38 Cal. 4th 1107, 136 P.3d 845, 45 Cal. Rptr. 3d 50, 45 Cal. 4th 262 opinion after USSC remand
Filed 11/24/08; on remand
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S123133
v.
) Ct.App.
3
C040754
BRUCE EDWARD BRENDLIN,
Sacramento
County
Defendant and Appellant.
Super. Ct. No. CRF012703
The issue presented in this case is whether evidence seized in a search
incident to a lawful arrest based upon a valid outstanding warrant nonetheless
must be suppressed because the discovery of the warrant occurred during an
unlawful traffic stop. Case law from other state and federal courts uniformly holds
that the discovery of an outstanding arrest warrant prior to a search incident to
arrest constitutes an intervening circumstance that may?and, in the absence of
purposeful or flagrant police misconduct, will?attenuate the taint of the
antecedent unlawful traffic stop. We join this chorus of cases and reverse the
judgment of the Court of Appeal, which had ordered suppression of the evidence
seized from defendant?s person and from the vehicle in which he was a passenger
on the sole ground that the outstanding warrant would not have been discovered
?[b]ut for the unlawful vehicle stop.?
1
BACKGROUND
Around 1:40 a.m. on November 27, 2001, Sutter County Sheriff?s Deputy
Robert Charles Brokenbrough effected a traffic stop of a brown 1993 Buick Regal
with expired registration tabs on Franklin Avenue in Yuba City. Prior to the stop,
Deputy Brokenbrough confirmed through dispatch that the car?s registration had
expired two months earlier but that a renewal application was ?in process.?
Although Deputy Brokenbrough observed prior to the stop that a temporary
operating permit with the number ?11? (indicating an expiration date at the end of
November) had been taped to the rear window, he could not determine from his
vantage point whether the permit matched the vehicle. He decided to stop the
Buick to investigate further.
Deputy Brokenbrough approached the driver?s side of the Buick and asked
the driver, Karen Simeroth, for her driver?s license. He also asked defendant, the
passenger, to identify himself, since he recognized defendant as one of the
Brendlin brothers, Scott or Bruce, and recalled that one of them had absconded
from parole supervision. During the inquiry, Deputy Brokenbrough observed
receptacles in the car containing substances used in the production of
methamphetamine. In response to the deputy?s inquiry, defendant identified
himself. The deputy returned to his patrol vehicle and verified that defendant was
a parolee at large and had an outstanding no-bail warrant for his arrest. (See Pen.
Code, ?? 3000, subd. (b)(8), 3060.)
After backup arrived, Deputy Brokenbrough ordered defendant out of the
car at gunpoint and placed him under arrest for the parole violation. The entire
episode, from the time Deputy Brokenbrough asked Simeroth for her driver?s
license to his discovery that defendant had an outstanding warrant, lasted a couple
of minutes.
2
Police found an orange syringe cap on defendant?s person during a search
incident to arrest. They found two hypodermic needles (one of which was missing
a syringe cap), two baggies containing a total of 12.43 grams of marijuana, and a
baggie containing 0.46 grams of methamphetamine on Simeroth?s person during a
patsearch and a subsequent search incident to her arrest. Materials used in
manufacturing methamphetamine were found in the back seat of the Buick.
After a hearing on defendant?s motion to suppress, the superior court held
that defendant had not been seized within the meaning of the Fourth Amendment
of the United States Constitution until Deputy Brokenbrough ordered him out of
the car at gunpoint and placed him under arrest and that, even if he had been
seized at the inception of the traffic stop, the stop was lawful. Defendant then
pleaded guilty to manufacturing methamphetamine (Health & Saf. Code,
? 11379.6, subd. (a)) and admitted a prior prison term enhancement (Pen. Code,
? 667.5, subd. (b)). He was sentenced to four years in prison.
