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Fruit of the Poisonous Tree
The principle that prohibits the use of secondary evidence in trial that was culled directly from primary evidence derived from an illegal search and seizure.
The "fruit of the poisonous tree" doctrine is an offspring of the exclusionary rule. The exclusionary rule mandates that evidence obtained from an illegal arrest, unreasonable search, or coercive interrogation must be excluded from trial. Under the fruit of the poisonous tree doctrine, evidence is also excluded from trial if it was gained through evidence uncovered in an illegal arrest, unreasonable search, or coercive interrogation. Like the exclusionary rule, the fruit of the poisonous tree doctrine was established primarily to deter law enforcement from violating rights against unreasonable searches and seizures.
The name fruit of the poisonous tree is thus a metaphor: the poisonous tree is evidence seized in an illegal arrest, search, or interrogation by law enforcement. The fruit of this poisonous tree is evidence later discovered because of knowledge gained from the first illegal search, arrest, or interrogation. The poisonous tree and the fruit are both excluded from a criminal trial.
Assume that a police officer searches the automobile of a person stopped for a minor traffic violation. This violation is the only reason the officer conducts the search; nothing indicates that the driver is impaired by drugs or alcohol, and no other circumstances would lead a reasonable officer to believe that the car contains evidence of a crime. This is an unreasonable search under the Fourth Amendment to the U.S. Constitution.
Assume further that the officer finds a small amount of marijuana in the vehicle. The driver is subsequently charged with possession of a controlled substance and chooses to go to trial. The marijuana evidence culled from this search is excluded from trial under the exclusionary rule, and the criminal charges are dropped for lack of evidence.
Also suppose that before the original charges are dismissed, the police officers ask a magistrate or judge for a warrant to search the home of the driver. The only evidence used as a basis, or probable cause, for the warrant is the small amount of marijuana found in the vehicle search. The magistrate, unaware that the marijuana was uncovered in an illegal search, approves the warrant for the home search.
The officers search the driver's home and find a lawn mower stolen from a local park facility. Under the fruit of the poisonous tree doctrine, the lawn mower must be excluded from any trial on theft charges because the search of the house was based on evidence gathered in a previous illegal search.
The Supreme Court first hinted at the fruit of the poisonous tree doctrine in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319 (1920). In Silverthorne, defendant Frederick W. Silverthorne was arrested on suspicion of federal violations in connection with his lumber business. Government agents then conducted a warrantless, illegal search of the Silver-thorne offices. Based on the evidence discovered in the search, the prosecution requested more documents, and the court ordered Silverthorne to produce the documents. Silverthorne refused and was jailed for contempt of court.
On appeal, the Supreme Court reversed the contempt judgment. In its argument to the High Court, the government conceded that the search was illegal and that the prosecution was not entitled to keep the documents obtained in it. However, the government held that it was entitled to copy the documents and use knowledge gained from the documents for future prosecution. The Court rejected this argument. According to the Court, "[T]he essence of forbidding the acquisition of evidence in a certain way is that … it shall not be used at all." Silverthorne concerned only evidence gained in the first illegal search or seizure, but the wording of the opinion paved the way for the exclusion of evidence gained in sub-sequent searches and seizures.
The term fruit of the poisonous tree was first used in Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939). In Nardone, Frank C. Nardone appealed his convictions for smuggling and concealing alcohol and for conspiracy to do the same. In an earlier decision, the High Court had ruled that an interception of Nardone's telephone conversations by government agents violated the Communications Act of 1934 (47 U.S.C.A. § 605). The issue before the Court was whether the trial court erred in refusing to allow Nardone's lawyer to question the prosecution on whether, and in what way, it had used information obtained in the illegal wire tapping.
In reversing Nardone's convictions, the Court stated that once a defendant has established that evidence was illegally seized, the trial court "must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree." The Nardone opinion established that evidence obtained in violation of a statute was subject to exclusion if it was obtained in violation of a statutory right.
The fruit of the poisonous tree doctrine was first held applicable to Fourth Amendment violations in the landmark case Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). The Court in Wong Sun also set forth the test for determining how closely derivative evidence must be related to illegally obtained evidence to warrant exclusion.
In Wong Sun, a number of federal narcotics agents had arrested Hom Way in San Francisco at 2:00 A.M. on June 4, 1959, on suspicion of narcotics activity. Although the agents had been watching Way for six weeks, they did not have a warrant for his arrest. Way was searched, and the agents found heroin in his possession. After his arrest, Way stated that he had bought an ounce of heroin the night before from Blackie Toy, the proprietor of a laundry on Leavenworth Street.
Though Way had never been an informant for the police, the agents cruised Leavenworth Street. At 6:00 A.M., they stopped at Oye's Laundry. The rest of the agents remained out of sight while Agent Alton Wong rang the bell. When James Wah Toy answered the door, Wong said he was there for laundry and dry cleaning. Toy answered that he did not open until 8:00 A.M. and started to close the door. Wong then identified himself as a federal narcotics agent. Toy slammed the door and began to run down the hallway, through the laundry, and to his bedroom, where his wife and child were sleeping. Again without a warrant, Wong and the other agents broke open the door, followed Toy, and arrested him. A search of the premises uncovered no illegal drugs.
While Toy was in handcuffs, one of the agents told him that Way had said Toy sold Way narcotics. Toy denied selling narcotics, but then said he knew someone who had. When asked who, Toy answered that he knew the man only as "Johnny." Toy told the officers that "Johnny" lived on Eleventh Avenue, and then he described the house. Toy also volunteered that "Johnny" kept about an ounce of heroin in his bedroom, and that he and "Johnny" had smoked some heroin the night before.
