CA7: Witness ID was attenuated and not subject to exclusionary rule

Identification of a witness is not subject to the exclusionary rule. It was also attenuated from the alleged illegal act. (This case also has an excellent two paragraph discussion of attenuation if you need it, at 7-8 of the pdf.) United States v. Carter, 573 F.3d 418 (7th Cir. 2009):

The Ninth Circuit has previously held that “it is not sufficient in demonstrating taint that … an illegal search uncovers the alleged perpetrator’s identity, and therefore ‘directs attention to a particular suspect.’ ” United States v. Smith, 155 F.3d 1051, 1061 (9th Cir. 1998) (citation omitted). The Eighth Circuit has reached a similar conclusion. United States v. Watson, 950 F.2d 505, 508 (8th Cir. 1991) (“[W]e conclude that where a law enforcement officer merely recommends investigation of a particular individual based on suspicions arising serendipitously from an illegal search, the causal connection is sufficiently attenuated so as to purge the later investigation of any taint from the original illegality.”). Setting aside the out of court identifications from the food court employees shown Carter’s ID card (the suppression of those identifications was proper, and anyway the government does not appeal the issue), the search supplied investigators with Carter’s name and (since the investigators had seen the illegally seized ID card) the knowledge that Carter matched the description of the bank robber. However, the fact that the search gave investigators a lead on a possible suspect does not make a subsequent identification of that suspect, given by a witness who had no knowledge of the illegal search and was not shown any of the evidence produced by it, subsequently inadmissible.

Finally, we conclude that neither the timing of the events nor the purpose and flagrancy of the search supports suppression in this case. While the government concedes that very little time separated Thome’s search of the apartment on 34th Place from the teller’s identification, “the time frame [is] only one factor to consider, and is never dispositive.” Ienco, 182 F.3d at 526. We have previously held that a search was attenuated from illegal conduct even where only a few minutes passed between the conduct and the search. See Parker, 469 F.3d at 1078-79.

Nor do we conclude that the purpose and flagrancy of the violation supports suppression. The district court found that this factor weighed against the admissibility of the evidence because “every activity was undertaken in an effort to develop the evidence against Carter. There was no purpose other than to confirm Carter’s name and to confirm if Carter was the suspect in question.” This way of phrasing the issue conflates the inquiry between flagrant and purposeful behavior, however. Courts have previously found that a Fourth Amendment violation was flagrant and purposeful where “(1) the impropriety of the official’s misconduct was obvious or the official knew, at the time, that his conduct was likely unconstitutional but engaged in it nevertheless; and (2) the misconduct was investigatory in design and purpose and executed ‘in the hope that something might turn up.’ ” United States v. Simpson, 439 F.3d 490, 496 (8th Cir. 2006) (quoting Brown v. Illinois, 422 U.S. 590, 605, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975)). Where the police erred but the record does not support an inference of bad faith, however, the violation was not flagrant. See United States v. Green, 111 F.3d 515, 523 (7th Cir. 1997); Fazio, 914 F.2d at 958 (“Because the primary purpose of the exclusionary rule is to discourage police misconduct, application of the rule does not serve this deterrent function when the police action, although erroneous, was not undertaken in an effort to benefit the police at the expense of the suspect’s protected rights.”).