Lecture Notes on the Exclusionary Rule and the Fruit of the Poisonous Tree Doctrine

Lecture Notes on the Exclusionary Rule and the Fruit of the Poisonous Tree Doctrine (Article prepared by instructor Migdalia Castillo-Gerding, J.D., LL.M. Material taken and revised from Gilbert Law Summaries and Lawshelf Educational Media) The Fourth Amendment to the Constitution of the United States reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." General Principles The exclusionary rule is a remedy for violations of a person’s Fourth, Fifth and Sixth Amendment rights. The basic principle of the exclusionary rule is that evidence obtained by an illegal search or seizure is not admissible in a criminal proceeding against the victim of the search or seizure as proof of guilt. The rule applies in both federal cases [Weeks v. United States, 232 U.S. 383 (1914)] and state cases [Mapp v. Ohio, 367 U.S. 643 (1961)]. The Fourth Amendment limitations apply to any governmental search or seizure. Accordingly, evidence unlawfully obtained by federal officers is inadmissible in state as well as federal cases, and vice versa. One important corollary to the exclusionary rule is the “fruit of the poisonous tree” doctrine. This rule holds that in addition to the material uncovered during the illegal search being inadmissible, any evidence that is later gathered as an indirect result of the illegal search will also be excluded. [Wong Sun v. United States, 371 U.S. 471 (1963)]. General Scope All evidence that has been illegally obtained must be excluded. In addition, the use of other evidence that has been acquired directly or indirectly as a result of an illegal search or arrest (called the tainted fruit of the poisonous tree) is not allowed. [Nardone v. United States, 308 U.S. 338 (1939); Wong Sun v. United States, 371 U.S. 471 (1963)] Example (1): The police illegally search the defendant’s car and find drugs. The drugs will be excluded as evidence in the case against the defendant in accordance with the exclusionary rule. Example (2): The police conduct an illegal search of the defendant’s home and find a map showing the location of a well-hidden, remotely located outdoor marijuana field. The police go to the field and seize the marijuana. Under the doctrine of "fruit of the poisonous tree," the marijuana will be excluded as evidence in the case against the defendant as it stemmed directly from an illegal search. Dissipation of the Taint Evidence otherwise not admissible may be allowed if the prosecution demonstrates that the taint has been removed. This may be accomplished in three ways: (1) Inevitable discovery: If the police would have discovered the evidence regardless of their illegal action, the evidence will be admissible. The prosecution must show “inevitable discovery” by a preponderance of the evidence. If discovery of the evidence was "inevitable", the evidence may be admitted, as it was not then the illegal search that caused the evidence to be found. “Inevitable” is a strong word, and in order to admit evidence under this exception, a court must find that police would have discovered the evidence whether or not they conducted the unreasonable search. [People v. Fitzpatrick, 32 N.Y.2d 499 (1973); Nix v. Williams, 467 U.S. 431 (1984)] Example (1): The police conduct an illegal search of the defendant’s home and find a map showing the location of an outdoor marijuana field located 50 feet behind the loading dock of a busy commercial strip. The police go to the field and seize the marijuana. The marijuana may be admitted as evidence by a court. Although the police were led to the field by information discovered during an illegal search, a court could find that discovery was inevitable, given the field's proximity to heavily used areas and the fact that the field was not well hidden. Example (2): The police perform an illegal search of Fred’s residence and discover stolen goods. On the counter they find a notepad on which Fred wrote the following: Reminder - place newspaper ad “Computer stuff for sale; cheap and hot! Call Fred 555-1234.” Based on this, the police call the number and that leads them to more evidence against Fred. The discovery was not inevitable as the ad never ran. The evidence will be excluded. (2) Independent source: If the police obtained evidence from an independent source not connected to the illegal search or seizure, the evidence is admissible. [United States v. Crews, 445 U.S. 463 (1980)] Example: If police initially discover evidence during an illegal search of a warehouse, but subsequently discover the same evidence during a valid search, the evidence is admissible. However, to avoid the exclusionary rule, the second search must be totally independent of the first, illegal search. [Murray v. United States, 487 U.S. 533 (1988)] Example: Officer Brady illegally searches Donald’s barn and discovers documents identifying Donald as the culprit behind an internet scam. The next day a confidential informant e-mails Officer Brady the same documents. The documents are admissible as evidence because there was an independent source for the evidence besides the illegal search. (3) Confessions: The illegal taint is also dissipated if there is weak link between the illegal conduct by the police and the challenged evidence. Rationale: The purpose of the exclusionary rule is to deter police misconduct (e.g., illegal arrests) that would result if the police were allowed to use evidence obtained from such misconduct. If the link between the misconduct and the evidence is weak, application of the exclusionary rules serves little purpose since the police did not rely on the illegal conduct to obtain the evidence. Example: Police had probable cause to arrest the defendant for murder. They went to his home without a warrant and arrested him, which violates the Fourth Amendment. [Payton v. New York, 445 U.S. 573 (1980)]. The defendant confessed at home, and then the police took him to the police station, where he confessed again. The Supreme Court held that the first confession must be suppressed as the fruit of an illegal arrest (fruit of the poisonous tree), but the second confession is admissible because it is not a fruit of the unlawful arrest. Because the police had probable cause to arrest the defendant, they didn’t gain anything by the illegal arrest – they could have arrested him the moment he stepped outside of his house and then brought him to the station for a confession. Thus, the subsequent statement was not an exploitation of the illegal entry, i.e., it was not a fruit of the fact that the defendant was arrested at home as opposed to someplace else. [New York v. Harris, 495 U.S. 14 (1990)] But compare: The defendant was arrested