Filed 6/28/24 P. v. Kay CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

DIMITRIX JEROME KAY,

Defendant and Appellant.

 B330501

 (Los Angeles County

 Super. Ct. No. LA091812)

Appeal from order of the Superior Court of Los Angeles

County, Gregory A. Dohi, Judge. Affirmed.

Richard L. Fitzer, under appointment by the Court of Appeal,

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Idan Ivri and Melanie Dorian, Deputy Attorneys

General, for Plaintiff and Respondent.

______________________________
2

In November 2019, a burglary suspect fled from police and 

took refuge in the attic of the house in which appellant Dimitrix 

Jerome Kay (Kay) then lived. Officers detained and interviewed 

Kay while they worked to capture the burglary suspect. 

Police lacked a search warrant for the house, and the 

officer interviewing Kay requested consent to search his bedroom. 

The officer twice advised Kay that he was free to leave and stated 

expressly that Kay’s ability to leave was not conditioned on 

providing the requested consent. Kay nonetheless consented to 

the search of his bedroom, where officers discovered evidence of 

identifying information theft (Pen. Code, § 530.5).

1 The district 

attorney subsequently filed charges against Kay. 

Kay moved to suppress the evidence seized from his bedroom, 

arguing that his consent was the product of an unconstitutional 

detention. The trial court denied the motion, concluding that “even 

if [Kay’s] detention was unjustifiably long,” his “consent did not 

result from it” in light of the interviewing officer’s statements to

Kay that he was free to leave.

Kay now asks us to reverse the court’s order denying his

suppression motion. Like the trial court, however, we conclude 

that Kay’s consent to the search was sufficiently attenuated from 

any Fourth Amendment violation. We therefore affirm.

FACTUAL SUMMARY AND PROCEDURAL HISTORY2

In the early morning hours of November 1, 2019, a man 

resembling David Allen (Allen)—the boyfriend of Kay’s mother and 

a suspect in a “hot prowl” burglary—attempted to evade police 

1 All subsequent statutory references are to the Penal Code.

2 We summarize here only the facts and procedural history 

relevant to our resolution of this appeal. 
3

capture by hiding in the attic of the Sherman Oaks, California 

house where Kay resided. In an effort to apprehend the suspect, 

officers ordered all occupants of the house, including Kay, to exit

the residence.

The officers briefly detained Kay and then directed him to 

an area adjacent to the house, where he and the other occupants 

remained for the next 30 to 90 minutes while the 10 to 12 officers 

already on the scene waited for additional officers, a K-9 unit, 

and a police helicopter to assist them in forcing the suspect from 

the attic.3 Kay was barefoot and clothed in only a jockstrap and 

bathrobe during the incident; however, he was not handcuffed or 

otherwise physically restrained.

After the 30- to 90-minute period, Officer Brandon Purece

approached Kay, who was walking around and smoking a cigarette,

for an interview. During the approximately nine-minute interview, 

Kay stated that his mother (also a suspect in the burglary) had 

left several pieces of mail and other evidence of identity theft in 

the house, and that he had collected the evidence in his bedroom. 

Officer Purece, who did not possess a warrant to search the house, 

requested Kay’s consent to search his bedroom. Kay consented to 

the search and left the scene. Officers then searched Kay’s bedroom 

and seized the identity theft-related evidence.

The district attorney subsequently charged Kay with 

identifying information theft with a prior, in violation of 

section 530.5, subdivision (c)(2). Kay moved to suppress the 

evidence seized from his bedroom, arguing that his consent to the 

search was invalid because it resulted from an unconstitutional, 

unduly prolonged detention.

3 Officers later determined that the man in the attic was not, 

in fact, Allen.
4

At the suppression hearing, the prosecution maintained 

that Kay had validly consented to the search. In support of this 

position, the prosecutor offered testimony from Officer Purece, as 

well as body camera video footage capturing the interview during 

which Kay provided his consent. The footage reflects that—

although he did not do so at the outset of the interview—Officer 

Purece twice advised Kay that he was free to leave the scene before

Kay consented to the search:

“[Officer Purece]: Umm[,] [l]et me ask you this, I know you’ve 

got a room here, OK? . . . [L]et me start up with this, I already know 

who you are[.] I know your aunt and I know your mom. 

