United States v. Robert J. Scios A/K/A Robert Schwartz

THAL, Circuit Judge.

Dissеnting opinion by MacKINNON, filed Judge. Circuit ROBB, Dissenting opinion filed Circuit Judge.

Dissenting opinion by WILKEY, filed Judge, TAMM, Circuit with whom Circuit Judge, joins.

LEVENTHAL, Judge: Circuit 28, 1974, On June defendant Robert J. Scios was indicted unlawful intercep tion of wire communications and related By May 20, 1975, offenses.1 order of district court suppressed of a witness, potential Massa, Jr., Thomas on the ground that. Massa’s was the product of illegal govem- search.2 order, opinion 1. Defendant was indicted under 18 In an U.S.C. issued Dec. 2511(l)(a) (unlawful interception § of wire district court held the search was communications); 2511(l)(c) suppressed U.S.C. “tangible § evidence” and “oral (d) (disclosure unlawfully and use such inter- statements” that derived from search. The communications); government cepted appeal 18 U.S.C. did not that order. On April 2512(l)(a) (interstate transportation government § of wire moved the dis- devices). interception trict communication court to on its “elaborate” earlier order. order, Aug. projects ous Scios had worked on in his and on appealed ment capacity private investigator. as a Defend- reversed the this court panel of was, according ant’s access to the credenza that the ground on the order court district testimony, presence to FBI blocked testimony by Massa’s attaching to “taint” of an FBI between defendant and the had been “atten- illegal search virtue of credenza. The trial court found that the introduction sufficiently permit uated” beyond credenza was the area of defend- trial.3 testimony at defendant Scios’s of the ant’s immediate control.4 the case en banc and have reheard We At point agents one of the went to challenged testimony concluded the credenza and removed a file folder la- illegal as tainted excluded must be beled “Your Pharmacy Service”—the name search. pharmacy upon telephone of the whose lines the electronic BACKGROUND devices had been found. The I. FACTUAL government contended that the label on telephone linemen Sept. On plain agents. this folder was in view the attached to devices upon electronic came The contrary; court found as a fact to the in pharmacy of a Wash- telephone lines rather, over, had “bent read C., Pharmacy known as Your ington, D. folders, through fingered them so began investigation, an The FBI Service. that their labels could be read.” Scios, eventually to the defendant which led investigator. A warrant was found private a licensed folder to contain various 15, 1974. papers, including charge slip his arrest was issued on Feb. a credit card for attorney concluded that with name on it a prosecuting Scios’s from motel in C., application Washington, was no basis for for a D. and an there itemized bill warrant, motel, indicating and no search warrant was from the same “Mr. Mas- registered sa” for sought. had the room. These 26, 1972, July items bore the date which agents proceeded FBI to Scios’sresidence likely temporal established a link to the City arrested him there. in New York period wiretapping. Using of the the mo- physically had been taken into After Scios telephone tel’s record of calls made from custody gun and a had been removed from room, the F.B.I. was to locate in able desk, his one of looked around City potential New York witness— nothing particular.” the room “for in His Massa, Thomas Jr. credenza, upon attention focused located commanding four feet in back of defendant’s A subpoena three or was issued Mas- top appear grand jury On of the credenza were about 60 sa to before a in the desk. folders, racks, initially file in wire labeled with vari- District of Columbia.6 Massa was 20, 1975, response, May adopt reasoning In the court on issued time of arrest. We of the government ap- panel point, now on this and its decision that the order which therefore, not, ruling peals, order of Dec. 10 did determine that Massa’s was inad- testimony. admissibility product of Massa’s an search. missible as the position that Defendant has taken the Scios, (D.C. Aug. 3. U. S. No. 75-1619 merely order of the district court was second 1976). e., that Massa’s tes- clarification first —i. timony was ruled inadmissible on Dec. Opinion (filed of District 4. Memorandum government’s present —and that therefore the 10, 1974), reproduced Appellant’s Dec. Br. 30-day by expiration appeal is barred 34, appeal, period taking 18 U.S.C. § for adversely to the defend- This issue was decided (filed Opinion of District Court 5. Memorandum panel opinion and order issued ant in the 10, 1974), reproduced Appellant’s Br. at Dec. Aug. panel 1976. The held this court on 34, 54. suppressed the “oral statements” were, “tangible like the some initial confusion between order of Dec. 6. There was Massa, Jr., already Massa, evidence,” that had been Thomas Sr. and Thomas evidence own, City whom resided New York admissible on its both of at the and that was obtained to which the FBI led. anything address had been have said at the Scios such tions mentioned the speak prosecutor of the wit- reluctant family the advice of his ness Washington, but on Massa. 5,1974, May prosécu- in the appeared, on

he April On long after the period prepara- was told that tor’s office. Massa appeal of the foregoing order had grant him immu- being made tions were government elapsed, moved the court to which prosecution matters nity from for a determination of whether Massa’s tes- testimony might grand jury relate. his timony admissible at trial.7 The jury, before the grand appearance his first government argued that the taint attaching granted, been Massa immunity before had testimony by Massa’s virtue the illegal asserting privilege his testify, refused to seizure of the folder had been attenuated against self-incrimination. events, by intervening contending particu- 8,1974, the District issued May Judge On larly that there was attenuation Massa’s testify Massa to directing an order “act ultimate of volition” in deciding tо —confer- ring appropriate immunity. Massa testify. May On the district court grand jury the again taken before the ruled that taint had not been sufficient- but again testify, refused to then reluctant- ly attenuated to permit introduction of Judge was ly acquiesced after Hart’s order testimony. Massa’s indictment of fol- read to him. The Scios

lowed. QUESTIONS III. PRESENTED The district 10, court’s December II. IN THE PROCEEDINGS 1974, order holding the seizure was illegal COURT DISTRICT appealed. was not appeal, On this from the 1974, October, defendant moved Scios 23, 1975, order, April suppressing Massa’s suppress to the district court as evidence testimony, government does not contest contents, its as all the file folder and as well the district court’s ruling that the seizure moved, in evidence derived therefrom. He was a violation of the fourth amendment.8 addition, all oral statements suppress argues It a claim of attenuation —that arrest, by any him at the time of made taint attributable illegal to the seizure of 10, evidence derived therefrom. On Dec. the defendant’s file folder has been suffi 1974, granted suppression the court these ciently dissipated to permit introduction of Its was based on alter- motions. order two Massa, the testimony Jr., of Thomas at tri ruled, first, grounds. It native that al. of the support affidavit warrant proba- arrest had failed to establish The exclusionary Scios’s rule was estab commit-, States, ble cause to believe Scios had lished in Weeks v. United 232 U.S. crime; 383, consequently, challenged 341, ted a (1914). 34 58 652 S.Ct. L.Ed. The evidence was as the suppressed product purpose safeguard of the rule is to fourth assumed, illegal arrest. The court rights. then amendment United States v. Calan arguendo, lawful, dra, 338, that the arrest 347-48, 613, had been 414 94 U.S. S.Ct. 38 (1974). and went on to hold that of the seizure 561 The bars the L.Ed.2d rule intro folder was nevertheless illegal file at only since duction trial not of evidence seized amendment, was not seized in a search folder incident to of the violation fourth but under permitted arrest as Chimel v. Califor- also of evidence as an obtained indirect nia, 752, 2034, 395 89 U.S. S.Ct. the illegal result of fruit of seizure —the (1969), plain 685 nor was poisoned view. Nei- tree. Lumber Silverthorne Co. v. States, 385, 182, ther defendant’s motions to nor suppress 40 United S.Ct. government’s responses (1920); these mo- L.Ed. Wong Sun United government posi- position injected by Judge In this motion the took the 8. The MacKinnon’s admissibility opinion, tion that the of Massa’s there violation was no of the by amendment, had not been determined earlier court’s fourth is in view without mer- our disputed order —a view defendant. it. note 15 infra. See Sun, Wong 407, L.Ed.2d 416. The statement of co-de- 471, 83 States, S.Ct. 371 U.S. fendant, was, contrast, deemed admissi- this “tainted exception to An (1963). Wong had also been arrested for the ble.' Sun established has been doctrine fruit” statement, His probable ille- cause. without connection between case where immediately however, not after made discovery subsequent gal seizure arrest; rather, he released in his own at- “become so evidence has challengеd voluntarily sev- Nardone taint,” and returned recognizance dissipate the as to tenuated Id. statement. States, days later make the eral 308 U.S. United The (1939). related at 83 S.Ct. 407. It is 84 L.Ed. between the that “the connection ar- rule, available found plainly so here, intro- and the statement had ‘become at- rest government permits the taint.’ .” govern- dissipate as to which the tenuated of evidence duction Nardone 419, quoting Id. at independent means was led ment States, v. United search or seizure.9 illegal L.Ed. 307 circumstances, the attenuation In certain witness applied where Wong Sun doctrine has been It seems clear of an located the result has been who operate an act of free will to as a voluntarily de- or seizure has taint, it must occur circum dissipation Wong v. United Sun testify. See cided to of coercion. stances devoid States, developed in principle was further application principle underlying this States, Bowden v. Smith articulat- doctrine has not been attenuation (1963), 324 F.2d 879 decided U.S.App.D.C. adapta- clarity. probably It is an ed with Wong Sun. This court exclud- shortly after legal tion, adjustment, general the with of by during a statement made a defendant ed sees link of causation that the conception detention, unnecessarily long post-arrest is inde- intervening an cause when broken from him tangible evidence taken at and pendent.10 it testimony time. But the admitted us, we exam- Turning to the case before who had eyewitness of an a murder been claim the taint of the ine first the made by located as a result of a statement by was attenuated a volun- illegal seizure eyewitness initially provid- The defendant. next, testify; the claim and tary decision evidence. After con- incriminating ed no complexi- the by of of taint attenuation time, sidering period the matter for a intervening ty factors. thinking which he about the during “kept .,” at dead man Record he Wong v. Unit- Sun A. Voluntariness: In testify defendant.- against decided to States, 407, 9 ed 83 S.Ct. made, thus support Judge distinction (1963), excluded the L.Ed.2d Justice) (now Burger stressed the ele- Chief incriminating Toy, of defendant statements aspects volition other ment of human arrest, his while shortly illegal after made that contribute to its indetermina- behavior nar- by and surrounded federal handcuffed cy: agents. The it was unrea- cotics Court said witness is judge response object not an inanimate sonable his [A] narcotics, pistol police interrogation sufficiently an act which like contraband “was goods, purge primary “speak free will to taint” of or stolen themselves.” arrest, proffer living of a witness is illegal The not to U.S. States, person Lumber Where the who made the Silverthorne Co. v. United statement (1920). against sought used, to be 64 L.Ed. 319 is the one whom it is States, see, govern- g., Wong e. Sun There is no serious assertion v. United (1963), in the case that Massa would 9 L.Ed.2d-441 ment before us argued that, by volunteering potential witness can be been identified as a state- consideration, provided ment after careful he has the aid of the waived without leads objection illegal search or the file his seizure. contents of folder. proffer personality will, whose attributes of mechanically equated with percep- illegally tion, evidentiary objects memory inanimate and volition interact to deter- of a fact the name seized. The mine what give.” he will police is witness is disclosed to potential U.S.App.D.C. at 324 F.2d at 881. se, evidentiary significance, per of no B. Claim of attenuation of the taint by witness is an individual living since intervening factors: The government also attributes of personalty human whose argues there are numerous “intervening will, memory volition in- perception, illegal factors”11 between the seizure of the what he teract to determine file folder and Massa’s testimony making give.2 uniqueness will The of this human chain illegal from the seizure of the file This is illustrated here the circumstance folder to the testimony of Massa “so compli- initially eyewit that when located Holman [the cated, remote, and indirect”12 as to dissi- gave appel information adverse to ness] lants; only after reflection and the interaction pate the connection. personality of these faculties of human did Hol eventually jury man relate to the the events of claim, substance, is that there night killing. part These factors in was no direct link between the file folder allowing party account for the rule to cross- surprise examine his own witness on a claim of Massa, because the file document that ultimately impeach his own witness. showed Massa’s name in the record of the evidentiary distinguishes process motel paid by room defendant did not es relative from the of a witness character identity. tablish his That only appeared evidence. immutability of inanimate when the checked the motel’s tele U.S.App.D.C. at 3-4 & n. 324 F.2d at phone records. n. 2. 881-82 & begin We must concept key of “reflection” as the admissibility in and Bow- search. At the element of Smith arrest for the offense of and Anderson emphasized tapping Service, den was Smith the line of Your Pharmacy States, U.S.App.D.C. v. United unlawfully through riffled de F.2d 545 fendant’s file folders and removed his file for Your Pharmacy Service. The However, purposes of this we tracked the Massa lead found in that file. pursue question when or in need not They pursue did not a trail independent of voluntary testimony what circumstances (see illegal 9). the search note The location will be admissible. of Massa was product improb not the of an present plain In the it is that able, unforeseeable coincidence. It was giving testimony the Massa’s —before work, good police straightforward but a jury, presumably at the trial —is grand and exploration of the leads in the Pharmacy product a of coercion. purely simply exploration file. The fact took testify decision to is not a matter of Massa’s time, although some a material considera- will, choice, solely or free but mаde avoid tion, does not of itself demonstrate that the contempt. His decision to being jailed for exclusionary inapplicable. rule is “The road testify hardly in such circumstances can be . may long, straight.”13 be but it is Judge Burger what had in mind Smith ****** spoke when he of the “human and Bowden Ceccolini, Appendix Appellant 11. Brief and at 16. United States v. 435 U.S. (1978), 55 L.Ed.2d 268 discussed below, fully contrary. more is not to the Alston, F.Supp. United States v. indicated, alia, period Court there inter that the (D.D.C.1970) (restating holding of Nar- elapsed of time that has between the time of States, done v. United 308 U.S. illegal discovery search and the of a wit- (1939)). 84 L.Ed. 307 ness, trial, or his is one of several determining factors to be considered in wheth- Tane, (2d by United States v. 329 F.2d illegality er the taint occasioned 1964). Cir. See also United States v. Karatha- been attenuated. Id. 98 S.Ct. 1054. nos, was, (2d 1976). elapsed admittedly, 32-35 Here the time not in- opinion that had been Court We add to held that the testimo- ny of employee a reference to United Hennessey written for this case was admissible Ceccolini, at defendant’s trial. States (1978), which in our Justice Rehnqui'st, Court, for the found only congruent but affirm- view is not illegal the taint of the by reasoning and result. supports our atively officer had been sufficiently attenuated to permit introduction of the testimony. The op Ceccolini, (Biro), police a officer rejected Court the notion that the exclu- crossings, taking a break duty at school sionary subject rule per to a se excep- shop, flower when he noticed in defendant’s tion that rendered all live witness testimony out, money sticking envelope, with admissible, regardless of whether obtained register cash behind the counter. He consequence Instead, as a illegality.14 envelope, contents of the examined the particular features of a case must be policy slips, questioned shop found n examined to balance the benefits of the (Ms. Hennessey) who told him employee rule, exclusionary with its pur- deterrent defendant, envelope belonged to pose, against the costs. give that he had instructed her to it to later, four months the FBI someone. Some In his summarizing paragraph Justice presence her at her home in the interviewed Rehnquist states: family, government and said the of her Viewing light this case in the any appreciate regard- would information discussed, principles just we hold that the ing defendant’s activities that she had ac- of Appeals erred in holding that shop. in the told the FBI quired She degree of attenuation was not suffi- studying police college she was science in cient dissipate the connection between willing help, and would be and she then the illegality testimony. and the The evi- related the events that had occurred when dence indicates overwhelmingly that shop- officer was at the A month testimony given by the witness was an testified to the same later she effect before act of her own free will in no way coercеd grand jury, contradicting thus by or even induced authority official as a jury given defendant, grand result of Biro’s discovery of the policy perjury. who was indicted for slips. Nor were the slips themselves used significant. outweighed viously, But far if the victim of an arrest were released, other considerations pp.---of set forth in Ceccolini. See he could be rearrested and committed - U.S.App.D.C., pp. 962- by magistrate upon finding probable 963 of 590 F.2d infra. cause, and would not thereafter be immune Louisiana, Johnson any proceeding. lineup criminal A identi- (1972), by Judge cited may compelled corollary fication as a of a Wilkey, point. is not in Johnson was arrested magistrate, current detention which warrant, magis- without a and detained under a ground independent stands on trate’s commitment. While under detention he (valid invalid), arrest properly lineup. argued was identified in a He that the (allegedly be considered the fruit of the earlier lineup identification was a forbidden fruit of an invalid) present arrest. As to the there is that violated arrest his fourth amendment no historic rule like that which establishes the rights. (p. p. The Court held 92 S.Ct. magistrate’s resting commitment as on an inde- 1626): lineup, “At the time the of the detention pendent cause. compelling The court order appellant authority of the was under the of this necessarily from Massa is rooted in Consequently, lineup commitment. the discovery through illegal the of Massa an by ‘exploitation’ conducted not chal- the search. lenged ‘by sufficiently but arrest means distin- ” guishable purged primary to be taint.’ Accordingly, respond 14. we shall not premise underlying Johnson is the histor- Judge Wilkey’s supplying discourse in dissent illegal ic doctrine that the victim of an arrest us with a discussion of the virtues of such an ground subsequent cannot on that attack a exception. reports already The case are too processes justice. detention or other of criminal short, long, and our time too for our rumina- Illinois, See Ker v. recently squarely tions on an issue so and ad- Collins, (1886); L.Ed. 421 Frisbie dressed and resolved. (1952); 96 L.Ed. 541 E. C. Fisher, (1976) Laws of Arrest §§ Ob- tive Hennessey. very negligible Substantial and questioning likely in deterrent between the periods elapsed of time time effect. and the initial con- illegal search S,Ct. U.S. witness, hand, on the one tact with The case at bar in stands marked contrast and the testimony the latter and between to Ceccolini (1) critical factors: these In particu- While the at trial on the other. Ceccolini, Hennessey’s testimony “was an knowledge Hennessey which testi- lar act of her own in way free will coerced logically traced trial can be back fied at or even induced official authority.” In policy slips, both discovery to Biro’s contrast, initially Massa refused to consult Hennessey and her identity of rela- with authorities, agreed to confer respondent was well tionship with the and to testify response only pressure in investigating to those case. known prosecutor, including the thrеat of a addition, is, slightest not There contempt citation. Biro entered the suggest evidence to as a potential Massa’s existence wit- envelope with the shop picked up or ness was entirely unknown to the authori- tangible evidence bear- finding intent of ties before they searched Scios’s files. operation, much gambling illicit ing on an

