§ 5.3 The "fruit of the Poisonous Tree" and Its Exceptions

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 5.3 THE "FRUIT OF THE POISONOUS TREE" AND ITS EXCEPTIONS

The general exclusionary rule discussed in § 5.2 to § 5.2-2 requires suppression of evidence that bears a direct or primary relationship to an unconstitutional search or seizure—that is, when the police discover incriminating evidence during an unconstitutional search. However, an unconstitutional search or seizure often leads to secondary or derivative evidence—for example, when observations during an illegal search give rise to probable cause, which police use to obtain a warrant to execute a second search that results in the discovery of incriminating evidence. The derivative evidence, which is tainted by the illegality, has come to be known as the "fruit of the poisonous tree." Nardone v. United States, 308 US 338, 341, 60 S Ct 266, 84 L Ed 307 (1939). As explained further in § 5.3-1 to § 5.3-2(c), the relevant question in determining whether derivative evidence must be suppressed is whether it "has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun v. United States, 371 US 471, 488, 83 S Ct 407, 9 L Ed 2d 441 (1963) (citation and internal quotation marks omitted).

§ 5.3-1 The Source and Development of the "Fruit of the Poisonous Tree" Doctrine

The concept and phrase fruit of the poisonous tree originated, respectively, in Silverthorne Lumber Co. v. United States, 251 US 385, 40 S Ct 182, 64 L Ed 319 (1920), and Nardone v. United States, 308 US 338, 341, 60 S Ct 266, 84 L Ed 307 (1939). The principle is relatively straightforward: to prevent the Fourth Amendment from being reduced to a mere "form of words," the government must not profit from its illegal searches or seizures through any use of evidence obtained from the illegality. Silverthorne Lumber Co., 251 US at 392. If, however, the government can show that the same evidence was or would have been obtained through means independent from the illegality, the evidence is admissible:

The essence of a provision [(the Fourth Amendment)] forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained 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.

Silverthorne Lumber Co., 251 US at 392.

Although the doctrine originated in cases involving physical evidence, it has been extended to include physical and testimonial evidence obtained from Fourth Amendment violations (see Wong Sun v. United States, 371 US 471, 83 S Ct 407, 9 L Ed 2d 441 (1963); Brown v. Illinois, 422 US 590, 95 S Ct 2254, 45 L Ed 2d 416 (1975)); Fifth Amendment violations (see Kastigar v. United States, 406 US 441, 92 S Ct 1653, 32 L Ed 2d 212 (1972)); Sixth Amendment violations (see United States v. Wade, 388 US 218, 87 S Ct 1926, 18 L Ed 2d 1149 (1967)); and statutory wiretap violations (see United States v. Giordano, 416 US 505, 94 S Ct 1820, 40 L Ed 2d 341 (1974)).

The Supreme Court's application of the doctrine does not appear to vary with the type of police illegality. See, e.g., Murray v. United States, 487 US 533, 537, 108 S Ct 2529, 101 L Ed 2d 472 (1988) (applying the doctrine without differentiation in cases involving Fourth, Fifth, and Sixth Amendment violations).

§ 5.3-2 Federal Constitutional Law

Nearly a century ago, Justice Cardozo famously noted that, as a result of the exclusionary rule, "[the] criminal is to go free because the constable has blundered." People v. Defore, 242 NY 13, 150 NE 585, 587, cert den, 270 US 657 (1926). Yet, even when an illegality has occurred, that illegality does not conclusively render any subsequently discovered evidence inadmissible. Since the inception of the "fruit of the poisonous tree" doctrine, the Supreme Court has recognized its practical limitations. See Nardone v. United States, 308 US 338, 341, 60 S Ct 266, 84 L Ed 307 (1939) (recognizing the attenuation exception); Silverthorne Lumber Co. v. United States, 251 US 385, 392, 40 S Ct 182, 64 L Ed 319 (1920) (recognizing the "independent source" exception).

Essentially, the doctrine creates a presumption that when police engage in an illegal search or seizure, the evidence that derives from the illegality is tainted and inadmissible. To rebut the presumption, the government must demonstrate that the evidence was independently acquired from a separate, independent source; that the evidence would have been inevitably discovered without the unconstitutional source; or that the connection between the illegality and the discovery of the challenged evidence is attenuated to such a degree that it may not be said that the evidence was discovered by exploiting the illegality.

The above-mentioned principles have become three doctrines that allow the government to rebut the aforementioned presumption (or, in the words of the metaphor, "purge the taint" of the illegality); the doctrines are (1) independent source (see § 5.3-2(a)), (2) inevitable discovery (see § 5.3-2(b)), and (3) attenuation (see § 5.3-2(c)). Those three remedial doctrines reflect the principle that although the government may not profit from its illegalities and should be deterred from committing future illegalities, it is not to be "put in a worse position simply because of some earlier police error or misconduct." Nix v. Williams, 467 US 431, 443, 104 S Ct 2501, 81 L Ed 2d 377 (1984).

§ 5.3-2(a) Independent Source

The independent-source doctrine applies when there are two or more avenues to the same evidence. If the state can establish that one of the avenues was both legal and unconnected to the illegal avenue, the evidence is admissible. In other words, because the evidence was independently obtained by lawful means, the evidence is untainted, and its exclusion would have no deterrent value. See Segura v. United States, 468 US 796, 804-06, 104 S Ct 3380, 82 L Ed 2d 599 (1984) (police officers' illegal entry on private premises and a "limited security search" therein did not require suppression of evidence subsequently discovered at those premises when executing the search warrant, which was obtained on the basis of information wholly unconnected with the initial entry).

The independent-source doctrine strikes a balance between deterring illegal police conduct and minimizing the social cost of excluding probative evidence:

The independent source doctrine teaches us that the 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.

Nix v. Williams, 467 US 431, 443, 104 S Ct 2501, 81 L Ed 2d 377 (1984) (footnote and citation omitted) (emphasis in original).

The independent-source doctrine applies "to evidence obtained for the first...