Chapter 60: Fruit of the Poisonous Tree

[1] USSC: Kaupp v.
Texas (2003) 538 US 626, 633 ["Demonstrating such purgation
is, of course, a function of circumstantial evidence, with the
burden of persuasion on the state."]; US v.
Leon (1984) 468 US 897, 911 ["the connection between police
misconduct and evidence of crime may be sufficiently attenuated to
permit the use of that evidence at trial"]; US v.
Crews (1980) 445 US 463, 471 [the key is whether "the chain
of causation proceeding from the unlawful conduct has become so
attenuated or has been interrupted by some intervening
circumstance so as to remove the 'taint' imposed upon that
evidence by the original illegality."]; Murray v.
US (1988) 487 US 533, 537 [evidence will not be suppressed
if the connection between it and the unlawful conduct "becomes so
attenuated as to dissipate the taint."]; Colorado
v. Spring (1987) 479 US 564, 571-72 ["A confession
cannot be 'fruit of the poisonous tree' if the tree itself is not
poisonous."]; INS v. Lopez-Mendoza (1984) 468
US 1032, 1040-41 ["The general rule in a criminal proceeding is
that statements and other evidence obtained as a result of an
unlawful, warrantless arrest are suppressible if the link between
the evidence and the unlawful conduct is not too attenuated."];
Oregon v. Elstad (1985) 470 US 298, 306 [to
remove the taint, "the prosecution must show a sufficient break in
events to undermine the inference" that the evidence was obtained
as a result of the officers' illegal conduct]. CAL:
P v. Rodriguez (2006) 143 CA4 1137, 1142 ["The
concept of purging the taint attempts to mark the point at which
the detrimental consequences of illegal police action become so
attenuated the deterrent effect of the exclusionary rule no longer
justifies its cost."]; P v. Ramsey (1969) 272 CA2
302, 312 ["evidence ultimately derived from illegally obtained
evidence is nevertheless admissible if its connection with the
illegally obtained evidence has become so attenuated as to
dissipate the taint"]. 9th CIR: US v.
Smith (9C 1998) 155 F3 1051, 1060 ["at some point, even in
the event of a direct and unbroken causal chain, the relationship
between the unlawful search or seizure and the challenged evidence
becomes sufficiently weak to dissipate any taint resulting from
the original illegality"]. OTHER: US v. Elmore (6C
2021) 18 F4 193, 199 ["derivative evidence will not be suppressed
where the causal connection between challenged evidence and the
constitutional violation is remote or attenuated."].

[2] CAL: In re Richard G. (2009)
173 CA4 1252, 1262 ["The 'fruit of the poisonous tree' theory
contemplates evidence being discovered along a causal 'time line'
or 'road,' beginning at the 'poison' of a Fourth Amendment
violation, and ending at the 'fruit' of newly discovered
information, witnesses, or physical evidence. When the time line
becomes too attenuated, or the causal 'road' is blocked by an
intervening, independent act, the 'poison' is declared purged and
its evidentiary 'fruit,' is admissible."].

[3] QUOTE FROM:
Wong Sun v. US (1963) 371 US 471, 487-88;
Hudson v. Michigan (2006) 547 US 586, 592. USSC:
US v. Crews (1980) 445 US 463, 471. ALSO SEE:
P v. Richards (1977) 72 CA3 510, 514 ["An illegal arrest,
alone, is utterly irrelevant. All that matters is whether the
illegal arrest resulted in tainted evidence."]. NOTE: In
US v. Gorman (9C 2017) 859 F3 706, 718 the Ninth Circuit
stated that, in addition to the "fruit of the poisonous tree" rule
there is a separate suppression exception known as "attenuation."
This is incorrect. Attenuation is an integral component of the
"fruits" doctrine; they are not separate exceptions to the
suppression rule. Specifically, attenuation, such as an
independent intervening event, causes a break in the chain of
causation between the illegal police activity and the "fruit" of
that activity. In support of its assertion that attenuation is a
separate concept from the fruits rule, the Ninth Circuit cited
Wong Sun v. US (1963) 371 US 471. This was ironic because
Wong Sun saying nothing of the sort. In fact, it is a
straight "fruits" case.