less ing willing rent such as Biro. The cost tion could not have tion of the shop and searched testify against any suggestion effect on the behavior exclusionary rule in' this knowledgeable witness respondent. that he entered the of permanently slightest intent of find- of an Applica- officer deter- situa- to arrest evidence, cannot be rent effect.” (3) The search of Excluding ^[*] Scios for the FBI dismissed as ^[*] the fruit of that ^[*] having illegal Scios’s of “negligible ^[*] come to the scene wiretapping. files illegal # was to deter- ^[*] gain conclude, great sum, is too We silencing Hennessey of law taint of the system even-handed enforcement search and seizure of the such a specula- dissipated by to bear in order to secure folder15 was not the fact that dissenting opinions argue agent Swayze not credit 15. Two the sei- permissible finger zure of the file folder was under through he did not the files. In a memo- California, Chimel v. opinion rejecting applicability randum (1969), plain under the plain doctrine, judge view the trial ruled: view doctrine. conflicting testimony “The court heard con- Plain View Doctrine cerning resolving seizure the file folder. In plain Agent The folder was not in view. this conflict the court concludes that the dis- Swayze had testified that after he conducted a covery inadvertent; the file folder weapons, search for arrested, and after Scios had been rather, over, through read bent up “I started to read the various files folders, fingered so that their them labels (Swayze that were in stands.” these little wire added.) (Emphasis could be read.” 18.) previously Tr. It had been testified that Chimel Doctrine top” (referred these others as a or 70 files in these on “counter Chimel, per- In the Court limited the area of credenza). “There were about 60 missible warrantless search to the area of “im- or three wire stands two person mediate control” of the arrested. right were stacked one these files rule, formulating this the Court observed that it 18.) (Swayze Tr. behind the other.” He testi- certainly precludes room, the search of another through fied that he “did not thumb and did not “leaf the files” beyond the area of immediate control. (Swayze through them.” Tr. this, Judge From argue MacKinnon seems to 19.) acknowledged particular He that the file that Chimelblesses a warrantless search that is “sticking that it was not where about particular out” and was “some- fallacy made within the same room. The the stack of files with the middle of evident. “ten, front of this fifteen ... Judge urges that MacKinnon also the search 21.) (Swayze Tr. file.” legitimated by was file, the fact that Mr. Scios Pharmacy” When he saw the “Your he Breen, have had file agent accеss to the folder at pulled certain it out and said to “Isn’t this prior thing?” attempting times company (Swayze to the search. In to the Tr. involved in this access, 21.) purports judge demonstrate he The summarized the such to recon- trial testi- Swayze genuinely mony explored access, struct of Mr. Scios “thumbed facts that were not that through judge importantly, prior The trial trial. such the file folders.” did More if it inating evidence. One document obtained leads in the fold- the investigation of Massa, locate was used the FBI to track to from this file order required er was Massa, testify witness, under the to one decided down a material who Massa that We therefore a court order. inculpate able to the apparently is Scios constraint sup- court the district order of However, the he is charged. affirm crimes with which testimony. his pressing to granted sup- the court motion trial Scios’ testimony of said Massa on the press the ordered. So directly ground testimony his was at- MacKINNON, Judge, dissenting: Circuit contained to the information tributable found the file folder which the court to investigator who was Scios, private arresting agents obtained the been and “wiretapper FBI to be known as the of an unlawful seizure. The result Island, New in Staten bugger,” resided appeal by this seeks to Government reverse the owners He was hired York. suppression ground the order on the in the Dis- Pharmacy, located Inc.” “Your Massa the “taint” on the Columbia, the source to discover trict of sufficiently been to avoid suffering. was attenuated its drugstore the losses some rejection ground was arrested in New on the that it was the fruit later he time Some seizure, in the District of Wong issued of an see a warrant unlawful Sun v. York on tapping in con- States, wire alleged for Columbia U.S. “Pharmacy” investigation. the view, my

nection L.Ed.2d we possibility of the of the arrest the time At argument need the not reach attenuation was discussed obtaining a search warrant clearly because the of record in- and the Attor- agents the FBI between dicates that the so-called search and seizure York, they decided in New but ney which accompanied exercise of ar- of sufficient facts possessed they were rest was warrant at Scios’ home reasonable such warrant. the issuance of justify to Amendment, and conformed to Fourth and to the decisions of the in his eventually was arrested When Scios thereon, particularly its landmark decision which, at his home, in a small office California, Ill, 12-13, in Chimel v. (Tr. agents led he suggestion, and Pharmacy “Your 45-46),* a file entitled doctrine, “plain g., Coolidge view” e. New contained incrim- was which seized Service” immaterial, (Swayze 15.) agent any existed, files.” Tr. Then under Breen inis event Chimel, justifica- warrant holding as Mr. Scios the arrest and rationale of notified and rights; agents search. him of his searched tion for advised judge if agent Swayze, “In this even weapons; having trial found: for and estab- believed, the defendant weapons FBI version were in the there desk lished had been disarmed. at his desk and drawer, seated turned around saw the and files. room, in- in the three FBI There were agent explaining Breen was While arrest cluding immedi- who defendant’s one blocked Scios, Swayze agent mechanics Mr. “casual- findings . are incon- . . ate control trovertible, ly looked about room” and “started read inapplicabili- establish up the various files that in these little ty which Chimel autho- doctrine under (Swayze 18.) stands.” Tr. wire searches. certain rizes Agent Swayze’s blocking of the files was not possible defendant it was not That “momentary presence” a mere at the time of appears destroy the folder snatch (Judge phrase). seizure Robb’s It identified the Swayze’s undisputed testimony that he agent positions persons during relative the full blocking physically access. defendant’s arrest, episode rights, notification of Scios, what visitors know his who did not Mr. weapons subsequent well as wanted, his office “to discuss into invited them search and seizure. about” there talk was we were whatever * hearing 11.) suppression At there were (Swayze Mr. Scios entered three Tr. When desk”; office, separate transcripts, at his will hereafter he “sat down which (Tr. I); Swayze positioned designated “between the desk himself Scios as follows: Defendant Scios; top facing (Tr. II); Agent Swayze wall” counter Agent and the FBI Breen FBI “yes, physical- agent, I was (Tr. III). was behind blocking ly to those . Mr. Scios’ access in grab order to Hampshire, weapon or evidentiary L.Ed.2d 564 must, course, items governed by a gun like rule. A on a table or in a I. AUTHORIZED SEARCHES drawer in front of one who is arrested BY CHIMEL dangerous can be as to the arresting offi- argument presupposes The attenuation cer as one concealed clothing in the and seizure of the the initial search person arrested. There is ample justifi- Pharmacy” file was under “Your cation, therefore, for a search of the ar- Chimel, which decision established a recent person restee’s and the area “within his certain searches permissible scope of immediate construing control” — presupposition This to arrest. incident phrase to mean the area from within progeny its caused me to review Chimel and might gain which he possession of a suppression in the well as the as weapon or destructible evidence. hearing inquiry in the District Court. Such There is comparable justification, parties me that and the has convinced however, routinely searching any misreading Chimel and the trial court are room other than that in which an arrest doctrine, view” the facts of “plain —or, matter, occurs for that for searching the search and seizure of this case indicate through all the desk drawers or other question appli- the file conformed closed or concealed areas in that room down principles cable laid searches, itself. Such the absence of Court.1 well-recognized exceptions, mаy be made controlling language The of Chimel only authority under the aof search war- states: rant. The judicial “adherence made, an arrest is When is reasonable processes” mandated the Fourth arresting officer for the to search requires Amendment no less. person any arrested order to remove 762-63, 395 U.S. at at 2040 (empha- S.Ct. weapons might that the latter seek to use added, omitted). sis footnote arrest or in order to resist effect his Several observations should be made Otherwise, escape. safety officer’s First, foregoing language. from the while might endangered, well be and the arrest protect it does refer to searches to addition, itself frustrated. it is entire- officers, arresting protec- it is not limited to ly arresting reasonable for officer to security tive or searches. It likewise autho- any search for and seize evidence on the person rizes certain searches for evidence that can prevent arrestee’s in order to its destroyed. concealment or be concealed or Actually, pro- destruction. And the area might may into which an arrestee reach tective searches expansive.2 be more “plain completely grounds view” doctrine is com reasonable to believe that there are Stewart, patible persons present other Chimel. As Mr. Justice inside the residence Chimel, might security Coolidge present also wrote who who remarked in risk. . . exigent Hampshire, quoting presented by v. New circumstances after Chimel: this distinguishes reasonable fear of violence Where, however, arresting officer inad- setting factual from Chimel California vertently piece plain comes within view of a evidence, concealed, although outside Mulligan, United States v. F.2d the area under the control of immediate (9th 1973), Cir. arrestee, it, long the officer seize so (1974): L.Ed.2d 233 plain view was obtained the course [throughout The search here house] appropriately of an limited search of the ar- protect possible from harm. restee. type expressly The latter of search is con- n.24, 403 U.S. at 466 91 S.Ct. at 2038. doned Chimel Bowdach, 2. United States v. 561 F.2d Alabama, Hopkins v. State of (5th 1977): 1168-69 Cir. 1975): Louisiana, The law in offi- Both this circuit holds that [Vale [Vale right quick (1970)] cers have a to conduct a and Chi- cursory distinguishable check are residence when mel] the facts 966 Seventh, with- sive. even more

