While standing on a hill we watch as little Michael plays in his sandbox. The sandbox is under a nice fruit tree that offers shade from the hot sun. A neighbor has noticed that Michael eats fruit from the tree while playing, which makes him ill. This happens time and time again. The neighbor decides to help. He brings over a ladder and gathers all the fruit available. The neighbor, though, doesn’t account for Michael’s young age. When hungry, Michael looks for fruit. Seeing none he now gnaws on the bark of the tree, which makes him just as ill as the fruit did. Michael’s mom takes him to the doctor once more. When they return the neighbor speaks with her stating how he tried to help by plucking the fruit from the tree. The boy’s mom replies that the problem is not necessarily the fruit but the tree itself. The neighbor realizes he should have cut down the entire tree. By attacking the tree itself Michael would no longer have been in danger.
Illegally obtained evidence is often used against an accused. One of many ways this occurs is by the use of evidence discovered when an item already seized is further investigated. Let’s say an accused is arrested and brought to the police station. Once there officers seize only the suspect’s shirt. Remaining clothing items are seized later when a warrant may properly be obtained based upon probable cause. The seized shirt is submitted for testing for the presence of gunshot residue. A few molecules of the three elements comprising GSR, barium, Lead, and antimony, are found present on a sleeve.
At trial Defense Counsel challenges the admission of the alleged GSR evidence. The motion is denied and the alleged evidence is allowed into court. The counselor is merely plucking the fruit when challenging the GSR. The relationship is causal – there would be no fruit without the tree. There should also have been a motion filed to suppress the “tree,” which is the shirt, as there was no warrant. Gather the fruit and the tree still stands. Chop down the tree and you are rid of both fruit and tree; else the shirt would remain in evidence, even if the GSR found upon it had been suppressed.
In order to more fully protect the rights of an accused in any criminal proceeding, each piece of alleged evidence should be challenged. Simply because an investigative search is done on an item, causing discovery of other alleged evidence, our attention should not be distracted. Each piece should be challenged. Look to the tree as well. How was it seized? Was there a warrant? Does the government claim an exception to the Fourth Amendment Warrant Requirement for seizing without a warrant?
In this example seizure was without a warrant or probable cause. The government, undoubtedly, will claim one of a vast array of exceptions to the warrant requirement, such as plain view, inevitable discovery, independent source, or good faith. Regardless, evidence obtained illegally may not be introduced at trial to prove guilt otherwise reversal is due. Chapman v California, 386 U.S. 18, 23-24 (1967). This is part of the judicially created Exclusionary Rule which applies to state courts for Fourth Amendment violations through Mapp v Ohio, 367 U.S. 643, 654-55 (1961), and to the federal government through Weeks v U.S., 232 W.S. 383, 398 (1914). The rule also applies to evidence obtained in violation of the Fifth Amendment, Bram v U.S., 168 U.S. 532, 548 (1897(, Blackburn v Alabama, 361 U.S. 199, 205 (1960), and the Sixth Amendment as well. U.S. v Wade, 388 U.S. 218, 237-39; Massiah v U.S., 377 U.S. 201, 206-07 (1964).
By gathering the fruit and taking an axe to the tree, the evidence is more properly challenged. Stay tuned for a discussion on the plain View Exception.
Sal Salerno
Toledo, Ohio