Cal.4: Detention without RS led to finding warrant; attenuated under Strieff

Defendant was seen at 4 am apparently casing cars in San Diego in a neighborhood where people were never on the street at that hour. The stop was based on a mere hunch, but it produced an outstanding warrant. “Although the officer who stopped and ultimately arrested him acted on no more than a hunch, detaining Kasrawi after watching him innocuously cross the street to his legally parked car, he subsequently learned that Kasrawi had an outstanding arrest warrant. Supreme Court precedent compels our conclusion that despite the Fourth Amendment violation, the evidence need not be suppressed. This case falls into a narrow exception to the exclusionary rule that applies where a law enforcement officer discovers the defendant’s outstanding warrant after an illegal stop but before a search yields evidence of a crime. Under these limited circumstances, discovery of the warrant can attenuate the taint of the original detention.” People v. Kasrawi, 2021 Cal. App. LEXIS 504 (4th Dist. June 16, 2021):

… But the facts known to Pardue were rather limited at that point. In terms of the general context, it was about 4:00 a.m. in a low crime area. Pardue was aware there had been two car burglaries nearby in the previous week. As to Kasrawi’s actions, Pardue saw him step off a curb, cross to a legally parked Prius, and begin to get inside. All that can be said of his conduct is that he crossed a residential street at a time when most people in the neighborhood were still asleep. The circumstances were thus “devoid of indicia of his involvement in criminal activity” (Roth, supra, 219 Cal.App.3d at p. 215), and fall significantly short of the “specific and articulable facts” required to support a detention. (Tony C., supra, 21 Cal.3d at p. 892.)

. . .

In analyzing whether the deputy’s discovery of the warrant “dissipated the taint of the illegal seizure and rendered suppression of the evidence seized unnecessary,” the Brendlin court considered the three attenuation factors enumerated in Brown v. Illinois (1975) 422 U.S. 590, 603-604 (Brown), namely the “temporal proximity” between the illegal stop and the recovery of evidence, the “presence of intervening circumstances,” and “the purpose and flagrancy of the official misconduct.” It concluded that the first Brown factor, although arguably weighing in favor of suppression, was outweighed by the others—the “intervening circumstance” of the warrant, and the apparent good faith of the deputy, who stopped the vehicle to investigate the authenticity of a temporary registration sticker. (Brendlin, supra, 45 Cal.4th at pp. 270‒272.) It thus concluded that suppression of the evidence was unwarranted. (Ibid.)

The United States Supreme Court employed a similar analysis to reach a parallel result eight years later in Strieff, supra, 136 S.Ct. 2056, where an officer stopped a man leaving a suspected drug house without reasonable suspicion. After he later discovered the man was subject to a warrant, the officer conducted a search incident to arrest that yielded drugs and paraphernalia. (Id. at p. 2059‒2060.) In overturning the contrary conclusion of the Utah Supreme Court, the United States Supreme Court relied on the Brown factors to hold the taint of the unlawful stop was attenuated by the warrant such that the exclusionary rule did not apply. (Strieff, at pp. 2062‒2063.)

Following these cases, we similarly conclude that the Brown factors here weigh in favor of applying the outstanding warrant exception to the exclusionary rule. Although the first factor—the temporal proximity between Kasrawi’s detention and the discovery of the evidence—weighs in favor of suppression, the other Brown factors support a finding of attenuation. As in both Strieff and Brendlin, the officer’s discovery of a warrant constituted an intervening circumstance that separated the evidence he collected from the illegal detention. And this intervening circumstance was not accompanied by the kind of flagrant police misconduct that would justify exclusion—such as an “‘invented . . . justification for [a] traffic stop in order to have an excuse to run [a] warrant check'” or some other “flagrant” abuse of police power. (Brendlin, supra, 45 Cal.4th at p. 272.) Rather, it is clear from the BWC footage and his testimony that Pardue thought he detained Kasrawi only after gaining sufficient information to justify an investigatory stop. That his approach was assertive enough to make Kasrawi believe he was not free to leave does not transform this liminal illegal stop into a flagrant abuse of power. Consequently, the evidence was admissible and we therefore affirm the trial court’s denial of Kasrawi’s suppression motion.