Unlawful Reaction to Unlawful Action

Commission of a new crime is not a ‘fruit of the poisonous tree.’

Let’s face it—law enforcement officers sometimes make detentions, arrests, entries or searches that run afoul of one or more of the hundreds of judicial decisions differentiating “reasonable” and “unreasonable” searches and seizures. Usually, police error may mean the suppression of resulting evidence under the so-called “fruit of the poisonous tree” doctrine. (Wong Sun v. U.S.)

But what if a suspect reacts to an attempted unlawful detention, arrest, entry or search by discarding evidence or committing a new crime? Can you then lawfully arrest and search him? Will resulting evidence be admissible?

Most courts have adopted the position that the suspect’s abandonment of evidence or commission of a crime following an unlawful search or seizure attenuates the taint of police illegality and permits arrest and prosecution for the new offense, and admission of consequent evidence. The following cases from around the country are illustrative.

California v. Hodari D. (U.S. Supreme Court)

A group of young men ran when an Oakland Police car approached. One officer pursued Hodari on foot and saw him throw down a rock of crack cocaine as he fled. The rock was recovered, and Hodari was captured and arrested. He moved to suppress the drugs, on the ground of unlawful attempted detention. Although the California appellate court agreed with Hodari and suppressed the evidence, the U.S. Supreme Court reversed and held the drugs admissible. The court said this:

“Assuming the officer’s pursuit in the present case constituted an unjustifiable show of authority requiring Hodari to halt, since Hodari did not comply, he was not seized until he was tackled. The cocaine abandoned while he was running was in this case not the fruit of a seizure.”

U.S. v. King (1st Circuit—New Hampshire)

A trooper approached two men sitting in a parked car, ordered them out and began to pat them down for weapons. The driver ran, pulled a gun and fired at the officer. The officer pulled King, the passenger, to the ground and retrieved a pistol from King’s waistband, then returned fire toward the fleeing driver. King was charged as a felon with a firearm and moved to suppress the gun, arguing that the initial detention was unlawful and the gun was fruit of the poisonous tree. The federal appeals court denied suppression, holding as follows:

“We assume without deciding that there was some illegality in the conduct of the officers prior to the shooting. We believe that the shooting was an independent intervening act which purged the taint of the prior illegality. At the moment the shot was fired, the officer had all the probable cause that was needed to search King.”

U.S. v. Sprinkle (4th Circuit—South Carolina)

Under similar circumstances, officers were fired on after attempting what the court found to be an unlawful detention, and the defendant sought to suppress the illegal gun the officers recovered after arrest. The court of appeals summarized its view of the law this way:

“If a suspect’s response to an illegal stop is itself a new, distinct crime, then the police constitutionally may arrest the suspect for that crime. Because the arrest is lawful, evidence seized incident to that lawful arrest is admissible.”

U.S. v. Garcia-Jordan (5th Circuit—Texas)

During an arguably illegal detention, the suspect falsely told Border Patrol agents he was a U.S. citizen, which is a federal offense. He moved to suppress his statements and to bar his prosecution because of illegal detention. Denying this motion, the court held that uttering a false claim of citizenship constituted a new crime, so the spoken words were not subject to suppression, and prosecution was not barred. The court said:

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