People v. McWilliams

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DUVANH ANTHONY MCWILLIAMS,

Defendant and Appellant.

S268320

Sixth Appellate District

H045525

Santa Clara County Superior Court

C1754407

February 23, 2023

Justice Kruger authored the opinion of the Court, in which

Chief Justice Guerrero and Justices Corrigan, Liu, Groban,

Jenkins, and Cantil-Sakauye* concurred.

Justice Liu filed a concurring opinion.

*

Retired Chief Justice of California, assigned by the Chief

Justice pursuant to article VI, section 6 of the California

Constitution.

PEOPLE v. MCWILLIAMS

S268320

Opinion of the Court by Kruger, J.

Responding to a report of suspicious activity in the area, a

police officer unlawfully detained a bystander who had no

apparent connection to the report. The officer ran a records

search and learned that the bystander, Duvanh Anthony

McWilliams, was on parole and subject to warrantless,

suspicionless parole searches. The officer proceeded to search

McWilliams and his vehicle, where the officer found an unloaded

gun, ammunition, drugs, and drug paraphernalia.

As a general rule, evidence seized as a result of an

unlawful search or seizure is inadmissible against the defendant

in a subsequent prosecution. But the law permits use of the

evidence when the causal connection “between the lawless

conduct of the police and the discovery of the challenged

evidence has ‘become so attenuated as to dissipate the taint.’ ”

(Wong Sun v. United States (1963) 371 U.S. 471, 487.) Here, the

Court of Appeal held that the officer’s discovery of McWilliams’s

parole search condition sufficiently attenuated the connection

between the unlawful detention and the contraband found in

McWilliams’s vehicle. The Court of Appeal relied on cases

allowing the admission of evidence seized incident to arrest on

a valid warrant, where the warrant was discovered during an

unlawful investigatory stop. (Utah v. Strieff (2016) 579 U.S. 232

(Strieff); People v. Brendlin (2008) 45 Cal.4th 262 (Brendlin).)

1

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

We now reverse. Unlike an arrest on an outstanding

warrant, a parole search is not a ministerial act dictated by

judicial mandate (Strieff, supra, 579 U.S. at p. 240), but a matter

of discretion. We conclude the officer’s discretionary decision to

conduct the parole search did not sufficiently attenuate the

connection between the officer’s initial unlawful decision to

detain McWilliams and the discovery of contraband. The

evidence therefore was not admissible against him.

I.

Early one evening in January 2017, Officer Matthew

Croucher of the San Jose Police Department responded to a

report of a possible vehicle burglary in a business parking lot.

When he arrived on the scene, a security guard told him she had

seen two “suspicious individuals on bikes” shining flashlights

into parked cars.

Officer Croucher drove through the parking lot but did not

see anything noteworthy. He then drove through an adjacent

parking lot. There he found about four or five parked cars, one

of which was occupied. The occupant of the car was McWilliams,

who was fully reclined in the passenger seat. McWilliams did

not appear to be sleeping, just “hanging out.”

Officer Croucher waited for backup, then approached the

vehicle and instructed McWilliams to exit. At the suppression

hearing, Croucher testified this was for safety reasons; it was

his usual practice “with most car stops that [he] do[es], or most

suspicious vehicles that [he] come[s] across.” After McWilliams

exited the vehicle, Croucher asked for his identification and

permitted McWilliams to retrieve the identification from the

vehicle. Croucher then performed a records check and learned

that McWilliams was “on active and searchable [California

2

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

Department of Corrections] parole.” Croucher proceeded to

search both McWilliams and the vehicle, from which he seized a

firearm, drugs, and drug paraphernalia.

McWilliams was charged with multiple drug and weapons

offenses. He filed a motion to suppress the evidence found in his

vehicle. (See Pen. Code, § 1538.5.) He argued, among other

things, that the evidence should be excluded as the fruits of a

detention conducted in violation of the Fourth Amendment to

the United States Constitution.

The trial court denied the motion, concluding the

detention was lawful. The court reasoned that Officer Croucher

had reasonable suspicion to detain McWilliams based on the

security guard’s 911 call reporting suspicious activity in the

area. McWilliams pleaded guilty to three counts of the criminal

information and received a negotiated sentence of seven years

in state prison.

McWilliams appealed the denial of the suppression

motion. A divided Court of Appeal affirmed. (People v.

McWilliams (Mar. 8, 2021, H045525) [nonpub. opn.].) Unlike

the trial court, the Court of Appeal concluded the officer lacked

reasonable suspicion to detain McWilliams, since McWilliams

neither matched the security guard’s description of the

individuals involved in the suspicious activity nor was engaged

in any conduct “suggestive of criminal activity.” But the

appellate court nonetheless upheld the trial court’s denial of the

suppression motion, reasoning that the officer’s discovery of the

parole search condition sufficiently attenuated the connection

between the officer’s unlawful detention of McWilliams and the

evidence seized during the search. The court likened the

discovery of the parole search condition to the discovery of the

3

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

arrest warrants in Strieff, supra, 579 U.S. 232 and Brendlin,

supra, 45 Cal.4th 262, which the courts held to be sufficiently

attenuating. Like the arrest warrants in those cases, the parole

search condition here “predated the detention, was not subject

to interpretation, and supplied entirely independent legal

authorization for the search.” The court further concluded the

evidence was admissible because the unlawful detention was

not “pretextual, in bad faith, or part of recurrent police

misconduct.”

Justice Danner concurred in part and dissented in part.

She agreed with the majority that the initial detention was

unlawful, but disagreed that the evidence seized from

McWilliams’s vehicle was nonetheless admissible. In her view,

the discovery of the parole search condition was not an

intervening circumstance that dissipated the taint of the

unlawful detention, since Officer Croucher had no obligation to

perform a search upon discovering the parole search condition

but instead exercised his discretion to do so. Justice Danner also

disagreed with the majority’s conclusion that “the officer’s

actions here do not raise a broader issue of police misconduct,”

given Officer Croucher’s thin rationale for detaining

McWilliams; his testimony that it is his routine practice to order

people out of suspicious vehicles; and the “growing recognition

that seemingly small constitutional violations can add up to

problems of significant national dimensions.” (People v.

