People v. McWilliams ( 2023 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
DUVANH ANTHONY MCWILLIAMS,
Defendant and Appellant.
S268320
Sixth Appellate District
H045525
Santa Clara County Superior Court
C1754407
February 23, 2023
Justice Kruger authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Groban,
Jenkins, and Cantil-Sakauye* concurred.
Justice Liu filed a concurring opinion.
*
Retired Chief Justice of California, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
PEOPLE v. MCWILLIAMS
S268320
Opinion of the Court by Kruger, J.
Responding to a report of suspicious activity in the area, a
police officer unlawfully detained a bystander who had no
apparent connection to the report. The officer ran a records
search and learned that the bystander, Duvanh Anthony
McWilliams, was on parole and subject to warrantless,
suspicionless parole searches. The officer proceeded to search
McWilliams and his vehicle, where the officer found an unloaded
gun, ammunition, drugs, and drug paraphernalia.
As a general rule, evidence seized as a result of an
unlawful search or seizure is inadmissible against the defendant
in a subsequent prosecution. But the law permits use of the
evidence when the causal connection “between the lawless
conduct of the police and the discovery of the challenged
evidence has ‘become so attenuated as to dissipate the taint.’ ”
(Wong Sun v. United States (1963) 371 U.S. 471, 487.) Here, the
Court of Appeal held that the officer’s discovery of McWilliams’s
parole search condition sufficiently attenuated the connection
between the unlawful detention and the contraband found in
McWilliams’s vehicle. The Court of Appeal relied on cases
allowing the admission of evidence seized incident to arrest on
a valid warrant, where the warrant was discovered during an
unlawful investigatory stop. (Utah v. Strieff (2016) 579 U.S. 232(Strieff); People v. Brendlin (2008) 45 Cal.4th 262 (Brendlin).)
1
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
We now reverse. Unlike an arrest on an outstanding
warrant, a parole search is not a ministerial act dictated by
judicial mandate (Strieff, supra, 579 U.S. at p. 240), but a matter
of discretion. We conclude the officer’s discretionary decision to
conduct the parole search did not sufficiently attenuate the
connection between the officer’s initial unlawful decision to
detain McWilliams and the discovery of contraband. The
evidence therefore was not admissible against him.
I.
Early one evening in January 2017, Officer Matthew
Croucher of the San Jose Police Department responded to a
report of a possible vehicle burglary in a business parking lot.
When he arrived on the scene, a security guard told him she had
seen two “suspicious individuals on bikes” shining flashlights
into parked cars.
Officer Croucher drove through the parking lot but did not
see anything noteworthy. He then drove through an adjacent
parking lot. There he found about four or five parked cars, one
of which was occupied. The occupant of the car was McWilliams,
who was fully reclined in the passenger seat. McWilliams did
not appear to be sleeping, just “hanging out.”
Officer Croucher waited for backup, then approached the
vehicle and instructed McWilliams to exit. At the suppression
hearing, Croucher testified this was for safety reasons; it was
his usual practice “with most car stops that [he] do[es], or most
suspicious vehicles that [he] come[s] across.” After McWilliams
exited the vehicle, Croucher asked for his identification and
permitted McWilliams to retrieve the identification from the
vehicle. Croucher then performed a records check and learned
that McWilliams was “on active and searchable [California
2
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
Department of Corrections] parole.” Croucher proceeded to
search both McWilliams and the vehicle, from which he seized a
firearm, drugs, and drug paraphernalia.
McWilliams was charged with multiple drug and weapons
offenses. He filed a motion to suppress the evidence found in his
vehicle. (See Pen. Code, § 1538.5.) He argued, among other
things, that the evidence should be excluded as the fruits of a
detention conducted in violation of the Fourth Amendment to
the United States Constitution.
The trial court denied the motion, concluding the
detention was lawful. The court reasoned that Officer Croucher
had reasonable suspicion to detain McWilliams based on the
security guard’s 911 call reporting suspicious activity in the
area. McWilliams pleaded guilty to three counts of the criminal
information and received a negotiated sentence of seven years
in state prison.
McWilliams appealed the denial of the suppression
motion. A divided Court of Appeal affirmed. (People v.
McWilliams (Mar. 8, 2021, H045525) [nonpub. opn.].) Unlike
the trial court, the Court of Appeal concluded the officer lacked
reasonable suspicion to detain McWilliams, since McWilliams
neither matched the security guard’s description of the
individuals involved in the suspicious activity nor was engaged
in any conduct “suggestive of criminal activity.” But the
appellate court nonetheless upheld the trial court’s denial of the
suppression motion, reasoning that the officer’s discovery of the
parole search condition sufficiently attenuated the connection
between the officer’s unlawful detention of McWilliams and the
evidence seized during the search. The court likened the
discovery of the parole search condition to the discovery of the
3
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
arrest warrants in Strieff, supra, 579 U.S. 232 and Brendlin,
supra, 45 Cal.4th 262, which the courts held to be sufficiently
attenuating. Like the arrest warrants in those cases, the parole
search condition here “predated the detention, was not subject
to interpretation, and supplied entirely independent legal
authorization for the search.” The court further concluded the
evidence was admissible because the unlawful detention was
not “pretextual, in bad faith, or part of recurrent police
misconduct.”
Justice Danner concurred in part and dissented in part.
She agreed with the majority that the initial detention was
unlawful, but disagreed that the evidence seized from
McWilliams’s vehicle was nonetheless admissible. In her view,
the discovery of the parole search condition was not an
intervening circumstance that dissipated the taint of the
unlawful detention, since Officer Croucher had no obligation to
perform a search upon discovering the parole search condition
but instead exercised his discretion to do so. Justice Danner also
disagreed with the majority’s conclusion that “the officer’s
actions here do not raise a broader issue of police misconduct,”
given Officer Croucher’s thin rationale for detaining
McWilliams; his testimony that it is his routine practice to order
people out of suspicious vehicles; and the “growing recognition
that seemingly small constitutional violations can add up to
problems of significant national dimensions.” (People v.
McWilliams, supra, H045525 (conc. & dis. opn. of Danner, J.),
citing, inter alia, Strieff, supra, 579 U.S. at p. 254 (dis. opn. of
Sotomayor, J.) [“it is no secret that people of color are
disproportionate victims” of unlawful, suspicionless stops].)
