway because . . . they could have arrested him for the possession of marijuana." 5  At a bench trial on stipulated facts, the district court adopted the stipulated facts and found Barnes guilty as charged. On Appeal On Barnes' direct appeal, a panel of the Court of Appeals affirmed the district court's denial of the motion to suppress and affirmed Barnes' convictions. State v. Barnes, No. 127,097, 2025 WL 2267227, at *6 (Kan. App. 2025) (unpublished opinion). The panel concluded that the search of Barnes' person resulted from his valid consent, and the plain view exception to the warrant requirement allowed the officers to seize the suspected marijuana blunt from Barnes and eventually search his vehicle. Barnes petitioned this court for review, maintaining that his consent was invalid; that even if it was valid, the police exceeded the scope of his consent by searching his zipped pockets; and that the plain view exception did not apply because the incriminating character of the blunt was not immediately apparent. We granted review. Jurisdiction is proper under K.S.A. 60-2101(b) and K.S.A. 20-3018(b), and the relevant issues are preserved. ANALYSIS I. On the facts here, the incriminating character of the smoked-down blunt in plain view on the passenger seat was immediately apparent and provided probable cause for police to seize the item. "'[A] warrantless search by a police officer is per se unreasonable under the Fourth Amendment unless the State can fit the search within one of the recognized exceptions to the warrant requirement. Those recognized exceptions are: "consent; search incident to a lawful arrest; stop and frisk; probable cause plus exigent circumstances; the emergency 6  doctrine; inventory searches; plain view or feel; and administrative searches of closely regulated businesses." [Citation omitted.]'" State v. Doelz, 309 Kan. 133, 140, 432 P.3d 669 (2019). Section 15 of the Kansas Constitution Bill of Rights provides protection identical to that provided under the Fourth Amendment to the United States Constitution. State v. Wonders, 263 Kan. 582, 592, 952 P.2d 1351 (1998). To justify the warrantless search of Barnes' car, the State relied on the plain view exception. Under this exception: "'[I]f police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object—i.e., if "its incriminating character [is not] immediately apparent—the plain-view doctrine cannot justify its seizure." [Citations omitted.]'" Wonders, 263 Kan. at 590 (quoting Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130, 124 L. Ed. 2d 334 [1993]). In adopting the plain view exception, this court set out three criteria for its application: "1) the initial intrusion which afforded authorities the plain view is lawful; 2) the discovery of the evidence is inadvertent; and 3) the incriminating character of the article is immediately apparent to searching authorities." Wonders, 263 Kan. at 592 (quoting State v. Galloway, 232 Kan. 87, Syl. ¶ 2, 652 P.2d 673 [1982]). We clarified that the phrase "immediately apparent" means that an officer needs only probable cause to believe that the item is contraband, rather than near certainty. Wonders, 263 Kan. at 596- 97. 7  We have stated that "'[p]robable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime.' [Citation omitted.]" State v. Fewell, 286 Kan. 370, 377, 184 P.3d 903 (2008). "Because probable cause does not require evidence of every element of a crime, it must not be confused with proof beyond a reasonable doubt." 286 Kan. at 377 (citing, e.g., Draper v. United States, 358 U.S. 307, 311-12, 79 S. Ct. 329, 3 L. Ed. 2d 327 [1959]). The United States Supreme Court has explained that "'[i]n dealing with probable cause, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' [Citation omitted.]" Draper v. United States, 358 U.S. 307, 313, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959). An appellate court reviews a district court's decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, we review the district court's findings of fact to determine whether they are supported by substantial competent evidence. We use a de novo standard to review the ultimate legal conclusion regarding the suppression of evidence. State v. McCullough, 321 Kan. 618, 623, 582 P.3d 1080 (2026). Here, the district court found that, "upon approaching the vehicle," the officers' attention was "almost immediately" called to "something in the seat beside the [d]efendant that one or both of them thought appeared to be a marijuana blunt." When Andruss asked defendant to hand it to him, defendant "immediately picked it up, handed it to [the] officer and the officer continued to believe that it was in fact a marijuana blunt." These findings are supported by the testimony and video evidence in the record. See Wonders, 263 Kan. 582, Syl. ¶ 8 (trial court is in a unique position to evaluate a law 8 enforcement officer's experience, training, and ability to detect and recognize contraband; findings supported by substantial evidence will not be disturbed on appeal). We note that the district court did not use the words "plain view" and made no explicit finding that the incriminating character of the substance was immediately apparent or that it created the probable cause necessary to satisfy a recognized exception to the warrant requirement. It found that the officers obtained "reasonable suspicion" almost immediately by seeing what "appeared to be a marijuana blunt" on the seat. Barnes