Defendant was subjected to an entry and sweep. Consent two hours later was voluntary as attenuated. What was found didn’t come from the initial entry. State v. Williams, 2019 N.J. Super. LEXIS 138 (Aug. 29, 2019):
However, defendant does not argue that the judge erred in finding her consent voluntary. Instead, defendant posits that because the “officers unlawfully entered the apartment, unlawfully conducted a protective sweep, and unlawfully seized the apartment and detained [defendant] outside for more than two hours[,]” the consent was tainted and “the evidence seized was ‘the fruit of the unconstitutional [entry] and initial sweep of the apartment.'” Defendant continues that “[t]he connection between the consent and the unlawful search was not ‘so attenuated as to dissipate the taint.'” Having determined that the initial entry and protective sweep of the apartment were both lawful and constitutionally permissible, we reject defendant’s contention out of hand.
We do point out, however, that even if the initial entry and protective sweep were unlawful, the cocaine seized was not located as a result of either. Instead, the cocaine was found as a result of defendant’s consent to search, which was obtained independent of the initial entry or protective sweep. Therefore, even assuming the initial entry and sweep were unlawful, the seizure did not arise, either directly or indirectly, from any unlawful police activity proscribed under the fruit of the poisonous tree doctrine. The fruit of the poisonous tree doctrine “excludes evidence seized as a direct consequence of unlawful police activity, as well as evidence subsequently discovered as a result of the illegality.” Byrnes, New Jersey Arrest, Search & Seizure, 33.1-1 (2018-2019). Exceptions are “applied narrowly.” Byrnes, 33:3.
When deciding whether or not to exclude evidence as fruit of the poisonous tree, “[t]he critical determination is whether the authorities … obtained the evidence by means that are sufficiently independent to dissipate the taint of their illegal conduct.” …