The disagreement between the justices of the Court of
Appeal in this case mirrors a similar division among Courts of
4
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
Appeal that have considered the attenuating effect of a
probation (as opposed to parole) search condition. (Compare
People v. Durant (2012) 205 Cal.App.4th 57, 66 [concluding that
the “illegality in the initial traffic detention was attenuated by
appellant’s probation search condition”] with People v. Bates
(2013) 222 Cal.App.4th 60, 71 (Bates) [declining to adopt
Durant’s reasoning and reaching the opposite conclusion on the
facts].) We granted review to consider the proper application of
the attenuation doctrine to the officer’s discovery of the parole
search condition in this case.1
II.
The Fourth Amendment to the United States Constitution
protects the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures.”2 The right is primarily enforced through the
1
Although all parties assume a similar analysis would
apply to both parole and probation searches, our analysis here
focuses on parole searches like the search at issue in this case.
In this court, the Attorney General has taken the view
that the Court of Appeal erred in concluding the discovery of
McWilliams’s parole status sufficiently attenuated the
connection between the unlawful detention and the subsequent
search. The Santa Clara District Attorney’s Office, which
handled this matter in the trial court, has filed an amicus curiae
brief supporting the judgment of the Court of Appeal.
2
The California Constitution similarly protects the “right of
the people to be secure in their persons, houses, papers, and
effects against unreasonable seizures and searches.” (Cal.
Const., art. I, § 13.) But under the so-called truth-in-evidence
provision of the state Constitution, “ ‘issues relating to the
suppression of evidence derived from governmental searches
and seizures are reviewed under federal constitutional
5
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
exclusionary rule, “a deterrent sanction that bars the
prosecution from introducing evidence obtained by way of a
Fourth Amendment violation.” (Davis v. United States (2011)
564 U.S. 229, 231–232 (Davis); see Strieff, supra, 579 U.S. at
p. 237.) Where it applies, the exclusionary rule forbids
admission of both the “ ‘primary evidence obtained as a direct
result of an illegal search or seizure’ ” and “ ‘evidence later
discovered and found to be derivative of an illegality’ ” —
familiarly known as the “ ‘ “fruit of the poisonous tree.” ’ ”
(Strieff, at p. 237, quoting Segura v. United States (1984) 468
U.S. 796, 804.)
The exclusionary rule does not, however, apply in every
case involving a Fourth Amendment violation. Balancing the
benefits of the exclusionary remedy against its costs, the United
States Supreme Court has fashioned various exceptions to the
exclusionary rule, including the so-called attenuation doctrine.
(Strieff, supra, 579 U.S. at pp. 237–238; see Davis, supra, 564
U.S. at p. 237.) The attenuation doctrine holds that,
notwithstanding the exclusionary rule, “[e]vidence 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.’ ” (Strieff, at
p. 238, quoting Hudson v. Michigan (2006) 547 U.S. 586, 593
(Hudson).) In conducting the attenuation inquiry, courts are
standards.’ ” (People v. Macabeo (2016) 1 Cal.5th 1206, 1212,
quoting People v. Troyer (2011) 51 Cal.4th 599, 605; see Cal.
Const., art. I, § 28, subd. (f)(2).) We accordingly focus on federal
constitutional standards in our analysis in this case.
6
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
guided by three factors first set out in Brown v. Illinois (1975)
422 U.S. 590, 603–604 (Brown): (1) the “temporal proximity”
between the unlawful conduct and the discovery of evidence;
(2) the “presence of intervening circumstances”; and (3) the
“purpose and flagrancy of the official misconduct.” (See Strieff,
at p. 239.) Once the defendant establishes a Fourth Amendment
violation, the prosecution bears the burden of establishing
admissibility under this exception to the exclusionary rule.
(Brown, at p. 604.)
In Brendlin, supra, 45 Cal.4th 262, this court considered
how the attenuation doctrine applies when an officer unlawfully
seizes an individual and then discovers that the individual has
an outstanding arrest warrant. In that case, a sheriff’s deputy
had unlawfully stopped a vehicle to investigate expired
registration tabs, on a hunch that the temporary operating
permit in the window might belong to a different vehicle. The
deputy asked the occupants to identify themselves, ran a records
check, and discovered that the passenger, Brendlin, had an
outstanding no-bail arrest warrant. The officer arrested
Brendlin and searched him incident to the arrest, finding drugs
and drug paraphernalia. (Id. at pp. 265–266.)
We analyzed the three Brown factors to determine
whether the incriminating evidence was admissible
notwithstanding the unlawful stop. We acknowledged that the
first factor, temporal proximity, weighed against attenuation
because “only a few minutes elapsed” between the unlawful stop
and the search. (Brendlin, supra, 45 Cal.4th at p. 270.) But we
placed little weight on this factor, noting that the timeline is
typical of cases in which an investigatory stop leads to the
discovery of an outstanding arrest warrant, and in such
circumstances this factor is “ ‘outweighed by the others.’ ”
7
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
(Ibid.) As for the second factor, we concluded that an arrest on
a valid warrant and subsequent search incident to arrest is an
intervening circumstance that “tends to dissipate the taint
caused by an illegal traffic stop.” (Id. at p. 271.) We explained
that “[a] warrant is not reasonably subject to interpretation or
abuse,” and that “the no-bail warrant [t]here supplied legal
authorization to arrest defendant that was completely
independent of the circumstances that led the officer to initiate
the traffic stop.” (Ibid.) Finally, as to the third factor, we found
the deputy’s misconduct was neither purposeful nor flagrant.
The deputy testified that, in his experience, temporary stickers
on a vehicle with expired registration “sometimes belonged to a
different vehicle or had been falsified.” (Ibid.) Although the
deputy had insufficient grounds to make the stop, “the
insufficiency was not so obvious as to make one question [his]
good faith in pursuing an investigation of what he believed to be
a suspicious registration, nor [did] the record show that he had
a design and purpose to effect the stop ‘in the hope that
something [else] might turn up.’ ” (Ibid., quoting Brown, supra,
422 U.S. at p. 605.)
Nearly a decade later, the United States Supreme Court
granted review in Strieff to address the same issue as Brendlin.
