Lead Opinion
On June 28, 1974, defendant Robert J. Scios was indicted for unlawful interception of wire communications and related offenses.
We have reheard the case en banc and concluded that the challenged testimony must be excluded as tainted by the illegal search.
I. FACTUAL BACKGROUND
On Sept. 29, 1972, telephone linemen came upon electronic devices attached to the telephone lines of a pharmacy in Washington, D. C., known as Your Pharmacy Service. The FBI began an investigation, which led eventually to the defendant Scios, a licensed private investigator. A warrant for his arrest was issued on Feb. 15, 1974. The prosecuting attorney concluded that there was no basis for application for a search warrant, and no search warrant was sought.
FBI agents proceeded to Scios’s residence in New York City and arrested him there. After Scios had been physically taken into custody and a gun had been removed from his desk, one of the agents looked around the room “for nothing in particular.” His attention focused upon a credenza, located three or four feet in back of defendant’s desk. On top of the credenza were about 60 file folders, in wire racks, labeled with various projects Scios had worked on in his capacity as a private investigator. Defendant’s access to the credenza was, according to FBI testimony, blocked by the presence of an FBI agent between defendant and the credenza. The trial court found that the credenza was beyond the area of defendant’s immediate control.
At this point one of the agents went to the credenza and removed a file folder labeled “Your Pharmacy Service” — the name of the pharmacy upon whose telephone lines the electronic devices had been found. The government contended that the label on this folder was in plain view of the agents. The court found as a fact to the contrary; rather, the agent had “bent over, read through the folders, and fingered them so that their labels could be read.”
The folder was found to contain various papers, including a credit card charge slip with Scios’s name on it from a motel in Washington, D. C., and an itemized bill from the same motel, indicating “Mr. Massa” had registered for the room. These items bore the date July 26, 1972, which established a likely temporal link to the period of the wiretapping. Using the motel’s record of telephone calls made from the room, the F.B.I. was able to locate in New York City the potential witness— Thomas Massa, Jr.
A subpoena was issued commanding Massa to appear before a grand jury in the District of Columbia.
On May 8,1974, the District Judge issued an order directing Massa to testify — conferring appropriate immunity. Massa was again taken before the grand jury and again refused to testify, but then reluctantly acquiesced after Judge Hart’s order was read to him. The indictment of Scios followed.
II. PROCEEDINGS IN THE DISTRICT COURT
In October, 1974, defendant Scios moved the district court to suppress as evidence the file folder and its contents, as well as all evidence derived therefrom. He moved, in addition, to suppress all oral statements made by him at the time of arrest, and any evidence derived therefrom. On Dec. 10, 1974, the court granted these suppression motions. Its order was based on two alternative grounds. It ruled, first, that the affidavit in support of the warrant for Scios’s arrest had failed to establish probable cause to believe that Scios had commit-, ted a crime; consequently, the challenged evidence was suppressed as the product of an illegal arrest. The court then assumed, arguendo, that the arrest had been lawful, and went on to hold that the seizure of the file folder was nevertheless illegal since the folder was not seized in a search incident to arrest as permitted under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), nor was it in plain view. Neither defendant’s motions to suppress nor the government’s responses to these motions mentioned the testimony of the witness Massa.
On April 23, 1975, long after the period for appeal of the foregoing order had elapsed, the government moved the court for a determination of whether Massa’s testimony was admissible at trial.
III. QUESTIONS PRESENTED
The district court’s December 10, 1974, order holding the seizure was illegal was not appealed. On this appeal, from the April 23, 1975, order, suppressing Massa’s testimony, the government does not contest the district court’s ruling that the seizure was a violation of the fourth amendment.
The exclusionary rule was established in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The purpose of the rule is to safeguard fourth amendment rights. United States v. Calandra, 414 U.S. 338, 347-48, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). The rule bars the introduction at trial not only of evidence seized in violation of the fourth amendment, but also of evidence obtained as an indirect result of the illegal seizure — the fruit of the poisoned tree. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); Wong Sun v. United
In certain circumstances, the attenuation doctrine has been applied where the witness who has been located as the result of an illegal search or seizure has voluntarily decided to testify. See Wong Sun v. United States, 371 U.S. at 491, 83 S.Ct. 407. The principle underlying this application of the attenuation doctrine has not been articulated with clarity. It is probably an adaptation, with adjustment, of the general legal conception that sees the link of causation broken when an intervening cause is independent.
