§ 20.07 "Fruit of the Poisonous Tree" Doctrine
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[A] Warning: Hudson v. Michigan
Before we start the final journey of this chapter, a warning is in order: Hudson v. Michigan.183 Hudson has been cited various places in this chapter and was discussed in some depth earlier.184 It is also considered in this chapter section. The reason for the warning, however, is this: Because of Hudson, fruit-of-the-poisonous-tree law, which previously was relatively straightforward (if, as always, complex), is no longer so. The law in this area is now, at a minimum, in flux, therefore less clear, and even more complicated than before; at worst, Hudson has rendered the law in this area inconsistent in certain regards.
Justice Breyer worried in oral argument in Hudson that the Supreme Court, by its ruling in this case, might "let a kind of computer virus loose in the Fourth Amendment. I don't know what the implications of that are."185 The "virus," indeed, was set loose, and its implications uncertain. Critics of Hudson hope (some might say, fantasize) that Hudson will be "confined to its particular facts, if not promptly over-ruled."186 Whether or not one considers Hudson so harshly, it is indisputable that it has changed the law under discussion in ways not yet fully known.
[B] Conceptual Overview
[1] General Principles
In general, when the Fourth Amendment exclusionary rule applies at all, it extends not only to the direct products of governmental illegality, but also to secondary evidence that is the "fruit of the poisonous tree."187 For example, suppose that P, a police officer, on a sheer hunch, unconstitutionally searches D's house for evidence of D's suspected connection to a murder. During the search, the officer seizes a diary. The diary names a witness (W) to the murder, who agrees to testify against D at his trial.
The unconstitutional search of the house constitutes the initial illegality: It is the "poisonous tree." Under ordinary exclusionary rule principles, the diary is inadmissible at D's trial because it was the direct product of the unlawful search. However, is W's testimony admissible? The government learned about W from the diary that was searched as the result of the initial illegality; as such W's testimony — "secondary" or "derivative" evidence — is a fruit of the poisonous tree.
Assuming that the exclusionary rule is otherwise applicable, evidence that is a fruit of the poisonous tree — such as W's testimony in the hypothetical above — is ordinarily inadmissible. However, 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. The first doctrine involves circumstances in which the evidence at issue is not, in fact, a fruit of the poisonous tree and, therefore, is not subject to exclusion on this ground. The remaining two doctrines serve as exceptions to the rule that a fruit of a poisonous tree must be excluded at the criminal trial.
[2] Identifying the Poisonous Tree
The fruit-of-the-poisonous-tree doctrine applies to constitutional provisions other than the Fourth Amendment, i.e., there are Fifth Amendment and Sixth Amendment poisonous trees, as well.188 On the other hand, there is no or only a very limited Miranda189 poisonous tree doctrine.190 Therefore, it can be critical to identify the nature of the poisonous tree.
For example, suppose that D is arrested without probable cause, informed of his Miranda rights, voluntarily waives those rights, and confesses. The confession is not inadmissible under Fifth Amendment, Sixth Amendment, or Miranda principles. Nonetheless, the confession could be inadmissible as a fruit of a Fourth Amendment poisonous tree (the unlawful arrest).
On the other hand, suppose that D is lawfully arrested, not informed of his Miranda rights, and subjected to custodial interrogation, during which time he informs the police where he concealed a gun used in the crime. Here, as we will see, D's confession is inadmissible under Miranda principles. The gun is a fruit of that Miranda violation. Therefore, its admissibility is a matter of Miranda jurisprudence — which ordinarily permits fruits of Miranda violations to be introduced at trial — and not of Fourth Amendment law.
The lesson, again, to be grasped: Be clear as to the nature of the "poisonous tree," i.e., the constitutional violation that constitutes the initial illegality.
[C] Independent Source Doctrine191
The threshold issue in any fruit-of-the-poisonous-tree claim should be whether "the challenged evidence is in some sense the product of illegal governmental activity."192 Evidence that is not causally linked to governmental illegality is admissible pursuant to the "independent source doctrine."193 Such evidence, in essence, is a fruit of a non-poisonous tree. As the Supreme Court has explained:
[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse position that they would have been in if no police error or misconduct had occurred. . . . When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.194
In its simplest application, the independent source doctrine applies if the challenged evidence is discovered for the first time during lawful police activity. For example, suppose that the police lawfully seize D's diary in a criminal investigation. The diary identifies W, an eyewitness to D's conduct. The police contact W, who agrees to testify against D. Later, the police search D's premises again, but this time unlawfully. In the second search, the police discover W's name in another document. Under the independent source doctrine, D may not successfully challenge W's trial testimony as a fruit of the poisonous tree, because the police originally obtained W's name in the first — lawful — search.
The independent source doctrine also applies, however, if evidence is initially discovered unlawfully, but is later obtained lawfully in a manner independent of the original discovery. This lesson is learned from the Court's controversial analysis in Murray v. United States.195 In Murray, police officers unconstitutionally (they possessed probable cause for the search, but lacked a necessary search warrant) entered a warehouse and observed burlap-wrapped bales, which they suspected contained marijuana. The officers left the warehouse without seizing the bales. While they kept the area under surveillance, other officers obtained a warrant to search the building based on an untainted affidavit, i.e., an affidavit only containing information the police gathered lawfully before the unlawful entry. The officers, now armed with a warrant, returned and seized the bales.
Justice Scalia, writing for a four-justice plurality, remanded the case to a lower court "for determination whether the warrant-authorized search of the warehouse was an independent source of the challenged evidence." As the Court analyzed the situation, however, the warranted search very possibly constituted an independent source because the warrant was supported by probable cause, which in turn was based on an affidavit that did not include anything learned by the police during the illegal entry. Under such circumstances, the evidence seized was a product of the second — lawful — warranted search, and not a product of the first — unlawful — warrantless search.
According to the plurality, there was one way that the second search could be a fruit of the original illegality, namely, "if the agents' decision to seek the warrant was prompted by what they had seen during the initial entry." That is, if the police would not have applied for the warrant but for the illegal search, then the second search would be a fruit of the illegality. On such hypothesized facts, the warrant would be a fruit of the unlawful entry — the warrant would be poisoned — because the first, unlawful search motivated the request for the warrant for the second search.
How does a court determine whether an officer's decision to apply for a warrant was prompted by an earlier unlawful search? Does Murray invite an officer to testify, perhaps falsely, that he would have sought a warrant even if he had not originally entered the premises illegally? Such an incentive is undesirable. As the Court has stated elsewhere, "evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer."196 Under Murray, a finding regarding the agent's state of mind — his motivation for seeking the warrant — is required. However, according to the plurality, an officer's assurance on the point — "I would have requested this warrant anyway" — is not dispositive: "Where the facts render those assurances implausible, the independent source doctrine will not apply."
Murray arguably also provides an incentive to police to conduct unlawful confirmatory searches. That is, the risk is that, because the warrant application process is inconvenient, officers may want to confirm their suspicions, even if they believe they have probable cause, before they apply for a warrant. If they unlawfully search and find nothing, they will have saved the time of applying for a warrant, and yet the individual's constitutional right to be free from an unreasonable search will have been violated.
Justice Scalia discounted this concern. He reasoned that if the police have probable cause before they search, as in Murray, they would be "foolish" to conduct a confirmatory warrantless search because, if they do find what they were looking for, they will later have to prove that all of the information in the subsequent warrant affidavit...
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