raised the reference to a "reasonable suspicion" standard on appeal; the Court of Appeals acknowledged the district court's error but addressed the issue under the probable cause standard of the plain view doctrine. Barnes' petition for review focuses on plain view: it does not renew his challenge to the district court's incorrect reference to a "reasonable suspicion" standard, thus we need not address this aspect of its decision. This appeal requires us to put a finer point on what it means for the "incriminating character" of an object to be "immediately apparent" for purposes of the plain view exception. We exercise unlimited review over this question of law. Barnes champions State v. Doelz, where we held that it was not immediately apparent that a 4" x 4" black plastic box—which turned out, upon investigation, to contain a digital scale—was contraband. Doelz, 309 Kan. at 135, 141-42. Critically, however, the officer in Doelz testified that he could "'[n]ot immediately'" tell the item was contraband, even though he "suspected" it might contain a digital scale, which can be used for illegal purposes; instead, "he did not know that the box on the backseat contained '[a] scale used to measure narcotics' until he opened the box." 309 Kan. at 142. We expressed skepticism that an officer's "declaration that [he] knew that digital scales can, in some instances, meet the legal definition of illegal drug paraphernalia" rendered the item's incriminating nature "immediately apparent." 309 Kan. at 141-42. 9  The State distinguishes Doelz, and points to cases upon which the Court of Appeals relied: State v. Graham, 273 Kan. 844, 846-50, 46 P.3d 1177 (2002) (during valid traffic stop, officer on passenger side saw green vegetation on floorboard of car that, based on his training and experience, he believed to be marijuana; resulting search was lawful); State v. Callahan, No. 113,711, 2016 WL 4413349, at *1,5 (Kan. App. 2016) (unpublished opinion) (during valid traffic stop of vehicle leaving suspected drug house, officer could see a "white granular substance" on driver's seat that, based on his training and experience, he believed to be methamphetamine; resulting search was lawful); State v. Jones, No. 126,361, 2024 WL 3381655, at *1-2, 4-5 (Kan. App. 2024) (unpublished opinion), rev. denied 320 Kan. 865 (2025) (during valid traffic stop, officer saw red, one-hit, 2-inch-long pipe in vehicle cupholder that, based on training and experience, she recognized as "a device commonly used for smoking marijuana as opposed to just any random pipe"; resulting search was lawful). The facts of Barnes' case fall somewhere between the precedent cited by each side, but land closer to the incriminating items in Callahan, Graham, and Jones than to the opaque plastic box in Doelz. Indeed, we have said that "[w]here a container is involved, complying with the warrant requirement or one of its well-delineated exceptions is required because the Fourth Amendment provides protection to the owner of every container if the container conceals its contents from plain view." Doelz, 309 Kan. at 142 (citing State v. Evans, 308 Kan. 1422, Syl. ¶ 4, 430 P.3d 1 [2018]). The incriminating nature of a smoked-down butt of a cigar is perhaps not as obvious (or immediately apparent) as the "white granular substance" observed in Callahan or the green vegetation in Graham. Indeed, Officer Andruss testified that there would be "nothing illegal" about having a cigar or black-and-mild in a person's car or front seat. 10  But the smoked-down, cigar-paper-wrapped, stub or "roach" here, retained on the passenger seat of the vehicle rather than discarded, is unlike the apparently innocuous black box at issue in Doelz: the intrinsic character of that closed container did not suggest criminality. Officer Salinas testified to his immediate belief that the "smoked down" character of the cigar in the seat was consistent with a marijuana "blunt," which appears prominently in Officer Andruss' body camera footage. Further, Salinas had been a police officer for five years at the time of Barnes' arrest and had encountered marijuana almost daily during that time. Between this training and the unusual appearance of the item, Salinas immediately had probable cause to believe that it was not merely the butt of a cigar—even without the initial accompanying smell of marijuana, which Salinas believed to have been masked by the smell of Barnes' cigarette. Although Barnes complains that the officers "could not tell" the cigar stub was contraband "until after they had seized it and examined it," his argument would hold the officers' required certainty to a higher standard than probable cause. The same is true of Barnes' argument that "both officers unequivocally testified that neither of them could determine the substance inside the cigar wrapper was marijuana" from outside the car. The officers only needed probable cause to believe the item was contraband; they did not need to be absolutely certain before they could constitutionally seize it for closer inspection. Having reviewed the officers' testimony and seen the smoked-down cigar butt for ourselves, we conclude that the officers had probable cause here to justify the seizure of the item. See also, e.g., State v. Jefferson, 297 Kan. 1151, 1159, 310 P.3d 331 (2013). 11  We emphasize that questions of reasonableness under the Fourth Amendment are inherently "fact-specific." Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996) (Robinette II). Our decision today in no way creates a carte blanche broad sanctioning of all future seizures of plainly viewed cigars, smoked or unsmoked. Our opinion today simply confirms that where, as here, the intrinsic character of a smoked- down cigar stub preserved on the passenger seat of a vehicle reasonably and immediately suggests its incriminating nature to officers inadvertently observing it during a lawful traffic stop, the plain view exception to the Fourth Amendment warrant requirement may apply to permit officers to seize it. II. Barnes validly consented to the search of his person. Barnes also challenges Officer Andruss' search of his pockets, which revealed the methamphetamine underlying his felony conviction. Barnes claims both that his consent to search was invalid and that even if valid consent was given, Andruss' search exceeded the scope of his consent. Like the plain view exception, an individual's consent to search provides an exception to the Fourth Amendment's warrant requirement. State v. Daino, 312 Kan. 390, 396, 475 P.3d 354 (2020). But that consent must be voluntarily given. "In order for a consent to search to be valid, two conditions must be met: (1) There must be clear and positive testimony that consent was unequivocal, specific, and freely given; and (2) the consent must have been given without duress or coercion, express or implied." State v. Spagnola, 295 Kan. 1098, 1107, 289 P.3d 68 (2012). The State bears the burden of establishing the validity of an individual's consent by a preponderance of the evidence, and "[t]he existence, voluntariness, and scope of a consent to search is a question of fact to be determined from the totality of the 12 circumstances." Daino, 312 Kan. at 397. "'In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.'" Spagnola, 295 Kan. at 1108 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228-29, 93 S. Ct. 2041, 36 L. Ed. 2d 854 [1973]). Thus, when a defendant claims that their consent to a police search was invalid, we assess "whether a reasonable person would feel free to decline the officer's requests or otherwise terminate the encounter." Spagnola, 295 Kan. at 1107 (citing Florida v. Bostick, 501 U.S. 429, 436, 111 S. Ct. 2382, 115 L. Ed. 2d 389 [1991]). Barnes argues that under the circumstances, where the encounter involved two officers and occurred outside Barnes' car, in a deserted parking lot, at 10:30 p.m., during winter, after the officers had discovered what they believed to be drugs in the car, and "one of the officers opened his car door and commanded him to exit the vehicle," no reasonable person would have felt free to decline the request, thus any consent he gave was not voluntary. We disagree. Here, the district court made the following factual findings about Barnes' consent: "[T]here were two officers in the vehicle as part of the routine that evening. Again, there was no aggressive questioning. There were no guns drawn. I disagree with counsel that their tone is irrelevant. I thought they were very polite, almost conversational with the Defendant. They asked if he—I believe the question was, 'Do you mind if I search you?' And the Defendant responds, 'No problem.' "So, I do not believe that there is any reason for me to find that the consent was not voluntarily given." 13  In addition to the officers' testimony, the officers' body camera footage supports the district court's findings. Further, nothing about Barnes' demeanor suggested that he was under any special duress. For example, he continued to smoke his cigarette until— after Andruss found the baggie of methamphetamine in his pocket—he was asked to put it out. No evidence was offered that Barnes had any special vulnerabilities that would have made him more susceptible to even subtly coercive requests. Cf. State v. Thompson, 284 Kan. 763, 792, 166 P.3d 1015 (2007) (suggesting that the United States Supreme Court has silently abandoned "the Bustamonte subjective factors to determine what a reasonable person would believe" in Robinette II). Thus, despite the basic circumstances of the stop that Barnes highlights, the record as a whole supports the district court's finding that Barnes voluntarily consented to the search. Likewise, the video evidence cuts against Barnes' claim that he only consented to a pat down for weapons. Barnes analogizes his case to State v. Lee, 283 Kan. 771, 778, 156 P.3d 1284 (2007), where we concluded that an officer exceeded the scope of consent by searching through a defendant's pockets, rather than performing a simple pat down. But unlike Lee, the conversation here largely centered around marijuana; Andruss mentioned "weapons" only once. Specifically, after Andruss inspected the suspected blunt and ordered Barnes out of the car, the following exchange occurred: "[Barnes:] That's not weed . . . sir. "[Andruss:] Sure looks like weed. What is it? "[Barnes:] It's not weed. "[Andruss:] What is it? Here, step back here for me. You got any weapons or anything like that on you? Ok, here, in front of my car. Do you mind if I search you? 14  "[Barnes:] No problem. "[Andruss:] Ok, cool." Thus, although the question that immediately preceded Andruss' request to search involved weapons, the full video reveals that Andruss had spent most of the conversation discussing marijuana. Consequently, it would have been objectively reasonable for Andruss to believe that Barnes was not solely consenting to an over-the-clothes "pat down"—which Andruss never said—but to a search, including a search of his pockets. Officer Andruss' search did not exceed the scope of Barnes' consent. Like the panel and the district court, we conclude that the officers' actions did not violate the Fourth Amendment. We thus affirm the district court's denial of Barnes' motion to suppress and further affirm Barnes' convictions. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed. *** WALSH, J., concurring in part and dissenting in part: A traffic stop is a seizure for purposes of the Fourth Amendment and its Kansas counterpart. See, e.g., State v. Mendez, 319 Kan. 718, 735, 559 P.3d 792 (2024). The traffic stop here was indisputably valid: Barnes' plate lights were out, a two-man patrol car activated its emergency lights and pulled Barnes over, and an officer approached each side of the car. Before the plate light violation could be addressed, officers saw and seized what was immediately apparent to them to be a smoked-down marijuana blunt in the front seat and directed Barnes to step out of his vehicle while questioning him about marijuana. The 15 officers had him stand in front of their patrol car; one of the officers stood in front of him and the other stood behind him; Officer Andruss said: "Here, step back here for me. You got any weapons or anything like that on you? Ok, here, in front of my car. Do you mind if I search you?" I write narrowly to express my disagreement with the majority's conclusion that, considering the totality of the circumstances, Barnes' response of "no problem" satisfied the State's burden to provide "clear and positive testimony that consent was unequivocal, specific, and freely given . . . without duress or coercion, express or implied." State v. Spagnola, 295 Kan. 1098, 1107, 289 P.3d 68 (2012). In context, the question was unspecific. And under the totality of the circumstances, the question was rhetorical. Although guns remained holstered, questioning was not "aggressive," and officers were "polite," Barnes' response of "no problem" evidenced his submission to a claim of authority rather than a consent to search as a voluntary act of free will. See, e.g., State v. Thompson, 284 Kan. 763, 797, 166 P.3d 1015 (2007); see also State v. Hogan, 45 Kan. App. 2d 715, 252 P.3d 627 (2011). I join the majority's analysis and determination that probable cause justified the seizure of the marijuana blunt under the plain view exception and that the automobile exception justified the resulting search of the vehicle. Appellant does not engage with the inevitable discovery argument raised by the State and mentioned by the district court below. We've concluded the marijuana blunt in plain view gave officers probable cause to believe a crime was being committed, and that defendant—the sole occupant of the car— committed it. As the district court noted, other exceptions to the warrant requirement may have justified officers' search of Barnes' person. Consent, in my view, was not one of them. 16  *** WALL, J., dissenting: I agree with the majority that police officers don't need to be certain that an item is contraband before they may lawfully seize it under the plain-view doctrine. But they must articulate specific, objective facts about the item and the surrounding circumstances supporting their belief that the item was probably illegal. Here, the State failed to show what circumstances, other than a conclusory statement about training and experience, led Officer Ethan Salinas to suspect the smoked- down cigar butt in Barnes' car contained marijuana rather than tobacco. This record cannot support the conclusion that officers had probable cause to believe the cigar was contraband. The State also failed to show that the taint of this illegal seizure dissipated before officers searched Barnes' person and car. See State v. Anderson, 321 Kan. 549, 552, 582 P.3d 524 (2026) (once defendant alleges facts showing search is illegal, State carries burden of proving lawfulness of search). I therefore dissent from the majority's decision to affirm the district court's denial of Barnes' suppression motion. Police officers may seize an object in plain view without a warrant if they have probable cause to believe the object is contraband. State v. Wonders, 263 Kan. 582, 590, 952 P.2d 1351 (1998). And a court may consider an officer's training and experience in deciding whether an officer had probable cause under the totality of the circumstances. 263 Kan. at 596. This is because "[p]olice officers by virtue of their experience and training can sometimes recognize illegal activity where ordinary citizens would not." State v. Dorsey, 731 P.2d 1085, 1088 (Utah 1986). But the State must show how the officer's training and experience sheds light on the encounter—how the officer's training and experience revealed the item's incriminating characteristics under the totality of the circumstances. When an officer 17 testifies in conclusory fashion—that he believed the item was contraband based on his training and experience—the testimony lacks any foundation to support a probable-cause conclusion. Such testimony is circular and self-authenticating—"it was contraband because I thought it was contraband." The Fourth Amendment demands more. And conclusory training-and-experience testimony alone cannot establish probable cause to seize the item. See United States v. Cervantes, 703 F.3d 1135, 1139-40 (9th Cir. 2012) ("Conclusory statements and