Turning to the case before us, we examine first the claim that the taint of the illegal seizure was attenuated by a voluntary decision to testify; and next, the claim of attenuation of the taint by the complexity of intervening factors.
A. Voluntariness: In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the Court excluded the incriminating statements of defendant Toy, made shortly after his illegal arrest, while handcuffed and surrounded by federal narcotics agents. The Court said it was unreasonable to judge that his response to the police interrogation “was sufficiently an act of free will to purge the primary taint” of an illegal arrest, 371 U.S. at 486, 83 S.Ct. at 416. The statement of Wong Sun, a co-defendant, was, by contrast, deemed admissible.' Wong Sun had also been arrested without probable cause. His statement, however, was not made immediately after arrest; rather, he was released in his own recognizance and returned voluntarily several days later to make the statement. Id. at 491, 83 S.Ct. 407. The Supreme Court found that “the connection between the arrest and the statement had ‘become so attenuated as to dissipate the taint.’ . .” Id. at 491, 83 S.Ct. at 419, quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939).
It seems clear from Wong Sun that for an act of free will to operate as a dissipation of . taint, it must occur in circumstances devoid of coercion.
The principle was further developed in Smith and Bowden v. United States, 117 U.S.App.D.C. 1, 324 F.2d 879 (1963), decided shortly after Wong Sun. This court excluded a statement made by a defendant during unnecessarily long post-arrest detention, and tangible evidence taken from him at that time. But it admitted the testimony of an eyewitness to a murder who had been located as a result of a statement made by a defendant. The eyewitness initially provided no incriminating evidence. After considering the matter for a period of time, during which he “kept thinking about the dead man . .,” Record at 629, he decided to testify against defendant.- In support of the distinction thus made, Judge (now Chief Justice) Burger stressed the element of volition and other aspects of human behavior that contribute to its indeterminacy:
[A] witness is not an inanimate object which like contraband narcotics, a pistol or stolen goods, “speak for themselves.” The proffer of a living witness is not to*961 be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. The fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personalty whose attributes of will, perception, memory and volition interact to determine what testimony he will give.2 The uniqueness of this human
117 U.S.App.D.C. at 3-4 & n. 2, 324 F.2d at 881-82 & n. 2.
The concept of “reflection” as the key element of admissibility in Smith and Bow-den was emphasized in Smith and Anderson v. United States, 120 U.S.App.D.C. 160, 344 F.2d 545 (1965).
However, for purposes of this case, we need not pursue the question when or in what circumstances voluntary testimony will be admissible.
In the present case, it is plain that Massa’s giving of testimony — before the grand jury, and presumably at the trial — is purely and simply a product of coercion. Massa’s decision to testify is not a matter of choice, or free will, but made solely to avoid being jailed for contempt. His decision to testify in such circumstances can hardly be what Judge Burger had in mind in Smith and Bowden when he spoke of the “human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give.” 117 U.S.App.D.C. at 3, 324 F.2d at 881.
B. Claim of attenuation of the taint by intervening factors: The government also argues there are numerous “intervening factors”
The claim, in substance, is that there was no direct link between the file folder and Massa, because the file document that showed Massa’s name in the record of the motel room paid by defendant did not establish his identity. That only appeared when the police checked the motel’s telephone records.
We must begin with the illegal search. At the arrest for the offense of tapping the line of Your Pharmacy Service, the agent unlawfully riffled through defendant’s file folders and removed his file for Your Pharmacy Service. The agents tracked the Massa lead found in that file. They did not pursue a trail independent of the illegal search (see note 9). The location of Massa was not the product of an improbable, unforeseeable coincidence. It was good police work, but a straightforward exploration of the leads in the Pharmacy file. The fact that the exploration took some time, although a material consideration, does not of itself demonstrate that the exclusionary rule is inapplicable. “The road . may be long, but it is straight.”
