• Illegal Detentions and Attenuation of the Taint
• The Fruit of the Poisonous Tree Doctrine
• Implicit Bias 

An illegal detention may poison an otherwise lawful search under the “fruit of the poisonous tree doctrine.”  Intervening circumstances, however, may attenuate that taint, making the subsequent search lawful.  Whether or not the taint of an unlawful detention is attenuated depends upon the circumstances.  (Implicit biases may subconsciously affect an officer’s thinking on these issues.)

Officer Matthew Croucher of the San Jose Police Department responded to a report of a possible vehicle burglary in progress in a business parking lot early one evening in January, 2017.  Upon arrival, he was told by a security guard that she had seen two “suspicious individuals on bikes” shining flashlights into parked cars. Checking the parking lot, Officer Croucher was unable to find anything.  However, in an adjacent parking lot he found defendant Duvanh Anthony McWilliams reclining in the passenger seat of a car, and “just hanging out.” 

With the arrival of backup, Officer Croucher contacted defendant and told him to get out of his car.  The officer later testified that this was his usual practice, done for safety reasons.  Defendant complied.  Asked for identification, defendant retrieved it from his vehicle.  Upon conducting a records check, it was discovered that defendant was “on active and searchable parole.”  (I.e., a “Fourth waiver;” see Pen. Code § 3067(b)(3).) 

Pursuant to defendant’s parole search conditions, Officer Croucher searched both defendant and his vehicle.  The search resulted in the recovery of a firearm, drugs, and drug paraphernalia.  Charged in state court with multiple gun and drug offenses, defendant’s motion to suppress was denied.  In so ruling, the trial court specifically found that defendant had been lawfully detained.  Defendant pled guilty and was sentenced to seven years in prison. 

Upon appeal, the Sixth District Court of Appeal, in a split 2-to-1 unpublished decision, affirmed.  (See People v. McWilliams (6th Dist. Mar. 8, 2021) 2021 Cal.App. Unpub. LEXIS 1470.)  In so holding, however, the appellate court ruled that defendant had been illegally detained (disagreeing with the trial court on this issue), but that (in the opinion of two of the three justices) the evidence was still admissible under an “attenuation of the taint” theory; i.e., the fact that defendant was subject to a Fourth waiver and searched accordingly attenuated the taint of his illegal detention.  defendant appealed to the California Supreme Court.

The California Supreme Court reversed in a unanimous decision.  Under the Fourth Amendment’s “Exclusionary Rule,” “both the ‘primary evidence obtained as a direct result of an illegal search or seizure’ (which includes the illegal detention of an individual) and ‘evidence later discovered and found to be derivative of an illegality’” is subject to suppression.  The legal theory applicable to the latter is most often referred to as the “fruit of the poisonous tree” doctrine.  (Utah v. Strieff (2016) 579 U.S. 232, 237; Segura v. United States (1984) 468 U.S. 796, 804.) 

Following this theory, the Court ruled in this case that the guns and drugs found in defendant’s vehicle, even though located during what was otherwise a lawful Fourth waiver search, were the products of defendant’s illegal detention and therefor subject to suppression. In so ruling, the Court held that the fact that defendant was subject to a Fourth waiver did not, under the circumstances of this case, attenuate the taint of the illegal detention.  Here, it was conceded that defendant had been unlawfully detained.  Specifically, Officer Croucher was investigating the possible burglary of vehicles based upon the security guard’s report to him that she’d seen two individuals on bicycles and with flashlights who were casing locked vehicles in a parking lot.  No such individuals could be found.  However, defendant was soon found in an adjacent parking lot, alone, sitting (or “reclining”) in his own car, with no bicycle and no flashlight.

There was absolutely nothing to indicate that defendant was related in any way to the two individuals the security guard had seen earlier other than by being in the general vicinity.  By ordering him out of his car and requiring him to provide his identification, he had been detained.  This detention was unlawful, there being no evidence to support an argument that he was involved in any criminal activity. 

On its face, the items found in his car were the products of this illegal detention as the “fruit of the poisonous tree.”  However, as noted above, defendant was subject to search and seizure conditions (i.e., a “Fourth waiver.”)  An exception to the applicability of the fruit of the poisonous tree doctrine is when something occurs between an illegal detention and a subsequent search which, except for the prior illegal detention, would have been lawful.  The label attached to this type of an exception is “attenuation of the taint.”

