People v. McWilliams CA6

Filed 3/26/21 P. v. McWilliams CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H045525
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1754407)
v. ORDER MODIFYING OPINION
AND DENYING REHEARING
DUVANH ANTHONY MCWILLIAMS, [NO CHANGE IN JUDGMENT]
Defendant and Appellant.
THE COURT:
The court orders that the opinion and the concurring and dissenting opinion filed
March 8, 2021, be modified as follows:
On page 2, first full paragraph, at the end of the last sentence, add a footnote that
states:
After we issued our decision in this matter, defendant filed a request to augment
the record with a certified rap sheet that “establishes that his ‘Race’ is ‘Black.’ ” In
response to the request, the Attorney General stated, “It is undisputed that [defendant] is
Black. Since [defendant] was present at the suppression hearing, [the Attorney General]
does not object to judicial notice of a record outside the suppression hearing for the sole
purpose of establishing [defendant’s] race. (Evid. Code, § 452, subd. (h).)” Accordingly,
we grant defendant’s request to augment the record by separate order.
On page 9, move footnote 6 from the end of the first sentence of the second full
paragraph to the end of the first sentence of the third full paragraph. Add the following
sentence to the end of the footnote:
Further, as the Attorney General observes, “there [was] no evidence of racial
profiling and, indeed, all evidence admitted at the suppression hearing omits any mention
of race.” (But see fn. 2, ante, p. 2 [defendant personally appeared at the suppression
hearing].)
All footnotes commencing with footnote 2 shall be renumbered accordingly.
On page 7, of the concurring and dissenting opinion, delete footnote 1, which
states, “The race of McWilliams himself is not established by the record on appeal,
although presumably it was known to those involved in the proceedings in the trial court.
The issue with respect to application of the attenuation doctrine under these
circumstances is the uncontrolled exercise of discretion by the police and concomitant
concerns about the influence of bias, whether explicit or unconscious.”
The petition for rehearing filed on behalf of defendant Duvanh Anthony
McWilliams is denied.
There is no change in the judgment.
BAMATTRE-MANOUKIAN, J.
ELIA, ACTING P.J.
DANNER, J.
2
Filed 3/8/21 P. v. McWilliams CA6 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H045525
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1754407)
v.
DUVANH ANTHONY MCWILLIAMS,
Defendant and Appellant.
I. INTRODUCTION
Defendant Duvanh Anthony McWilliams pleaded guilty to possession of
methamphetamine for sale (Health & Saf. Code, § 11378), unlawful possession of a
firearm (Pen. Code, § 29800, subd. (a)(1)),1 and unlawful possession of ammunition
(§ 30305, subd. (a)(1)) and admitted several sentencing allegations (§§ 12022, subd. (c),
667.5, subd. (b), 667, subds. (b)-(i), 1170.12). Pursuant to the terms of a negotiated
disposition, the trial court sentenced defendant to seven years in state prison.
Defendant’s sole contention on appeal is that the trial court erred when it denied
his motion to suppress evidence. Defendant claims that he was illegally detained because
there was no reasonable suspicion he was involved in criminal activity. Defendant
further asserts that the officer’s subsequent discovery that he was on active parole does
not trigger the application of the attenuation doctrine because the evidence against him
1
All further statutory references are to the Penal Code unless otherwise indicated.
was obtained by exploiting the unlawful detention. The Attorney General counters that
defendant’s detention was supported by reasonable suspicion and that even assuming the
detention was unlawful, defendant’s parolee status supplied independent legal
authorization for the ensuing search under the attenuation doctrine.
We determine that the officer lacked reasonable suspicion to detain defendant
based on the absence of “specific articulable facts that, considered in light of the totality
of the circumstances, provide[d] some objective manifestation that [defendant] may
[have] be[en] involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231
(Souza).) However, under the principles articulated in Utah v. Strieff (2016) 136 S.Ct.
2056 (Strieff) and People v. Brendlin (2008) 45 Cal.4th 262 (Brendlin), we conclude that
the officer’s discovery of defendant’s “active and searchable CDC[R] parole” status
constituted an intervening circumstance that sufficiently attenuated the connection
between the detention and the evidence seized during the ensuing search, rendering
suppression unwarranted. Accordingly, we affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Charges
Defendant was charged by information with possession of methamphetamine for
sale (Health & Saf. Code, § 11378; count 1), transportation of methamphetamine (Health
& Saf. Code, § 11379, subd. (a); count 2), possession of a firearm by a felon (§ 29800,
subd. (a)(1); count 3), and unlawful possession of ammunition (§ 30305, subd. (a)(1);
count 4). It was also alleged that defendant was personally armed with a firearm during
the commission of counts 1 and 2 (§ 12022, subd. (c)), had served a prior prison term
(§ 667.5, subd. (b)), and had a prior juvenile adjudication that qualified as a strike
(§§ 667, subds. (b)-(i), 1170.12; Welf. & Inst. Code, § 707, subd. (b)).2
2
The prosecution subsequently filed an amended information that substituted
phencyclidine (PCP) for methamphetamine in counts 1 and 2 (Health & Saf. Code,
(continued)
2
B. Motion to Suppress Evidence
Defendant filed a motion to suppress evidence (§ 1538.5), asserting that the
prosecution had the burden to justify the warrantless detention and search (see People v.
Williams (1999) 20 Cal.4th 119, 130).
The prosecution filed written opposition, conceding that defendant had been
detained without a warrant when an officer asked him to exit his parked vehicle, but
contending that the detention was lawful because it was based on a reasonable suspicion
that defendant was involved in criminal activity. The prosecution argued that there was
reasonable suspicion to detain defendant based on a 911 call reporting suspicious activity
in the area and the fact that it was nighttime, defendant’s vehicle was parked in “a private
business parking lot” after business hours “on an observed holiday,” defendant was “in a
position of partial concealment” inside the vehicle, and defendant “was not dressed like
he was going to work.” The prosecution asserted that the subsequent search was lawful
because a records check revealed that defendant was on parole.3
Defendant did not file a reply.
C. Evidence Elicited at the Motion to Suppress Hearing
At approximately 6:52 p.m. on January 2, 2017, San Jose Police Officer Matthew
Croucher was dispatched to a Broadcom parking lot. A Broadcom security guard had
called 911 to report “a possible vehicle burglary.”
When Officer Croucher arrived, the security guard informed him that there were
two “suspicious individuals on bikes in the [Broadcom] parking lot.” The guard stated
§§ 11378.5, 11379.5, subd. (a)). Pursuant to the terms of the negotiated disposition, the
trial court later granted the prosecution’s request to withdraw the amended information
and restore the original information as the charging document.
3
Although the prosecution included in its written opposition that attenuation was
one situation where the exclusionary rule would not mandate suppression, it made no
argument that the attenuation doctrine applied here—either in its opposition or at the
suppression hearing.
3
that the individuals were using flashlights to look into cars. Officer Croucher drove
through the lot, finding nothing of note.
As part of his investigation into the guard’s report, Officer Croucher drove
through an adjacent parking lot that the security guard directed him to. Approximately
four or five vehicles were parked in the lot. Initially, nothing in the lot attracted Officer
Croucher’s attention, but when he used his spotlight, Officer Croucher saw that the front
passenger seat of one of the parked cars was occupied. Officer Croucher observed that
the seat was fully reclined and saw “the top of what appeared to be a human head.”
