Episode 06: Fruit Of The Poisoned Tree =LINK=
The Attorney General concedes that "in view of the present condition of the record" the search was unlawful. [1] The rule is settled that where a confession is induced by illegally seized evidence, the confession is subject to exclusion as fruit of the poisonous tree. (See, e.g., Fahy v. Connecticut (1963) 375 U.S. 85, 90-91 [11 L. Ed. 2d 171, 175-176, 84 S. Ct. 229]; Wong Sun v. United States (1963) 371 U.S. 471, 485 [9 L. Ed. 2d 441, 453, 83 S. Ct. 407]; People v. Stoner, 65 Cal. 2d 595, 600 [55 Cal. Rptr. 897, 422 P.2d 585]; People v. Bilderbach, 62 Cal. 2d 757, 767 [44 Cal. Rptr. 313, 401 P.2d 921]; People v. Faris, 63 Cal. 2d 541, 546 [47 Cal. Rptr. 370, 407 P.2d 282]; People v. Dixon, 46 Cal. 2d 456, 458 [296 P.2d 557]; People v. Govea, 235 Cal. App. 2d 285, 304 [45 Cal. Rptr. 253].)
Episode 06: Fruit of the Poisoned Tree
"[T]his is not the case envisioned by this Court where the exclusionary rule has no application because the Government learned of the evidence 'from an independent source' [citations]; nor is this a case in which the connection between the lawless conduct of the police and the discovery of the challenged evidence has 'become so attenuated as to dissipate the taint' [citations]. [3a] We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' "
After Bilderbach, supra, we held in People v. Faris, supra, 63 Cal. 2d 541, and People v. Stoner, supra, 65 Cal. 2d 595, that statements of the defendant made when confronted with or [70 Cal. 2d 547] told of illegally obtained evidence were inadmissible as the fruit of the poisonous tree. In Faris, the defendant returned to her apartment to find police officers conducting a search; they confronted her with the stolen property and secured the admissions which were held inadmissible as fruit of the poisonous tree. (People v. Faris, supra, 63 Cal. 2d 541,546.) In Stoner, the unlawful search and defendant's arrest occurred 72 hours before the confession which was held to be fruit of the poisonous tree. He had been held incommunicado and did not confess until after he was confronted with or told of the evidence unlawfully obtained. We held that under "these circumstances there was no break in the chain between the illegal search and seizure and defendant's confession. It was not 'sufficiently an act of free will to purge the primary taint.' " (People v. Stoner, supra, 65 Cal. 2d 595, 599-600.)
[3b] Where a defendant's confession is secured by exploiting the use of a codefendant's confession which was the product of an unlawful search and seizure, the defendant's confession, depending upon the circumstances, may also be fruit of the poisonous tree. The ultimate question is whether the evidence has been come at by exploitation of the illegality "or instead by means sufficiently distinguishable to be purged of the primary taint." (Wong Sun v. United States, supra, 371 U.S. 471, 485, 487-488 [9 L. Ed. 2d 441, 455-456, 83 S. Ct. 407].) We must still determine whether admission of the evidence will frustrate the policy considerations underlying the exclusionary rule, and whether the government secured the defendant's confession from an independent source, or by means which have become so attenuated as to dissipate the taint, or by exploitation of the primary illegality.
"The burden is, of course, on the accused in the first instance to prove to the trial court's satisfaction that wire-tapping was unlawfully employed. Once that is established ... the trial judge must give opportunity ... to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin." (Italics added.) fn. 5 (308 U.S. at p. 341 [84 L.Ed. at p. 311].)
Nardone, then, casts burdens on both the prosecution and the defense. The defendant must "prove that a substantial portion of the case against him was a fruit of the poisonous tree." Thus, the defendant must establish a relationship between the unlawful act and the objected-to evidence or confession. However, once he has done so the burden is then on the prosecution under Nardone to show that "its proof had an independent origin," (308 U.S. at p. 341 [84 L.Ed. at p. 311]), that the admission "is the product of an intervening independent act of the defendant's free will," (United States v. Burke, supra, 215 F. Supp. 508, 511; see, People v. Sesslin, supra, 68 Cal. 2d 418, 428) or that the admission was obtained from an "independent source" (Wong Sun v. United States, supra, 371 U.S. 471, 487 [9 L. Ed. 2d 441, 455, 83 S.Ct. 407]). fn. 6 [70 Cal. 2d 555]
In the style of Jacula Prudentum fn. 1 the majority in this case extend almost ad infinitum the "fruit of the poisonous tree" doctrine: the law enforcement officers unlawfully broke into the premises occupied by one Ciabattari; because they broke in unlawfully the arrest of Ciabattari was unlawful; because the arrest of Ciabattari was unlawful, the seizure of the stolen television set was unlawful; because the seizure of the set was unlawful, the arrest of Howard was unlawful; because the arrest of Howard was unlawful, the confession of Howard was unlawful; because Howard's confession was unlawful, the arrest of Johnson was unlawful; because the arrest of Johnson was unlawful, the confession of Johnson was unlawful. The majority reap a prolific harvest of fruit from a tainted tree.
The expression "fruit of the poisonous tree" first appeared in Justice Frankfurter's opinion in Nardone v. United States (1939) 308 U.S. 338, 341 [84 L. Ed. 307, 311, 60 S. Ct. 266]. In enunciating that doctrine he pointed out, "Sophisticated argument may prove a causal connection between information obtained through illicit [activity] and the Government's proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint."
Some years later the Supreme Court again made it abundantly clear in Wong Sun v. United States (1963) 371 U.S. 471, 488 [9 L. Ed. 2d 441, 455, 83 S. Ct. 407], that "not ... [70 Cal. 2d 560] all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' " In other words, while Wong Sun provided a confession is presumptively tainted if generated by illegal activity, the presumption may be overcome and in that sense the taint is defeasible.
It is significant that the majority here misread and further constrict Sesslin by limiting the required attenuation to an intervening act of defendant (ante, pp. 551, 554), whereas Sesslin (68 Cal.2d at p. 428) requires merely an independent act by defendant or a third party. By the simple expedient of eliminating the italicized clause, the majority are able to unreasonably expand the fruit of the poisonous tree doctrine, and to exclude from consideration as an intervening act the admonitions given by the police officers. fn. 3 [70 Cal. 2d 561]
First, the suspect Howard was given proper warnings at the stationhouse. He waived his constitutional rights and confessed. It is unreasonably tenuous to attempt to relate this voluntary confession back to the earlier invasion of the premises occupied by an entirely different individual. As the court said in Jacobs v. Warden, Maryland Penitentiary (4th Cir. 1966) 367 F.2d 321, 323, "The fruit-of-the-poisonous-tree doctrine need not be extended to its seedlings."
Paul asks Sue to sing him a lullaby and it is her singing that opens the artifact. When Sue touches the seed inside, it melts into her body and drives her to dig into the soil. She screams and we cut to the next morning. A massive tree with a beating heart has grown where Sue struggled and Sue is gone. There is, however, fruit that looks an awful lot like brains. Marcus eats some and seems to immediately understand that Sue is the tree. 041b061a72