{"id":914,"date":"2007-06-17T07:43:08","date_gmt":"2007-04-11T09:36:48","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-04-11T09:36:48","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=914","title":{"rendered":"While interrogation violated Miranda<\/em>, taking of bucal swab was not a Fourth Amendment violation"},"content":{"rendered":"

The police reinitiated interrogation after the right to counsel was invoked, so the trial court properly suppressed the defendant’s statement. The trial court erred, however, in suppressing a bucal swab taken from the defendant at the time because it was not fruit of the poisonous tree of a Fifth Amendment violation. People v. Bradshaw, 156 P.3d 452 (Colo. 2007):<\/p>\n

Fruit of the poisonous tree describes evidence gathered with the aid of information obtained unconstitutionally. Oregon v. Elstad,<\/em> 470 U.S. 298, 304, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985); see also Brown v. Illinois,<\/em> 422 U.S. 590, 601-02, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975). Although the fruit of the poisonous tree doctrine applies to Fourth Amendment violations, the United States Supreme Court has imported the poisonous tree doctrine into Fifth Amendment violations in the limited circumstance where coerced statements made during interrogation directly produce additional evidence. Elstad,<\/em> 470 U.S. at 310. The Court differentiated between coerced statements and statements made after a Miranda violation. Id.<\/em> It held that “actual coercion” means the accused has been “compelled … to be a witness against himself” in violation of the Fifth Amendment. U.S. Const. amend. V. Conversely, a failure to adhere to Miranda<\/em> does not rise to a Fifth Amendment violation. New York v. Quarles<\/em>, 467 U.S. 649, 654, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984). Instead, a Miranda<\/em> violation presumes only that “the privilege against compulsory self-incrimination has not been intelligently exercised.” Elstad<\/em>, 470 U.S. at 310. Thus, because Miranda violations do not rise to actual coercion in violation of the Fifth Amendment, the fruit of the poisonous tree doctrine does not apply. Id.<\/em> at 304.<\/p><\/blockquote>\n

“All persons on the premises” at the time of the search in a drug search warrant is reasonable. The defendant arrived just before the search warrant arrived, but after it was issued. State v. McClendon, 2007 Ohio 1656, 2007 Ohio App. LEXIS1504 (12th Dist. April 9, 2007).<\/p>\n","protected":false},"excerpt":{"rendered":"

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