Also known as: purge the primary taint · purging the primary taint · primary taint purged · attenuation doctrine · fruit of the poisonous tree
Written by attorneys — see sources below.
Evidence obtained after an initial constitutional violation that is admissible because intervening events or circumstances have broken the causal link to the illegality.
Paul Peterson was arrested without probable cause and held for questioning. Two days later he appeared at the station with counsel and voluntarily surrendered records that led investigators to additional evidence. The passage of time and his counseled decision broke the connection to the initial detention.
Portia Price's apartment was entered without a warrant. Two days later she returned voluntarily with counsel and consented to a search that produced the same records. Her independent decision after release created a break sufficient to purge the taint from the initial entry.
Phuong Pham's apartment was entered without a warrant and her laptop seized. Three days later she appeared voluntarily at the station, was told she was free to leave, and supplied server credentials. Her independent choice after release severed the link to the initial entry.
On December 24, 1968, ten-year-old Pamela Powers disappeared from a YMCA building in Des Moines, Iowa, where she had accompanied her parents to watch an athletic contest. Williams was seen leaving the YMCA carrying a large bundle wrapped in a blanket. A fourteen-year-old boy who helped open his car door reported seeing two skinny white legs inside it. Williams' car was found the next day 160 miles east in Davenport, Iowa. Items of the child's clothing along with an army blanket were recovered at a rest stop on Interstate 80 near Grinnell between Des Moines and Davenport. A warrant issued for Williams' arrest. On December 26 the Iowa Bureau of Criminal Investigation organized a search with two hundred volunteers divided into teams that began twenty-one miles east of Grinnell and moved westward through Poweshiek County into Jasper County. Searchers checked all roads, ditches, culverts, abandoned farm buildings, and other places where a small child's body could be hidden. The search area was marked off in grids on highway maps. Williams surrendered to police in Davenport and was arraigned. After his attorneys arranged for no questioning during transport, two Des Moines detectives took him into custody for the return drive. During the trip Detective Leaming spoke to Williams about predicted snow and the parents' right to a Christian burial. Williams then directed the officers to the child's shoes, the blanket, and ultimately the body itself. The body lay next to a culvert in a ditch beside a gravel road in Polk County. It was roughly two and one-half miles from where one search team had stopped when the search was suspended at 3 p.m. Williams was indicted for first-degree murder. At his first trial the evidence of the body was admitted over objection. He was convicted. The Iowa Supreme Court affirmed. The United States Supreme Court reversed in Brewer v. Williams on the ground that the statements were obtained in violation of the Sixth Amendment right to counsel. At the second trial in 1977 the prosecution introduced evidence of the condition of the body, articles and photographs of clothing, and autopsy results without offering Williams' statements or showing that he had directed police to the body. The trial court found by a preponderance of the evidence that the body would have been discovered within a short time in essentially the same condition by the continuing search. The Iowa Supreme Court affirmed. On federal habeas corpus the District Court denied relief after an independent review. The Court of Appeals for the Eighth Circuit reversed. The Supreme Court granted certiorari.
View casePaula Pierce was placed in a lineup without counsel. At trial the victim identified her after the passage of several weeks and after consulting an attorney. The substantial time gap and intervening legal advice dissipated any taint from the unlawful lineup.
On September 21, 1964, a federally insured bank in Eustace, Texas, was robbed when a man wearing a small strip of tape on each side of his face entered the bank, pointed a pistol at the female cashier and the vice president, and forced them to fill a pillowcase with the bank's money before driving away with an accomplice waiting in a stolen car outside. On March 23, 1965, an indictment was returned charging respondent Billy Joe Wade with conspiring to rob the bank and with the robbery itself. Wade was arrested on April 2, 1965, and counsel was appointed to represent him on April 26, 1965. Fifteen days later, on May 11, 1965, an FBI agent arranged a lineup at the local county courthouse without notifying Wade's counsel; Wade stood with five or six other prisoners, each wearing strips of tape on his face, and each was directed to say words such as "put the money in the bag." Both bank employees identified Wade at the lineup. At Wade's subsequent trial in federal district court, the two employees identified him in the courtroom on direct examination; on cross-examination they testified about their prior lineup identifications, and an FBI agent who observed the lineup also testified. Wade's counsel moved to strike the courtroom identifications on Fifth and Sixth Amendment grounds, but the motion was denied and Wade was convicted. The Court of Appeals for the Fifth Circuit reversed the conviction, holding that the lineup violated Wade's Sixth Amendment rights, and ordered a new trial at which the in-court identification evidence would be excluded. The Supreme Court granted certiorari.
