§ 7.01  General Rule

 

Evidence gathered in violation of the Fourth Amendment is not admissible in a criminal trial against the defendant. 

 

§ 7.02  Exceptions to the Exclusionary Rule

 

[A] Non-Trial Criminal Proceedings

 

Illegally seized evidence may constitutionally be introduced in a variety of non-trial criminal proceedings including:  grand jury proceedings, preliminary hearings, bail proceedings, sentencing, and proceedings to revoke parole.

 

[B] Impeachment at Trial

 

A prosecutor may introduce evidence obtained from a defendant in violation of the defendant's Fourth Amendment rights for the limited purpose of impeaching the defendant's: (1) direct testimony; or (2) answers to legitimate questions put to the defendant during cross-examination.  However, such evidence may not be used to impeach other defense witnesses.  James v. Illinois, 493 U.S. 307 (1990).

 

[C] “Good Faith” Exception

 

[1] In General

 

Evidence obtained by a police officer in reasonable reliance on a search warrant that is subsequently found invalid may be admissible.  United States v. Leon, 468 U.S. 897 (1984).  It is necessary that a reasonably well-trained officer would have believed that the warrant was valid.  This has come to be known as the “good faith” or Leon exception to the exclusionary rule.  Many states, however, have rejected this exception.

 

[2] Circumstances Suggesting Invalidity of Warrant

 

Circumstances which should suggest to a police officer that a search warrant is not valid include:

 (1) the magistrate who issued the warrant relied on information supplied by an affiant who knew that the statements in the document were false or who recklessly disregarded the truth;

            (2) the magistrate's behavior was so lacking in neutrality that it would have been apparent to a reasonable officer, e.g., where the magistrate acts as a rubber stamp for the police by signing the warrant without reading it, while in the presence of the officer who later claims reliance;

(3) the warrant is based on an affidavit lacking sufficient indicia of reliability, e.g., if a warrant is issued based on a wholly conclusory affidavit;

(4) the warrant is facially deficient in that it fails to particularize the place to be searched or the things to be seized.

 

[3] Improperly Executed Warrants

 

The Leon [468 U.S. 897] “good faith” rule does not cure improperly executed warrants.

 

[4] Extension of Good Faith Exception

 

The good-faith exception has been extended to a non-warrant search based on an error made by a court employee, rather than by a police officer. Arizona v. Evans, 514 U.S. 1 (1995) (a police officer relied on a clerical error made by a court employee; because of the error, the patrol car computer showed that there was an outstanding misdemeanor warrant for defendant's arrest; a subsequent warrantless search of the defendant's car incident to the arrest revealed marijuana).

 

§ 7.03 “Fruit of the Poisonous Tree” Doctrine

 

In general, the exclusionary rule extends not only to the direct products of an unconstitutional search and seizure but also to ancillary evidence that results from the illegal search.  The fruit-of-the-poisonous-tree doctrine is subject to three qualifications:

(1) the independent source doctrine;

(2) the inevitable discovery rule; and

(3) the attenuated connection principle.

 

[A] Independent Source Doctrine

 

Evidence that is not causally linked to unconstitutional governmental activity is admissible pursuant to the independent source doctrine.  The doctrine applies if the challenged evidence is:

(1)     first discovered during lawful police activity; or

(2) initially discovered unlawfully, but is later obtained lawfully in a manner independent of the original discovery. Murray v. United States, 487 U.S. 533 (1988).

 

[B] Inevitable Discovery Rule

 

Evidence obtained illegally may be admissible in a criminal trial if the prosecutor proves by a preponderance of the evidence that the challenged evidence “ultimately or inevitably would have been discovered by lawful means.” Nix v. William, 467 U.S. 431 (1984).

 

[C] Attenuated Connection Principle

 

Evidence that otherwise qualifies as fruit-of-the-poisonous-tree may be admissible if its connection with the illegal police activity is so attenuated that it is purged of the taint.  Nardone v. United States, 308 U.S. 338 (1939); Wong Sun v. United States, 371 U.S. 471 (1963).  Factors that may influence whether fruit of the poisonous tree evidence is purged of its taint include:

 

                        [1] Temporal Proximity

 

The shorter the time lapse between the Fourth Amendment violation and the acquisition of the challenged evidence, the more likely it is that a court will conclude that the evidence is tainted. For example, in Wong Sun [371 U.S. 471], the police obtained a statement from the defendant in his bedroom immediately after his unlawful arrest. The Court suppressed this evidence, “which derive[d] so immediately from the unlawful entry.”

 

[2] Intervening Events

 

The more factors that intervene between the Fourth Amendment violation and the seizure of the challenged evidence, the more likely it is that the evidence will be deemed to have lost its taint.

 

                        [a] Intervening Act of Free Will

 

An intervening act of free will can remove the taint of an earlier Fourth Amendment violation.  For example, in Wong Sun [371 U.S. 471], upon his release from jail after his unlawful arrest, the defendant later voluntarily returned to the police station and provided a written statement. The Court found that the voluntary nature of the defendant's conduct removed from his statement any statement from the initial violation.

 

However, the Court has warned that Miranda [Miranda v. Arizona, 384 U.S. 436 (1966)] warnings alone cannot convert a confession following a Fourth Amendment violation into a product of free will, breaking the link between the statement and the violation. Brown v. Illinois, 422 U.S. 59 (1975). Therefore, if the police arrest a suspect on less than probable cause, administer Miranda warnings, obtain a waiver from the suspect, and thereafter secure a confession, the question of whether the subsequent statement was the product of the suspect's free will must be determined based on the totality of the circumstances.

 

[b] Payton violation

 

Where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even when he was arrested in his home without a warrant in violation of Payton.  New York v. Harris, 495 U.S. 14 (1990).

 

[3] Flagrancy of the Violation

 

Fruit of the poisonous tree evidence is less likely to be free of taint if the Fourth Amendment violation was flagrant rather than unintentional.

 

[4] Nature of the Derivative Evidence

 

Some evidence, by its nature, is more susceptible to dissipation of the taint than other evidence, e.g., verbal evidence is more likely to be admissible than physical evidence.