(Strieff, supra, 579 U.S. at p. 237.) In Strieff, a police detective
investigated an anonymous tip that a certain residence was the
site of narcotics activity. After observing visitors enter the
house and leave after a few minutes, the detective came to
believe that the house occupants were dealing drugs. The
detective, Officer Fackrell, stopped one visitor, Strieff, as he
exited the house. Strieff turned over his identification to
Fackrell upon request and Fackrell learned that Strieff had an
outstanding arrest warrant for a traffic violation. Fackrell
8
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
arrested Strieff, searched him incident to the arrest, and found
methamphetamine and drug paraphernalia. (Id. at pp. 235–
236.)
Assuming with the parties that the investigatory stop was
unlawful, the high court determined that the discovery of the
arrest warrant sufficiently attenuated the connection between
the stop and the ensuing discovery of drug-related evidence.
(Strieff, supra, 579 U.S. at p. 239.) As to the first Brown factor,
the court concluded that the close temporal proximity between
the stop and the search favored suppression. (Ibid.) But the
high court found the second factor, the presence of intervening
circumstances, “strongly favor[ed] the State.” (Id. at p. 240.)
The court explained: “In this case, the warrant was valid, it
predated Officer Fackrell’s investigation, and it was entirely
unconnected with the stop. And once Officer Fackrell discovered
the warrant, he had an obligation to arrest Strieff. ‘A warrant
is a judicial mandate to an officer to conduct a search or make
an arrest, and the officer has a sworn duty to carry out its
provisions.’ [Citation.] Officer Fackrell’s arrest of Strieff thus
was a ministerial act that was independently compelled by the
pre-existing warrant. And once Officer Fackrell was authorized
to arrest Strieff, it was undisputedly lawful to search Strieff as
an incident of his arrest to protect Officer Fackrell’s safety.” (Id.
at pp. 240–241, citing Arizona v. Gant (2009) 556 U.S. 332, 339.)
Finally, the court concluded that the third Brown factor also
“strongly favor[ed] the State” because the officer “was at most
negligent” in conducting the unlawful investigatory stop.
(Strieff, at p. 241.) The court explained that there was “no
indication that this unlawful stop was part of any systemic or
recurrent police misconduct”; rather, “all the evidence suggests
that the stop was an isolated instance of negligence that
9
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
occurred in connection with a bona fide investigation of a
suspected drug house.” (Id. at p. 242.) The court accordingly
held the evidence seized in the search incident to Strieff’s arrest
was admissible notwithstanding the initial unlawful stop. (Id.
at p. 243.)
III.
Here, as in Brendlin and Strieff, an officer conducted a
concededly unlawful seizure: The Court of Appeal in this case
concluded, and all parties now agree, that Officer Croucher
violated the Fourth Amendment when he ordered McWilliams
out of his vehicle with no basis to suspect McWilliams of
involvement in any criminal activity. And here, as in Brendlin
and Strieff, the officer conducted a records check after that
unlawful detention. But unlike in Brendlin and Strieff, the
records check did not turn up an outstanding warrant for arrest.
Rather, it revealed that McWilliams was on parole and subject
to a parole condition authorizing warrantless, suspicionless
searches of his person and his vehicle. (See Pen. Code, § 3067,
subd. (b)(3).) The question now before us is whether the
evidence discovered in the ensuing search should have been
suppressed under the exclusionary rule, or whether the evidence
was properly admitted because the discovery of McWilliams’s
parole search condition sufficiently attenuated the connection
between the unlawful detention and the search. To answer the
question, we consider how the three Brown factors apply in this
distinct context.
A.
The first Brown factor, temporal proximity between the
unlawful detention and the search, requires no extended
discussion. As Strieff explains, the high court has “declined to
10
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
find that this factor favors attenuation unless ‘substantial time’
elapses between an unlawful act and when the evidence is
obtained.” (Strieff, supra, 579 U.S. at p. 239.) All agree that
here, because no “ ‘substantial time’ ” separated Officer
Croucher’s initial decision to detain McWilliams and his
subsequent decision to search him and his vehicle, this factor
weighs against a finding of attenuation. (Ibid.)
The central subject of disagreement in this case concerns
whether, and to what extent, the discovery of a parole search
condition disrupts the causal connection between the unlawful
stop and the discovery of evidence. This is the concern of the
second Brown factor, the presence of intervening circumstances.
(See Strieff, supra, 579 U.S. at p. 238.) McWilliams argues the
discovery of a parole search condition, unlike the discovery of an
arrest warrant, can never qualify as such an intervening
circumstance. He argues it is therefore unnecessary to engage
in the Brown attenuation analysis at all — but if we do, we
should assign no attenuating significance to the discovery of the
parole search condition under the second Brown factor. In the
alternative, McWilliams argues, and the Attorney General
agrees, that discovery of a parole search condition does trigger
the Brown attenuation analysis, but on its own does very little
to attenuate the taint of illegality under the second prong of
Brown. The District Attorney of Santa Clara County,
participating as an amicus curiae in support of the judgment of
the Court of Appeal, disagrees with McWilliams on both counts;
in the District Attorney’s view, discovery of a parole search
condition is at least as attenuating a circumstance as the
discovery of an arrest warrant, and strongly supports finding
attenuation in this case and others like it.
11
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
At the outset, we decline McWilliams’s invitation to hold
that discovery of a parole search condition can never qualify as
an intervening circumstance that tends to attenuate the link
between an unlawful stop and an ensuing search. Many of the
arguments McWilliams makes in support of this proposed
categorical rule are squarely foreclosed by precedent.
McWilliams argues, for instance, that the discovery of the parole
search condition is itself the “fruit” of the illegal detention, and
for that reason cannot attenuate the primary taint. We rejected
much the same argument in Brendlin. We explained that, under
long-standing high court precedent, exclusion “ ‘may not be
premised on the mere fact that a constitutional violation was a
“but-for” cause of obtaining evidence.’ ” (Brendlin, supra, 45
Cal.4th at p. 268, quoting Hudson, supra, 547 U.S. at p. 592.)
Discovery of an arrest warrant, we explained, is not “ ‘ “ ‘fruit of
the poisonous tree’ simply because it would not have come to
light but for the illegal actions of the police.” ’ ” (Brendlin, at
p. 268; accord, Strieff, supra, 579 U.S. at p. 235.) The same is
true when a records check reveals a parole search condition
rather than a warrant.