McWilliams, supra, H045525 (conc. & dis. opn. of Danner, J.),

citing, inter alia, Strieff, supra, 579 U.S. at p. 254 (dis. opn. of

Sotomayor, J.) [“it is no secret that people of color are

disproportionate victims” of unlawful, suspicionless stops].)

The disagreement between the justices of the Court of

Appeal in this case mirrors a similar division among Courts of

4

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

Appeal that have considered the attenuating effect of a

probation (as opposed to parole) search condition. (Compare

People v. Durant (2012) 205 Cal.App.4th 57, 66 [concluding that

the “illegality in the initial traffic detention was attenuated by

appellant’s probation search condition”] with People v. Bates

(2013) 222 Cal.App.4th 60, 71 (Bates) [declining to adopt

Durant’s reasoning and reaching the opposite conclusion on the

facts].) We granted review to consider the proper application of

the attenuation doctrine to the officer’s discovery of the parole

search condition in this case.1

II.

The Fourth Amendment to the United States Constitution

protects the “right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures.”2 The right is primarily enforced through the

1

Although all parties assume a similar analysis would

apply to both parole and probation searches, our analysis here

focuses on parole searches like the search at issue in this case.

In this court, the Attorney General has taken the view

that the Court of Appeal erred in concluding the discovery of

McWilliams’s parole status sufficiently attenuated the

connection between the unlawful detention and the subsequent

search. The Santa Clara District Attorney’s Office, which

handled this matter in the trial court, has filed an amicus curiae

brief supporting the judgment of the Court of Appeal.

2

The California Constitution similarly protects the “right of

the people to be secure in their persons, houses, papers, and

effects against unreasonable seizures and searches.” (Cal.

Const., art. I, § 13.) But under the so-called truth-in-evidence

provision of the state Constitution, “ ‘issues relating to the

suppression of evidence derived from governmental searches

and seizures are reviewed under federal constitutional

5

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

exclusionary rule, “a deterrent sanction that bars the

prosecution from introducing evidence obtained by way of a

Fourth Amendment violation.” (Davis v. United States (2011)

564 U.S. 229, 231–232 (Davis); see Strieff, supra, 579 U.S. at

p. 237.) Where it applies, the exclusionary rule forbids

admission of both the “ ‘primary evidence obtained as a direct

result of an illegal search or seizure’ ” and “ ‘evidence later

discovered and found to be derivative of an illegality’ ” —

familiarly known as the “ ‘ “fruit of the poisonous tree.” ’ ”

(Strieff, at p. 237, quoting Segura v. United States (1984) 468

U.S. 796, 804.)

The exclusionary rule does not, however, apply in every

case involving a Fourth Amendment violation. Balancing the

benefits of the exclusionary remedy against its costs, the United

States Supreme Court has fashioned various exceptions to the

exclusionary rule, including the so-called attenuation doctrine.

(Strieff, supra, 579 U.S. at pp. 237–238; see Davis, supra, 564

U.S. at p. 237.) The attenuation doctrine holds that,

notwithstanding the exclusionary rule, “[e]vidence is admissible

when the connection between unconstitutional police conduct

and the evidence is remote or has been interrupted by some

intervening circumstance, so that ‘the interest protected by the

constitutional guarantee that has been violated would not be

served by suppression of the evidence obtained.’ ” (Strieff, at

p. 238, quoting Hudson v. Michigan (2006) 547 U.S. 586, 593

(Hudson).) In conducting the attenuation inquiry, courts are

standards.’ ” (People v. Macabeo (2016) 1 Cal.5th 1206, 1212,

quoting People v. Troyer (2011) 51 Cal.4th 599, 605; see Cal.

Const., art. I, § 28, subd. (f)(2).) We accordingly focus on federal

constitutional standards in our analysis in this case.

6

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

guided by three factors first set out in Brown v. Illinois (1975)

422 U.S. 590, 603–604 (Brown): (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.” (See Strieff,

at p. 239.) Once the defendant establishes a Fourth Amendment

violation, the prosecution bears the burden of establishing

admissibility under this exception to the exclusionary rule.

(Brown, at p. 604.)

In Brendlin, supra, 45 Cal.4th 262, this court considered

how the attenuation doctrine applies when an officer unlawfully

seizes an individual and then discovers that the individual has

an outstanding arrest warrant. In that case, a sheriff’s deputy

had unlawfully stopped a vehicle to investigate expired

registration tabs, on a hunch that the temporary operating

permit in the window might belong to a different vehicle. The

deputy asked the occupants to identify themselves, ran a records

check, and discovered that the passenger, Brendlin, had an

outstanding no-bail arrest warrant. The officer arrested

Brendlin and searched him incident to the arrest, finding drugs

and drug paraphernalia. (Id. at pp. 265–266.)

We analyzed the three Brown factors to determine

whether the incriminating evidence was admissible

notwithstanding the unlawful stop. We acknowledged that the

first factor, temporal proximity, weighed against attenuation

because “only a few minutes elapsed” between the unlawful stop

and the search. (Brendlin, supra, 45 Cal.4th at p. 270.) But we

placed little weight on this factor, noting that the timeline is

typical of cases in which an investigatory stop leads to the

discovery of an outstanding arrest warrant, and in such

circumstances this factor is “ ‘outweighed by the others.’ ”

7

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

(Ibid.) As for the second factor, we concluded that an arrest on

a valid warrant and subsequent search incident to arrest is an

intervening circumstance that “tends to dissipate the taint

caused by an illegal traffic stop.” (Id. at p. 271.) We explained

that “[a] warrant is not reasonably subject to interpretation or

abuse,” and that “the no-bail warrant [t]here supplied legal

authorization to arrest defendant that was completely

independent of the circumstances that led the officer to initiate

the traffic stop.” (Ibid.) Finally, as to the third factor, we found

the deputy’s misconduct was neither purposeful nor flagrant.

The deputy testified that, in his experience, temporary stickers

on a vehicle with expired registration “sometimes belonged to a

different vehicle or had been falsified.” (Ibid.) Although the

deputy had insufficient grounds to make the stop, “the

insufficiency was not so obvious as to make one question [his]

good faith in pursuing an investigation of what he believed to be

a suspicious registration, nor [did] the record show that he had

a design and purpose to effect the stop ‘in the hope that

something [else] might turn up.’ ” (Ibid., quoting Brown, supra,

422 U.S. at p. 605.)

Nearly a decade later, the United States Supreme Court

granted review in Strieff to address the same issue as Brendlin.

(Strieff, supra, 579 U.S. at p. 237.) In Strieff, a police detective

investigated an anonymous tip that a certain residence was the

site of narcotics activity. After observing visitors enter the

house and leave after a few minutes, the detective came to

believe that the house occupants were dealing drugs. The

detective, Officer Fackrell, stopped one visitor, Strieff, as he

exited the house. Strieff turned over his identification to

Fackrell upon request and Fackrell learned that Strieff had an

outstanding arrest warrant for a traffic violation. Fackrell

8

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

arrested Strieff, searched him incident to the arrest, and found

methamphetamine and drug paraphernalia. (Id. at pp. 235–

236.)

Assuming with the parties that the investigatory stop was

unlawful, the high court determined that the discovery of the

arrest warrant sufficiently attenuated the connection between

the stop and the ensuing discovery of drug-related evidence.

(Strieff, supra, 579 U.S. at p. 239.) As to the first Brown factor,

the court concluded that the close temporal proximity between

the stop and the search favored suppression. (Ibid.) But the

high court found the second factor, the presence of intervening

circumstances, “strongly favor[ed] the State.” (Id. at p. 240.)

The court explained: “In this case, the warrant was valid, it

predated Officer Fackrell’s investigation, and it was entirely

unconnected with the stop. And once Officer Fackrell discovered

the warrant, he had an obligation to arrest Strieff. ‘A warrant

is a judicial mandate to an officer to conduct a search or make

an arrest, and the officer has a sworn duty to carry out its

provisions.’ [Citation.] Officer Fackrell’s arrest of Strieff thus

was a ministerial act that was independently compelled by the

pre-existing warrant. And once Officer Fackrell was authorized

to arrest Strieff, it was undisputedly lawful to search Strieff as

an incident of his arrest to protect Officer Fackrell’s safety.” (Id.

at pp. 240–241, citing Arizona v. Gant (2009) 556 U.S. 332, 339.)

Finally, the court concluded that the third Brown factor also

“strongly favor[ed] the State” because the officer “was at most

negligent” in conducting the unlawful investigatory stop.

(Strieff, at p. 241.) The court explained that there was “no

indication that this unlawful stop was part of any systemic or

recurrent police misconduct”; rather, “all the evidence suggests

that the stop was an isolated instance of negligence that

9

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

occurred in connection with a bona fide investigation of a

suspected drug house.” (Id. at p. 242.) The court accordingly

held the evidence seized in the search incident to Strieff’s arrest

was admissible notwithstanding the initial unlawful stop. (Id.

at p. 243.)

III.

Here, as in Brendlin and Strieff, an officer conducted a

concededly unlawful seizure: The Court of Appeal in this case

concluded, and all parties now agree, that Officer Croucher

violated the Fourth Amendment when he ordered McWilliams

out of his vehicle with no basis to suspect McWilliams of

involvement in any criminal activity. And here, as in Brendlin

and Strieff, the officer conducted a records check after that

unlawful detention. But unlike in Brendlin and Strieff, the

records check did not turn up an outstanding warrant for arrest.

Rather, it revealed that McWilliams was on parole and subject

to a parole condition authorizing warrantless, suspicionless

searches of his person and his vehicle. (See Pen. Code, § 3067,

subd. (b)(3).) The question now before us is whether the

evidence discovered in the ensuing search should have been

suppressed under the exclusionary rule, or whether the evidence

was properly admitted because the discovery of McWilliams’s

parole search condition sufficiently attenuated the connection

between the unlawful detention and the search. To answer the

question, we consider how the three Brown factors apply in this

distinct context.

A.

The first Brown factor, temporal proximity between the

unlawful detention and the search, requires no extended

discussion. As Strieff explains, the high court has “declined to

10

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

find that this factor favors attenuation unless ‘substantial time’

elapses between an unlawful act and when the evidence is

obtained.” (Strieff, supra, 579 U.S. at p. 239.) All agree that

here, because no “ ‘substantial time’ ” separated Officer

Croucher’s initial decision to detain McWilliams and his

subsequent decision to search him and his vehicle, this factor

weighs against a finding of attenuation. (Ibid.)

The central subject of disagreement in this case concerns

whether, and to what extent, the discovery of a parole search

condition disrupts the causal connection between the unlawful

stop and the discovery of evidence. This is the concern of the

second Brown factor, the presence of intervening circumstances.

(See Strieff, supra, 579 U.S. at p. 238.) McWilliams argues the

discovery of a parole search condition, unlike the discovery of an

arrest warrant, can never qualify as such an intervening

circumstance. He argues it is therefore unnecessary to engage

in the Brown attenuation analysis at all — but if we do, we

should assign no attenuating significance to the discovery of the

parole search condition under the second Brown factor. In the

alternative, McWilliams argues, and the Attorney General

agrees, that discovery of a parole search condition does trigger

the Brown attenuation analysis, but on its own does very little

to attenuate the taint of illegality under the second prong of

Brown. The District Attorney of Santa Clara County,

participating as an amicus curiae in support of the judgment of

the Court of Appeal, disagrees with McWilliams on both counts;

in the District Attorney’s view, discovery of a parole search

condition is at least as attenuating a circumstance as the

discovery of an arrest warrant, and strongly supports finding

attenuation in this case and others like it.

11

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

At the outset, we decline McWilliams’s invitation to hold

that discovery of a parole search condition can never qualify as

an intervening circumstance that tends to attenuate the link

between an unlawful stop and an ensuing search. Many of the

arguments McWilliams makes in support of this proposed

categorical rule are squarely foreclosed by precedent.

McWilliams argues, for instance, that the discovery of the parole

search condition is itself the “fruit” of the illegal detention, and

for that reason cannot attenuate the primary taint. We rejected

much the same argument in Brendlin. We explained that, under

long-standing high court precedent, exclusion “ ‘may not be

premised on the mere fact that a constitutional violation was a

“but-for” cause of obtaining evidence.’ ” (Brendlin, supra, 45

Cal.4th at p. 268, quoting Hudson, supra, 547 U.S. at p. 592.)

