People v. Jones ( 1975 )

Bronson, P. J.

(concurring in part, dissenting in part). I would hold that Mrs. Horton’s testimony at trial as to her identification of defendant at a pretrial lineup should have been suppressed as the "fruit” of the pretext arrest of Watkins. I vote to reverse the conviction of Watkins. Since I agree with the majority on the other issues, I vote to affirm defendant Jones’ conviction.

The majority has added one more opinion to those that talk in generalities about the "fruit of the poisonous tree” doctrine. Although the usual "exploitation of the illegality” and "dissipation of the taint” language is employed, the result is clearly reached because the majority views this doctrine as "providing technical loopholes for the benefit of the guilty”. I think that well-defined standards must be employed in reviewing a claim that certain evidence is the "fruit” of some illegal police activity.

The "fruit of the poisonous tree” doctrine is but one facet of the exclusionary rule. It was developed as a response to the realization that if police officers may use the knowledge gained from unlawfully obtained evidence to obtain the same or other important evidence legally, an inducement to commit such unlawful practices continues to exist.¹ Yet deterrence is not the only important factor. As presented in Pitler, "The Fruit of the Poisonous Tree” Revisted and Shepardized, 56 Cal L Rev 579, 586-588 (1968), a balancing of several relevant considerations is necessary in determining the scope of this doctrine:

"The complete exclusion — in all situations and for all purposes — of second and subsequent generation 'fruits’ of illegally obtained evidence seems logical and warranted unless there are competing considerations to restrict the radiations of the exclusionary rule. The obvious competing consideration, in criminal as well as civil cases, is the policy of admitting relevant and trustworthy evidence in order to maximize the search for truth. In criminal prosecutions the exclusionary rule conflicts with another interest of society — convicting the guilty. Hence, departures 'from the primary evidentiary criteria of relevancy and trustworthiness must be justified by some strong social policy.’ Even Judge Skelly Wright, a vigorous supporter of a strong exclusionary rule, recognizes that 'though harsh penalties [for illegal police activities] are appropriate ... we cannot ignore the public safety in our attempt to correct police wrongdoing.’ The policies of admitting relevant and reliable evidence and convicting the guilty create a shield to repel the exclusionary rule’s radiations.

"In most situations where evidence is excluded in order to deter unlawful police conduct, the defendant is not thereby granted immunity from prosecution. As long as the illegally obtained evidence is not used, the defendant may be prosecuted based on independently secured evidence. If it is necessary and socially desirable to deter official illegality then why not provide the severest sanction possible — immunity from prosecution —for victims of illicit police practices? Such immunity, however, sometimes permits an otherwise guilty man to go free. The answer to the problem cannot be given in terms of pure logic, but it is nevertheless logical. For although society seeks to deter illicit police practices, it does not wish to create an even greater evil. Exclusion of reliable evidence may be an evil but absolute immunity from prosecution is too high a price to pay to deter illegal police conduct.” (Footnotes omitted.)

The origins of the "fruit of the poisonous tree” doctrine are found in the early case of Silvert-horne Lumber Co v United States, 251 US 385; 40 S Ct 182; 64 L Ed 319 (1920). There, federal officers unlawfully seized certain documents belonging to the Silverthornes. A district court ordered the return of these documents, but the officers made photocopies of the originals before they were returned. On the basis of the photocopies, the prosecutor sought to subpoena the originals for use at trial. The Supreme Court rejected the use of such derivative evidence.

Justice Holmes, writing for the Silverthorne Court, emphasized the deterrence factor in formulating a rule dealing with derivative evidence:

"The proposition could not be presented more nakedly. It is that although of course its seizure was an outrage which the Government now regrets, it may study the papers before it returns them, copy them, and then may use the knowledge that it has gained to call upon the owners in a more regular form to produce them; that the protection of the Constitution covers the physical possession but not any advantages that the Government can gain over the object of its pursuit by doing the forbidden act. Weeks v. United States [citation omitted], to be sure, had established that laying the papers directly before the grand jury was unwarranted, but it is taken to mean only that two steps are required instead of one. In our opinion such is not the law. It reduces the Fourth Amendment to a form of words. [Citation omitted.] The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.” 251 US at 391-392.

