CA1: Frisk was fruit of unlawful stop without RS

Defendant was stopped and detained near a street “rumble” involving the Latin Kings, but there was nothing that justified the inference that he was a member of the Latin Kings or even involved in the brawl. “Tapping” defendant’s waist with an open palm was a frisk, and it violated the Fourth Amendment because it was the fruit of the unlawful stop under Wong Sun. United States v. Camacho, 661 F.3d 718 (1st Cir. 2011):

Under these facts, we need not address the legality of the frisk itself. We conclude that regardless of the legality of the frisk, the discovery of the gun was so tainted by the illegal stop that it should have been suppressed as “fruit of the poisonous tree.” See Werra, 638 F.3d at 341 (noting that the reasonableness of a protective frisk does not determine the suppression issue generated by an earlier Fourth Amendment violation).

Evidence obtained during a search may be tainted by the illegality of an earlier Fourth Amendment violation, so as to render such evidence inadmissable as “fruit of the poisonous tree.” See United States v. D’Andrea, 648 F.3d 1, 6 (2011) (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)) (internal quotation marks omitted); see also Werra, 638 F.3d at 341. “[T]he exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or ‘fruit of the poisonous tree.’” Segura v. United States, 468 U.S. 796, 804, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984) (citation omitted) (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 84 L. Ed. 307 (1939)). This rule equally extends to both the direct and the indirect products of unlawful searches and seizures. See Wong Sun, 371 U.S. at 484. “[T]he indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality.” New York v. Harris, 495 U.S. 14, 19, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990). Suppression is not appropriate, however, if “the connection between the illegal police conduct and the discovery and seizure of the evidence is ‘so attenuated as to dissipate the taint.’” Segura, 468 U.S. at 805 (quoting Nardone, 308 U.S. at 341).

Determining the consequences of unlawful police conduct for seized evidence requires looking at both causation and attenuation. The Supreme Court has declined to adopt a simple “but for” test that would mandate suppression of any evidence that “came to light through a chain of causation that began with an illegal arrest” or another Fourth Amendment violation. United States v. Leon, 468 U.S. 897, 910-11, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); see also Hudson v. Michigan, 547 U.S. 586, 592, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006) (“[B]ut-for causality is only a necessary, not a sufficient, condition for suppression.”). A strict but-for rule would prove nearly limitless. “Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’” Wong Sun, 371 U.S. at 488 (quoting J. Maguire, Evidence of Guilt 221 (1959). When determining attenuation, “temporal proximity [], the presence of intervening circumstances, and, particularly the purpose and flagrancy of the official misconduct are all relevant.” Brown, 422 U.S. at 603-604.