Officer Croucher realized that the occupant was “just somebody hanging out in the car,”
not sleeping. The car was the only occupied vehicle in the lot. Officer Croucher decided
to detain the occupant, later identified as defendant.
Officer Croucher pulled his patrol vehicle approximately two car lengths behind
defendant’s car. Another officer arrived and pulled to the side of Officer Croucher’s
vehicle.
Officer Croucher made “verbal contact [with defendant] from the front of [his]
vehicle,” while the other officer on scene stood a couple of feet behind Officer Croucher.
Officer Croucher identified himself as a police officer and instructed defendant to get out
of the vehicle for officer safety reasons, as he does “with most car stops . . . or most
suspicious vehicles that [he] come[s] across.” Defendant’s vehicle was suspicious to
Officer Croucher because it was in a dark lot of what he believed to be a closed business.
The officer had been to the lot many times and passed through it during the day when the
businesses were open and there were significantly more vehicles. The interiors of the
buildings were dark and no one was walking around the lot. The officer felt he “had
reasonable suspicion, based on what the security guard told [him], that [defendant] may
or may not have been related to the subjects that we were looking for.”
Defendant exited his vehicle and moved toward the patrol car at Officer
Croucher’s request. When Officer Croucher asked defendant for identification, he stated
4
that it was in the car. Officer Croucher directed defendant to retrieve his identification,
which he did. Upon running a records check, Officer Croucher learned that defendant
was “on active and searchable CDC[R] parole.”4
D. Arguments and Ruling
Defendant argued that Officer Croucher did not have reasonable suspicion to
detain him, observing that Officer Croucher detained him because “it was dark, he
believed the business was closed, and there was a small number of cars.” Defendant also
asserted that “the call that attracted the police to the parking lot was a call . . . that didn’t
match what was going on with [him] at all.”
The prosecution conceded that defendant was detained when he was ordered from
his vehicle. The prosecution argued there was reasonable suspicion to detain defendant
based on “the fact that [defendant] was in partial concealment, the time of night, the fact
the business was closed, there’s poor visibility, . . . there were no other individuals [in
the parking lot] and [the officers were] responding to a 9-1-1 call based on suspicious
activity.” The prosecution disputed that none of the circumstances matched the 911 call
because the officer “responded in a short amount of time and . . . the only person in that
adjacent parking lot was the defendant’s vehicle.” The prosecution asserted that one of
the two individuals the security guard saw looking into cars “could easily have jumped
inside a car; the fact that [defendant’s] seat was reclined all the way back, he could only
see the top of his head, this was suspicious to the officer.”
The trial court denied the motion to suppress, determining that “the information
from the security guard plus the presence of the defendant in the parking lot of the closed
business with no one else seemingly around does give the officer . . . reasonable
4
The parties did not question the officer at the suppression hearing regarding what
occurred after he learned defendant was on parole. Evidence elicited at the preliminary
hearing established that after discovering defendant’s parolee status, officers searched
defendant’s vehicle, finding narcotics, a scale, plastic baggies, an unloaded handgun, and
ammunition.
5
suspicion to detain and further investigate.”
E. Pleas and Sentencing
Defendant pleaded guilty to possession of methamphetamine for sale, unlawful
possession of a firearm, and unlawful possession of ammunition and admitted the arming,
prior prison term, and prior strike allegations.
Pursuant to the terms of a negotiated disposition, the trial court sentenced
defendant to seven years in state prison.
III. DISCUSSION
Defendant contends the trial court erred when it denied his motion to suppress
evidence. Defendant argues that he was detained without reasonable suspicion when
the police ordered him out of his car and that the evidence against him was obtained by
exploiting the illegal seizure. Relying primarily on this court’s decision in People v.
Bates (2013) 222 Cal.App.4th 60 (Bates), defendant asserts that the officer’s discovery
of his parolee status did not constitute an intervening circumstance that attenuated the
taint of the unlawful detention. The Attorney General counters that the trial court
properly denied the suppression motion because defendant’s detention was supported by
reasonable suspicion. Alternatively, the Attorney General argues that the “search was . . .
attenuated” from the detention because it did not occur until after the officer learned
defendant was on parole, the officer’s authority to conduct a parole search was
independent of the circumstances that led to defendant’s detention, and “[t]here is no
indication . . . the officer intended to perform a search at the time he approached
[defendant’s] vehicle.”
Based on the totality of the circumstances, we determine that Officer Croucher
lacked reasonable suspicion to detain defendant when he ordered him from his car
because there were not specific articulable facts that objectively demonstrated that
defendant may have been involved in criminal activity. (See Souza, supra, 9 Cal.4th at
p. 231.) However, we conclude, under the principles articulated in Strieff and Brendlin,
6
that on the facts of this case, defendant’s parolee status, which the officer discovered
before he performed the search, sufficiently attenuated any taint from the unlawful
detention, rendering suppression of the evidence unwarranted.5
A. Standard of Review
“Defendant, as the moving party, had the initial burden of proving a warrantless
search or seizure occurred. [Citation.] There was no warrant in this case, so the burden
shifted to the prosecution to show any warrantless searches or seizures were justified
under the Fourth Amendment to the United States Constitution. [Citation.] ‘[T]he
controlling burden of proof at suppression hearings . . . [is] proof by a preponderance
of the evidence.’ [Citation.]” (People v. Flores (2019) 38 Cal.App.5th 617, 626
(Flores).)
In ruling on a motion to suppress, the trial court “must find the historical facts,
select the rule of law, and apply it to the facts in order to determine whether the law as
applied has been violated. [Citation.] We review the court’s resolution of the factual
inquiry under the deferential substantial evidence standard. The ruling on whether the
applicable law applies to the facts is a mixed question of law and fact that is subject to
independent review. [Citation.]” (People v. Ramos (2004) 34 Cal.4th 494, 505.)
“[S]ince voter approval of Proposition 8 in June 1982, state and federal claims
relating to exclusion of evidence on grounds of unreasonable search and seizure are
measured by the same standard. [Citations.] ‘Our state Constitution thus forbids the
5
Although the prosecution argued in its written opposition that defendant’s
parolee status authorized the search and introduced evidence at the suppression hearing
that defendant was on parole, the prosecution did not argue that the attenuation doctrine
applied, and the trial court denied the suppression motion based on its finding that there
was reasonable suspicion to detain. Defendant does not assert on appeal that the
prosecution forfeited an attenuation claim or that he was prejudiced by the prosecution’s
failure to argue attenuation below. (Cf. Brendlin, supra, 45 Cal.4th at p. 267, fn. 1.) Nor
was forfeiture mentioned at oral argument. Rather, defendant raised the attenuation
doctrine in his opening brief, arguing that it does not apply here.
7
courts to order the exclusion of evidence at trial as a remedy for an unreasonable search
and seizure unless that remedy is required by the federal Constitution as interpreted by
the United States Supreme Court.’ [Citation.]” (People v. Camacho (2000) 23 Cal.4th
824, 830, fn. omitted.)