“[Kay]: Yeah, I already know you know. I’m going to be 

completely honest with you. 

“[Officer Purece]: I appreciate that.

“[Kay]: . . . I just want to be able to leave with my friend right 

now and go to his house because I’m barefoot in a jockstrap. 

“[Officer Purece]: Come here, let me, I just want to respect 

your privacy—your family is right there. 

“[¶] . . . [¶]

“[Officer Purece]: I understand that your aunt, your mom, 

[Allen], there’s a lot of issues that continue to go on here, OK? 

[S]o what I’m going to ask you, is there anything in your room? 

I don’t care about little nonsense, I’m not looking for that. What 

I’m looking for is—am I going to find stacks of mail? Am I going to 

find credit cards? Anything like that when we go up and search? 

Do you have anything like that? 

“[Kay]: In my room? There, to be . . . uhhh . . . Do you want 

me to be . . . I mean . . . uhh . . . . The mail that’s in there is not 

mine and it’s stuff that I was trying to get rid of because of all of the 

stuff my mom left behind. I’m being honest with you. I just haven’t 

been able to get rid of it all.
5

“[¶] . . . [¶]

“[Officer Purece]: OK, so there’s a stack of mail in your room,

I mean is that kind of what we’re getting at—is that what you’re 

getting at?

“[Kay]: No, there’s not . . . I don’t know what’s in my room to 

be quite honest with you. 

“[Officer Purece]: Hold on hold on look, [Kay], we’re having 

a one-on-one conversation, you’re not going to jail. 

“[Kay]: How am I not going to be going to jail? 

“[Officer Purece]: If you’re honest with me and you tell me 

what’s going on here, OK number one.

“[Kay]: OK.

“[Officer Purece]: Who’s in that attic right now? 

“[Kay]: A guy that I barely know that’s [my aunt’s] friend[,] 

Ash (phonetic)[.] I barely know him. Do you want me to be real 

with you? There is mail in my room. I’ve been trying to get rid of it. 

It’s all been left over by my mother and [Allen]. You don’t know the 

amount of stuff I’ve been trying to get rid of because of [sic] they’ve 

left there. It’s been my job to get rid of, I’ve been waiting for you 

guys to come . . . .

“[¶] . . . [¶]

“[Officer Purece]: OK, do you have anything in your bag right 

now? Any profiles?

“[Kay]: He already—The cop searched my bag.

“[¶] . . . [¶]

“[Kay]: There’s nothing in my bag. 

“[¶] . . . [¶]

“[Kay]: Everything is mine in the bag, yes. Am I allowed to 

go?

“[Officer Purece]: OK, look, yes, OK. [T]hat’s why we’re 

having this conversation.
6

“[Kay]: OK. Thank you. Thank you. I’ve been trying to 

change my life and it’s hard living in this fucking environment. 

“[¶] . . . [¶]

“[Kay]: That’s why I want to go with my friend Robert, to his 

place[.] [H]e lives at [address]. [I]f you have any questions or 

would like to ask me anything, you’re more than welcome to stop by 

there. 

“[Officer Purece]: OK I appreciate that. OK, so cool if we just 

go up and get that stuff out of your room? Just so that we can clean 

up your room, that way you don’t have to worry about anything 

else? Are you OK with that?

“[Kay]: If I can leave.

“[Officer Purece]: Yeah—I’m not, that’s not a condition of 

you leaving. I’m not—you can leave right now, I’m simply having 

a conversation with you.

“[Kay]: Yeah, yeah, yeah that’s cool, yeah.

“[Officer Purece]: I’m trying to help you out, you’re trying to 

help me out, OK, it’s a mutual thing. 

“[Kay]: Yeah, yeah[.] Just go and clear everything out, like 

you know?

“[¶] . . . [¶]

“[Kay]: I’ll do anything I can do to help you guys. . . .