The Court of Appeal reversed in a published opinion. It held that a traffic
stop necessarily results in a detention (and, hence, a seizure) (People v. Glaser
(1995) 11 Cal.4th 354, 363) of both the driver and any passengers. The Court of
Appeal further found that the seizure was unlawful in that Deputy Brokenbrough,
who knew that the vehicle?s application to renew its registration was in process
and who had seen the temporary permit in the rear window, had ?at most a hunch?
that ?the temporary operating permit displayed in the window might not belong to
the car and, thus, it was being unlawfully operated as an unregistered vehicle.?
The court ruled that the evidence seized from defendant as well as from the Buick
should have been suppressed on the ground that the evidence would not have been
discovered ?[b]ut for the unlawful vehicle stop.?
This court, in a four-to-three decision, reversed the Court of Appeal and
held that a passenger in a vehicle subject to a traffic stop is not seized within the
3
meaning of the Fourth Amendment in the absence of additional circumstances that
would indicate to a reasonable person that he or she was the subject of the peace
officer?s investigation or show of authority. (People v. Brendlin (2006) 38 Cal.4th
1107, 1111.) The dissenting opinion, authored by Justice Corrigan, argued that a
traffic stop entails the seizure of a passenger even when the driver is the sole target
of police investigation. (Id. at p. 1125.)
The United States Supreme Court granted certiorari and reversed in a
unanimous opinion, holding that a traffic stop subjects a passenger, as well as a
driver, to a seizure within the meaning of the Fourth Amendment. (Brendlin v.
California (2007) 551 U.S. ___ [127 S.Ct. 2400].) The high court remanded the
matter to enable ?the state courts to consider in the first instance whether
suppression turns on any other issue.? (Id. at p. ___ [127 S.Ct. at p. 2410].)
On remand, we granted the Attorney General?s request that the parties be
directed to file supplemental briefing as to whether the existence of defendant?s
outstanding arrest warrant?which was discovered after the unlawful traffic stop
but before the search of his person or the vehicle?dissipated the taint of the
illegal seizure and rendered suppression of the evidence seized unnecessary.1
1
We reject at the outset defendant?s objection, raised for the first time at oral
argument, that the People forfeited this justification by failing to assert it at the
suppression hearing. Although the People may not then have asserted that the
discovery of the outstanding warrant was an intervening circumstance justifying
the search, they did introduce evidence of the outstanding warrant at the
suppression hearing and did argue that the search was authorized by the deputy?s
discovery that defendant was a parolee. Accordingly, defendant had sufficient
opportunity to respond to the claim of attenuation in the trial court, and he does
not claim that he was prejudiced in any way by the People?s shift from a claim of
attenuation based on his parole status to a claim of attenuation based on his
outstanding parole warrant. (People v. Green (1985) 40 Cal.3d 126, 138.) There
is thus no bar to our consideration of the claim of attenuation for the first time on
appeal where, as here, the record is sufficient to support such a finding. (People v.
(footnote continued on next page)
4
DISCUSSION
?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. (People v. Ayala (2000) 24 Cal.4th 243, 279
[99 Cal.Rptr.2d 532, 6 P.3d 193].) 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. (Ibid.)? (People v. Ramos (2004) 34 Cal.4th 494,
505.) In evaluating whether the fruits of a search or seizure should have been
suppressed, we consider only the Fourth Amendment?s prohibition on
unreasonable searches and seizures. (People v. Carter (2005) 36 Cal.4th 1114,
1141.)
