The Fruit of the Poisonous Tree Doctrine – Does it Still Exist?
By Paul Chiniche, Esq.
You just had an initial consultation with a guy charged with possession of cocaine with intent to sell. Now what? How can you help him? He was caught with a brick of cocaine in his car and faces a long sentence. He has come to you for guidance. Local law enforcement stopped him and when they approached his car the cocaine was in “plain view.” No way out, right? Well, it depends. Consider the Fourth Amendment and the extension of the exclusionary rule known as the “fruit of the poisonous tree” doctrine initially adopted by the U.S. Supreme Court in the case of Silverthorne Lumber Co. v. United States, 365 U.S. 505 (1961). Here, the Court stated that allowing evidence gathered as an indirect result of an unconstitutional search and seizure reduces the Fourth Amendment to a form of words.
In your case scrutinize the factual scenario surrounding how law enforcement came to stop this defendant. Temporary, warrantless detentions of individuals constitute a seizure for Fourth Amendment purposes and must be justified by “reasonable suspicion that illegal activity has or is taking place; otherwise, evidence obtained through such a detention may be excluded. United States v. Rodriquez, 564 F.3d 735, 740-41 (5th Cir. 2009). In justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. Terry v. Ohio, 392 U.S. 1, 21 (1968). Reasonable suspicion “requires more than merely an unparticularized hunch, but considerably less than proof of wrongdoing by a preponderance of the evidence. United States v. Gonzales, 190 F.3d 668, 671 (5th Cir. 1999). Courts determine whether the stop was reasonable by conducting a fact-intensive, totality-of-the-circumstances inquiry. United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001).
Now, you have decided to represent this individual and in discovery you receive the reports from the investigating officers. You notice that on the day your client was stopped, the police were actively investigating an unrelated crime in the area. You determine officers had scant information about a suspect and no search warrant when they began to canvass the area and decided to perform a traffic stop of your client. At this point, you should begin to prepare a motion to dismiss the evidence seized as the “fruit of the poisonous tree.” Where the police acted without a warrant, the burden is on the government to prove that the search was valid. US v. Waldrop, 404 F.3d 365 (5th.Cir.2005).
In federal court the reasonableness of a stop is a question of law. Two seminal cases should be considered by a trial judge at the motion to suppress hearing; namely, United States v. Jacquez 421 F.3d 338 (5th Cir. 2006) and United States v. Bolden, 508 F.3d 204 (5th.Cir.2007). 
In Jaquez, the officer responded to a “shots fired” incident. See 421 F.3d at 340. Prior to the stop, the officer knew only (1) the general proximity of the incident, (2) that a “red” vehicle had been involved in the reported incident, and (3) that the incident occurred approximately fifteen minutes before the stop. Id. at 341. The officer testified that these reasons, along with the fact that the incident took place late at night and in an area known for its high-crime rate, caused him to stop the defendant as he drove a red vehicle in that general vicinity. Id. at 340. The Fifth Circuit concluded that the scant facts know to the officer when she stopped Jaquez were, as a matter of law, insufficient to support “reasonable suspicion.” Id. at 341. In so holding, the Fifth Circuit explained that, although the officer knew that a red vehicle was involved, she did not know anything about the driver or the occupants. Id. The Court also noted that the sparse and broadly generic information provided by the dispatcher, without more, was insufficient to support a determination of reasonable suspicion, as required under Terry. Id. [The Bolden Court, discussed below, stated that in Jaquez, more than fifteen minutes had passed and in that amount of time, a car can take a shooter many miles away from the scene of violence, so merely driving a red car in the relative vicinity of the shooting was not enough. Bolden, 508 F.3d at 206.]
In Bolden, two officers were leaving an apartment when they heard nearby gunshots. See 508 F.3d at 205. Seconds later, passengers in a vehicle coming from the area where the shots had been fired told the officers that people were shooting guns around the corner. Id. The officers split up to find the shooters. Id. One of the officers drove around the corner toward the gunshots and encountered a silver Jeep, with four passengers, moving quickly in his direction. The officer stopped the Jeep. Less than one minute had transpired between the shots and that stop. The officers found cocaine and firearms in plain view. Under these circumstances, the Fifth Circuit concluded that “when an officer sees a solitary vehicle containing more than one person leaving the precise spot where that officer has good reason to believe that multiple persons were shooting less than a minute before, it is more than a “hunch” that those in the vehicle may be involved in the shooting. Id. at 206. The Bolden Court affirmed the trial court, finding that as a matter of law, the officer’s belief need only be and was “reasonable.”
Your case may fall anywhere between Jacques and Bolden. But, analyze the facts specific to your case. Possibly, law enforcement knew nothing about the crime they were initially dispatched to investigate. Possibly, they did not know how many people were involved, or whether the suspect(s) fled on foot or in a vehicle, let alone the color of the vehicle. More importantly, in your cross-examination of the officer during the suppression hearing, have the officer reconstruct the chronology of the arrest - beginning at the time they received a call from dispatch until the time they arrested your client. The amount of time that passed before your client was stopped can make all the difference during the judge’s totality-of-the-circumstances inquiry. And while law enforcement oftentimes gets the benefit of doubt in these cases, we as defense lawyers have a sworn duty to support the Constitution. Attempt to suppress evidence unlawfully seized as the “fruit of the poisonous tree.”
Paul Chiniche established the Chiniche Law Firm, PLLC, in Oxford, Mississippi where his legal practice is primarily devoted to the representation of individuals charged with crimes in both state and federal court, personal injury litigation, and civil rights litigation. He has been a member of the National Association of Criminal Defense Lawyers, the American Association of Justice, the Southern Trial Lawyers Association, and the Mississippi Association of Justice.