"Fruit of the poisonous tree" evidence doctrine

The principle states that if you obtain evidence B as a result of other evidence A that was illegally obtained, evidence B is not admissible.

Does it apply in these cases?

The government conducts an illegal wiretap and hears planning for a bank robbery. They stake out the bank and as the robbers enter they are arrested for attempted armed robbery. Their face masks, guns, and note demanding money are considered evidence of intent. Was the stakeout legal since it relied on illegally obtained information?

The police pull over a car for speeding. They think the driver has been involved in illegal drug activity so they reach into his car without his permission, pop the trunk, and find $1M worth of illegal drugs. They don’t arrest him but then they stake out his house and watch as he transfers the drugs to another party and they exchange cash. They detain the other party on probably cause as he leaves, find the drugs, and arrest him. Is the observation of the drug deal allowed since it relied on illegally obtained evidence?

If this requires rendering an opinion rather than fact, let’s move it.

I hope you get an answer.

I asked a similar question, and I figured with all the lawyers here I could get an answer, but nope.

I think your first example is There was an intervening act of free will but I am not a lawyer.

The second might also be Okay, since it is a stake out and not a warrant derived from the illegal search.

There have been plenty of cases in the news similar to the first part of the second case. Without probable cause, an illegal search of the car means any evidence is thrown out.

As to the second part - if they knew/suspected enough to do an illegal search, presumably they have enough to suspect he was in the drug trade without the illegal search. If he’s stupid enough to continue to conduct drug trafficking in plain sight, I presume he and his clients suffer the consequences. The trick would be for the arrestees to prove that, but for the illegal search, they would never have been observed and caught.

IANAL, but my go-to Law Reference, Law & Order mentions the “inevitable discovery” exception to “fruit of the poison tree”. If it was inevitable that the evidence they subsequently obtained would be discovered, it is admissible. So it depends on what you mean by “they think the driver has been involved in the illegal drug trade”. Would they think this hard enough to have surveilled him regardless of the illegal search? Or did the search cause them to decide to watch him? To use high-powered zoom lenses to or a drone to video his property? (A problem in itself, if the surveillance method violates the “expectation of privacy” rule.)

Need answer fast?

An arrest would need probable cause, and info from the illegal wire tap would not be allowed to serve this purpose. The cops would need to wait until they witnessed the perps at the bank doing something illegal that justified arrest; I’m thinking that merely walking into the bank wouldn’t be enough, unless the perps had their guns already drawn at the time.

I inferred from the OP that the perps were entering with masks on, at least, that is good enough. Assuming not covid masks, of course!

In the first scenario, it will depend why the wiretap was considered illegal. If the law enforcement agency had a reasonable, good-faith belief that they were in compliance with legal requirements, then any evidence they collected (and evidence derived from it) is still admissible even if the search was later found to be legally defective.

Well, you will have to make the case in court but there are certainly exceptions allowed:

Fruit of the Poisonous Tree

A doctrine that extends the exclusionary rule to make evidence inadmissible in court if it was derived from evidence that was illegally obtained. As the metaphor suggests, if the evidential “tree” is tainted, so is its “fruit.” The doctrine was established in 1920 by the decision in Silverthorne Lumber Co. v. United States, and the phrase “fruit of the poisonous tree” was coined by Justice Frankfurter in his 1939 opinion in Nardone v. United States.

Like the exclusionary rule itself, this doctrine is subject to three important exceptions. The evidence will not be excluded:

  1. if it was discovered from a source independent of the illegal activity;
  2. its discovery was inevitable;
  3. or if there is attenuation between the illegal activity and the discovery of the evidence.

Further, if the primary evidence was illegally obtained, but admissible under the good faith exception, its derivatives (or “fruit”) may also be admissible. SOURCE

The challenge for the defense will be showing that the illegal source caused the later arrest.

Police don’t need a warrant to go hang out near a bank, so they plausibly don’t have to ever introduce the illegal wiretap or anything gained from it into evidence. Maybe they all decided to meet for coffee at the coffee shop across from the bank and noticed a suspicious-looking car pulling up, maybe one of the robbers has some connection to another case and the detective decides to go ask him about it that very morning, only to see him getting into a car with a weapon and several others, etc. Just a lucky break, really.

If the police say in court something like “We knew they were going to hit the bank that day because of our illegal wiretap” then sure, but they are likely not going to do that.

The process of creating a legal evidentiary record to support law enforcement actions based on illegal evidence is called parallel construction. It’s difficult to know how pervasive it is, and often difficult for the defense to exclude any evidence because the only evidence actually presented is evidence that’s facially clean.

I agree with this. The GQ answer is it depends on a million different factors and then a roll of the dice. This is slippery law and it has gone back and forth, and this is one of many “rules” that is really just a series of increasingly confusing “clarifications” and hair-splittings by different Supreme Courts. My money would be on no exclusion in either case, but you could introduce just a few facts to flip it hard in the other direction.

A couple of factors that haven’t been raised yet: a major consideration with respect to the exclusionary rule is deterrence of police misconduct. This means that one of the things the court is thinking about is whether excluding evidence that is the fruit of this kind of police misconduct will deter police from violating people’s 4th Amendment rights in this way in the future. In practical terms, what that means is that one of the factors in consideration is just how illegal the police behavior was.

