Supreme Court of California Justia
Citation 38 Cal. 4th 1107, 136 P.3d 845, 45 Cal. Rptr. 3d 50, 45 Cal. 4th 262 opinion after USSC remand

People v. Brendlin

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


On petition for review after CA reversed conviction of a criminal offense, issues were specified as: (1) Was defendant, as a passenger in a vehicle subjected to a traffic stop, "detained" for purposes of 4th Amendment, thus allowing him to contest legality of stop? (2) Could vehicle be stopped on reasonable suspicion it was being operated while unregistered, when it exhibited an expired license plate registration tag but also displayed what appeared to be a current temporary registration permit? After U.S.S.C. remand, supplemental briefs addressed: (1) Does exclusionary rule of 4th Amendment require suppression of fruits of search that followed the unlawful detention here, where deputy, prior to search, verified Brendlin was a parole violator with an outstanding no-bail warrant for his arrest? (2) Did search here violate In re Jaime P. (2006) 40 Cal.4th 206 or People v. Sanders (2003) 31 Cal.4th 318?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 11/24/200838 Cal. 4th 1107, 136 P.3d 845, 45 Cal. Rptr. 3d 50, 45 Cal. 4th 262 opinion after USSC remandS123133AReview - Criminal Appealclosed; remittitur issued

PEOPLE v. LAMONT (S131308)
PEOPLE v. GEORGE (S136850)


Parties
1The People (Plaintiff and Respondent)
Represented by Clifford E. Zall
Office of the Attorney General
P.O. Box 944255
1300 "I" Street
Sacramento, CA

2Brendlin, Bruce Edward (Defendant and Appellant)
1324 Hobart Drive, #3
Marysville, CA 95901

Represented by Elizabeth M. Campbell
Attorney at Law
1215 "K" Street, 17th Floor
Sacramento, CA


Opinion Authors
OpinionJustice Marvin R. Baxter

Disposition
Jun 29 2006Opinion: Reversed

Dockets
Mar 5 2004Petition for review filed
  In Sacramento by counsel for Respondent {The People}.
Mar 8 2004Record requested
 
Mar 23 2004Received Court of Appeal record
  one doghouse
Apr 14 2004Petition for review granted (criminal case)
  Votes: George, Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Apr 20 2004Request for extension of time filed
  (in Sacramento) by respondent (People) for a 28-day extension to and including June 11, 2004 to file the opening brief on the merits.
Apr 26 2004Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file Respondent's Opening Brief on the Merits is extended to and including June 11, 2004.
May 12 2004Issues ordered limited
  The issues to be briefed and argued in this case are the following: (1) Was defendant, as a passenger in a vehicle subjected to a traffic stop, thereby "detained" for purposes of the Fourth Amendment, thus allowing him to contest the legality of the stop? (2) Could the vehicle be stopped on reasonable suspicion that it was being operated while unregistered, in violation of the Vehicle Code, when it exhibited an expired license plate registration tag, but also displayed what appeared from a distance to be a current temporary registration permit?
May 17 2004Received:
 
May 19 2004Request for extension of time filed
  to July 9, 2004, to file respondent's opening brief on the merits. (Second request filed in Sacramento)
May 25 2004Extension of time granted
  On applicationof respondent and good cause appearing, it is ordered that the time to serve and file Respondent's Opening Brief on the Merits is extended to and including July 9, 2004. No further extensions of time are contemplated.
May 27 2004Counsel appointment order filed
  Upon request of appellant for appointment of counsel, the Central California Appellate Program is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
Jul 9 2004Opening brief on the merits filed
  (in Sacramento) by respondent
Aug 9 2004Request for extension of time filed
  (in Sacramento) for an e.o.t. to 9-8-2004, to file appellant's answer brief/merits. 30-day extension granted as requested. No further extensions of time are contemplated.
Aug 13 2004Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including September 8, 2004. No further extensions of time are contemplated.
Sep 8 2004Answer brief on the merits filed
  (in Sacramento) by appellant (Brendlin)
Sep 21 2004Request for extension of time filed
  by respondent ( the People) to file the reply brief on the merits. asking to Oct.18, 2004
Sep 28 2004Extension of time granted
  to 10-18-04 for resp to file the reply brief on the merits. No further extensions of time are contemplated.
Oct 13 2004Reply brief filed (case fully briefed)
  by resp
Jan 12 2005Compensation awarded counsel
  Atty Campbell
Mar 8 2006Case ordered on calendar
  Wednesday, April 5, 2006, at 9:00 a.m., in Los Angeles
Apr 5 2006Cause argued and submitted
 