B. The Officer Lacked Reasonable Suspicion to Detain Defendant
“The Fourth Amendment to the United States Constitution prohibits seizures of
persons, including brief investigative stops, when they are ‘unreasonable.’ (Terry v. Ohio
(1968) 392 U.S. 1, 19 & fn. 16; [citation].)” (Souza, supra, 9 Cal.4th at p. 229.) When a
police contact rises to the level of an investigative stop or detention, the detention is
reasonable under the Fourth Amendment if the officer has “reasonable suspicion to
believe the individual is involved in criminal activity” or “advance knowledge that the
individual is on searchable probation or parole.” (People v. Douglas (2015) 240
Cal.App.4th 855, 860.)
Reasonable suspicion exists “when the detaining officer can point to specific
articulable facts that, considered in light of the totality of the circumstances, provide
some objective manifestation that the person detained may be involved in criminal
activity.” (Souza, supra, 9 Cal.4th at p. 231.) In other words, a detention is valid if
“the circumstances known or apparent to the officer . . . include specific and articulable
facts . . . that (1) some activity relating to crime has taken place or is occurring or about
to occur, and (2) the person he [or she] intends to stop or detain is involved in that
activity.” (In re Tony C. (1978) 21 Cal.3d 888, 893 (Tony C.), superseded by statute on
another ground as stated in People v. Lloyd (1992) 4 Cal.App.4th 724, 733 (Lloyd).)
“The officer’s . . . suspicion must be objectively reasonable, and ‘an investigative stop
or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the
officer may be acting in complete good faith. [Citation.]’ [Citation.]” (People v. Wells
(2006) 38 Cal.4th 1078, 1083.)
8
Here, as the prosecution conceded below, defendant was detained when Officer
Croucher ordered him to exit his vehicle. (See Florida v. Bostick (1991) 501 U.S. 429,
436-437.) Officer Croucher testified that he “had reasonable suspicion, based on what
the security guard told [him], that [defendant] may or may not have been related to the
subjects that we were looking for.”
A security guard reported to Officer Croucher that were two “suspicious
individuals on bikes in the [Broadcom] parking lot” who were using flashlights to look
into cars.6 Using his spotlight, Officer Croucher located defendant reclined in the
passenger seat of a vehicle that was parked in an adjacent lot that the security guard
directed him to. Defendant’s vehicle was the only occupied car in the lot, which
contained four or five parked vehicles. Defendant was “just somebody hanging out in
the car,” not sleeping.
Although it was appropriate for Officer Croucher to investigate the security
guard’s report of suspicious activity, nothing about defendant matched the guard’s
description of the individuals involved. Defendant was alone in a car, rather than on a
bicycle accompanied by another individual on a bike. There was no testimony that
Officer Croucher saw anyone else in the lot or any bicycles or flashlights in or near
defendant’s parked car. Defendant’s vehicle did not have a bike rack. Defendant was
parked in a lot adjacent to the parking lot where the suspicious activity occurred, but
“[a]n individual’s presence in an area of expected criminal activity, standing alone, is
not enough to support a reasonable, particularized suspicion that the person is committing
a crime.” (Illinois v. Wardlow (2000) 528 U.S. 119, 124.)
6
There was no testimony that the security guard provided Officer Croucher with
a description of the individuals’ physical characteristics or race. Approximately 23
seconds of video footage from an officer’s body camera was admitted into evidence, but
defendant does not appear in the footage.
9
Nor was defendant’s conduct in the neighboring lot suggestive of criminal activity.
At approximately 7:00 p.m. in January, it was dark out and the business associated with
the lot was apparently closed. But there was no evidence that the lot was private. And
while defendant was reclined in the passenger seat of his vehicle, Officer Croucher did
not testify that defendant made any furtive movements when he saw the officer’s patrol
car. Defendant’s mere presence in a vehicle located in a closed business’s parking lot
does not constitute “specific and articulable facts . . . that (1) some activity relating to
crime has taken place or is occurring or about to occur, and (2) [defendant] is involved
in that activity.” (Tony C., supra, 21 Cal.3d at p. 893; see People v. Roth (1990)
219 Cal.App.3d 211, 215 [holding there was no reasonable suspicion to detain based on
the defendant’s “early morning presence in the deserted parking lot of a shopping center
whose businesses were closed” as “[t]he circumstances were devoid of indicia of his
involvement in criminal activity”].)
The Attorney General argues that “officers responding to the report of a crime
may detain a person who is in the vicinity despite the lack of a description of the suspect,
particularly if no one else is in the area.” Here, however, there was a description of the
suspects—two individuals on bicycles with flashlights looking into cars—that defendant
did not match. Moreover, the cases relied on by the Attorney General are distinguishable
in that they each involved a reported crime, rather than suspicious activity, and someone
traveling away from the scene shortly after the crime occurred with no one else in the
area. (See People v. Brown (2015) 61 Cal.4th 968, 984; People v. Conway (1994)
25 Cal.App.4th 385, 390; Lloyd, supra, 4 Cal.App.4th at pp. 733-734; People v. Anthony
(1970) 7 Cal.App.3d 751, 761.) Defendant, in contrast, was simply reclining in his
parked car when the officer noticed him.
The Supreme Court remarked in its application of the attenuation doctrine in
Strieff that “[n]othing prevented [the officer] from approaching [the defendant] simply
to ask” what was going on. (Strieff, supra, 136 S.Ct. at p. 2063.) We likewise observe
10
that officer safety permitting, Officer Croucher could have engaged in a consensual
encounter with defendant to better assess whether defendant was connected to the
“possible vehicle burglary” and individuals on bicycles with flashlights looking into cars.
Without “specific and articulable facts” that defendant may have been involved in
criminal activity, however, Officer Croucher was without legal cause to order defendant
out of his car, thereby detaining him. (See Tony C., supra, 21 Cal.3d at p. 893.)
C. The Officer’s Discovery of Defendant’s Parolee Status Sufficiently
Attenuated the Connection Between the Unlawful Detention and the
Evidence Seized
Where a detention is unreasonable, the exclusionary rule may mandate
suppression of the evidence obtained as a direct result of the unlawful detention and any
“ ‘evidence later discovered and found to be derivative of an illegality.’ ” (Strieff, supra,
136 S.Ct. at p. 2061.) However, “exclusion may not be premised on the mere fact that a
constitutional violation was a ‘but-for’ cause of obtaining evidence.” (Hudson v.
Michigan (2006) 547 U.S. 586, 592 (Hudson).) “[B]ut-for causality is only a necessary,
not a sufficient, condition for suppression.” (Ibid.)
Under the attenuation doctrine, evidence may be admissible despite that it would
not have been discovered “ ‘ “but for” ’ ” illegal police conduct. (Brendlin, supra,45 Cal.4th at p. 268.) “Evidence is admissible 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.’ [Citation.]” (Strieff, supra, at p. 2061, italics added; see also Brown v. Illinois
(1975) 422 U.S. 590, 603.) The question in an attenuation case “ ‘ “is ‘whether, granting
establishment of the primary illegality, the evidence to which instant objection is made
has been come at by exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.’ ” ’ ” (Brendlin, supra, at p. 268.)