McWilliams also attempts to analogize the discovery of a
parole search condition following an unlawful detention to the
discovery of contraband that comes into plain view because of
an unlawful search or seizure. In the latter situation, where a
police officer’s illegal conduct “caused the evidence to be placed
in plain view” — for instance, where an unlawful order to exit a
car leads to the observation of contraband on the driver’s
person — the police may not rely on the plain view doctrine to
justify a warrantless seizure. (U.S. v. Davis (10th Cir. 1996) 94
F.3d 1465, 1470.) But as McWilliams’s own cases explain, the
rationale for this rule is specific to the plain view doctrine,
12
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
whose “ ‘first and most fundamental prerequisite to reliance
upon plain view as a basis for a warrantless seizure . . . is that
“the initial intrusion which brings the police within plain view
of such an article” is itself lawful.’ ” (Ibid. [“ ‘The [plain view]
doctrine serves to supplement the prior justification — whether
it be a warrant for another object, hot pursuit, search incident
to lawful arrest, or some other legitimate reason for being
present unconnected with a search directed against the
accused.’ ”].) This is not a plain view case, and plain view cases
do not help McWilliams here.
McWilliams’s invocation of the conditions on valid parole
searches, as set forth in People v. Sanders (2003) 31 Cal.4th 318,
333 (Sanders), is likewise unavailing. Sanders holds that, to
conduct a valid parole search, an officer must be aware of the
search condition at the time; it is not enough for the officer to
learn of the condition after the search is done. McWilliams
suggests that by parity of reasoning, the discovery of a parole
search condition should not operate to validate a prior
unauthorized detention. But for essentially the same reasons
we explained in Brendlin, the rule of Sanders is inapposite here.
(See Brendlin, supra, 45 Cal.4th at p. 273.) No one here
contends the post-detention discovery of a parole search
condition should retroactively validate the initial decision to
detain McWilliams. The illegality of the detention is
undisputed. The question is whether the mid-detention
discovery of a parole search condition is an intervening
circumstance that justifies making an exception to the
exclusionary rule for the evidence turned up in that search.
That is a question Sanders does not answer.
Ultimately, however, we need not and do not decide here
whether or under what circumstances discovery of a parole
13
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
search condition could ever sufficiently dissipate the taint from
an initial unlawful detention. It suffices for us to conclude that
the discovery of the parole search condition had no considerable
attenuating effect under the circumstances of this case.
In reaching a contrary conclusion, the Court of Appeal
emphasized the evident similarities between a valid arrest
warrant and a parole search condition: Like an arrest warrant,
a parole search condition necessarily predates the detention and
is authorized by state law independent of the detention. (See
Pen. Code, § 3067.) The court’s reliance on these features was
understandable because these are the very same features we
mentioned in Brendlin when we concluded that the discovery of
a valid arrest warrant was an intervening circumstance that
attenuated the causal chain between the unlawful stop and the
incriminating evidence. (Brendlin, supra, 45 Cal.4th at p. 271.)
But despite their similarities, the arrest warrants at issue in
Brendlin and Strieff differ from parole search conditions in a
critical respect: As judicial mandates to take a suspect into
custody, the warrants not only authorized, but compelled,
further action by the officer.
Although we did not mention this point explicitly in
Brendlin, the court emphasized it in Strieff. After laying out a
set of general observations about the lack of connection between
the unlawful stop and the existence of the arrest warrant, the
court went on to explain that “once Officer Fackrell discovered
the warrant, he had an obligation to arrest Strieff. ‘A warrant
is a judicial mandate to an officer to conduct a search or make
an arrest, and the officer has a sworn duty to carry out its
provisions.’ [Citation.] Officer Fackrell’s arrest of Strieff thus
14
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
was a ministerial act that was independently compelled by the
pre-existing warrant.” (Strieff, supra, 579 U.S. at p. 240.)3
By contrast to the arrest warrant in Strieff, a parole
search condition merely authorizes a suspicionless search of the
parolee for purposes of monitoring the parolee’s rehabilitation
and compliance with the terms of parole. It is not a judicial
mandate, nor does it compel further action of any sort. Whether
to take further action is largely within law enforcement’s
discretion; the search of a parolee is generally permissible, so
long as the search is not arbitrary, capricious, or harassing.
(People v. Reyes (1998) 19 Cal.4th 743, 754 (Reyes).)
We agree with other courts that have held that the
absence of compulsion to continue the interaction after an initial
unlawful detention makes a difference in the attenuation
analysis. (See State v. Christian (Kan. 2019) 445 P.3d 183, 190
[distinguishing Strieff and finding insufficient attenuation
where officer could choose whether to arrest defendant for
having no proof of insurance].) As a general rule, the law
recognizes that an intervening circumstance can break the
chain of causation when that circumstance involves “an act of a
third person or other force which by its intervention prevents
the actor from being liable for harm” the actor played a
substantial role in bringing about. (Rest.2d Torts, § 440; see
Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573, fn. 9.)
The corollary is that, as a general matter, defendant’s “own
3
The District Attorney suggests that the arrest warrant in
Strieff — which was for a traffic violation — would not have
required custodial arrest under California law. Be that as it
may, the high court’s analysis presumed that arrest was
compelled under the Utah arrest warrant at issue in the case.
15
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
conduct cannot be an intervening cause sufficient to defeat a
finding of causation. ‘A superseding cause is something culpable
that intervenes . . . , some action of a third party that makes the
plaintiff’s injury an unforeseeable consequence of the
defendant’s negligence.’ ” (Whitlock v. Brueggemann (7th Cir.
2012) 682 F.3d 567, 584; see also, e.g., Von der Heide v. Com.,
Dept. of Transp. (Pa. 1998) 718 A.2d 286, 289.)
The rule of Strieff comports with this ordinary
understanding of causation principles: As Strieff conceived of it,
the discovery of the arrest warrant represented a form of
compulsion by a third party magistrate that left the officer with
no effective choice but to carry out an arrest. (Strieff, supra, 579
U.S. at p. 240.) This case, however, involves no such third party
compulsion; the discovery of McWilliams’s parole status merely
gave the detaining officer the discretion to conduct a
warrantless, suspicionless search. At least absent other factors,
the detaining officer’s discovery of a parole search condition, and
subsequent decision to conduct a parole search, does
comparatively little to disrupt the causal chain.