The agents left and located the house on Eleventh Avenue. Without a search or an arrest warrant, they entered the home, went to the bedroom, and found Johnny Yee. After a "discussion" with the agents, Yee surrendered a little less than one ounce of heroin.
The same morning, Yee and Toy were taken to the office of the Bureau of Narcotics. While in custody there, Yee stated that he had gotten the heroin about four days earlier from Toy and another person he knew as "Sea Dog." The agents then asked Toy about "Sea Dog," and Toy identified "Sea Dog" as Wong Sun. Some of the agents took Toy to Sun's neighborhood, where Toy pointed out Sun's house. The agents walked past Sun's wife and arrested Sun, who had been sleeping in his bedroom. A search of the premises turned up no illegal drugs.
Toy and Yee were arraigned in federal court on June 4, 1959, and Sun was arraigned the next day. All were released without bail. A few days later, Toy, Yee, and Sun were interrogated separately at the Narcotics Bureau by Agent William Wong. Sun and Toy made written statements but refused to sign them.
Sun and Toy were tried jointly on charges of transporting and concealing narcotics in violation of 21 U.S.C.A. § 174. Way did not testify at the trial. The government offered Yee as its principal witness, but Yee recanted his statement to Agent William Wong and invoked his Fifth Amendment right against self-incrimination. With only four items in evidence, Sun and Toy were convicted by the court in a bench trial. The Court of Appeals for the Ninth Circuit affirmed the convictions (Wong Sun, 288 F.2d 366 (9th Cir. 1961)). Sun and Toy appealed to the U.S. Supreme Court.
The Supreme Court accepted the case and reversed the convictions. The Court began its analysis by noting that the court of appeals had held that the arrests of both Sun and Toy were illegal. The question was whether the four items in evidence against Sun and Toy were admissible despite the illegality of the arrests. The four pieces of evidence were the oral statements made by Toy in his bedroom at the time of his arrest, the heroin surrendered to the agents by Yee, Toy's unsigned statement to Agent William Wong, and Sun's unsigned statement to Agent William Wong.
The government submitted several theories to support the proposition that the statements made by Toy in his bedroom were properly admitted at trial. The Court rejected all the arguments. According to the Court, the arrest was illegal because the agents had no evidence supporting it other than the word of Way, an arrestee who had never been an informer for law enforcement. The officers did not even know whether Toy was the person they were looking for. Furthermore, Toy's flight did not give the officers probable cause to arrest Toy: Agent Alton Wong had first posed as a customer, and this made Toy's flight ambiguous and not necessarily the product of a guilty mind. Thus, under the exclusionary rule, the oral statements made by Toy in his bedroom should not have been allowed at trial.
The Court then turned to the actual drug evidence seized from Yee. The Court, in deference to Nardone, stated, "We need not hold that all evidence is 'fruit of the poisonous tree.'" Instead, the question in such a situation was "'whether, granting establishment of the primary illegality, the evidence … has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'"
According to the Court, the narcotics in Wong Sun were indeed "come at" by use of Toy's statements. Toy's statements were, in fact, the only evidence used to justify entrance to Yee's bedroom. Since the statements by Toy were inadmissible, the narcotics in Yee's possession were also inadmissible, as fruit of the poisonous tree. The Court went on to hold that Sun's written statements about Toy should also have been excluded as hearsay, and the Court ultimately overturned Toy's conviction.
The Court did not reverse Sun's conviction. The heroin in Yee's possession was admissible at trial, as was Sun's own statement. According to the Court, "The exclusion of narcotics as to Toy was required solely by their tainted relationship to information unlawfully obtained from Toy, and not by any official impropriety connected with their surrender by Yee." The Court did, however, grant Sun a new trial, because it was unable to conclude that Toy's statements, erroneously admitted at trial as evidence against Sun, had not affected the verdict. The Court advised that on remand and in similar cases, "particular care ought to be taken … when the crucial element of the accused's possession is proved solely by his own admissions."
In determining whether evidence is fruit of a poisonous tree, the trial court judge must examine all the facts surrounding the initial seizure of evidence and the subsequent gathering of evidence. This determination is usually made by the judge in a suppression hearing held before trial. In this hearing, the judge must first determine that an illegal search or seizure occurred and then decide whether the evidence was obtained as a result of the illegal search or seizure.
The Supreme Court found such a causal connection lacking in United States v. Ceccolini, 435 U.S. 268, 98 S. Ct. 1054, 55 L. Ed. 2d 268 (1978). In Ceccolini, Ralph Ceccolini was found guilty of perjury by a district court in New York. However, the court set aside the verdict after it threw out testimony by Lois Hennessey against Ceccolini. According to the district court, Hennessey's testimony was tied to an illegal search conducted a year earlier. The government appealed to the U.S. Court of Appeals for the Second Circuit. The appeals court affirmed, and the government appealed to the U.S. Supreme Court.
According to the High Court, the exclusion of Hennessey's testimony was an error because sufficient time had elapsed to separate the illegal search from the testimony. Furthermore, Hennessey's testimony was not coerced by law enforcement officials as a result of the illegal search. An officer had questioned Hennessey four months after the search without specifically referring to the illegal search, and Hennessey volunteered the incriminating evidence against Ceccolini. The Court reversed, reasoning that the exclusion of testimony such as Hennessey's would not have a deterrent effect on misconduct by law enforcement officers.
Fauver, Deborah. 2003. "Evidence Not Suppressed Despite Failure to Give Miranda Warning." Daily Record (St. Louis, Mo./St. Louis Countian) (October 14).
Hurley, Lawrence. 2003. "Reversal Leaves Federal Case Intact, Prosecutor Says." Daily Record (Baltimore, Md.) (June 2).
McCrackin, Sidney M., 1985."New York v. Quarles: The Public Safety Exception to Miranda." Tulane Law Review 59 (March).