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Illegal Search and Miranda Issues

Exceptions to Fruit of the Poisonous Tree Inevitable Discovery, the Attenuation Doctrine and New Crimes

If you are not familiar with the exclusionary rule, commonly called the “Fruit of the poisonous tree” doctrine, it is basically a legal countermeasure provided for by the courts that excludes evidence obtained from illegal searches and seizures, and any evidence obtained by a violation of a defendant’s Fifth and Sixth Amendment rights. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407 (1963) and State v. Johnson, 118 N.J. 639 (1990). Also, in Dickerson v. United States, 530 U.S. 428 (2000), the United States Supreme Court held that its decision in Miranda v. Arizona, 384 U.S. 436 (1966), announced a constitutional rule that Congress may not legislatively supersede. So, when the fruit is testimonial, it seems that the "fruit of the poisonous tree" doctrine applies not only to Fifth Amendment violations but also to Miranda warning violations. Therefore, the “Fruit of the poisonous tree” doctrine prohibits the introduction of both tangible and testimonial evidence at trial that is acquired through the illegal actions of the police. What some people fail to realize, however, is that there are exceptions to “Fruit of the poisonous tree”. Common loopholes to “Fruit of poisonous tree” are: “Inevitable discovery”, the “Attenuation doctrine”, and the “New crimes” exception.

Inevitable discovery is an exception to “Fruit of the poisonous tree” that allows the State to admit illegally acquired evidence if it can show, clearly and convincingly, that the evidence would have been legally discovered apart from the illegal actions of the police. See State v. Maltese, 222 N.J. 525, (2015).

Also, the determination of whether evidence is inadmissible in court as “Fruit of the poisonous tree” depends on whether the subsequent evidence was obtained by an “exploitation of that illegality” or by other independent means “sufficiently distinguishable to be purged of the primary taint.” See Maguire, evidence of guilt, 221 (1959); Wong Sun Wong Sun v. United States, 371 U.S. 487 -88, 83 S.Ct. 407 (1963); State v. Johnson, 118 N.J. 639, 652-653 (1990). If it is revealed that the police violated your 4th Amendment (search and seizure),5th Amendment (right against self-incrimination), 6th Amendment (right to an attorney), or 14th Amendment (due process) rights, the discussion then turns to whether the taint of the original illegal actions of the police was disconnected enough from the acquired evidence to render the violation irrelevant. Courts generally refer to what is known as the “attenuation doctrine”. The definition of attenuate is: to make or become thin or to weaken. The “attenuation doctrine” provides the police an exception to the exclusionary rule.

If the connection between the unlawful action and the obtained evidence becomes “so attenuated as to dissipate the taint” from the unlawful action, then the evidence may still be admissible in court. The United States Supreme Court case of Brown v. Illinois, 422 U.S. 590 (1975) describes three factors for evaluating whether the attenuation doctrine is applicable: (1)the temporal proximity” between the illegal conduct and the challenged evidence; (2)the presence of intervening circumstances” and (3)the purpose and flagrancy of the official misconduct.” For more discussion on the “attenuation doctrine”, See also Dunaway v. New York, 442 U.S. 200, (1979), and State v. Shaw, 213 N.J. 398, (2012).

The first factor, “the temporal proximity”, refers to the amount of time between the initial constitutional violation and the evidence acquisition. For example, in State v. Barry, 86 N.J. 80 (1981), in the context of a Fifth Amendment violation, the critical factors in denying the defendant’s motion to suppress evidence was a six-hour lapse between the initial arrest and the statement made, as well as the later showing of probable cause between the arrest and the confession. The “temporal proximity” is an important factor, because while significant passage of time will lessen the taint of the original constitutional violation, physical evidence seized or statements made during or close to the violation are more likely to be viewed as being a direct result of the illegal actions of the police.

The second factor, “the presence of intervening circumstances”, refers to new information introduced during an investigation, that will provide the necessary justification to authorize an arrest or seizure that would otherwise be illegal. For example, in Utah v. Strieff, 579 U.S. ___, 195 L. Ed. 2d 400 (2016), an unlawful stop was sufficiently attenuated by later discovery of a pre-existing warrant, which justified the admission of methamphetamines discovered during a search pursuant to an arrest.

The third factor “the purpose and flagrancy of the official misconduct”, refers to when police purposefully seek to violate a person’s constitutional rights. Where in the case of Utah v. Strieff where a pre-existing warrant excused a prior illegal stop, this was not the case in State v. Shaw, 213 N.J. 398 (2012) where the existence of a parole warrant was not an seen as an intervening circumstance, because the warrant's discovery was not by chance, but rather a pretextual excuse to conduct a random detention to run a warrant check based on a mere racial description . The Court found that the flagrant misconduct weighed against attenuation. Another successful “Fruit of the poisonous tree” case is State v. Evans, 449 N.J. Super. 66, (App. Div. 2017), where the defendant was falsely arrested on a misdemeanor warrant.

The last exception to the exclusionary rule is the commission of a “New crime”. In State v. Casimono, 250 N.J. Super. 173 (App. Div. 1991), for example, the “New crime” of the defendant resisting arrest and hindering apprehension was viewed as an “intervening circumstance” that effectively counteracted the prior illegal actions of the police. Also, “suspects must obey a police officer's commands during an investigatory stop, even if the stop is unlawful, and test the stop and detention later in court." The failure to obey police orders will result in prosecution and the admission of evidence of "separate, violent" crimes committed against the police. See State v. Herrerra, 211 N.J. 308, 334-335 (2012), citing State v. Crawley, 187 N.J. 440, 456 (2006) and State v. Williams, 192 N.J. 1, 10 (2007).

So, while “Fruit of the poisonous tree” is an important defense argument, it is not without its limitations. It is important to have an experienced attorney who can evaluate the circumstances of your case to address the many exceptions. Prosecutors will often seek to excuse illegal police behavior through “Inevitable Discovery”, the “Attenuation Doctrine”, and the “New crimes” exception, even though they are hellbent on holding other people accountable for their crimes. It’s a double standard to say the least. A well-developed “Fruit of the poisonous tree” argument is crucial to deter police misconduct and protect the integrity of the courts.

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