MA: Unreasonable exit order under MA law led to invalid consent

An unreasonable exit order here led to alleged consent, but the court finds consent tainted by the order. No factors of attenuation favor the state. Commonwealth v. Robinson, 2026 Mass. LEXIS 49 (Feb. 13, 2026):

b. Attenuation. Under the “fruit of the poisonous tree” doctrine, the exclusionary rule bars the admission of evidence derived from an unconstitutional search or seizure. Commonwealth v. Fredericq, 482 Mass. 70, 78, 121 N.E.3d 166 (2019). See Barreto, 483 Mass. at 724 (“Because the exit order was not lawfully issued, the evidence obtained from the subsequent search should have been suppressed as fruit of the poisonous tree”). The inquiry does not turn on a simple “but for” test. See Commonwealth v. Long, 476 Mass. 526, 536, 69 N.E.3d 981 (2017). Rather, we ask whether the evidence was obtained “by exploitation of [that] illegality or instead by means sufficiently distinguishable to be purged of the primary taint” (citation omitted). Commonwealth v. Damiano, 444 Mass. 444, 453, 828 N.E.2d 510 (2005). The Commonwealth bears the burden of proving attenuation. Id. at 454.

The Commonwealth contends that the defendant’s consent to search the vehicle broke the causal chain between the unlawful exit order and the discovery of the evidence. See Commonwealth v. Kipp, 57 Mass. App. Ct. 629, 634, 785 N.E.2d 403 (2003) (holding taint of prior unlawful entry had dissipated two hours later when defendant consented to subsequent search). It is true that, in some circumstances, voluntary consent may constitute an intervening act sufficient to dissipate the taint of prior police misconduct. See Fredericq, 482 Mass. at 80. Consent, however, “does not automatically attenuate the taint of an illegality,” particularly where the consent itself is the product of the unlawful conduct. Id. at 80-81. To determine whether the consent is tainted, we consider (1) the temporal proximity between the illegality and the consent; (2) the presence of any intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. Id. at 81. We address these factors in turn.