6.7

• Jurisdiction: Arizona

§ 6.7 Dissipation of the Taint (Attenuation)

If the taint from an illegal act is sufficiently dissipated, the Fourth Amendment does not require suppression of the evidence seized after the illegality. Utah v. Strieff, 136 S. Ct. 2056 (2016) (officer’s discovery of valid, preexisting arrest warrant for a minor traffic violation attenuated connection between unlawful investigatory stop and drug-related evidence seized from defendant’s pocket during search incident to arrest); see also State v. Guillen, 223 Ariz. 314, 223 P.3d 658 (2010) (When analyzing whether wife’s consent was tainted from a prior illegality, court analyzed the three factors set forth in Brown v. Illinois: “(1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) particularly, the purpose and flagrancy of the official misconduct.” Court found that wife’s consent to search house was not tainted by the earlier dog sniff of the garage, noting in part that officer’s conduct was not flagrant considering that the legality of such a dog sniff was an unsettled question at the time); State v. Hummons, 227 Ariz. 78, 253 P.3d 275 (2011) (court analyzed Brown v. Illinois factors in detail and found that arrest of defendant based on arrest warrant was not tainted, even if detention had been unlawful); State v. Huez, 240 Ariz. 407, 380 P.3d 103 (App. 2016) (Div. 2) (analyzing factors in Brown and Streiff and concluding that discovery of evidence after search incident to arrest based on arrest warrant was sufficiently attenuated from unlawful stop; however, State did not preserve issue on appeal, so court remanded case for evidentiary hearing to analyze Brown factors); New York v. Harris, 495 U.S. 14 (1990) (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 suspect outside his home, even though the statement is made after a warrantless and nonconsensual entry into the suspect’s home; this case was distinguished from those where the police had illegally arrested the defendant when they had no probable cause, see Brown and Dunaway, cited in decision). See also United States v. Pulliam, 405 F.3d 782 (9th Cir. 2005) (although stop was illegal and passenger had standing to challenge the stop, the passenger had no standing to challenge the vehicle search; court found that the seizure of the weapon was not tainted by the stop, because there was no...