*1 1975] v Jones
PEOPLE JONES v WATKINS PEOPLE Opinion of the Court ' Evidence—Exclusionary Illegal 1. Criminal Law — Rule — Police Practices —Fruit of the Poisonous Tree. poisonous The fruit of the tree doctrine does not render inadmis- simply sible all evidence because the evidence would not have light illegal police; come to but for the actions of the question procured by is whether the evidence has been exploitation illegality by sufficiently of the or instead means distinguishable purged primary taint. Evidence—Exclusionary Illegal 2. Criminal Law — Rule — Police Foreseeability. Practices —Reasonable Exploitation primary illegality police activity, of the sufficient require police, the exclusion of evidence obtained occurs reasonably where it they foreseeable when by engaging illegal acted they might in the behavior obtain evidence of the kind obtained. 3. Criminal Law —Evidence—Fruit the Poisonous Tree —Out- of-Court Identification. The fruit inapplicable tree doctrine is to exclude defendant, although witness’s out-of-court identification of a there illegal police causal connection between an search of identification, defendant’s car and the witness’s where the engaged officers who behavior had no knowledge of the defendant’s connection with the crime charged possibly and could not have foreseen the causal se- quence leading to the witness’s identification. [1, [2, [4] [6] [7] [8] 9-12] 3, 40 Am Jur 75 Am 40 Am Jur Am Jur 29 Am 29 Am Jur Jur 2d, 2d, 2d, 2d, Jur References Trial Homicide 72.§ Trial 184. Homicide 2d, 2d, Evidence §§ § Evidence §§ for Points 498, 506, 534, 907. §§ §§ 408 et 531. in Headnotes seq., 535. 425-427. 66 Mich Trial—Striking Testimony Request 4. Criminal Law — — Strike. testimony prior duty judge to strike where A have a trial did not *2 request court to strike the to the testi- no the defense made mony. Suppress to —Con- 5. Law —Trial—Evidence—Motion Criminal Objection. temporaneous evidence, the fruit of the Objections under to derivative doctrine, contemporaneously awith motion tree must be made illegal procured police suppress primary from evidence to activity. Jury Timely Objection. Appeal — 6. and Error —Instructions grounds appeal may predicated on on that Error timely objec- given jury where no were erroneous instructions injustice. is no manifest tion was made and there Jury. Felony Murder —Instructions 7. Homicide — felony underly- jury of the elements to instruct the Failure felony charge ing felony-murder error where the is not a undisputed misidentification. defense Escape Felony Murder — From Scene. 8. Homicide — attempting escape from the scene A committed while murder felony immediately felony murder if it is connected is a of felony. underlying with by Bronson, Part, P. in Part J. Dissent Concurrence Illegal Evidence—Exclusionary Rule — Police 9. Criminal Law — Dissipated Independent Source — Taint. Practices — police activity subject by illegal is not discovered Evidence exclusionary may be admitted where the evidence was rule independent gained source or where the causal connec- from an illegal activity and the is so attenu- between the tion dissipate the as to taint. ated Lineup—Identification Testimony 10. Law — —Exclusion Criminal Illegal Independent Evidence — Search — Source —Rea- Foreseeability. sonable prior lineup testimony of a identiñcation to exclude Refusal error where the identiñcation derived from defendant search, independent illegal for where there was no source identiñcation, by reasonably where was foreseeable placed police would be in a as a defendant Ulegal result of their search. People v Jones Opinion op the Court Illegal 11. Criminal Practices — Law —Evidence—Police Activi- Foreseeability. ties — gaining only of evidence is unforeseeable when it is inadver- tently uncovered; police every officer must be deemed to foresee incriminating evidence could result when the take following police investigatory affirmative action standard procedure. Illegal 12. Criminal Law —Evidence—Police Practices — Activi- Exclusionary Discovery. ties — Rule —Inevitable illegal police Evidence derived from conduct is not cured of the illegality grounds taint very on the likely the evidence would have been discovered without activity. Appeal from Detroit, Recorder’s Court of Robert Colombo, J. J. 10, Submitted 1975, June at Detroit. (Docket 21960.) Nos. Decided December 1975. Leave to appeal applied for. *3 Jones, Jr.,
Delvin and Arno Stanley Watkins were convicted of felony murder. ap- Defendants peal. Affirmed.