This conclusion about the relative attenuating force of
parole search conditions fits with the core concern underlying
the Brown attenuation analysis. As Brown made clear, the
factors must be applied in such a way as to ensure the officer is
not “unduly exploit[ing]” an unlawful search or seizure to
produce incriminating evidence. (Brown, supra, 422 U.S. at
p. 603.) The existence of a valid arrest warrant significantly
alleviates such exploitation concerns because the warrant
represents a “ ‘judicial mandate’ ” to take further action (Strieff,
supra, 579 U.S. at p. 240), that “is not reasonably subject to
interpretation or abuse” (Brendlin, supra, 45 Cal.4th at p. 271,
citing Hudson, supra, 547 U.S. at p. 595 and U.S. v. Green (7th
16
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
Cir. 1997) 111 F.3d 515, 522). Because a parole search
condition, by contrast, entails no such compulsion but instead
invokes law enforcement discretion, it raises greater concerns
about the course of events connecting an unlawful stop to an
ensuing search. There is a danger that an officer who has
unlawfully stopped a bystander without reasonable suspicion
will regard the discovery of a parole search condition as a license
to continue pursuing a baseless hunch, rather than fairly
considering whether a search is appropriate to assess the
individual’s rehabilitation and monitor “his transition from
inmate to free citizen.” (Reyes, supra, 19 Cal.4th at p. 752.) In
other words, in the hands of the very same officer who conducted
an illegal stop, there is a risk that the discretion to conduct a
parole search will lead to the exploitation of that illegal conduct,
rather than severing the causal connection between the stop and
the search.
McWilliams and the Attorney General agree that because
the choice to conduct a parole search was within Officer
Croucher’s discretion, rather than a matter of compulsion, the
discovery of the parole search condition does little to attenuate
the connection between Officer Croucher’s unlawful detention of
McWilliams and the evidence at issue. But the District
Attorney, acting as amicus curiae in support of the Court of
Appeal’s judgment, argues that the absence of compulsion to
conduct a parole search ought to be irrelevant to the analysis.
We are unpersuaded.
In support of the argument, the District Attorney observes
that there was also discretion at play in Brendlin and Strieff:
Although the officers in those cases may have been under
judicial compulsion to take the suspects into custody after they
discovered outstanding arrest warrants, the District Attorney
17
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
points out, the officers were not compelled to search the suspects
incident to arrest and instead chose to do so as a matter of
discretion. True enough, but the argument mistakes the point.
We do not hold that any element of discretion necessarily
defeats a claim of attenuation; we simply conclude, rather, that
the absence of compulsion naturally weakens the claim. In
Strieff, the court explained that once Officer Fackrell discovered
an outstanding warrant for Strieff’s arrest, the discovery “broke
the causal chain between the unconstitutional stop and the
discovery of evidence by compelling Officer Fackrell to arrest
Strieff.” (Strieff, supra, 579 U.S. at p. 242.) Once that causal
chain was broken by the compulsion to arrest, the ultimate
decision to conduct a search incident to arrest was attributable
to the legally required arrest itself — “to protect Officer
Fackrell’s safety” as he carried out the arrest — and not the
initial unlawful decision to stop Strieff. (Id. at p. 241, citing
Arizona v. Gant, supra, 556 U.S. at p. 339.) Here, there was no
comparable compulsion for Officer Croucher to take any
particular action regarding McWilliams, and thus no
comparable force breaking the causal chain between Croucher’s
unconstitutional detention of McWilliams and his discretionary
decision to search.
The District Attorney next argues that an officer’s
discretion to conduct a search is constrained in various ways
that limit the opportunities for “interpretation or abuse.”
(Brendlin, supra, 45 Cal.4th at p. 271.) The authorized scope of
a parole search is ordinarily clear; the officer must be aware of
the search condition before conducting the search (Sanders,
supra, 31 Cal.4th at p. 333); and the officer may not conduct a
search that is arbitrary, capricious, or harassing (Reyes, supra,19 Cal.4th at p. 752). These constraints mean, for instance, that
18
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
an officer may not conduct a particular parole search in a
harassing manner, or for reasons unrelated to any legitimate
penological purpose, such as personal animosity toward the
parolee. (Ibid.; see In re Anthony S. (1992) 4 Cal.App.4th 1000,
1004.) These limitations on parole searches are certainly
important, but they do not answer the Fourth Amendment
question at hand. The issue before us does not concern the
validity of the parole search, standing alone, but instead
concerns whether a court must exclude evidence in response to
an immediately preceding, concededly unconstitutional
detention. And as already explained, despite the limitations
governing parole searches, the law leaves an officer substantial
discretion whether to conduct such searches, which weakens the
case for finding a break in the causal chain connecting that
unlawful detention and the discovery of evidence.
Taking a different tack, the District Attorney argues that
the discovery of a parole search condition must have at least as
much attenuating force as the discovery of an arrest warrant
because a parolee has a “significantly diminished expectation of
privacy in comparison to a mere arrestee.” (See Samson v.
California (2006) 547 U.S. 843, 852 [parolees “have severely
diminished expectations of privacy by virtue of their status
alone”].) This argument, too, confuses the issue. To be sure,
parolees’ diminished expectation of privacy is the reason the
Fourth Amendment generally permits suspicionless parole
searches. (Id. at p. 847.) But the question before us does not
involve the constitutionality of parole searches; it is whether the
discovery of the parole search condition in this case sufficiently
attenuated the taint stemming from an initial unconstitutional
detention. To answer this question, we evaluate “the causal link
between the government’s unlawful act and the discovery of
19
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
evidence.” (Strieff, supra, 579 U.S. at p. 238.) For purposes of
this causation analysis, McWilliams’s expectations of privacy as
a parolee have no particular relevance.
Finally, the District Attorney points to an out-of-state case
as an example of the attenuating force of a parole search
condition. (State v. Fenton (Idaho Ct.App. 2017) 413 P.3d 419.)