[4] USSC:
Hudson v. Michigan (2006) 547 US 586, 591 ["exclusion may
not be premised on the mere fact that a constitutional violation
was a 'but-for' cause of obtaining evidence"];
US v. Leon (1984) 468 US 897, 910-11 ["we have declined to
adopt a per se or 'but for' rule that would render inadmissible
any evidence that came to light through a chain of causation that
began with an illegal arrest"]; Wong Sun v. US (1963) 371
US 471, 487-88 ["We need not hold that all evidence is 'fruit of
the poisonous tree' simply because it would not have come to light
but for the illegal actions of the police. CAL:
P v. Mayfield (1997) 14 C4 668, 760; P v. Coe (1991)
228 CA3 526, 531 ["Although sophisticated argument may prove a
causal connection between information obtained illegally and
evidence subsequently offered, such connection may have become so
attenuated as to dissipate the taint."];
P v. Beardslee (1991) 53 C3 68, 108;
P v. Carrera (1989) 49 C3 291, 324;
P v. Williams (1977) 68 CA3 36, 45 [court describes as
"ludicrous" the assertion that if the defendant had not been in
illegal custody he could have disposed of the evidence before it
was seized by the police]. 9th CIR: US v. Smith (9C
1998) 155 F3 1051, 1060 ["The attenuated basis exception is, at
bottom, the manifestation of the courts' consistent rejection of a
'but for' causation standard in fruit of the poisonous tree
doctrine."]. OTHER: US v. Budd (7C 2008) 549 F3
1140, 1144 ["Budd demonstrated nothing more than but for
causation."].

[5] USSC: Segura v.
US (1984) 468 US 796, 804 ["Evidence obtained as a direct
result of an unconstitutional search or seizure is plainly subject
to exclusion."]; US v. Leon (1984) 468 US
897, 911, fn.7; Murray v. US (1988) 487 US
533, 536-37; Dunaway v. New York (1979) 442
US 200, 217-18 ["Where there is a close causal connection between
the illegal seizure and the confession, not only is exclusion of
the evidence more likely to deter similar police misconduct in the
future, but use of the evidence is more likely to compromise the
integrity of the courts."]. CAL: P v.
Williams (1988) 45 C3 1268, 1299 ["Once the challenged
police conduct is shown to be unlawful, the primary evidence is
automatically subject to exclusion."]; P v.
Harris (1975) 15 C3 384, 392 ["the identification of shoes
and currency, so incriminating to defendant, following the
[illegal] transportation detention [and must therefore be
suppressed]"].

[6] EXAMPLES: Evidence discovered during
the following has been deemed "primary":

> During a search incident to an unlawful arrest. See
Wong Sun v. US (1963) 371 US 471;
P v. Teresinski (1982) 30 C3 822, 832 ["Having found
defendant's detention illegal, it necessarily follows that the
physical evidence found in the automobile as a result of this
detention is inadmissible."].

> During an unlawful search of a house, car, or person. See
Segura v. US (1984) 468 US 796, 806;
P v. Roberts (1956) 47 C2 374, 377 ["if the conduct of
officers in entering or searching was unlawful, the search warrant
subsequently obtained based on their observation in the apartment
was invalid"]; P v. Dowdy (1975) 50 CA3 180;
P v. Brown (1989) 210 CA3 849, 857.

> During an illegal detention or arrest. See
P v. Harris (1975) 15 C3 384; P v. Teresinski (1982)
30 C3 822, 832.

> During an involuntary consent search. See
P v. Haydel (1974) 12 C3 190, 201.

> During a booking search resulting from an illegal arrest. See
P v. Taylor (1986) 178 CA3 217, 230.

[7] USSC: Murray v.
US (1988) 487 US 533, 536-37 [evidence is "derivative" if
it was "the product of the primary evidence, or [was] otherwise
acquired as an indirect result of the unlawful search"];
New York v. Harris (1990) 495 US 14, 19 ["the
indirect fruits of an illegal search or arrest should be
suppressed when they bear a sufficiently close relationship to the
underlying illegality"; emphasis added]. OTHER:
US v. Elmore (6C 2021) 18 F4 193, 199 ["derivative evidence
will not be suppressed where the causal connection between
challenged evidence and the constitutional violation is remote or
attenuated"].

[8] EXAMPLES: Evidence discovered during
the following has been deemed "derivative":

> While being illegally detained, the defendant abandoned the
evidence. See P v. Verin (1990) 220 CA3 551;
P v. Lee (1986) 186 CA3 743, 751;
US v. McClendon (9C 2013) 713 F3 1211, 1218.

> As the result of an illegal pat search, officers found car
keys which led them to the defendant's car.
US v. Holmes (DCC 2007) 505 F3 1288.

> As the result of an illegal pat search, officers found car
keys and, by using the remote control, they located the
defendant's car which contained evidence. See
US v. Holmes (DCC 2007) 505 F3 1288.

> The defendant made an incriminating statement after being
confronted by evidence that was obtained illegally. See
US v. Shetler (9C 2011) 665 F3 1150, 1158;
US v. Mendez (5C 2018) 885 F3 899, 914.