The People concede that the traffic stop of the vehicle in which defendant
was traveling was not supported by reasonable suspicion of criminal activity, and
it is clear from the high court?s opinion that the stop effected a seizure of
defendant. It is thus undisputed that defendant was unlawfully seized at the time
(footnote continued from previous page)
Boyer (2006) 38 Cal.4th 412, 449; accord, People v. Foskey (Ill. 1990) 554 N.E.2d
192, 202; State v. Martin (Kan. 2008) 179 P.3d 457, 463; Cox v. State (Md. 2007)
916 A.2d 311, 313, 318 & fn. 4.)
Defendant also contends that the People failed to preserve the issue of
attenuation in the Court of Appeal or present it in their petition for review. We
find that the People adequately presented the issue to the Court of Appeal, to this
court in their petition for review, and to the United States Supreme Court, before
requesting permission to brief it here. Even if the People had failed to preserve the
issue in those courts, however, we would not deem it forfeited, inasmuch as ?the
issues the Attorney General raised have sufficient statewide importance to warrant
an opinion from this court,? and ?this case presents those issues.? (People v.
Braxton (2004) 34 Cal.4th 798, 809.)
5
of the traffic stop. Further, the Court of Appeal was correct in finding that but for
the unlawful traffic stop, Deputy Brokenbrough would not have discovered the
outstanding warrant for defendant?s arrest and would not then have conducted the
search incident to arrest that revealed the contraband. This does not mean,
however, that the fruits of the search incident to that arrest must be suppressed.
?[E]xclusion 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.) ? ?[N]ot . . . all evidence is ?fruit of the poisonous tree? simply
because it would not have come to light but for the illegal actions of the police.
Rather, the more apt question in such a 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.? ? ? (People v. Sims (1993) 5
Cal.4th 405, 445, quoting Wong Sun v. United States (1963) 371 U.S. 471, 487-
488.) ?[B]ut-for cause, or ?causation in the logical sense alone,? [citation] can be
too attenuated to justify exclusion . . . .? (Hudson v. Michigan, 547 U.S. at p. 592;
see also Brown v. Illinois (1975) 422 U.S. 590, 603 (Brown).)
Although the significance of an arrest warrant in attenuating the taint of an
antecedent unlawful traffic stop is an issue of first impression for this court, the
general framework for analyzing a claim of attenuation under the Fourth
Amendment is well settled. (People v. Boyer, supra, 38 Cal.4th at p. 448.) ?[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.? (U.S. v. Crews (1980) 445 U.S. 463, 471.) ?Relevant
factors in this ?attenuation? analysis include the temporal proximity of the Fourth
Amendment violation to the procurement of the challenged evidence, the presence
6
of intervening circumstances, and the flagrancy of the official misconduct.?
(Boyer, supra, 38 Cal.4th at p. 448, citing Brown, supra, 422 U.S. at pp. 603-604.)
Where, as here, the issue is whether the discovery of an outstanding arrest
warrant has attenuated the taint of an antecedent unlawful seizure, other state and
federal courts have likewise invoked the three Brown factors?i.e., the temporal
proximity of the unlawful seizure to the subsequent search of the defendant?s
person or vehicle, the presence of intervening circumstances, and the flagrancy of
the official misconduct in effecting the unlawful seizure. (U.S. v. Simpson (8th
Cir. 2006) 439 F.3d 490, 495; U.S. v. Green (7th Cir. 1997) 111 F.3d 515, 521;
McBath v. State (Alaska Ct.App. 2005) 108 P.3d 241, 248; State v. Frierson (Fla.
2006) 926 So.2d 1139, 1143; State v. Page (Idaho 2004) 103 P.3d 454, 459;
People v. Mitchell (Ill.App.Ct. 2005) 824 N.E.2d 642, 649; State v. Martin, supra,
179 P.3d at p. 463; Birch v. Com. (Ky.Ct.App. 2006) 203 S.W.3d 156, 159; State
v. Hill (La. 1998) 725 So.2d 1282, 1284; Myers v. State (Md. 2006) 909 A.2d
1048, 1062; State v. Thompson (Neb. 1989) 438 N.W.2d 131, 137; State v. Soto
(N.M.Ct.App. 2008) 179 P.3d 1238, 1244-1245, cert. granted (N.M. 2008) 180
P.3d 674; Jacobs v. State (Okla.Crim.App. 2006) 128 P.3d 1085, 1087; Reed v.
