Illegally obtained evidence cannot be used to establish probable cause. United States v. Gordon, 2018 U.S. Dist. LEXIS 190782 (E.D. Mich. Sept. 12, 2018):
D. Illegally Seized Evidence Cannot Provide Probable Cause
Important to our consideration of the search of Defendant’s home is that the government effectively had two lines of investigation underway: the first deriving from the illegal search of the hotel room, and the second deriving from the independently-acquired old cell phone. Everything obtained through the first line of investigation was already ordered suppressed as fruit of the poisonous tree. That means that any mention of these items or the information learned from them in affidavits for warrants for further searches must be excised from those affidavits, and the court must then consider whether the redacted affidavits contain the probable cause necessary for approval of the warrants. United States v. Williams, 656 F. App’x 751, 753-54 (6th Cir. 2016) (Courts must excise illegally obtained information from the affidavit and then decide whether the remaining legally obtained information sufficiently supports a finding of probable cause to search). To identify sufficient probable cause, the Court “is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before it, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)) (internal punctuation omitted).
Here, the affidavits for the search warrants of MV-1’s cell phones, Gordon’s home, and Gordon’s car, and the affidavit for the arrest warrant of Gordon are solely supported by illegally-obtained information. Even though additional evidence was available—such as the information relating to the second, legally-obtained cell phone—the agents did not include it in their affidavits. When the information obtained from the illegal search is excised from the affidavits, the remaining declarations do not come close to establishing probable cause for search or for arrest.
Take, for example, the affidavit supplied by FBI Agent Nichols in support of an application for a criminal complaint and arrest warrant. Once all illegally-obtained information is excised, one is left with the following: …