The Fruit of the Poisonous Tree Doctrine
WONG SUN v. UNITED STATES, Supreme Court of the United States (1963), 371 U.S. 471, 835 S.Ct. 407
FACTS:
James Toy and Wong Sun were convicted in the Federal District Court for the Northern District of California for the fraudulent and knowing transportation and concealment of illegally imported heroin.
After several weeks of surveillance of Hom Way, police arrested him and uncovered heroin in his personal possession. Hom Way told the officers that he recently purchased the drug from "Blackie Toy" who lived on Leavenworth Street in San Francisco. Police cruised the thirty-block length of the street until they discovered "Oye's Laundry" at six in the morning.
After denying entry to plainclothes officers who had appeared and requested possession of their nonexistent laundry, Toy slammed the door and fled to the rear of the laundry\home. The federal narcotics agents followed Toy into his home against his will and cornered him in his bedroom. Immediately prior to Toy's flight, the officers had identified themselves as federal agents. The bedroom at the rear of the laundry was subjected to a warrantless search and Toy subjected to a similar search and arrest.
While the search produced no evidence of illegality, Toy promptly denied that he had any narcotics but implicated one "Johnny." Toy dutifully led the officers to the home of Johnny Yee and told the agents that they had smoked heroin the previous night.
A warrantless entry of Johnny Yee's abode produced less than an ounce of heroin. Just as Toy was willing to talk, so was Yee. He implicated Wong Sun as his supplier. A subsequent search of Wong Sun's residence uncovered no additional heroin.
Petitioners James Toy and Johnny Yee were arraigned almost immediately and released the same day. Wong Sun secured his release a day later. Several days later, Toy, Yee and Wong Sun were interrogated by agents who prepared a statement summarizing the information obtained from each. Neither Toy nor Wong Sun would sign them, but Wong Sun admitted the accuracy of his statement.
At the trial Johnny Yee, who was to be a government witness, repudiated hi earlier unsigned statement and invoked his Fifth Amendment privilege against self-incrimination. The government offered in evidence Toy's initial statements, the heroin found at Yee's home, Toy's unsigned statement, and Wong Sun's unsigned statement. Toy alleged that his initial statements and all the evidence which was derived therefrom should be excluded from evidence due to the Fourth Amendment violation which occurred as his home was illegally entered. The District Court rejected his argument and allowed the admission of the evidence which led to the conviction of Toy and Wong Sun.
The Court of Appeals affirmed and the Supreme Court granted certiorari.
PROCEDURAL QUESTION:
Where evidence has been obtained in violation of an individual's rights under the Fourth Amendment, must that evidence and any derivative evidence be excluded from use in the prosecution's case-in-chief?
HELD: Yes.
RATIONALE:
Mr. Justice BRENNAN delivered the opinion of the Court.
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We believe that significant differences between the cases of the two petitioners require separate discussion of each. We shall first consider the case of petitioner Toy.
I
The Court of Appeals found there was neither reasonable grounds nor probable cause for Toy's arrest. Giving due weight to that finding, we think it is amply justified by the facts clearly shown on this record. It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion, see Henry v. United States, 361 U.S. 98, 101, 80 S.Ct. 168, 170, 4 L.Ed.2d 134, though the arresting officer need not have in hand evidence which would suffice to convict.
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The threshold question in this case, therefore, is whether the officer could, on the information which impelled them to act, have procured a warrant for the arrest of Toy. We think that no warrant would have issued on evidence then available.
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Thus we conclude that the Court of Appeals' findings that the officers' uninvited entry into Toy's living quarters was unlawful and that the bedroom arrest which followed was likewise unlawful, was fully justified on the evidence. It remains to be seen what consequences flow from this conclusion.
II
The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It follows from our holding in Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of "papers and effects." Similarly, testimony as to matters observed during an unlawful invasion has been excluded in order to enforce the basic constitutional policies. (Citation omitted.) Thus, verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers' action in the present case is no less the "fruit" of official illegality than the more common tangible fruits of the unwarranted intrusion.