“[¶] . . . [¶]

“[Kay]: I’ll do anything in my power to help you find [Allen].

“[Officer Purece]: I appreciate that. That’s our biggest 

concern. Because he’s a dangerous guy.

“[¶] . . . [¶]

“[Kay]: Dude, if I have to fucking be a fucking confidential 

informant . . . , I don’t give a fuck, I will do it. Because I want 

[Allen] fucking in jail.”
7

Kay did not testify at the hearing, nor did he introduce any 

other evidence in support of his motion to suppress.

After receiving Officer Purece’s testimony and reviewing the 

body camera footage, the trial court denied the suppression motion, 

explaining:

“Even if there was a detention in this case, even one that was 

unnecessarily prolonged, the defense has failed to show that the 

consent given by Mr. Kay somehow resulted from the detention. . . . 

[A]t two separate places[,] Mr. Kay is told, ‘You’re free to go.’ And 

he’s specifically told, ‘You can leave right now.’ His consent is not 

a condition of his being permitted to leave. [¶] Not only do the 

words, themselves, support this interpretation but the overall tone 

of the conversation is, generally speaking, pretty friendly. Mr. Kay 

himself repeatedly said . . . he wants to help the police. It’s not a 

situation in which his will was somehow overcome. . . .

“[¶] . . . [¶]

“ . . . Here, we have explicit consent on more than one 

occasion from somebody who was told, ‘You’re free to go anytime 

you want to.’ [¶] So even if the detention was unjustifiably long, 

the consent did not result from it, and I don’t think the detention 

was unjustifiably long anyway. [¶] So the motion to suppress the 

evidence is respectfully denied.”

Following denial of the motion, Kay pleaded no contest 

to identifying information theft with a prior. The trial court 

suspended imposition of sentence and placed Kay on formal 

probation for two years.

Kay timely appealed the court’s denial of his motion to 

suppress. 
8

DISCUSSION

A. Standards of Review

Under section 1538.5, a “defendant may move . . . to suppress 

as evidence any tangible or intangible thing obtained as a result of 

a seizure” if the seizure “without a warrant was unreasonable.” 

(§ 1538.5, subd. (a)(1)(A).)

In reviewing the denial of a motion to suppress, “[w]e defer 

to the trial court’s factual findings, express or implied, where 

supported by substantial evidence. In determining whether, on 

the facts so found, the search or seizure was reasonable under

the Fourth Amendment, we exercise our independent judgment.” 

(People v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser).)

B. The Trial Court Properly Denied Kay’s Motion to 

Suppress the Evidence Seized from His Bedroom

Kay contends that the trial court should have suppressed

the challenged evidence because his consent to the search of his 

bedroom was involuntary and resulted from an unduly prolonged, 

unconstitutional detention.4 We conclude, however, that the court 

properly denied the motion because Kay’s consent to the search was 

both voluntary and sufficiently attenuated from any alleged Fourth 

Amendment violation.

“The underlying constitutional requirement for all searches 

and seizures is that they be reasonable [citation] and there is a 

presumption that one conducted without a warrant is unreasonable, 

4 Although Kay raises claims pursuant to both the federal and

state Constitutions, “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 standards.” ’ ” (People v. 

McWilliams (2023) 14 Cal.5th 429, 437, fn. 2 (McWilliams).)
9

unless it falls within one of the ‘specifically established and welldelineated exceptions.’ [Citation.]” (People v. Henderson (1990) 

220 Cal.App.3d 1632, 1649–1650 (Henderson), fn. omitted.) One 

such exception exists where a search is “conducted with voluntary, 

proper consent.” (Id. at p. 1650.)

“The burden of proving the search comes within the consent 

exception to the warrant requirement is on the prosecution 

who must show the consent was valid by a preponderance of the 

evidence.” (Henderson, supra, 220 Cal.App.3d at p. 1650.) “The 

determination of voluntariness in the first instance requires careful 

examination of all facts surrounding the consent [citation] and the 

trial court’s resolution of this question is given great deference.” 

(Id. at p. 1651.)