Second, merely states that searches extended it and are “reasonable” could be in the limits searches made in accordance with stated different Thus, that under certain Chimel recognized not state exceptions.” does “well different extensive or conditions more principle that the controlling indicates to be also be reasonable. not might searches determining validity applied in their is still person it authorizes Third, a “search of the the reasonableness search. Fourth, it authorizes a search of arrested.” Chimel cleаrly the recognizes right to might which an arrestee “the area into See, g., e. United search for evidence. eviden- grab weapon to or reach in order Robinson, v. States 414 94 U.S. S.Ct. . ,” e., ‘with- tiary items . . i. “the area United States (1973)3; L.Ed.2d 427 38 . from control’ . . in his immediate Collins, v. cert. de (8th Cir.), 532 F.2d 79 of a might gain possession within which he nied, (Empha- evidence.” weapon or destructible Carter, v. (1976); States 102 Fifth, authorizing the added.) sis basis for Unit U.S.App.D.C. (1975); 522 F.2d 666 e., security searches, i. foregoing the routine Battle, ed States U.S.App.D.C. 396, destruc- preservation of of the officers 510 F.2d 776 recognizing In the evidence, tible “routinely not authorize does validity evidence, intrusions to discover that in room other than searching any the appears decision to that decide areas Sixth, which occurs . an arrest may which be weapons searched for and for “in routine search of the room destructible evidence virtually are coexten occurs,” which an arrest to extent Yet, view, sive each my other. in may have such search been authorized parties given and the court have too short Chimel, does is a limited search which not permissible shrift evidentiary to through search authority searching “for constitute drawers, evaluating the legality of the seizure all or other closed or the desk Pharmacy” “Your It appears in that room itself.” It is file. also concealed areas adequate here to the full necessary determine consideration was not given to the fact that Chimel explicitly recognizes search be- extent of the thus authorized search exten- cause the instant was not that that “a room in which an arrest occurs” presented prisoner’s for per- here. Vale involved a search could make a full search of the relating suspect Chimel for evidence narcotics and son whether or not there was reason to burglary shop. possession a coin Neither case that the arrestee was armed inor exigent presented and fact circumstances suggests, destructible evidence. This decision setting in this case. . The shown suggesting, and was chided the dissent for guidelines to ensure that no one re- immediate need that the established Chimel for the preparing yet mained house fire the scope in the acceptable of a incident to arrest obviously justified weapon the war- unfound applied regard could be without for whether was, rantless search. particular there in the circumstances of Hobson, (9th United States v. specific any plausibility in the claim denied, Cir.), U.S. might weap- that the arrestee be able to reach (1975): L.Ed.2d 261 By ons or destructible evidence. same to- prevent Chimel was intended to officers person ken that Robinson’s could be searched using pretext an arrest as a ransack- though underlying even rationale of Chimel ing a house in defendant’s the search preventing prisoner obtaining destructible Clearly, reput- where the evidencе. house weapon inapplicable, evidence or a weapons ed to contain people arsenal of police in this case should been allowed to how who know to use them and have conduct limited search of material situated so, expressed protective an intent do some immediately adjacent that area the room measures are order. ... It was en- provided they through did not rifle “all Scios— tirely proper to search each room for addi- or desk drawers or other closed concealed persons weapons. tional though slight- areas” —even such material Smith, United States F.2d ly beyond Scios’ reach when seated behind the 1975), cert. separate desk. This would be a basis for the the same is to plain search in addition view to the doctrine effect. fact that the was within arm’s file Robinson, length held that in reach of Scios In when entered the room he lawful, immediately prior custodial the case of a arrest the to the search. search, “routinely” subject light to a foregoing overview of the arres- is “within his the extent [the constitutionally permissible scope of war control,” immediate if the officers tee’s] rantless searches incident to arrest on a do not go exercise restraint and involved warrant, turn to we the relevant facts as “through all the desk drawers other reported suppression at the hearing. The or concealed areas in that room it- closed principal to be facts extracted from the added.) (Emphasis majority self.” testimony there received relate to the prox n.15, recognition, crabbed ante to the gives imity of Scios “Your Pharmacy Ser justification” “ample Court Chimel that during vice” file the time he was in his of the searching for the limited area finds office, as under some of the issues raised “within immediate control” [the arrestee’s] this geographical proximity is largely dis- in which in the “room an arrest occurs.” positive of whether or not the file was authorizes a search to an Chimel incident “within ‍‌​‌‌​‌‌‌‌​‌‌‌‌‌‌‌‌‌‌‌​​‌​‌​‌​​‌‌‌​‌​​‌‌‌​​‌​‌​​‌‍immediate control” or his [Scios’] “the area within arrest of [the arrestee’s] “reach” and thus legitimately by searched . .” 395 reach U.S. at police. unequivocal There is evidence Elsewhere the describes it at 2042. indicating record that the file was in deed within Scios’“immediate control” and area which might the [arrestee] at certain times within or his “reach” it weapon have obtained either a some- and thing that could evidence clearly be used as was thus erroneous for the trial him. against court that to find the search extended be yond permitted limits (emphasis 89 S.Ct. at 2043 Chimel. added). case, In this as a preliminary matter, it requirement is no or any There in Chimel needs to noted that be there can be no prove case that the must other Government legitimate but question that the file and its search, prerequisite to a as the as a valid contеnts were destructible evidence. The argues, presence that the of the majority statement trial court to the con- he “danger” accused created a that would trary perhaps prompted by a confusion — destroy” “snatch and the evidence that clearly contraband—is erroneous. It is seized the evidence under threat significant the majority that do not support immediate It is suffi- of its destruction. the trial on this point. court This error that the with- cient “evidence” was situated alone is sufficient to reverse the trial court. permit area which would accused in an do act if he were of a mind to so. Cf. so to Also, destructible evidence need not be op. length n.15. Maj. And the arm’s instantaneously. destructible The destruc is authorized is not limited strictly to tibility of “Pharmacy” file is apparent absolutely no more than the seated or sta- cursory from a examination of its contents. tionary being person reach of the arrest- The file is Government Exhibit I. An ex majority ed—the misread the record when amination discloses that it is a light small being the search as limited to construes brown folder IIV2" X manila 9" with a tab point in time during which Scios was long protrudes 3%" /i6ths of an inch or stationary. Any seated reasonable inter- top edge above the at the left It corner. of Chimel pretation would include papers contained which printing, search area permissible that area within writing typing. and Included was a bill of taking which arrestee could reach after Royal in Washington, Motel D.C. This step, people as most when they one do indicates, single bill constituted a major reach. As the record here “with contribution Ill, slight body (Tr. 48). movement” of allegedly inculpating evidence. The re erwise, necessary my presence it is not 4. While conclusion since the arrest and of the my deprive it is con- view that “immediate officers pect be could construed to the sus- interpreted mobility control, trol” must be to mean control of all the words restraining meaningless. which excludes the influence and would be No area could permissible arresting control of officers. Oth- searched if normal control was not intended. file of six The court consisted concludes that a search maining contents X some with writ papers, 11% through sheets of credenza or file folders typing, scratch ing some with five permissible would have exceeded the calling sheets, envelopes, two two used scope any under Chimel evidence a deal duplicate original one cards and found in such search would have to be by the use certificate issued special er’s suppressed. Vehicles the Dis of Motor Department Br., Appellant’s App. (emphasis at 53 add- Columbia, one street ordinary trict ed). analysis proceeds This from the map Washington, D.C. premise that in this case area “within that searches incident to It well settled defendant’s immediate control” to be de- well as can disсover documents as an arrest termined what was within his “reach” evidence, other forms States solely at that moment time when “the Cir.), Simpson, F.2d 1028 defendant was seated his desk and had denied, S.Ct. disarmed,” been and when “defendant’s ac- (1972); v. Kir L.Ed.2d 337 United States to cess the credenza” was blocked one of schenblatt, (2d 1926), 16 F.2d 202 Cir. agents the three FBI in the room. The here, question being easily in the documents agent statement him blocked destructible, manifestly were within accurate, well be restricting but in its anal- Chimel, provided that search authorized ysis permissible his solely “reach” at that legitimately “with can be described as moment and to a limited view the facts in the of the defendant’s area immediate access,” concerning “defendant’s the court control,” “reach,” having or within his or as applying unduly was an reading restrictive (plain one of exceptions been within of Chimel. view) contemplated. which decision Further, review record reveals that The court found that trial the files all parties uncontradicted were question not within Scios’ “immediate fact, ignored establishes the completely control,” stating: court, the defendant the trial that Scios the FBI In this even if version passed within length less than arm’s reach believed, the defendant was at his seated file folder when he his entered office had desk and been disarmed. There seated at (Tr. 1,17-18). himself his desk agents room, including three FBI file The was within then his “immediate blocked to the one who defendant’s access proximity control” and his at to it that time was within credenza. credenza justified seizure, alone g., its e. United control, [5] the defendant’s immediate Mason, 173 U.S.App.D.C. States they sought testified other (1975); F.2d 1122 United States Patter and the weapons, agents could not son, (10th 1971), F.2d 424 cert. seeking protect evi been destructible denied, none.[6] dence there was . since (1972); L.Ed.2d 752 v. Wy States in Chimel stated: socki, Cir.), F.2d 1155 justification . There no . routinely searching any for (1972), shortly which followed thereafter. other than that an ar- room which Maj. op. See n.15. matter, or, rest occurs— also, volition, on his Scios own and with- searching through all the desk drawers being out commanded to or hindered or other closed or concealed areas in so, doing got up that room itself. Id. and moved around the [395 U.S.] 2034], after go room his arrest to the office [89 finding concluding court 6. The 5. The trial erred file was not “destructible clearly area “within defendant’s immediate control” evidence” was erroneous. be restricted to area that he could “seated his desk” after he had control while just passed the credenza. (Tr. 1,19). and to come back these door On It is a completely application incorrect occasions, through he passageway deny walked Chimel to that the file was under his only (Tr. I, 77) control,” three feet” “about be- “immediate or “within his reach” when he upon past tween the desk and the credenza walked the credenza. That he “Pharmacy” which the filе folder was locat- thereafter seated himself behind the desk, was not with an ed. Scios handcuffed when he first between him and the credenza, (Tr. I, 17-18), does not walked into his office when invalidate agent’s right explore subsequently open he “went to the office door” files in view on the credenza neighbor’s which dog, to let out a or when he then had been within his reach on the three occasions “walked back around desk and . referred to. [his] We are not (Tr. I, 19). confronted here with During gener- sat down” these three al exploratory search that Chimel personal peregrinations past credenza, forbids. We have specifically held that object Defendant’s Exhibits 3L 3Mand show that within three or four feet of a defendant easily the file folder was within his reach was “within his immediate control” even moving without need of even ap- his hand when the defendant handcuffed, Unit- preciably away Thus, from his sides. on the Mason, ed States v. supra. The distance office, when he occasion first entered the between Scios and his files was less than Pharmacy” the “Your file was clearly with- that on the three occasions when he walked in his “reach” and also within “his immedi- by the just credenza and the file was slight- control,” during ate subsequent two ly beyond that when he was seated. trips proximity he was in similar place,where originally the file was situated. When the arresting officer was actually I, (Tr. 17-19) Scios’ and his Ex- interposed between files, Scios and the 3L, prove hibit that the file was within his would be reasonable to conclude that Scios reach and “immediate control” on each of would actually not physical exercise control those occasions. The “fingering over However, the documents. if through precise (Tr. those files” at this time agents were present, proximity I, 17). proximity Scios’ to the file on those though files slightly beyond his station- three occasions is all that is necessary to ary seated, reach when was so close that it validate the instant search and seizure. could reasonably be said majority is thus in error when it char- within the area of his immediate control. acterizes Scios’ access on these three occa- See Defendant’s Exhibits 3L and 3M. Ex- access,” ante, “prior sions as see n.15—it hibit reproduced 3L is point at this Fig- was access reasonably contemporaneous (In ure 1. viewing it the distortions of the search. perspective should be compensated for.) however, court, there entirely stay

The trial over- while others went for a search always the fact that was not looked Scios warrant, but if the business that authorized than an separated from his files more entry their was concluded and a search war- majority also arm’s reach of distance. required rant was proceed before could significance to deal with the of Scios’ fail further, strictly speaking they would have easy access to the file on the three occasions right no further to remain in the building majori- seizure. In аddition prior'to the the. after They arrest was made. would ty attempt requirement to assert that it required thus be to leave magis- and find a possible to “snatch must been Scios trate to issue a search warrant. After they destroy” agents the file when the and left, partner, who Scios’ could be reached Maj. Moreover, op. seized it. n.15. See (Tr. Ill, 26), their shortwave radio or his impose any require- such Chimel does I, “girlfriend” (Tr. 15), who was in the ment but is somewhat broader and covers house, could destroy the file. tempo- Scios’ subject that is to “concealment or evidence rary inability destroy or conceal the file 762-63, destruction.” agents while the present does not deny agents’ right to seize destructible The “concealment or destruction” that evidence subjected that could be to future proof Chimel refers to is not confined to destruction or concealment. As we ob- capable concealing that the arrestee was Thweatt, served in United States v. destroying presence the evidence in the and U.S.App.D.C. (1970): 433 F.2d 1226 arresting agents. respect In this Chimel, majority misapply in others the might We add that obviousness is a form Maj. op. egregiously majori- n.15. Most in the sense failure exigency possible that “it was not ty logic assert the immediately act when confronted with destroy snatch for defendant evidence in this manner result in its Agent Swayze] physi- folder [because disappearance. blocking access cally defendant’s [to fails fully Such contention under- file].” U.S.App.D.C. 433 F.2d at 1231. of evidence that stand “destruction” addition, Maroney, Chambers v. against guard ap- seeks to and the Chimel (1940) 26 L.Ed.2d 419 of Chimel to this case. Chimel plication Coolidge v. Hampshire, New permissible authorizes a search of the area both weapon “a items . evidentiary recognize exigency created when the prevent in order to concealment or [their] opportunity to “fleeting” search is destruction.” The “destruction” so referred present to is not limited to a threat of “may evidence never be again found if a present. while the are destruction warrant must be obtained.” 403 U.S. at It also includes future destruction. 460, 91 at effect, 2035. To the same Chadwick, United States v.

Thus, here, applied the fact that the 53 L.Ed.2d 538 agents may physically capable have been temporarily preventing destroy- from states: Scios file, the while all three of them were in

ing ar- [pursuant to custodial searches Such room, opportunity is not sole a war- without may be conducted rests] recognizes destruction that Chimel should made whether they may also be rant and prevented. In addition Chimel intends cause to believe probable or not there guard against the later to destruction a may have arrested person easily occur if it were not file could destroy evidence. is about weapon seized when it was discovered. If prohibited seizing from the file agents States in United added.) Quoted (Emphasis when it was discovered the alternative Prinсe, U.S.App. Foster, & v. Stafford leave it in the would be to office. Some (1978). D.C.-at-, 997 at might argue agents that some of the could arresting agents agree that it was unconstitutional. Thus recognized haveWe ground upon the first which this cannot lead search warrant no search who file, be found to be that the inside houses valid is when place place from arrestees room, shortly, Scios first entered the presence at use his apartments occasions, thereafter easily on two was justify a search incident location each “within reach” and within that area on his arrest, the arrestee [his] but when reasonably which could be said to be nor- volition, request, moves or at his own own mally within area of his “immediate arrest, brings he the scene around Maj. op. control.” n.15. See area control a wider immediate within his ' subjected to a valid search. may be Other circuits have not restricted Mason, supra; United v. States United interpretation to the wooden searches Patterson, the ex- supra. Given v. States all, by majority. Chimel asserted After the room in which size of tremely small permits the Constitution “reasonable” “maybe eight was defendant Patterson, v. arrested — searches. States su Ill, photo- (Tr. 13) defendant’s eight” pra, upheld “partially the seizure of a hid —the show that one 3L and 3M graphic Exhibits envelope sitting den folder or on a [file] desk the center of Scios’ standing behind shelf in a cabinet . . . four to six feet merely tak- walls opposing touch could away from where was stand [the arrestee] (see repro- direction ing step one in either ing (Emphasis added.) at the time.”7 3L). And be- Defendant’s Exhibit duced plain “Immediate control” and view were in this case made cause the upon. Wy both relied In United States v. reach or his immediate beyond socki, Scios’ supra, suspicious closed box “six control, within that area made no and even Wysocki” (obviously feet from out aof general search or even attempt reach) at stationary opened by strict arm’s drawers or through all desk agents investigating robbery “search a bank believ in that room ing closed or concealed areas gun. other contained a It did not contain California, itself,” supra, any weapon money Chimel but some stolen orders robbery at I find that bank were discovered. scope and I cannot This search incident to an arrest without a search was reasonable 7. United States issued in connection she No on 447 F.2d at The folder Mrs. Patterson tive because the cabinet door was about way envelope sitting protests where tective testified Appellant’s in the from the evant would son’s room. since he knew Mrs. Patterson cabinet Patterson in her general search was undertaken: In the and her husband were 1971), police detectives went was one of the items taken. open. The detective removed the folder evidentiary arrest burglary thereby he saw a The wаs four to six feet process 425-26 cabinet was in record position found, among occurring limit the search to he was Patterson, of Mudrick’s (emphasis added). articles] partially apartment with a discloses that Mrs. Patter- partial against making here is that Mrs. Patter- shelf standing searching in the forgery view 447 F.2d 424 An arrest warrant in a other away hidden folder or Mrs. Patterson’s into the kitchen at a time when apartment arrest, cabinet. living living from where things, was served for a .. The de- the detec- the time. a only suspect one of room. pistol room half- [rel- 447 F.2d at 426. 447 F.2d at 427. Therefore, doorway kitchen-dining handcuffed] The record here her tering to be in the reasonable in 234, 236, ed would be resting in the immediate area and the son, dent to a lawful area of her “immediate control”. subject area. son had access to the evidence.” Harris v. United 1069 The detective’s detective’s by merely turning of her (1968). plain ^[*] the kitchen. . officers. to seizure and 88 S.Ct. between the . it was a reasonable view own ^[*] control admissible since that area continued within the position . Until assuring living precautionary room arrest. clearly of an officer volition, entry This 992, 993, ^[*] area was available to room. Access around. This discloses Mrs. Patter- area was within the into the kitchen was kitchen-dining The evidence obtain- kitchen-dining ^[*] . had moved appellant’s safety 19 . States, who has a “objects falling measure of en- ^[*] L.Ed.2d introduced . search inci- of the ar- [she was view are 390 U.S. justified ^[*] to the room room 1067, wife. right in

973 cause, warrant, was held have been within upon probable “plain but view” of the money to be agent and the orders right to be reasonable whose to be where he was has into evidence. Chimel was cited questioned admissible not been here. referring authority, and without to it as as sixty About of Scios’ business files were such, reasoning was also relied plain view open out in view on the top credenza, decisions, among Both of these oth- upon.8 as shown 3L, Defendant’s Exhibit in

ers, validity of the search and support the three wires racks each containing about 20 Pharmacy” of the “Your file. seizure files. From an examination of Exhibit I it can be seen typewritten “Your II. THE VIEW DOCTRINE PLAIN Pharmacy protruding Service” on the index A. tab of Scios’ file is sufficiently large so that it can be read from a distance of six feet Even Pharma assuming that “Your person with normal eyesight (Officer cy” file was outside defendant’s “immediate was, Swayze fact, in within 18 inches of the “reach,” control” or so that its seizure file Scios.”) when he was “guarding The parameters, would exceed the Chimel top files on of the credenza were arranged question must particular search still be three groups each containing about twenty view” “plain deemed to be search and (Tr. Ill, file folders 52 and see clearly reasonable under Fifth Amend Defendant’s Exhibit 3L See, reproduced supra). g., Coolidge ment. e. v. New All were Hamp shire, 443, 91 2022, 29 upright position, and the file question 403 U.S. S.Ct. L.Ed.2d (1971); States, about 10 or 15 (Tr. 564 Harris v. United 390 files from the front 234, Ill, 992, 21). It appears 88 S.Ct. from very 1067 сlose exami- States, (1968); Marron v. nation United 275 U.S. of Defendant’s Exhibits 3L and 3M 192, 74, (1927). 72 L.Ed. 231 I, The Government Exhibit the files’ in way Chimel doctrine has restricted the staggered (Tr. Ill, 50) tabs were with the permissibility scope plain (and view result no doubt the express purpose) searches, States, Dorman v. United 140 U.S. that one tab would not obstruct the view of 385, App.D.C. the tabs on the back agent files. The testi- (en banc); Thweatt, supra, United States fied that he “looked down the line” of the 123, U.S.App.D.C. 433 F.2d at (Tr. Ill, 1229. name tabs and discovered the file recog 19). Such searches are within the “well any way files were not in con- exceptions” nized that Chimel refers to. placed area, cealed or in a closed Pharmacy” The “Your file must open be held to were top. They at the were not in Wysocki, (5th denied, 880, 8. United States v. 457 F.2d 1155 cert. 401 U.S. 91 S.Ct. Cir.), denied, cert. 409 U.S. (1971); Klingler States, L.Ed.2d 811 v. United (1972). Wysocki’s L.Ed.2d 105 (8th Cir.), denied, arrest took 409 F.2d 299 cert. 396 U.S. place probable cause without a warrant in a 90 S.Ct. 24 L.Ed.2d 110 motel room 10 to 12 feet wide and 14 to 16 feet sup trial court was' sustained in its refusal depth. Wysocki was found in the press middle of money orders as the fruits of an the room and the searched that immedi unlawful search. The court noted that the offi open Wysocki ate area. A closet door was right cer was “where he had a to be . ..” agent get doing asked the some clothes. plain 457 F.2d at 1160. The view doctrine was thought so the observed a box which he expressly such, not upon relied but the rea gun “was a box” but it was six feet soning is in that vein. What the court in effect Wysocki. opened Nevertheless he it and dis Chimel, al., held was that it was within et money covered batch of stolen orders. The (open box) that was observed in search was held to be reasonable and the sei plain view some six feet from where the arres contrary zure of the box to be to Chimel v. tee was seated in the middle of the room. California, 395 U.S. 89 S.Ct. stronger While Scios is a case on the facts than (1969); Harris, L.Ed.2d United States v. Wysocki walking when Scios was —because 29 L.Ed.2d 723 around the room he was much closer than six (1971); Squella-Avendano, United States v. Wysocki feet to the files —the essential facts in (5th Cir.), F.2d 575 practically are the same as those involved with (1971); aspect one of Scios. Brookins, 1970), States v. F.2d 974 States, upright, each They 1, 3, were filed United 93 U.S.App.D.C.

