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Departments : Point of Law

Unlawful Reaction to Unlawful Action

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

March 05, 2013  |  by Devallis Rutledge - Also by this author

Photo courtesy of iStockPhoto.com.
Photo courtesy of iStockPhoto.com.

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. Said the court,

"A person who is stopped or detained illegally is not immunized from prosecution for crimes committed during his detention. Appellant's false statement of citizenship was a new and distinct crime. His prosecution for this new crime is not barred by the exclusionary rule."

U.S. v. Sledge (8th Circuit—Nebraska)

The court found that Sledge had been subjected to an illegal detention and search; however, when he resisted the search and ran from the officers, he committed a new crime that justified arrest and search, resulting in the seizure of narcotics. His suppression motion was denied under the principles applied in similar cases, as the court explained:

"Sledge forfeited any Fourth Amendment protection by resisting and running away, thus creating probable cause for arrest and incidental search. Even assuming the initial detention and pat-down search of Sledge were invalid, Sledge's actions provided independent grounds for his arrest and the cocaine found in the search incident to that arrest is admissible."

U.S. v. Mitchell (9th Circuit—Hawaii)

During an arguably illegal de facto arrest by Secret Service agents at the Honolulu airport, Leroy Mitchell made repeated threats to kill the president, declaring that he was going to drown the president in the ocean. Charged with unlawful threats, he tried to suppress his statements as the fruits of unlawful arrest, thereby barring any prosecution. The court made the following observations:

"A person does not have a license to kill a police officer merely because the officer arrested him illegally. When Mitchell made his threat at the Honolulu airport, he committed a felony. His statements threatening the life of the president were not suppressible as the fruit of an illegal arrest. The mere fact that he may have been arrested illegally does not serve to bar prosecution of that offense."

U.S. v. Bailey (11th Circuit—Georgia)

The suspect's resistance and flight from an attempted unlawful detention by DEA agents provided grounds for arrest and a search that yielded large quantities of heroin and cocaine. Suppression was again denied, based on the same principles adopted by other circuits. The court said this:

"The police may legally arrest a defendant for a new, distinct crime, even if the new crime is in response to police misconduct. If the police have lawfully arrested a suspect, then they may properly conduct incident to that custodial arrest a full search of the person."

Clark v. U.S. (D.C. Circuit)

Clark made illegal threats against the federal officer who was taking him into custody, though without clear-cut probable cause. Consistent with the prevailing view, the D.C. Circuit Court of Appeals refused to suppress his threatening statements as the fruits of unlawful arrest, saying this:

"Since appellant's response to the officer's unlawful action created probable cause to arrest, there is no constitutional basis to suppress the evidence."

Summary

If a review of one of your cases by a supervisor or prosecutor concludes that you initially attempted or committed an unjustifiable detention, arrest, entry, or search, that does not necessarily mean the suspect cannot be prosecuted for offenses he or she committed in reaction. Case authorities such as those briefed above may help establish that evidence is admissible and the suspect is prosecutable for new crimes, notwithstanding any initial missteps. "We are, after all, always engaged in a search for the truth in a criminal case." (Oregon v. Hass)

As always, it's a good idea to check with local prosecutors or legal advisors to verify the rule followed by courts in your local jurisdiction.

Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as special counsel to the Los Angeles County district attorney. He is the author of 12 books, including "Investigative Constitutional Law."

Tags: Point of Law, U.S. Supreme Court Cases, Federal Appellate Courts, Search and Seizure


Comments (12)

Displaying 1 - 12 of 12

jobe @ 3/9/2013 3:28 AM

If I am oppressed and detained for unlawful reasons, then I should have the lawful right to fight/flee my oppressor for my freedom.

jobe @ 3/9/2013 3:28 AM

If I am oppressed and detained for unlawful reasons, then I should have the lawful right to fight/flee my oppressor for my freedom.

Josh @ 3/10/2013 5:03 PM

@jobe- you are right, you do have the right to run from being detained for unlawful reasons. But.... if you pull out a gun and shoot someone or dump that bag of dope, while you run for your freedom..... Then you will be like the guys above.

