In the context of criminal law, there are a few concepts that criminal defense attorneys struggle to stomach. One is the concept of “inevitable discovery,” meaning an illegal search may be excused if the evidence would have been discovered anyways in a legal manner, according to a judge. Another is “harmless error,” best described as “so what? That is a legal error that is so small it is considered insufficient to make a difference in the case.” While we understand such legal rationalization, they are often hard to agree with as a matter of principal. It just feels like certain ideals are being eroded and compromised for convenience.
Add to that list the concept of “attenuated taint,” as described in the following summary of a San Diego Superior Court case involving Omar J. Kasrawi.
The Gist of this Article: Sadly, if a police officer makes an illegal detention, that Fourth Amendment violation can be sanitized or excused if the officer discovers the suspect has an outstanding warrant, meaning any evidence obtained illegally by the officer is not suppressed. We find the erosion of the Fourth Amendment deplorable and hope this ruling from the Fourth Appellate District is appealed and reversed.
At about 4:00 a.m. on an April morning, Officer John Pardue of the San Diego Police Department was patrolling a quiet and somewhat secluded residential street in a more affluent area of town. As he was driving through the neighborhood, he saw a person walk down the sloped driveway on one side of the street, into and across the street to a legally parked car.
That person was Omar Kasrawi. He was dressed in dark clothing, including a long-sleeved puffy jacket. Pardue patrolled the area frequently and did not recognize Kasrawi. Kasrawi opened the door of the parked car. At this point, Pardue illuminated his patrol car’s spotlight and shined it on Kasrawi, pulled alongside him and asked him where he was coming from.
Kasrawi said he was coming down from Los Angeles and had stopped there to rest.
Finding the response suspicious because the residential street was several blocks from the freeway (I-5) and since Kasrawi was seen leaving a property while walking down the home’s driveway, Pardue got out of his car. He then asked Kasrawi to have a seat, placed him in handcuffs and informed him he was being detained. Pardue suspected that Kasrawi was casing vehicles.
Pardue then learned that Kasrawi had an outstanding arrest warrant and placed him under arrest. Pardue then searched Kasrawi’s pockets and found stolen items from nearby cars. In Kasrawi’s nearby Prius, officers found fistfuls of loose change, stolen gift cards and numerous purses. Officers also found methamphetamine in Kasrawi’s pocket.
Kasrawi was charged with six counts (tampering with a vehicle (Vehicle Code § 10852), auto burglary (Penal Code § 459), grand theft (Penal Code § 487(a)) related to the car burglaries and the possession of methamphetamine (Health & Safety Code § 11377(a)), as well as obtaining personal information with intent to defraud (Penal Code § 530.5(c)(1)).
Two months later, while on pretrial release, he was again arrested after he stole property from a vehicle in a condominium parking garage.
Kasrawi moved to suppress the evidence from the April incident on the basis that Officer Pardue illegally detained him, making the fruits of the detention inadmissible (Penal Code § 1538.5); Wong Sun v. United States (1963) 371 U.S. 471, 488; People v. Krohn (2007) 149 Cal.App.4th 1294, 1299. Defense counsel argued that Pardue detained Kasrawi by shining his spotlight on him, making Kasrawi stop and turn around to the police officer to have a conversation. The defense argued that Kasrawi did not feel free to leave once the spotlight was used and that it was a demonstration of authority by the police without any articulable suspicion or reasonable basis to believe he was involved in illegal activity.
The trial court judge in San Diego considered the issue a “close call,” but ultimately agreed with the People that the detention did not start until after Kasrawi offered a suspicious explanation for his presence in the neighborhood and Pardue had Kasrawi take a seat, after which Pardue handcuffed Kasrawi. So the motion to suppress was denied at the trial court level.
Kasrawi then appealed to the Fourth Appellate District Court in San Diego, which began its analysis by noting that an exception to the exclusionary rule is the intervening discovery of “a valid, pre-existing and untainted arrest warrant.” Utah v. Strieff (2016) 136 S. Ct. 2056, 2059; see also People v. Brendlin (2008) 45 Cal.4th 262.
With this law controlling, which was not argued by either party in its briefs, the Fourth Appellate District affirmed the trial court. It found that Pardue’s discovery of the outstanding arrest warrant “cured the taint of the illegal detention,” which we believe is significant in itself for agreeing that the detention was illegal, meaning use of a police spotlight can constitute a detention under circumstances like in this case.
For more information about unlawful search and seizure, please click on the following articles: