Defendant met in a police interrogation room with his lawyer, and the police turned off the recorder, but three listened in to the conversation through the wall. The superior officer actually self-reported the misconduct. Defendant moved to suppress what they overheard, and the officers took the Fifth. Then the defense moved to bar all of the officers’ testimony at trial. The state conceded a gun would be suppressed, but appealed suppression of the officers’ testimony. On the Fourth Amendment claim, what the officers learned before the misconduct of eavesdropping was admissible. The Fifth Amendment and confrontation claim would be assessed question by question. State v. Taylor, 2015 Ind. App. LEXIS 453 (June 10, 2015):
P15 On appeal, the State argues that the trial court improperly barred the officers who asserted their Fifth Amendment right from testifying at Taylor’s trial. The State does not appeal the suppression of the handgun and the procedure established by the trial court to verify an independent source for each piece of evidence discovered after the eavesdropping. Rather, the State’s argument concerns only the trial court’s exclusion of the officers’ testimony after they asserted their Fifth Amendment right at their depositions and at the suppression hearing.
P16 We begin by noting our disappointment, displeasure, and disgust at the conduct of all the law enforcement officers. The integrity of the entire judicial system is called into question by the conduct engaged in here by all who should know better. See State v. Quattlebaum, 338 S.C. 441, 527 S.E.2d 105, 109 (S.C. 2000). The New Jersey Supreme Court, in discussing intentional eavesdropping by police officers, appropriately stated:
We are outraged. We are compelled to say exactly that. Any court, but particularly the highest Court of this State, does more than apply settled principles of social order. A court affirms those values emerging from the conflict between the ideals of liberty and democracy, between individual rights and public responsibilities. There are others to give strong voice against violence to person and property, to proclaim social needs and to promote economic welfare. But there are few to deplore the deprivation of an individual’s liberty, and none other so clothed in the moral traditions of the rule of law. We must therefore depart briefly from formal legal analysis to express and explain our dismay. …
When confronted with the awesome power of the criminal process, a client is never more in need of professional guidance and advocacy. … Any interference with the intimate relationship between attorney and client may do profound violence to the individual privacy of the client. Instead of receiving the protection that counsel can provide, the client unwittingly reveals his innermost thoughts to the unscrupulous. Such an invasion is unconscionable. The privacy between attorney and client is but an extension of the client’s personal privacy. … The fundamental need for secrecy between attorney and client is clear. The intentional invasion of that privacy is just as clearly violative of basic notions of procedural justice. … [I]t is important to note the existence of a number of criminal statutes which can apply to illegal eavesdropping, for they highlight the egregious character of the particular conduct that the record before us reveals. . . . The fact that the individuals responsible for invading defendant’s privacy are law enforcement officials heightens our concern and sparks our sense of outrage.
State v. Sugar, 84 N.J. 1, 417 A.2d 474, 479-81 (N.J. 1980). We echo those sentiments and note that this sort of conduct tarnishes all who are in “the system,” and while that is unfair, it is understandable.
P17 On appeal, the parties make several arguments concerning the admissibility of the officers’ testimony. Based on the parties’ arguments, we will address implications related to the Fifth Amendment, the Sixth Amendment’s Confrontation Clause, the Sixth Amendment’s right to counsel, the Fourth Amendment, and principles of prosecutorial misconduct.
. . .
IV. Fourth Amendment
P39 Next, Taylor argues that the trial court’s exclusion of the officers’ testimony is sustainable based on the Fourth Amendment. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV. To encourage compliance with the Fourth Amendment, the evidence seized in violation of the Constitution must be excluded at trial unless an exception to this “exclusionary rule” applies. Shotts v. State, 925 N.E.2d 719, 723 (Ind. 2010). Under the fruit of the poisonous tree doctrine, which is an extension of the exclusionary rule, evidence directly obtained by the illegal search or seizure as well as evidence derivatively gained as a result of information learned or leads obtained during that same search or seizure is barred. Clark v. State, 994 N.E.2d 252, 266 (Ind. 2013).
P40 We note that the trial court has already excluded the gun, which the State conceded should be suppressed. Moreover, the trial court is requiring the State to demonstrate an independent basis for each piece of evidence discovered after the eavesdropping. The officers’ testimony was not excluded based on an illegal search or the exclusionary rule. Rather, the trial court excluded the officers’ testimony based on their assertion of their Fifth Amendment right to avoid self-incrimination and Taylor’s Sixth Amendment rights. The officers here clearly have information that is not subject to the exclusionary rule, i.e., evidence discovered prior to the eavesdropping and evidence for which an independent basis has been established. Taylor cites no relevant authority that the officers’ testimony should be excluded based solely on the Fourth Amendment. This argument fails.
. . .
Conclusion
P43 We affirm the portions of the trial court’s suppression order not challenged by the State. We disagree with the trial court’s automatic exclusion of the officers that asserted their Fifth Amendment right during depositions and at the suppression hearing. Rather, based on Taylor’s Sixth Amendment right to confrontation, the trial court must determine whether each officer’s unanswered questions are collateral to matters that he testifies to on direct examination. The trial court’s exclusion of the officers’ testimony is also not sustainable at this time based on Taylor’s Sixth Amendment right to counsel, the Fourth Amendment, or the principles of prosecutorial misconduct. We remand for the trial court to conduct an analysis of each officer’s testimony as discussed in this opinion. We affirm in part, reverse in part, and remand.
