435 U.S. 268 (1978)
In December 1974, police officer Ronald Biro entered respondent Ceccolini's Sleepy Hollow Flower Shop in North Tarrytown, New York, during a patrol break.1 He spoke with employee Lois Hennessey behind the counter.2 Biro observed an envelope with money and policy slips in the cash register drawer, replaced it, and inquired about its owner without disclosing its contents.3 Hennessey stated that the envelope belonged to Ceccolini.4
The next day Biro reported his observation to local detectives, who relayed the information to FBI agent Lance Emory.5 Four months later Emory interviewed Hennessey at her home in the presence of family members for approximately thirty minutes.6 During the interview she described the encounter with Biro after Emory identified himself and requested information about Ceccolini's activities.7
In May 1975 Ceccolini appeared before a federal grand jury and denied any involvement in policy betting operations at the flower shop.8 Hennessey testified before the same grand jury the following week, after which Ceccolini was indicted for perjury.9
Ceccolini waived a jury trial in the United States District Court for the Southern District of New York.10 The court heard his suppression motion together with the trial evidence.11 The District Court found Ceccolini guilty after a bench trial.12 It then granted the motion to suppress Hennessey's testimony on the ground that it derived from an illegal search and set aside the verdict for lack of sufficient evidence without that testimony.13
The Court of Appeals for the Second Circuit affirmed the District Court's suppression order on appeal by the Government.14 The Supreme Court granted certiorari to examine the ruling.15
Whether the Government may appeal a district court's post-verdict order suppressing evidence and setting aside a guilty verdict without violating the Double Jeopardy Clause?16
The Double Jeopardy Clause does not bar a government appeal from a post-verdict suppression order. Reversal would require no further district court proceedings beyond reinstatement of the guilty verdict. This is authorized by 18 U.S.C. § 3731 and confirmed in United States v. Wilson.17
Yes. The District Court first determined Ceccolini's guilt after a bench trial and only afterward granted the suppression motion and set aside the verdict. Reversal on appeal therefore requires nothing more than reinstatement of the existing guilty finding, with no retrial or additional evidentiary proceedings that could trigger double jeopardy protections.18
The Government's appeal is permissible and does not violate the Double Jeopardy Clause.19
Whether the testimony of a live witness first discovered through an illegal search must be excluded at trial as the fruit of the poisonous tree?20
Under the attenuation doctrine articulated in Wong Sun v. United States and Nardone v. United States, live-witness testimony is admissible when the connection between the Fourth Amendment violation and the testimony has become sufficiently attenuated, evaluated by factors including the witness's exercise of free will, elapsed time, the investigators' purpose, prior knowledge of the witness, and the societal cost of permanent exclusion rather than by any per se rule.21
No. Biro's observation of the policy slips prompted Emory's interview of Hennessey four months later, yet Hennessey exercised her own free will in cooperating during a voluntary home interview and in testifying at trial; substantial time passed between the search, the interview, and the trial; investigators already knew Hennessey's identity and her employment relationship with Ceccolini; and Biro entered the shop without any intent to locate a witness.22 Application of the exclusionary rule here would impose an excessive cost on the truth-seeking process while producing only speculative and negligible deterrence.23
Hennessey's testimony is admissible; the Court of Appeals erred in ordering its suppression.24
Related opinions on this issue
Chief Justice Burger concurred in the judgment.25 He agreed that there is a fundamental difference between live-witness testimony and other evidence for exclusionary rule purposes.26 Burger would have adopted a per se rule admitting all live-witness testimony that satisfies traditional evidentiary standards.27
He stressed that the exclusionary rule exists only to deter official misconduct.28 Excluding testimony based on the witness's free will does not advance this purpose because an officer cannot realistically calculate such factors during an illegal search.29 The permanent silencing of a witness imposes too high a cost on the judicial system compared to any marginal deterrent benefit.30