[9] QUOTE FROM: P v. Bates (2013)
222 CA4 60, 70. USSC: Kaupp v.
Texas (2003) 538 US 626, 633 ["Relevant considerations
include ... particularly, the purpose and flagrancy of the
official misconduct."]; Brown v.
Illinois (1975) 422 US 590, 604 ["The illegality here had
the quality of purposefulness."]; US v.
Leon (1984) 468 US 897, 911 ["an assessment of the
flagrancy of the police misconduct constitutes an important step
in the calculus"]. CAL: P v. Rodriguez (2006)
143 CA4 1137, 1143 ["Here there is credible evidence the officers
may have invented a justification for the traffic stop"];
P v. Coe (1991) 228 CA3 526, 532; P v.
Superior Court (Sosa) (1982) 31 C3 883, 894; P v.
Poole (1986) 182 CA3 1004, 1015; P v.
Neely (1999) 70 CA4 767, 789 ["an illegal act by a peace
officer may yield unexpected evidence subject to exclusion.
Illegal entry into a bordello may reveal a narcotics laboratory,
or beating a rape suspect may yield a confession to murder, all
quite unexpectedly. But in such examples, there is present an
intention to get something"]; P v.
Gonzalez (1998) 64 CA4 432, 447 ["The most damning factor
is the utter lack of probable cause for defendant's arrest and the
very clear indication its purpose was to take defendant into
custody and see what might turn up."]; P v.
Rodriguez (1993) 21 CA4 232, 241 [a "clear example of
exploitation of the illegality" was the officers' ability to ID a
suspect by means of a photograph of the suspect they took during
an illegal detention conducted for the purpose of placing the
photo in a "gang book"]; P v. Beardslee (1991) 53 C3
68, 111; P v. Henderson (1990) 220 CA3 1632, 1651;
Lockridge v. Superior Court (1970) 3 C3 166,
171; P v. Johnson (1969) 70 C2 541, 549 ["where the
acts intervening between the defendant's confession and the
unlawful search have in fact been induced by the authorities'
exploitation of the unlawful search, and where the confession was
in fact induced by the authorities' exploitation of those
intervening acts, the confession is the fruit of the unlawful
search," edited]; P v. Caratti (1980) 103 CA3 847,
851; P v. Reagan (1982) 128 CA3 92, 99;
Lozoya v. Superior Court (1987) 189 CA3 1332,
1345 ["Examination of cases where a defendant's statements or
other evidence are held admissible due to attenuation reveals that
such evidence is typically the product of happenstance, but
not the desired result of official misconduct."].
9th CIR: US v. Parga-Rosas (9C 2001)
238 F3 1209, 1215 ["Because the fingerprints were not taken for an
investigatory purpose, but for the sole purpose of proving
Parga-Rosas's identity, the Fourth Amendment is not implicated."];
US v. Jobe (9C 2019) 933 F3 1074, 1079 [mere delay in
searching computer that was seized lawfully is not likely to
warrant suppression]. OTHER: US v. Elmore (6C 2021)
18 F4 193, 201 ["At worst these are good faith mistakes by the
officers, not nefarious"]; US v. Walker (2C 2020) 965 F3
180, 183 ["The officers' justification for the stop falls much too
short of what the Fourth Amendment requires. Additionally, any
suspicion, reasonable or otherwise, would have dissipated when the
officers approached Walker and could see up close that he did not
resemble the photographed suspect."]; US v. Terry (4C 2018)
909 F3 716, 722 [officer's "purposeful disregard of the warrant
requirement" when he installed a GPS device on defendant's car
without a warrant]; US v. Mendez (5C 2018) 885 F3 899, 912
["In order for a violation to be 'purposeful' or 'flagrant,' it
must be more than just negligent."]; US v. Smith (11C 2012)
688 F3 730, 739-40 ["When an officer's interaction with an
individual is highly intrusive, the passage of time is less likely
to attenuate"]; US v. Greer (8C 2010) 607 F3
559, 564 ["The purpose of the unlawful entry was not to
investigate Greer."].