Discovery of an arrest warrant, we explained, is not “ ‘ “ ‘fruit of

the poisonous tree’ simply because it would not have come to

light but for the illegal actions of the police.” ’ ” (Brendlin, at

p. 268; accord, Strieff, supra, 579 U.S. at p. 235.) The same is

true when a records check reveals a parole search condition

rather than a warrant.

McWilliams also attempts to analogize the discovery of a

parole search condition following an unlawful detention to the

discovery of contraband that comes into plain view because of

an unlawful search or seizure. In the latter situation, where a

police officer’s illegal conduct “caused the evidence to be placed

in plain view” — for instance, where an unlawful order to exit a

car leads to the observation of contraband on the driver’s

person — the police may not rely on the plain view doctrine to

justify a warrantless seizure. (U.S. v. Davis (10th Cir. 1996) 94

F.3d 1465, 1470.) But as McWilliams’s own cases explain, the

rationale for this rule is specific to the plain view doctrine,

12

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

whose “ ‘first and most fundamental prerequisite to reliance

upon plain view as a basis for a warrantless seizure . . . is that

“the initial intrusion which brings the police within plain view

of such an article” is itself lawful.’ ” (Ibid. [“ ‘The [plain view]

doctrine serves to supplement the prior justification — whether

it be a warrant for another object, hot pursuit, search incident

to lawful arrest, or some other legitimate reason for being

present unconnected with a search directed against the

accused.’ ”].) This is not a plain view case, and plain view cases

do not help McWilliams here.

McWilliams’s invocation of the conditions on valid parole

searches, as set forth in People v. Sanders (2003) 31 Cal.4th 318,

333 (Sanders), is likewise unavailing. Sanders holds that, to

conduct a valid parole search, an officer must be aware of the

search condition at the time; it is not enough for the officer to

learn of the condition after the search is done. McWilliams

suggests that by parity of reasoning, the discovery of a parole

search condition should not operate to validate a prior

unauthorized detention. But for essentially the same reasons

we explained in Brendlin, the rule of Sanders is inapposite here.

(See Brendlin, supra, 45 Cal.4th at p. 273.) No one here

contends the post-detention discovery of a parole search

condition should retroactively validate the initial decision to

detain McWilliams. The illegality of the detention is

undisputed. The question is whether the mid-detention

discovery of a parole search condition is an intervening

circumstance that justifies making an exception to the

exclusionary rule for the evidence turned up in that search.

That is a question Sanders does not answer.

Ultimately, however, we need not and do not decide here

whether or under what circumstances discovery of a parole

13

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

search condition could ever sufficiently dissipate the taint from

an initial unlawful detention. 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 reaching a contrary conclusion, the Court of Appeal

emphasized the evident similarities between a valid arrest

warrant and a parole search condition: Like an arrest warrant,

a parole search condition necessarily predates the detention and

is authorized by state law independent of the detention. (See

Pen. Code, § 3067.) The court’s reliance on these features was

understandable because these are the very same features we

mentioned in Brendlin when we concluded that the discovery of

a valid arrest warrant was an intervening circumstance that

attenuated the causal chain between the unlawful stop and the

incriminating evidence. (Brendlin, supra, 45 Cal.4th at p. 271.)

But despite their similarities, the arrest warrants at issue in

Brendlin and Strieff differ from parole search conditions in a

critical respect: As judicial mandates to take a suspect into

custody, the warrants not only authorized, but compelled,

further action by the officer.

Although we did not mention this point explicitly in

Brendlin, the court emphasized it in Strieff. After laying out a

set of general observations about the lack of connection between

the unlawful stop and the existence of the arrest warrant, the

court went on to explain that “once Officer Fackrell discovered

the warrant, he had an obligation to arrest Strieff. ‘A warrant

is a judicial mandate to an officer to conduct a search or make

an arrest, and the officer has a sworn duty to carry out its

provisions.’ [Citation.] Officer Fackrell’s arrest of Strieff thus

14

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

was a ministerial act that was independently compelled by the

pre-existing warrant.” (Strieff, supra, 579 U.S. at p. 240.)3

By contrast to the arrest warrant in Strieff, 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, nor does it compel further action of any sort. Whether

to take further action is largely within law enforcement’s

discretion; the search of a parolee is generally permissible, so

long as the search is not arbitrary, capricious, or harassing.

(People v. Reyes (1998) 19 Cal.4th 743, 754 (Reyes).)

We agree with other courts that have held that the

absence of compulsion to continue the interaction after an initial

unlawful detention makes a difference in the attenuation

analysis. (See State v. Christian (Kan. 2019) 445 P.3d 183, 190

[distinguishing Strieff and finding insufficient attenuation

where officer could choose whether to arrest defendant for

having no proof of insurance].) As a general rule, the law

recognizes that an intervening circumstance can break the

chain of causation when that circumstance involves “an act of a

third person or other force which by its intervention prevents

the actor from being liable for harm” the actor played a

substantial role in bringing about. (Rest.2d Torts, § 440; see

Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573, fn. 9.)

The corollary is that, as a general matter, defendant’s “own

3

The District Attorney suggests that the arrest warrant in

Strieff — which was for a traffic violation — would not have

required custodial arrest under California law. Be that as it

may, the high court’s analysis presumed that arrest was

compelled under the Utah arrest warrant at issue in the case.

15

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

conduct cannot be an intervening cause sufficient to defeat a

finding of causation. ‘A superseding cause is something culpable

that intervenes . . . , some action of a third party that makes the

plaintiff’s injury an unforeseeable consequence of the

defendant’s negligence.’ ” (Whitlock v. Brueggemann (7th Cir.

2012) 682 F.3d 567, 584; see also, e.g., Von der Heide v. Com.,

Dept. of Transp. (Pa. 1998) 718 A.2d 286, 289.)

The rule of Strieff comports with this ordinary

understanding of causation principles: As Strieff conceived of it,

the discovery of the arrest warrant represented a form of

compulsion by a third party magistrate that left the officer with

no effective choice but to carry out an arrest. (Strieff, supra, 579

U.S. at p. 240.) This case, however, involves no such third party

compulsion; the discovery of McWilliams’s parole status merely

gave the detaining officer the discretion to conduct a

warrantless, suspicionless search. At least absent other factors,

the detaining officer’s discovery of a parole search condition, and

subsequent decision to conduct a parole search, does

comparatively little to disrupt the causal chain.

