The greater the willingness of the witness to freely testify, the greater the likelihood that he or she will be discovered by legal means and, concomitantly, the smaller the incentive to conduct an illegal search to discover the witness. Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come forward and offer evidence entirely of their own volition. And evaluated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live-witness testimony than other kinds of evidence. The time, place, and manner of the initial questioning of the witness may be such that any statements are truly the product of detached reflection and a desire to be cooperative on the part of the witness. And the illegality which led to the discovery of the witness very often will not play any meaningful part in the witness' willingness to testify.
After entering the defendant's shop during his break in order to speak with a female employee, a uniformed police officer noticed an envelope containing money behind the counter, and, upon examination, discovered that it held policy slips as well. Without confiscating the envelope, the officer learned by questioning the employee that it belonged to the defendant. Four months later, a government agent, acting on information supplied by the officer but without knowledge of the manner in which it was obtained, questioned the employee regarding the defendant's activities. Subsequently, the defendant denied before a grand jury that he was involved in gambling activity, but this testimony was contradicted by the employee. As a result, the defendant was indicted for perjury, and was found guilty in a bench trial by the United States District Court for the Southern District of New York. However, the District Court thereafter granted the defendant's motion to suppress the employee's testimony, concluding that it was a "fruit of the poisoned tree," and set aside the verdict. The United States Court of Appeals for the Second Circuit affirmed the suppression ruling.
Was the decision to suppress the witness’ testimony correct?
The court held that a witness's testimony should not have been suppressed because there was sufficient attenuation between the officer's unconstitutional search and the witness's testimony at a perjury trial with petitioner United States. The connection between the officer's lawless conduct and the discovery of the challenged evidence had become so attenuated as to dissipate the taint. Where not only was the alleged fruit of the poisonous tree the testimony of the live witness, but the witness was not a putative defendant, it was wrong to conclude that if the road were uninterrupted, its length was immaterial. The court held that considerations relating to the exclusionary rule and the constitutional principles had to play a factor in the attenuation analysis. The evidence indicated overwhelmingly that the testimony given by the witness was an act of her own free will and was in no way coerced or induced by official authority as a result of the officer's discovery of policy slips. Further, substantial periods of time elapsed between the time of the illegal search and the initial contact with the witness and between the latter and the testimony at trial.