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Question 1

If the police broke into T’s laundry business and chased him into his house (in the back) at gunpoint and cuffed him and he made incriminating statements that Y had drugs. Then police found drugs at Y’s place who said he got them from T and W, and both of them were arrested and charged. If W was released and later went back to the station on his own volition and confessed, what would the court say with regard to the admission of T?

Answer 1

That T’s admission was the fruit of his unlawful arrest, but W‘s was so attenuated from his original encounter that it dissipated the taint because it was totally voluntary.

Question 2

If a confession is voluntary, how do you determine if it was so attenuated it should be excluded because of the exclusionary rule?

Answer 2

Consider the Brown factors:
– the temporal proximity of the arrest and confession
– the presence of intervening circumstances
– the purpose and flagrancy of the official misconduct
– the voluntariness of the statement

Question 3

If a confession was gotten two hours after an illegal arrest with no significant intervening event, would that be considered the fruit of the poisonous tree?

Answer 3

Yes

Question 4

Does the passage of time between arrest and confession mean that the confession will be untainted by the illegal arrest?

Answer 4

No because illegal custody becomes more oppressive as it continues.

Question 5

What are some intervening circumstances that could cause attenuation with regard to a confession after an illegal search or seizure?

Answer 5

– termination of custody
– consulting with counsel
– voluntary statements that are not in response to interrogation

Question 6

Does a Miranda warning count as an intervening circumstance that would purge the taint of a prior illegal arrest?

Answer 6

Not alone, Miranda is an important factor, but so are the Brown factors

Question 7

Can confessions that are considered to be the fruit of the poisonous tree still be used for impeachment?

Answer 7

Yes

Question 8

If police get consent to search a place, and that consent was voluntary, does that mean that the search can’t have been the fruit of the poisonous tree?

Answer 8

No, because voluntariness alone doesn’t remove taint. Must also consider the Brown factors. If a confession was voluntary, it is suppressible under the fruits doctrine as long as the connection between it and the getting of physical evidence was rather close and direct

Question 9

If a search was done with a proper search warrant, but it was executed illegally because they held the defendant until the warrant was gotten, what happens?

Answer 9

– some courts: any evidence gotten in execution of the warrant is the fruit of the poisonous tree
– other courts: it is not the fruit because the warrant was based only on the information that the police had before the illegal entry, and they had to enter to be sure that it wouldn’t be removed or destroyed

Question 10

If an illegal search turns up evidence that gives probable cause to make an arrest, is that probable cause tainted?

Answer 10

Yes, unless the police had a sufficient factual basis apart from the illegal search to make the arrest

Question 11

If a pre-trial identification was the fruit of a prior illegal arrest and must be suppressed, an at trial identification from the same witness determines taint by factors like what?

Answer 11

– prior opportunity to observe the criminal act
– discrepancy between lineup description and actual description
– any identification prior to the lineup of another person
– identity by picture prior to lineup
– failing to identify depending on previous occasions
– lapse of time between act and lineup identification
– facts disclosed concerning conduct of the lineup

Pay close attention to the purpose and flagrancy of the official misconduct

Question 12

If a picture or prints were taken as a result of an illegal arrest and then used to make an identification, what must be determined in order to decide if attenuation is present?

Answer 12

If it was taken as a matter of routine in the course of booking and then became a permanent part of the police files and eventually connected the defendant to other unrelated crimes, then it would be attenuated. But if the original arrest was so lacking in probable cause it was just to get the picture, there’s no attenuation

Question 13

What do you do when you have a fruit of the poisonous tree issue on an essay?

Answer 13

Look at the evidence that the government is trying to admit and ask if there is a “but for“ link between it and a prior constitutional violation. Keep walking backward to the point where the police officer got the information, consider every step in the investigatory chain, and any constitutional violation is a poison tree

Question 14

What are the exceptions to the fruit of the poisonous tree doctrine?

Answer 14

IIIA

– Inevitable discovery
– Independence source
– Impeachment
- Attenuation

Question 15

Who has to prove an exception to the fruit of the poisonous tree doctrine?

Answer 15

The government has the burden of proof for this

Question 16

What is the exception to the fruit of the poisonous tree doctrine that is called “inevitable discovery“?

Answer 16

This allows the use of unlawfully gotten evidence if it can be shown by a preponderance of the evidence that it inevitably would’ve been discovered by lawful means (like an inventory search).

Requirements:
– definitely would’ve been discovered, not possibly
– preponderance of the evidence must show it would have been lawful means

Essentially the police would’ve gotten the evidence even if no misconduct had happened. If discovery would’ve been independent, inevitable, and the evidence would have been found in the same condition, it can be used even though they actually found it through the poison tree. Must use a “but for“ connection between the evidence already seized and the illegality

Question 17

What is the question to ask for the exception to the fruit of the poisonous tree doctrine for inevitable discovery?

Answer 17

Was an independent chain of events set in motion that would inevitably lead to discovery and seizure of evidence despite and independent of the bad behavior?

Question 18

What is a tricky situation with regard to the exception to the fruit of the poisonous tree doctrine for inevitable discovery?

Answer 18

If the source of the inevitable discovery is an investigatory procedure that isn’t routine and it depends on cop determination that its value outweighs its costs. It’s OK if the government can show that the procedure had already been started before the actual discovery by the constitutional violation, but is much harder when no procedure has been started upon discovery through illegal means

Question 19

Does having probable cause alone make discovery inevitable for the inevitable discovery exception to the fruit of poisonous tree doctrine?

Answer 19

No. But probable cause plus a chain of events that would have led to a warrant or other justification independent of the search does.

Question 20

If police are searching for a body, and cops get illegally obtained information that speeds up the process of finding it, but without that finding, it would have inevitably been discovered anyway, is that enough for the exception to the fruit of the poisonous tree doctrine for “inevitable discovery“ to apply?

Answer 20

Yes, as long as you can show that the search teams were close and by a preponderance of the evidence would have inevitably discovered the body, not just that a team was looking in the city

Question 21

What is a good example for the exception to the fruit of the poisonous tree doctrine for inevitable discovery?

Answer 21

Car impound inventory searches will inevitably uncover evidence in a car

Question 22

If you violate a knock and announce procedure, does that require exclusion of the evidence you find in the search?

Answer 22

No, because of the exception to the fruit of the poisonous tree doctrine for inevitable discovery. Regardless of the knock and announce issue, the police would’ve executed the warrant and they would’ve entered and discovered the contraband