Frank Kelley, J. General, Robert A. Attorney Derengoski, Cahalan, William L. General, Solicitor Patricia Boyle, Principal J. Prosecuting Attorney, Research, Attorney, Training and Appeals, and Walsh, P. Raymond Prosecuting Assistant Attor- ney, people. for the Ziemba,
Carl for defendants. J., Before: P. Bronson, and V. J. Brennan and D. E. Jr., JJ. Holbrook,
V. J. J. Defendants, Brennan, Jones, Delvin Jr. Watkins, and Arno Stanley were charged with first-degree murder contrary 750.316; to MCLA 28.548, MSA under the felony-murder section of They statute. were accused of attempting rob Moore’s Grocery Store in Detroit on February App the Court accomplice, a third and 7, 1972, help with owner, Moore, Odell the store causing the death of crime. Both perpetrating in the course of charged guilty of of- defendants were found fense, mandatory to a life and sentenced were right. appeal by They prison. sentence attempted robbery, three At the time of Moore, the store: Odell working at were persons Doretha Horton. victim; Shepherd; David Moore, Linda daughter, addition, In the victim’s the window of the from the incident observed of an part As immediate living quarters. upstairs Shepherd Doretha investigation, David police to the station observe down Horton were called 10, 1972. Neither defendant lineup February on could not the witnesses lineup, in the being any persons identify Later, robbery. attempted involved a series Shepherd was shown David March unable to make identi- but was photographs, depicted either photographs of these fication. None defendant. procedures, identification time after these
Some at a defendant Watkins recognized Horton Mrs. fright- as she was away She hurried bowling alley. trial, At Mrs. ened, police. not call the but she did know the man’s that she did not explained Horton lived, she decided that he so name or where good police. to inform the would do no until No- Jones or Watkins no contact with had date, 14, 1972. Watkins’ car On that vember for defective two Detroit officers stopped by *4 companion, and his After Watkins lights. brake were ordered McCrary, as Kenneth later identified car, That search the car was searched. out of the seat, front hidden under pistols two produced carry- arrested for McCrary and were and Watkins weapons. ing concealed Jones op Court police
The ran tests on the two weap- ballistics found ons in the car and determined that one was pistol an automatic of the same caliber as used in killing attempted robbery and Moore’s Gro- Store. were still cery Consequently, while custody charge, on weapons the concealed Mc- Crary and were in a placed Watkins to be viewed by Shepherd David and Doretha Horton. Shepherd David to identify anyone, was unable Mrs. picked but Horton out defendant Watkins. was lineup. Jones not this Defendant was to this Jones linked crime time, January until of 1974. At a Ronnie Agar stopped police was for by driving without operator’s questioned license. When he was police attempted robbery killing and store, at the grocery implicated he Jones and Watkins. Agar police told the he had been parked couple from of blocks Moore’s Grocery 7, Store February when three men came running up immediately recognized the car. He Jones, whom he had known many for years through school, Watkins, and whom he knew only sight. One the three men just said that "we blew someone away” Agar the "store”. stated there but one "store” in the area— Grocery Moore’s Store. Agar drove the three men house, to a friend’s never informed the episode this until picked up for the traffic violation. Jones, attempted to locate defendant
and finally did so in 1974. May, He was taken into custody, a lineup was held on June 1974. David Shepherd Horton, viewing Doretha lineup separately, both identified Jones. Watkins not in this lineup. trial,
At the details of the crime estab- were *5 App 223 Opinion the Court grocery the store in A entered young lished. man 7, 1972, February asked hours of early evening the there, and left when if sold liquor Odell Moore Mrs. it was not. Horton Mr. Moore replied at as that indi- trial identified Watkins defendant picked that she had out vidual. She also testified 17, lineup. David at the November Watkins person the Shepherd identify who was unable into first came the store. later, returned
A Watkins few minutes men. These young other accompanied by store two cooler, picked the beer three individuals went beer, front the counter. up brought some and ap- Watkins accompanying persons Since the two 18, for Mrs. Horton asked peared to be under pulled guns all point, At that three identification. Mrs. was told to holdup. Horton announced counter, the lie and she down on the floor behind did so. two the apparent provocation,
Without any proceeded Moore and robbers turned toward Odell hit or shots at him. Two bullets to fire six seven Linda Mr. third robber fired a shot at Moore. The Moore, opened the daughter, as she owner’s overlooking hearing store upon window Moore, Shepherd, initial shots. Linda David trial Jones at Mrs. Horton all identified defendant Horton Shepherd third and Mrs. as that robber. picked Jones at also testified that had lineup. June firing after Shepherd