Jun 29 2006Opinion filed: Judgment reversed
  Judgment of the Court of Appeal. Opinion by Baxter, J. -- joined by George, C.J., Kennard, Chin, JJ. Dissenting Opinion by Corrigan, J. -- joined by Werdegar and Moreno, JJ.
Jul 11 2006Rehearing petition filed
  Bruce Brendlin, appellant, by Elizabeth Campbell, Staff Attorney, Central California Appellant Program.
Jul 12 2006Time extended to consider modification or rehearing
  to and including September 27, 2006, or the date upon which reheairng is either granted or denied, whichever occurs first.
Jul 17 2006Received:
  Application to file amicus curiae brief of Matthew Gordon Lamont [appellant in pending case No. S131308, People v Lamont] in support of petition for rehearing (Brendlin's) ( brief separate ]
Jul 24 2006Application denied
  The application of Matthew Gordon Lamont for leave to file amicus curiae brief in support of appellant's petition for rehearing is hereby denied. [ Original returned to Attorney Edward A. Hoffman with a copy of the order. ]
Jul 24 2006Received:
 
Aug 30 2006Rehearing denied
  Werdegar, Moreno, and Corrigan, JJ., are of the opinion the petition should be granted.
Aug 30 2006Remittitur issued (criminal case)
 
Sep 7 2006Received:
  Receipt for remittitur from Third Appellate District, signed for by Theresa Devine, Deputy Clerk.
Nov 30 2006Received:
  Copy of Petition for Writ of Certiorari filed in the Supreme Court of the United States
Dec 8 2006Received:
  U.S.S.C. letter dated 12-4-2006, writ of certiorari filed 11-28-2006, placed on the docket 12-4-2006 as No. 06-8120.
Jan 29 2007Received:
  Supreme Court of the United States letter dated January 19, 2007, motion of petitioner for leave to proceed in forma pauperis and the petition for writ of certiorari are granted.
Jan 31 2007Received:
  From Central C.A.P. a copy of request for appointment of counsel in the Supreme Court of the United States case No. 06-8120.
Feb 14 2007Received:
  letter from the Clerk of the United States Supreme dated February 9, 2007, requesting that the entire record be transmitted to their court.
Feb 15 2007Note:
  Record sent to United States Supreme Court pursuant to letter from the Clerk dated February 9, 2007. I doghouse sent via UPS overnight.
Jun 22 2007Filed:
  Letter from the Supreme Court of the United States, dated June 18, 2007. Re: Bruce Edward Brendlin v California, No. 06-8120. " The enclosed opinion of this Court was announced today in the above stated case. The judgment or mandate of this Court will not issue for at least twenty-five days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing." William K. Suter, Clerk by Denise McNerney, Merits Case Clerk (202) 479-3032
Jun 27 2007Received:
  from Ninth Circuit, U.S. Court of Appeals, a copy of the Supreme Court of the United States letter dated June 18, 2007.
Jul 22 2007- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
 