drawers. 206 piece a of wire merely by single 476, (1953) (small separated F.2d 478 musical instru phonograph record racks. in the manner narcotics). ment box to found contain visible, protrud- the files were All apply These decisions a combination of Chi belt-height, topical, staggered tabs at ing plain mel and the view doctrine. (see easy-to-read level Defendant’s Exhibit 3L). B. where from the initial those instances required What is proof (1) then is that immediately apparent it is that view agents right had a to be the location relevant evidence in article constitutes they where were when they observed the that search” was case the courts hold “no article; (2) that the sighting object is indulgеd in and that the item admissible. inadvertent; (3) that was imme- 211, Copien, v. 541 F.2d 214 United States diately apparent probable that ‍‌​‌‌​‌‌‌‌​‌‌‌‌‌‌‌‌‌‌‌​​‌​‌​‌​​‌‌‌​‌​​‌‌‌​​‌​‌​​‌‍cause exist- 1976), denied, 1073, (9th Cir. cert. 429 U.S. ed to believe that the article constituted 810, (1977); 50 791 97 S.Ct. L.Ed.2d United relevant I evidence. find all three 595, Wilson, (8th v. 524 F.2d 598 Cir. States requirements were satisfied. 945, 1975), denied, 424 cert. U.S. 1415, (1976); Blassingame 351 v. There is doubt that is clearly satis Estelle, 668, (5th 1975); 508 F.2d 669 Cir. fied. The had a right to be where Conner, 1320, United v. 478 F.2d States they to execute the warrant for ar (7th 1973); Cir. 1323 Grimes v. United rest. Even using flashlight peer a into States, 477, (5th 1968); 405 F.2d 478 Cir. parts obscure area does not defeat a Wright, United v. U.S.App.D.C. States 146 “plain argument, view” g., e. United States 126, 130, 1355, (1971), 449 F.2d 1359 cert. Johnson, (8th 1974), v. 506 F.2d 674 Cir. denied, 986, 92 30 43 (1972); L.Ed.2d 817 United v. States Cisne (1975); L.Ed.2d 784 United States v. Wick ros, (9th 1971); 448 F.2d 303 Cir. izer, F.2d (8th 1972) 1157 Cir. States, Grimes v. United 405 F.2d opinion of (concurring Judge Bright); Mar (5th 1968); States, Cir. v. Coates United States, shall v. United (5th F.2d Cir. 97, 99, U.S.App.D.C. 413 F.2d 1970). is There thus no reason here to hold (1969); Creighton States, v. United 132 U.S. where, the search be unconstitutional 115, 116, App.D.C. (1968); 406 F.2d most, all that was done was to riffle the States, Hiet v. United U.S.App.D.C. raised tabs of several in plain files view 338, 339, (1967); 372 F.2d cf. Cool until the file marked “Your Pharmacy Ser idge Hampshire, v. New supra. In other vice” was noted. cases where the initial observance of As (2), the trial court seems to have article or plain articles in is view sufficient failing been misled in apply “plain probable to find they cause to conclude that view” aby doctrine belief the dis- evidence, constitute precise but evi their covery files was not “inadvertent” dentiary value is immediately not apparent and thus could pass mus- constitutional inspection necessary, further is we ter under “plain rubric of a view” also held that a limited search examina search. unquestioned It when law en- permissible. tion is If the closer examina personnel forcement know in tion is advance conducted in reasonable manner certain evidence exists in particular and leads loca- discovery relevant evi it, tion and intending dence the enter to seize but “search” valid under neglect get Fourth Amendment. Ma warrant and United States v. thereafter son, supra; rely doctrine, seek to Wysocki, plain United v. su view States such pra; Patterson, supra; v. search is States unconstitutional. E. g., Cool- States, idge Dorman v. United v. U.S.App.D.C. Hampshire, New supra, 403 (1970) (en banc); 2022; 91 United States v. Grif- Thweatt, fith, supra; United States 1976). Ellison 537 F.2d 900 In such

975 the search is which were seized. On the validity basis of this circumstances discovery record, is not inad appears discovery it thus that the defeated because However, expectation mere clearly vertent. files” was the “business inadvertent. evidence —even as of some presence discovery It also be stated that an arguendo expectation such suming here was within “inadvertent” preclude application here —does present because, paraphrase Court standards doctrine, g., Coolidge e. “plain view” standards, Coolidge discovery “the [of 472, at Hampshire, supra, 403 U.S. v. New anticipated files was . . . not] 2022; California, v. Ker U.S. 91 S.Ct. police know in advance they [did not] 42-43, 10 L.Ed.2d 726 plain find view and files] [would] [the Cushnie, 488 F.2d v. (1963); United States intend to seize Cf. Coolidge v. [them].” denied, 1973), (5th cert. Hampshire, supra, New at U.S. arresting might officer Practically every evidence incident expect to seize some C. physical a crime for which

any arrest for an accused. might inculpate evidence however, The majority, asserts that any here does not raise serious file not to be considered as being The record seized in arresting agents search, e., went “plain that when view” i. doubt fold- “[t]he him, they arrest did not home to plain to Scios’ er was not in view.” file, warrantlessly for the to search intend involves application Such assertion Sedillo, F.2d see United States criteria, e., the third i. was the evidentiary Cir.), relevance of the file immediately apparent (1974). They had when it was discovered. If the agent’s knowledge of the files and did no advance accepted that he “looked down they would be admitted to not know that of file the line” name tabs and discovered agents presented them office. Scios’ the file with the “Your Pharmacy Service” prepared arrest him selves at Scios’ door typed upward title on the protruding index they identity, when were sure of his tab, “plain under the view” cases cited and it was himself who led the then Scios - ante, p. of 191 U.S.App.D.C., p. 974 companion his female into his office so F.2d, of 590 we have “no search” and (Tr. their conversation would not overhear hence no taint of the evidence resulted Therefore, Ill, 45-46). it cannot be con therefrom. reject Even if we the agent’s agents planned had to use cluded that testimony, as the court apparently did in pretext searching arrest as a for his part, that, there is still no doubt following Mason, office, supra, see United States the discovery of 60 Scios business files in U.S.App.D.C. 523 F.2d at view, plain there was probable cause to items of evidence. The acquire any or to believe that a file covering the work he did even know that the office agents did not the “Pharmacy” would be included existed, much less that had a “Your Scios among his other business files. The result business files Pharmacy” file with his other ing closer reasonable, look was therefore open out in the in his office. and the discovery mere of the “Your Phar any bug whether did not know in advance macy Service” index tab was sufficient might present. or files ging equipment make it “immediately apparent” anyone actually They did discover “some electronic the file constituted relevant evidence . . . some wires. Some equipment ” of the offense for being which Scios was . in an attache little black boxes arrested. they any did not seize of such case but It is general significant No search was conduct did not material. ed, Ill, important (Tr. it is to note examine the contents of the but file revolver, 30-31). shoulder up solely turned a loaded some It was seized because of its title, shotgun that, and a sawed-off arms and I would hold from the title —none any tion without alone, to conclude that its violation of the it is reasonable Fourth immediately ap- Amendment. evidentiary relevance convincing the least it was At parent. being Scios was arrested an offense Scios, tapper bugger, a wire and proof that and, related to his business from a mere Pharmacy” where the worked at “Your had plain view, the glance all files in it was by the tap found. The assertion wire number, size, character, obvious from their recognize facts majority, fails to the thus labelling they location and that were Scios’ “Pharmacy” The file was one and the law. business files. See Defendant’s Exhibits 3L plain the in view. See Defend- of folders recently, and 3M. Just in United States v. say single 3L. To the ant’s Exhibit Mason, supra, a a partially opened search of plain in runs counter to was not view folder permissible suitcase was deemed the under Mason, Patterson, supra. and Wysocki doctrine, “plain prin- view” there is no cipled distinction between examination of a D. partially open suitcase and files with index may here be likened to that situation partially tabs that were disclosed. an who observes a substantial officer In this and others similar it to re- glassine bags, of the kind opaque number of ante, ferred to it should be the noted that narcotics, usually used contain that are to plain view require doctrine does not the making is a distant while he a valid on desk agent officer or to positively determine charging under a warrant a narcotics arrest plain from his first view of the article or also, here, the Suppose offense. articles from a particular distance that the the arrestee had himself led officers article subsequently seized is relevant ad- plain in view. bags room where the were evidentiary missible material to a criminal circumstances, clearly it Under such would offense. required What is is that the arti- permissible open bags been to the to singly cle or with other articles or contain- if they though see contained narcotics even (boxes, suitcases, cases, ers etc.) brief be in they beyond at the reach moment the plain view and that from what so is ob- suspect immediately and it was not served the or agent justified, officer be apparent they contained narcotics. otherwise, prior experience from his or in an Similarly, having probable if arrest warrant was issued cause to believe that the against robbing or suspect bank article articles constitute a to threat the $25,000 currency, officers, in exe- arresting possible and the in or evidence re- cuting packets it observed bills lated to law to preferably the Treasury violations — credenza, just top the the beyond on offense for is party being which arrest- suspect, permissible it be It necessary validity reach would ed. is not to of a (search) seize the bills and examinе them plain agent, to view search that when he if files, determine the serial numbers con- first viewed the business determined stolen currency. formed those without inspection closer that one of the files was the “Pharmacy” file. It is suffi- open agent in view Business files to an if “Pharmacy” cient file was one he standing right where has a to be in an plain agent files in view of the and there is charge involving suspect’s on a arrest necessity that he identified the be- file subject of a business be search and began fore he riffling the tabs. just opaque glassine seizure as much as currency Thus, bags plain in view in arrests plain applied view doctrine as charging Dorman, Thweatt, Patterson, rob- on warrants narcotics bank Wysocki, bery may reasonably One con- permits offenses. Ellison and Mason clude, “search,” closer, given alleged, e., nature the crime i. examine the suspicious potentially plain that such files contain incrimi- article or articles in view to determine evidence, nating justified. and when are first if his suspicion majority view, operating it is reasonable and n. 15 seems plain observed under the mis- inspec- permissible apprehension impermissible to make a further close tabs, file to “leaf shelf in a cabinet which through” the subsequent “thumb exami- However, that them.” what nation through disclosed contained a “check . of, since the consists authorized search checkbook . . . a safety deposit related once the busi- offense was business key box . .” that were admitted in inadvertently discovered out ness files were the trial of the (forgery) offense for which see them on the open in the where all could the arrest was made. United States v. Pat- when led the top of the credenza Scios terson, supra. Following logic, the same office, permissible it was agents into his Mason, supra, States v. we allowed to examine plain view doctrine under the seizure of keys unidentified car discov- closely and to dis- files more the business ered in plain view on a table in apart- which particular file bore cover made, ment where the arrest was even Pharmacy” Actually tab. it would “Your though it was not discernible from the ini- seize all busi- have been reasonable to Scios’ “plain tial view” that the keys were for any plain view and ness files which were in car that was involved in the criminal of- Pharmacy” file search them for the “Your being fense investigated. In Dorman v. probable there was cause to believe because States, supra (en United banc), upheld we file would be included. that such warrantless pursuant made to an majority and the judge Both the trial entry probable cause to arrest. The contending that the inad- make the error of search resulted in the discovery in a closet plain view doc- required by vertence in plain view after the door was opened, of point to the trine must be restricted a suit resembling one stolen in the crime conclusively the officer dis- requiring that being investigated, but while the suit was were first observed cover when files “readily identifiable,” a closer inspection particular ques- item of evidence in that the was obviously necessary to determine that material, absolutely was relevant and tion it bore the “label of Carl’s Men’s Shop.” But, explained in the case. as admissible The seizure under such circumstances was above, inadvertence to that extent is not held to be reasonable. required. discovery group Allowing narcotics officers to seize white completely files inadvertent business powder in glassine bags plain view at the that is all discovery the inadvertent time of a narcotics arrest is also everyday required discovery that is since the of their routine, constitutional, and admittedly not- probable existence constituted cause to be- withstanding subsequent that a test is nec- “Pharmacy” among lieve that file was essary to determine whether or not them. contents contain a controlled substance.9 application principle In of this courts Finally, we are by it to to admonished permissible have held examine a Chimel that “the that reasonableness of reasonably closed box sus- searches [depend upon] atmosphere the total pected holding gun introduce of the money quoted were case” —which was the stolen orders that discover- from United Rabinowitz, though gun States v. ed even was found. United 339 U.S. Also, Wysocki, supra. while look- 94 L.Ed. 653