a general claim of expertise will not suffice" to establish probable cause for a search.); see also 2 LaFave, Search & Seizure § 3.2(c) (6th ed.) ("[I]f an officer at a hearing on a motion to suppress were to say that he made the arrest because he saw what he as an expert recognized as a marijuana cigarette, this is not a showing of probable cause."). Instead, the State must provide an evidentiary foundation for the probable-cause conclusion. The officer's observations "must be based on something factual." Longshore v. State, 399 Md. 486, 534, 924 A.2d 1129 (2007); see also Dorsey, 731 P.2d at 1088 (Courts should recognize an officer's training and experience "where there are objective facts to justify the ultimate conclusion."). In other words, the State must identify specific characteristics about the item and the surrounding circumstances that support the officer's belief that it was contraband. Compare United States v. Wiley, 673 F. Supp. 1405, 1409 (E.D. Va. 1987) (finding officers had probable cause to arrest defendants after officers saw what they concluded, based on their training and experience, were "roaches" because "they were very short, tightly drawn, rolled and pinched at the end"), with Commonwealth v. Layer, 340 A.3d 352, 365-66 (Pa. Super. 2025) (holding State failed to show incriminating nature of loose marijuana and foil gelato bags was immediately apparent when officer failed to identify any incriminating characteristics of the items, and officer's training and experience, without more, could not fill the evidentiary gap), appeal denied 353 A.3d 190 (Pa. 2026). 18  An officer's training and experience can help explain why particular characteristics of the item and other surrounding circumstances suggest the item is contraband. But without this factual foundation, conclusory training-and-experience testimony alone cannot suffice. And here, the record fails to offer an adequate foundation for the probable-cause conclusion. At the suppression hearing, Officer Salinas testified that he saw what he believed to be a "marijuana cigarette" "based on [his] training and experience" located on the passenger side of Barnes' car. But Salinas identified no fact-specific circumstances supporting his belief that the item was a "blunt" rather than a lawful cigar. He testified only that it was "smoked down" and "burnt" and that the substance was "brownish"—all attributes consistent with a partially smoked cigar. His testimony amounted to nothing more than a conclusory statement that the item was a marijuana cigarette based on his training and experience. Granted, the alleged blunt is visible in the video taken from Officer Andruss' bodycam. But it is visible only for a split second—long enough to confirm it was partially burnt but not long enough to establish it had any incriminating characteristics. And Salinas' training and experience alone cannot fill in the gap. There is no evidence about the item's fact-specific characteristics or other surrounding circumstances suggesting the item was a blunt rather than a partially consumed cigar. Without that factual foundation, the record fails to show a fair probability that the item officers observed was contraband. See State v. Cazee, 308 Or. App. 748, 757, 482 P.3d 140 (2021) ("'[A]n officer may consider the facts in light of the officer's training, knowledge, and experience, but that experience cannot itself supply the facts.'"). 19  The seizure was unlawful because the State failed to show that either Andruss or Salinas had probable cause to believe the smoked-down cigar was contraband before they seized it. And this tainted the officers' search of Barnes' car, which was based on the discovery of the partially consumed cigar. This constitutional taint required the court to suppress the methamphetamine pipe found during the vehicle search. See State v. Jefferson, 297 Kan. 1151, 1161-62, 310 P.3d 331 (2013) (fruit of poisonous tree doctrine extends scope of exclusionary rule to bar admission of evidence obtained directly or indirectly as result of unlawful police conduct). But this does not end the analysis because Barnes argues that the illegal seizure also tainted the officers' search of his person. The State failed to carry its burden to show otherwise. When a Fourth Amendment violation precedes a defendant's consent to search, the State must prove the consent was voluntary and that "there was a break in the causal connection between the illegality and the evidence obtained as a result of it." State v. Parker, 282 Kan. 584, 596, 147 P.3d 115 (2006); see also United States v. Fox, 600 F.3d 1253, 1259 (10th Cir. 2010) (same). The State argues that Barnes voluntarily consented to the search. But it did not argue before the district court that there was a break in the causal connection between the illegal seizure of the cigar and Barnes' consent. Nor did it make this argument to us. Thus, the unconstitutional seizure taints the consent search and requires the court to suppress the methamphetamine found in Barnes' pocket. I would reverse the district court's denial of the motion to suppress because the State failed to carry its burden to show the searches of Barnes' car and his person were lawful. See United States v. Reeves, 524 F.3d 1161, 1170-71 (10th Cir. 2008) (reversing district court's denial of motion to suppress when State failed to show that the taint of an unlawful seizure had dissipated before defendant consented to search). 20