This conclusion about the relative attenuating force of

parole search conditions fits with the core concern underlying

the Brown attenuation analysis. As Brown made clear, the

factors must be applied in such a way as to ensure the officer is

not “unduly exploit[ing]” an unlawful search or seizure to

produce incriminating evidence. (Brown, supra, 422 U.S. at

p. 603.) The existence of a valid arrest warrant significantly

alleviates such exploitation concerns because the warrant

represents a “ ‘judicial mandate’ ” to take further action (Strieff,

supra, 579 U.S. at p. 240), that “is not reasonably subject to

interpretation or abuse” (Brendlin, supra, 45 Cal.4th at p. 271,

citing Hudson, supra, 547 U.S. at p. 595 and U.S. v. Green (7th

16

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

Cir. 1997) 111 F.3d 515, 522). Because a parole search

condition, by contrast, entails no such compulsion but instead

invokes law enforcement discretion, it raises greater concerns

about the course of events connecting an unlawful stop to an

ensuing search. There is a danger that an officer who has

unlawfully stopped a bystander without reasonable suspicion

will regard the discovery of a parole search condition as a license

to continue pursuing a baseless hunch, rather than fairly

considering whether a search is appropriate to assess the

individual’s rehabilitation and monitor “his transition from

inmate to free citizen.” (Reyes, supra, 19 Cal.4th at p. 752.) In

other words, in the hands of the very same officer who conducted

an illegal stop, there is a risk that the discretion to conduct a

parole search will lead to the exploitation of that illegal conduct,

rather than severing the causal connection between the stop and

the search.

McWilliams and the Attorney General agree that because

the choice to conduct a parole search was within Officer

Croucher’s discretion, rather than a matter of compulsion, the

discovery of the parole search condition does little to attenuate

the connection between Officer Croucher’s unlawful detention of

McWilliams and the evidence at issue. But the District

Attorney, acting as amicus curiae in support of the Court of

Appeal’s judgment, argues that the absence of compulsion to

conduct a parole search ought to be irrelevant to the analysis.

We are unpersuaded.

In support of the argument, the District Attorney observes

that there was also discretion at play in Brendlin and Strieff:

Although the officers in those cases may have been under

judicial compulsion to take the suspects into custody after they

discovered outstanding arrest warrants, the District Attorney

17

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

points out, the officers were not compelled to search the suspects

incident to arrest and instead chose to do so as a matter of

discretion. True enough, but the argument mistakes the point.

We do not hold that any element of discretion necessarily

defeats a claim of attenuation; we simply conclude, rather, that

the absence of compulsion naturally weakens the claim. In

Strieff, the court explained that once Officer Fackrell discovered

an outstanding warrant for Strieff’s arrest, the discovery “broke

the causal chain between the unconstitutional stop and the

discovery of evidence by compelling Officer Fackrell to arrest

Strieff.” (Strieff, supra, 579 U.S. at p. 242.) Once that causal

chain was broken by the compulsion to arrest, the ultimate

decision to conduct a search incident to arrest was attributable

to the legally required arrest itself — “to protect Officer

Fackrell’s safety” as he carried out the arrest — and not the

initial unlawful decision to stop Strieff. (Id. at p. 241, citing

Arizona v. Gant, supra, 556 U.S. at p. 339.) Here, there was no

comparable compulsion for Officer Croucher to take any

particular action regarding McWilliams, and thus no

comparable force breaking the causal chain between Croucher’s

unconstitutional detention of McWilliams and his discretionary

decision to search.

The District Attorney next argues that an officer’s

discretion to conduct a search is constrained in various ways

that limit the opportunities for “interpretation or abuse.”

(Brendlin, supra, 45 Cal.4th at p. 271.) The authorized scope of

a parole search is ordinarily clear; the officer must be aware of

the search condition before conducting the search (Sanders,

supra, 31 Cal.4th at p. 333); and the officer may not conduct a

search that is arbitrary, capricious, or harassing (Reyes, supra,

19 Cal.4th at p. 752). These constraints mean, for instance, that

18

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

an officer may not conduct a particular parole search in a

harassing manner, or for reasons unrelated to any legitimate

penological purpose, such as personal animosity toward the

parolee. (Ibid.; see In re Anthony S. (1992) 4 Cal.App.4th 1000,

1004.) These limitations on parole searches are certainly

important, but they do not answer the Fourth Amendment

question at hand. The issue before us does not concern the

validity of the parole search, standing alone, but instead

concerns whether a court must exclude evidence in response to

an immediately preceding, concededly unconstitutional

detention. And as already explained, despite the limitations

governing parole searches, the law leaves an officer substantial

discretion whether to conduct such searches, which weakens the

case for finding a break in the causal chain connecting that

unlawful detention and the discovery of evidence.

Taking a different tack, the District Attorney argues that

the discovery of a parole search condition must have at least as

much attenuating force as the discovery of an arrest warrant

because a parolee has a “significantly diminished expectation of

privacy in comparison to a mere arrestee.” (See Samson v.

California (2006) 547 U.S. 843, 852 [parolees “have severely

diminished expectations of privacy by virtue of their status

alone”].) This argument, too, confuses the issue. To be sure,

parolees’ diminished expectation of privacy is the reason the

Fourth Amendment generally permits suspicionless parole

searches. (Id. at p. 847.) But the question before us does not

involve the constitutionality of parole searches; it is whether the

discovery of the parole search condition in this case sufficiently

attenuated the taint stemming from an initial unconstitutional

detention. To answer this question, we evaluate “the causal link

between the government’s unlawful act and the discovery of

19

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

evidence.” (Strieff, supra, 579 U.S. at p. 238.) For purposes of

this causation analysis, McWilliams’s expectations of privacy as

a parolee have no particular relevance.

Finally, the District Attorney points to an out-of-state case

as an example of the attenuating force of a parole search

condition. (State v. Fenton (Idaho Ct.App. 2017) 413 P.3d 419.)

