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Criminal Procedure - Outline Part 18

By Collin B. Hardee

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Exclusionary Rule

“Independent Source” and “Inevitable Discovery” Doctrines

  • 2 step test: 4th A analysis → if violated exclude the evidence?
  • Exclusionary rule is not automatic.
  • Remember
    • Weeks = announced ER
    • Mapp = ER incorporated to states
  • General rule? 4A violation = exclusion of evidence
    • Fruit of poisonous tree doctrine: Tainted evidence is excluded
    • Find constitutional violation and then see if piece of evidence came from that.
  • Exceptions to ER:
    1. Independent source
    2. Inevitable discovery
    3. Attenuation
    4. Good faith
    5. Impeachment
  • Exclusionary Rule:
    1. What poisoned the tree (constitutional violation)
    2. What is the fruit (evidence)?
    3. Did the fruit come from the poisoned tree?
    4. If so, is there an exception that sufficiently removes the poison from the fruit?

Independent source doctrine → the “fruits of the poisonous tree” doctrine should not apply where the secondary facts in question came from two sources, only one of which was related to the original illegality

  • Facts obtained indirectly through constitutional violations “do not become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.”
    1. Evidence initially located via constitutional violation
    2. Later, same evidence is located constitutionally
      • Evidence is not subject to ER, if second search not based on first search
      • Evidence may be fruit of a poisonous tree, but it is also fruit of a non‐poisonous tree
  • 2 scenarios:
    • First (Murray):
      1. Evidence initially located via constitutional violation
      2. Later, same evidence is located constitutionally
        • Evidence is not subject to ER, if second search not based on first search
        • Evidence may be fruit of a poisonous tree, but it is also fruit of a non‐ poisonous tree
    • Second:
      1. Evidence initially located lawfully
      2. Later, same evidence is located constitutionally
        • Evidence is not subject to ER
          • Ex. Officer 1 searches house with consent and finds drugs. Then, second officer pushes in out of way and gets drugs.
  • When you find something twice, only needs to be legal once.
  • Independent = evidence found twice (one good & one bad) but only seized once, seized second time.
    • Gov’t must show that would have gotten SW without illegal 1st search based on facts
  • Doesn’t happen often. Ex. Kentucky v. King was 2 separate searches.

Murray v. US (1988) – Independent Discovery Doctrine

  • “Rediscovery” of Evidence – in the situation where the police are illegally on premises, discover particular evidence, then apply for a warrant, and “rediscover” the evidence, as long as the trial court is convinced that the illegal entry did not contribute either to the officer’s decision to attempt to get a warrant or to the magistrate’s decision to grant the warrant, the evidence will be admissible even though its initial discovery was illegal
  • Rule: Independent Discovery Doctrine – so long as the prosecution can show that the officers would have applied for and properly received a warrant even had they not first entered the premises illegally, the evidence found could be admitted; it does not make any difference that the evidence that was actually discovered during the initial warrantless entry
  • Requirements:
    • Murray appears to allow admission of evidence under the “independent source” exception when three (3) requirements are satisfied:
      1. Police must have been on the premises illegally at the moment they discovered the evidence or contraband in question, i.e., the police ended up in premises for which they did not have a search warrant, and as to which no exception to the search warrant exists;
      2. Although police didn’t have a search warrant, at the moment of entry they must have had knowledge that would have entitled them to procure a search warrant, i.e., police had probable cause to believe that evidence of crime would be found on the premises; and
      3. The police must show that they would probably have eventually applied for a search warrant even had they not engaged in the illegality

Inevitable Discovery DoctrineNix v. Williams (1984) → “If the prosecution can establish that the information ultimately or inevitably would have been discovered by lawful means – here the volunteers’ search – then the deterrence rationale has so little basis that the evidence should be received.”

  • Rule: evidence may be admitted if it would “inevitably” have been discovered by other police techniques had it not first been obtained through the illegal discovery and therefore, an exception to the poisonous-tree doctrine
  • Burden of Proof – the prosecution bears the burden of showing, by a preponderance of the evidence, that the info would inevitably have been discovered by lawful means
    • This is the SAME standard as for the Independent Discovery Doctrine
  • Applies Where Derivative Evidence is a Weapon or a Body whose location the police learn about form an illegal source or improperly-obtained confession

“Attenuation” (or “Dissipation of Taint”/”Purging the Taint”) Doctrine

  • Purged Taint Situation → when the police obtain a piece of evidence indirectly through a constitutional violation, and neither the independent source nor the inevitable discovery exceptions seem to apply. In such a situation, it may nonetheless be the case that the exclusionary rule does not apply due to the “purged taint” doctrine
  • Purged Taint Doctrine Defined – if enough additional factors intervene between the original illegality and the final discovery of evidence, neither the “deterrence” nor “judicial fairness” rationales behind the exclusionary rule applies; therefore, the evidence may be admissible despite the fact that it would not have been discovered “but for” the illegality
  • Wong Sun v. US (1963) → the applicability of the “fruit of the poisonous tree” doctrine is determined by “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary/initial taint.”
    • Holding → Evidence that has been acquired through illegal police conduct is admissible when it has been so far removed from the illegal action so as to dissipate the taint of illegality
    • Rule → While evidence obtained through illegal police conduct must be excluded at trial as it is “fruit of the poisonous tree,” the connection between the illegal police conduct and a relevant piece of evidence can become so attenuated as to dissipate the taint, and such evidence may then be admissible
  • Utah v. Strieff (2016) → an officer’s discovery of the valid arrest warrant attenuated (reduced) the connection between the unlawful stop and the evidence seized incident to arrest
    • Justice Thomas Articulating Three Attenuation Factors from Brown v. Illinois (1975) – three factors the Court will take into account in deciding whether the taint from the illegality has been “purged”:
      1. the ‘Temporal Proximity” of the illegality to the fruit
        • Shorter time, e.g., two hours between illegal arrest to confession of the arrestee (Brown v. Illinois) → Inadmissible
        • Longer time, e.g., several days (Wong Sun) → Admissible
      2. the “presence of Intervening Circumstances” between the illegality and the fruit; and
        • Presence of valid arrest warrant unconnected with illegal stop was enough to “attenuate” the connection between the unlawful stop and the resulting search (Strieff) → Admissible
        • No intervening events of significance (Brown) → Inadmissible
      3. Of “particular” importance, “the Purpose and Flagrancy of the Official Misconduct
        • The illegality “had a quality of purposefulness” – the police conceded that their purpose for arresting D without probable cause was solely investigatory, making this an “expedition for evidence in the hope that something might turn up” (Brown) → Inadmissible
        • Officer was at most negligent and should have asked D whether he would speak with him, instead of demanding that he do so (Strieff) → Admissible
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