State (Tex.App. 1991) 809 S.W.2d 940, 946; see also People v. Hillyard (Colo.
1979) 589 P.2d 939, 940-941 [declining to suppress evidence where the discovery
of the outstanding warrant was preceded by an invalid stop, but without explicitly
invoking each of the above factors]; Ruffin v. State (Ga.Ct.App. 1991) 412 S.E.2d
850, 852-853 [same]; State v. Lamaster (Mo.Ct.App. 1983) 652 S.W.2d 885, 887
[same]; State v. Allen (Or.Ct.App. 2008) 191 P.3d 762, 765-767 [same]; State v.
Rothenberger (Wn. 1968) 440 P.2d 184, 186-187 [same].) Indeed, ?[t]hese factors
have been applied in virtually every federal and state case involving a search
following an alleged unlawful traffic stop.? (People v. Rodriguez (2006) 143
Cal.App.4th 1137, 1143.)
7
We find these authorities, which are consistent with our own case law
concerning attenuation generally (see People v. Boyer, supra, 38 Cal.4th at p.
448), persuasive. Applying the Brown factors to the circumstances here, we
conclude that the outstanding warrant, which was discovered prior to any search of
defendant?s person or of the vehicle, sufficiently attenuated the taint of the
unlawful traffic stop.
As to the first Brown factor, we note that only a few minutes elapsed
between the unlawful traffic stop and the search incident to arrest that uncovered
the challenged evidence. This is the typical scenario ?in essentially every case in
this area.? (McBath v. State, supra, 108 P.3d at p. 248; see U.S. v. Green, supra,
111 F.3d at p. 521 [about five minutes]; State v. Frierson, supra, 926 So.2d at p.
1152 (dis. opn. of Pariente, C.J.) [?no more than a few minutes?]; State v. Page,
supra, 103 P.3d at p. 459 [?a minimal lapse of time?]; State v. Martin, supra, 179
P.3d at p. 463 [?short amount of time?]; State v. Hill, supra, 725 So.2d at p. 1284
[?any time lapse was negligible?]; Cox v. State, supra, 916 A.2d at p. 322 [two
minutes].) We note as well that the close temporal proximity of an unlawful arrest
and a confession worked against a finding of attenuation in Brown itself (Brown,
supra, 422 U.S. at pp. 604-605) and in other cases where the alleged intervening
factor between the illegal police conduct and the challenged evidence was a
volitional act by the defendant, such as resisting arrest or flight. (See U.S. v.
Green, supra, 111 F.3d at p. 522.) In those situations, though, the temporal
proximity between the illegal police conduct and the defendant?s response has a
logical connection in that the closer these two events are in time, the more likely
the defendant?s response was influenced by the illegality or that the illegality was
exploited. (Ibid.) Conversely, where the intervening circumstance is a lawful
arrest under an outstanding arrest warrant, the defendant?s conduct is irrelevant,
8
and the police cannot be said to have exploited the illegal seizure that preceded the
discovery of the outstanding warrant. (Ibid.)
Accordingly, some courts have held that the first Brown factor is not
relevant to the attenuation of the taint of an antecedent illegal seizure where the
intervening circumstance is an outstanding arrest warrant. (E.g., U.S. v. Simpson,
supra, 439 F.3d at p. 495 [the attenuation analysis ?need not focus on the first
Brown factor?]; Reed v. State, supra, 809 S.W.2d at pp. 946-947 [the first Brown
factor ?does not bear on attenuation?].) Other courts have reasoned that the first
Brown factor is nonetheless relevant (and tends to favor suppression of the
evidence) but is not dispositive. (U.S. v. Green, supra, 111 F.3d at p. 521; State v.