There, the police officer who made an unlawful stop discovered

the defendant was on parole and called the defendant’s

probation officer, who then decided to conduct a search after he

arrived on the scene. (Id. at pp. 421–423.) This case is unlike

Fenton, however, in that the officer who initially stopped

McWilliams and the officer who decided to conduct the parole

search were one and the same. To decide this case, and most

cases like it, we need not decide whether the third party

probation officer’s decision to search in Fenton sufficiently

attenuated the discovery of incriminating evidence from the

initial unlawful stop. We likewise need not consider whether,

as the Attorney General argues, the discovery of a parole search

condition might sufficiently dissipate the taint of an initial

unlawful stop when there is a substantial period of time between

the discovery and a parole search. It suffices to conclude that in

this case — where the same officer who conducted the illegal

detention also decided, minutes later, to conduct a parole search

that yielded incriminating evidence — the discovery of the

parole search condition did relatively little to break the causal

connection between the two events.

B.

We turn, then, to the third and final Brown factor, the

flagrancy and purposefulness of police misconduct. While the

first two factors identify forces — time and intervening

20

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

circumstances — that may tend to attenuate the causal

connection between the misconduct and the discovery of

evidence, the focus of the third factor is different: It “ ‘is directly

tied to the purpose of the exclusionary rule — deterring police

misconduct.’ ” (Brendlin, supra, 45 Cal.4th at p. 271.) Police

misconduct, the high court has said, is “most in need of

deterrence . . . when it is purposeful or flagrant.” (Strieff, supra,

579 U.S. at p. 241; accord, Brendlin, at p. 271.) The greater the

degree of purposefulness or flagrancy associated with the police

misconduct, the greater the justification required to admit

evidence obtained through the misconduct.4

To the extent McWilliams suggests that Officer Croucher’s

decision to detain him without reasonable suspicion itself

establishes purposeful or flagrant misconduct under the third

Brown factor, the law is to the contrary. Every attenuation case

involves an improper search or seizure, but not every

impropriety rises to the level of purposeful or flagrant illegality.

(Strieff, supra, 579 U.S. at pp. 242–243; see Brendlin, supra, 45

Cal.4th at p. 271.) But as McWilliams emphasizes, here Officer

Croucher’s basis to suspect McWilliams of violating the law was

4

Where neither of the first two Brown factors establishes

sufficient attenuation, courts have held that evidence may be

subject to suppression even absent flagrant or purposeful

conduct. (See U.S. v. Garcia (9th Cir. 2020) 974 F.3d 1071, 1082

[“[E]ven accepting the district court’s finding that the officers

acted in good faith, this fact alone is not enough to justify

admission of the evidence.”]; U.S. v. Bocharnikov (9th Cir. 2020)

966 F.3d 1000, 1005 [same]; U.S. v. Perez-Esparza (9th Cir.

1979) 609 F.2d 1284, 1291 [“[T]he last factor is insufficient to

overcome the lack of attenuation dictated by the first two

factors.”].) Here, however, we find purposeful conduct and so

have no occasion to consider how to weigh the third Brown factor

under different circumstances.

21

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

not merely insufficient — it was essentially nonexistent. The

security guard in a business parking lot had reported suspicious

activity involving two individuals riding bicycles and shining

flashlights into cars. Officer Croucher found McWilliams alone

and reclined inside a car, with no bicycle or flashlight in sight.

Rather than approaching McWilliams to ask him for

information, Officer Croucher instead ordered McWilliams out

of the car for asserted safety concerns, thereby effecting a

seizure of his person. Then, despite these asserted safety

concerns, Officer Croucher allowed McWilliams to return to his

car to retrieve his identification and used that identification to

run a records check.

Officer Croucher may not have acted in bad faith when he

detained McWilliams. But a finding of purposefulness does not

require a showing of bad faith; the law instructs that officers act

purposefully for Brown purposes when they conduct “a

suspicionless fishing expedition ‘in the hope that something

[will] turn up.’ ” (Strieff, supra, 579 U.S. at p. 242, quoting

Taylor v. Alabama (1982) 457 U.S. 687, 691; accord, e.g.,

Brendlin, supra, 45 Cal.4th at pp. 271–272; see Bates, supra,

222 Cal.App.4th at p. 71 [finding purposefulness where officer

stopped a car “without any observation of possible wrongdoing,”

based on “a hunch that [a suspect] might be in the vehicle”].)

One post-Strieff appellate court, for example, has found

purposefulness and flagrancy where an officer stopped the

defendant in an attempt to identify a person connected to a

shooting that occurred two days earlier, “on the basis of a

photograph that provided little meaningful identifying

information to the police besides the race” of the person, and

despite the absence of any indication that the person in the

photograph had committed any crime in the first place. (U.S. v.

22

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

Walker (2d Cir. 2020) 965 F.3d 180, 183; see id. at pp. 184, 188.)

Then, even after it became evident that the defendant was not

the person depicted in the photograph, the officer conducted a

records check that revealed a valid arrest warrant; conducted a

search incident to arrest; and found incriminating evidence.

Notwithstanding Strieff, the court concluded the evidence

should have been suppressed based on consideration of the third

Brown factor. (Walker, at p. 190.) The problem with the stop,

the Second Circuit explained, was “not simply the lack of

reasonable suspicion,” but “the extreme lack of reasonable

suspicion.” (Id. at p. 189.) The court added that reliance on the

photograph to make the stop necessarily “involved

impermissible and manifest stereotyping, which cannot be

characterized as merely negligent conduct.” (Id. at p. 190.) And

even if the initial justification for the stop “were not woefully

anemic,” the officer’s decision to run a records check, even after

he verified the defendant was not the subject of the photograph,

amounted to “a mere fishing expedition.” (Id. at pp. 189–190.)

The Attorney General and District Attorney argue Officer

Croucher’s conduct in this case is comparable to the conduct of

the officer in Strieff, which the court viewed as neither

purposeful nor flagrant but “at most negligent.” (Strieff, supra,

579 U.S. at p. 241.) We are unpersuaded by the comparison. In

Strieff, the officer had observed Strieff exiting what the officer

reasonably believed to be a drug house; his primary error was in

failing to observe how long Strieff remained at the location,

which meant he “lacked a sufficient basis to conclude that Strieff

was a short-term visitor who may have been consummating a

drug transaction.” (Strieff, at p. 241.) In this case, by contrast,

McWilliams had no connection whatsoever with the reported

suspicious activity that prompted Officer Croucher’s

23

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

investigation; he was found alone, seated in a car rather than

riding a bicycle, with nary a flashlight in sight.

