Fruit of the Poisonous Tree

-By Alana Segal, Esq.

The Fourth Amendment and the Exclusionary Rule

Earlier this month, while waiting in court to represent a client, I watched an interesting proceeding I'd like to share with you. A defendant was facing charges of possessing a gram of Black tar heroin. His defense lawyer asked the judge to conduct a "probable cause" hearing during a preliminary court appearance. A probable cause hearing asks the judge to decide at the outset of the case if the police officer had probable cause to stop and detain the defendant and to search him and seize any of his property. The officer took the stand and testified the reason he stopped the defendant was because he observed him smoking a cigarette and the defendant appeared to him to be under the age of 18 (a minor crime in California). The officer then testified that he obtained the defendant's consent to search him, which he did, and which led to his discovery of the balloon of heroin. The officer therefore arrested the defendant and felony charges of intent to distribute illegal narcotics were brought against him. When I heard the police officer's testimony, I was ready to jump out of my seat and object, since it seemed to me the defendant was well into his thirties - nowhere close to 18 years

old. Apparently, the judge was in sync with my thoughts. He asked the prosecutor whether he "honestly" agreed with the officer that the defendant appeared to be under age. In a valiant effort, the D.A. admitted the defendant might not have looked under age on the day he was in court, but that on the day of the arrest he could have been wearing different clothes, had a different hairstyle, and had freshly shaven - all making the defendant seem much younger. Like me, the judge wasn't buying it. He ruled the stop and detention of the defendant lacked probable cause and therefore the resulting search and seizure were illegal. The judge ruled all evidence obtained from the search and seizure would be inadmissible at trial, and he ultimately dismissed all charges against the defendant. You may wonder why the defendant - who was clearly in possession of a large quantity of an illegal drug and had clearly committed a crime - was let off scot free? The answer lies in our Constitution. PROBABLE CAUSE AND THE FOURTH AMENDMENT Very shortly after our Nation adopted the U.S. Constitution, the Legislature passed the first ten amendments, known as the Bill of Rights. These amendments are called the "Bill of Rights," because all have to do with personal protections on liberty and property.

The Fourth Amendment is designed to protect your privacy. It guards against unreasonable searches and seizures and requires a judge to first review a case and issue a warrant or for probable cause to exist before a search, seizure or arrest can be made.

Probable cause means law enforcement must know of fact and circumstances that would lead a reasonably prudent person to believe that the defendant had committed or was committing a crime. This is an objective standard; therefore, in the case of the officer who testified he believed the defendant who was smoking a cigarette was a minor, when to the judge (and to both his lawyer and me) he looked well over 18, probable cause could not be found to exist. Since the search and seizure provisions of the Fourth Amendment guarantee privacy, the law deems searches and seizures by state or federal law enforcement authorities to be "unreasonable" when probable cause does not exist. THE EXCLUSIONARY RULE Recently I represented a client who was charged with driving on a revoked license. He was issued a ticket by the officer for this violation but for no other traffic violations. At the outset of his trial, I asked the judge to conduct a probable cause hearing, since the ticket showed nothing to establish a basis for why the officer pulled over my client. The officer testified he "thought" my client had been speeding, but couldn't really remember because he issued the ticket over a year ago. This testimony was insufficient to establish probable cause for the traffic stop. Accordingly, when the officer testified he ran my client's license and found it to be revoked, the judge excluded this evidence. This is an example of what the law calls the "Exclusionary Rule." Simply put, if the court finds that an unreasonable search occurred, any evidence seized as a result of the search cannot be used against the defendant in a criminal prosecution. This rule was established by the United States Supreme Court in order to create a remedy for violations of the Fourth Amendment. FRUIT OF THE POISONOUS TREE In another case I handled earlier this year, my client was arrested for illegally growing marijuana. The officer testified he was patrolling an area well-known for vice activities. He said he observed my client and a passenger sitting in a parked car, with the lights off, on an unlit street. He got out of his patrol car, approached my client's car, and shined his flashlight into the car. The officer then, without further explanation or any articulated suspicions, ordered my client and his passenger out of the car and demanded my client's driver's license. He conducted a search of the car and found hydroponics equipment, which the officer testified he knew was typically used for cultivating marijuana. The officer made note of my client's address from his driver's license. A few days later, the officer and his partner went to my client's home. They peered into my client's fenced yard and saw a greenhouse.

Without a warrant, the officer and his partner entered my client's backyard, went into the greenhouse and found 300 marijuana plants. The judge threw the case out, finding the original search of the car was without probable cause, and both the evidence obtained from the illegal search (the growing equipment and my client's address) as well as the later discovered evidence (the 300 marijuana plants) could not be used in evidence to convict my client. This is an example of the legal concept known as "Fruit of the Poisonous Tree." "Fruit of the Poisonous Tree" is a metaphor to describe evidence gathered through information obtained illegally. The logic of the metaphor is that if the source of the evidence (the "tree") is tainted, then anything gained from it (the "fruit") is tainted -- or poisoned -- as well. In other words, if the government violates the Fourth Amendment by illegally obtaining evidence or information without probable cause, it cannot later use that evidence directly in court or derivatively, i.e., by later obtaining new information it then uses to pursue charges against the defendant whose Fourth Amendment rights were violated. Some people consider the exclusionary rule and the fruit of the poisonous tree doctrine unfair, because it lets a defendant who has undoubtedly committed a crime - even sometimes a very serious or brutal crime - go free. Supporters of the rule argue, however, that excluding illegally seized evidence is necessary to deter police from conducting illegal searches. In other words, police will not conduct improper searches if the illegally obtained evidence cannot be used to convict the defendant. In my view, the bottom line is that in this country, unlike in many others, we value our human rights and civil liberties over the desire to prosecute crime. As a first-generation American with Russian ancestry, I think this is just one thing that makes our country great and establishes our judicial system as the best in the world.