(1) Is the discovery of a parole or probation search condition an intervening circumstance that removes the taint of an illegal detention under the attenuation doctrine? (2) What constitutes purposeful and flagrant police misconduct under the attenuation doctrine analysis?

Held:

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 [9 L. Ed. 2d 441, 83 S. Ct. 407].) 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 [195 L. Ed. 2d 400, 136 S. Ct. 2056] (Strieff); People v. Brendlin (2008) 45 Cal.4th 262 [85 Cal. Rptr. 3d 496, 195 P.3d 1074] (Brendlin).)

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.

(People v. McWilliams (2023) __ Cal.5th __ (S268320).) This case was decided on 2/23/2023.

Review on this issue was also granted with briefing deferred in:

• People v. Montanez (F082023) [nonpub. opn.], review granted 6/29/2022 (S274306)