Here, we agree with the trial court’s determination that—

particularly in light of Officer Purece’s cordial tone and his 

repeated statements that Kay was free to leave—Kay’s consent 

was voluntary. (See, e.g., People v. Williams (2007) 156 Cal.App.4th 

949, 961 [deferring to trial court’s finding that the defendant’s 

consent was voluntary where officers “went out of their way to be 

courteous,” even where the defendant was in custody].)

But this does not end our inquiry because where, as here, a 

defendant “claims a consent to search is tainted by a prior Fourth 

Amendment violation, mere voluntariness of the consent is not 

enough.” (People v. Boyer (2006) 38 Cal.4th 412, 450.) Instead, 

pursuant to “the so-called attenuation doctrine” (McWilliams, 

supra, 14 Cal.5th at p. 437), we must examine whether the 

defendant’s consent to search and resulting “evidence was obtained 

by the government’s exploitation of the illegality or whether the 

illegality has become attenuated so as to dissipate the taint.” 

(Boyer, supra, at p. 448.) 
10

“In conducting the attenuation inquiry, courts are guided by 

three factors first set out in Brown v. Illinois (1975) 422 U.S. 590, 

603–604 . . . : (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.’ [Citation.] Once the defendant establishes 

a Fourth Amendment violation, the prosecution bears the burden of 

establishing admissibility under this exception to the exclusionary 

rule.” (McWilliams, supra, 14 Cal.5th at p. 438.)

For purposes of our analysis, we assume (without deciding)

that officers subjected Kay to an unlawful detention. Applying the 

Brown factors here, we nonetheless conclude that suppression of 

the evidence seized from Kay’s bedroom is unwarranted because his

consent to the search was sufficiently attenuated from any Fourth 

Amendment violation.

The first Brown factor favors suppression, as virtually no

time elapsed between the end of Kay’s allegedly unlawful detention 

and his consent to the search that produced the challenged 

evidence. This factor, however, is the least determinative. (See 

People v. Brendlin (2008) 45 Cal.4th 262, 269–270 (Brendlin).)

The second Brown factor, in contrast, cuts against 

suppression. Officer Purece addressed Kay primarily as a witness,

rather than a suspect, twice informed Kay that he was free to leave 

the scene, and stated expressly that Kay’s ability to leave was not 

conditioned on his providing consent to search his bedroom. These 

intervening circumstances interrupted “the chain of causation 

proceeding from” the allegedly unlawful detention that otherwise 

might have tainted Kay’s consent to the search. (Brendlin, supra, 

45 Cal.4th at p. 269.)

Finally, the third Brown factor—generally regarded as “the 

most important” because of its direct tie to the exclusionary rule’s 
11

purpose of deterring police misconduct (Brendlin, supra, 45 Cal.4th 

at p. 271)—also counsels against suppression. “[T]here is no 

indication” that Kay’s detention “was part of any systemic or 

recurrent police misconduct.” (Utah v. Strieff (2016) 579 U.S. 

232, 242.) To the contrary, officers detained Kay to permit them to 

investigate “what was happening inside a house whose occupant[ ] 

[was] legitimately suspected” of wrongdoing. (Ibid.) “This was not 

a suspicionless fishing expedition ‘in the hope that something would 

turn up.’ [Citation.]” (Ibid.) And as noted, ante, Officer Purece 

did not attempt to exploit the potentially coercive effects of any 

unlawful detention in procuring Kay’s consent. Rather, he told Kay 

unambiguously that he was free to leave the scene, whether or not 

he provided the requested consent.

Accordingly, we conclude that Kay’s consent was sufficiently 

attenuated from any Fourth Amendment violation, and the trial 

court therefore properly denied Kay’s motion to suppress.

5

5 Because “we exercise our independent judgment” in 

reviewing Kay’s Fourth Amendment claim (Glaser, supra, 11 

Cal.4th at p. 362), we do not further address his argument that 

the trial court “wrongly placed the burden of proof on the defense” 

at the suppression hearing.
12

DISPOSITION

The order denying Kay’s motion to suppress is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

WEINGART, J.