Also known as: dissipate the taint · dissipating the taint · dissipated the taint · attenuation doctrine
Written by attorneys — see sources below.
A doctrine providing that evidence obtained after an unconstitutional search or seizure remains admissible when the causal connection between the illegality and the evidence has become sufficiently attenuated. Courts assess attenuation by weighing the time between the misconduct and the discovery of the evidence, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct.
Federal agents forced open the door to Dorothy Daniels's bedroom and arrested her without a warrant. She made an oral statement identifying a storage locker while still under arrest and in the presence of the agents. The statement was the direct product of the illegal entry and arrest, so the connection to the misconduct remained unbroken and the taint did not dissipate.
Agents detained Dustin Donovan on a factory floor without probable cause and obtained an oral admission. Two days later Donovan returned voluntarily to the federal building with retained counsel, received full warnings, and signed a written confession identifying a storage unit. The passage of time, his release, and the presence of counsel constituted intervening circumstances that dissipated the taint from the initial detention.
Officers arrested Doris Duffy without probable cause and questioned her at the station. Less than two hours later she gave a detailed confession. The short time interval and absence of any significant intervening event left the causal chain intact, so the taint from the unlawful arrest had not dissipated.
On May 13, 1968, Chicago police detectives William Nolan and William Lenz broke into petitioner Richard Brown's apartment without a warrant or probable cause, searched it, and waited inside. When Brown arrived around 7:45 p.m. and climbed the rear stairs, the detectives arrested him at gunpoint after one positioned himself at the rear door window and the other approached from behind. The detectives had obtained Brown's name from the brother of murder victim Roger Corpus, killed one week earlier on May 6 with a .38-caliber revolver, but had identified him only as an acquaintance and lacked probable cause for arrest. They transported Brown to the Maxwell Street police station. At the station, after obtaining the Corpus homicide file, the detectives gave Brown Miranda warnings around 8:45 p.m. and questioned him for twenty to twenty-five minutes. Brown signed a two-page statement acknowledging that he and Jimmy Claggett had visited Corpus on May 5, that Claggett ordered Brown at gunpoint to bind Corpus, and that Claggett shot Corpus three times with a revolver Brown had sold him. The detectives and Brown then searched for Claggett, arrested him around 12:15 a.m., and returned to the station. Brown remained at the station and at 2 a.m. spoke with Assistant State's Attorney Crilly, who again administered Miranda warnings. Brown gave a second statement around 3 a.m. that was substantially consistent with the first but contained inaccuracies about his employment and education; he refused to sign it. Brown made a phone call to his mother at 4 a.m. and was taken before a magistrate at 9:30 a.m., approximately fourteen hours after arrest. Brown and Claggett were indicted on June 20, 1968. The trial court denied Brown's motion to suppress the statements after a hearing. At trial the State introduced evidence of both statements through Detective Nolan's testimony and the reading of the second statement to the jury. Brown was convicted of murder and sentenced to fifteen to thirty years' imprisonment. The Illinois Supreme Court affirmed the conviction.
An officer approached Destiny Davis on a public street without reasonable suspicion and ran her identification. The check revealed a valid preexisting warrant unrelated to the encounter. The officer arrested Davis on the warrant and found narcotics in her purse. Discovery of the independent warrant constituted an intervening circumstance that dissipated the taint of the unlawful stop.
In December 2006, an anonymous tipster contacted the South Salt Lake City police department's drug-tip line to report narcotics activity at a particular residence, specifying that the activity involved a white male and providing a physical description of the man and his car. Detective Douglas Fackrell was assigned to investigate the tip and conducted intermittent surveillance of the home over the course of about a week. During this period, Fackrell observed visitors who would frequently enter the residence and leave after short periods of time, a pattern consistent with drug dealing in his experience. One of the visitors was Edward Strieff. Officer Fackrell observed Strieff exit the house and walk toward a nearby convenience store. In the store's parking lot, Fackrell detained Strieff without reasonable suspicion, identified himself as a police officer, and asked what Strieff was doing at the residence. As part of the stop, Fackrell requested Strieff's identification, and Strieff produced his Utah identification card. Fackrell relayed the information to a police dispatcher, who reported that Strieff had an outstanding arrest warrant for a traffic violation. Fackrell arrested Strieff pursuant to the warrant. When Fackrell searched Strieff incident to the arrest, he discovered a baggie of methamphetamine and drug paraphernalia. The State of Utah charged Strieff with unlawful possession of a controlled substance and possession of drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was obtained by exploitation of an unlawful investigatory stop. The trial court denied the motion to suppress. The Utah Court of Appeals affirmed the trial court's denial of the suppression motion. The Utah Supreme Court reversed. The United States Supreme Court granted certiorari.
Agents conducted an unlawful search of Diane Dawson's office and learned the identity of a potential witness. Weeks later the witness voluntarily testified before a grand jury after being subpoenaed through ordinary investigative channels. The substantial time gap and the witness's independent decision to cooperate dissipated any taint from the original search.