Frierson, supra, 926 So.2d at p. 1144; State v. Martin, supra, 179 P.3d at p. 463;
State v. Hill, supra, 725 So.2d at p. 1284; Cox v. State, supra, 916 A.2d at p. 322
[the factor is ?ambiguous?]; see generally Brown, supra, 422 U.S. at p. 603 [?No
single fact is dispositive?].) We need not decide which line of authority is correct
because even the courts in the latter category ?have all but unanimously concluded
that, in this kind of situation, this first Brown factor is outweighed by the others.?
(McBath v. State, supra, 108 P.3d at p. 248.)
As to the second Brown factor, the case law uniformly holds that an arrest
under a valid outstanding warrant?and a search incident to that arrest?is an
intervening circumstance that tends to dissipate the taint caused by an illegal
traffic stop. A warrant is not reasonably subject to interpretation or abuse (see
Hudson v. Michigan, supra, 547 U.S. at p. 595; U.S. v. Green, supra, 111 F.3d at
p. 522), and the no-bail warrant here supplied legal authorization to arrest
defendant that was completely independent of the circumstances that led the
officer to initiate the traffic stop. (State v. Thompson, supra, 438 N.W.2d at p.
137.) Moreover, no search of defendant?s person or of the vehicle was undertaken
until Deputy Brokenbrough had confirmed the existence of the outstanding
9
warrant. (U.S. v. Green, supra, 111 F.3d at p. 523; State v. Lamaster, supra, 652
S.W.2d at p. 887.) The challenged evidence was thus the fruit of the outstanding
warrant, and was not obtained through exploitation of the unlawful traffic stop.
(Reed v. State, supra, 809 S.W.2d at p. 947.)
The third Brown factor, the flagrancy and purposefulness of the police
misconduct, is generally regarded as the most important because ?it is directly tied
to the purpose of the exclusionary rule?deterring police misconduct.? (U.S. v.
Simpson, supra, 439 F.3d at p. 496; see generally Brown, supra, 422 U.S. at p. 604
[deeming this factor ?particularly? relevant].) Defendant contends that the
illegality here was flagrant in that Deputy Brokenbrough ?had no reasonable
suspicion that any occupant of the vehicle had violated the law when he made the
traffic stop? and that he had at most ?a hunch? the driver was operating an
unregistered vehicle. But a mere ?mistake? with respect to the enforcement of our
traffic laws does not establish that the traffic stop was pretextual or in bad faith.
(State v. Frierson, supra, 926 So.2d at p. 1144; see also Cox v. State, supra, 916
A.2d at p. 321.) Deputy Brokenbrough testified that he ordered the traffic stop in
order to investigate the vehicle?s registration, that he did see the temporary sticker
in the rear window prior to the stop, but that (in his experience) the sticker
sometimes belonged to a different vehicle or had been falsified. Although the
People have conceded that this was insufficient to justify a temporary detention to
permit further investigation, the insufficiency was not so obvious as to make one
question Deputy Brokenbrough?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.? (Brown, supra, 422 U.S. at p. 605; see also U.S. v. Simpson, supra, 439 F.3d
at p. 496; McBath v. State, supra, 108 P.3d at p. 250 [no indication that the police
?knowingly overstepped their authority or that their conduct was an egregious
10
misuse of authority?]; State v. Page, supra, 103 P.3d at p. 459 [no evidence that
the illegal seizure was flagrant or for an improper purpose]; State v. Hill, supra,
725 So.2d at p. 1287 [the illegal seizure ?was not particularly egregious and did
not amount to a flagrant abuse of police power?].) In particular, there is 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[]? (People v. Rodriguez, supra, 143
Cal.App.4th at p. 1143) or that a search of the vehicle or its occupants was the
?ultimate goal? of the initial unlawful detention. (State v. Martin, supra, 179 P.3d
at p. 463; see also Myers v. State, supra, 909 A.2d at p. 1067; Reed v. State, supra,
809 S.W.2d at p. 948.)
Defendant contends that suppression is necessary to deter the police from
randomly stopping citizens for the purpose of running warrant checks, but we are
not persuaded. Where the seizure is flagrantly or knowingly unconstitutional or is
otherwise undertaken as a fishing expedition, the third Brown factor will make it
unlikely that the People would be able to demonstrate an attenuation of the taint of
the initial unlawful seizure. (People v. Mitchell, supra, 824 N.E.2d at p. 650
[suppressing the evidence where ?the sole apparent purpose of the detention is to
check for a warrant?].) But ?a chance discovery of an outstanding arrest warrant?