Jones turned toward David Moore, gun, pulled pointed a shot at Linda his Shepherd, Mr. trigger Fortunately twice. for time. all gun point, did not fire either At David fled the scene. Mr. Moore and three robbers chase, Shepherd gave but were unable to catch Mr. taken to individuals. Moore three hospital, gunshot where he died from wounds. Jones op the Coukt Agar During story trial, related Ronnie January he had told the first McCrary and addition, In Kenneth the ar- 1974. resting the November officer as to testified *6 McCrary Watkins, and defendant 1972 arrest of subsequent the as to search of the automobile riding. testimony to which Prior the were participated the other officer who of Detroit suppress arrest, that moved to defense counsel pistol from evidence the found search on pursuant grounds that it had been seized to an illegal counsel moved arrest. Defense also to have linking pistol casings to all ballistics tests that suppressed. at the of the crime found scene An evidentiary hearing presence was held outside the jury, the of at which the second officer testified as subsequent the to arrest and search. judge McCrary
The trial ruled that and Watkins pursuant merely were searched pretext to what Consequently, judge suppressed arrest. pistol any testimony linking from evidence and pistol that crime. Defense counsel made no prior testimony motions to strike the McCrary of Kenneth arresting pertaining first and the officer judge to the arrest search. The trial did sponte prior testimony. sua strike that The attor- ney for move Watkins did to strike the identifica- grounds testimony tion of Mrs. Horton on it illegal was Watkins. The trial "fruit” of the arrest of defendant judge motion, denied that con- cluding placed that Watkins would have been in lineup pursuant possession to other even if he had never been arrested on charge. the traffic only
Defendant Jones called one defense witness. Agar Ronnie had testified that he was with .Sam spoke Johnson, he Jr. when to the defendants on App 66 op the Court called Johnson killing. Jones night that he stand, testified was in Johnson date, 1972. February Defendant on that prison to establish to the stand his called Watkins was in the rob- participation denied defense. Watkins at working Chrysler he was stating that bery, time of at the at- Sterling Stamping Plant rested Both defendants their tempted robbery. cases, verdict of guilty returned a jury and the charged. appeal
Defendant contends Watkins suppress refused judge improperly trial grounds Horton on Mrs. lineup identification his arrest. the "fruit” of tree doctrine seeks to The fruit of the depriving discourage police practices by unlawful flowing illegal- from the people advantages Walker, People v Roderick 27 Mich ity. *7 (1970). Supreme United States
ple App 609, v Roderick 27 added.) (Emphasis NW2d 871 illegal police pro- In the instant case search search, duced firearms. At the time of the knowledge officers had no that defendant Watkins any way was in connected with murder of decedent some months earlier. A routine ballistics check on the firearm showed that have could weapon. prompted been the murder This *8 lineup to call witnesses to attend a if determine they identify could Watkins felon. This in turn resulted the out-of-court identification. We arresting police hold that possibly officers could sequence have foreseen the causal in- App 66 Mich Court "fruit of the volved, thus that and point We should out inapplicable. tree” doctrine is an identification of a this where is not a case illegal occurrence. prior suspect is tainted any suggestion There is no had observed defend- improper. The witness way had later recog- crime and ant at the scene of the bowling alley. The search nized him at a ability recog- of her in no the source way in the courtroom. The nize defendant Watkins rather, the exclusion question, is whether these under circum- out-of-court identification public policy deterring stances will serve the cannot illegal police Clearly, conduct. cannot fore- circumstances which deterred Tucker, 19 App v People see. This Court (1969), 320, 328; ap- with quoted NW2d in the case of proval from the dissent Peacock, 763; 287 NYS2d Div 2d 167-168 as follows: exclusionary "It is our view that to extend rule to complainant testimony of such would tend to under- primary design protect the inno- mine the doctrine’s relegate it to the less commendable function of cent loopholes providing technical for the benefit of the guilty. discourage To subscribe to this would be to thorough expeditious investigations, frustrate lest the authorities find themselves the victims of their own efficiency.” reasoning think the same applicable We judge case at bar. The trial did not err in admit- ting into evidence of the witness’s out- testimony identification. of-court judge contend trial
Both defendants by failing sponte committed reversible error to sua and a testimony McCrary strike the Kenneth *9 People v Jones 233 1975] Opinion of the Court officer of concerning McCrary arrest testimony That had come defendant Watkins. into objection to the prior evidence without motion to no time suppress, requested and defense counsel at testimony. trial court that to strike We hold no the trial was under to judge duty strike prior testimony this without a defense request to do so.