******
In Ceccolini, a police officer (Biro), op duty at school crossings, was taking a break in defendant’s flower shop, when he noticed an envelope, with money sticking out, on the cash register behind the counter. He examined the contents of the envelope, found policy slips, and questioned a shop employee (Ms. Hennessey) who told him that the envelope belonged to defendant, and that he had instructed her to give it to someone. Some four months later, the FBI interviewed her at her home in the presence of her family, and said the government would appreciate any information regarding defendant’s activities that she had acquired in the shop. She told the FBI agent she was studying police science in college and would be willing to help, and she then related the events that had occurred when the police officer was at the shop- A month later she testified to the same effect before the grand jury, thus contradicting the grand jury testimony given by defendant, who was indicted for perjury.
The Supreme Court held that the testimony of employee Hennessey was admissible at defendant’s trial.
Justice Rehnqui'st, for the Court, found that the taint of the illegal search by the officer had been sufficiently attenuated to permit introduction of the testimony. The Court rejected the notion that the exclusionary rule was subject to a per se exception that rendered all live witness testimony admissible, regardless of whether obtained as a consequence of illegality.
In his summarizing paragraph Justice Rehnquist states:
Viewing this case in the light of the principles just discussed, we hold that the Court of Appeals erred in holding that the degree of attenuation was not sufficient to dissipate the connection between the illegality and the testimony. The evidence indicates overwhelmingly that the testimony given by the witness was an act of her own free will in no way coerced or even induced by official authority as a result of Biro’s discovery of the policy slips. Nor were the slips themselves used*963 in questioning Hennessey. Substantial periods of time elapsed between the time of the illegal search and the initial contact with the witness, on the one hand, and between the latter and the testimony at trial on the other. While the particular knowledge to which Hennessey testified at trial can be logically traced back to Biro’s discovery of the policy slips, both the identity of Hennessey and her relationship with the respondent was well known to those investigating the case. There is, in addition, not the slightest evidence to suggest that Biro entered the shop or picked up the envelope with the intent of finding tangible evidence bearing on an illicit gambling operation, much less any suggestion that he entered the shop and searched with the intent of finding a willing and knowledgeable witness to testify against respondent. Application of the exclusionary rule in' this situation could not have the slightest deterrent effect on the behavior of an officer such as Biro. The cost of permanently silencing Hennessey is too great for an even-handed system of law enforcement to bear in order to secure such a speculative and very likely negligible deterrent effect.
435 U.S. at 279, 98 S,Ct. at 1062.
The case at bar stands in marked contrast to Ceccolini on these critical factors: (1) In Ceccolini, Hennessey’s testimony “was an act of her own free will in no way coerced or even induced by official authority.” In contrast, Massa initially refused to consult with the authorities, and agreed to confer and to testify only in response to pressure by the prosecutor, including the threat of a contempt citation.
(2) Massa’s existence as a potential witness was entirely unknown to the authorities before they searched Scios’s files.
(3) The search of Scios’s files was to gain evidence, the FBI having come to the scene to arrest Scios for illegal wiretapping.
Excluding the fruit of that illegal search cannot be dismissed as of “negligible deterrent effect.”
* * * * # *
We conclude, in sum, that the taint of the illegal search and seizure of the folder
So ordered.
. Defendant was indicted under 18 U.S.C. § 2511(l)(a) (unlawful interception of wire communications); 18 U.S.C. § 2511(l)(c) and (d) (disclosure and use of such unlawfully intercepted communications); and 18 U.S.C. § 2512(l)(a) (interstate transportation of wire communication interception devices).
. In an opinion and order, issued Dec. 10, 1974, the district court held the search was illegal and suppressed “tangible evidence” and “oral statements” that derived from the search. The government did not appeal that order. On April 23, 1975, the government moved the district court to “elaborate” on its earlier order.
. U. S. v. Scios, No. 75-1619 (D.C. Cir. Aug. 23, 1976).
