1 M.J. 323 | United States Court of Military Appeals | 1976
OPINION OF THE COURT
Appellant was convicted by a general court-martial of two larcenies
At a pretrial Article 39(a) session, the appellant’s defense counsel moved to suppress the tangible evidence seized during a search alleged to have been unlawful. The trial counsel responded that he had no intention of offering the fruits of that search into evidence, apparently having satisfied himself as to the illegality of the search. At this point, defense counsel moved to suppress the testimony of Specialist Four David Zelenak, a key prosecution witness scheduled to testify under a grant of immunity regarding one of the larcenies. Upon assurance of the trial counsel that neither the physical products of the search nor any testimony concerning what was found during the search would be offered into evidence, the trial judge declared the search’s legality a “moot question” and denied the defense motion. Subsequently, Specialist Zelenak testified in detail regarding the second alleged theft.
It is manifestly apparent that both the trial counsel and the military judge misapprehended the object of the suppression motion. The stated defense position was that Zelenak’s testimony was itself a product of the illegal search,
The rationale of what today commonly is known as the doctrine of “fruit of the poisoned tree”
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.
The proper inquiry to ascertain taint — that is, whether evidence illegally obtained was “used at all” — is:
“whether, granting establishment of the primary illegality, the evidence to which objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguished to be purged by the primary taint.”
Although the burden of persuasion is upon the Government when an accused enters an objection to evidence founded upon the Fourth Amendment,
[E]ach case must be examined on an ad hoc basis and, which is equally important, “must be ruled on its own facts rather than any sweeping general concept of ‘live testimony’ as such.” Here, the failure of the military judge to require the Government to present the facts surrounding the search, however, precluded a development that could have allowed an informed resolution of the defense objection, as well as a determination of any possible taint that might have resulted if the search were found to be illegal.
The Government in its brief and its oral argument before this Court acknowledges that this is the plight in which we find ourselves because of the action of the trial judge.
The decision of the US Army Court of Military Review is reversed. The finding as to specification 2 of Charge II is set aside. The record is returned to the Judge Advocate General of the Army for resubmission to the Court of Military Review which may, in its discretion, set aside the sentence and authorize a rehearing both as to specification 2 and the sentence, or dismiss that specification and reassess the sentence accordingly.
. Specifications 1 and 2 of Charge II. Charges I and III and their specifications were dismissed by the military judge.
. The testimony of this witness — and, hence, both the trial motion and the error before us on appeal — affects only one of the two alleged larcenies, specification 2 of Charge II.
. Because the trial judge precluded litigation of the issue, it is not entirely clear upon what basis the defense counsel was relying. A given witness’ testimony may be suppressed as the product of an unlawful search on either of two distinct theories: (1) the witness’ identification was discovered as the result of the search, United States v. Armstrong, 22 U.S.C.M.A. 438, 47 C.M.R. 479 (1973), or (2) the witness’ willingness to testify was a result thereof, United States v. Nazarian, 23 U.S.C.M.A. 358, 49 C.M.R. 817 (1975). While appellate counsel for the Government suggest that the record of trial reveals that Zelenak’s identification as a witness was obtained from a source independent of the search, the second possibility above-noted is wholly unaddressed by the Government, despite it being the principal thrust of appellant’s case both in his brief and in argument before this Court.
. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); United States v. Moore, 19 U.S.C.M.A. 586, 42 C.M.R. 188 (1970).
. 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920) (emphasis added).
. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), quoting Maguire, Evidence of Guilt, 221 (1959). See paragraph 152, Manual for Courts-Martial, United States, 1969 (Rev.).
. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); United States v. Carson, 22 U.S.C.M.A. 203, 46 C.M.R. 203 (1973); paragraph 152, MCM.
. Alderman v. United States, supra, 394 U.S. at 183, 89 S.Ct. 961.
. Nardone v. United States, supra, 308 U.S. at 361, 60 S.Ct. 266.
. 23 U.S.C.M.A. at 360-61, 49 C.M.R. at 819-20 (footnote omitted).
. While we are unable to conclude why a trial judge would preclude the litigation of a suppression motion unless the prosecution renders an assurance that no product of the search will be tendered as evidence at the trial, possibly, this judge erroneously believed that live testimony is not a proper subject of such a motion. As a result of his ruling, however, the record is critically deficient in the development both of the search’s alleged illegality and of the question of taint.
. United States v. Ward, 23 U.S.C.M.A. 572, 50 C.M.R. 837, 1 M.J. 176 (1975).