So depending on how illegal the wiretap was in your first example, that might be determinative all on its own, provided that the defendant was able to introduce evidence that the wiretap was the beginning of a causal chain that ended at the bank. I think this is unlikely, for the reason iamthewalrus mentioned; the state would simply never mention a wiretap, and the evidence of the robbery itself is so attenuated from the phone call that it would be unlikely to be noticed. But supposing that the wiretap did come up in court, I think a very important factor would be just how flagrant the wiretap was. Did the police sort of exaggerate in their application for the wiretap and get a warrant that they weren’t really entitled to, or did they just straight up wiretap one of their neighbors because they were bored? The more outrageous the violation, the more important the exclusionary principle becomes.

I think your second example is easier. If the police already suspect that the person is engaging in illegal activity, then they have the basis to argue that the stakeout would have been conducted based on that suspicion, and they would have still seen the crime taking place. Since the remedy under the fruit of the poisonous tree is just exclusion of the evidence obtained illegally, the court could say that the results of the trunk search are inadmissible, but allow the evidence obtained via the (legal) stakeout. The police are allowed to sit in public and watch people, and since they literally saw the guy selling drugs, they can simply testify to what they legally observed. The difference between the two scenarios, as I see it, is that in the first case, in actual fact the police had no reason at all to suspect a bank robbery was occurring, and their only source of information was the illegal search. In the second case, prior to the illegal search, they thought the guy was dealing drugs for some reason. If you just erase their discovery of drugs from their minds, they still have that basis for the stakeout.

I think the “good faith exception” it the loophole you can drive a bus through on this issue.

I don’t think so. “Good faith” applies to the actions of the officer in executing the illegal search in reliance on a warrant, not their actions later on in the chain. In the OP’s first scenario, if the cops thought they had a good warrant that turned out later to be invalid for some reason, there would be a good argument. In the second, they didn’t have a warrant and per the hypothetical were not acting in good faith when they did the search.

I have to admit, kind of annoyed that I searched your profile to find this thread where you didn’t get any good answers to an interesting criminal procedure question, only to find… a robust discussion 7 years ago of the ins and outs of your scenario, featuring many lawyers, including myself.

My intent was to describe a situation where that was true, but maybe I didn’t do a good job. Imagine a scenario where the robbers did enough to be arrested, but the only reason the cops were there to see it was illegally obtained information.

seriously? I’m going to check. I swear I got no direct answer…

funny how my memory skips

There were 15 posts after my “last visit”, so that’s on me.

Although the question that was important to me didn’t get answered (do you even have a dead body that can be used in a police investigation), there was a discussion.

I withdraw my objection, your honor.

This is my reflection on it too. As I understand, “fruit” means evidence is eliminated. An arrest is only negated if once that evidence is tossed, there is not enough evidence to charge the perps. I would assume the evidence of the tellers and video cameras that these people robbed the bank, possession of stolen money, etc. would be stand-alone evidence.

Of course, if the robbers are arrested before they go into the bank, what evidence do the police have? A bunch of guys with ski masks. What probably cause would they have to arrest or detain them before the robbery happens that is not tainted? Before the robbery, if they arrest them or search their car, then obviously the possession of weapons etc. is tainted since the only grounds the police have is what they heard on the illegal wiretap. But if they respond to an alarm from across the street instead of 5 blocks away, they are just doing what police do - respond to an alarm. There is no requirement that a police squad stay away from banks. And they are arresting the robbers because the bank personnel alerted them to illegal activity.

if in an alternate scenario, they were jewelry thieves and managed to distract the clerk and walk out with a few diamonds and nobody noticed at the time, and they walk calmly out of the store like normal customers - then there’s no grounds for the police to arrest them on the way out since they have received no complaint from the store.

The first scenario is easy to get around. Just give credit to an anonymous tipster for the information. It’s done a lot more than people think.

Years back cordless and cellular phones could be monitored on a simple police scanner. And it was legal, or at least quasi-legal as those phones are basically just radios. Some guys would drive around residential neighborhoods with a handheld scanner in their squad and listen in on drug deals and other illegal activity people were dumb enough to discuss on one of those phones. But whenever a case was made the information was always credited to an anonymous tipster. Nobody wanted to testify in court that they were driving around tuning in on phone calls, even though it was considered legal at the time. Also, we didn’t want to wise up anyone about how they shouldn’t discuss such things on a cordless phone.

The simple issue with the first scenario is really that the police don’t need special permission from defendants or suspects to stake out a bank, I assume they would be setup inside and would need permission of the bank manager–who would almost certainly comply (once appropriate safety precautions had been taken) if told his bank was going to be imminently robbed.

The actual conversation the police captured via wiretap would not be admissible in court, but the evidence they collect at the bank would be. The excellent HBO series The Wire actually commonly mentions the practice (which is used in the real world) of actually calling wiretap information “anonymous tips” or “anonymous confidential informants.”

