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Suppose police conduct an illegal search of a residence (no warrant, no consent, no probable cause) and find a dead body. There is plenty of evidence in plain sight that it was a murder and also evidence of who the killer is: he is standing next to the body with the murder weapon in his hand.

The murderer, being a smart lawyer, keeps his mouth shut.

Would all of the evidence found during the search be excluded under the "fruit of the poisonous tree" doctrine? If so, how could the murderer be prosecuted?

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    You would need to be more specific in your fact pattern for anyone to adequately answer a question like this because so many variables go into the analysis. How did the police know to search the residence in the first place? Did they see someone run in there after committing a crime? Did they hear screams or did someone else hear screams and report it? Did they see evidence of a crime before entering, which was in plain view....even through a window? All these things would impact the analysis. Not all searches require a warrant.
    – gracey209
    Commented Aug 25, 2015 at 17:02
  • @gracey209 I pointed out that there was no probable cause, but anyway the premise is that the search was illegal.
    – suriv
    Commented Aug 25, 2015 at 20:15
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    Right, except what may be thought to be "illegal" may very well be permissible depending on the circumstances surrounding how they find themselves performing the search in the first place. In order to analyze this you would need to have all of this information... Especially to apply the "fruit of the poisonous tree" doctrine.
    – gracey209
    Commented Aug 25, 2015 at 20:18
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    @gracey209 The guy who lived there posted "fuck the police" on Facebook. A cop saw it and decided to go there and rough him up. Kicked open the door and saw the body after entering.
    – suriv
    Commented Aug 25, 2015 at 20:25

4 Answers 4

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If that which you describe in your comment ( Facebook post as only basis for warrantless search) is, and can be shown, to be the only basis for the search, and there was no evidence of a crime in plain view when they arrived.....then yes, it is likely the search and all evidence acquired from the search would be excludable. As to whether the individual could still be prosecuted, that depends if a case could be built independent of the evidence collected during the search.

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    Right... Or they could try to find witnesses to seeing the two together prior to the time of death, neighbors hearing screams, etc. there are many instances where evidence from a search has been excluded but a case can be built regardless. There is also case law that goes to inevitable discovery, such that if some evidence would have likely been discovered ( the body) then even excluded evidence can sometimes still be used.
    – gracey209
    Commented Aug 25, 2015 at 21:32
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    @cpast: Exactly: The police can use the information they find in the excluded search to inform and direct their investigation. In this case, since all the elements of the crime seem to have been found in the inadmissible search, that sounds difficult. But in a less contrived example, maybe they find a body illegally, but they can use that to apply for a search warrant to look for security cameras and footage, the murder weapon, evidence linking the suspect to the weapon and the deceased, etc. Such a warrant would be granted, and all fruits of the warranted search would be admissible.
    – feetwet
    Commented Aug 25, 2015 at 21:32
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    So, the body may yield DNA, other evidence, that could lead to a solid case despite excluded evidence.
    – gracey209
    Commented Aug 25, 2015 at 21:34
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    @gracey209: Interesting: you should note the "inevitable discovery" doctrine in your answer. I hadn't heard of that, and it's quite applicable to this question!
    – feetwet
    Commented Aug 25, 2015 at 21:35
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    This is in the U.S.. If you are talking about a different foreign nation other laws may apply.
    – gracey209
    Commented Aug 26, 2015 at 21:00
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Realistically speaking, if a "smoking gun" like that was found from an illegal search, the authorities would absolutely perjure themselves to prevent a suppression. A probable cause would be found; they had smelled the odor of the decaying body before muscling in and coercing a search; an "eyewitness" had (been persuaded to claim that he) heard a gunshot or the cries of the victim; the perpetrator had unknowingly confessed to an "informant" or given consent to an undercover, etc.

The way this would unfold in court is that the smoking gun evidence would, in the eyes of the court, substantiate the prosecution's telling of events; the suspect's push for a suppression would be improbable on the merits of the case, and outright impossible politically. The judge is going to stand for re-election, after all. The jury will see the evidence, and they will fry the convict.

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  • why the downvote? Commented Aug 10, 2016 at 3:22
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    Please take the tour, and then have a look at some positively-rated answers.
    – feetwet
    Commented Aug 10, 2016 at 15:40
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    I suspect this well may be quite truthful answer, but without examples of where that sort of authorities' behavior was proved it remains pure speculation. For this reason I downvote.
    – Greendrake
    Commented Dec 17, 2022 at 5:59
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In Nix v. Williams, 467 U.S. 431 (1984), the U.S. Supreme Court created an "inevitable discovery" exception to the exclusionary rule. The exclusionary rule makes most evidence gathered through violations of the Fourth Amendment to the United States Constitution, which protects against unreasonable search and seizure, inadmissible in criminal trials as "fruit of the poisonous tree". In Nix, the Court ruled that evidence that would inevitably have been discovered by law enforcement through legal means remained admissible. The inevitable discovery doctrine permits the introduction of illegally obtained evidence if the prosecutor can prove that the otherwise excluded evidence would have been lawfully discovered in the course of a routine, predictable investigation.