In December 1974, police officer Ronald Biro entered respondent Ceccolini's Sleepy Hollow Flower Shop in North Tarrytown, New York, during a patrol break. He spoke with employee Lois Hennessey behind the counter. 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. Hennessey stated that the envelope belonged to Ceccolini. The next day Biro reported his observation to local detectives, who relayed the information to FBI agent Lance Emory. Four months later Emory interviewed Hennessey at her home in the presence of family members for approximately thirty minutes. During the interview she described the encounter with Biro after Emory identified himself and requested information about Ceccolini's activities. In May 1975 Ceccolini appeared before a federal grand jury and denied any involvement in policy betting operations at the flower shop. Hennessey testified before the same grand jury the following week, after which Ceccolini was indicted for perjury. Ceccolini waived a jury trial in the United States District Court for the Southern District of New York. The court heard his suppression motion together with the trial evidence. The District Court found Ceccolini guilty after a bench trial. 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. The Court of Appeals for the Second Circuit affirmed the District Court's suppression order on appeal by the Government. The Supreme Court granted certiorari to examine the ruling.
Officers arrested Derek Douglas in his home without a warrant and took him to the station. He gave a statement at the station that was later used against him. Because the statement was obtained at the station rather than in the home, the connection to the warrantless entry had become attenuated and the taint dissipated.
On January 11, 1984, New York City police found the body of Ms. Thelma Staton murdered in her apartment. Facts gave the officers probable cause to believe that respondent Bernard Harris had killed her. On January 16, 1984, three police officers went to Harris' apartment to take him into custody without first obtaining an arrest warrant. When the police arrived, they knocked on the door while displaying their guns and badges, and Harris let them enter the apartment. Once inside, the officers read Harris his Miranda rights under Miranda v. Arizona, which he acknowledged understanding, and he agreed to answer their questions, reportedly admitting that he had killed Ms. Staton. Harris was then arrested and taken to the station house, where he was again informed of his Miranda rights and signed a written inculpatory statement. The police subsequently read Harris the Miranda warnings a third time and videotaped an incriminating interview between Harris and a district attorney, even though Harris had indicated that he wanted to end the interrogation. The trial court suppressed Harris' first and third statements, rulings the State does not challenge, but concluded that the second statement made at the station house was admissible. Following a bench trial, Harris was convicted of second-degree murder, and the Appellate Division affirmed the conviction. A divided New York Court of Appeals reversed, 72 N. Y. 2d 614, 532 N. E. 2d 1229 (1988). The Supreme Court granted certiorari to resolve the admissibility of the station house statement. 490 U. S. 1018 (1989).
Courts weigh three primary factors: the temporal proximity between the illegality and the discovery of the evidence, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. Purposeful or flagrant misconduct weighs heavily against a finding of attenuation.
Supporting sources
…Dunaway v. New York , 442 U. S. 200, 217-218 (1979); United States v. Ceccolini, supra , at 279. In short, the "dissipation of the taint" concept that the Court has applied in deciding whether exclusion is appropriate in a particular case "attempts to mark the point at which the detrimental consequences of illegal police…
…custody when he made the statement. The connection between the illegal arrest and the statement had become so attenuated as to dissipate the taint. The statement was therefore admissible. IV We turn finally to the heroin found in Yee's house. The Court of Appeals held that the heroin was admissible because it was not the fruit…
…between the lawless conduct of the police and the discovery of the challenged evidence has "become so attenuated as to dissipate the taint." ' " 435 U. S., at 273-274. It is also suprising to learn that the issues in Stone v. Powell are "distinct" from the Fourth Amendment. : Consider the full context of the…
…cost on the legitimate demands of law enforcement than can be justified by the rule’s deterrent purposes. The notion of the “dissipation of the taint” attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its…
…must outweigh its substantial social costs. Hudson v. Michigan , 547 U. S. 586, 591 (2006). We have previously applied the attenuation doctrine in cases involving negligent police conduct. In Hudson , police officers executed a valid search warrant but violated the Fourth Amendment’s “knock-and-announce” rule. Id. , at 588. We…
A valid preexisting warrant that is unconnected to the stop constitutes a strong intervening circumstance. When combined with at most negligent police conduct and the absence of purposeful or flagrant misconduct, the warrant typically dissipates the taint and renders evidence seized during the subsequent lawful arrest admissible.
Supporting sources
A significant time gap between the illegality and the discovery of evidence supports attenuation because it suggests the coercive impact of the misconduct has dissipated. Even a two-day interval can favor admissibility when accompanied by intervening circumstances such as release from custody and voluntary return with counsel.
Supporting sources
Yes. When a witness's identity is discovered through an illegal search but the witness later testifies voluntarily after a substantial time gap and through independent investigative channels, the connection to the original illegality becomes sufficiently attenuated for the testimony to be admissible.
No. A statement obtained at the station after a warrantless home arrest is sufficiently attenuated from the illegal entry because the location and circumstances of the questioning break the direct causal chain, rendering the statement admissible.