11
“[T]he general framework for analyzing a claim of attenuation under the Fourth
Amendment is well settled. [Citation.] ‘[T]he question before the court is whether the
chain of causation proceeding from the unlawful conduct has become so attenuated or
has been interrupted by some intervening circumstance so as to remove the ‘taint’
imposed upon that evidence by the original illegality.’ [Citation.] ‘Relevant factors in
this “attenuation” analysis include the temporal proximity of the Fourth Amendment
violation to the procurement of the challenged evidence, the presence of intervening
circumstances, and the flagrancy of the official misconduct.’ [Citations.]” (Brendlin,
supra, 45 Cal.4th at pp. 268-269.) The third factor, flagrancy, is “ ‘particularly’
significant” (Strieff, supra, 136 S.Ct. at p. 2062) and “generally regarded as the most
important” (Brendlin, supra, at p. 271).
Accordingly, to determine whether the connection between defendant’s unlawful
detention and the evidence seized was sufficiently attenuated by the discovery of
defendant’s parolee status to render suppression of the evidence unwarranted, we analyze
each attenuation factor in turn.
1. Temporal Proximity of the Detention to the Evidence’s Discovery
We first examine “the ‘temporal proximity’ between the unconstitutional conduct
and the discovery of evidence to determine how closely the discovery of evidence
followed” the illegal police conduct. (Strieff, supra, 136 S.Ct. at p. 2062.) This factor
generally disfavors attenuation “unless ‘substantial time’ elapses between an unlawful
act and when the evidence is obtained.” (Ibid.)
At the suppression hearing, the parties did not question Officer Croucher regarding
what transpired after he learned defendant was on parole. Consequently, no evidence
was presented regarding the time that elapsed between defendant’s initial detention and
the search. We must therefore conclude this factor weighs against attenuation as it is the
prosecution’s burden to establish the legality of the search (see Flores, supra, 38
12
Cal.App.5th at p. 626), and there was no evidence that “ ‘substantial time’ ” elapsed
between the detention and search (Strieff, supra, 136 S.Ct. at p. 2062).
2. Presence of Intervening Circumstances
We next assess whether defendant’s parolee status constituted an “ ‘intervening
circumstance.’ ” (Brendlin, supra, 45 Cal.4th at p. 269.)
In Strieff, a case involving an officer’s discovery of an outstanding arrest warrant
for the defendant after the officer had unlawfully detained him, the Supreme Court
determined this factor “strongly favor[ed] the State.” (Strieff, supra, 136 S.Ct. at
p. 2062.) The Court observed that “the warrant was valid, it predated [the officer’s]
investigation, and it was entirely unconnected with the stop.” (Ibid.)
Similarly, in Brendlin, which also involved the discovery of an outstanding arrest
warrant during an otherwise unlawful detention, our high court noted that the warrant
“supplied legal authorization to arrest [the] defendant that was completely independent of
the circumstances that led the officer to initiate the traffic stop” and that the search was
performed only after the warrant’s existence was confirmed. (Brendlin, supra, 45 Cal.4th
at p. 271.) The court further observed that “[a] warrant is not reasonably subject to
interpretation or abuse.” (Ibid.) Thus, the court concluded that “[t]he challenged
evidence was . . . the fruit of the outstanding warrant, and was not obtained through
exploitation of the unlawful traffic stop.” (Ibid.)
While we recognize that defendant’s parolee status is different from the arrest-
warrant intervening circumstance present in both Strieff and Brendlin because an arrest
warrant places a duty on law enforcement to make an arrest, here, too, defendant’s status
as a parolee “predated Officer [Croucher’s] investigation” and “was entirely unconnected
with the stop.” (Strieff, supra, 136 S.Ct. at p. 2062.) Defendant’s parolee status
“supplied legal authorization to [search] defendant that was completely independent of
the circumstances that led the officer to initiate the [detention].” (Brendlin, supra,45 Cal.4th at p. 271.)
13
In addition, as with an outstanding arrest warrant, parolee status “is not reasonably
subject to interpretation,” although it may be subject to “abuse.” (Brendlin, supra,45 Cal.4th at p. 271; cf. People v. Reyes (1998) 19 Cal.4th 743, 752 [a parole search
may violate the Fourth Amendment if it is “arbitrary, capricious or harassing”]; § 3067,
subd. (d) [“It is not the intent of the Legislature to authorize law enforcement officers to
conduct [parole] searches for the sole purpose of harassment”].) “Under California
statutory law, every inmate eligible for release on parole ‘is subject to search or seizure
by a . . . parole officer or other peace officer at any time of the day or night, with or
without a search warrant or with or without cause.’ (Pen.Code, § 3067, subd. (b)(3).)”
(People v. Schmitz (2012) 55 Cal.4th 909, 916.) Inmates are notified of the search
condition before their release. (Cal. Code Regs., tit. 15, §§ 2510, 2511.) And, as in
Strieff and Brendlin, the officer did not perform the search until after he became aware
of his authority to do so. (See Strieff, supra, 136 S.Ct. at p. 2063; Brendlin, supra, at
p. 271.)
Thus, under the principles articulated in Strieff and Brendlin and based on the
facts before us, we conclude that because the search occurred only after the officer
learned defendant was on parole, defendant’s parolee status constituted an intervening
circumstance as his parolee status predated the detention, was not subject to
interpretation, and supplied entirely independent legal authorization for the search.
(See Strieff, supra¸136 S.Ct. at p. 2062; Brendlin, supra, 45 Cal.4th at p. 271.)
3. Flagrancy and Purposefulness of Official Misconduct
The third factor, the flagrancy and purposefulness of official misconduct, “is
generally regarded as the most important because ‘it is directly tied to the purpose of the
exclusionary rule—deterring police misconduct.’ ” (Brendlin, supra, 45 Cal.4th at
p. 271.)
In Strieff, the Supreme Court found no flagrancy where an officer unlawfully
stopped the defendant after surveilling a house that was the subject of an anonymous tip
14
regarding “ ‘narcotics activity.’ ”7 (Strieff, supra, 136 S.Ct. at p. 2059.) Over the course
of a week, the officer observed that the residence frequently hosted visitors who left a
few minutes after their arrival. (Ibid.) The officer detained the defendant after he exited
the house and walked to a nearby convenience store. (Id. at p. 2060.) After obtaining the
defendant’s identification and relaying the information to dispatch, the officer learned the
defendant had an outstanding warrant for his arrest. (Ibid.) The officer arrested the
defendant and searched him, finding drugs and related paraphernalia. (Ibid.)
The Court determined that the officer “was at most negligent” in detaining the
defendant because he “made two good-faith mistakes.” (Strieff, supra, 136 S.Ct. at
p. 2063.) First, the officer “lacked a sufficient basis to conclude that [the defendant] was
a short-term visitor who may have been consummating a drug transaction” because he
failed to observe when the defendant arrived at the house. (Ibid.) Second, because the
officer lacked information regarding the length of the defendant’s visit, the officer should
have engaged in a consensual encounter with the defendant, instead of demanding the
defendant speak to him. (Ibid.)