Steve Rothstein @ 3/10/2013 7:14 PM

@jobe,

You may have the right to flee but you do not have the right to fight. For example, Texas (where I am) law specifically states that the use of force to resist an arrest or search is not justified even if the arrest or search is illegal, unless the officer uses excessive force to begin with. In other words, you do not have to cooperate with an illegal search but you can not fight to resist it. And as Josh said, be careful of what you do as you flee.

Joel @ 3/11/2013 8:50 AM

You have no right to fight or flee. You must reasonably comply with the orders of a law enforcement officer. You may move to suppress evidence and sign a complaint against him/her later, but you must comply. However, I do believe that one state just enacted a law to the contrary that had police in an uproar.

lynn @ 3/12/2013 6:50 AM

since when can a search warrant be issued for books i thought in the us you were free to read anything you want except child porn
and for computers without saying what they are looking for on the computers

DaveSAM5525G @ 3/12/2013 11:23 PM

That why staying up on constitutional and current rulings both at state and federal level is important because case law changes constantly. This is a valuable section in Police and Mr. Rutledge does all the research for you clear and real-life examples like above...I have many of his books as well the latest is a gem-"Investigative Constitutional Law." and prefaced with "As always, it's a good idea to check with local prosecutors or legal advisors to verify the rule followed by courts in your local jurisdiction."

And most importantly save cases and lessen the aspirin usage...for the headaches that come with the Oh...You know the four vital areas and Save-four CCCC’s (Cases-Civil action-Criminal action-Career).
In simple terms here from the above two wrongs don't make a right and may lose standing if illegal!
Well Done!

DaveSAM25G @ 3/12/2013 11:27 PM

Corrected Typos -That's why staying up on constitutional, current rulings, both at state and federal level is so important, because case law changes constantly. This is a valuable section in Police and Mr. Rutledge does all the research for you clear and real-life examples like above...I have many of his books as well the latest is a gem-"Investigative Constitutional Law." and prefaced with "As always, it's a good idea to check with local prosecutors or legal advisors to verify the rule followed by courts in your local jurisdiction."

And most importantly save cases and lessen the aspirin usage...for the headaches that come with the Oh...You know the four vital areas and Save-four CCCC’s (Cases-Civil action-Criminal action-Career).
In simple terms here from the above two wrongs don't make a right and may lose standing if illegal!
Well Done!

Jim A @ 3/13/2013 1:49 AM

If you are detained or oppressed for "unlawful reasons", you have a recourse in the Courts and you will likely win. If you fight, you have the right to lose. And you will, physically AND in court - and you will also lose your freedom. Idiot.

jobe @ 3/13/2013 1:42 PM

@Jim A - Reread the article. According to it, US vs Bailey allows police misconduct so long as another crime is committed. A victim of gross misconduct (ie getting assaulted) has the god given right to fight back enough to get away. No piece of tin on anyone's chest should trump an otherwise innocent person's right to self preservation.

Sounds to me like you're the idiot for believing that standing around and taking a beating is a noble idea.

Steve B @ 3/18/2013 3:24 PM

@Jobe - Nope, the police are not allowed to commit the misconduct if there is another crime committed. What the rulings said was that if another crime was committed during the unlawful stop/seizure, that does not invalidate the NEW crime. They still may be held accountable for their misconduct in the original stop/seizure. In addition, the stop/seizure may be found to be unconstitutional, but what the courts use is whether or not the officer at time knowingly did something wrong.

Ima Leprechaun @ 5/31/2013 5:37 AM

Courts seem to like two things, the spirit of a law and the letter of a law. Courts like officers that are thinking spirit of the law and can reasonably articulate what they did and why in their report. Reports are where you can convince any legal authority of your intentions at the time of the arrest. Most Officers couldn't write a decent report if their life depended on it and sometimes it does. They just put the least amount of basic information on their report which is what causes most caselaw against officers. I know cops hate "paper" but it is essential to your case and be as detailed as possible. A well written report can make a huge difference in most higher courts. And don't use cop lingo in a report use plain english that alone can make a report easier for others to read.

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