without probable cause and brought to the police station. The police read defendant his Miranda warnings three times and permitted him to see two friends. After being at the station for six hours, the defendant confessed. The Supreme Court held that the confession must be excluded because it was the direct result of the illegal arrest – if the defendant had not been arrested illegally, he could not have been in custody and probably he would not have confessed. [Taylor v. Alabama, 457 U.S. 687 (1982)] Enforcement of the Exclusionary Rule The defendant has a right to a suppression hearing outside the jury’s presence, at which a judge decides whether evidence or a confession is admissible. [Jackson v. Denno, 378 U.S. 368 (1964)] If the judge decides that the evidence or confession is admissible, the jury may consider it. A defendant has a right to testify at a suppression hearing, and if he does testify, his testimony may not be used against him at trial on the issue of guilt. [Simmons v. United States, 390 U.S. 377 (1968)] The government bears the burden of establishing admissibility of evidence or a confession by a preponderance of the evidence. [Lego v. Twomey, 404 U.S. 477 (1972)] Exceptions to the Exclusionary Rule (1) Impeachment: Illegally seized evidence may be useful to impeach the defendant’s credibility if he testifies in his own behalf at trial. A defendant’s voluntary confession may be used to impeach him even though he was not given the Miranda warnings before giving the confession. . [Harris v. New York, 401 U.S. 222 (1971)]. An involuntary confession may not be used for impeachment purposes. [Mincey v. Arizona, 437 U.S. 385 (1978)] (2) Physical Evidence: Illegally obtained physical evidence may be used to impeach the defendant’s answers to a prosecutor’s cross-examination questions. Example: At the defendant’s trial for cocaine smuggling, the defendant testified in his own defense. On crossexamination, the defendant denied having cut patches of cotton from one shirt and having sewed them to another shirt to make pockets to conceal cocaine. Furthermore, the defendant denied having a shirt with missing pockets in his luggage when arrested. Over the defendant’s objections, such a shirt found in the defendant’s luggage was allowed to be introduced at trial for the limited purpose of the jury assessing the defendant’s credibility. [United States v. Havens, 446 U.S. 620 (1980)] (3) Private Party Search: Courts will not exclude evidence illegally obtained by a private party acting independently of police direction. However, if the police request or encourage a private party to engage in an illegal search, the exclusionary rule applies. [Burdeau v. McDowell, 256 U.S. 465 (1921)] (4) Police Good Faith: The exclusionary rule does not apply when the police rely in good faith on case law later changed by another judicial opinion. [United States v. Peltier, 422 U.S. 531 (1975)], or on a facially valid statute or ordinance as it then exists, even if the law is later declared unconstitutional or changed by court decision. [Michigan v. DeFillippo, 443 U.S. 31 (1979)]. In addition, evidence will not be excluded where the police rely in good faith on a defective search warrant. [United States v. Leon, 468 U.S. 897 (1984); Massachusetts v. Sheppard, 468 U.S. 981 (1984)] However, there are four exceptions to good faith reliance on a defective search warrant. A police officer cannot get the benefit of the good faith exception if: (a) The affidavit on which the warrant was issued was so lacking in probable cause that no reasonable officer would have relied on it; (b) The warrant is defective on its face (e.g. failure of the warrant to state with particularity the place to be search or the things to be seized), (c) The affiant lied to or misled the magistrate; or (d) The magistrate has wholly abandoned his judicial role. When a search is conducted with a good faith belief that it is a legal search, the evidence discovered may be admitted. [United States v. Leon, 468 U.S. 897 (1984)]. If the officer believes that a warrant is not required for a search, or conducts a search pursuant to a warrant, which he believes to be valid, the officer can be said to be acting in good faith. On the other hand, if he knows or should have known of some defect in the warrant, the good faith exception will not apply. Recently, in Herring v. United States, 555 U.S. 135 (2009), the Supreme Court made clear that in order “[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” In other words, when police are not deliberately violating the Fourth Amendment and are acting under the auspices that their conduct is permissible, suppression is not merited. Example (1): Officer Clark executes a search in accordance with a search warrant obtained from Judge Hatchet. Unknown to Officer Clark, Judge Hatchet issued the warrant after an incorrect finding of probable cause. Although the search was illegal, the evidence is not tainted and does not fall under the exclusionary rule because Officer Clark acted in good faith upon the judge’s finding. If otherwise relevant and admissible, the evidence may be considered. Example (2): Judge Doe issues a warrant based on Officer Ellen’s sworn testimony that he saw Al Bronco removing stolen shoes from his trunk and carrying them into his home in Big Town, California. The warrant is made out for “that property owned by Mr. Al Bronco in Big Town, California.” Unbeknownst to Judge Doe, Al owns several houses in Big Town, one in which his mother lives and the others which he rents out. Officer Ellen is aware of this, and executes the search of the intended home. Because the warrant is not "precise on its face”, Officer Ellen’s search cannot be said to be in good faith and this exception to the exclusionary rule will not apply. Any evidence discovered from the search or stemming therefrom will be excluded. (5) Grand Jury: Grand jury witnesses may not refuse to answer questions based on illegally seized evidence. [United States v. Calandra, 414 U.S. 338 (1974)]. However, grand jury witnesses may refuse to answer questions based on evidence obtained in violation of the federal wiretapping statute. [Gelbard v. United States, 408 U.S. 41 (1972)] (6) Civil Proceedings: The exclusionary rule does not bar the use of evidence illegally seized by an agent of one sovereign in the civil proceedings of another sovereign. [United States v. Janis, 428 U.S. 433 (1976)] Effect of Exclusionary Rule Violation Provided that a defendant has made a timely motion to suppress, it constitutes error for a court to admit illegal obtained evidence. Such an error requires reversal unless the error is determined to be “harmless.” [Chapman v. California, 386 U.S. 18 1967)]