View casePenelope Price's conversations were recorded without a warrant. At trial a witness who had learned the same information through a separate lawful investigation testified after a month-long delay. The witness's independent knowledge and the elapsed time meant the testimony was not obtained by exploitation of the wiretap.
Petitioners Alderman and Alderisio, along with Ruby Kolod (now deceased), were convicted in federal court of conspiring to transmit murderous threats in interstate commerce under 18 U.S.C. §§ 371 and 875(c). Their convictions were affirmed by the Tenth Circuit in 1967, and the Supreme Court initially denied certiorari. After denial, the petitioners alleged in a rehearing petition that Alderisio's Chicago business premises had been subjected to government electronic surveillance. The government responded by acknowledging that Alderisio's conversations had been overheard through unlawful eavesdropping. Petitioners Ivanov and Butenko were convicted in separate proceedings of conspiring to transmit national defense information to the Soviet Union under 18 U.S.C. §§ 794(a) and (c) and related charges under 18 U.S.C. § 951. The Third Circuit affirmed most convictions. Following the Alderman rehearing developments, certiorari was granted in Ivanov and Butenko on parallel questions concerning surveillance. After the convictions were affirmed and while the cases were pending, it was revealed that the United States had engaged in electronic surveillance that might have violated Fourth Amendment rights and tainted the convictions. The Supreme Court vacated the judgments and remanded each case to the District Court for adjudication of whether any government evidence supporting the convictions was the product of illegal surveillance. The government moved for modification of the remand order, proposing that surveillance records first undergo in camera inspection by the trial judge, who would disclose to petitioners and counsel only those materials found arguably relevant to the prosecution. Petitioners opposed the in camera procedure and sought full disclosure of all surveillance records to which they claimed standing. The government maintained that none of the overheard conversations were arguably relevant to the prosecutions and that disclosure of irrelevant conversations would endanger third parties or national security. The Supreme Court restored the cases for reargument specifically on the disclosure issue and the question of standing to object to the fruits of illegal surveillance.
View casePriya Prasad was detained without probable cause and questioned. After release she returned days later with counsel and gave a statement. The intervening release and voluntary return with counsel dissipated any connection to the initial detention.
On March 26, 1971, the proprietor of a pizza parlor in Rochester, New York, was killed during an attempted robbery. On August 10, 1971, Detective Anthony Fantigrossi learned of a possible lead implicating petitioner Irving Dunaway in the crime from an informant. Fantigrossi questioned a jail inmate but obtained no information sufficient to secure a warrant for Dunaway's arrest. Nevertheless, on the morning of August 11, 1971, three detectives located Dunaway at a neighbor's house and took him into custody. Although not told he was under arrest, Dunaway would have been physically restrained if he had attempted to leave. He was driven to police headquarters in a police car and placed in an interrogation room. After receiving Miranda warnings, Dunaway waived his right to counsel and made statements and drew sketches that incriminated him in the crime. He was then formally arrested and charged with murder and attempted robbery. Dunaway's motion to suppress the statements and sketches was denied at trial, and he was convicted by a jury. Following initial affirmances and a remand from the Supreme Court in light of Brown v. Illinois, the County Court found the detention illegal and granted the suppression motion, but the Appellate Division reversed that determination. The New York Court of Appeals dismissed Dunaway's application for leave to appeal.
View caseCourts examine the time between the illegality and discovery of the evidence, any intervening circumstances, and the purpose and flagrancy of the misconduct. Purposeful or flagrant misconduct weighs heavily against a finding that the taint has dissipated.
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A voluntary statement made after release and with counsel can constitute an intervening circumstance that severs the causal chain. The passage of time combined with the suspect's independent decision to come forward supports admissibility under the attenuation doctrine.
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Evidence is admissible if it rests on information wholly separate from the illegal conduct. Preexisting tips or records that alone support probable cause break the link to the tainted source and allow admission.
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Flagrant misconduct, such as a deliberate warrantless intrusion over an extended period, weighs strongly in favor of suppression. Courts are reluctant to find attenuation when the violation was calculated and invasive.
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