. Memorandum Opinion of District Court (filed Dec. 10, 1974), reproduced in Appellant’s Br. at 34, 53.
. Memorandum Opinion of District Court (filed Dec. 10, 1974), reproduced in Appellant’s Br. at 34, 54.
. There was some initial confusion between Thomas Massa, Sr. and Thomas Massa, Jr., both of whom resided at the New York City address to which the FBI had been led.
. In this motion the government took the position that the admissibility of Massa’s testimony had not been determined by the court’s earlier order — a view disputed by defendant.
. The position injected by Judge MacKinnon’s opinion, that there was no violation of the fourth amendment, is in our view without merit. See note 15 infra.
. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). There is no serious assertion by the government in the case before us that Massa would have been identified as a potential witness without the aid of the leads provided by the contents of the file folder.
. Where the person who made the statement is the one against whom it is sought to be used, see, e. g., Wong Sun v. United States, 371 U.S. 471, 491, 83 S.Ct. 407, 9 L.Ed.2d-441 (1963), it can be argued that, by volunteering the statement after careful consideration, he has waived his objection to the illegal search or seizure.
This is illustrated here by the circumstance that when initially located Holman [the eyewitness] gave no information adverse to appellants; only after reflection and the interaction of these faculties of human personality did Holman eventually relate to the jury the events of the night of the killing. These factors in part account for the rule allowing a party to cross-examine his own witness on a claim of surprise and ultimately to impeach his own witness. process distinguishes the evidentiary character of a witness from the relative immutability of inanimate evidence.
. Brief and Appendix for Appellant at 16.
. United States v. Alston, 311 F.Supp. 296, 299 (D.D.C.1970) (restating the holding of Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939)).
. United States v. Tane, 329 F.2d 848, 853 (2d Cir. 1964). See also United States v. Karathanos, 531 F.2d 26, 32-35 (2d Cir. 1976).
United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978), discussed more fully below, is not to the contrary. The Court there indicated, inter alia, that the period of time that has elapsed between the time of the illegal search and the discovery of a witness, or his testimony at trial, is one of several factors to be considered in determining whether the taint occasioned by the illegality has been attenuated. Id. at 279, 98 S.Ct. 1054. Here the elapsed time was, admittedly, not in
Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), cited by Judge Wilkey, is not in point. Johnson was arrested without a warrant, and detained under a magistrate’s commitment. While under detention he was identified in a lineup. He argued that the lineup identification was a forbidden fruit of an arrest that violated his fourth amendment rights. The Court held (p. 365, 92 S.Ct. p. 1626): “At the time of the lineup, the detention of the appellant was under the authority of this commitment. Consequently, the lineup was conducted not by ‘exploitation’ of the challenged arrest but ‘by means sufficiently distinguishable to be purged of the primary taint.’ ” The premise underlying Johnson is the historic doctrine that the victim of an illegal arrest cannot on that ground attack a subsequent detention or other processes of criminal justice. See Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); E. C. Fisher, Laws of Arrest (1976) §§ 181, 182. Obviously, if the victim of an illegal arrest were released, he could be rearrested and committed by a magistrate upon a finding of probable cause, and would not thereafter be immune from any criminal proceeding. A lineup identification may be compelled as a corollary of a current detention by the magistrate, which stands on ground that is independent of the arrest (valid or invalid), and may not properly be considered the fruit of the earlier (allegedly invalid) arrest. As to the present case, there is no historic rule like that which establishes the magistrate’s commitment as resting on an independent cause. The court order compelling testimony from Massa is necessarily rooted in the discovery of Massa through an illegal search.
. Accordingly, we shall not respond to the discourse in Judge Wilkey’s dissent supplying us with a discussion of the virtues of such an exception. The case reports are already too long, and our time too short, for our ruminations on an issue so recently and squarely addressed and resolved.
. Two dissenting opinions argue that the seizure of the file folder was permissible under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), or under the plain view doctrine.