Jul 23 2007Filed:
  Letter dated 7-13-2007 from Donald E. De Nicola, Deputy State Solicitor (respondent) requesting that a schedule be set for the filing of further briefing on a dispositive question left unresolved by this Court and by the United States Supreme Court.
Jul 23 2007Remanded by U.S. Supreme Court
  Letter dated July 20, 2007, from the Supreme Court of the United States filed. Certified copy of the mandate, a certified copy of the judgment, and a copy of the opinion enclosed.
Jul 23 2007Filed:
  Letter dated July 20, 2007 by Elizabeth Campbell, Central California Appellate Program, in response to letter submitted by respondent on July 13, 2007.
Jul 31 2007Note:
  Received record back from the United State Supreme Court (1 doghouse)
Aug 15 2007Retained after U.S.S.C. remand; briefing ordered
  Respondent's request to file supplemental briefing and to set a briefing schedule is granted. The parties are directed to brief the following two issues: (1) Does the exclusionary rule of the Fourth Amendment require suppression of the fruits of the search that followed the unlawful detention here, where the deputy, prior to the search, verified that Brendlin was a parole violator with an outstanding no-bail warrant for his arrest? (2) Did the search here violate In re Jaime P. (2006) 40 Cal.4th 206 or People v. Sanders (2003) 31 Cal.4th 318? Respondent is directed to serve and file a brief on the merits on or before September 14, 2007. Additional briefing is to be served and filed in a timely fashion. (See Cal. Rules of Court, rule 8.520.) Kennard, J., is of the opinion the matter should be transferred to the court of appeal for further proceedings.
Aug 27 2007Request for extension of time filed
  to and including September 28, 2007, to file respondent's supplemental brief on the merits.
Aug 31 2007Filed:
  Request to Vacate Appointment and Recommendation for Appointment of Attorney by Gary McCurdy, Assistant Director, Central California Appellate Program
Sep 4 2007Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file Respondent's Supplemental Brief is extended to and including September 28, 2007.
Sep 6 2007Counsel appointment order filed
  The order filed on May 27, 2004, appointing the Central California Appellate Program to represent appellant is hereby vacated. Upon request of appellant for appointment of counsel, Elizabeth Campbell is hereby appointed to represent appellant on the appeal now pending in this court, effective September 6, 2007.
Sep 28 2007Received:
  Oversized (6,067 words) Respondent's Supplemental Opening Brief on the Merits by Clifford E. Zall, Deputy Attorney General (Received in Sacramento -- document is over the 2,800 word limit (CRC 8.520(d))
Oct 4 2007Supplemental brief filed
  Respondent's Supplemental Opening Brief on the Merits by Clifford E. Zall, Deputy Attorney General (Filed with permission)
Oct 26 2007Request for extension of time filed
  to and including December 5, 2007, to file appellant's supplemental answer brief.
Oct 31 2007Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file Appellant's Supplemental Answer Brief is extended to and including December 5, 2007.
Dec 5 2007Received:
  Appellant's Oversized (11,139 words) Supplemental Answer Brief by Elizabeth Campbell, Supreme Court appointed counsel
Dec 7 2007Order filed
  The application of appellant for permission to file Appellant's Supplemental Answer Brief containing 11,139 words that exceeds the 2,800 word limit prescribed by California Rules of Court rule 8.520(d) by 8,339 words is hereby GRANTED.
Dec 7 2007Supplemental brief filed
  Appellant's Supplemental Answer Brief (Filed with permission)
Dec 19 2007Compensation awarded counsel
  Atty Campbell
Dec 21 2007Request for extension of time filed
  to January 26, 2008, within which to file respondent's supplemental reply brief (due December 27, 2007) by Clifford C. Zall, Deputy A. G. (Filed in Sacramento)
Jan 2 2008Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the Respondent's Supplemental Reply Brief is extended to and including January 26, 2008.
Jan 24 2008Supplemental brief filed
  Respondent's Supplemental Reply Brief by Clifford E. Zall, Deputy Attorney General (Filed in Sacramento)
May 6 2008Change of contact information filed for:
  Elizabeth Campbell, counsel for appellant
Jul 1 2008Change of contact information filed for:
  Attorney Elizabeth Campbell at 1215 K Street, 17th Floor, Sacramento, CA 95814. Phone number and e-mail contact information remains the same.
Jul 30 2008Case ordered on calendar
  to be argued Wednesday, September 3, 2008, at 1:30 p.m., in San Francisco
Aug 1 2008Filed:
  Letter from Elizabeth Campbell, requesting that the case be argued first instead of third within the September 3, 2008, 1:30 p.m. oral argument session.
Aug 7 2008Note:
  "First amended" September 2008 oral argument calendar filed on this date. People v. Brendlin is now scheduled to be argued first within the September 3, 2008, 1:30 p.m session.
Aug 14 2008Filed:
  appearance sheet for respondent, the People.
Sep 3 2008Cause argued and submitted
 