Yet Holmes then formulated the “independent source” limitation in recognition of competing societal interests:

"Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.” 251 US at 392.

That “independent source” limitation has been followed in subsequent cases, and is the primary method by which the "taint” of illegal police activity is removed from facts discovered through that activity. See, for example, Nardone v United States, 308 US 338; 60 S Ct 266; 84 L Ed 307 (1939); United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).

One further limitation on the "fruit of the poisonous tree” doctrine has been formulated by the courts. Justice Frankfurter recognized in Nardone v United States, supra, that the deterrence value of excluding evidence resulting from illegal police activity may be small even though that evidence was not derived from an "indepéndent source”. Consequently, a second limitation on the doctrine was established:

"Here, as in the Silverthorne case, the facts improperly obtained do not 'become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it’ simply because it is used derivatively. [Citation omitted.]

"In practice this generalized statement may conceal concrete complexities. Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government’s proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint.” 308 US at 341.

The Nardone limitation was reformulated many years later in Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963). Therein, the following standard was articulated by the Court:

"We need not hold that all evidence is 'fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” 371 US at 487-488.

The language used by the Supreme Court in Nar-done and Wong Sun to define this second limitation was quite general, but it at least clearly set forth the philosophy behind that limitation. The purpose of the exclusionary rule is to deter future illegal police activity, and it was felt that the exclusion of evidence which was so remotely connected with that illegality would have no such effect.

The Michigan courts have taken this general limitation and formulated a rule to apply in specific situations. This Court, in People v Roderick Walker, 27 Mich App 609; 183 NW2d 871 (1970), adopted the "reasonably foreseeable” test. Judge (now Justice) Levin, writing for the Court, stated:

"Various approaches have been taken by the courts in deciding whether in particular cases the people have taken advantage of or exploited the primary illegality. One test, suggested by some commentators and applied by some courts, and which makes sense to us, is whether it was reasonably foreseeable by the police when they acted that by engaging in the illegal behavior they might obtain evidence of the kind they obtained. Physical evidence is the reasonably foreseeable product of a search; responsive statements are the reasonably foreseeable product of interrogation.

"If one starts with the premises that all evidence derived illegally will not necessarily be suppressed and that the purpose of the exclusionary rule is to discourage unlawful police practices, then it clearly is important to consider as a factor whether suppression of the derivative evidence in the case at hand is likely to deter repetition of the illegal behavior. In our opinion, a police officer, aware of the illegality and, nevertheless, willing to engage in the illegal practice, will not be deterred by the suppression of evidence that he could not have anticipated obtaining when he indulged in the prohibited practice.” 27 Mich App at 617. (Footnotes omitted.)

That test was subsequently applied in People v Weaver, 35 Mich App 504; 192 NW2d 572 (1971), People v Henry Robinson, 37 Mich App 115; 194 NW2d 537 (1971), aff'd, 388 Mich 630; 202 NW2d 288 (1972) (majority approving Judge Levin's concurring opinion setting forth the test), and People v Carter, 43 Mich App 735; 204 NW2d 703 (1972).

From the foregoing analysis, it is clear that we must determine two things here in order to review defendant Watkins’ claim that the lineup was the "fruit” of the illegal arrest. First, we must determine if the lineup identification was derived from an "independent source”. Secondly, we must determine whether it was not "reasonably foreseeable” by the police when they illegally arrested the defendant that a lineup would be held after defendant was taken into custody. If we answer either inquiry in the affirmative, the evidence need not be excluded as the "fruit of the poisonous tree”.

There is little doubt that the lineup identification by Mrs. Horton several days after Watkins was illegally arrested was derived from the illegal arrest and not an "independent source”. At that time, the only link between Watkins and the killing at the store was the illegally seized gun. Mrs. Horton had seen Watkins at a bowling alley prior to this time, but the police had no knowledge of such. This is not the situation where a suspect is illegally arrested and put in a lineup because they had planned to do so in any case, based upon independent evidence. The lineup here was held solely because of evidence illegally seized from defendant.