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The government argues that Toy's statements to the officers in his bedroom, although closely consequent upon the invasion which we hold unlawful, were nevertheless admissible because they resulted from "an intervening independent act of a free will." This contention, however, takes insufficient account of the circumstances. Six or seven officers had broken the door and followed on Toy's heels into the bedroom where his wife and child were sleeping. He ha been almost immediately handcuffed and arrested. Under such circumstances it is unreasonable to infer that Toy's response was sufficiently an act of free will to purge the primary taint of the unlawful invasion.
* * *III
We now consider whether the exclusion of Toy's declarations requires also the exclusion of the narcotics taken from Yee, to which those declarations led the police. The prosecutor candidly told the trial court that "we wouldn't have found those drugs except that Mr. Toy helped us to." Hence this is not the case envisioned by this Court where the exclusionary rule has no application because the Government learned of the evidence "from an independent source," Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319; nor is this a case in which the connection between the lawless conduct of the police and the discovery of the challenged evidence has "become so attenuated as to dissipate the taint." Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307. We need not hold that all evidence is "fruit of the poisonous tree" simply because it would not have come to light but for the illegal actions of the police. 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." Maguire, Evidence of Guilt, 221 (1959). We think it clear that the narcotics were "come at by the exploitation of that illegality" and hence that they may not be used against Toy.
IV
It remains only to consider Toy's unsigned statement. We need not decide whether, in light of the fact that Toy was free on his own recognizance when he made the statement, that statement was a fruit of the illegal arrest. (Citation omitted) Since we have concluded that his declarations in the bedroom and the narcotics surrendered by Yee should not have been admitted in evidence against him, the only proofs remaining to sustain his conviction are his and Wong Sun's unsigned statements. Without scrutinizing the contents of Toy's ambiguous recitals, we conclude that no reference to Toy in Wong Sun's statement constitutes admission by Toy. We arrive at this conclusion upon two clear lines of decisions which converge to require it. One line of our decisions establishes that criminal confessions and admissions of guilt require extrinsic corroboration; the other line of precedents holds that an out-of-court declaration made after arrest may not be used at trial against one of the declarant's partners in crime.
It is a settled principle of the administration of criminal justice in the federal courts that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused.
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The import of our previous holdings is that a co-conspirator's hearsay statements may be admitted against the accused for no purpose whatever, unless made during and in furtherance of the conspiracy. Thus, as to Toy, the only possible source of corroboration is removed and his conviction must be set aside for lack of competent evidence to support it.
V
We now turn to the case of the other petitioner, Wong Sun. We have no occasion to disagree with the finding of the Court of Appeals that his arrest, also, was without probable cause or reasonable grounds. At all events no evidentiary consequences turn upon that question. For Wong Sun's unsigned confession was not the fruit of that arrest, and was therefore properly admitted at trial. On the evidence that Wong Sun had been released on his own recognizance after a lawful arraignment, and had returned voluntarily several days later to make the statement, we hold that the connection between the arrest and the statement had "become so attenuated as to dissipate the taint." Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307. The fact that the statement was unsigned, whatever bearing this may have upon its weight and credibility, does not render it inadmissible; Wong Sun understood and adopted its substances, though he could not comprehend the English words. The petitioner has never suggested any impropriety in the interrogation itself which would require the exclusion of this statement.
We must then consider the admissibility of the narcotics surrendered by Yee. Our holding, supra, that this ounce of heroin was inadmissible against Toy does not compel a like result with respect to Wong Sun....The seizure of this heroin invaded no right of privacy of person or premises which would entitle Wong Sun to object to its use at his trial.
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However, for the reasons that Wong Sun's statement was incompetent to corroborate Toy's admissions contained in Toy's own statement, any references to Wong Sun in Toy's statement were incompetent to corroborate Wong Sun's admissions. Thus, the only competent source of corroboration for Wong Sun's statement was the heroin itself. We cannot be certain, however, on this state of the record, that the trial judge may not also have considered the contents of Toy's statement as a source of corroboration.