Nov 21 2008Notice of forthcoming opinion posted
 
Nov 24 2008Opinion filed: Judgment reversed
  of the Court of Appeal. Opinion by Baxter, J. -- joined by George, C.J., Kennard, Werdegar, Chin, Moreno, and Corrigan, JJ.
Dec 26 2008Remittitur issued (criminal case)
 
Jan 8 2009Received:
  Receipt for remittitur.
Feb 23 2009Received:
  service copy of the petition for writ of certiorari filed in the U.S.S.C.
Mar 2 2009Received:
  Letter from the Supreme Court of the United States dated February 25, 2009. The petition for writ of certiorari in the above-entitled case was filed on February 20, 2009 and placed on the docket February 25, 2009 as No. 08-8916.
Apr 20 2009Certiorari denied by U.S. Supreme Court
 
May 11 2009Counsel fee request received
  Atty Campbell
May 21 2009Compensation awarded counsel
  George, C.J., was absent and did not participate. Atty Campbell

Briefs
Jul 9 2004Opening brief on the merits filed
 
Sep 8 2004Answer brief on the merits filed
 
Oct 13 2004Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 21, 2011
Annotated by gregory rosenberg

FACTS:

On November 27, 2001, Sutter County Sheriff's Deputy Brokenbrough initiated a traffic stop of a vehicle with expired registration tabs in Yuba City. Prior to making the stop, Deputy Brokenbrough confirmed through dispatch the registration was expired but that a renewal application was being processed. He noted a temporary operating permit had been taped to the vehicle's rear window, but could not confirm whether the permit belonged to the vehicle. He stopped the vehicle to investigate. He recognized the passenger, Defendant Brendlin, as one of the "Brendlin brothers, Scott or Bruce" and remembered that one of the brothers had absconded from parole. He asked defendant to identify himself and defendant complied. Deputy Brokenbrough also observed receptacles in the vehicle containing substances used to produce methamphetamine. He returned to his patrol car, verified that defendant was a parolee and had an outstanding no-bail arrest warrant, waited for backup, and then ordered defendant out of the vehicle and placed him under arrest for the parole violation. Only a few minutes elapsed from the initial stop to Deputy Brokenbrough's learning that defendant had an outstanding warrant. Police conducted a search incident to arrest of defendant's person, the vehicle's driver, and the vehicle. They found marijuana, methamphetamine, and two hypodermic needles on the driver's person, a cap to a hypodermic needle (one needle found on the driver was missing a cap) on defendant's person, and materials used to manufacture methamphetamine in the vehicle.

PROCEDURAL POSTURE:

The Sacramento County Superior Court (J. Chandler) denied defendant's motion to suppress evidence, holding that defendant had not been seized under the Fourth Amendment's meaning until Deputy Brokenbrough ordered him out of the vehicle and arrested him, and even if he had been "seized" at the initiation of the traffic stop, the stop was lawful. Defendant entered a guilty plea but appealed the ruling on the suppression motion. The Court of Appeal reversed, holding that a traffic stop necessarily results in a seizure of the driver and any passengers, that Deputy Brokenbrough had "at most a hunch" the vehicle was being unlawfully operated, and that the evidence seized from defendant and the vehicle should have been suppressed because it would not have been discovered but for the unlawful seizure. (Opinion available at: http://scholar.google.com/scholar_case?case=14632325040806652214&hl=en&a...)

The Supreme Court of California reversed in a four-to-three decision and held that, absent additional circumstances indicating to a reasonable person that he or she was the subject of an officer's investigation or show of authority, a passenger in a vehicle stopped by police is not seized under the Fourth Amendment's meaning. (Opinion available at: http://scholar.google.com/scholar_case?case=3274770118022897164&hl=en&as...) Justice Corrigan filed a dissenting opinion. The United States Supreme Court granted certiorari and issued a unanimous opinion reversing the Supreme Court of California's decision that passengers in a traffic stop are not seized. (Opinion available at: http://www.law.cornell.edu/supct/html/06-8120.ZS.html) The Court remanded the case for California courts to consider "whether suppression turns on any other issue."