Objections to derivative evidence must be made with suppress the motion to contemporaneously People Willis, v evidence, primary 46 Mich People Briscoe, v App 208 204 NW2d The Willis App 153; 51 Mich 214 877 NW2d applied Court rule very to facts to similar police stopped ones we have here. The Willis for speeding, and arrested him when he could not produce registration for a car. The car was then searched, pistols and two large quantity and a stolen furs were found. Those items sup- were at pressed pretrial hearing because the arrest illegal, was ruled the police but officer testified as to subsequent the arrest and a photographic iden- tification at trial. Willis objected officer’s for the testimony first time on appeal, the Willis Court concluded: argument, adaption "This the 'fruit of the . poisonous tree doctrine’ was not raised at or before trial.
[*] [*] [*] theory, "Whatever merits defendant’s facts necessary support application its present are not record, prosecution upon nor has the been called respond. why any We see no reason theory such could presented not have been contemporaneously with the suppress evidence, motion the other required Childers, v App 20 Mich 639 NW2d [174 565] Matthews, (1969); People App Mich NW2d [178 (1970). Consequently, we see no reason to delve into App 66 Mich Court unsupported theory.” the intricacies of defendant’s at 439. facts, that rule Under follow here. similar we quite likely It should noted that *10 to strike this to move testi- defense counsel failed trial mony strategy. of a deliberate The part linking gun the to the directly ballistics tests allowed killing store were never into evi- grocery may counsel Consequently, dence. defense well felt that course would be to let have the best the not testimony jury stand that the would so become suspicious pursuant that the items found to the significance. special arrest had raised the remaining errors defendants to the instructions. Neither defense jury relate to the instructions after objected counsel given.1 injustice, error were Absent manifest may predicated appeal grounds on on the that erroneous instructions were made where no jury below, People v Wilb- objection was entered timely ourne, (1973), 376; 44 205 250 App NW2d Peace, People v 79; 210 App 48 Mich NW2d 116 v People Bradley, 54 Mich App (1974). showing NW2d We hold no However, injustice manifest has been made here. given since we further find that the instructions quite proper, were fact we shall discuss alleged individually. errors argue that it improper
Defendants
first
was
for
the trial
to fail
to instruct
on
judge
jury
following exchange:
The record below indicates the
well,
Very
"The Court:
the record will reflect that. To eliminate
asking
gentlemen
morning, anything
you
tomorrow
further on the
charge?
Court’s
Nothing
Foley:
people.
"Mr.
on behalf of the
Nothing.
Sapada:
"Mr.
extremely
Defendant
"Mr. Taft:
Watkins
satisfied with
charge.”
Jones
Court
felony, robbery,
underlying
elements
charge
felony-murder
was
We
based.
which
disagree.
trial,
At
as summarized
statement
establishing
testimony
above,
facts
of
attempted robbery
per-
undisputed.
All of the
was
defendants entered
testified
witnesses
tinent
holdup,
pulled guns,
announced
store,
solely
theory
of misidentifica-
one
defense
The
tion.
applies:
following
circumstances,
rule
In those
who
the case was over
controversy in
"The sole
request
charged. Absent
crime
committed
charge
charge,
we rule
was not
objection
or
jury in accord with the
charge the
error to
reversible
Bohm,
People v
49 Mich
theory of defense.”
defendant’s
244, 255;
212 NW2d
proper,2
given
perfectly
The instruction
judge
argue
im-
the trial
Defendants next
*11
properly
on the lesser included
to instruct
refused
present,
degree. At
in the first
offenses to murder
split
panels
as to
of this Court
there exists a
type
apply
proper
to this
rule to
situation.