The Court concluded that “these errors in judgment hardly r[o]se to a purposeful
or flagrant violation of [the defendant’s] Fourth Amendment rights.” (Strieff, supra,
136 S.Ct. at p. 2063.) “While [the officer’s] decision to initiate the stop was mistaken,
his conduct thereafter was lawful. The officer’s decision to run the warrant check was a
‘negligibly burdensome precautio[n]’ for officer safety. [Citation.] And [the officer’s]
actual search of [the defendant] was a lawful search incident to arrest. [Citation.] [¶]
Moreover, there [was] no indication that this unlawful stop was part of any systemic or
recurrent police misconduct. To the contrary, all the evidence suggest[ed] that the stop
was an isolated instance of negligence that occurred in connection with a bona fide
7
The prosecution conceded at the suppression hearing that the stop was unlawful.
(Strieff, supra, 136 S.Ct. at p. 2060.)
15
investigation of a suspected drug house,” based on the anonymous tip and the officer’s
personal observations. (Ibid.)
In Brendlin, an officer saw a vehicle with expired registration tags and learned
“through dispatch that the car’s registration had expired two months earlier but that a
renewal application was ‘in process.’ ” (Brendlin, supra, 45 Cal.4th at p. 265.) The
officer stopped the vehicle “in order to investigate the vehicle’s registration” despite
“the temporary [registration] sticker in the rear window” because in his experience “such
stickers sometimes belonged to a different vehicle or had been falsified.” (Id. at p. 271.)
The officer obtained the driver’s license and asked the defendant, a passenger, to identify
himself. (Id. at pp. 265-266.) After verifying that the defendant was “a parolee at large
and had an outstanding no-bail warrant for his arrest,” the officer arrested him. (Id. at
p. 266.) During an ensuing search, police found a syringe cap on defendant, drugs and
paraphernalia on the driver, and methamphetamine manufacturing materials in the
backseat of the car. (Ibid.)
Our high court determined that the officer’s misconduct was not flagrant,
concluding that although the officer lacked reasonable suspicion “to justify a temporary
detention to permit further investigation, the insufficiency was not so obvious as to make
one question [the officer’s] good faith in pursuing an investigation of what he believed
to be a suspicious registration, nor does the record show that he had a design and purpose
to effect the stop ‘in the hope that something [else] might turn up.’ ”8 (Brendlin, supra,
45 Cal.4th at p. 271.) “In particular, there [was] no evidence at all that the deputy
‘invented a justification for the traffic stop in order to have an excuse to run [a] warrant
check[ ]’ [citation] or that a search of the vehicle or its occupants was the ‘ultimate goal’
of the initial unlawful detention. [Citations.]” (Id. at p. 272.) Rather, the court
8
As in Strieff, the prosecution in Brendlin conceded that the stop was not
supported by reasonable suspicion of criminal activity. (Brendlin, supra, 45 Cal.4th at
p. 268.)
16
characterized the circumstance as “ ‘a chance discovery of an outstanding arrest warrant’
in the course of a seizure that [was] later determined to be invalid.” (Ibid.)
We conclude similarly here. Officer Croucher testified that he approached and
spotlighted defendant’s vehicle as part of his investigation into a security guard’s report
of a “possible vehicle burglary,” and after he learned from the guard that two individuals
on bicycles were using flashlights to look into cars. Defendant’s vehicle was suspicious
to Officer Croucher because “it was in a dark area,” parked in the lot of what the officer
believed to be a closed business. The security guard had directed Officer Croucher to the
lot. The other few vehicles in the lot were unoccupied, the buildings were dark, and no
one was walking in the lot. Officer Croucher stated that he suspected defendant “may or
may not have been related to the subjects that we were looking for” and that he
“inten[ded] to detain [defendant] based on a reasonable suspicion.” Officer Croucher
searched defendant’s vehicle only after he learned defendant was on parole.
There is no evidence that Officer Croucher’s actions were “pretextual or in bad
faith” (Brendlin, supra, 45 Cal.4th at p. 271) or any “indication that this [detention]
was part of any systemic or recurrent police misconduct” (Strieff, supra, 136 S.Ct. at
p. 2063). As in Brendlin, “there is no evidence at all that [Officer Croucher] ‘invented
a justification’ ” to detain defendant “ ‘in order to have an excuse to run [a] [records]
check’ [citation] or that a search of the vehicle or [defendant] was the ‘ultimate goal’ of
the initial . . . detention. [Citations.]” (Brendlin, supra, at p. 272.) Rather than pursuing
a fishing expedition, Officer Croucher was conducting an investigation based on a 911
call reporting “a possible vehicle burglary” in an adjacent parking lot.
Defendant argues that “this was not a case involving a good faith mistake by the
officer, but rather a flagrant example of a detention made without any reasonable basis
for the officer to have articulable suspicion that [defendant] was engaged in any
wrongdoing.” However, “[f]or the violation to be flagrant, more severe police
misconduct is required than the mere absence of proper cause for the seizure.” (Strieff,
17
supra, 136 S.Ct. at p. 2064, citing Kaupp v. Texas (2003) 538 U.S. 626, 628, 633
[finding flagrant misconduct where police arrested the defendant in his home after they
were denied a warrant and at least some of the officers “were conscious that they lacked
probable cause to arrest”].) Defendant points to no police misconduct here apart from the
lack of reasonable suspicion to detain.
As in Strieff, Officer Croucher was investigating a report of suspected criminal
activity. (See Strieff, supra, 136 S.Ct. at p. 2059.) A security guard had called 911 to
report “a possible vehicle burglary.” The guard relayed to Officer Croucher when he
arrived on scene that there were two “suspicious individuals on bikes” using flashlights
to look into cars. Officer Croucher then observed defendant fully reclined in the
passenger seat of a car parked in a dark lot the security guard directed him to, which was
adjacent to the parking lot where the guard had seen the suspicious individuals. No other
people were in the lot and the businesses were seemingly closed. Officer Croucher felt
he “had reasonable suspicion, based on what the security guard told [him], that
[defendant] may or may not have been related to the subjects that we were looking for.”
Although Officer Croucher’s belief that he had legal cause to detain defendant
“was mistaken, his conduct thereafter was lawful.” (Strieff, supra, 136 S.Ct. at p. 2063.)
Officer Croucher’s uncontested decision to run a criminal history check using
defendant’s name and date of birth “was a ‘negligibly burdensome precautio[n]’ for
officer safety.” (Ibid.; see also People v. Lopez (2019) 8 Cal.5th 353, 363 & fn. 4.) His
subsequent search of defendant was lawful because defendant was on parole. (§ 3067,
subd. (b)(3).)
Thus, because there is no evidence that Officer Croucher’s actions were
pretextual, in bad faith, or part of recurrent police misconduct, we determine that Officer
Croucher’s conduct was neither flagrant nor purposeful. (See Strieff, supra, 136 S.Ct. at
p. 2063; Brendlin, supra, 45 Cal.4th at p. 271.)