There, the police officer who made an unlawful stop discovered
the defendant was on parole and called the defendant’s
probation officer, who then decided to conduct a search after he
arrived on the scene. (Id. at pp. 421–423.) This case is unlike
Fenton, however, in that the officer who initially stopped
McWilliams and the officer who decided to conduct the parole
search were one and the same. To decide this case, and most
cases like it, we need not decide whether the third party
probation officer’s decision to search in Fenton sufficiently
attenuated the discovery of incriminating evidence from the
initial unlawful stop. We likewise need not consider whether,
as the Attorney General argues, the discovery of a parole search
condition might sufficiently dissipate the taint of an initial
unlawful stop when there is a substantial period of time between
the discovery and a parole search. It suffices to conclude that in
this case — where the same officer who conducted the illegal
detention also decided, minutes later, to conduct a parole search
that yielded incriminating evidence — the discovery of the
parole search condition did relatively little to break the causal
connection between the two events.
B.
We turn, then, to the third and final Brown factor, the
flagrancy and purposefulness of police misconduct. While the
first two factors identify forces — time and intervening
20
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
circumstances — that may tend to attenuate the causal
connection between the misconduct and the discovery of
evidence, the focus of the third factor is different: It “ ‘is directly
tied to the purpose of the exclusionary rule — deterring police
misconduct.’ ” (Brendlin, supra, 45 Cal.4th at p. 271.) Police
misconduct, the high court has said, is “most in need of
deterrence . . . when it is purposeful or flagrant.” (Strieff, supra,
579 U.S. at p. 241; accord, Brendlin, at p. 271.) The greater the
degree of purposefulness or flagrancy associated with the police
misconduct, the greater the justification required to admit
evidence obtained through the misconduct.4
To the extent McWilliams suggests that Officer Croucher’s
decision to detain him without reasonable suspicion itself
establishes purposeful or flagrant misconduct under the third
Brown factor, the law is to the contrary. Every attenuation case
involves an improper search or seizure, but not every
impropriety rises to the level of purposeful or flagrant illegality.
(Strieff, supra, 579 U.S. at pp. 242–243; see Brendlin, supra, 45
Cal.4th at p. 271.) But as McWilliams emphasizes, here Officer
Croucher’s basis to suspect McWilliams of violating the law was
4
Where neither of the first two Brown factors establishes
sufficient attenuation, courts have held that evidence may be
subject to suppression even absent flagrant or purposeful
conduct. (See U.S. v. Garcia (9th Cir. 2020) 974 F.3d 1071, 1082
[“[E]ven accepting the district court’s finding that the officers
acted in good faith, this fact alone is not enough to justify
admission of the evidence.”]; U.S. v. Bocharnikov (9th Cir. 2020)
966 F.3d 1000, 1005 [same]; U.S. v. Perez-Esparza (9th Cir.
1979) 609 F.2d 1284, 1291 [“[T]he last factor is insufficient to
overcome the lack of attenuation dictated by the first two
factors.”].) Here, however, we find purposeful conduct and so
have no occasion to consider how to weigh the third Brown factor
under different circumstances.
21
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
not merely insufficient — it was essentially nonexistent. The
security guard in a business parking lot had reported suspicious
activity involving two individuals riding bicycles and shining
flashlights into cars. Officer Croucher found McWilliams alone
and reclined inside a car, with no bicycle or flashlight in sight.
Rather than approaching McWilliams to ask him for
information, Officer Croucher instead ordered McWilliams out
of the car for asserted safety concerns, thereby effecting a
seizure of his person. Then, despite these asserted safety
concerns, Officer Croucher allowed McWilliams to return to his
car to retrieve his identification and used that identification to
run a records check.
Officer Croucher may not have acted in bad faith when he
detained McWilliams. But a finding of purposefulness does not
require a showing of bad faith; the law instructs that officers act
purposefully for Brown purposes when they conduct “a
suspicionless fishing expedition ‘in the hope that something
[will] turn up.’ ” (Strieff, supra, 579 U.S. at p. 242, quoting
Taylor v. Alabama (1982) 457 U.S. 687, 691; accord, e.g.,
Brendlin, supra, 45 Cal.4th at pp. 271–272; see Bates, supra,
222 Cal.App.4th at p. 71 [finding purposefulness where officer
stopped a car “without any observation of possible wrongdoing,”
based on “a hunch that [a suspect] might be in the vehicle”].)
One post-Strieff appellate court, for example, has found
purposefulness and flagrancy where an officer stopped the
defendant in an attempt to identify a person connected to a
shooting that occurred two days earlier, “on the basis of a
photograph that provided little meaningful identifying
information to the police besides the race” of the person, and
despite the absence of any indication that the person in the
photograph had committed any crime in the first place. (U.S. v.
22
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
Walker (2d Cir. 2020) 965 F.3d 180, 183; see id. at pp. 184, 188.)
Then, even after it became evident that the defendant was not
the person depicted in the photograph, the officer conducted a
records check that revealed a valid arrest warrant; conducted a
search incident to arrest; and found incriminating evidence.
Notwithstanding Strieff, the court concluded the evidence
should have been suppressed based on consideration of the third
Brown factor. (Walker, at p. 190.) The problem with the stop,
the Second Circuit explained, was “not simply the lack of
reasonable suspicion,” but “the extreme lack of reasonable
suspicion.” (Id. at p. 189.) The court added that reliance on the
photograph to make the stop necessarily “involved
impermissible and manifest stereotyping, which cannot be
characterized as merely negligent conduct.” (Id. at p. 190.) And
even if the initial justification for the stop “were not woefully
anemic,” the officer’s decision to run a records check, even after
he verified the defendant was not the subject of the photograph,
amounted to “a mere fishing expedition.” (Id. at pp. 189–190.)
The Attorney General and District Attorney argue Officer
Croucher’s conduct in this case is comparable to the conduct of
the officer in Strieff, which the court viewed as neither
purposeful nor flagrant but “at most negligent.” (Strieff, supra,
579 U.S. at p. 241.) We are unpersuaded by the comparison. In
Strieff, the officer had observed Strieff exiting what the officer
reasonably believed to be a drug house; his primary error was in
failing to observe how long Strieff remained at the location,
which meant he “lacked a sufficient basis to conclude that Strieff
was a short-term visitor who may have been consummating a
drug transaction.” (Strieff, at p. 241.) In this case, by contrast,
McWilliams had no connection whatsoever with the reported
suspicious activity that prompted Officer Croucher’s
23
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
investigation; he was found alone, seated in a car rather than
riding a bicycle, with nary a flashlight in sight.