States When gun it is to seize a this standard ing applied my constitutional it is conclusion “partially envelope” hidden folder or from a the search and seizure of the file in Griffith, partially however, plain misap being 9. The view doctrine is is saved con- plied by Judge opinion discovery Tone’s States trolled error because the was not Griffith, 1976) inadvertent since the officers had been in the it decides the search was not the extent room earlier and had seen the various articles. inspection subsequent puts inadvertent because the “officer’s Their return to the room thus Coolidge category planned not inadvertent.” Under v. New the case into the of a war- “discovery,” Hampshire, it is the 403 U.S. at previ- rantless search for the articles had suspicious ously article that clearly an advertent observed — “inadvertence,” subsequent not the cry determines search —a far from this case. inspection closer or examination of that article. When this case was before the panel lawful and thus was reasonable question member, thought Chimel which I was a I established guidelines under (2) reach poisonous within Scios’ the “fruit of the tree” doctrine it was since within control require suppression immediate did not of Massa’s within Scios’ addition, complete aas testimony. room. I reasoned that the basis of this small court, I find the trial reversing exclusionary basis rule is that it deters properly contents the file and its misconduсt, po- and that the nature of the view” doctrine “plain seized under lice in each case is the conduct decisive Hampshire, Coolidge v. New forth in set judging factor whether unlawful 464-473, 91 2022. Such searches and seizures will be It deterred. recognized exceptions doctrine is one seemed to me that exclusion of Massa’s 762-63, Chimel, have no testimony could deterrent effect because the FBI who seized the majority are appears It thus had in good Scios folder acted faith and interpretation of Chi- overrigid adopting marginally their conduct was at most un- permissible insofar as it relates mel lawful. incident scope of warrantless searches ruling unnecessarily will arrests. Such My theory became in 1978 untenable bring law handicap reasonable efforts when the Supreme Court decided United particular diffi- justice. I have violators Ceccolini, States 98 S.Ct. majority opinion the culty with n. 15 in (1978). 55 L.Ed.2d 268 In that case paragraph upon relies which in the fifth the Court listed the factors which the made Chimel, paragraph declares and in the sixth Hennessey’s witness testimony admissible: view, my In inapplicable.” that “Chimel is overwhelmingly evidence indicates above, opinion mis- majority the as outlined testimony given by the the witness controlling particulars, applies the law was an act of her will way own free in no (1) as to the search that was especially by coerced or even induced official aü- permissible proximity because of Scios’ thority as a result of Biro’s of discovery separate occasions at the on three files policy slips. slips the Nor were the them- agent the same time that the about selves used in questioning Hennessey. files, (2) plain at as to the looking periods elapsed Substantial of time be- Maj. specifi- n. exception. op. view See tween the time of the search and opinion recent of Mr. Justice cally. The witness, the initial contact with the Arizona, Mincey v. Stewart in U.S. hand, the one and between the latter and (1978), does at trial on the other. any respect. result in compel not a different particular knowledge While the to which fact, Mincey reaffirmed the continued In Hennessey at trial logi- testified can be “plain view” viability of Chimel and cally discovery traced back to Biro’s doctrine, when it at policy slips, identity both the of Hen- greatly delayed gen- validate the refused to nessey and her relationship with the re- which was eral search of the entire house spondent was well known to those inves- after the mur- days not finished until four addition, tigating the case. There is in der. slightest not suggest evidence to the ma- respectfully dissent from I thus shop picked up Biro entered the join opinion Judge jority opinion, envelope with the intent finding tangi- Robb, Judge join by the result reached ble bearing gam- evidence on an illicit for a different reason. Wilkey’s opinion, but bling operation, any suggestion much less Judge joins opinion. in this Robb shop that he entered the and search with finding willing the intent of and know- ROBB, Judge, dissenting: Circuit ledgeable testify against witness to re- expressed by Judge spondent. Application views of the exclusion- I concur in the ary rule in this situation and add a few words. could MacKinnon ‘wiretapper, bugger slightest deterrent effect on be- camera surveil- lance man.’ ”. officer such as Biro. The Forrester said he havior of an could not silencing Hennessey employ Scios but he referred him permanently cost store, owner of the Judge Norton. great system for an even-handed Subse- is too quently Norton hired Scios and paid to bear in order to se- him law enforcement “by a check drawn to another speculative very likely name”. cure such a Thereafter the taps on the lines of effect. “Your negligible deterrent Pharmacy, Inc.” were by telephone found Id. at 1062. linemen. In the course resulting (1) say we cannot In the case before us investigation telephone conversation took Massa’s was the act of his place between agent Scios and an FBI pos- will, in no coerced or even way own free ing as a father concerned daugh- about his by authority. official He induced ter’s association with an undesirable man. silent; jail with if he remained threatened Although guarded in his remarks Scios (2) papers obtained the search plainly indicated that he was prepared to office were used who Scios investigate the matter means of wire- Massa; (3) Massa questioned identity taps, and he at least intimated that he had relationship a witness and his with Scios done similar work for “Your Pharmacy, investigators were not known to the until In my judgment Inc.” these facts are were ex- the leads obtained enough support a reasonable belief that ploited; it cannot be said that when was the placed Scios man who taps invited the into his office Scios “Your Pharmacy, Inc.” tangi- finding entered with no intention of folder, As for the seizure of the file I short, evidence. the evidence in our ble agree Judge MacKinnon that it was of the factors negatives upon case most within principle valid of Chimel v. Cali in its Supreme which the Court relied Cec- fornia, say decision. The Court did colini L.Ed.2d 685 The wire rack holding weight assigned can “no mathematical plain the folder was in view within six feet which we have dis- any of the factors arrested, when he was Scios and I think however cussed.” Id. I cannot believe that a search incident to the arrest could include only the two affirmative factors found an examination of the contents of the file lapse of time and the nature this case—the folder. There was rummaging through outweigh all the of the conduct —can closets, desk drawers or but a mere riffling negative present. factors which are protruding the index tabs of the files in me to reexamine the Reflection has led open the rack. United States v. See Patter upon which the District Court’s premisеs son, 1971); 447 F.2d 424 United premises These conclusions were based. Sheard, 154 U.S.App.D.C. States for the arrest of the warrant Scios (1972), unsupported by proba- was invalid because L.Ed.2d 404 (2) assuming the warrant cause and that ble momentary presence The of an valid, seizure of the file folder was was agent file, between Scios at the unlawful. seized, time it was did not mean that it had supporting the affidavit my opinion not been within his immediate control be probable warrant does establish cause fore the The top seizure. file was on of a responsible for the to believe that Scios credenza, directly right to the of where “Your Phar- taps telephone on the lines of desk, sitting at his Scios and not more macy, Inc.” its face the affidavit sets On than six feet away; obviously following attorney facts: The for agent out the coming could not examine it without Forrester, to in- drugstore, asked Scios between Scios and the credenza. The being vestigate the financial losses suffered search evidence was not invalidated replied that he “didn’t by merely making placed the store. because the act of it Scios primarily beyond prisoner’s but was a the evidence thing, do this kind of reach. adopted of the District those cases the Court balancing the order a reverse I would approach application under which of the Court. exclusionary given rule ain class of cases Judge, with whom WILKEY, Circuit by was determined whether the deterrence Judge, joins, dissenting: TAMM, Circuit excluding probative benefits evidence justified the social inhibiting costs of whether case is in this question truth. exclusionary rule ren- Amendment Fourth inadmissible, poisonous fruit of the ders If balancing approach applied here, tree, of a live witness whose .testimony believe, general I yields, it a that rule as the result of an identity was learned exclusionary operate rule does not to ex- holds, first, majority illegal search. clude the a testimony of live witness whose generally applies rule exclusionary that the identity was as the learned result of an and, testimony of live-witness to cases conclude, therefore, illegal search. I that applies second, exclusionary that the rule Massa, Jr., Thomas testify, should and re- case because the taint of this facts spectfully dissent. Massa, affecting testimony of Thomas attenuated, Jr., by not either has been I. FACTS other inter- acts of volition witness’ disagree with both conclu- vening events. I be begin It useful to by detailing sions.1 the background somewhat to this since majority’s position on the merits has analysis “attenuation” If traditional permitted a rather terse and therefore se- here, demonstrates, believe, I applied recapitulation lective of the facts. On 15 any attaching taint February 1974Robert Scios was arrested in Jr., Massa, dissipated. has been Thomas New York. In a search incident to that however, fundamentally, I believe More arrest, a file improperly folder was seized analysis is in- “attenuation” traditional by the FBI. Included the file was a question in cases of this sort. The apposite receipt C.; in Washington, from motel D. live-witness should be whether answered, receipt piece attached to this was a of paper suppressed ought to bearing the name “Mr. An Massa.” FBI inquiry, but case-by-case “attenuation” manager interviewed the desk exclusionary policies, rule direct resort to motel; bookkeeper neither analysis re- employing the occupant membered in other recent cases involv- room. In- employed revealed, however, rule, quiry exclusionary ing extensions of there was still Calandra,2 telephone United available record such as States calls made Janis,3 Stone v. Powell.4 In from numbers, States v. the room. There were two opinion prior 2. bulk of this was written The 94 S.Ct. 38 L.Ed.2d 561 Ceccolini, (1974) (exclusionary operate States v. United rule does not in (1978), grand jury in proceeding questions 55 L.Ed.2d 268 which the to bar based Supreme the first Court time considered on evidence obtained from unlawful search and exclusionary requires suppres- seizure). rule whether of a whose sion of witness identi- ty possession or whose of relevant information 3. 428 U.S. 96 S.Ct. 49 L.Ed.2d 1046 of án was learned as the result search. (1976) (exclusionary operate rule does not in majority, holding The while that suf- Ceccolini proceeding federal civil to bar evidence unlaw- ficient attenuation had occurred on the facts of fully by authorities). seized state criminal question in that case to make admissible, principle, declined to embrace the 4. 428 U.S. by Department, adopted advocated the Justice (1976) (state prisoner exclusionary cannot raise Justice, here, by Chief and recommended corpus rule claim on federal habeas when he exclusionary general that the rule should not opportunity has been afforded for full and fair (cid:127) apply testimony. The multi-fac- live-witness litigation courts). of claim in state analysis employed tor the Cec- attenuation majority applied to the facts of colini this case in Part VI infra. II. TRADITIONAL York. ATTENUATION Jersey and New in New one each IN ANALYSIS LIVE-WITNESS identi- were to these numbers Subscribers CASES being Thomas New York fied, the one in for Thomas jury subpoena grand A Massa. In Silverthorne Lumber Co. United Marshal serv- The U. S. was issued. Massa States,5 Supreme Court held that there subpoena discovered ing exclusionary rule renders inadmissible in a Massas, and Jun- Thomas Senior were two only illegally evidence criminal trial was made with ior, son. Contact father and seized, collaterally tangen evidence or but Sr., Massa, members of and other from an unlawful search or tially Thomas derived Massa, was out poisonous Jr. “fruit of the tree.”6 family, but Thomas arrest —the exclusionary of the rule to the town, Application and unavailable for unbeatable course, activity, of fruits of lawless days. several Silverthorne been absolute. In never Massa, Jr., returned Thomas When recognized improperly Court facts York, told him of family his New may proved at trial knowl obtained “[i]f persuaded him inquiries Government’s edge gained independent of them is from an prosecutor. speak to the he should States,8 source.”7 In Nardone v. United York, in New lawyer Massa consulted arguably the Court suggested tainted until he say nothing him to who advised evidence be admitted at trial if the prosecutor The immunity. granted causal connection between that evidence to offer investigation refused charge illicit acts has the Government’s “be May letter. On 5 immunity by Massa dissipate come so attenuated as to Washington and therefore, went to Massa It is this “attenuation” taint.”9 doctrine Attorney. U. S. with an Assistant spoke that concerns us here.10 privi- his assert said that he would Massa Court elaborated the atten- before against self-incrimination lege Wong Sun uation doctrine told Massa that prosecutor jury. grand States,11 a case that the Court to required immunity was imminent grant physical consider whether evidence and ver- proffer. for an off-the-record him asked poisonous bal admissions were fruit of the what giving an outline of replied by Massa physical considering tree. In whether evi- During this meet- be. testimony would his admissible, the Wong (narcotics) dence of the Govern- was shown some ing Massa Sun proper Court said that test was “ evidence, seized including material ment’s . the evidence to which ‘whether day, Later that same the file folder. is made has been come at objection instant privi- Amendmént his Fifth Massa claimed exploitation primary] illegality [the jury. May On 8 grand lege before sufficiently distinguisha- instead means ”12 court, having retained Massa returned purged primary to be taint.’ ble Washington. The district court counsel considering whether verbal admissions and Massa testi- immunity papers, admissible, signed the Court said that were grant under grand jury proper test was whether the statements before fied “sufficiently an of free act will immunity. 10. In' neither nor the district court 64 L.Ed. 319 (1920). did the Government that there was an contend independent testimony. source for Massa’s 338, States, 308 U.S. v. United 6. See Nardone See Brief of the United States at 12. 266, (1939). 341, 84 L.Ed. 307 60 S.Ct. 11. 371 U.S. 471, 407, 9 L.Ed.2d 83 S.Ct. 441 392, at 183. U.S. at 40 S.Ct. 7. 251 (1963). 266, 338, L.Ed. 307 S.Ct. 84 308 U.S. 60 8. 12. Id. 488, 417, quoting Maguire, at 83 S.Ct. at (1939). (1959) added). (emphasis Evidence of Guilt 221 341, 9. Id. at 268. at 60 S.Ct.

982 applying taint.”13 ders inadmissible as primary poisonous fruit of the

purge the evi- physical tree the live doctrine testimony of a witness whose the attenuation confessions, words, in other dence identity was learned as the result of an focus, respectively, on di- seemed to Court illegal search.17 The lower generally courts and on voluntariness. rectness of causation testimony inadmissible, have held such sub- Wong ject attenuation doctrine of on the voluntariness descanted Court Sun.18 In gauging attenuation, in Brown v. Illi- have attenuation requisite to usually Wong nois,14 Sun involved employed a con- same tests used which like illegal an .The following arrest. Court to gauge fession attenuation in the whether a question physical said that сase evidence and “[t]he confessions. free will product of a Sun, confession is the Wong Drawing upon a example, Wong must be answered all Sun under number of courts have concluded that case;”15 listed as of each the facts “crucial test” is whether the witness’ testi- time elapsed relevance the special factors of mony “exploitation” constitutes of the arrest, and the between the confession original illegality.19 In answering circumstances, intervening presence of question, most courts have priori hazarded a police flagrancy of misconduct.16 assessments of the “directness” of the caus- al linking testimony Court to chain require primal These cases did exclusionary rule ren- wrong.20 consider whether The courts have considered both omitted, 486, (footnote problems at S.Ct. 416 and varied 13. Id. at 83 that arise when the trial added). Toy emphasis had Defendant made of a witness other than the accused incriminating challenged evidentiary product fol- in his bedroom is statements as ‘the police lowing poisoned ”) Ruffin, (quoting 6 m. raid. “Under such a. tree’ Out on circumstances,” Court, said the “it is unreason- Limb Tree: The Poisonous Tainted Wit- Toy’s response ness, 32, was sufficient- (1967)). able to infer that 15 44 U.C.L.A.L.Rev. ly purge primary will to taint an act of free invasion.” Defendant of the unlawful Id. g., Ceccolini, 18. E. United States 542 F.2d Wong incriminating Sun had made statements 136, (2d rev’d, 1976), 268, 142 Cir. 435 U.S. 98 after he “had been released station 1054, (1978); 55 S.Ct. L.Ed.2d 268 United recognizance . and had on his own . . Guana-Sanchez, 590, States v. 484 F.2d 592 voluntarily days several later” con- returned (7th 1973), improvident Cir. cert. dismissed as evidence, the Court had that “the fess. On this ly 513, granted, 1344, 420 U.S. 95 S.Ct. 43 [illegal] and the connection between arrest (1975); Marder, 361 L.Ed.2d United States v. as to dis- statement had ‘become so attenuated 1192, (5th 1973) (“This 474 F.2d 1195 Cir. cir ” 491, 419, sipate Id. at 83 S.Ct. at the taint.’ general cuit identity followed the rule that if the Nardone, 341, quoting 308 S.Ct. 266. U.S. at 60 government of a witness and his rela tionship to the defendant are revealed because 2254, 590, 95 S.Ct. 45 L.Ed.2d 416 14. 422 U.S. illegal seizure, of an search and (1975). excluded”) (citing of such witness cases); must States, 603, Smith and Anderson v. United 15. Id. at 95 S.Ct. 2261. 160, 162, U.S.App.D.C. 545, 120 344 F.2d 547 603-04, 16. Id. at 95 S.Ct. 2254. Fifth Amend- (1965). voluntariness, Court, merely said the ment 604, requirement.” 95 “threshold Id. at S.Ct. Beasley, 60, 19. United States v. 485 F.2d 64 (10th denied, 1973), 941, Cir. cert. 416 U.S. 94 1946, (1974). S.Ct. 40 L.Ed.2d 292 See United question not consider this 17. The Court did Hoffman, 501, States v. 385 504 F.2d Ceccolini, 268, U.S. until United States 435 1967), denied, 1031, cert. 390 U.S. 88 S.Ct. (1978). L.Ed.2d See Unit- 55 268 (1968); 20 L.Ed.2d 288 Smith and Ander Brignoni-Ponce, 876 ed States v. States, U.S.App.D.C. son v. United 120 2574, 2577, n.2, L.Ed.2d (1965); 344 F.2d Edwards v. Unit (“There may question vol- be room whether States, 383, 385, U.S.App.D.C. ed 330 F.2d untary testimony of a witness at trial . . . subject suppression of an as the fruit illegal But seizure. . since search or g., Karanthos, petition question United States v. not raised in the E. (2d Cir.), certiorari, it.”); not address Harrison v. we do n.9, States, (1976) (“close con (1968) (“We between nection” search and live-wit Estelle, complex testimony). Compare, case to ness Parker no occasion in this canvass the v.

983 necessary that is to determine and each that has of time amount elapsed21 great part particular “how mani- case have inter- events that of numbеr human personality’ festation of ‘individual express wont to have been and vened,22 the testi- played receipt in the ultimate metaphor: geographical in a analysis their Indications mony in question.”25 if the road from required is exclusion testimony sufficiently voluntary witness’ witness, long, is however illegality to changed include evidence that the witness “uninterrupted” and but is “winding,” mind about witness his testifying,26 “straight.”23 voluntarily would have come forward re- analyses courts’ in the Equally prominent illegal gardless of his identification drawn from inquiry, likewise been the uncertainty existed as to the search,27 Sun, testimony of the Wong whether of the witness’ and content testimony,28 “sufficiently an act of free live witness testimony given was not in re- In con- purge primary sponse pressure prosecutor to from the or will taint.”24 cases, In all these the courts this Court has said inquiry, ducting police.29 denied, 3221, (1976) (testimony 625, (5th 1974), cert. S.Ct. 49 L.Ed.2d 1217 630 Cir. 498 F.2d 1951, 963, subject 44 L.Ed.2d 450 inadmissible where witnesses were 95 S.Ct. U.S. 421 testimony “leverage”); (live-witness (1975) admissible un Government United States v. search) directly” illegal Crouch, 625, “clearly (7th Cir.), 528 F.2d 629-30 cert. tied less States, 48, denied, 900, 266, 51 United 382 F.2d Williams v. 429 U.S. 97 50 L.Ed.2d S.Ct. testimony 1967) (live-witness (5th (1976) inadmis (testimony Cir. 184 admissible where wit search) illegal product” voluntary divulge “indirect sible if ness “made a choice to . 848, (2d Tane, F.2d 853 v. 329 information”); Beasley, United States United States v. 485 testimony (live-witness 1964) inadmissible 60, denied, (10th 1973), Cir. cert. 416 F.2d 64 Cir. indirectly” “directly illegal information led 1946, if 941, (1974) 40 U.S. 94 S.Ct. L.Ed.2d 292 witness). discovery of (testimony “high admissible where there was degree probability that exercised [witness] 60, Beasley, g., 485 F.2d United States v. E. 21. Hoffman, volition”); her own United States v. 941, denied, 1973), (10th cert. 416 U.S. Cir. 1946, 64 501, 1967), denied, (7th Cir. cert. 385 F.2d 504 (1974) (lapse 292 40 L.Ed.2d 1031, 1424, 390 U.S. 88 20 L.Ed.2d 288 S.Ct. days illegal event and witness’ between three (1968) (testimony admissible where witness attenuation); testify Brown causes decision “voluntary plead guilty” made decision to 134, States, U.S.App.D.C. 126 v. United 138 Tane, testify prosecution); United States v. , 915, denied, 310, 314, 388 U.S. 87 cert. 375 F.2d 848, (2d 1964) (testimony 329 F.2d 853 Cir. 2133, (1967) (lapse 13 1359 18 L.Ed.2d S.Ct. unwilling to inadmissible where witness was illegal tes event and witness’ months between testify until informed that had informa attenuation). timony causes illegal gained wiretap). tion from 813, Evans, g., 454 F.2d States v. 22. E. United States, U.S.App. denied, 969, 25. McLindon v. United 117 Cir.), (8th 92 cert. 406 818 283, 286, 238, (1964). 329 F.2d 241 n.2 2423, (1972); D.C. Brown v. 32 L.Ed.2d 668 S.Ct. 134, 138, States, U.S.App.D.C. 375 126 United denied, 915, 310, 314, Marder, 1192, 388 U.S. 87 cert. F.2d 26. See United States v. 474 F.2d 2133, (1967). States, 1359 (5th 1973); 1196 Cir. Edwards v. United 849, 383, 385, 386, U.S.App.D.C. 117 330 F.2d Ceccolini, g., 542 F.2d States v. 23. E. States, (1964); 851-52 McLindon v. United 117 268, rev’d, 136, (2d 1976), 435 U.S. 98 142 Cir. 283, 286, 238, U.S.App.D.C. 329 F.2d 241 n.2 (road from 55 L.Ed.2d 268 (1964). testimony search to witness’ unconstitutional uninterrupted”); straight Williams “is both Marder, 474 F.2d 27. See United States 1967) States, (5th Cir. 382 F.2d v. United 1973); McLindon v. United (“road to the States, 283, 286, U.S.App.D.C. 329 F.2d long, although little was not a wind- . 241 n.2 one”); ing v. United Smith and Anderson States, U.S.App.D.C. ‍‌​‌‌​‌‌‌‌​‌‌‌‌‌‌‌‌‌‌‌​​‌​‌​‌​​‌‌‌​‌​​‌‌‌​​‌​‌​​‌‍344 F.2d Id. 1965), quoting (D.C.Cir. United States 1964) (“The Tane, (2d Cir. Karanthos, Compare United States v. [illegal source] road from denied, (2d Cir.), F.2d cert. long, straight”). but it is (1976) (testimo Karanthos, ny agreed where to tes g., F.2d inadmissible witnesses United States v. 24. E. tify promise non-prosecution) and Unit- (2d Cir.), after 984 of a duced an agreed