[10] QUOTE FROM:
Utah v. Strieff (2016) 579 US 232, 239. USSC:
Kaupp v. Texas (2003) 538 US 626, 633 ["no
substantial time passed between Kaupp's removal from his home in
handcuffs and his confession after only 10 or 15 minutes of
interrogation"]; Brown v. Illinois (1975) 422
US 590, 604 ["Brown's first statement was separated from his
illegal arrest by less than two hours"]; Oregon v.
Elstad (1985) 470 US 298, 310 ["When a prior statement is
actually coerced, the time that passes between confessions, the
change in place of interrogations, and the change in identity of
the interrogators all bear on whether that coercion has carried
over into the second confession."]; Wong Sun v.
US (1963) 371 US 471, 486 [statement made in defendant's
home after he had been unlawfully arrested there]. CAL:
P v. Poole (1986) 182 CA3 1004, 1015 ["Here's
Poole's consent to search and his confession were elicited not
within an hour or two, but within minutes after a flagrantly
illegal entry. We discern no significant intervening
circumstances"]; Wilson v.
Superior Court (1983) 34 C3 777, 791, fn.12 ["Wilson's
consent followed within minutes of the [illegal] detention [and]
there were no intervening circumstances"]; P v.
Boyer (2006) 38 C4 412, 450 ["substantial lapse of time
between the Fourth Amendment violation and the challenged
consent"]; P v. Johns (1983) 145 CA3 281, 293 ["the
causative nexus between the detective's [coercive] comments during
the second interview and defendant's admissions four days later
during the third, is extremely attenuated, if not nonexistent"];
P v. McClary (1977) 20 C3 218, 229 [four-hours was
"a relatively short time span between the two interviews"];
P v. Gonzalez (1998) 64 CA4 432, 447 ["Defendant's
confession was separated from his illegal arrest by as little as
three and a half hours and by as much as five and a half hours
beginning at 1:30 in the morning. Both time periods fall within
the range that suggests the confession did not result from an
intervening independent acts of free will."]; P v.
Beardslee (1991) 53 C3 68, 109 [11-year time lapse];
P v. Coe (1991) 228 CA3 526, 534 [2 years];
P v. Neely (1999) 70 CA4 767, 786 ["It is wrong to
conclude that if the road were uninterrupted, its length was
immaterial."]. 9th CIR: Mickey v.
Ayers (9C 2010) 606 F3 1223, 1234 [4 hours]. OTHER:
US v. Davis (7C 2022) 44 F4 685, 689 ["Davis concedes that
45 minutes passed between the initial entry and [his roommate's]
voluntary consent. Forty-five minutes is more than sufficient time
to support attenuation."]; US v. Walker (2C 2020) 965 F3
180, 188 ["there is no question that the temporal-proximity factor
cuts against finding attenuation, because only approximately ten
minutes elapsed between the unconstitutional stop and the
search"]; US v. Mendez (5C 2018) 885 F3 899, 911 ["the
temporal proximity factor favors Mendez"]; US v.
Lakoskey (8C 2006) 462 F3 965, 975 ["Thomas's consent to
search immediately follow[ed] the illegal entry"];
US v. Smith (11C 2012) 688 F3 730, 739 ["Our case law
reflects the commonsense principle that the more time that has
elapsed between the illegal act and the defendant's consent, the
more likely it is that the defendant's consent was untainted."];
US v. Stark (1C 2007) 499 F3 72, 76 ["Stark
gave his third confession two days after the illegal search"];
US v. Holmes (DCC 2007) 505 F3 1288, 1295
["there was virtually no temporal gap between the seizure and the
consent"].

[11] QUOTES FROM:
P v. Gonzalez (1998) 64 CA4 432, 443.

[12] CAL: P v. Sims (1993) 5 C4
405, 445 ["The degree of attenuation that suffices to dissipate
the taint requires at least an intervening independent act by the
defendant or a third party to break the causal chain in such a way
that the [evidence] is not in fact obtained by exploitation of the
illegality."]; P v. Reagan (1982) 128 CA3 92, 96 ["Where an
event occurs between the proscribed law enforcement conduct and
the proffered evidence which breaks the causal chain linking the
illegality and evidence in such a way that the evidence is not in
fact obtained by exploitation of that illegality the taint from
the evidence is removed."]; P v. Gonzalez (1998) 64 CA4
432, 444 ["Intervening circumstances can be anything the court
deems sufficient to break the causal chain"];
P v. Caratti (1980) 103 CA3 847, 852 ["If the defendant
commits an intervening independent act which breaks the causal
chain between the illegality and the evidence, the evidence is
sufficiently attenuated and there is no exploitation of the
illegality."]; P v. Sesslin (1968) 68 C2 418, 428 ["That
degree of 'attenuation' which suffices to remove the taint from
evidence obtained directly as a result of unlawful police conduct
requires at least an intervening independent act by the defendant
or a third party which breaks the causal chain linking the
illegality and evidence in such a way that the evidence is not in
fact obtained by exploitation of that illegality."].

[13] USSC:
Utah v. Strieff (2016) 579 US 232, 243 ["the officer's
discovery of the arrest warrant attenuated the connection between
the unlawful stop and the evidence seized incident to arrest"].
CAL: P v. Kasrawi (2021) 65 CA5 751, 761-62 [in the
absence of "flagrant abuse of police power," "an officer's
discovery of a warrant constituted an intervening circumstance
that separated the evidence he collected from the illegal
detention"]. NOTE: The following pre-Strieff cases
are consistent with the ruling in Strieff: CAL:
P v. Brendlin (2008) 45 C4 262, 272 ["the outstanding
warrant sufficiently attenuated the connection between the
unlawful traffic stop and the subsequent discovery of the drug
paraphernalia"]; P v. Carter (2010) 182 CA4 522, 530 ["[The
officer's] discovery of the outstanding arrest warrant attenuated
the taint of the unlawful traffic stop."];
P v. Rodriguez (2006) 143 CA4 1137, 1143 ["discovery of the
outstanding warrant for Rodriguez's arrest was clearly a
significant intervening circumstance"]. OTHER:
US v. Lowry 8C 2019) 935 F3 638, 643 ["once Officer Hand
discovered an arrest warrant that pre-existed the stop and was
unconnected with hit, his arrest of Lowry was a ministerial act
that was independently compelled by the pre-existing warrant"];
US v. Green (7C 1997) 111 F3 515, 521 ["It would be
startling to suggest that that because the police illegally
stopped an automobile, they cannot arrest an occupant who is found
to be wanted on a warrant—in a sense requiring an official call of
'Olly, Olly, Oxen Free."]; US v. Johnson (7C 2004) 383 F3
538, 546; US v. Hudson (6C 2005) 405 F3 425, 440 ["when the
police make an illegal stop for the very purpose of arresting the
person stopped, they are thereby exploiting the illegal stop"].

