E.D.Pa.: Govt proved attenuation; 2½ months between searches + Davis‘s policy of exclusonary rule

Attenuation proved: First search October 7th, second search December 21st; Davis must be considered. United States v. Roberts, 2012 U.S. Dist. LEXIS 42752 (E.D. Pa. March 28, 2012)*:

Not all Fourth Amendment violations warrant the suppression of evidence. The Amendment itself says nothing about suppression; rather, the exclusionary rule is a “prudential” doctrine with a singular purpose — to deter future Fourth Amendment violations. Davis v. United States, 131 S. Ct. 2419, 2426 (2011) (citation omitted). And as the Supreme Court recently reiterated, “real deterrent value” is a necessary, but not sufficient, condition for exclusion. Id. at 2427. Instead, we balance the hard-to-quantify social costs of exclusion (suppressing the truth) against its benefits (deterring police misconduct) and exclude the challenged evidence only when the latter outweighs the former. See id. at 2427-28 (cautioning that “[p]olice practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield ‘meaningful’ deterrence, and culpable enough to be ‘worth the price paid by the justice system.'”) (citation omitted). Since we, as a society, have a compelling interest in deterring flagrant police misconduct, the more egregious the violation, the more likely it justifies exclusion. See id. (recognizing that “the deterrence benefits of exclusion ‘vary with the culpability of the law enforcement conduct’ at issue.”). Importantly, our exclusionary rule analysis must account for the conduct of all the officers involved. See Herring v. United States, 555 U.S. 135, 140 (2009) (“In analyzing the applicability of the [exclusionary] rule, Leon admonished that we must consider the actions of all the police officers involved.”).

. . .

On this particular point, we agree with the Government. As discussed supra, the point of the exclusionary rule is to deter police misconduct. The attenuation factors, including “temporal proximity” and “intervening circumstances,” are really just clues that help us determine whether the benefits of suppressing certain evidence outweigh the costs. Here, the conduct we wish to deter is Officer Kostick’s, not that of the agents who ultimately arrested Roberts on December 21st. Therefore, our purging-the-taint inquiry must center on the events of October 7th. The Defendant implicitly recognizes this, focusing entirely on Officer Kostick’s conduct in discussing the “purpose and flagrancy” prong of the attenuation analysis. …

Using October 7th as the starting point, the “temporal proximity” and “intervening circumstances” attenuation factors weigh against suppressing the fruits of the consensual December 21st search, but only slightly. As the Government points out, over two (2) months elapsed between Officer Kostick’s search and Roberts’ consent. Apparently, Roberts was not in police custody during this time. In addition, the agents who obtained Roberts’ consent are different from the officer who committed the earlier illegality. All of this distances the December 21st search from the October 7th violation.