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We intimate no view one way or the other as to whether the trial judge might have found in the narcotics alone sufficient evidence to corroborate Wong Sun's admissions that he delivered heroin to Yee and smoked heroin at Yee's house around the date in question.
... We therefore hold that petitioner Wong Sun is also entitled to a new trial.
Judgment of Court of Appeals reversed and case remanded to the District Court.
Notes
1. The Wong Sun Court required that the victim of the Fourth Amendment violation possess an expectation of privacy in the area initially searched. Only if there was a legitimate expectation of privacy and if a violation of that right of privacy produced a direct or indirect link to incriminating evidence would the "fruit of the poisonous tree" doctrine have application.
2. Consider whether the following derivative evidence would be admissible against the defendant. Police discovered evidence of cocaine trafficking in the car of Abel as well as evidence in the car that Baker was also involved in the drug dealing. Should Baker be able to suppress evidence taken [even illegally] from the car of Abel? Consult Rakas v. Illinois, infra, Next Lesson.
Unexploited Illegally Seized Evidence Does Not Taint Warrant
MURRAY v. UNITED STATES, Supreme Court of the United States (1988), 487 U.S. 533, 108 S.Ct. 2529
FACTS:
Murray, the petitioner, and Carter were convicted for conspiracy to possess and distribute illegal drugs. Some of the evidence came from the execution of a search warrant based on independent sources.
Federal agents had warehouse under surveillance and observed Murray and fellow co-conspirators drive a truck and a camper inside the building. When the vehicles later left, the agents observed a tractor-trailer rig with a large dark container inside. Other agents followed Murray and Carter and observed them handing their vehicles over to other drivers. The new drivers were properly stopped and the vehicles lawfully seized. A search revealed marijuana.
Upon receipt of this information several agents illegally forced their entry inside the warehouse where they discovered additional marijuana. The officers left the building without disturbing the contents and did not re-enter until they possessed a search warrant.
In the affidavit for the search warrant, the officers included no mention of their illegal entry or what their search disclosed. Probable cause was not based on information obtained illegally by the government. Pursuant to the warrant approximately 270 bails of marijuana and a customer list were seized.
The District Court denied respondent's motion to suppress the evidence and the First Circuit Court of Appeals affirmed. The Supreme Court granted certiorari.
PROCEDURAL QUESTION:
Where police illegally enter premises and observe illegalities and subsequently obtain and execute a search warrant which was not based on the observations of illegal activities but on independent, untainted evidence, is the evidence seized pursuant to the warrant admissible in evidence?
HELD: Yes.
RATIONALE:
JUSTICE SCALIA delivered the opinion of the Court.
In Segura v. United States, 468 U.S. 796 (1984), we held that police officers' illegal entry upon private premises did not require suppression of evidence subsequently discovered on the basis of information wholly unconnected with the initial entry. In these consolidated cases we are faced with the question whether again, assuming evidence obtained pursuant to an independently obtained search warrant, the portion of such evidence that had been observed in plain view at the time of a prior illegal entry must be suppressed.
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Almost simultaneously with our development of the exclusionary rule, in the first quarter of this century, we also announced what has come to be known as the "independent source" doctrine. See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920). That doctrine, which has been applied to evidence acquired not only through Fourth Amendment violations but also through Fifth and Sixth Amendment violations, has recently been described as follows:
"[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. . . . When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation." Nix v. Williams, 467 U.S. 431, 443 (1984)
The dispute here is over the scope of this doctrine. Petitioners contend that it applies only to evidence obtained for the first time during an independent lawful search. The Government argues that it applies also to evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality. We think the Government's view has better support in both precedent and policy.
Our cases have used the concept of "independent source" in a more general and a more specific sense. The more general sense identifies all evidence acquired in a fashion untainted by the illegal evidence-gathering activity. Thus, where an unlawful entry has given investigators knowledge of facts x and y, but fact z has been learned by other means, fact z can be said to be admissible because derived from an "independent source." This is how we used the term in Segura v. United States, 468 U.S. 796 (1984).