[14] CAL:
US v. McWilliams (2023) __ C5 __ [2023 WL 2173661] ["a
parole search condition merely authorizes a suspicionless search
of the parolee for purposes of monitoring the parolee's
rehabilitation and compliance with the terms of parole. It is not
a judicial mandate, nor does it compel further action of any sort.
Whether to take further action is largely within law enforcement's
discretion"].

[15] CAL: P v. Thomas (1980) 112
CA3 980, 986 ["where illegal police conduct merely suggests that a
particular person should be investigated, a legally conducted
investigation is then undertaken and, in the course thereof,
probable cause to make an arrest or secure a search warrant is
obtained through the independent acts of the suspect and others,
the taint is dissipated"]. 9th CIR: US v. Smith (9C
1998) 155 F3 1051, 1061 ["under Ninth Circuit precedent, the
baseline inquiry in evaluating taint is not whether an unlawful
search was the 'impetus' for the investigation or whether there
exists an unbroken 'causal chain' between the search and the
incriminating evidence; rather, courts must determine whether
anything seized illegally, or any leads gained from illegal
activity, tended significantly to direct the investigation toward
the specific evidence sought to be suppressed"];
US v. Cales (9C 1974) 493 F2 1215, 1215-16 ["The district
court must seek to discover what kind of direction and impetus the
illegal wiretap gave to the Cales investigation: did anything
seized illegally, or any leads gained from the illegal activity,
tend significantly to direct the investigation toward the specific
evidence sought to be suppressed?"]. OTHER:
US v. Carter (7C 2009) 573 F3 418, 423 ["Few cases, if any,
applying the attenuation exception hold that evidence separately
uncovered through completely lawful means is inadmissible because
an illegal search first made a particular person a suspect in a
criminal investigation."]; US v. Watson (8C 1991) 950 F2
505, 508 ["where a law enforcement officer merely recommends
investigation of a particular individual based on suspicions
arising serendipitously from an illegal search, the causal
connection is sufficiently attenuated"].

[16] CAL: P v. Ramsey (1969) 272
CA2 302, 313. 9th CIR: US v. Davis (9C 2003) 332 F3
1163, 1171 ["All that Davis need show is that the [illegally]
seized shotgun tended significantly to direct the investigation
toward the specific evidence sought to be suppressed."].
COMPARE: US v. Baker (9C 2023) __ F4 __ [2023 WL
1095359] ["Baker's flight from police does not qualify as an
intervening circumstance because the red Buick was discovered as a
consequence of the officers' misconduct before Baker fled from
officers."].

[17] QUOTE FROM:
In re Richard G. (2009) 173 CA4 1252, 1262. CAL:
P v. Caratti (1980) 103 CA3 847, 852 ["[Caratti's] decision
to sell marijuana and psilocybin mushrooms to Detective Anderson
was an independent intervening act which attenuated the connection
between the seizure of the contraband in his car and his
subsequent illegal conduct. The voluntary commission of an offense
subsequent to illegal police conduct is sufficient to dissipate
the taint caused by the original police misconduct."]; P
v. Cox (2008) 168 CA4 702, 712 ["defendant chose of
his own free will to resist and impede [the officer's] search, and
then chose to flee. Both of these choices were independent,
intervening acts"]; P v. Coe (1991) 228 CA3 526, 531
["The commission of a new crime by the defendant will ordinarily
be an intervening independent act of the defendant's free will
which purges the primary taint of prior police misconduct."];
P v. Prendez (1971) 15 CA3 486, 489 ["Appellant's
act in fleeing is analogous to the commission of an offense
subsequent to the police conduct said to be illegal—which
subsequent offense then dissipates the taint caused by the
police's original misconduct."];
In re Robert D. (1979) 95 CA3 767, 772 ["The
subsequent illegal acts dissipated any taint caused by the
unauthorized police action in activating the red light and
siren."]. COMPARE: US v. Baker (9C 2023) __ F4 __
[2023 WL 1095359] ["Baker's flight from police does not qualify as
an intervening circumstance because the [evidence] was discovered
as a consequence of the officers' misconduct before Baker fled
from officers."]; US v. Gorman (9C 2017) 859 F3 706, 718
[court ruled that the commission of a new traffic offense
following an illegal traffic stop, was not an independent
intervening event].