18
4. Durant and Bates: Application of the Attenuation Doctrine Pre-
Strieff to the Discovery of a Suspect’s Search Condition
The Courts of Appeal have considered whether the postdetention discovery of a
search condition constituted an intervening circumstance for attenuation purposes. In
People v. Durant (2012) 205 Cal.App.4th 57, 66 (Durant), the officer had stopped the
defendant earlier on the same day as the detention at issue and learned at that time that
the defendant was on probation with search conditions. (Id. at pp. 60-61.) Later that day,
the officer activated his patrol car’s lights after observing what he believed to be a traffic
violation and was then alerted by his partner that the driver, the defendant, was the person
he had stopped earlier. (Id. at p. 61.) A search of the defendant’s person produced a
handgun. (Ibid.) The First District Court of Appeal determined that “any illegality in
the initial traffic detention was attenuated by [the defendant’s] probation search
condition,” in part because “[t]he search condition supplied legal authorization to search
that was completely independent of the circumstances leading to the traffic stop” and the
officer was aware of the condition before the search. (Id. at p. 66.)
In Bates, a different panel of this court chose not to “adopt” Durant’s reasoning
and concluded that the defendant’s probation search condition was an insufficient
attenuating circumstance to remove the taint from the unlawful stop based on the facts
before the court. (Bates, supra, 222 Cal.App.4th at p. 69; see id. at pp. 69-71.) There,
sheriff’s deputies were investigating a reported theft by a Black male wearing navy blue
clothing and driving a gold van. (Id. at p. 63.) One of the deputies learned that the
defendant matched the suspect’s general description and was on felony probation with a
search condition. (Ibid.) The deputy directed another deputy to drive to the defendant’s
apartment complex and “stop the gold van used by [the] defendant’s family if he saw it
leave the complex.” (Ibid.) A couple hours after the theft was reported, the deputy at the
defendant’s apartment complex stopped a tan car exiting an adjacent mobilehome park
after it was broadcast on the radio “that a person matching the assailant’s general
19
description was walking west toward the mobilehome park.” (Id. at p. 63.) “[T]he sole
observation [the deputy] made about the tan car was that there were people in it. Though
the testimony [was] vague, it appears that when he stopped the car he could see a White
female driver, a Black male in the front passenger seat, and a third passenger in the
backseat.” (Id. at p. 64.) The Bates court determined that the detention was unlawful and
held that the defendant’s probation search condition was not an intervening circumstance
given the facts before the court, which involved purposeful officer misconduct. (Id. at
pp. 67, 69-71; see also People v. Kidd (2019) 36 Cal.App.5th 12, 22-23 [citing Bates and
stating that “[i]f the People had raised the issue [of attenuation], we would not have found
[the defendant’s] parole search condition served to attenuate the taint of the illegal
detention”].)
The Bates court did “not read Durant to stand for the proposition that discovery
after the fact of a probation search condition will sanitize any unlawful detention without
regard to the circumstances surrounding that seizure.” (Bates, supra, 222 Cal.App.4th at
p. 70.) The Bates court found that “[a] probation search condition . . . is a discretionary
enforcement tool and therefore a less compelling intervening circumstance than an arrest
warrant,” and observed that Durant’s “intervening circumstances analysis proceeds on
the implicit assumption that a probation search condition is the same as the arrest warrant
present in People v. Brendlin.” (Bates, supra, at p. 70.)
The Bates court expressed concern “with applying Durant to the facts [before it],
as doing so would open the door to random vehicle detentions for the purpose of locating
probationers having search conditions.” (Bates, supra, 222 Cal.App.4th at p. 70.) While
Bates took “no issue with the lawfulness of probation search conditions, nor with the
ability of law enforcement to conduct suspicionless searches of known probationers,”
the court stated its “discomfort . . . in extending these concepts to situations where an
individual’s probation status is wholly unknown to law enforcement at the time of the
20
initial detention and is used only after the fact to justify an otherwise unlawful search.”
(Ibid.)
We distinguish Bates on its facts. Unlike the case before us, Bates did not involve
a search that occurred only after the officer coincidentally discovered a search condition
following an unlawful detention. Instead, in Bates, the deputy, who was looking for the
defendant and apparently knew that he was on probation with a search condition, stopped
a car similar, but not a match, to the perpetrator’s van without knowing the defendant
was in it a couple hours after the crime was reported, demanded identification, and upon
learning the defendant’s identity, seized the defendant’s person. (Bates, supra, 222
Cal.App.4th at pp. 63-64.) We read the Bates decision as declining to find that the
defendant’s probation search condition was an intervening circumstance given the
officer’s purposeful misconduct and the fact that the officer’s postdetention actions were
not compelled, as would have been the case with an arrest warrant. (Id. at pp. 70-71; see
Strieff, supra, 136 S.Ct. at p. 2063 [observing that the defendant’s arrest “was a
ministerial act that was independently compelled by the pre-existing warrant”].)
We conclude that a parole search condition may constitute an intervening
circumstance depending on the facts of the case. The three attenuation factors must be
weighed. While a search condition, which provides discretion to the officer, is different
from an arrest warrant, which compels an officer to make an arrest, it may constitute an
intervening circumstance that can support a finding of attenuation where, as here, there is
no evidence of flagrant misconduct.
Although the Bates court expressed “discomfort” in the after-the-fact use of a
probation search condition unknown at the time of the initial illegal detention “to justify
an otherwise unlawful search” (Bates, supra, 222 Cal.App.4th at p. 70), we observe that
any intervening circumstance analyzed under the attenuation doctrine necessarily arises
after unlawful police conduct. As stated, “exclusion may not be premised on the mere
fact that a constitutional violation was a ‘but-for’ cause of obtaining evidence.” (Hudson,
21
supra, 547 U.S. at p. 592.) And while we understand the Bates court’s concern regarding
“random vehicle detentions” (Bates, supra, at p. 70), such detentions would likely qualify
as flagrant police misconduct under the third attenuation factor and mandate suppression
of the evidence obtained during the ensuing searches (see Strieff, supra, 136 S.Ct. at
p. 2064; Brendlin, supra, 45 Cal.4th at p. 272).
In Strieff, the Supreme Court rejected the contention that the prevalence of
outstanding arrest warrants would lead to “dragnet searches,” observing that the
attenuation factors “take account of the purpose and flagrancy of police misconduct.
Were evidence of a dragnet search presented . . . , the application of the . . . factors could
be different.” (Strieff, supra, 136 S.Ct. at p. 2064.) Likewise, in Brendlin, our high court
disagreed with the defendant’s contention that suppression was “necessary to deter the
police from randomly stopping citizens for the purpose of running warrant checks,”
because “[w]here [a] seizure is flagrantly or knowingly unconstitutional or is otherwise
undertaken as a fishing expedition, the third . . . factor will make it unlikely that the
People would be able to demonstrate an attenuation of the taint of the initial unlawful
seizure.” (Brendlin, supra, 45 Cal.4th at p. 272.) Importantly, “[t]he exclusionary rule
exists to deter police misconduct,” and it is “[t]he third factor of the attenuation doctrine
[that] reflects that rationale by favoring exclusion only when the police misconduct is
most in need of deterrence—that is, when it is purposeful or flagrant.” (Strieff, supra,
at p. 2063.)