ISSUES:

(1) Did the existence of defendant's outstanding arrest warrant, discovered after an unlawful traffic stop but before the search of his person or vehicle, dissipate the taint of the illegal seizure and render suppression of evidence obtained in the search unnecessary?
(2) Did the search violate In re Jaime P. (2006) 40 Cal.4th 206 or People v. Sanders (2003) 31 Cal.4th 318?

HOLDING:

The outstanding warrant, discovered prior to any search of defendant's person or of the vehicle, sufficiently attenuated the taint of the unlawful traffic stop so that the Fourth Amendment does not require suppression of the evidence obtained from the search. The holdings of In re Jaime P. and People v. Sanders do not control here. The decision of the Court of Appeals below is reversed.

ANALYSIS:

The Court first noted that the Court of Appeals was correct in finding that but for the unlawful traffic stop, Deputy Brokenbough would not have learned of defendant's outstanding arrest warrant or conducted a search incident to arrest that revealed contraband. However, the "but for" causation between the unlawful stop and the evidence seized does not necessarily require suppression of the evidence as "fruit of the poisonous tree." If the link between the unlawful stop and the evidence is sufficiently attenuated or interrupted by intervening circumstances, the evidence need not be suppressed.

To determine whether the discovery of an arrest warrant sufficiently attenuated the taint of a prior unlawful traffic stop, the Court applied the factors highlighted by the U.S. Supreme Court in Brown v. Illinois, 422 U.S. 590, 603 (1975). The factors are: (1) the temporal proximity of the Fourth Amendment violation to the procurement of the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy of the official misconduct. State and federal courts have widely recognized these factors in undertaking an attenuation analysis.

A close temporal proximity between the Fourth Amendment violation and the seizure of evidence has led some courts to find insufficient attenuation of the taint and require suppression of evidence, while other courts have found this first Brown factor to be irrelevant when the intervening circumstance is the discovery of an outstanding arrest warrant. The Court did declined to approve of either line of cases because nearly all courts agree that in the arrest warrant context, the other two Brown factors outweigh the first factor. The Court found that, under the second Brown factor, the warrant gave Deputy Brokenbrough legal authority to arrest defendant that was completely independent of the circumstances the led to the unlawful traffic stop. As to the third Brown factor, generally regarded as the most important, the Court found no evidence suggesting Deputy Brokenbrough's investigation was in bad faith, that the traffic stop was pretextual, or that the "ultimate goal" of the unlawful stop was to search the vehicle or its occupants. Accordingly, the Court found the outstanding warrant sufficiently attenuated the connection between the unlawful traffic stop and the subsequent discovery of drug paraphernalia.

The Court also rejected defendant's argument that People v. Sanders, (2003) 31 Cal.4th 318 and In re Jaime P. (2006) 40 Cal.4th 128 require suppression in this case. Those cases held that the discovery, after a search has been conducted, that a person was subject to a probation or parole search condition cannot serve as a post-hoc validation of the search. Here, Deputy Brokenbrough did not conduct a search until he learned of defendant's arrest warrant and placed defendant under arrest. Thus, the cases defendant cited were distinguishable and do not require suppression of evidence.

TAGS:

arrest warrant, exclusionary rule, Fourth Amendment, search and seizure, traffic stop, vehicle passenger, fruit of the poisonous tree doctrine, attenuation, parole search, suppressed evidence

Dec 19, 2008
Annotated by diana teasland

Written by Andrew Yaphe

Background and Summary:

