CA: Brendlin on remand: Arrest and search incident of passenger was lawful because of attenuation of the taint

The California Supreme Court has Brendlin v. California, 551 U.S. ___, 127 S.Ct. 2400, 168 L. Ed. 2d 132 (2007), on remand in People v. Brendlin, 45 Cal. 4th 262, 195 P.3d 1074, 85 Cal. Rptr. 3d 496 (2008), and holds that, given the unlawfulness of the stop, the finding of the outstanding warrant on defendant was sufficiently attenuated from the unlawful stop to support the search of his person incident to the arrest under Brown v. Texas.

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.

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. Under these circumstances, the outstanding warrant sufficiently attenuated the connection between the unlawful traffic stop and the subsequent discovery of the drug paraphernalia.