the
One
included offenses
position that no lesser
line of cases takes
prop-
felony murder are ever
Livingston,
People
chargeable.
erly
57 Mich
v
See
(1975),
App 726;
704
and the cases
226
cited
NW2d
the trial
of cases holds that
The other line
therein.
offenses
lesser
must
instruct
included
court
on
2
342;
Reed,
People
867
v
393 Mich
NW2d
The recent case of
only
(1975),
change
where
Bohm rule. Reed
holds that
not
does
crime,
dispute
even
to an element of
is a factual
as
if
there
misidentification,
judge
rule
entirely
the trial
one of
cannot
defense
law that such element exists.
as a matter of
71;
Skowronski,
People v
61 Mich
find
232 NW2d
We also
J.),
(1975)
Kaufman,
inapplicable
that case
(per
The Court in
here.
felony
underlying
six
to be
instruct on the
one
that failure to
found
However,
constituting
Skowronski
reversible error.
in total
errors
there was
tempted
underlying felony,
dispute
at-
to whether
a real
robbery,
occurred.
had
App 223
66 Mich
op
the Court
upon request
the evidence warrants
when
such
Smith,
instructions.
55 Mich
People
App 184;
See
v
"no evidence” rule in the context of a felony-mur- charge: der Bufkin, [People App 585; "Bufkin 43 Mich (1972)] primarily
NW2d
relies
on
v Dupuis,
395;
371 Mich
Defendants killing the the the idea jury to convey did "in and further- robbery the "part” of must instructions, judge trial final of it. In his ance” first-degree murder and read information them then instructed He jury. statute follows: theory prosecution’s in this case that Mr.
"It is the perpetration attempt or killed in Odell Moore was meaning robbery perpetrate within to an armed Michigan Statutes. being killing human whether "The unlawful of a intentional, or accidental which occurs as unintentional attempt of or to commit the a result of the commission in the mind robbery and there was crime crime, to perpetrator murder of the first specific intent commit such is degree. specific intent to commit attempt such or commit robbery in commission proven beyond must be reasonable doubt. crime being any "If human killed one of several killing in people engaged at the time of such jointly perpetration attempt perpetrate the crime of of or killing of a robbery if the is done furtherance and design agreement such crime or common commit probable pursuit of that ordinary result of the design agreement, persons jointly en- all such so degree first whether gaged the (Emphasis guilty are of murder intentional, or killing is unintentional accidental.” added.) fully complied applicable with the That instruction Goree, App v 30 Mich People law. See Smith, 56 Mich 186 NW2d 560; 224 NW2d *13 App 66 Bronson, P. J. Partial Concurrence one additional issue Defendants raised which does not merit discussion.
Defendants Jones’ Watkins’ and convictions are affirmed. Jr., J.,
D. E. Holbrook, concurred. (concurring part, dissenting Bronson, P. J. in part). testimony I would hold that Mrs. Horton’s at trial as to her identification of defendant at a pretrial suppressed should have been as the pretext "fruit” of the arrest of Watkins. I vote to agree reverse the conviction of Watkins. Since I majority issues, with on the other I vote to affirm defendant Jones’ conviction. majority opinion has added one more generalities
those that talk in about the "fruit of poisonous Although tree” doctrine. the usual "exploitation illegality” "dissipation of the of language employed, the taint” clearly is the result is majority reached because views this "providing loopholes doctrine as technical for the guilty”. benefit I think that well-defined employed reviewing standards must be a claim that certain evidence is the "fruit” of some police activity.
