Scope of the Exclusionary

Rule
Patrick G. Frogge
 Wong Sun v. United States (1963)
Facts: 6 federal narcotics agents illegally broke into Toy’s laundry (and
house) and arrested him. Toy told them that he smoked with Yee the
night before. Police went to see Yee. Yee gave police drugs and told
them that Toy and Wong Sun were engaged in narcotic trafficking. All
arrested and released. A few days later, all went to narcotics bureau and
made statements. At Toy and Wong Sun’s trial, Yee was Govt witness but
recanted and left. Govt introduced (1) Toy’s Statement at laundry; (2)
Toy’s later statement at narcotics bureau; (3) Yee’s dope; and (4) Wong
Sun’s statement. Toy and Wong Sun moved to suppress which was
denied, statements were introduced, they were convicted, all affirmed
by 9th Circuit.
 Wong Sun v. United States (1963)

Issue: Does illegal search require suppression of evidence OR

Does exclusionary rule apply where illegal search is somehat

attenuated?
 Wong Sun v. United States (1963)
(1) Toy’s Statement at laundry; OUT: FRUIT OF POISONOUS TREE

(1) Toy’s later statement at narcotics bureau; UNDECIDED

(1) Yee’s dope OUT AGAINST TOY, IN AGAINST WONG SUN

(1) Wong Sun’s statement. IN AGAINST WONG SUN; SUFFICIENTLY

ATTENUATED
 Wong Sun v. United States (1963)
Reversed. Holding generally (and often cited) example of the “fruit of
the poisonous tree,” but it also a good introductory example of
attenuation.

“Whether, granting establishment of the primary illegality, the evidence

to which instant objection is made has been come at by the exploitation
of that illegality or instead by means sufficiently distinguishable, to be
purged of the primary taint.”
 Brown v. Illinois (1975)
Police illegally searched Brown’s apartment and arrested him without
probable cause in order to interrogate him about a murder. Brown was
advised of his Miranda rights and he agreed to talk to police. He
implicated himself in the murder and signed a two page statement.
About 5 hours later he again was read Miranda and gave another
incriminating statement. He moved to suppress both statements on the
ground that they were the fruits of the illegal arrest. Government
argued that the Miranda warnings sufficiently purged the taint of the
illegal arrest. Per Wong Sun, attenuation requires an act of free will to
purge the primary taint. Trial court denied, Brown convicted, Illinois
Supreme Court affirmed, but found violation taint was removed by
Miranda warnings.
 Brown v. Illinois (1975)
Should inculpatory statements made after an illegal arrest be admissible
when police read Miranda warnings in the interim?
 Brown v. Illinois (1975)
Reversed: In this case, attenuation not removed by Miranda. Wong Sun’s
statement is a counterexample. Here, factors which militate against
attenuation are
1. Temporal proximity between the unconstitutional conduct and the
discovery of evidence to determine who closely the discovery of
evidence followed the unconstitutional activity.
2. No significant intervening circumstances
3. Purpose and flagrancy of the official misconduct. “Illegality had a
quality of purposefulness.”
 New York v. Harris (1990)
Police had probable cause to believe Harris killed Staton. Without arrest
warrant police went to his home and used guns and badges to gain entry
to Harris’s house. Police Mirandized Harris who admitted killing her.
Arrested and taken to station where he was Mirandized and gave written
admission. Later he was Mirandized again and gave video admission after
he had indicated that he wanted to end the interrogation. The trial court
suppressed the first and third statement. Second statement is at issue.
 New York v. Harris (1990)
Issue: as to the second statement, was it the product of the illegal entry
into his home?
 New York v. Harris (1990)
When police have PC to arrest, the exclusionary rule does not bar use of
statement made by defendant outside of his home even if the statement
is after an arrest made in his home without an arrest warrant (Payton
violation).
“Harris’s statement at the police station was not the product of an illegal
arrest.”

DISSENT: WHAT HAPPENED TO THE FACTORS?

 Utah v. Strieff (2016)
Officer got anonymous tip about narcotic activity at specific house.
Without reasonable suspicion, police stopped, detained Strieff while
Officer took his license and ran him for outstanding warrants. He had
outstanding warrant and was arrested, searched and meth found during
search incident to arrest.
 Utah v. Strieff (2016)
Brown Factors
Temporal proximity; Favors Brown
Presence of intervening circumstances: Favors the state
Purpose or flagrancy of the misconduct: Favors the state (must be
more than misconduct, must be flagrant misconduct
 Utah v. Strieff (2016)
Unlawful stop was sufficiently attenuated by the existence of the pre-
existing arrest warrant. Discovery of the arrest warrant broke the causal
chain between the unconstitutional stop and discovery of the meth and
no evidence that officer’s illegal stop was flagrant unlawful police
misconduct.
 Murray v. United States (1988)
FBI agents entered warehouse without search warrant and observed
marijuana in plain view. Left and applied for search warrant without
disclosing prior entry or relying on the fact that they observed marijuana
inside. Search warrant granted and FBI reentered warehouse and seized
marijuana and customer records.
 Murray v. United States (1988)
Balancing cost to society v. deterrence of police to engage in illegal
activities means that evidence that has an independent source will not
be suppressed.
The "independent source" doctrine permits the introduction of evidence
initially discovered during, or as a consequence of, an unlawful search,
but later obtained independently from lawful activities untainted by the
initial illegality.
 Nix v. Williams (1984)
Williams recently escaped from mental hospital and was living at YMCA in Des
Moines. Little girl went missing from YMCA. Witness observed Williams
carrying out bundle with skinny legs and feet. Next day Williams was arrested in
Davenport, Iowa 160 miles away on charge of abduction. During drive back to
Des Moines after Williams had counsel and had invoked his right to counsel to
not be interviewed, officer gave “Christian burial speech” and Williams directed
police to the body. Original conviction overturned because Williams’
statement about the body’s location was admitted into evidence in violation of
his 6th A right to counsel. Brewer v. Williams.
This is a habeas petition from the second trial where government did not
introduce his statement about the location of the body and did not attempt to
introduce any evidence that Williams led them to the body. Government did
introduce evidence about the condition of the body, articles of clothing,
autopsy findings, and post-mortem chemical tests.
 Nix v. Williams (1984)
Issue: Did the illegality leading to Williams’ arrest and prosecution taint
the trial.
 Nix v. Williams (1984)
Issue: Did the illegality leading to Williams’ arrest and prosecution taint
the trial. No. Evidence discovered due to a constitutional violation may
be admissible in government’s case in chief if the evidence would have
been discovered regardless of the constitutional violation.
The Eighth Circuit imposed a “free of bad faith” requirement that does
not exist. Cost of exclusion was high, they would have inevitably
discovered the body anyway, and that is all that was introduced.