{"id":6312,"date":"2011-12-19T14:02:01","date_gmt":"2011-11-25T12:10:13","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-11-25T12:10:13","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=6312","title":{"rendered":"CA1: Frisk was fruit of unlawful stop without RS"},"content":{"rendered":"

Defendant was stopped and detained near a street \u201crumble\u201d 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. \u201cTapping\u201d defendant\u2019s 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<\/a>. United States v. Camacho<\/a>, 661 F.3d 718 (1st Cir. 2011):<\/p>\n

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 \u201cfruit of the poisonous tree.\u201d See Werra<\/a>, 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).<\/p>\n

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 \u201cfruit of the poisonous tree.\u201d See United States v. D\u2019Andrea, 648 F.3d 1, 6 (2011) (quoting Wong Sun v. United States<\/a>, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)) (internal quotation marks omitted); see also Werra<\/a>, 638 F.3d at 341. \u201c[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 \u2018fruit of the poisonous tree.\u2019\u201d Segura v. United States<\/a>, 468 U.S. 796, 804, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984) (citation omitted) (quoting Nardone v. United States<\/a>, 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<\/a>, 371 U.S. at 484. \u201c[T]he indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality.\u201d New York v. Harris<\/a>, 495 U.S. 14, 19, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990). Suppression is not appropriate, however, if \u201cthe connection between the illegal police conduct and the discovery and seizure of the evidence is \u2018so attenuated as to dissipate the taint.\u2019\u201d Segura<\/a>, 468 U.S. at 805 (quoting Nardone<\/a>, 308 U.S. at 341).<\/p>\n

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 \u201cbut for\u201d test that would mandate suppression of any evidence that \u201ccame to light through a chain of causation that began with an illegal arrest\u201d or another Fourth Amendment violation. United States v. Leon<\/a>, 468 U.S. 897, 910-11, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); see also Hudson v. Michigan<\/a>, 547 U.S. 586, 592, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006) (\u201c[B]ut-for causality is only a necessary, not a sufficient, condition for suppression.\u201d). A strict but-for rule would prove nearly limitless. \u201cRather, the more apt question in such a case is \u2018whether, 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.\u2019\u201d Wong Sun<\/a>, 371 U.S. at 488 (quoting J. Maguire, Evidence of Guilt 221 (1959). When determining attenuation, \u201ctemporal proximity [], the presence of intervening circumstances, and, particularly the purpose and flagrancy of the official misconduct are all relevant.\u201d Brown, 422 U.S. at 603-604.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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