The "fruit tree” doctrine is but exclusionary one facet It rule. was devel- oped response aas to the realization that if may knowledge gained officers use the from unlaw- fully obtained evidence to obtain the same or other important legally, an inducement to com- practices mit such unlawful continues to exist.1 only important Yet deterrence not the factor. As presented Pitler, "The Fruit of the Poisonous 1Note, Criteria, Fruit of the Poisonous Tree — A Plea for Relevant L 115 U of Pa Rev v Jones Bronson, P. J. Partial Concurrence Shepardized, 56 Cal L Rev Revisted Tree” balancing several relevant 586-588 determining necessary in considerations scope of this doctrine: situations and for all all complete "The exclusion —in *14 generation subsequent 'fruits’ second
purposes —of logical and war- illegally seems obtained evidence of ranted unless there competing considerations to are exclusionary rule. The the radiations of restrict the consideration, in criminal as well as competing obvious cases, admitting relevant of policy is the civil the to maximize search trustworthy evidence order prosecutions exclusionary the truth. In criminal for society interest of with another rule conflicts —convict- Hence, primary 'from the departures ing evidentiary guilty. the relevancy and criteria trustworthiness strong policy.’ Even social justified by some must be Judge exclusionary strong vigorous supporter of a Wright, a Skelly 'though penal- rule, harsh recognizes that appropriate ... are we ties activities] [for safety attempt to cor- ignore public our cannot admitting policies of rele- police wrongdoing.’ The rect convicting guilty evidence and repel vant and reliable exclusionary rule’s radia- to a shield create tions. excluded in where evidence is "In most situations conduct, the defendant unlawful order to deter not long prosecution. As granted immunity from thereby used, the is not illegally obtained evidence independently may prosecuted be based defendant desira- necessary socially it evidence. If secured provide the illegality why then deter official ble to prosecution from possible immunity severest sanction — immunity, police practices? Such of illicit —for victims to however, guilty man permits an otherwise sometimes given in problem be cannot go free. The answer logical. For pure logic, it is nevertheless but terms police practices, although society seeks to deter illicit greater evil. Exclusion to create an even not wish does immu- may an evil but absolute of reliable App 66 Bronson, P. J. Concurrence Partial nity prosecution high price pay from is too to deter omitted.) (Footnotes illegal police conduct.”
The origins of the "fruit of the tree” case of Silvert- early doctrine are found States, horne v United Lumber Co 385; US (1920). There, CtS 64 L federal Ed officers unlawfully certain documents belonging seized A district court Silverthornes. ordered the documents, return of these but officers made photocopies originals before were re- turned. photocopies, prose- On the basis sought subpoena originals cutor for use at trial. Supreme rejected Court use of such derivative evidence. Holmes,
Justice Silverthorne writing for Court, emphasized the deterrence factor in formu- lating dealing a rule with derivative evidence: proposition
"The presented could not be more na- *15 kedly. although It is of its that course seizure an outrage regrets, which the Government now may it study them, papers them, the it copy before returns may knowledge gained then upon use the it has that to call regular the a produce owners in more form to them; protection that the of the Constitution covers the physical possession any advantages but not that gain pursuit by Government can over the of object its doing the act. forbidden Weeks v. United States [cita- sure, omitted], tion papers to be had laying established that grand unwarranted, directly before the jury was it only steps but is taken to mean required that two are opinion instead of one. In our such is not It the law. reduces the Fourth Amendment a form of words. forbidding provision essence of [Citation omitted.] acquisition way evidence a certain is that merely acquired evidence so shall not be used before the Court but that shall not at be used all.” 251 US 391-392. at 241 v Jones Bronson, by P. J. Partial Concurrence “independent formulated Holmes then
Yet competing recognition of soci- limitation source” interests: etal that the facts thus mean this does not course "Of knowledge If inaccessible. become sacred obtained may independent they source an gained from of them gained others, knowledge by any but proved like
be by be used it in wrong cannot Government’s own 392. way proposed.” 251 US at “independent has limitation been source” That primary subsequent cases, is the followed in illegal police activ- the "taint” method which through ity facts discovered is removed from example, activity. See, Nardone United for 266; L 338; Ed States, 60 S Ct 308 US (1939); Wade, US S Ct United States v 1926; 18 L Ed 2d poi on the "fruit of the limitation further
One by the formulated has been sonous tree” doctrine recognized in Nardone courts. Justice Frankfurter supra, States, value the deterrence v United illegal excluding resulting from evidence though activity may even be small "indepéndent source”. from an was not derived Consequently, on the doctrine second limitation was established: case, Silverthorne
"Here, improp- facts If and inaccessible. obtained do not 'become sacred erly independent knowledge gained from of them others, may proved any but like source wrong knowledge gained by Government’s own simply it is used deriva- used it’ because cannot be tively. omitted.] [Citation *16 may generalized statement conceal practice this "In may complexities. Sophisticated argument
concrete
connection
information obtained
prove a causal
between
App
Bronson,
by
P. J.
Partial Concurrence
through
and the
wire-tapping
illicit
Government’s
however,
proof.
