CA2: Even if SW was unlawful, def’s statement was attenuated

Even if the search warrant was unlawful for failure to specify the apartment to be searched, defendant’s statement was an intervening independent act of free will in disclosing the location of a CD of child pornography. The exclusionary rule would not be applied. United States v. Asmodeo, 2019 U.S. App. LEXIS 6590 (2d Cir. Mar. 5, 2019)*:

Asmodeo invokes the “fruit of the poisonous tree” doctrine to argue that the government’s allegedly illegal search led it to interview Condon and thus tainted the evidence it obtained from her. On appeal from the denial of a motion to suppress, we review “legal conclusions de novo,” “findings of fact for clear error,” and “mixed questions of law and fact” de novo. United States v. Bershchansky, 788 F.3d 102, 108 (2d Cir. 2015) (internal quotation marks and citations omitted).

To determine whether evidence is sufficiently attenuated from an illegal search to be admitted, we first consider “the purpose and flagrancy of the official misconduct.” Utah v. Strieff, 136 S. Ct. 2056, 2062 (2016) (quoting Brown v. Illinois, 422 U.S. 590, 604 (1975)). We also look to “the presence of intervening circumstances” and the “‘temporal proximity’ between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search.” Id. (quoting Brown v. Illinois, 422 U.S. at 603-04).

The district court assumed, without deciding, that the search of Asmodeo’s home was conducted illegally because the warrant did not specify the apartment to be searched- although it identified the residence as a multifamily home-and contained multiple errors, including identifying a different IP address in the warrant from the ones identified in the affidavit supporting the warrant. Asmodeo also argues that the officers acted flagrantly in presenting the warrant application to a town court justice, who may have been less likely to catch the mistakes than a federal magistrate judge. The district court concluded that the problems with the warrant were “neither purposeful nor flagrant” and instead were the “result of sloppiness and laziness.” App’x at 744-45. In light of the “substantial social costs” of applying the exclusionary rule, Hudson v. Michigan, 547 U.S. 586, 594 (2006) (quoting United States v. Leon, 468 U.S. 897, 907 (1984)), we “favor[] exclusion only when the police misconduct is most in need of deterrence-that is, when it is purposeful or flagrant,” Utah v. Strieff, 136 S. Ct. at 2063. In view of the many errors in the warrant, we cannot say that the officers’ misconduct was insignificant or that suppression would not deter similar conduct.