It was argued by the State that the existence of a Fourth waiver attenuated the taint of defendant’s illegal detention.  The primary authority for this argument is the California Supreme Court case of People v. Brendlin (2008) 45 Cal.4th 262, and the U.S. Supreme Court case of Utah v. Strieff (2016) 579 U.S. 232. In both, an illegal detention was followed by the discovery of arrest warrants for each respective defendant.  Arrested on the warrants, each was searched incident to arrest, both resulting in the recovery of illegal drugs. Ultimately in both cases, the existence of an arrest warrant was held to attenuate the taint of the preceding illegal detentions.  The State made the argument here in this new case that the existence of defendant’s Fourth waiver similarly attenuated the taint of his illegal detention. 

In evaluating such an argument, a court is to apply a three-part test as first described in the U.S. Supreme Court case of Brown v. Illinois (1975) 422 U.S. 590, at pages 603 to 604: (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.” (Referred to as the “Brown factors.”) Once the defendant establishes a Fourth Amendment violation, the prosecution bears the burden of proving that the taint has been attenuated, allowing for the admissibility of the subsequently found evidence.  Applying the Brown factors to the instant case, the Court held that the “temporal proximity” between defendant’s illegal detention and the resulting search was minimal; a matter of several minutes only.  To save the search, this time interval would have to have been “substantial.”  It clearly was not.  As for the second Brown factor, the Court concluded “that the discovery of the parole search condition had no considerable attenuating effect.”  In reaching this conclusion, the Court noted that in both Brendlin and Strieff, the intervening circumstance was the belated discovery of an arrest warrant.  An arrest warrant is, in effect, a judicial mandate to take a suspect into custody.  With an arrest warrant, an officer is not given a choice.

In comparison, a Fourth waiver does not mandate that the detainee be searched, but rather presents the officer with the option of conducting a Fourth waiver search.  Per the Court: “(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 (as it is with an arrest warrant), nor does it compel further action of any sort.”  Thus an arrest warrant mandate makes for a stronger intervening factor than merely providing an officer with the legal authority to conduct a search without mandating that he do so.  As a result: “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 this case, therefore, Brown factor #2 strongly supports defendant’s argument that there was no attenuation of the taint.  As for the third Brown factor—the flagrancy and purposefulness of police conduct—the Court first noted that this factor is directly tied to the purpose of the exclusionary rule; i.e., “deterring police misconduct.”

In this case, while noting that there is no reason to suspect that Officer Croucher acted in bad faith, the officer did in fact detain defendant with absolutely no reason to believe he was one of the bicycle-riding, flashlight-toting, vehicle burglary subjects.  The purpose of the exclusionary rule is to deter such an illegal detention.  “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.”  This conclusion supports a finding that Brown factor #3 weighs against the application of the attenuation doctrine.  Based upon all the above, the Fourth waiver parole condition was held not to be sufficient to attenuate the taint of the illegal detention.  The evidence in this case, therefore, should have been suppressed.

This brief is not intended to be critical of Officer Croucher, by the way.  On its surface, he did some good police work here.  I might have suggested, however, that he could have turned down his aggressiveness a notch or two, and conducted this contact as a consensual encounter instead.  He could have done this by not being quite so in-your-face, seeking instead voluntary compliance.  (“Hi, sir.  How are you   Do you mind stepping out of the car and talking to me for a moment May I see your driver’s license ”)  A Fourth waiver search conducted during a consensual encounter is not illegal.

On another note, the Court mentions almost in passing defendant’s assertion that he was detained and searched because of his race; i.e., African-American, but concludes that “nothing in the factual record supports that inference.”  I have to agree.  Black or White, McWilliams was the only person in the vicinity and was going to be contacted no matter what.  But either way, I’d like to think we’re past that era when a person’s race is ever a consideration.  And there’s certainly nothing in the evidence here indicating that Officer Crouch is racist.  But then I read Associate Justice Goodwin Liu’s two-page (pgs. 449 to 451) concurring opinion, talking about “implicit bias.”  Known as a highly intelligent legal scholar who commonly digs around beneath the surface of what otherwise might seem to be a simple, or even non-existent, issue, Justice Liu asks whether “implicit bias” might have been something to consider.  Per Justice Liu, assuming a police officer is not overtly racist, there still often exists a subconscious belief that a Black person is more likely to be guilty of something—thus justifying a detention, arrest, and/or search—merely because he or she is Black.  As noted by Justice Liu: “(A)n officer’s decision making may be vulnerable to implicit biases that result in a heightened risk of exploitation of the unlawful detention.”  Justice Liu cites a number of studies indicating that such thinking is simply fallacious, and not supported by the statistics.  But he makes the argument that such a subconscious “implicit bias” often does exist nonetheless, no matter how non-racist any of us may think we are. I have to say I found his discussion of this issue to be very interesting, if not downright persuasive.  If you’d like a copy of his comments on this issue, I’ve saved it all in a separate file and can e-mail it to you upon request.  It might give you some “food for thought.”