sense,
good
As a matter of
such connec-
may
dissipate
tion
have become so
attenuated
taint.”
primary taint.’
limitation and formulated a rule to
Court,
cific situations. This
v Roderick
Walker,
27 Mich
There is little doubt after days Watkins several Mrs. Horton tion from the derived arrested illegally At source”. "independent and not arrest *18 Watkins and the time, the link between only gun. seized illegally killing at the store was bowling a alley at Watkins Mrs. Horton had seen time, knowledge had no police to this but prior suspect a situation where not the This is of such. lineup in a because put illegally arrested is case, upon in based any do so planned had lineup here was The held independent evidence. illegally seized from of evidence solely because defendant. very likely "would police
It is true that in a soon Watkins placed defendant have” killing. him in the implicated Agar Ronnie after courts have here. Some unimportant fact is That rule to be an "independent source” extended rule. Evidence derived from discovery” "inevitable if then admissible police conduct illegal even absent been discovered "would have” Wayne States, United v 115 US illegal activity, den, 375 US (1963), cert 234; 318 F2d 205 DC People v 125; 86 S 11 L Ed 2d 84 Ct supra Weaver, Judge (Judge with opinion Levin's in concurring result Fitzgerald [now Justice] It reject proper rule as a one. I would only.2 Court Supreme in United States no basis has function of cases, contrary to the deterrence in United States As rule. stated exclusionary 1962): Paroutian, (CA F2d Note, Excep also, Discovery Inevitable the cases cited The See Rules, Exclusionary L Rev 74 Colum Constitutional tion to the People v Jones by Bronson, P. Partial Concurrence J. "If emerged information which could have from an unlawful search fact from an independent stems source, the evidence is admissible. [Citations omitted.] hand, showing government On the other sufficient the the that the had independent information available so that in might normal course of events it have discovered questioned without an search can- illegality not excuse the or cure tainted matter. Such a rule would in admission, protection right relax the of privacy very which, government’s cases in own is no there reason for an unlawful search. government’s The better the freer it accept not against individual, case privacy.
would be to invade his We cannot actualities, such a result. The test must be one of possibilities.” say Even if we could here "would lineup upon Agar’s have” held Ronnie informa- place analysis.3 tion, that factor has no in this Going part test, second I would "reasonably also hold that it was foreseeable” placed the lineup. that defendant would in a reasoning v Roderick *19 supra, persuasive. particularly Walker, In that case, the Court held that it not foreseeable police inadvertently that the would see blood of type the aof murder victim on defendant’s shoes. discussing type However, in the of evidence which foreseeably would be obtained as the of result the illegal conduct, the Court stated: "If required any Walker had been clothing, to remove 3 We should also discovery” simply note that the "inevitable rule application lineup evidence, piece has no such as the to identifications. While a of gun crime, unchanged time, in used the remains over every Thus, police might identification is different. while the have (when an years held Jones identification almost one and one-half later the lineup pursuant Agar), given by was held to the information procured by illegal that is not the same identification defendant. We cannot discovered” the same evidence of the arrest say police "inevitably that the would have illegal received after of the arrest Watkins. App 66 Bkonson, J.P. Partial Concurrence presented. question be would It entirely different distinguish discovery the of to evi- would be difficult clothing acquisi- from the following of dence tion removal fingerprinting interrogation, through or of identiñcation, which kinds in lineup a result of a it where was been excluded derived cases evidence has prohibited action. But or other
from an
detention
reasonably
was it
only
foreseeable
in all those cases
acquisition
illegal activity might result
that
interrogation, finger-
evidence,
through
means
identiñcation,
printing
but it was also
lineup
neces-
or
exploit
police
affirmative action to
sary for the
to take
fingerprint,
question,
to
to
to
primary illegality;
lineup
require
in a
or
place
person
the accused
(Foot-
618-619.
App at
clothing.” 27 Mich
removal of
added.)
omitted, emphasis
*20
testimony
Mrs. Horton that
she identified
after
shortly
Watkins at the
held
defendant
who
only
She
eyewitness
his
arrest.
was the
v Jones
Partial
by Bronson,
Concurrence
P. J.
could identify Watkins. Therefore,
I cannot
say
this error was harmless beyond a reasonable
doubt under
the test
in People v Roberson, Mich App 413;