Warrantless Entries into a Residence

The Attenuation Doctrine and Attenuation of the Taint

Fruit of the Poisonous Tree and Attenuation of the Taint

When the causal connection between unconstitutional police conduct and subsequently discovered evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained, then the resulting evidence might still be admissible.  The “attenuation of the taint doctrine” is an exception to the “fruit of the poisonous tree” rule.

After chasing a wanted suspect to the door of defendant’s apartment, and arresting him as he tried to escape via a back window, officers entered defendant’s apartment without a warrant and without consent for the stated purposes of checking the welfare of anyone inside (i.e., the “emergency aid exception”) and/or as a “protective sweep” for other suspects.  While inside, the officers contacted defendant (who appeared to have been sleeping), held him at gunpoint, handcuffed him, and took him outside.   Once outside, it was discovered that defendant was subject to a probationary Fourth waiver, and subject to warrantless searches.  Officers then reentered his apartment and conducted a full Fourth waiver search, finding methamphetamine “and other incriminating evidence.”  In a previous appeal and an unpublished decision, the Ninth Circuit rejected both excuses for entering defendant’s apartment, holding that the officers violated of the Fourth Amendment.  (See United States v. Garcia (9th Cir. 2018) 749 F. App’x 516.)  Upon returning the case to the trial court for a determination of whether the “attenuation doctrine” applied—i.e., whether the discovery of the suspicionless search condition was an intervening circumstance that broke the causal chain between the initial unlawful entry and the discovery of the evidence supporting defendant’s conviction—the trial court held that the attenuation doctrine does apply.  Defendant appealed. 

The Ninth Circuit Court of Appeal again reversed, finding that the evidence recovered from defendant’s apartment during the Fourth waiver search should have been suppressed.  It had already been held in this case (in the prior appeal) that the officers illegally entered defendant’s apartment and illegally arrested him; all before discovering that he was subject to a Fourth waiver search.  As a general rule, all products of such an illegal entry into defendant’s apartment and his illegal arrest are subject to suppression as “fruit of the poisonous tree.”  (Wong Sun v. United States (1963) 371 U.S. 471.)  It was undisputed in this case that but for the initial unconstitutional entry, the officers would not have known that defendant even existed, let alone that he was subject to the suspicionless search condition that the officers relied upon to conduct the second search. Thus, the incriminating evidence would not have been discovered if not for the unconstitutional entry.  However, it is a rule that when the causal connection between some unconstitutional police conduct and subsequently discovered evidence is remote or has been interrupted by some intervening circumstance, so that “the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained” (See Hudson v. Michigan (2006) 547 U.S. 586, 593.), then the resulting evidence might still be admissible.  The potential admissibility depends upon an evaluation of the surrounding circumstances.  Referred to as the “attenuation doctrine,” this rule provides an exception to the usual rule of exclusion or suppression of the evidence.  It applies when “the connection between the illegality and the challenged evidence has become so attenuated as to dissipate the taint caused by the illegality.”  The United States Supreme Court has set out three factors to consider when determining whether the “attenuation doctrine” applies to a given case.  (Utah v. Strieff (June 20, 2016) 579 U.S. __, __ [136 S.Ct. 2056].)  Per Strieff, the circumstances to be considered are:

• The temporal proximity (i.e., the amount of time) between the Fourth Amendment violation and the procurement of the challenged evidence;
• The presence of intervening circumstances; and
• The purpose and the flagrancy of the official misconduct.

Factor 1:  The Court found that “(t)he temporal proximity factor weigh(ed) in favor of suppression because only a few minutes passed between the officers’ unconstitutional entry into (defendant’s) home and those very same officers’ reentry into his home to conduct the investigatory search.”  The Government did not argue otherwise.   Factor 2:  The presence of an intervening circumstance (i.e., the discovery of defendant’s Fourth waiver) also weighed in favor of suppression.  The Court reasoned that “a suspicionless search condition differs from an arrest warrant (as occurred in Strieff) in a significant respect,” finding the former to be an optional “exercise of discretionary authority,” while the latter is acting on a mandatory court order; i.e., an arrest warrant.  This difference makes the discovery of an arrest warrant a stronger intervening factor than the discovery of a Fourth waiver.  As such, the discovery of defendant’s Fourth waiver was held not to be sufficient to break the causal chain between the officers’ constitutional violations and the ultimate discovery of meth in his apartment.  Factor 3:  “The purpose and the flagrancy of the official misconduct” factor was also held to favor suppression in that it was the warrantless entry into a residence and handcuffing defendant—all done at gunpoint—before removing him from his own apartment, even if the officers acted in good faith, that was at issue.  Because private residences are accorded the highest level of protection under the U.S. Constitution (i.e., the “first among equals” for purposes of the Fourth Amendment. [Florida v. Jardines ( 2013) 569 U.S. 1, 6.]), when combined with the manner in which the officers made their entry (e.g., illegally, and with guns drawn) and defendant’s immediate handcuffing, was all held to be more egregious than other less intrusive constitutional violations.  Based upon all of the above, the attenuation doctrine did not apply.  The evidence discovered in defendant’s apartment, therefore, should have been suppressed.

There’s really nothing too surprising in this case.  I noted, however, that the Court did question the officers’ honestly (not to mention their honesty and integrity), surmising that the Fourth waiver search was perhaps the result of them seeing something in defendant’s apartment during the “protective sweep” that piqued their interest, thus motivating them to conjure up a fake excuse to do a full search (ignoring the fact that defendant’s Fourth waiver was not shown to be “fake”).  The Court had absolutely no evidence supporting such an accusation, but that little inconvenient problem didn’t prevent them from making it anyway.  And then with nothing in the record to support such an accusation, the Court faulted the Government for failing to prove that the officers weren’t so motivated.  Go figure.  Such a negative attitude, with the Court exhibiting their unsupported distrust of the officers, only suggests to me that the officers in this case could do no right no matter what the true facts were.  But the Justice’s unsubstantiated paranoid suspicions aside, it is worth mentioning that the belief held by many law enforcement officers that “protective sweeps” are presumed to be legal without any attempt to articulate some factual justification for doing so is not supported by the case law.  The rule is that for a protective sweep to be lawful, you must have a “reasonable belief” that there is another person on the premises who poses a danger to those at the scene.  (Maryland v. Buie (1990) 494 U.S. 325; see also People v. Block (1971) 6 Cal.3rd 239.) The only possible exception might be that upon making an arrest in a residence, officers may do a quick check of those areas immediately adjacent to the location of the arrest, such as closets and other spaces immediately adjoining the place of arrest from which an attack could be launched, for the sole purpose of eliminating the possibility that someone may be hiding there.  (Maryland v. Buie, supra, at p. 334.)  So what could the officers have done here that would have led to a more positive result   They could have taken it a little slower and knocked on defendant’s door instead of just barging in.  When he responded (which he no doubt would have), they could have asked a few simple questions concerning why their fleeing suspect would have chosen defendant’s apartment in an attempt to escape from the officers.  In the process, they could have sought defendant’s identification.  And while he would not have been obligated to identify himself under these circumstances, it he had, the Fourth waiver would have been lawfully discovered.  End of issue.