5. Conclusion
Based on the principles articulated in Strieff and Brendlin and our weighing of the
three attenuation factors as applied to the facts here, we determine that Officer
Croucher’s discovery of defendant’s parolee status sufficiently dissipated any taint from
the unlawful detention. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.) Although Officer Croucher presumably conducted the search shortly after he
detained defendant, the search occurred only after Officer Croucher learned defendant
22
was on parole. Defendant’s status as a parolee predated and was unconnected to the
detention, supplied independent legal authorization for the search, and was not subject to
interpretation. (See Strieff, supra, 136 S.Ct. at p. 2062; Brendlin, supra, 45 Cal.4th at
p. 271; see also Durant, supra, 205 Cal.App.4th at p. 66.) Those circumstances, coupled
with the significant fact that Officer Croucher did not engage in flagrant or purposeful
misconduct, lead us to conclude that suppression is unwarranted. (See Strieff, supra, at
pp. 2062-2063; Brendlin, supra, at pp. 271-272.)
Accordingly, because Officer Croucher’s discovery of defendant’s parolee status
attenuated the connection between the detention and the evidence seized during the
parole search, the motion to suppress was properly denied.
IV. DISPOSITION
The judgment is affirmed.
23
BAMATTRE-MANOUKIAN, J.
I CONCUR:
ELIA, ACTING P.J.
People v. McWilliams
H047253
Danner, J., concurring and dissenting.
I respectfully disagree with the majority’s conclusion that the trial court did not err
in denying McWilliams’s motion to suppress. I agree that Officer Croucher had no
reasonable suspicion that McWilliams had committed a crime and join the majority’s
analysis of that question. (Maj. opn. ante, at pp. 7–11.) However, in my view the
immediate discovery of McWilliams’s parole status did not dissipate the taint of the
illegal detention—to the contrary, it was a direct and predictable consequence of it.
Therefore, I would conclude that the trial court erred in denying the motion to suppress
and would reverse the judgment.
As the majority recognizes, the prosecution bears the burden of demonstrating a
legal justification for the officer’s warrantless search. (People v. Redd (2010) 48 Cal.4th
691, 719; see also People v. Bower (1979) 24 Cal.3d 638, 644.) The burden includes
demonstrating sufficient attenuation to purge the taint of unlawful conduct. (People v.
Boyer (2006) 38 Cal.4th 412, 449; Dunaway v. New York (1979) 442 U.S. 200, 218;
Brown v. Illinois (1975) 422 U.S. 590, 604.)
In the present case, there is no dispute that Officer Croucher detained McWilliams
at the moment he instructed McWilliams to get out of his vehicle. Croucher testified that,
for “officer safety,” he would give this instruction to exit the vehicle during “most car
stops . . . or most suspicious vehicles that [he] c[a]me across.” At that point, with a
spotlight trained on him and two officers standing nearby, McWilliams would not have
reasonably felt free to leave the parking lot. (See People v. Zamudio (2008) 43 Cal.4th
327, 341.)
I agree with the majority that the facts as found by the trial court do not support a
conclusion that Officer Croucher when he detained McWilliams had a reasonable
articulable suspicion that McWilliams may have been involved in criminal activity.
However, I disagree with the majority that we should not therefore apply the usual
remedy to such a violation of the Fourth Amendment—namely suppression of any
evidence gained in the subsequent search.
After Officer Croucher ordered McWilliams out of his vehicle, Croucher asked
McWilliams for identification, which McWilliams then retrieved from the car with
Croucher’s permission. Croucher conducted a records check and learned that
McWilliams was “on active and searchable CDC[R] parole.” The district attorney did not
present any evidence at the suppression hearing regarding the actions that Officer
Croucher and his fellow officer took after they learned McWilliams was on parole. It is
also noteworthy that the district attorney did not assert in the trial court the application of
the attenuation doctrine. The majority opinion, therefore, affirms the trial court on a
basis that was arguably not preserved for appeal and about which the prosecution elicited
little evidence. (See People v. Nottoli (2011) 199 Cal.App.4th 531, 560–561 & fn. 14
[“Under California law . . . the People generally may not raise on appeal a new theory
that was not raised at the original suppression hearing.”]; cf. People v. Brendlin (2008) 45
Cal.4th 262, 267, fn. 1 (Brendlin).)
Nevertheless, the majority concludes—as urged by the Attorney General on
appeal—that the parole search was sufficiently attenuated from the illegal detention
because the search occurred after Officer Croucher learned of McWilliams’s unrelated
parole status, and there is no indication that Croucher intended to perform a search when
he approached McWilliams’s vehicle. (Maj. opn. ante, at pp. 5, 14–15.)
I agree with the majority that the first attenuation factor—temporal proximity
between the unlawful detention and the discovery of the evidence—supports application
of the exclusionary rule because there is no evidence that “ ‘substantial time’ ” elapsed
between the detention and search of McWilliams’s vehicle. (See Utah v. Strieff (2016)
136 S.Ct. 2056, 2062 (Strieff).)
As for the second factor—the presence of intervening circumstances—in my view,
the officers’ discovery of McWilliams’s parole status after the detention and before
2
conducting the vehicle search does not constitute an intervening circumstance sufficient
to overcome the taint of the illegal detention. “The attenuation doctrine evaluates the
causal link between the government’s unlawful act and the discovery of evidence.”
(Strieff, supra, 136 S.Ct. at p. 2061.) In Strieff, the Supreme Court concluded that the
discovery of a valid arrest warrant—resulting from a request for identification and
records check during a pedestrian stop—was an intervening circumstance that “strongly
favors the State.” (Id. at p. 2062.) The court explained that a warrant is a “judicial
mandate” (id. at p. 2062) that an officer has a “sworn duty” (ibid.) to carry out, and the
“arrest of Strieff thus was a ministerial act that was independently compelled by the pre-
existing warrant.” (Id. at p. 2063.) The decision to arrest Strieff was not a discretionary
one made by the officer, and “it was undisputedly lawful to search Strieff as an incident
of his arrest to protect [the officer’s] safety.” (Ibid.) Similarly, in Brendlin, in which the
California Supreme Court upheld the application of the attenuation doctrine to an
intervening circumstance of a valid arrest warrant, the court observed that “[a] warrant is
not reasonably subject to interpretation or abuse.” (Brendlin, supra, 45 Cal.4th at p. 271.)
McWilliams’s parole status and attendant suspicionless search condition
admittedly predated the detention and were otherwise unconnected to Officer Croucher’s
initial actions. However, McWilliams’s parole status differs from that of a person subject
to an arrest warrant because a parole search condition is “a discretionary enforcement
tool and therefore a less compelling intervening circumstance than an arrest warrant.”
(People v. Bates (2013) 222 Cal.App.4th 60, 70 (Bates).)
Because a suspicionless parole search is reasonably subject to abuse by law
enforcement (cf. Brendlin, supra, 45 Cal.4th at p. 271), the existence of discretion,
combined with the seemingly routine nature of Officer Croucher’s request that
McWilliams produce his identification for a records check, leads me to conclude that the
intervening circumstance (i.e., discovery of McWilliams’s parole status) does not break
the causal chain here. Rather, it was foreseeable that the detention and routine records
3
check could result in discovery that McWilliams was on parole (or probation) and thus
subject to a suspicionless search condition, given that more than half a million people are
under parole or probation supervision in California. “ ‘California’s adult supervised
probation population is around 548,000 – the largest of any state in the nation, more than
twice the size of the state’s prison population, almost four times larger than its jail
population and about six times larger than its parole population.’ ” (People v. Quinn
(2021) 59 Cal.App.5th 874, 879–880; see also id. at p. 880 [“ ‘[L]ike incarceration,
probation affects already marginalized populations in troubling ways. Black Americans
make up 13% of the U.S. adult population, but 30% of those under community
supervision.’ ”].)