have attenuation taint incoherent body intractable affecting testimony must be live-witness utility law. Whatever of the multi-fac- hoc basis, determined on an ad after consid- analysis gauging tor attenuation of each eration of all the case.30 facts taint physical cases of evidence or confes- sions, is analysis based on principles anаlysis If this multi-factor is traditional which, in the case of live-witness testimony, reveals, I applied to the facts are logical of dubious relevance. The attaching to the tradi- any believe that taint testi- Massa, Jr., analysis tional mony has been atten- is bereft of intellectual rigor, of Thomas This result follows whether one fo- for it part uated. consists for the most of bandying of the link be- cuses on the indirectness conclusory terms do no more than ex- testimony and the primal tween that ille- press the result a court desires to reach. gality,31 on volitional factors analysis, The traditional not surprisingly, what operated to determine Massa’s testi- plethora led to a of inconsistent deci- mony would be.32 sions, only among circuits, but with- in the I same circuit.33 believe that experience our Having pondered as re- traditional analysis should be however, I have abandoned precedents, vealed in these replaced a balancing analysis approach traditional concluded that founded longer. directly employed exclusionary should be This fact- rule poli- cies: oriented, approach, proper which case-by-case question is is whether majority today, has deterrence perpetuated by pro- benefits of excluding live-wit- Tane, 848, 954, (2d 1632, (1964), ed States v. F.2d 853 Cir. 84 Judge 329 S.Ct. 12 L.Ed.2d 498 1964) (testimony Burger propounded where per inadmissible witness what amounted to a se only police agreed testify after revealed rule of attenuation in live-witness cases. See gained 3, 4, knowledge illegal tap) 881, 882; from 6, of facts id. at 324 F.2d id. at 324 States, U.S.App.D.C. J., with Brown v. United 126 (Bazelon, dissenting) F.2d at 884 n.6 C. 310, 315, 134, 139, denied, (“The 375 F.2d cert. 388 majority except would the oral 2133, 915, U.S. 87 18 L.Ed.2d 1359 ‘living poi witness’ doctrine, the ‘fruit of the (testimony despite strong admissible evidence ground soned tree’ on the that a wit testify promise agreed to after that witness personality’ pos ness is an ‘individual human non-prosecution). But see notes 108-09 infra. sessing will, perception, memory ‘attributes of ”); States, and volition.’ Brown v. United 126 Marder, 1192, 30. See United 474 States F.2d 139, U.S.App.D.C. 134, 310, 319, 375 F.2d cert. (5th 1973); Evans, 1196 United States v. Cir. denied, 915, 2133, 813, Cir.), denied, (8th 454 F.2d 818 cert. 406 J., (1967) (Burger, concurring) (“The 1359 crit 2423, 969, (1972); U.S. 92 aspect ical of Smith-Bowden is that live wit States, 48, Williams v. United 382 F.2d 51 ‘suppressed,’ nesses are not as inanimate ob 1967); States, Cir. U.S.App.D.C. v. United 117 McLindon jects may eyewitness willing be. anWhen 286, 329 F.2d 241 n.2 give testimony, heard.”) ... he must be (1964). however, Subsequently, panel a different pp.---of U.S.App.D.C., 191 pp. promulgated “multiple factors,” 31. See this Court case-by-case approach. See 590 F.2d infra. McLindon v. 993-994 of Unit States, U.S.App.D.C. ed 117 329 F.2d pp.---of U.S.App.D.C., pp. 32. See 191 (1964), supra; 241 n.2 cited notes 27-30 995-997 of infra. 590 F.2d States, U.S.App.D.C. Edwards v. United 117 383, 385-386, (1964) (ap 330 F.2d 851-52 33. Several commented on courts have the dis parently following McLindon). In Smith and parate judicial approaches to the exclusion of States, Anderson U.S.App.D.C. v. United testimony. g., live-witness E. United States v. (1965), panel 344 F.2d 545 a third of this Ceccolini, (2d 1976) 144 n.3 F.2d paid lip-service ap to the McLindon (Van Graafeiland, J., dissenting); United States proach, pronouncing while what amounted to a Evans, (8th Cir.), 454 F.2d cert. causality. rule of “but-for” See id. at denied, U.S. L.Ed.2d (Bazelon, J.) (live-witness F.2d at 547 C. testi mony inadmissible, despite intervention of perhaps Intra-circuit conflict most evident ” personalities,’ “several ‘human because Court, ranging in this the results from the knowledge improperly “used” obtained and present Burger views of the Chief Justice witness would not come forward “were it Judge those of former Chief Bazelon. In Smith police investigation). not for” States, U.S.App.D.C. and Bowden v. United (1963), testimony outweigh the social costs of live-witness “specious ness eases is and unneces- sary, exclusion. and can manipulated, such be whatever the facts or case, merits of the justify any decision priori deemed a desirable.” INADEQUACY III. OF THE TRADITIONAL ANALYSIS Most importantly, inquiry into a witness’ free will is of scant inquiry logical A. Volition. The most common relevance in analysis determining is whether in traditional attenuation wheth “attenuation of the taint” has testimony courts, witness’ is occurred. The “sufficiently believe, er the I purge primary unthinkingly imported act of free will to taint.” this inquiry from objection The threshold to this cases like inquiry Wong is Sun and Brown. what, Those cases impossibility determining cases, of in were confession and the any given in fact a confessions were causes witness to made the victims of illegal arrests. In testify. reaching a decision to order to testify, a ascertain wheth- er the inevitably operates witness under a confessions were the fruit complex illegali- of ty, it made sense “pressures,” internally generated inquire of some whether the (desires confessions were guilt, gain to unburden favor traceable to the lingering citizen), improper detention, effects of authority, good to be a or whether they (threats sprang from externally generated truly some of con a independent source. If the tempt, grants immunity, promises of of le confessions were sufficiently involuntary, words, in other niency). Psychological philosophical tended to show that attending concept they were the fruit poison- uncertainties of voli of the ous tree. The judicial analysis; ill fit it as a tool of situation is completely tion dif- ferent when say suppressed that a statement should be live-witness testimony is in- volved, because the insufficiently product of free will is live witness typically will not be the victim simply to state the conclusion that or arrest. If the witness’ complex testimony Government’s contribution to the is “in- voluntary,” it producing factors is will not be imper of because the ef- Indeed, primal fects of the unmanageabil illegality linger it was the missible. and con- will, strain his ity inquiries into free will that led the but because he fears prosecu- contempt tion or a Supreme case-by-case Any Court to abandon a citation. “compul- Massa, Jr., sion” on Thomas analysis evidently, in the coerced-confession cases and de- rives not prophylactic rule in the taint of the illegal embrace Miranda.34 search, judicial but from the immunity or- Preсisely concept because the of volition der. If live-witness is ever the judicial analysis, an uncertain tool is it tree, poisonous fruit of the that determina- roundly manipulated by the can be courts. tion should be made as of the moment the courts, example, have found evi- Some stand; witness takes the whether he testi- of a witness’ free will in the fact that dence order, fies because of an immunity a fear of originally testifying, he resisted but subse- prosecution, or a simple desire to tell the result, quently changed his mind —as the truth is irrelevant gauging in whether the example, prosecutorial promises attenuated, “taint” is for the “taint” exist- leniency.35 Other courts have concluded past ed the distant and never bore direct- will on the that witness lacked free basis ly upon the anyway. witness pressures of the same kind of evidence — prosecution inducements from the to testi- B. Directness of Causation. The second commentator has ob- fy.36 accordingly major One inquiry in traditional attenuation concepts that the use analysis, Sun, served of volitional likewise Wong derived from Arizona, Ruffin, 34. Miranda v. Out on a Limb of the Poisonous Tree: Witness, (1966). The Tainted 15 U.C.L.A.L.Rev. infra. 35. See notes 108-09 supra. 36. See note 29 testimony repre- long, the witness’ but whether ”40 primary straight.’ ille- Viewed from “exploitation” vantage sents an objection point hindsight, course, to this for- The threshold the road in

gality. precision. exploit” every investigation “long “To almost will is its lack of seem mula use,”38 and the simply straight” policemen, “to but for the basically part, means most — exploited the are rational investigators be said to have can skilled induc- science, accustomed, any case where tive who are illegality for all the primary majority’s contempt, explore identified the witness but not have leads in a would “straightforward” Yet the improper Reasoning search. manner. like for the consistently majority’s, refused embrace which is common in live-wit- cases,41 fruit-of-the-poison- causality nothing in ness amounts to for” more than “but 39 cases; indeed, causality “but for” “but for” causality, preclude ous-tree and would a impossible. Any finding make attenuation any would attenuation in case. a narrower give “exploitation” attempt IV. THE SUPREME COURT’S pejorative reduces it to a than “use”