Furthermore, under the "independent source" doctrine, the Fourth Amendment does not require the suppression of evidence initially discovered during police officers' illegal entry of private premises if that evidence is also discovered during a later search pursuant to a valid warrant that is wholly independent of the initial illegal entry. Murray v. United States, 487 U.S. 533 (1988).

Whether either of these ground could be established in this case is a tricky question. Fine details of the facts would matter as would the exact account of what the police did next.

An inevitable discovery argument might be stronger than an independent source argument in this case, where there was really no basis upon which a warrant could have been applied for and nothing that would have tipped off the police other than the discovery that they made during the illegal search that a crime was committed.

Another conceivable exception has already been ruled out. In James v. Illinois, 493 U.S. 307 (1990), the United States Supreme Court prohibited the admission of evidence obtained in violation of the Fourth Amendment for the use of impeaching statements made by a defense witness, such as the defendant asserting his innocence in testimony at trial, for example, by presenting testimony in support of a false alibi defense.

However, while James v. Illinois is a binding U.S. Supreme Court precedent, I wouldn't be too surprised if this 5-4 decision made by a much more liberal court might be overruled by the current U.S. Supreme Court which is the most conservative U.S. Supreme Court that the U.S. has seen in six decades or more, particularly in a case that provided any basis for distinguishing that 1990 decision, even if the distinction was rather dubious.

Also, this illegally obtained evidence might be available to press professional ethics charges against an attorney who knowing that this inadmissible impeachment evidence existed, allowed his or her client to testify falsely under oath in the criminal trial of his client. See Model Rule of Professional Conduct 3.3, since the search did not violate the lawyer's Fourth Amendment rights, only the Fourth Amendment rights of his or her client. So the exclusionary rule might not apply to that ethics sanction proceeding.

As a result, the criminal defense attorney for the defendant might be compelled as a practical matter to have his or her client not testify and to hold the government to its obligation to provide the case beyond a reasonable doubt with admissible evidence.

Of course, the U.S. Supreme Court is not the only source of case law related to the 4th Amendment. Roughly half of all appellate court cases in the United States are criminal appeals. One of the most common grounds for an appeal in a criminal case is that evidence should have been suppressed pursuant to the 4th Amendment but was admitted in a manner that was prejudicial to the defendant.

There are probably more than a thousand published appellate court precedents in the United States addressing exceptions to the 4th Amendment exclusionary rule that are potentially relevant to this fact pattern. There are probably at least a dozen or two cases that involve almost identical facts nationwide. Those cases would be the focus of any briefing on this legal issue in a real case. If there were a case in the state or judicial circuit where the case was going to be tried that involved almost identical facts, that case would control the outcome, at least below the U.S. Supreme Court level.

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  • How would it be proved that the attorney "allowed his or her client to testify falsely" if the evidence proving the falsehood is inadmissible?
    – Greendrake
    Commented Dec 17, 2022 at 4:40
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    @Greendrake While the exclusionary rule would make the evidence inadmissible in a criminal trial of the defendant since it violate's the defendant's constitutional rights under the 4th Amendment, it wouldn't necessary be inadmissible in a professional ethics administrative hearing for the attorney as the attorney's 4th Amendment rights were violated.
    – ohwilleke
    Commented Dec 17, 2022 at 14:47
  • Does a second warrant count as 'wholly independent' if they start paying attention to that house afterwards (for example, by periodically asking neighbors if they've seen anything strange), and then see or hear something incriminating? Commented Jun 30, 2023 at 17:05
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My guess is they would arrest the killer and start processing the crime scene. They would gather any evidence and they would identify the body. By the time the it is determined that the search was illegal (for example, they searched the wrong house), it would be too late to exclude the fact that a body was found. Maybe some blood, prints and DNA evidence may be excluded. But the fact that a body was found cannot be denied.

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    – Community Bot
    Commented Dec 16, 2022 at 18:51
  • "the fact that a body was found cannot be denied": that may be true, but it might nonetheless be inadmissible at trial.
    – phoog
    Commented Dec 17, 2022 at 1:52

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