Nor do we view the officer’s conduct in this case as

comparable to that in Brendlin, in which we found nothing in

the record to indicate the deputy who instigated the stop was

engaged in a mere fishing expedition. (Brendlin, supra, 45

Cal.4th, supra, at p. 271.) In Brendlin, the officer offered a

justification for the suspicion of criminality that prompted the

traffic stop: that, in his experience, cars bearing expired

registration tabs and temporary stickers are frequently being

operated illegally. Though the justification was insufficient to

justify the stop, we explained that “the insufficiency was not so

obvious as to make one question [the deputy]’s good faith in

pursuing an investigation of what he believed to be a suspicious

registration.” (Ibid.) Here, by contrast, Officer Croucher offered

no basis — rooted in experience or otherwise — for believing

McWilliams was involved in the suspicious parking-lot activity

he had set out to investigate.

Of course, neither is this case on all fours with Walker,

where the investigating officer stopped an individual based on a

perceived resemblance to a photograph of a person who, as far

as the officer knew, had not committed any crime, and where

the two individuals bore no resemblance to one another besides

the color of their skin. But while Walker may have involved

more flagrant misconduct than this case, it also involved a

search conducted after the discovery of a valid arrest warrant;

even so, and despite Strieff, the court in that case concluded that

the discovery was not sufficiently attenuating under the

circumstances of that case. This case, by contrast, concerns a

search conducted after the discovery of a parole condition

authorizing suspicionless searches — a discovery that, for

24

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

reasons already discussed, has meaningfully less attenuating

force than the discovery of a valid arrest warrant. 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.

(See Brown, supra, 422 U.S. at p. 600; Strieff, supra, 579 U.S. at

p. 241.)

McWilliams, who is Black, also urges us to find

purposefulness and flagrancy based on an inference that racial

bias may have played a role in Officer Croucher’s decision to

detain him. As McWilliams himself acknowledges, however,

nothing in the factual record supports that inference. But he

asks us to consider a more general point: that “seemingly small

constitutional violations can add up to problems of significant

national dimensions.” (People v. McWilliams, supra, H045525

(conc. & dis. opn. of Danner, J.), citing, inter alia, Strieff, supra,

579 U.S. at p. 254 (dis. opn. of Sotomayor, J.) [“it is no secret

that people of color are disproportionate victims” of unlawful,

suspicionless stops].) The Attorney General acknowledges this

broader point, and agrees that courts must be mindful about

rules that encourage officers to conduct stops “in an arbitrary

manner” and “risk treating members of our communities as

second-class citizens.” (Strieff, at p. 252 (dis. opn. of Sotomayor,

J.).) As the Attorney General recognizes, a rule permitting

officers to rely exclusively on discretionary parole search

conditions to purge the taint of unconstitutional, suspicionless

detentions would risk creating such incentives; ultimately, a

more careful approach to the attenuation analysis “is in the

interest of society” as well as “the individuals who experience

the deprivation of their Fourth Amendment rights.”

25

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

In sum, the People have not carried their burden of

establishing the attenuation doctrine applies here. No

substantial time passed between Officer Croucher’s illegal

detention of McWilliams and his seizure of the evidence in this

case. Officer Croucher’s subsequent discovery of McWilliams’s

parole search condition, and his discretionary decision to

conduct the parole search, did little to attenuate the connection

between the unlawful stop and the evidence. And Officer

Croucher’s decision to conduct the stop, without any evident

basis to believe McWilliams was connected to the activity Officer

Croucher set out to investigate, indicates a purposefulness that

further justifies the exclusion of the evidence. We conclude the

evidence Officer Croucher found after his illegal detention of

McWilliams is not admissible.5

5

Although People v. Durant, supra, 205 Cal.App.4th 57,

found attenuation on a different set of facts, we disapprove the

opinion to the extent its reasoning is inconsistent with this

opinion.

26

PEOPLE v. MCWILLIAMS

Opinion of the Court by Kruger, J.

IV.

We reverse the judgment of the Court of Appeal and

remand for further proceedings consistent with this opinion.

KRUGER, J.

We Concur:

GUERRERO, C. J.

CORRIGAN, J.

LIU, J.

GROBAN, J.

JENKINS, J.

CANTIL-SAKAUYE, J.*

*

Retired Chief Justice of California, assigned by the Chief

Justice pursuant to article VI, section 6 of the California

Constitution.

27

PEOPLE v. MCWILLIAMS

S268320

Concurring Opinion by Justice Liu

I agree with today’s opinion that Officer Croucher’s

“discretionary decision to conduct the parole search [of

defendant Duvanh McWilliams] did not sufficiently attenuate

the connection between the officer’s initial unlawful decision to

detain McWilliams and the discovery of contraband.” (Maj. opn.,

ante, at p. 2.) Our reasoning focuses on the discretionary nature

of a search pursuant to a parole search condition. (Id. at pp. 14–

17.) I write separately to note that in such circumstances, an

officer’s decision-making may be vulnerable to implicit biases

that result in a heightened risk of exploitation of the unlawful

detention. This reality is a proper consideration under the

second factor of the attenuation doctrine set out in Brown v.

Illinois (1975) 422 U.S. 590, 603–604.

In analyzing whether the discovery of a parole search

condition is an intervening circumstance under the second

Brown factor, today’s opinion says: “By contrast to the arrest

warrant in [Utah v. Strieff (2016) 579 U.S. 232], 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, nor does it compel further action of any sort. Whether

to take further action is largely within law enforcement’s

discretion . . . .” (Maj. opn., ante, at p. 15.) The attenuation

doctrine’s treatment of a search incident to arrest on an

1

PEOPLE v. MCWILLIAMS

Liu, J., concurring

outstanding warrant recognizes the mandatory nature of the

arrest and reasons that “the ultimate decision to conduct a

search . . . [is] attributable to the legally required arrest itself —

‘to protect [the officer]’s safety’ as he carrie[s] out the arrest —

and not the initial unlawful decision to stop [the defendant].”