There’s a bit of a two-sided coin to that strategy. Firstly, nothing given to police anonymously can be impeached in court, which also means it cannot be used as evidence towards a defendant’s guilt. In many cases a wiretap might generate some interesting information that can be used to affect an arrest, but the conversation recorded isn’t that material to securing a conviction. In such a situation, it is better to preserve the secrecy of the wiretap’s existence than to expose it needlessly.

On the flipside, this information by itself isn’t always going to be enough to do much with it. The bank robbery scenario is a good one because the police just have to go set up in a bank, something they can do without any special permission.

Now let’s say the police are operating an illegal wiretap and get information than John Doe has a hidden safe in his house full of cocaine. This is a little trickier because they have no easy access to that safe without a search warrant, and they have to go to a magistrate or judge to get a search warrant. They don’t want to admit they are operating an illegal wiretap, so they might attempt to use an anonymous tip or confidential information. That’s problematic on a few levels.

For one, actually lying to a judge in your search warrant application, if ever proven, is going to result in significant criminal and professional trouble for the police officer.

For two, there’s a couple Supreme Court precedents, that in totality, general make it difficult or impossible to get a search warrant solely based on an anonymous tip or the word of a confidential informant not willing to be identified or made available to the court.

The first one is the Aguilar-Spinelli test, named after a couple of cases in the 1960s. This basically lays out that there are circumstances where a judge can properly issue a warrant based on an anonymous tip, but the police have to explain to the judge the reason they believe the tip is reliable along with other supporting information. In the case of a confidential informant, this might mean a detective has to go talk to the judge about the CI’s history with the department, how reliable they have been in the past, and other supporting information. This makes it much harder to use a CI to cover up an illegal wiretap because it requires fairly deliberate lying to the court (this actually happens in The Wire too, the infamous Fuzzy Dunlop CI that is used by a couple of the officers running a scam to get reimbursed for some expensive camera equipment they had bought on credit and subsequently lost.)

In the traditional Aguilar-Spinelli test, at a post-arraignment hearing, the police have a specific requirement to show facts that their information is reliable, and secondly to explain the circumstances surrounding the person’s access to the information and how the person making the information available to police came to rely upon it. This basically means that while you can use a person who is “anonymous to the courts” it is not really easy to use a non-existent person or a person anonymous to the police.

The Gates test is the result of a 1980s case in which the limits on confidential informants / anonymous tipsters were loosened slightly. In some ways the Aguilar-Spinelli test remains the basis as it is somewhat encapsulated in the Gates test, and some states still specifically require the elements in Aguilar-Spinelli, but the Gates test allows for an anonymous tip to be used as the basis for a warrant that would otherwise fail the Aguilar-Spinelli test, if, based on the totality of the circumstances.

The Gates case arose from a situation where someone wrote a highly detailed letter detailing the drug sales operations of a couple, including evidence that police could use to easily catch them in the act. The police then did an investigation, where a detective followed and observed the couple for a period of time, documenting things they did, and building up further evidence. A warrant was then issued, and the couple was caught dead to rights.

Lower court rulings held that the nature of the anonymous letter failed the Aguilar-Spinelli test because unlike an anonymous tipster or a CI, the police couldn’t really explain a basis for believing the letter was reliable when they began their investigation. This wasn’t a person known to them or a person the police could vet, but just literally a letter someone dropped in the mail. Over the course of appeals, it got to the Supreme Court. The Supreme Court ruled that the letter by itself was indeed not sufficient, but that the police had done a supplemental investigation that demonstrated the letter’s reliability and veracity by corroborating much that was in the letter through stakeouts and observations–which themselves didn’t require special privilege for police to perform. By the time the warrant was issued, the Supreme Court ruled that the totality of the evidence was that it was reasonable to rely on the letter.

So TLDR–if you operate an illegal wiretap and then report its results as an anonymous letter, under the Gates test it would be quite easy to use that as a basis for a search warrant–but you would need to have done some more case building, which often times if you were operating an illegal wiretap you’d have some knowledge maybe of what you could do in order to build supplemental evidence.

However the hypothetical I posed of a guy with a stash of cocaine in a secret case is a harder nut to crack, he would have to be observed doing something that the police could use as supplemental evidence supporting the claims in the anonymous tip (aka actually what was heard on an illegal wiretap.) Depending on the case this may be trivial or impossible, and in cases where it would be impossible that’s unfortunate for police because if they had a legal wiretap they could just submit it directly as justification to go in and search the safe.

But you’re going to get an anonymous tip. After you get the info from the wiretap the phone is going to ring and a voice is going to tell you all the information you need. Poof. Not lying to anyone. Doesn’t matter that it might be another investigator that made the call. I agree that this is extremely sophomoric but I’ve seen it done. And the first scenario in the OP didn’t need a warrant to establish surveillance. Maybe just an excuse as to why they set it up.

Another way is to take some of the information and plant some seeds into one of your more reliable finks. They sniff around a bit and even if they come back empty they’ll invariably repeat what you told them. Except you told them that you heard it somewhere else and now you’re hearing it from them and they are confirming it. Most stains are on the hook for something or other and want to make you happy. There’s your informant to get a warrant. Can you believe this horseshit actually works?