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?

  • 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 Aug 25 '15 at 17:02
  • @gracey209 I pointed out that there was no probable cause, but anyway the premise is that the search was illegal. – suriv Aug 25 '15 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 Aug 25 '15 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 Aug 25 '15 at 20:25

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 Aug 25 '15 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 Aug 25 '15 at 21:32
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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 Aug 25 '15 at 21:35
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    @Andrew, are you saying you think that if someone is searched at someone else's house, that the evidence is no subject to exclusion because they are not the homeowner? If so, this is not a correct assertion. A lawful search requires a warrant born of probable cause (unless the homeowner allowed the search expressly) no matter where the person is (unless the search is subject to arrest). Assuming the facts don't include the express consent to a search by the property owner, all 4th amendment protections will apply. Even with consent, search of the individual still requires probable cause. – gracey209 Aug 26 '15 at 20:52
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    They have still entered a private residence without consent. You have standing to challenge the search because if you are in a private residence, unless consent was given to search, you have a reasonable expectation of privacy. The fact that you do not own the residence does not change the analysis. – gracey209 Aug 26 '15 at 20:59

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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