in the course of a seizure that is later determined to be invalid is an intervening
circumstance that does not trigger the same concerns. (Myers v. State, supra, 909
A.2d at p. 1067; accord, Jacobs v. State, supra, 128 P.3d at pp. 1088-1089;
Fletcher v. State (Tex.Ct.App. 2002) 90 S.W.3d 419, 421.) ?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.? (U.S. v. Green, supra, 111 F.3d at p. 523.) Those are precisely the facts
here.
11
Thus, despite the unlawfulness of the initial traffic stop, the facts of this
encounter demonstrate that the drug paraphernalia found on defendant?s person
and in the car was not the fruit of the unlawful seizure. The police searched
defendant?s person and the vehicle only after they discovered a valid outstanding
warrant for his arrest. In connection with that arrest, the police were authorized to
conduct a search incident to it.2 Under these circumstances, the outstanding
warrant sufficiently attenuated the connection between the unlawful traffic stop
and the subsequent discovery of the drug paraphernalia.
Finally, defendant is mistaken in contending that, despite the foregoing,
suppression is required under our decisions in People v. Sanders (2003) 31 Cal.4th
318 and In re Jaime P. (2006) 40 Cal.4th 128. In those cases, we held that a
search cannot be validated by the discovery, after the fact, that the defendant was
subject to a probation or parole search condition. (Jaime P., supra, 40 Cal.4th at
p. 133.) ?This is so, we reasoned, because ?whether a search is reasonable must be
determined based upon the circumstances known to the officer when the search is
conducted.? ? (Ibid., quoting Sanders, supra, 31 Cal.4th at pp. 332, 334; see also
In re Tyrell J. (1994) 8 Cal.4th 68, 96 (dis. opn. of Kennard, J.) [?that a search
may not be justified by a parole search condition of which the searching officer is
unaware, should be dispositive of this case?].) Here, however, Deputy
Brokenbrough never relied on any search condition, and no search in fact occurred
until the deputy discovered an outstanding warrant for defendant?s arrest. Thus,
Sanders and Jaime P. are distinguishable and do not aid defendant. (See McBath
v. State, supra, 108 P.3d at pp. 247-248; State v. Page, supra, 103 P.3d at p. 460;
State v. Hill, supra, 725 So.2d at pp. 1285-1286, fn. 6.)
2
The United States Supreme Court will revisit the scope of this doctrine in
Arizona v. Gant, No. 07-542, certiorari granted February 25, 2008.
12
DISPOSITION
The judgment of the Court of Appeal is reversed.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
13
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Brendlin
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted XXX 38 Cal.4th 1107; on remand from U.S. Supreme Court
__________________________________________________________________________________
Opinion No.
S123133
Date Filed: November 24, 2008
__________________________________________________________________________________
Court:
Superior
County: Sacramento
Judge: Christopher R. Chandler
__________________________________________________________________________________
Attorneys for Appellant:
Elizabeth Campbell, under appointment by the Supreme Court, and James F. Johnson, under appointment
by the Court of Appeal, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Manuel M. Medeiros, State Solicitor General,
Donald E. de Nicola, Deputy State Solicitor General, Robert R. Anderson and Dane R. Gillette, Chief
Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General, John G.
McLean, Janet E. Neeley, Michael A. Canzoneri and Clifford E. Zall, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Elizabeth Campbell
1215 K Street, 17th Floor
Sacramento, CA 95814
(916) 444-8538
Clifford E. Zall
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-5281