On November 27, 2001, a Sheriff’s Deputy in Sutter County performed a traffic stop of a car driven by Karen Simeroth. He asked the driver for her license, and asked the defendant, Bruce Brendlin – who was a passenger in the car – to identify himself. The Deputy saw equipment used to produce methamphetamine (“meth”) in the car, and upon returning to his police car verified that Brendlin was a parolee at-large who had an outstanding warrant for his arrest. The Deputy then arrested Brendlin for the parole violation. During a search after the arrest, police found drugs and materials used to produce meth on the driver and in the back seat of the car.
Brendlin made a motion to suppress, but the Suprior Court held that he had not been seized within the meaning of the Fourth Amendment until the Deputy ordered him out of the car and put him under arrest, and that, even if he had been seized at the start of the traffic stop, the stop was nonetheless lawful. At this point, Brendlin pled guilty to manufacturing meth, and was sentenced to four years in prison.
The Court of Appeal reversed. It held that a traffic stop inevitably results in a detention, and therefore a seizure, of both the driver of a vehicle and any passengers in the vehicle. The court found that the Deupty’s seizure was unlawful, and thus ruled that the evidence seized from Brendlin should have been suppressed, as it would not have been discovered but for the unlawful stop.
In a 2006 opinion, the California Supreme Court reversed the Court of Appeal. It held that a passenger in a vehicle which undergoes a traffic stop is not “seized,” within the meaning of the Fourth Amendment, absent additional circumstances which would indicate to a reasonable person that he was the subject of the police officer’s investigation. A dissent by Justice Corrigan argued that a traffic stop entails the seizure of the passenger, even if the driver of the vehicle is the only target of police investigation.
The United States Supreme Court granted certiorari. In a unanimous opinion, the Court vacated the California Supreme Court opinion. The Court held that a traffic stop subjects both a passenger and the driver of the vehicle to a seizure, within the meaning of the Fourth Amendment. The Court also remanded the matter, instructing the California Supreme Court to consider whether suppression turns on any other issue.
On remand, the California Supreme Court asked for supplemental briefing as to whether the existence of Brendlin’s outstanding arrest warrant – which was discovered after the unlawful stop, but before the search of either Brendlin or the vehicle – “dissipated the taint” of the illegal seizure and rendered suppression of the evidence seized unnecessary.
The California Supreme Court found that, though Brendlin was subjected to an illegal traffic stop, exclusion of the evidence against him was not required simply because a violation of the Constitution enabled the police officer to obtain that evidence. The court decided that evidence only has to be suppressed if it had been obtained through police exploitation of that illegal seizure. If the evidence was instead obtained by “means sufficiently distinguishable to be purged of the primary taint” of illegal action, then that taint is “attenuated” and the evidence is allowable. The court cited precedent from the Seventh Circuit, the Eighth Circuit, and a number of state courts to find that the initial taint of an illegal search can be dissipated by an intervening circumstance.
The question of whether an outstanding arrest warrant is sufficient in “attenuating the taint of an antecedent unlawful traffic stop” was an issue of first impression in California. In performing “attenuation” analysis, the court noted that other courts frequently look at three factors enumerated in Brown v. Illinois: 1) temporal proximity of the unlawful seizure to the subsequent search of the defendant’s person or vehicle, 2) the presence of intervening circumstances, and 3) the flagrancy of the official misconduct in effecting the unlawful seizure. In this case, the court found that the warrant for arrest gave the police independent legal grounds for arresting him, and that the search only took place pursuant to is arrest. Thus, the police did not “exploit” the illegal traffic stop to obtain the crucial evidence. Also, the Deputy pulled the car over in good faith (in order to look into a dubious vehicle registration, rather than in order to obtain evidence of any other crime). The court concluded that the Deputy’s conduct was reasonable, and that suppressing the evidence he found would not serve the purpose of deterring future police misconduct.

Procedural History:

Defendant Brendlin pled guilty to manufacturing methamphetamine after the Superior Court denied his motion to suppress evidence which was found after a traffic stop in the car in which he was riding. (Cal.Superior Feb. 15, 2002) (No. CRF01-2703) The Court of Appeal reversed, holding that a traffic stop necessarily results in a detention (and therefore a seizure) of both the driver and any passengers in the vehicle. (Cal.App. 3 Dist., Jan. 27, 2004) (NO. C040754) The California Supreme Court granted review and reversed, holding that the defendant, as a passenger in the vehicle, could not challenge the traffic stop. (People v. Brendlin, 38 Cal. 4th 1107 (2006)) The United States Supreme Court granted certiorari, vacated the California Supreme Court’s decision, and remanded, holding that a traffic stop subjects not only the driver, but any passengers in the vehicle, to a seizure under the Fourth Amendment. (Brendlin v. California, 127 S.Ct. 2400 (2007))