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 Incriminating statements obtained during detention after an illegal arrest may be suppressed on Fourth Amendment grounds as “fruits of the poisonous tree”, unless there is a showing that same are “sufficiently attenuated” so as not to constitute an exploitation of that initial illegality. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) [analogizing interrogation of suspect in illegal custody to the taking of his fingerprints in Davis v. Mississippi, 394 U.S. 721 (1969)].

“Detention for custodial interrogation — regardless of its label — intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest”. Dunaway v. New York,  442 U.S. 200, 216 (1979).

Lanier v. South Carolina, 474 U.S. 25, 106 S.Ct. 297, 88 L.Ed.2d 23 (1985)[though a confession may be voluntary for Fifth Amendment purposes because Miranda warnings were proper, the confession being the product of a illegal arrest was tainted]; De La Rosa v. Texas, 743 F.2d 299, 303 (5th Cir. 1984) [even if two hour delay in bringing petitioner before magistrate was unreasonable, there was no constitutional error, and confession made during this time not suppressible]; J.D.B. v. North Carolina, 131 S.Ct. 2394 (2011)[Boys age was factor to consider in custody analysis when obtaining confession in principles office].


 The giving of Miranda warnings will not in itself attenuate the effects of an illegal arrest or render a confession given thereafter admissible, “and the burden of showing admissibility rests, of course, on the prosecution”. Brown v. Illinois, 422 U.S. 590, 600, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

See also Dunnaway v. New York, 422 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1969). Factors:

  1. “causal connection between the illegality and the confession;
  2. “temporal proximity of the arrest and the confession”;
  3. “presence of intervening circumstances”;
  4. “the purpose and flagrancy of the official misconduct” (e,g., whether one of the purposes of stopping the individual was interrogation).


 Several courts have held that where the identity of a witness and his relationship to the criminal enterprise is discovered solely as the result of an illegal search or arrest that such witness’ statements and testimony are rendered inadmissible at trial as constituting “fruits” of that “primary illegality.”

See Williams v. U.S., 382 F.2d 48 (5th Cir. 1967); Staples v. U.S., 320 F.2d 817 (5th Cir. 1963); U.S. v. Guana- Sanchez, 484 F.2d 590 (7th Cir. 1973); U.S. v. Tane, 329 F.2d 848 (2d Cir. 1964); Smith v. U.S., 344 F.2d 545 (D.C. Cir. 1965); Goodman v. U.S., 285 F. Supp. 245 (S.D. Cal. 1968); U.S. v. Marder, 474 F.2d 1192, 1195 (5th Cir. 1973).

“This circuit has followed the general rule that if the identity of a Government witness and his relationship to the defendant are revealed because of an illegal search and seizure, the testimony of such witness must be excluded.” U.S. v. Marder, 474 F.2d at 1195.

In determining the Federal Exclusionary Rule was not per se applicable to the result of an illegal search where “both the identity of [the witness] and her relationship” with the offense “was well known to those investigating the case,” the Supreme Court held that Courts should exercise “greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object” holding that Court’s should apply the following factors in determining whether to apply the “exclusionary rule” to testimonial fruits:

  • Whether the testimony was given as an “act of …free will”,
  • The time, place and manner of initial questioning as well as any other factors indicating whether the statements were the product of detached reflection, or whether it was “coerced or induced by official authority”,
  • Whether the evidence was induced as a result of other illegally obtained evidence,
  • The relationship of the purpose of the illegal search to the subject of the testimony, and
  • Whether “substantial periods of time elapsed between the time of the illegal search and the initial with the witnesses, on the one hand, and between the latter and the testimony at trial on the other” [looking toward the potential deterrent effect on the law enforcement officials]. S. v. Cecollini, 435 U.S. 268, 98 S.Ct. 81, 55 L.Ed.2d 268 (1978).
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