[18] QUOTE FROM:
Mann v. Superior Court (1970) 3 C3 1, 8. CAL:
P v. Sanchez (1981) 116 CA3 720, 729 ["attenuation can
result from a subsequent voluntary consent to search."];
In re Peter G. (1980) 110 CA3 576, 585 ["The defendant's
consent, if sufficiently an act of free will to purge the primary
taint of the unlawful conduct, may produce the requisite degree of
attenuation."]; P v. Henderson (1990) 220 CA3 1632, 1651
["If, under the circumstances of a particular case, consent is
found to be invalid, the People are entitled to prove attenuation;
i.e., to show there is no nexus between the unlawful police
conduct and the consent."]; P v. $48, 715 (1997) 58 CA4
1507, 1514 ["Where subsequent events adequately dispel the
coercive taint of the initial illegality—i.e., where there is no
longer causality—the subsequent consent is given full effect."];
P v. Haven (1963) 59 C2 713, 718 [consent given
"immediately" following illegal seizure "cannot be
segregated therefrom"]; P v. Lujano (2014) 229 CA4 175, 189
["Defendant's consents to search were obtained immediately after
the unlawful [detention] with no sufficient intervening events"];
P v. Sesslin (1968) 68 C2 418, 430. 9th CIR:
US v. Washington (9C 2004) 387 F3 1060, 1074 ["Washington's
act of signing the permission to search form, which advised him of
his right to refuse to consent, is distinct from examples of
'intervening circumstances' that have been considered sufficient
to purge the taint of prior constitutional violations."].
OTHER: US v. Harris (8C 2022) 55 F4 575, 580 ["the
government must show "(1) that [suspect's] consent was voluntary
and (2) that the consent was an independent act of [his] free will
that purged the taint of the Fourth Amendment violation."];
US v. LeBeau (8C 2017) 867 F3 960, 972 ["Consent can be an
intervening circumstance if the government shows "(1) that the
defendant's consent was voluntary and (2) that the consent was an
independent act of the defendant's free will that purged the taint
of the Fourth Amendment violation."]; US v. Smith (11C
2012) 688 F3 730, 741 ["the record is devoid of any suggestion
that the officers' conduct during this period interfered with his
making a knowing, intelligent, and voluntary choice to
[consent]"]; US v. Parker (7C 2006) 469 F3 1074, 1079
["Johnson's consent to the search constitutes an intervening
circumstance"]; US v. Esquivel (8C 2007) 507 F3 1154, 1158
["assuming a Fourth Amendment violation, the appellants' consents
to search the vehicle validated the subsequent search"];
US v. Ramos (8C 1994) 42 F3 1160, 1164 [during illegal (but
not flagrantly illegal) detention, officer's act of telling the
suspect that he did not have to consent and the suspect's act of
signing a consent form broke the chain of causation];
US v. Green (8C 2006) 442 F3 677, 681 ["Folino's consent
was sufficient to purge the taint of any alleged Fourth Amendment
violation."]; US v. Montgomery (5C 2015) 777 F3 269, 274
["the consent he gave to search his cell phone was unsolicited"].

[19] USSC:
Oregon v. Elstad (1985) 470 US 298, 306 ["It is settled law
that "a confession obtained through custodial interrogation after
an illegal arrest should be excluded unless intervening events
break the causal connection between the illegal arrest and the
confession so that the confession is 'sufficiently an act of free
will to purge the primary taint."];
Brown v. Illinois (1975) 422 US 590, 603-4 ["The
Miranda warnings are an important factor, to be sure, in
determining whether the confession is obtained by exploitation of
an illegal arrest. But they are not the only factor to be
considered. The temporal proximity of the arrest and the
confession, the presence of intervening circumstances are all
relevant."]; Rawlings v. Kentucky (1980) 448 US 98, 106
["Even given such a constitutional violation, however, exclusion
of petitioner's admissions would not be necessary unless his
statements were the result of his illegal detention."].
CAL: P v. Boyer (1989) 48 C3 247, 269 ["The issue is
whether intervening events break the causal connection between the
illegal detention and the incriminating statement so that the
statement is sufficiently an act of free will to purge the primary
taint."]; P v. Rich (1988) 45 C3 1036, 1081 ["The fact that
defendant, soon after consulting his attorney, told [the officer]
he still wished to talk to him clearly constitutes an intervening
independent act by the defendant and purges any taint from the
initial suppressed confession."]. ALSO SEE:
P v. Terrell (2006) 141 CA4 1371, 1385 [following numerous
Miranda violations, defendant asked to phone his mother;
during the conversations, he made incriminating statements; "It
was entirely defendant's idea to call his mother."]. NOTE:
Delay in arraignment: Although a defendant may technically
be under illegal arrest if his arraignment was delayed beyond the
statutory requirement, his free and voluntary statement made
during this time will ordinarily not be suppressed as "fruit" of
the illegal arrest. P v. Marshall (1990) 50 C3 907, 948-49;
P v. Carrera (1989) 49 C3 291, 323-24;
P v. Thompson (1980) 27 C3 303, 329-30.

