An illegal detention may poison an otherwise lawful search under the “fruit of the poisonous tree"...

• Illegal Detentions and Attenuation of the Taint
• The Fruit of the Poisonous Tree Doctrine
• Implicit Bias 

An illegal detention may poison an otherwise lawful search under the “fruit of the poisonous tree doctrine.”  Intervening circumstances, however, may attenuate that taint, making the subsequent search lawful.  Whether or not the taint of an unlawful detention is attenuated depends upon the circumstances.  (Implicit biases may subconsciously affect an officer’s thinking on these issues.)

Officer Matthew Croucher of the San Jose Police Department responded to a report of a possible vehicle burglary in progress in a business parking lot early one evening in January, 2017.  Upon arrival, he was told by a security guard that she had seen two “suspicious individuals on bikes” shining flashlights into parked cars. Checking the parking lot, Officer Croucher was unable to find anything.  However, in an adjacent parking lot he found defendant Duvanh Anthony McWilliams reclining in the passenger seat of a car, and “just hanging out.” 

With the arrival of backup, Officer Croucher contacted defendant and told him to get out of his car.  The officer later testified that this was his usual practice, done for safety reasons.  Defendant complied.  Asked for identification, defendant retrieved it from his vehicle.  Upon conducting a records check, it was discovered that defendant was “on active and searchable parole.”  (I.e., a “Fourth waiver;” see  Read More