The lack of attenuation and exploitation of the illegality of an illegal search here favors exclusion. United States v. Cordero-Rosario, 2017 U.S. Dist. LEXIS 76904 (D.P.R. May 18, 2017):
As stated previously, “[t]he question whether evidence obtained after an illegal search should be suppressed as the fruit of the poisonous tree depends upon ‘whether, granting establishment of the primary illegality, the evidence … has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’” Finucan, 708 F.2d at 843 (quoting Wong Sun, 371 U.S. at 488.)
The first Finucan factor echoes the Court’s discussion above. Absent the illegal search, would the investigators have known the identity of all of the third parties or what to ask? Did the government anticipate that the illegal search would help lead it to the other evidence? As analyzed in the Court’s discussion of the third Brown factor (i.e., purposeful and flagrant police misconduct) the federal authorities used the PRPD’s investigation for leads to guide their independent investigation.
The Court agrees with the Magistrate Judge’s finding that “[a]s in Finucan, the agents banked on the illegally obtained evidence in guiding their investigation, at least in the beginning.” (Docket No. 191 at 34) (emphasis added). It is uncontested that the federal authorities used the PRPD investigation to map their own investigation and thus, they expected it would lead them to the unlawful material. Consequently, this factor weighs in favor of exclusion.
The second Finucan factor, “[w]hether ‘third parties would have come forward on their own had the investigators not sought them out” also weighs in favor of exclusion. Martorell expressed—on multiple occasions—her desire to help the authorities. Finucan, 708 F. 2d at 844. However, as Magistrate Judge Carreño-Coll pointed out, she did not do so until she was approached. “Even though Martorell emphasized that she wanted an independent federal investigation, the fact is that she did not come forward on her own.” (Docket No. 191 at 34.) The fact that Martorell did not contact the authorities, having the opportunity to do so, but instead she waited for them to contact her supports the reasoning above as to the absence of intervening circumstances and that the federal authorities, by way of her involvement in the investigation, exploited the illegality.
Finally, the Court turns to the purpose of the exclusionary rule, deterrence. “The [exclusionary] rule is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” Brown, 422 U.S. at 599-600 (internal citations and quotations omitted). “But despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons.” Brown, 422 U.S. at 600 (internal citations and quotations omitted).
“For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.” Davis, 564 U.S. at 237. The Supreme Court has cautioned that the exclusionary rule “almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. Our cases hold that society must swallow this bitter pill when necessary, but only as a ‘last resort.’” Id.
Having taken into account the totality of the circumstances, and after weighing the Brown and Finucan factors, the Court finds that the 320 GB External Hard Drive was not obtained by means sufficiently distinguishable, but rather by exploitation of the illegality. Consequently, the external hard drive is tainted by the prior unlawful searches and therefore, must be excluded. Regrettably, such determination comes at a high price insofar as “[t]he exclusionary rule generates substantial social costs, … which sometimes include setting the guilty free and the dangerous at large.” Hudson v. Michigan, 547 U.S. 586, 591, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006) (internal citations and quotation marks omitted).