[20] USSC:
Brown v. Illinois (1975) 422 US 590, 603-4;
Rawlings v. Kentucky (1980) 448 US 98, 108 ["Here, where
petitioner's admissions were apparently spontaneous reactions to
the discovery of his drugs in Cox's purse, we have little doubt
that this factor weighs heavily in favor of a finding that
petitioner acted of free will unaffected by the initial
illegality."]. CAL: P v. Hernandez (2009) 178 CA4
1510, 1537-38 ["And even if the second interview was a product of
the earlier pressure, the effect did not carry over to the contact
with [the deputy] the next day, which she initiated"];
P v. Campa (1984) 36 C3 870; P v. Rich (1988) 45 C3
1036, 1079; P v. Poole (1986) 182 CA3 1004, 1015;
P v. Sims (1993) 5 C4 405, 446; P v. Reagan (1982)
128 CA3 92, 99; P v. McKunes (1975) 51 CA3 487, 490
[defendant's decision to confess which was made upon being shown
evidence that was illegally obtained was not an independent
intervening event]; P v. Davis (2005) 36 C4 510, 554 [after
an officer had interrogated a suspect after the suspect had
invoked his right to remain silent, the suspect returned to his
cell and spoke about the interview (and made incriminating
statements) with an accomplice].

[21] USSC: Oregon v.
Elstad (1985) 470 US 298, 311-14. CAL: P v.
Beardslee (1991) 53 C3 68, 109 ["It is true that
defendant's knowledge that he had already confessed ... gave him a
false sense that he had nothing to lose in talking to the
California authorities. This might have played a role in
defendant's decision to speak ... At most, however, this suggests
that 'but for' the illegality, defendant would not have confessed
in California. [But] that is not the test."]; P v.
Storm (2002) 28 C4 1007, 1028-30 [suspect who invoked the
right to counsel was released from custody after "letting the cat
out of the bag"; non-coercive questioning two days later at his
home was not tainted].

[22] QUOTE FROM:
P v. Thierry (1998) 64 CA4 176, 184. USSC:
INS v. Lopez-Mendoza (1984) 468 US 1032, 1039 ["The 'body'
or identity of a defendant or respondent in a criminal or civil
proceeding is never itself suppressible as a fruit of an unlawful
arrest, even if it is conceded that an unlawful arrest, search, or
interrogation occurred."]. CAL:
Lockridge v. Superior Court (1970) 3 C3 166, 170 ["it was
pure happenstance that during an investigation of other crimes,
the police came across the gun taken in the Peace robbery"];
P v. Gonzalez (1998) 64 CA4 432, 450 ["This is not a case
in which one police department attempts to make an end run around
the Fourth Amendment by creating a 'don't ask-don't tell' strategy
in which one unit illegally arrests suspects and another unit
interrogates them deliberately unaware of the circumstances of the
arrest."]; P v. Thierry (1998) 64 CA4 176, 184 ["Only when
law enforcement makes illegal arrests for the sole or primary
purpose of obtaining photographs they can use in ongoing or future
investigations is there a constitutional justification to bar use
of those photographs in identifying the perpetrators of crimes."];
P v. Griffin (1976) 59 CA3 532, 538 ["it was pure
happenstance that during an investigation of other crimes, the
police came across the controlled substances taken in the El
Segundo robbery. Police were not looking for evidence in the
robbery at the time they went to or entered the Collins'
residence, indeed, they were unaware of the existence of the
robbery"]; P v. McInnis (1972) 6 C3 821, 825 ["the illegal
arrest was in no way related to the crime with which defendant was
ultimately charged. Indeed, two independent agencies were
involved"]. 9th CIR: US v. Del Toro Gudino (9C 2004)
376 F3 997, 999; US v. Orozco-Rico (9C 1978) 589 F2 433,
435 ["there is no sanction to be applied when an illegal arrest
only leads to discovery of the man's identity and that merely
leads to the official file or other independent evidence"];
US v. Guzman-Bruno (9C 1994) 27 F3 420, 421 ["A defendant's
identity need not be suppressed merely because it was discovered
as a result of an illegal arrest or search."];
US v. Garcia-Beltran (9C 2006) 443 F3 1126, 1132 ["The
Ninth Circuit has consistently held that evidence concerning the
identity of a defendant, obtained after an illegal police action,
is not suppressible as 'fruit of the poisonous tree."];
US v. Sandoval-Sandoval (9C 2007) 487 F3 1278.