Nor do we view the officer’s conduct in this case as
comparable to that in Brendlin, in which we found nothing in
the record to indicate the deputy who instigated the stop was
engaged in a mere fishing expedition. (Brendlin, supra, 45
Cal.4th, supra, at p. 271.) In Brendlin, the officer offered a
justification for the suspicion of criminality that prompted the
traffic stop: that, in his experience, cars bearing expired
registration tabs and temporary stickers are frequently being
operated illegally. Though the justification was insufficient to
justify the stop, we explained that “the insufficiency was not so
obvious as to make one question [the deputy]’s good faith in
pursuing an investigation of what he believed to be a suspicious
registration.” (Ibid.) Here, by contrast, Officer Croucher offered
no basis — rooted in experience or otherwise — for believing
McWilliams was involved in the suspicious parking-lot activity
he had set out to investigate.
Of course, neither is this case on all fours with Walker,
where the investigating officer stopped an individual based on a
perceived resemblance to a photograph of a person who, as far
as the officer knew, had not committed any crime, and where
the two individuals bore no resemblance to one another besides
the color of their skin. But while Walker may have involved
more flagrant misconduct than this case, it also involved a
search conducted after the discovery of a valid arrest warrant;
even so, and despite Strieff, the court in that case concluded that
the discovery was not sufficiently attenuating under the
circumstances of that case. This case, by contrast, concerns a
search conducted after the discovery of a parole condition
authorizing suspicionless searches — a discovery that, for
24
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
reasons already discussed, has meaningfully less attenuating
force than the discovery of a valid arrest warrant. Here we
conclude that the officer’s decision to detain McWilliams merely
because he was in the broad vicinity of reported suspicious
activity was purposeful and further supports applying the
exclusionary rule to deter this type of unconstitutional conduct.
(See Brown, supra, 422 U.S. at p. 600; Strieff, supra, 579 U.S. at
p. 241.)
McWilliams, who is Black, also urges us to find
purposefulness and flagrancy based on an inference that racial
bias may have played a role in Officer Croucher’s decision to
detain him. As McWilliams himself acknowledges, however,
nothing in the factual record supports that inference. But he
asks us to consider a more general point: that “seemingly small
constitutional violations can add up to problems of significant
national dimensions.” (People v. McWilliams, supra, H045525
(conc. & dis. opn. of Danner, J.), citing, inter alia, Strieff, supra,
579 U.S. at p. 254 (dis. opn. of Sotomayor, J.) [“it is no secret
that people of color are disproportionate victims” of unlawful,
suspicionless stops].) The Attorney General acknowledges this
broader point, and agrees that courts must be mindful about
rules that encourage officers to conduct stops “in an arbitrary
manner” and “risk treating members of our communities as
second-class citizens.” (Strieff, at p. 252 (dis. opn. of Sotomayor,
J.).) As the Attorney General recognizes, a rule permitting
officers to rely exclusively on discretionary parole search
conditions to purge the taint of unconstitutional, suspicionless
detentions would risk creating such incentives; ultimately, a
more careful approach to the attenuation analysis “is in the
interest of society” as well as “the individuals who experience
the deprivation of their Fourth Amendment rights.”
25
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
In sum, the People have not carried their burden of
establishing the attenuation doctrine applies here. No
substantial time passed between Officer Croucher’s illegal
detention of McWilliams and his seizure of the evidence in this
case. Officer Croucher’s subsequent discovery of McWilliams’s
parole search condition, and his discretionary decision to
conduct the parole search, did little to attenuate the connection
between the unlawful stop and the evidence. And Officer
Croucher’s decision to conduct the stop, without any evident
basis to believe McWilliams was connected to the activity Officer
Croucher set out to investigate, indicates a purposefulness that
further justifies the exclusion of the evidence. We conclude the
evidence Officer Croucher found after his illegal detention of
McWilliams is not admissible.5
5
Although People v. Durant, supra, 205 Cal.App.4th 57,
found attenuation on a different set of facts, we disapprove the
opinion to the extent its reasoning is inconsistent with this
opinion.
26
PEOPLE v. MCWILLIAMS
Opinion of the Court by Kruger, J.
IV.
We reverse the judgment of the Court of Appeal and
remand for further proceedings consistent with this opinion.
KRUGER, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
GROBAN, J.
JENKINS, J.
CANTIL-SAKAUYE, J.*
*
Retired Chief Justice of California, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
27
PEOPLE v. MCWILLIAMS
S268320
Concurring Opinion by Justice Liu
I agree with today’s opinion that Officer Croucher’s
“discretionary decision to conduct the parole search [of
defendant Duvanh McWilliams] did not sufficiently attenuate
the connection between the officer’s initial unlawful decision to
detain McWilliams and the discovery of contraband.” (Maj. opn.,
ante, at p. 2.) Our reasoning focuses on the discretionary nature
of a search pursuant to a parole search condition. (Id. at pp. 14–
17.) I write separately to note that in such circumstances, an
officer’s decision-making may be vulnerable to implicit biases
that result in a heightened risk of exploitation of the unlawful
detention. This reality is a proper consideration under the
second factor of the attenuation doctrine set out in Brown v.
Illinois (1975) 422 U.S. 590, 603–604.
In analyzing whether the discovery of a parole search
condition is an intervening circumstance under the second
Brown factor, today’s opinion says: “By contrast to the arrest
warrant in [Utah v. Strieff (2016) 579 U.S. 232], a parole search
condition merely authorizes a suspicionless search of the parolee
for purposes of monitoring the parolee’s rehabilitation and
compliance with the terms of parole. It is not a judicial
mandate, nor does it compel further action of any sort. Whether
to take further action is largely within law enforcement’s
discretion . . . .” (Maj. opn., ante, at p. 15.) The attenuation
doctrine’s treatment of a search incident to arrest on an
1
PEOPLE v. MCWILLIAMS
Liu, J., concurring
outstanding warrant recognizes the mandatory nature of the
arrest and reasons that “the ultimate decision to conduct a
search . . . [is] attributable to the legally required arrest itself —
‘to protect [the officer]’s safety’ as he carrie[s] out the arrest —
and not the initial unlawful decision to stop [the defendant].”