(Id. at p. 18, quoting Utah v. Strieff, at p. 241.) A search incident

to such an arrest is, as the Attorney General said at oral

argument, “something that operates independently of . . . [the

officer’s] implicit biases.”

The same cannot be said of an officer’s discretionary

decision to conduct a search pursuant to a parole condition.

Empirical studies have shown that “the conditions under which

implicit biases translate most readily into discriminatory

behavior are when people have wide discretion in making quick

decisions with little accountability.” (Kang et al., Implicit Bias

in the Courtroom (2012) 59 UCLA L.Rev. 1124, 1142; see id. at

pp. 1142–1150 [citing studies]; Casey et al., Addressing Implicit

Bias in the Courts (2013) 49 Ct.Rev. 64, 68 & fn. 38 [citing

studies].) As Justice Danner noted in the Court of Appeal, the

issue is not racism in the sense of intentional discrimination. It

is the operation of “attitudes and stereotypes” that “are not

consciously accessible through introspection” and “can function

automatically.” (Kang et al., at p. 1129.) Research confirms

what is no surprise as a matter of common sense: On-the-spot

discretionary decisions are vulnerable to implicit bias because

they are neither constrained by a clear rubric of relevant criteria

nor preceded by extensive deliberation. Where a discretionary

search is preceded by an unlawful detention, the very impulses

that may have given rise to the initial detention may also

contribute to an officer’s decision to conduct the search. Such

impulses may include the well-documented unconscious

2

PEOPLE v. MCWILLIAMS

Liu, J., concurring

“stereotype of Black Americans as violent and criminal.”

(Eberhardt et al., Seeing Black: Race, Crime, and Visual

Processing (2004) 87 J. Personality & Soc. Psychol. 876, 876; see

Hetey & Eberhardt, Racial Disparities in Incarceration Increase

Acceptance of Punitive Policies (2014) 25 Psychol. Sci. 1949.)

Black individuals like McWilliams disproportionately

bear the brunt of discretionary decisions by law enforcement.

“Black Californians are significantly more likely to be stopped

than white Californians, and experiences during stops and

outcomes afterward also vary. . . . Black individuals are more

than twice as likely to be searched as white individuals.”

(Lofstrom et al., Racial Disparities in Law Enforcement Stops

(Oct. 2021) p. 25.) Not only are Black people stopped and

searched more often, but such searches are less likely to yield

evidence or contraband. (Id. at pp. 14–16; see People v.

Tacardon (2022) 14 Cal.5th 235, 264 (dis. opn. of Liu, J.) [citing

Ayres & Borowsky, A Study of Racially Disparate Outcomes in

the Los Angeles Police Department (Oct. 2008) pp. 5–8 [Black

and Hispanic residents of Los Angeles, compared to Whites,

were more likely to be stopped, frisked, searched, and arrested

but significantly less likely to be found with weapons or drugs];

Gross & Barnes, Road Work: Racial Profiling and Drug

Interdiction on the Highway (2002) 101 Mich. L.Rev. 651, 668

[searches of White drivers in Maryland reveal drugs 22% more

often than searches of Black drivers and over 200% more often

than searches of Hispanic drivers]; Note, Discrimination During

Traffic Stops: How an Economic Account Justifying Racial

Profiling Falls Short (2012) 87 N.Y.U. L.Rev. 1025, 1040

[searches of White drivers in Illinois reveal contraband over 50%

more often than searches of non-White drivers]]; cf. Lofstrom et

al., at p. 15 [contraband or evidence is found in 21.4 percent of

3

PEOPLE v. MCWILLIAMS

Liu, J., concurring

searches overall]; Bar-Gill & Friedman, Taking Warrants

Seriously (2012) 106 Nw. U. L.Rev. 1609, 1655 [“police find

evidence in only about 10% to 20% of the total traffic searches”].)

For every search of a Black person that yields contraband, there

are far more — and disproportionately more — searches of

Black people that turn up nothing. These practices are not only

inefficient but also detrimental to building trust between

minority communities and law enforcement. (People v.

Tacardon, at p. 264 (dis. opn. of Liu, J.).)

As today’s decision explains, “[t]here is a danger that an

officer who has unlawfully stopped a bystander without

reasonable suspicion will regard the discovery of a parole search

condition as a license to continue pursuing a baseless hunch,

rather than fairly considering whether a search is appropriate

to assess the individual’s rehabilitation and monitor ‘his

transition from inmate to free citizen.’ [Citation.] In other

words, in the hands of the very same officer who conducted an

illegal stop, there is a risk that the discretion to conduct a parole

search will lead to the exploitation of that illegal conduct, rather

than severing the causal connection between the stop and the

search.” (Maj. opn., ante, at p. 17.) It is appropriate for courts

to recognize, in applying the second factor of Brown’s

attenuation inquiry, that this risk in a given case may be

heightened by the operation of implicit biases, including the

unconscious association between Blackness and criminality.

LIU, J.

4

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. McWilliams

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published)

Review Granted (unpublished) XX NP opn. filed 3/8/21 – 6th Dist.

Rehearing Granted

__________________________________________________________

Opinion No. S268320

Date Filed: February 23, 2023

__________________________________________________________

Court: Superior

County: Santa Clara

Judge: David A. Cena

__________________________________________________________

Counsel:

William M. Robinson, under appointment by the Supreme Court, and

Marc McKenna, under appointment by the Court of Appeal, for

Defendant and Appellant.

Martin F. Schwarz, Public Defender (Orange), Laura Jose, Chief Public

Defender, Adam Vining, Assistant Public Defender, and Abby Taylor,

Deputy Public Defender, for Orange County Public Defender’s Office as

Amicus Curiae on behalf of Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,

Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant

Attorney General, Catherine A. Rivlin, Karen Z. Bovarick, Seth K.

Schalit and Amit Kurlekar, Deputy Attorneys General, for Plaintiff

and Respondent.

Jeffrey F. Rosen, District Attorney (Santa Clara), and Jeff Rubin,

Deputy District Attorney, for Santa Clara County District Attorney’s

Office as Amicus Curiae on behalf of Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

William M. Robinson

Sixth District Appellate Program

95 South Market Street, Suite 570

San Jose, CA 95113

(408) 241-6171

Amit Kurlekar

Deputy Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102

(415) 510-3810