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The original use of the term, however, and its more important use for purposes of this case, was more specific. It was originally applied in the exclusionary rule context, by Justice Holmes, with reference to that particular category of evidence acquired by an untainted search which is identical to the evidence unlawfully acquired - that is, in the example just given, to knowledge of facts x and y derived from an independent source:
"The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others." Silverthorne Lumber, supra, at 392.
Petitioners' asserted policy basis for excluding evidence which is initially discovered during an illegal search, but is subsequently acquired through an independent and lawful source, is that a contrary rule will remove all deterrence to, and indeed positively encourage, unlawful police searches. As petitioners see the incentives, law enforcement officers will routinely enter without a warrant to make sure that what they expect to be on the premises is in fact there. If it is not, they will have spared themselves the time and trouble of getting a warrant; if it is, they can get the warrant and use the evidence despite the unlawful entry. Brief of Petitioners 42. We see the incentives differently. An officer with probable cause sufficient to obtain a search warrant would be foolish to enter the premises first in an unlawful manner. By doing so, he would risk suppression of all evidence on the premises, both seen and unseen, since him action would add to the normal burden of convincing a magistrate that there is probable cause the much more onerous burden of convincing a trial court that no information gained from the illegal entry affected either the law enforcement officers' decision to seek a warrant or the magistrate's decision to grant it. See Part III, infra. Nor would the officer without sufficient probable cause to obtain a search warrant have any added incentive to conduct an unlawful entry, since whatever he finds cannot be used to establish probable cause before a magistrate.
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To apply what we have said to the present case: Knowledge that the marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry. But it was also acquired at the time for entry pursuant to the warrant, and if that later acquisition was not the result of the earlier entry there is no reason why the independent source doctrine should not apply. Invoking the exclusionary rule would put the police (and society) not in the same position they would have occupied if no violation occurred, but in a worse one. See Nix v. Williams, 467 U.S., at 443.
We think this is also true with respect to the tangible evidence, the bales of marijuana. . . . The independent source doctrine does not rest upon such metaphysical analysis, but upon the policy that, while the government should not profit from its illegal activity, neither should it be placed in a worse position than it would otherwise have occupied. So long as a later, lawful seizure is generally independent of an earlier, tainted one (which may well be difficult to establish where the seized goods are kept in the police's possession) there is no reason why the independent source doctrine should not apply.
The ultimate question, therefore, is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agents' decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant. On this point the Court of Appeals said the following:
"[W]e can be absolutely certain that the warrantless entry in no way contributed in the slightest either to the issuance of a warrant or to the discovery of the evidence during the lawful search that occurred pursuant to the warrant.
This is as clear a case as can be imagined where the discovery of the contraband in plain view was totally irrelevant to the later securing of a warrant and the successful search that ensued. As there was no causal link whatever between the illegal entry and the discovery of the challenged evidence, we find no error in the court's refusal to suppress." United States v. Moscatiello, 771 F. 2d, at 603, 604.
Accordingly, we vacate the judgements and remand these cases to the Court of Appeals with instructions that if remand to the District Court for determination whether the warrant-authorized search of the warehouse was an independent source of the challenged evidence in the sense we have described.
It is so ordered.
JUSTICE BRENNAN and JUSTICE KENNEDY took no part in the consideration or decision of this litigation.
Notes
1. Would the result in Murray have been the same if the defendants could have demonstrated that evidence necessary to the establishment of probable cause could only have been derived from the initial illegal entry to the premises? What is the reason for your conclusion?
2. Does the Murray decision encourage police officers to make illegal entries to discover evidence and to use that evidence as a basis for obtaining a warrant? Why or why not?
3. The argument could be made that police could make illegal entries and where police find nothing which offends the law, merely leave and not pursue the matter further. However, what if the officer finds evidence of criminality and is precluded from using that evidence as a basis or partial basis for a probable cause? How could probable cause be established independently?
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