In Brendlin, the California Supreme Court stated, “ ‘It is only in the unusual case
where the police, after a questionable stop, discover that an occupant is wanted on an
arrest warrant that the intervening circumstances exception will apply.’ ” (Brendlin,
supra, 45 Cal.4th at p. 272.) Given the number of people under criminal supervision in
California, this characterization of exceptional circumstance loses its force in the context
of a probation or parole search. Therefore, I would conclude that the discovery of
McWilliams’s parole status is a link in the chain between his unlawful detention and the
search of his vehicle, not a sufficient intervening cause that weighs measurably against
suppression. (See United States v. Garcia (9th Cir. 2020) 974 F.3d 1071, 1077–1080.)
Regarding the third, “ ‘particularly significant’ ” factor (Strieff, supra, 136 S.Ct. at
p. 2062)—the purpose and flagrancy of the official misconduct—this factor “favor[s]
exclusion only when the police misconduct is most in need of deterrence.” (Id. at
p. 2063.) The purpose of the exclusionary rule itself, of course, is to deter violations of
the Fourth Amendment. “The [exclusionary] rule is calculated to prevent, not to repair.
Its purpose is to deter—to compel respect for the constitutional guaranty in the only
effectively available way—by removing the incentive to disregard it.” (Elkins v. United
4
States (1960) 364 U.S. 206, 217; see also Davis v. United States (2011) 564 U.S. 229,
236–237.)
In my judgment, the district attorney did not present sufficient evidence to support
application of the attenuation doctrine here. The line between the illegal detention and
the officer’s search is both short and direct. I recognize that Officer Croucher testified
that he thought there was reasonable suspicion McWilliams “may or may not have been
related to” the two bicycle riders, and the trial court concluded there was reasonable
suspicion for the detention and further investigation. However, the objective justification
for the detention of McWilliams was exceedingly minimal. I see no constitutionally
appropriate basis for a conclusion that a man reclining in a car in the early evening hours
in a public parking lot may be involved in criminal activity.
In addition, Officer Croucher admitted that he ordered McWilliams out of his car
in accordance with Croucher’s typical practice when confronting a suspicious vehicle.
Croucher also immediately requested identification from McWilliams’s to conduct a
records check. Croucher did not explain why he asked McWilliams for identification or
why he did not run a check on the license plate or engage McWilliams in conversation
about the reported possible vehicle burglary. Either Croucher did not understand the
Fourth Amendment standard (a conclusion which itself supports application of the
exclusionary rule) or he unlawfully detained McWilliams and requested identification
“ ‘ “in the hope that something might turn up.” ’ ” (Bates, supra, 222 Cal.App.4th at pp.
70-71.) Again, such an action would call for application of the exclusionary rule, rather
than deny the need for its deterrent effect.
The majority concludes that Officer Croucher’s conduct was not flagrant because
it was not “pretextual, in bad faith, or part of recurrent police misconduct.” (Maj. opn.
ante, at p. 18.) I respectfully disagree that the officer’s actions here do not raise a broader
issue of police misconduct.
5
Officer Croucher was essentially on a fishing expedition when he turned into the
parking lot next to the one from which the security guard reported two people on bicycles
had been looking into cars. Any concerns about officer safety here arose from
Croucher’s own actions in deciding to approach McWilliams’s car. McWilliams was
sleeping or lying in his car early in the evening in a public parking lot, which itself raises
no concerns about criminal activity. It bears emphasizing that there was no particular
exigency supporting Croucher’s actions—the original report itself lacked any observation
of an actual crime.
If Officer Croucher were concerned about McWilliams’s safety, he could have
asked McWilliams about it. Instead he shined his spotlight on McWilliams and ordered
him out of the car. Croucher then told McWilliams to retrieve his identification from his
car (seemingly in contradiction to Croucher’s expressed fears of officer safety,
presumably about the potential presence of a hidden weapon) and checked on
McWilliams’s status. Croucher’s testimony was that ordering people out of vehicles is
his routine practice when making vehicle stops or checking on suspicious vehicles. But if
the detention itself is illegal—which this one was—then the subsequent search is a direct
and inevitable consequence of the officer’s illegal action.
In the majority’s view, the officer’s conduct was not a flagrant violation of the
Fourth Amendment. I would agree that, viewed solely in isolation and without any
consideration of larger context, Officer Croucher could have made an honest mistake that
does not necessarily call for application of the exclusionary rule. However, there is a
growing recognition that seemingly small constitutional violations can add up to
problems of significant national dimensions. As recently stated by a colleague on another
Court of Appeal, “Nearly a century ago Justice Benjamin Cardozo wrote: ‘The great
tides and currents which engulf the rest of men do not turn aside in their course and pass
the judges by.’ [Citation.] Nor should they. As our broader cultural views on racial
injustice evolve, courts and judges are compelled to acknowledge and confront the
6
problem. (See, e.g., B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 31 [471 P.3d
329] (conc. opn. of Liu, J.) [citing ‘the troubling racial dynamics that have resulted in
state-sanctioned violence, including lethal violence, against Black people throughout our
history to this very day’]; Utah v. Strieff (2016) . . ., 136 S.Ct. 2056, 2070–2071] (dis.
opn. of Sotomayor, J.) [‘it is no secret that people of color are disproportionate victims of
this type of scrutiny’ in suspicionless stops].)” In re Edgerrin J. (2020) 57 Cal.App.5th
752, 770–771 (conc. opn. of Dato, J.).)1
Although Brendlin—itself decided more than twelve years ago and under quite
different circumstances—supports the majority’s decision, it does not compel it. And
certainly, the California and United States Supreme Court have shown themselves willing
to reconsider Fourth Amendment doctrines when considering the proper balance between
law enforcement and privacy interests. (See, e.g., People v. Lopez (2019) 8 Cal.5th 353,
365; People v. Ovieda (2019) 7 Cal.5th 1034, 1038.)
Officer Croucher made a number of discretionary decisions here, none of which
was dictated by any direct evidence of criminal activity or supported by any particular
exigency or danger. The officer’s decisions led to an illegal detention and a search of
someone who had done nothing more than—as far the officer knew—reclined his seat in
a car in a public parking lot in the early evening. In my view, the close connection
between the illegal detention and the search, the absence of any reasonable suspicion of
criminal activity, the lack of any exigency or emergency, the highly discretionary actions
of the officer, and the officer’s own description of his actions as part of his regular
practice all counsel against application of the attenuation doctrine. On this record, the
trial court should have granted the motion to suppress.
1
The race of McWilliams himself is not established by the record on appeal,
although presumably it was known to those involved in the proceedings in the trial court.
The issue with respect to application of the attenuation doctrine under these
circumstances is the uncontrolled exercise of discretion by the police and concomitant
concerns about the influence of bias, whether explicit or unconscious.
7
For these reasons, I respectfully dissent from the majority’s decision to affirm the
judgment.
8
______________________________________
Danner, J.
H045525
People v. McWilliams