sense content; BALANCING APPROACH prohib- it descriptive term with without improper use of information its the Because of these inadequacies, I believe indicating improper. what use is that traditional attenuation analysis should not be used to case-by-case ascertain on a “exploitation” by ana- Efforts to discern basis the admissibility of of the casual link live-witness testi- lyzing the “directness” mony. Yet the analysis traditional illegality is not between result,” only inapposite and impracticable; Terms like “direct no better. is also fare cause,” largely irrelevant “intervening policies cause” “proximate exclu- sionary rule analysis: judges good not advance in is intended to do serve. “The adjectives according purpose rule,” basic pick will their of the faith as Justice Powell Brown, they want to reach. in the result Assessments said “is to possible remove moti- events,” “intervening number of with vations for illegal of the arrests” and searches.42 implication that the taint becomes more In view of this purpose, any rational invoca- investigation as the becomes attenuated tion of the exclusionary rule in live-witness byzantine, provide field-day likewise a cases must more focus on the motivations of the is, judicial subjectivity. police There more- at the time of “primary illegali- over, in a rule appeal ty,” little intellectual for it is primary illegality that or excludes in a which admits meant to be deterred. Traditional attenua- according nearly however, criminal trial to how a tion analysis, focuses not on the police investigation plot resembles the of a police motivations of the at the time of the cops-and-robbers arrest, movie. search or but on the events intervening after original misconduct subject, majority’s analysis of this and on the state of mind of the witness at respect, point. all is a case in the end of the casual chain. majority finds no attenuation here because product “The location of Massa was not the As a logic, matter of it is hard to see how improbable, unforeseeable application of an coinci- of a designed rule to control work, good police police It was but a dence. behavior can be determined straightforward exploration analysis of the leads in exclusively concerns itself . Pharmacy police file. ‘The road with behavior and witness motiva- Dictionary Maj. op. Collegiate 40. U.S.App.D.C., 38. See Webster’s New at - of at 961 F.2d, (1973). quoting Tane, of 590 United States v. (2d 1964). F.2d Illinois, 39. See Brown v. (1975); Wong supra. Sun v. 45 L.Ed.2d See note States, 471, 487-88, J„ (Powell, 42. 422 U.S. at 95 S.Ct. at 2265 concurring part). more after the fact43 ap- A rational clusionary rule personal is not “a tions constitu- directly on the tional right which concentrates of the proach, party but a aggrieved,”46 exclusionary rule underlying judicially-created remedy designed policies “to com- police pel respect on the motivations for the constitutional guaranty time, consistently in the only has been followed effectively critical available way by— removing its recent Supreme Court cases. disregard incentive to it.”47 cases, “Despite has established In these the Court its broad deterrent purpose,” however, ‘prime pur- “the beyond peradventure exclusionary “the rule has never rule, if [exclusionary] interpreted not the been pose’ proscribe the use of one, illegally unlawful ‘is to deter future seized sole evidence all proceedings ”44 refusing against to admit evi- or “By all conduct.’ The Supreme persons.”48 conduct, of such Court has gained as result consistently recognized dence that “the particular in those hope exclusionary courts to instill rule imposes substantial cost officers, investigating in their future the societal interest law enforcement degree counterparts, greater care to- its proscription what concededly is rights of an accused.” The ex- relevant Application ward evidence.”49 Guana-Sanchez, quiry See United States v. into whether exclusion would serve a 590, 1973), purpose,” 594 cert. dismissed as F.2d n.35, deterrent 428 U.S. at 458-59 96 513, improvidentiy granted, 3034; U.S. 95 420 S.Ct. Rehnquist S.Ct. at and Justice noted in 1344, (Pell, J., dissent Michigan 43 L.Ed.2d 361 “judicial integrity” v. Tucker the that ing): really rationale “is an assimilation of the more difficulty specific conceptual deterrence, in I have some deter- rationales” such as “and mining exclusionary designed provide rule how an to does not in indepen- their absence an applied police excluding can be on challenged control case-by-case behavior dent basis for evidence.” n.25, Anderson [and basis as Smith v. 417 U.S. at 450 94 S.Ct. at 2367. Concern States, supra judicial sum, United 33 integrity, cited in note would ] “has limited police that justification have us do. I am certain officers force as a for the exclusion of difficulty greater highly probative would have an even termining in de- Stone, evidence.” 428 U.S. at possible 485, witness’s testi- whether a (footnote omitted). 96 S.Ct. at 3048 illegality. mony was attenuated from Michigan Tucker, 433, 447, 45. v. 417 U.S. 94 Janis, 433, 446, United States v. 44. 96 2357, 2365, (1974). S.Ct. 41 182 L.Ed.2d 3021, 3028, (1976), quot- S.Ct. 49 L.Ed.2d 1046 Calandra, ing 347, 414 United States v. U.S. Calandra, 338, 348, 46. United States v. 414 (1974). U.S. 561 94 S.Ct. 38 L.Ed.2d Ac- 613, 620, 94 (1974) (foot- S.Ct. cord, 465, 486, 38 561 Powell, L.Ed.2d U.S. Stone v. 428 96 omitted). note 3037, 3048, (1976) (“The 1067 S.Ct. 49 L.Ed.2d justification exclusionary primary the rule 620, quoting 47. Id. police 94 S.Ct. at . . . is the of conduct Elkins v. deterrence States, rights.”) (cit-, United 364 80 that U.S. S.Ct. violates Fourth Amendment (1960). cases). occasionally ing tioned, 1669 Whether the The Court has men- exclusion- ary only effectively rule is indeed “the as an for the available alternative rationale exclu- way” rule, sionary judicial imperative integri- to deal with unconstitutional “the of searches seizures, course, Peltier, ty.” g., and has become a E. v. 422 matter United States 531, 536-39, recently considerable doubt. The Court acknowledged 45 95 S.Ct. L.Ed.2d 374 has States, (1975); deterrent the effect of Elkins v. the exclusionary hypothe- rule is more assumed 80 S.Ct. In decisions, however, sis than a demonstrable fact. See Court’s more recent the Stone v. the Powell, n.32, 3037; “judicial integrity” 428 U.S. at & 96 S.Ct. rationale been almost Janis, n.22, completely logical United States v. 428 U.S. at to its 450-52 discarded. Taken ex- 3021; tension, Calandra, pointed Stone, United States v. out in Justice Powell n.5, “judicial U.S. at integrity” 613. would dictate the rationale reversal of the well-established doc- Court’s standing object Id. at to at 620. See trines illegally-seized admission of Stone v. Powell, 486-87, evidence, impeachment use U.S. at evidence, admissibility of such such evi- Janis, objection by 448-49, dence absent defendant. See 428 49. United States v. U.S. at (citing cases). Accord, Michigan Tucker, U.S. at 96 S.Ct. 3037 Jus- S.Ct. at 3029. v. pointed in Janis 417 U.S. at tice Blackmun out the 94 S.Ct. 2357. The Court “judicial recognized integrity” inquiry imposed by in Fourth Amend- costs soсietal essentially exclusionary early ment cases “is the same as the in- rule as as Nardone: When the rule’s deter ciously served.”54 truthfinding process “deflects rule applied “significantly aug rent effect would not be and “if guilty,”50 often frees the “additional marginal have mented” de . . well indiscriminately . provides outweigh terrence” “does not generating disre- . effect of it;56 when extending” the cost to society administration law and spect exclusionary rule . explained “imposition of the Justice Powell As justice.”51 significant, must less particular unlikely provide cases is Stone, disparity “[t]he ”57 deterrence; substantial, when additional error committed between effect” is “uncer guilty its “incremental deterrent windfall afforded and the officer and is outweighed by rule is con- tain at best”58 by application defendant applicat costs” of its “substantial societal proportionality idea of trary to the ion,59 consistently has held that justice.” concept essential apply. the rule does not of the deterrence benefits Cognizant both considering In whether invoking exclusionary the exclu costs of the social rule, therefore, in its rule should be extended cases of live-wit the Court sionary believe, balancing ap testimony, appropriate, ness it is I adopted a cases has recent employ balancing approach the same the Court has approach, proach. Under Court used to consider exten weighing utility “by proceeded Calandra, Michigan the costs of ex sions of the rule exclusionary against rule Tucker, Janis, In given class of Fourth and Stone Powell.60 tending it” to a deed, claims,53 specifically and has restricted Stone Court accommo Amendment doc-, where its dated the “attenuation of the taint” “to those areas application rule’s balancing approach most effica trine to the it em- objectives thought are remedial Any adopted of evidence 60. Several circuit courts have claim for the exclusion a bal prosecutions ancing approach logically relevant in criminal in live-witness cases. justified States, heavily handicapped. It must be Smith and Bowden v. United 117 U.S. expressed 1, over-riding public policy App.D.C. (1963), denied, in the an 324 F.2d 879 954, 1632, or the law of the land. Constitution 377 U.S. 84 S.Ct. 12 L.Ed.2d 498 266, 267, (1964), (now Judge Justice) 60 S.Ct. 84 L.Ed. Burger Chief fo-' unique on cused the nature of live-witness tes timony general and concluded that in there was 490, Powell, 428 U.S. at 50. Stone v. 96 S.Ct. excluding testimony “no rational basis” for the 3050. eyewitness of an to a crime. See note 33 su pra. Judge balancing approach Clark used a 491, (footnote omit- 96 S.Ct. at 3051 51. Id. 625, (5th Parker v. Estelle. See 498 F.2d ted). 963, 1974), cert. Cir. 95 S.Ct. 1951, (1975) (“[W]e 44 L.Ed.2d 450 do not 490, (footnote at 3050 omit- Id. at 96 S.Ct. 52. purpose think it would serve the deterrent of ted). exclusionary deny rule to to [defendant’s] merely confession, trial not at 3050. the unlawful but 53. Id. at 96 S.Ct. testimony third-party also truthful from wit [a 486-87, citing Pell, ness]”). Judge United dissenting 96 S.Ct. at 54. Id. at in United States Calandra, Guana-Sanchez, 414 U.S. at States v. did the See samе. 484 F.2d (7th 1973), 613. Cir. cert. dismissed as improvidently granted, 95 S.Ct. Tucker, Michigan v. 417 U.S. at 94 S.Ct. 55. (1975) (“[T]he rationale of 2357. exclusionary rule does not call point excluding for its extension to the of alto Janis, 453-54, 428 U.S. at United States v. 56. gether competent witness”). an otherwise Cf. 96 S.Ct. at 3032. Paepke, United States v. 388-91 1977) (balancing deterrence benefits Id. at 96 S.Ct. at 3034. 57. exclusionary against injury of rule risk of system concluding tax-collection that ex Calandra, United States v. 414 U.S. at 58. clusionary prohibit illegally rule does not use of 613. prosecution seized evidence criminal for tax search) (citing fraud committed after Scios Powell, 428 U.S. at Stone v. panel opinion). Brown, moreover, officer an Concurring incentive ployed.61 to conduct an ille- Wong gal emphasized depends, first, Powell that “the expectation Justice on his inquiry always should that the search will uncover Sun useful evidence [attenuation] second, and, purpose of with the deterrent his assessment of conducted the likeli- exclusionary rule in fo- what sharply might hood that he discover could be cus,” and stated that notion of learned in other ways. In both respects, ‍‌​‌‌​‌‌‌‌​‌‌‌‌‌‌‌‌‌‌‌​​‌​‌​‌​​‌‌‌​‌​​‌‌‌​​‌​‌​​‌‍“[t]he ‘dissipation attempts testimony the taint’ to mark the trial of of witnesses differs im- detrimental conse- from point portantly physical at which the evidence. so illegal police action become quences First, owing to the nature of testimonial that the deterrent effect of attenuated evidence, the discovery potential of a wit- exclusionary longer justifies rule its likely ness’ name is much less than the cost.”63 discovery tangible objects to eventuate evidence useful at trial. This is so be- V. THE BALANCING APPROACH tangible cause evidence generally “speaks APPLIED TO LIVE-WITNESS itself,” whereas, Judge (now for Chief TESTIMONY Justice) Burger said in & Smith Bowden v. balancing Applying Court’s States,64 question to this is wheth- approach living witness is an individual hu- [T]he extending deterrence er the benefits personality man will, whose attributes of exclusionary testimony rule live-witness perception, memory and volition interact deflecting justify social costs determine what he give. will truthfinding process of the criminal trial. uniqueness process of this human is a analysis to this Crucial cost/benefit distinguishes evidentiary character of cognitive appreciation careful from witness the relative immutability distinguish volitional factors that live-wit- of inanimate evidence. As physical ness evidence. officers, example, Police reasonably above, argued cognitive these I have could expect if their search uncovers ex factors are relevant to an volitional heroin, (but that evidence exclusion- whether, facts determination of on the post ary rule) could effectively against be used particular case, the casual chain stem- target But they search. if dis- “indi- ming original from the misconduct is cover name might of someone who highly they But are relevant to rect.” information, still relevant face a long whether, gen- ex ante determination as a list of uncеrtainties before that name is rule, likely eral are to be deterred translated into useful testimony. trial by misconduct the exclusion of third- include, These but are not limited to: balance, party testimony. On I believe that individual; whether can locate the testimony exclusion of live-witness information; whether he will have useful provide will general significantly less deter- information; will divulge whether he impose significantly greater rence and will whether he will remain testify available to social costs than the exclusion of other trial; whether, at the of time if he is un- evidentiary of fruits. types willing testify, prosecutor to will be Any grant Deterrence willing immunity; A. Benefits. estimate to him and wheth- er, excluding the deterrence benefits of live- if these of all uncertainties are favorably resolved, testimony focus on the moti- the jury witness must will'find him a credible prior To police “primal vations witness. these uncertainties must be illegality.” police experienced The extent to which a added the police awareness of n.26, U.S.App.D.C. See 3037. 61. 428 U.S. at 489 96 S.Ct. 64. 117 881- 3 — (1963), J., (Powell, (footnotes 422 U.S. at S.Ct. at 2266 omit concurring part). ted). Id. at at 2264. of- unlawful that witnesses nesses means than to search prosecutors officers “get types involved” in a for other of evidence unlawful are reluctant ten informa- by disclosing means. prosecution criminal because of testifying, either or

tion Although exclusion of live-witness testi- entailed, animus general inconvenience undeniably provide would some mony “addi- officers, the un- law enforcement against deterrence,”66 conclude, I marginal tional hostile exposure to prospect pleasant above, given the reasons that the “incre- examination, retaliation. the risk of cross effect ... mental deterrent is uncer- that, ordinary in the short, unlikely it is police In most tain at best.” instances wit- finding a useful possibility of misconduct, exclusionary rule will man- incentives police significantly ness adds evidence, suppression tangible date search, or, converse- conduct an unlawful both; confessions, or the rule’s deterrent testimo- such a witness’ exclusion of ly, that rarely “significantly will be aug- effect augment the exist- significantly ny would third-party mented”68 exclusion of exclusion of by the provided deterrence ing witness well. testimony as its fruits.65 evidence and types of other B. Whatever “incremental Social Costs. Second, of testimoni- owing to the nature deterrent effect” exclusion of live-witness evidence, always significantly it is almost al testimony provide outweighed by would is can or will be that a witness likely more the substantial social costs such exclusion course of investi- in the normal discovered impose. would Court has of- comparably probative than that gation impact ten stressed the deleterious can or will be tangible evidence item of probative society’s exclusion of evidence on witness, tangible unlike evi- A discovered. ability to enforce the law.69 In the case of make himself dence, capacity impact espe- live-witness known, greater police expecta- and the cially Tangible severe. evidence and verbal exists, witness the more that a useful tion confessions, themselves, speak which will come forward. Iden- it is that he likely Exclusion, scope. though have a finite crit- moreover, witnesses, a nor- tification of cases, ical to the outcome of some thus has wit- subject any investigation, and mal relatively impact limited in some evidence, nesses, can be tangible unlike may be “proportionate” sense deemed interviewed without the ne- sought out and wrong.70 the official To disable a witness illegal. As a legal or cessity of a search — and all he know rule, therefore, sig- about a defendant’s police general activities, prior though wit- even incentive to search for criminal nificantly less extraordinary possesses independently any types illegal police cases 65. There are two testimony is exclusion of a witness’ conduct. in which necessary police The first to deter misconduct. engage in unlawful acts for is where the Janis, 66. United States v. 428 U.S. at discovering potentially specific purpose of S.Ct. 3021. U.S.App. p. - of See useful witnesses. D.C., p. 590 F.2d infra. The second is 991 of Calandra, 67. United States v. 414 U.S. at (e. g., the testi the witness’ where 94 S.Ct. at 621. participated mony police who in an a officer of illegally search) illegal seized evi describes Tucker, 448, Michigan 68. 417 U.S. at 94 S.Ct. fruits. The inadmissible dence or otherwise 2357. obviously principle be emas would deterrence willing prosecution a could use culated if the pp.--- of U.S.App.D.C., pp. 69. See 191 evidence, and under describe tainted witness to supra. 987-988 of 590 F.2d exclusionary such tes rule doctrine established My analysis timony and con inadmissible. is Stone, impor- 70. Justice ordinary Powell stressed the cases of confined to the clusions are by played proportionality tant testimony types role in criminal cases with of live-witness —the justice. 29, opinions See 428 U.S. at 490-91 & n. 96 cited above court which the circuit - 3037, quoted p. U.S.App. uniformly which the at of 191 concerned —in S.Ct. have been D.C., p. supra. knowledge testimony 988 of 590 F.2d he derives from witness’

991 knowledge pos- identity and the he cremental deterrent effect witness’ that invocation totally pur- exclusionary produce. unrelated both to the rule sesses are would analysis This pose might of the search and the evidence discov- cost/benefit well come search, differently out if the usually impose would were shown by ered unlawfully have acted for the proportion specific pur- of cost far out infraction pose discovering of potentially deter.71 useful wit- that exclusion meant to nesses.75 Since there is no suggestion of excluding The social costs of live-witness case, such police motivation in this I con- moreover, in a testimony, appear particular- the general applies, clude that rule and that form, ly mitigated by stark for are less Massa, Jr., Thomas should testify. countervailing social benefits vindicat- ing privacy defendants’ interests. Individu- course,

