Inspired by this question related to admissibility of evidence obtained from an unlawful search and seizure: At an unlawful traffic stop, police searches the car and find the weapon used in a recent murder

Suppose the following facts:

  1. A uniformed police officer Al pulls over a car Bob for no lawful reason. The unlawful nature of the stop is not disputed.

  2. Al proceeds to search Bob's car without reasonable suspicion or probable cause. The unlawful nature of the search is not disputed.

  3. In the trunk of the car, Al finds the dead body of Cal. Cal has been stabbed to death with a knife (also in the trunk) covered in Bob's fingerprints. There is a full account of the murder signed by both Bob and Cal which describes Bob murdering Cal. There are polaroid photos of Bob murdering Cal, also in the trunk.

  4. There is no other evidence tying Bob to Cal's murder; no prior history, no eyewitness testimony, no missing persons reports, no indication of where Cal was murdered or why (other than the signed document) and Bob lawyered up and has refused to answer any questions on the grounds he fears self-incrimination.

Given these facts are not disputed:

  1. would we expect any of this evidence not to be ruled inadmissible if challenged in a criminal trial?
  2. assuming the evidence described is ruled inadmissible, what would the law require be returned to Bob?
  • the knife?
  • the pictures and document?
  • the clothes Cal was wearing?
  • Cal's body?
  1. would Bob be required to claim ownership of these items to have them returned, or would returning them be the default action?
  2. if Bob is required to claim ownership of the items to recover them, and does claim ownership, can that claim of ownership be used in a new trial against Bob?
  • 1
    How does Cal sign an account of his or her own murder? Commented May 22, 2021 at 2:35

1 Answer 1


The Likely Ruling

Assuming points 1 and 2 in the question, all the evidence from the trunk would be inadmissible, and if there really is no other evidence against Bob, then Bob would go free. This is highly improbable; the prosecution would find some grounds to dispute the unlawful nature of stop and search, even if ones the court would not accept. A better version might be "The judge rules that the stop and search were unlawful, and is upheld by the appellate court". That is more realistic and has the same result.

Inevitable Discovery

The only grounds I can see for any other result is "inevitable discovery". If other police were, say, already staking out Bob's house with a warrant to search the car, and Bob was on the way to that house at the time of the stop, then the prosecution could argue that they would inevitably have conducted a legal search of Bob's car and found the same evidence. The conditions for invoking this doctrine rarely occur, but it is possible.

After the Trial

There is no way that Cal's body can be Bob's property, so it would be released to Cal's next of kin or legal executor. Unless Bob was Cal's next of kin, it is hard to see any way that the body would be handed over to Bob.

Cal's clothes are almost surely part of Cal's estate, although it is in theory possible that they are Bob's property.

No claim of ownership can be used against Bob in a later trial, because any later trial would be barred by double jeopardy.

In any case, while evidence from the trunk would all be inadmissible in a trial of Bob, it might be admissible in a possible later trial of Joe, Bob's alleged accomplice. Therefore the police might well retain all the items (except the body) as possible future evidence.


This is actually about the exclusionary rule itself, not about the "fruit of the poison tree" doctrine. What is the difference? If an unlawful search finds evidence, that evidence is inadmissible under the exclusionary rule. If an unlawful search merely finds a lead, evidence later found via the lead is considered as "fruit of the poisoned tree" and is therefore inadmissible. For example, if the murder weapon is found in Bob's car after an unlawful search, the exclusionary rule applies. But if a note saying "stuf at 1234 Elm" is found during the unlawful search, and the police visit 1234 Elm Street, and find the murder weapon there, that is "fruit of the poisoned tree". Why does it matter? Because if the police find a different lead to 1234 Elm, so that the investigation or search at that address is not based solely on the results of the unlawful search, then the evidence found at 1234 Elm may be admissible, while corroboration will not save the evidence actually found by the unlawful search. It is a subtle but sometimes important distinction.

  • Why is it usable against Joe - isn't it the same forbidden fruit? Commented May 22, 2021 at 5:27
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    @George White Because it was Bob's fourth amendment rights that were violated, not Joe's, and there is at least some caselaw, if I am not mistaken, that says that one cannot assert another's rights in such a case. That might well be a good separate question and answer Commented May 22, 2021 at 13:48

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