It is true that the police very likely "would have” placed defendant Watkins in a lineup soon after Ronnie Agar implicated him in the killing. That fact is unimportant here. Some courts have extended the "independent source” rule to be an "inevitable discovery” rule. Evidence derived from illegal police conduct is then admissible if it "would have” been discovered even absent that illegal activity, Wayne v United States, 115 US App DC 234; 318 F2d 205 (1963), cert den, 375 US 860; 84 S Ct 125; 11 L Ed 2d 86 (1963), People v Weaver, supra (Judge Levin's opinion with Judge [now Justice] Fitzgerald concurring in result only.² I would reject that rule as a proper one. It has no basis in United States Supreme Court cases, and is contrary to the deterrence function of the exclusionary rule. As stated in United States v Paroutian, 299 F2d 486, 489 (CA 2, 1962):

"If information which could have emerged from an unlawful search in fact stems from an independent source, the evidence is admissible. [Citations omitted.] On the other hand, a showing that the government had sufficient independent information available so that in the normal course of events it might have discovered the questioned evidence without an illegal search cannot excuse the illegality or cure tainted matter. Such a rule would relax the protection of the right of privacy in the very cases in which, by the government’s own admission, there is no reason for an unlawful search. The better the government’s case against an individual, the freer it would be to invade his privacy. We cannot accept such a result. The test must be one of actualities, not possibilities.”

Even if we could say that the police here "would have” held a lineup upon Ronnie Agar’s information, that factor has no place in this analysis.³

Going on to the second part of the test, I would also hold that it was "reasonably foreseeable” by the police that defendant would be placed in a lineup. The reasoning in People v Roderick Walker, supra, is particularly persuasive. In that case, the Court held that it was not foreseeable that the police would inadvertently see blood of the type of a murder victim on defendant’s shoes. However, in discussing the type of evidence which would be foreseeably obtained as the result of the illegal conduct, the Court stated:

"If Walker had been required to remove any clothing, an entirely different question would be presented. It would be difficult to distinguish the discovery of evidence following removal of clothing from the acquisition of evidence through interrogation, fingerprinting or as a result of a lineup identiñcation, in which kinds of cases evidence has been excluded where it was derived from an illegal detention or other prohibited action. But in all those cases not only was it reasonably foreseeable that the illegal activity might result in the acquisition of evidence, through the means of interrogation, fingerprinting or lineup identiñcation, but it was also necessary for the police to take affirmative action to exploit the primary illegality; to question, to fingerprint, to place the accused person in a lineup or to require the removal of clothing.” 27 Mich App at 618-619. (Footnotes omitted, emphasis added.)

Here, the police took the gun seized, ran ballistics tests on it, and compared the gun with bullets found at the scene of the killing. It was entirely foreseeable that defendant would be placed in a lineup to be viewed by witnesses to that killing.

The majority concludes that the arresting officers had no knowledge of Watkins’ involvement in the grocery store killing, making a later lineup held in regard to the killing unforeseeable. In doing so, the majority misconstrues the Walker test. The gaining of evidence is unforeseeable only when it is inadvertently uncovered. When the police take "affirmative action” by following standard police investigatory procedure, every police officer must be deemed to foresee that incriminating evidence could result. The foreseeability test does not save the evidence here.

The trial judge improperly refused to exclude the testimony of Mrs. Horton that she identified defendant Watkins at the lineup held shortly after his illegal arrest. She was the only eyewitness who could identify Watkins. Therefore, I cannot say that this error was harmless beyond a reasonable doubt under the test in People v Roberson, 55 Mich App 413; 222 NW2d 761 (1974).

1 Note, Fruit of the Poisonous Tree—A Plea for Relevant Criteria, 115 U of Pa L Rev 1136, 1138 (1967).

2 See also, the cases cited in Note, The Inevitable Discovery Exception to the Constitutional Exclusionary Rules, 74 Colum L Rev 88 (1974).

3 We should also note that the "inevitable discovery” rule simply has no application to lineup identifications. While a piece of evidence, such as the gun used in the crime, remains unchanged over time, every identification is different. Thus, while the police might have held an identification almost one and one-half years later (when the Jones lineup was held pursuant to the information given by Agar), that is not the same identification procured by the illegal arrest of defendant. We cannot say that the police would have "inevitably discovered” the same evidence they received after the illegal arrest of Watkins.