als, recog- have a constitutionally of VI. per- expectation privacy nized of in their 1978, On 21 shortly March before our en sons, houses, and effects. introduction banc opinions herein scheduled to is will illegally frequently of seized evidence sue, Court handed down its privacy.72 entail a renewed invasion their decision United States v. Ceccolini.76 Individuals, however, ordinarily no have Writing for the Justice recognized privacy interest information Rehnquist held that the of a live them by possessed disclosed to or otherwise should not suppressed witness have been as party’s by parties.73 third A third testimo- tree, of the poisonous fruit notwith trial, therefore, ny rarely at will trench standing that her testimony was the indi interests, upon privacy the defendant’s illegal rect product of an search. This hold all since if it is admissible at ing predicated Court’s conclu will concern matters known to the witness exclusionary sion that “the rule should be any wholly independently inva- greater invoked with much reluctance sion.74 where the claim is based on a causal rela reasons, so- these I believe that tionship For between a constitutional violation excluding cial costs of live-witness testimo- and the discovery of a live witness than ny outweigh will in- invariably almost when a similar claim is support advanced to course, law, path (1973) (taxpayer 71. The has headed 548 L.Ed.2d Fourth unerringly toward unrestricted admission of Fifth Amendment interest financial records testimony. Evi- relevant See McCormick’s accountant); surrendered United States v. (2d 1972): Cleary E. dence 150 ed. White, 745, § 401 U.S. 28 L.Ed.2d disqualify (1971) (defendant The rules which who witnesses has no Fourth Amend- knowledge facts and relevant mental ment interest in statements overheard in- capacity convey knowledge seri- are sound”). who former “wired ous obstructions to the ascertainment century legal truth. For the course of evo- Testimony concerning 74. matters known sweeping lution has been in the direction of illegal police activity, witness virtue of such away these obstructions. testimony describing objects seized, illegally States, U.S.App.D.C. See Brown v. United supra. is inadmissible. See note 65 denied, cert. probably 75. a case is Such illustrated J., (Burger, concurring), quoted in su note 33 Karanthos, (2d Cir.), States v. F.2d pra. 49 L.Ed.2d principle, example, It on this supporting An affidavit (1976), regulating U.S.C. 2510-2520 elec- §§ search warrant in that case revealed that feder surveillance, only prohibit tronic unauthor- specific al searched a restaurant for the interception equal- ized ly of communications but aliens, purpose discovering illegal id. 28- subsequent their disclosure. 29; sought subsequently the Government testimony against use the aliens’ the restaurant See, Miller, g., United States v. e. owner. (1976) (depos itor has no Fourth Amendment interest in bank 268, 1054, relating accounts); 76. 435 U.S. 98 L.Ed.2d S.Ct. 55 268 records his Couch ' States, 322, 611, 34 object.”77 The suрpression majority, of an inanimate Ceccolini while echoing the Justice, concerns voiced obviously strengthens our the Chief adopt- This conclusion approach. ed a narrower testimony Rejecting Wong position that the Thomas Mas- suggestion that “logical Sun’s there is no sa, Jr., suppressed should not be here. distinction physical between and verbal evi- reasoning initially we followed in our dence,” majority noted that the social en to reach this result rested banc dissent costs of excluding live-witness testimony per both on the se rationale of the Chief will generally greater, be and that the de- and on the Justice’s concurrence traditional excluding terrence benefits of it will often analysis majori- of the Ceccolini attenuation less, be than in the case of tangible evi- original, panel opinion unanimous ty. Our Yet dence.81 while the majority agreed only analysis rested on the latter. Our that a balancing of these costs and benefits attenuation of the producing factors play “must a factor in the attenuation anal- here, Ceccolini, they produced taint it in ysis,” it declined to hold that this balanc- portion has been removed from the earlier ing process yielded per se rule that live- opinion and rewritten to take the testimony general witness is in admissible. position latest into Court’s Rather than abandon “traditional attenua- account. But we refer to the view of first tion analysis,” majority determined to the Chief Justice. accommodate it to “the differences between testimony In his concurrence the Chief Justice bal- live-witness and inanimate evi- 83 by .insisting dence” high society losing anced the cost to the attenuation inquiry be conducted “against rigorously. competent prospect witness “[SJince excluding cost of live-witness incrementally enhancing Fourth Amend- often will greater,” concluded, the Court values,” that, gener- ment and concluded closer, “a more direct link between the ille- al, permanent silencing “the of a witness gality and that kind of is re- high price is not worth quired.” exclusionary rule exacts.”78 The Chief Jus- accordingly per ap- tice advocated a se approach adopted proach admissibility of live-witness Ceccolini differs significantly ap- from the testimony: testimony,” concluded, “such he proach adopted Calandra, Janis, admissible,” always except perhaps “is cases, Stone v. Powell. In those the Court the most unusual circumstances.79 We be- balanced the costs and benefits of the ex- opinion, partic- lieve that the Justice’s Chief clusionary rule “once and for all” and con- ularly exposition perils attending its generally cluded that the rule should not judicial inquiries into witnesses’ voluntari- apply given in a class of cases. The Ceccoli- ness, sound, it eventually may ni majority, by contrast, directed that prove represent the best and most work- balancing should be done case-by-case' on a able solution to vexed “tainted basis, witness” within the framework of traditional problem. (albeit rigorous) more multifactor attenua- 280, 1062, 77. 275, 1059, Id. at at S.Ct. 55 L.Ed.2d at 80. 435 U.S. at at 276, 279. quoting 486, at 371 U.S. at 83 S.Ct. 407. 285, 1064-65, 78. Id. at 98 S.Ct. at 275, L.Ed.2d at 81. 1060-61, 435 U.S. at 98 S.Ct. at X, (Burger, concurring judg- 282-83 C. in the L.Ed.2d at 277-78. ment). 82. Id. at 98 S.Ct. at 55 L.Ed.2d at 79. Id. at 98 S.Ct. at L.Ed.2d at 279. suggested per 283. The Chief Justice might exception se rule admit of an where Id., 83. at 98 S.Ct. at 55 L.Ed.2d at police officers were shown to have searched for 278. specific purpose discovering witnesses. See id. at at 1064 & n. Id., 98 S.Ct. at 55 L.Ed.2d - 4; p. L.Ed.2d at 292 & n. cf. of 191 U.S. App.D.C., p. supra. 991 of 590 F.2d & note 75 analysis. Rehnquist mony.89 case, mentioned present tion Justice the nearly three arising passed from the circumstances five factors months between the search of the which to the conclusion file pointed of that case folder and the Government’s initial con- witness’ should not have tact with This surely that the Massa. is comparable These suppressed. largely period factors' been four-month in Ceccolini. In assessing temporal moreover, the three factors listed Justice overlap proximity, as finding assessing as relevant to a of atten- well as in Blackmun the attenuating second Illinois, “intervening circumstances,” Brown v. a decision that factor of uation in it is approved.85 Mindful of Justice essential to Ceccolini remember Rehnquist’s Justice that “no mathematical clear Rehnquist’s warning words: examination of our “[A]n assigned any of us weight persuades can be cases Ap- the Court of [these] mindful, too, factors,” injunction peals of his was simply wrong concluding in exclusionary rule should be in- the road that “the were uninterrupted, length its if. greater in hold, with much reluctance” was Its length, voked immaterial. we cases,86 that, we while live-witness conclude material ..”90 in specifically on the factors cited Ceccolini Second, the Court in Brown cited “the one, arguably this closer than that case presence intervening of circumstances” as a all the relevant certainly Scioson factors determining relevant factor in attenuation. has occurred to make sufficient attenuation In this following events intervened Massa’s admissible. between the FBI’s search and Massa’s testi- mony grand Two of factors mentioned Justice before (1) jury: the FBI pointing as to attenuation in Rehnquist unsuccessfully contacted the motel desk from case.87 bookkeeper; Ceccoliniare absent More clerk and (2) FBI discover- absence, however, is important than their ed a list of telephone calls made from the room; attenuating presence (3) here of the other motel phones subscribers identified, Massa; in Ceccoliniand Brown v. Illi- were including factors cited Thomas period (4) lapse nois: the substantial FBI contacted Massa’s family, and time; presence significant Massa, Jr., interven- learned that Thomas in whom circumstances; non-flagrant interested, ing available; nature (5) was not search; original degree Massa consulted his family lawyer; and his (6) the witness. volition exercised Massa went to Washington, spоke to a Attorney, U. S. and made an off-the-record First, Justice Blackmun in Brown had (7) proffer; Massa consulted Washington proximity temporal cited of the ar- “[t]he lawyer; the court entered an order rest and the confession”88 as relevant in granting immunity prosecution. Massa attenuation, assessing so Justice Rehnquist Perhaps Ceccolini adverted important the most “intervening “[substantial periods time” had elapsed last, between event” is the which establishes a close improper the witness’ testi- nexus between this case and Justice White’s 276, Id., 1060, id., 279, 1062, 85. at 98 S.Ct. at at L.Ed.2d at at 55 L.Ed.2d at 279. 277, 603, citing 422 at weight U.S. 95 S.Ct. 2254. It is unclear how much the Court meant factor, accepted to accord this latter since it 86. 435 U.S. at S.Ct. at L.Ed.2d findings ongoing of both lower courts that “the at 279. investigation inevitably would led” discovery id., question. of the witness in See improperly Some evidence seized at at 55 L.Ed.2d at 275. apparently from the file folder used Massa, questioning illegally whereas the seized questioning 88. 422 U.S. at S.Ct. at 2261. evidence not used the wit- See, ness in Ceccolini. U.S. at at 55 L.Ed.2d at 279. Neither Massa’s 89. 435 98 S.Ct. at identity relationship nor his with Scios was at 279. search, known to FBI before the whereas identity of “both the [the witness] her Id., S.Ct. at 55 L.Ed.2d at relationship respondent with the well [were] (emphasis original). investigators known in Ceccolini. See to” case, present .”95 In the the FBI In John- v. Louisiana.91 in opinion Johnson searched with the intent agents undeniably that his identification claimed appellant son finding (or weapons) relevant to the fruit of evidence excluded as be line-up should in a Scios, investigation they pur- of since rejected this their The Court illegal arrest. anof as to his the made their search incident prior portedly out to that pointed It argument. here, suggestion as a arrest. But there is no brought been before had line-up Johnson Ceccolini, of there was none that the officers to advise him his magistrate committing discovering of wit- at the searched with the intent Consequently, and set bail. rights therefore, unlikely, that nesses. It seems Johnson’s detention was line-up, of time the en- commitment, Massa’s would authority suppression of of the under already flowing from ex- hance the deterrence by was conducted not line-up the and “ tangible the evidence and challenged ‘by but the exclusion of the arrest ploitation of to be its fruits. sufficiently distinguishable means ”92 Similarly, primary of taint.’ purged the greater importance Of even in this jury grand the testified before when Massa Brown, non-flagrant the nature of given is immunity, testify- grant a he was under of pur “The original search. deterrent the immunity authority the ing under the of rule,” exclusionary Justice pose of signed judge. the district His papers by Michigan Tucker, in v. Rehnquist wrote exploitation thus not an was “necessarily have assumes product search but the willful, very in or at least engaged order, “sufficiently dis- immunity a means negligent, deprived which conduct has purged primary tinguishable to right.”96 “In cases in defendant of some of Johnson to this taint.” The relevance premise lacking,” this underlying which beyond peradventure case established Brown, concurring Justice Powell wrote in citing presence In “the Brown Illinois. “the deterrence rationale the exclusion as one factor intervening circumstances” obtain, ary rule and does not is] [there attenuation, finding of Brown relevant to justification for legitimate depriving the cited Johnson93 and evi probative of reliable prosecution 97 factor, agents as The behavior of the FBI third described in Brown of dence.” A attenuation, hardly egregious. case When gauging in this was particular relevance Scios, they seized a file folder they the official arrested purpose flagrancy is “the and few feet Ceccolini,similarly, of a credenza a top misconduct.” him. that the application undisputed of the ex- behind It seems Court concluded “grabbing folder within the dis clusionary slightest not file was rule “could no evi- there was tance” defined deterrent effect” because spatial limit made the Chimel California98 officer suggest dence valid finding search incident arrest. intent of search “with the [useful] prop been ., any perfectly search would thus have much less tangible evidence er, fortuity were it for the shop suggestion that he entered happened standing will- to be between finding the intent of searched with folder, surely, knowledgeable witness. Scios the credenza. ing 280, 1062, 1620, at 98 S.Ct. 55 L.Ed.2d 95. at 32 L.Ed.2d 91. 406 U.S. (1972). at 279. quoting Wong S.Ct. at 2365. at 96. at Id. at 92 S.Ct. 92. States, 371 U.S. Sun v. United J., (Powell, S.Ct. at 422 U.S. at concurring part). 603-04, citing 406 U.S. 92 S.Ct. 1620. 98. 395 U.S. (valid incident to limited to arrest (footnote of arres- the immediate control” area “within 95 S.Ct. at 94. 422 U.S. at tee). omitted). good factor, A officer in fourth something reasonable common in traditional analysis attenuation right Brown, central thought he had a could have faith degree is the to which verbal evidence rep- Indeed, as one admit- seize. product resents the uncoerced of the speak- ted, they could properly were unsure if majority er’s will. The in Ceccolini likewise only did the file folder and so after seize degree concluded that “the of free will ex- discussing among matter themselves.99 ercised the witness is not irrelevant evidently This what Justice Powell determining extent to which the basic Fourth a “technical” violation of the called purpose of exclusionary rule will be Amendment,100 and is in a case which invo- advanced its application,”101 and held exclusionary unlikely of rule is to cation testimony admissible part in because it any purpose deterrent whatsoever. serve demonstrably was “an act of [the witness’] argued agents’ can that Nor it be own free in way will no coerced or even only “igno- faith be good can attributed to induced official authority ..”102 testimony The at agents, obviously, case, issue in this rance of the law.” The I be- lieve, quite was clearly voluntary. The knowledge with Chi- rec- chargeable ord at reveals least four me] clear-cut acts of rule; point is that there was room volition on part: (1) Massa’s he consulted argument as to whether the Chime! rule his family, who to persuade tried him to of interdicted a search on facts this speak the prosecutor; (2) with he consulted lines, Uncertainty as to the law’s fine case. his lawyer, who say advised him to nothing surely, plague undoubtedly is a that besets grant without a of immunity; he went many law enforcement officers —a result Washington to and made an off-the-record surprising is view that not in of the tor- proffer proposed of his testimony after be- path our search-and-seizure law has tured ing grant told that a of immunity was followed. The FBI here treated imminent; (4) he retained new counsel and throughout they with con- courtesy; Scios testified under the immunity order. The search; general ducted no and before seiz- totality of these circumstances shows a re- presence file ing the folder had seeking advice, flective man pondering in propriety mind to seizure discuss consequences advance the of his action and in calm and reasoned in agents, terms. he give, would qxercising his short, very as we behaved much should like giving prosecutor free will in certain to law enforcement officers behave. Their information, finally testifying, on the egregious, behavior in sense lawyer, advice of his judicial with immuni- folder, their decision to seize the while not ty. changed Massa his mind about testify- the decision some courts would have ing, true, it is but very circumstance reached, thought- plainly not reached consistently been cited by the courts as My or in lessly point simply bad faith. evidence of voluntariness sufficient cause these circumstances the exclusionary that in attenuation.103 At court, least one other is of scant rule deterrent value —and this moreover, has cited a witness’ consultation point simple is what this and other attenua- lawyer of his evidence volition leading cases a finding tion are all about. of attenuation.104 Estelle, Tr. II 99. 30-31. 104. See Parker v. (5th 1974), Cir. Illinois, 610-11, Cf. 100. See Brown v. at J., Paepke, (Powell, part). concurring States F.2d 95 S.Ct. 2254 1977) (defendant’s lawyer consultation of re garding purges tax returns taint of 101. 435 U.S. at 98 S.Ct. at search, allowing illegally seized evidence to be L.Ed.2d 277. prosecution used in criminal for tax fraud com search) panel (citing opin mitted ion). after Scios Id. at L.Ed.2d p. U.S.App.D.C., p. 983 of 103. See - of supra. F.2d & note meaningful part any willingness argues it is more diffi majority that [his] than in Cec testify.”109 attenuation here to show

cult authority” may here because “official colini my From of these four attenu- discussion testify. Massa said to have induced be factors, it is that I do ating obvious wrong saying majority simply But fitting and Ceccolini as hand in regard Scios rendered judicial immunity order pointing glove. Several the factors simply a testimony “purely and Massa’s absent, are Rehnquist’s Justice conclusion Fifth Circuit of coercion.”105 The product convincing guise, here. present or are less (in case) pre-Ceccolini has held recently against assigning the Court cautioned Yet voluntary, testimony was а witness’ any factors it discussed “mathematical affecting it any taint had hence weight,” precisely because Ceccolini attenuated, witness testi where the become eases easy subsequent was an cannot A grant immunity.106 under of use fied expected to be within its facts. decided courts have held number indeed, Nor, expect many can we to decide will, product of free was the a witness’ live-witness attenuation cases with- of these attenuation, consequent finding where previous in the facts of decisions. com- prom a response witness testified in already of circumstances bination leniency non-prosecution.107 of or ise infinite, proved to be so much so that tes unanimously almost have found Courts of relevant Court’s enumeration Supreme “sufficiently prod timony of accessories guidelines assessing factors as in attenua- attenuation; will” to al uct of free cause case-by-case tion shows such vari- on basis state though opinions do not what in (compare ance Justice Blackmun Brown witnesses, these it promises made to Ceccolini, Rehnquist with Justice in fac- likely response in seems testified obviously being cited as in- tors relevant prosecutorial to some inducements.108 hand). spired by the case at This lends immunity undoubtedly order this case weight sponsorship to the Chief Justice’s of testify. Massa an offered inducement per se rule in all the most unusual but not him: it was But it did therefore coerce live-witness cases. But since the analysis, but one factor his cost/benefit majority has held that attenuation in the chain of volitional long one event case-by-case basis, should be examined on a produced testimony he ulti events analyzed reference to factors rele- gave. impact And mately whatever the of particular analysis in each vant thinking, immunity order in Massa’s live here, least, circumstances Massa’s at cannot be doubted that that, all persuades case me illegality words which led Scios’ “the Ceccolini’s there attenuation discovery play precedents, witness has been [did] - Marder, op. U.S.App.D.C., 1192, Maj. at 191 at 108. See United v. 474 F.2d 105. States (5th 1973); added). (emphasis States 1197 n. 6 United v. of 590 F.2d Cir. 961 Evans, 813, Cir.), denied, (8th cert. 454 F.2d 819 Houltin, 1027, 2423, States 566 F.2d 969, 106. United v. 32 L.Ed.2d 406 U.S. 92 668 S.Ct. (5th 1978) (alternate holding). Hoffman, 1031-32 Cir. (1972); 385 v. F.2d States denied, 501, (7th 1967), 390 504 Cir. cert. States, U.S.App. 126 107. See Brown United 1424, 1031, (1968); 288 88 S.Ct. 20 L.Ed.2d 134, 139, 310, 315, denied, 375 cert. D.C. F.2d States, U.S.App.D.C. v. United Edwards 915, 2133, 18 L.Ed.2d 1359 388 U.S. 383, 384, 849, (1964); 330 F.2d Smith and (strong agreed witness evidence that States, 1, U.S.App.D.C. v. United Bowden promise testify non-prosecution); Unit after denied, (1963), F.2d cert. Beasley, States v. ed 377 U.S. 1973), (1974) (“[W]hen the accessory- often there would exist of an used 109. ruling giving grounds of the testi for that the added). (emphasis at 277 L.Ed.2d accessory’s mony desire results Thus, help the exercise of himself herself. is not and it human volition intervenes product arrest.”). unlawful justification There is no any possible taint. justice The course of calls suppression. I to be heard. therefore the witness dissent. respectfully

must MARKS, Appellant,

John D.

CENTRAL INTELLIGENCE AGENCY

et al.

No. 77-1225. Appeals,

United States Court of

District of Columbia Circuit.

Argued Jan. Aug.

Decided Aug. 25,

As Amended Nov.

Mark Lynch, Washington, C., H. D. appellant. Cordes,

John F. Atty., Justice, Dept. C., Washington, D. Earl ‍‌​‌‌​‌‌‌‌​‌‌‌‌‌‌‌‌‌‌‌​​‌​‌​‌​​‌‌‌​‌​​‌‌‌​​‌​‌​​‌‍whom J. Sil bert, Atty., Babcock, U. S. Barbara Allen

Case Details

Case Name: United States v. Robert J. Scios A/K/A Robert Schwartz

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 27, 1978

Citation: 590 F.2d 956

Docket Number: 75-1619

Court Abbreviation: D.C. Cir.