(Id. at p. 18, quoting Utah v. Strieff, at p. 241.) A search incident
to such an arrest is, as the Attorney General said at oral
argument, “something that operates independently of . . . [the
officer’s] implicit biases.”
The same cannot be said of an officer’s discretionary
decision to conduct a search pursuant to a parole condition.
Empirical studies have shown that “the conditions under which
implicit biases translate most readily into discriminatory
behavior are when people have wide discretion in making quick
decisions with little accountability.” (Kang et al., Implicit Bias
in the Courtroom (2012) 59 UCLA L.Rev. 1124, 1142; see id. at
pp. 1142–1150 [citing studies]; Casey et al., Addressing Implicit
Bias in the Courts (2013) 49 Ct.Rev. 64, 68 & fn. 38 [citing
studies].) As Justice Danner noted in the Court of Appeal, the
issue is not racism in the sense of intentional discrimination. It
is the operation of “attitudes and stereotypes” that “are not
consciously accessible through introspection” and “can function
automatically.” (Kang et al., at p. 1129.) Research confirms
what is no surprise as a matter of common sense: On-the-spot
discretionary decisions are vulnerable to implicit bias because
they are neither constrained by a clear rubric of relevant criteria
nor preceded by extensive deliberation. Where a discretionary
search is preceded by an unlawful detention, the very impulses
that may have given rise to the initial detention may also
contribute to an officer’s decision to conduct the search. Such
impulses may include the well-documented unconscious
2
PEOPLE v. MCWILLIAMS
Liu, J., concurring
“stereotype of Black Americans as violent and criminal.”
(Eberhardt et al., Seeing Black: Race, Crime, and Visual
Processing (2004) 87 J. Personality & Soc. Psychol. 876, 876; see
Hetey & Eberhardt, Racial Disparities in Incarceration Increase
Acceptance of Punitive Policies (2014) 25 Psychol. Sci. 1949.)
Black individuals like McWilliams disproportionately
bear the brunt of discretionary decisions by law enforcement.
“Black Californians are significantly more likely to be stopped
than white Californians, and experiences during stops and
outcomes afterward also vary. . . . Black individuals are more
than twice as likely to be searched as white individuals.”
(Lofstrom et al., Racial Disparities in Law Enforcement Stops
(Oct. 2021) p. 25.) Not only are Black people stopped and
searched more often, but such searches are less likely to yield
evidence or contraband. (Id. at pp. 14–16; see People v.
Tacardon (2022) 14 Cal.5th 235, 264 (dis. opn. of Liu, J.) [citing
Ayres & Borowsky, A Study of Racially Disparate Outcomes in
the Los Angeles Police Department (Oct. 2008) pp. 5–8 [Black
and Hispanic residents of Los Angeles, compared to Whites,
were more likely to be stopped, frisked, searched, and arrested
but significantly less likely to be found with weapons or drugs];
Gross & Barnes, Road Work: Racial Profiling and Drug
Interdiction on the Highway (2002) 101 Mich. L.Rev. 651, 668
[searches of White drivers in Maryland reveal drugs 22% more
often than searches of Black drivers and over 200% more often
than searches of Hispanic drivers]; Note, Discrimination During
Traffic Stops: How an Economic Account Justifying Racial
Profiling Falls Short (2012) 87 N.Y.U. L.Rev. 1025, 1040
[searches of White drivers in Illinois reveal contraband over 50%
more often than searches of non-White drivers]]; cf. Lofstrom et
al., at p. 15 [contraband or evidence is found in 21.4 percent of
3
PEOPLE v. MCWILLIAMS
Liu, J., concurring
searches overall]; Bar-Gill & Friedman, Taking Warrants
Seriously (2012) 106 Nw. U. L.Rev. 1609, 1655 [“police find
evidence in only about 10% to 20% of the total traffic searches”].)
For every search of a Black person that yields contraband, there
are far more — and disproportionately more — searches of
Black people that turn up nothing. These practices are not only
inefficient but also detrimental to building trust between
minority communities and law enforcement. (People v.
Tacardon, at p. 264 (dis. opn. of Liu, J.).)
As today’s decision explains, “[t]here is a danger that an
officer who has unlawfully stopped a bystander without
reasonable suspicion will regard the discovery of a parole search
condition as a license to continue pursuing a baseless hunch,
rather than fairly considering whether a search is appropriate
to assess the individual’s rehabilitation and monitor ‘his
transition from inmate to free citizen.’ [Citation.] In other
words, in the hands of the very same officer who conducted an
illegal stop, there is a risk that the discretion to conduct a parole
search will lead to the exploitation of that illegal conduct, rather
than severing the causal connection between the stop and the
search.” (Maj. opn., ante, at p. 17.) It is appropriate for courts
to recognize, in applying the second factor of Brown’s
attenuation inquiry, that this risk in a given case may be
heightened by the operation of implicit biases, including the
unconscious association between Blackness and criminality.
LIU, J.
4
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. McWilliams
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 3/8/21 – 6th Dist.
Rehearing Granted
__________________________________________________________
Opinion No. S268320
Date Filed: February 23, 2023
__________________________________________________________
Court: Superior
County: Santa Clara
Judge: David A. Cena
__________________________________________________________
Counsel:
William M. Robinson, under appointment by the Supreme Court, and
Marc McKenna, under appointment by the Court of Appeal, for
Defendant and Appellant.
Martin F. Schwarz, Public Defender (Orange), Laura Jose, Chief Public
Defender, Adam Vining, Assistant Public Defender, and Abby Taylor,
Deputy Public Defender, for Orange County Public Defender’s Office as
Amicus Curiae on behalf of Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,
Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant
Attorney General, Catherine A. Rivlin, Karen Z. Bovarick, Seth K.
Schalit and Amit Kurlekar, Deputy Attorneys General, for Plaintiff
and Respondent.
Jeffrey F. Rosen, District Attorney (Santa Clara), and Jeff Rubin,
Deputy District Attorney, for Santa Clara County District Attorney’s
Office as Amicus Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
William M. Robinson
Sixth District Appellate Program
95 South Market Street, Suite 570
San Jose, CA 95113
(408) 241-6171
Amit Kurlekar
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
(415) 510-3810