[23] QUOTE FROM: US v.
Ceccolini (1978) 435 US 268, 278. USSC:
Michigan v. Tucker (1974) 417 US 433, 450.
OTHER: US v. Wipf (8C 2005) 397 F3
677, 683-84.

[24] USSC: US v.
Ceccolini (1978) 435 US 268, 276-80. CAL:
P v. Teresinski (1992) 30 C3 822, 835, 838;
P v. Superior Court (Negoescu) (1982) 131 CA3 429,
433; P v. Schweitzer (1982) 138 CA3 204, 207;
P v. Williams (1988) 44 C3 883, 918-19.
COMPARE: P v.
Superior Court (Sosa) (1982) 31 C3 883, 894.
NOTE: The admissibility of a witness's testimony may also
be based on inevitable discovery. See Chapter 61
Inevitable Discovery and Independent Source.

[25] CAL: P v. McCurdy (2014) 59
C4 1063, 1093.

[26] USSC: Wong Sun v.
US (1963) 371 US 471, 491. CAL: P v.
Jenkins (2004) 122 CA4 1160, 1179 [three days after being
released from custody following an illegal detention, the suspect
agreed to come to the police station for additional questioning];
P v. Storm (2002) 28 C4 1007; P v.
Inman (1986) 186 CA3 1137, 1144. 9th CIR: US
v. Hines (9C 1992) 963 F2 255, 257; US
v. Coleman (9C 2000) 208 F3 786, 790-91.
OTHER: US v. Clariot (6C 2011) 655 F3
550 [a suspect who was unlawfully detained made an incriminating
statement after the detention had been converted into a contact].
COMPARE: P v. Gonzalez (1998) 64 CA4 432, 447
[suspect "remained in police custody and police company from the
time of his arrest to the time he confessed."].

[27] USSC: Wallace v.
Kato (2007) 549 US 384, 389 ["a false imprisonment ends
once the victim becomes held pursuant to such process— when, for
example, he is bound over by a magistrate or arraigned on
charges"]. CAL: P v. Solomon (1969) 1 CA3
907, 910 ["However, the prints of Solomon's fingers which were
matched with the prints on the victim's car at trial were taken
from Solomon at the jail after he had been bound over for trial at
the preliminary hearing and arraigned."]; P v.
Fitzgerald (1972) 29 CA3 296, 315 [after illegal arrest,
fingerprints were legally obtained when defendant was arraigned on
new charges for which probable cause existed].
US v. Ortiz–Hernandez (9C 2005) 427 F3 567, 577 [the
government may compel a defendant to provide fingerprint exemplars
for identification purposes even though the police first learned
the defendant's identity through an illegally obtained initial set
of fingerprints]. ALSO SEE: Virgle v.
Superior Court (2002) 100 CA4 572 [defendant may be ordered
to submit to fingerprinting if lawfully in custody]; P v.
Rosales (1984) 153 CA3 353, 366 ["the trial court must
independently determine whether there is probable cause to believe
the defendant committed the charged offense before it may order
him to submit to fingerprinting"]; Fogg v.
Superior Court (1971) 21 CA3 1, 7. NOTE: There is a
presumption that fingerprints on file with a law enforcement
agency for a previous arrest were obtained lawfully. P v.
Reserva (1969) 2 CA3 151, 155-56. NOTE: An court
order to provide fingerprints or a handwriting exemplar does not
constitute a violation of the Fifth Amendment. US
v. Mara (1973) 410 US 19, 21 ["Handwriting, like
speech, is repeatedly shown to the public, and there is no more
expectation of privacy in the physical characteristics of a
person's script than there is in the tone of his voice."];
Gilbert v. California (1967) 388 US 263, 266.

[28] CAL: P v.
McInnis (1972) 6 C3 821, 826 [booking photo taken as a
result of an illegal arrest and used in a photo lineup to identify
the defendant in a previous crime was admissible; officers could
have used any one of several lawfully-obtained booking photos on
file but it was reasonable to show the victim the most recent
photograph which was the one obtained unlawfully]. 9th CIR:
US v. Sandoval-Sandoval (9C
2007) 487 F3 1278; US v. Garcia-Beltran (9C
2006) 443 F3 1126, 1132, 1133. OTHER: US v.
Oscar-Torres (4C 2007) 507 F3 224.

[29] 9th CIR: US v.
Sandoval-Sandoval (9C 2007) 487 F3 1278;
US v. Garcia-Beltran (9C 2006) 443 F3 1126,
1132, 1133; US v. Ortiz–Hernandez (9C 2005) 427 F3 567, 577
[the government may compel a defendant to provide fingerprint
exemplars for identification purposes even though the police first
learned the defendant's identity through an illegally obtained
initial set of fingerprints].