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).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)