Plain View Doctrine
The folder was not in plain view. Agent Swayze testified that after he had conducted a search for weapons, and after Scios had been arrested, “I started to read up the various files that were in these little wire stands.” (Swayze Tr. 18.) It had previously been testified that these were on a “counter top” (referred to by others as a credenza). “There were about 60 or 70 files in these two or three wire stands and these files were stacked one right behind the other.” (Swayze Tr. 18.) He testified that he “did not thumb through the files” and did not “leaf through them.” (Swayze Tr. 19.) He acknowledged that the particular file was not “sticking out” and that it was “somewhere in the middle of the stack of files with about “ten, fifteen ... in front of this particular file.” (Swayze Tr. 21.)
When he saw the “Your Pharmacy” file, he pulled it out and said to agent Breen, “Isn’t this the company involved in this thing?” (Swayze Tr. 21.) The trial judge summarized the testimony of Mr. Scios that Swayze “thumbed through the file folders.” The trial judge did not credit the testimony of agent Swayze that he did not finger through the files. In a memorandum opinion rejecting the applicability of the plain view doctrine, the trial judge ruled: “The court heard conflicting testimony concerning seizure of the file folder. In resolving this conflict the court concludes that the discovery of the file folder was not inadvertent; rather, the agent bent over, read through the folders, and fingered them so that their labels could be read.” (Emphasis added.)
Chimel Doctrine
In Chimel, the Court limited the area of permissible warrantless search to the area of “immediate control” of the person arrested. In formulating this rule, the Court observed that it certainly precludes the search of another room, as beyond the area of immediate control. From this, Judge MacKinnon seems to argue that Chimel blesses a warrantless search that is made within the same room. The fallacy is evident.
Judge MacKinnon also urges that the search was legitimated by the fact that Mr. Scios may have had access to the file folder at certain times prior to the search. In attempting to demonstrate such access, he purports to reconstruct facts that were not genuinely explored at trial. More importantly, such prior access, if it
The trial judge found: “In this case, even if the FBI version is believed, the defendant was seated at his desk and had been disarmed. There were three FBI agents in the room, including one who blocked defendant’s immediate control . . . The findings are incontrovertible, and they establish the inapplicability of the doctrine under which Chimel authorizes certain searches.
That it was not possible for defendant to snatch and destroy the folder appears from agent Swayze’s undisputed testimony that he was physically blocking defendant’s access. Mr. Scios, who did not know what his visitors wanted, invited them into his office “to discuss whatever it was we were there to talk about” (Swayze Tr. 11.) When Mr. Scios entered the office, he “sat down at his desk”; agent Swayze positioned himself “between the desk and the wall” facing Scios; the counter top was behind the agent, and “yes, I was physically blocking . . . Mr. Scios’ access to those files.” (Swayze Tr. 15.) Then agent Breen notified Mr. Scios of the arrest warrant and advised him of his rights; the agents searched for weapons; and agent Swayze, having established that there were no weapons in the desk drawer, turned around and saw the files. While agent Breen was explaining the arrest mechanics to Mr. Scios, agent Swayze “casually looked about the room” and “started to read up the various files that were in these little wire stands.” (Swayze Tr. 18.)
Agent Swayze’s blocking of the files was not a mere “momentary presence” at the time of seizure (Judge Robb’s phrase). It identified the relative positions of the persons during the full episode of arrest, notification of rights, and search for weapons as well as the subsequent search and seizure.
Dissenting Opinion
dissenting:
Scios, a private investigator who was known to the FBI to be a “wiretapper and bugger,” resided in Staten Island, New York. He was hired by the owners of “Your Pharmacy, Inc.” located in the District of Columbia, to discover the source of some losses the drugstore was suffering. Some time later he was arrested in New York on a warrant issued in the District of Columbia for alleged wire tapping in connection with the “Pharmacy” investigation. At the time of the arrest the possibility of obtaining a search warrant was discussed between the FBI agents and the U.S. Attorney in New York, but they decided that they were not possessed of sufficient facts to justify the issuance of such warrant.
When Scios was eventually arrested in his home, in a small office to which, at his suggestion, he led the agents (Tr. Ill, 12-13, 45-46),
I. SEARCHES AUTHORIZED BY CHIMEL
The attenuation argument presupposes that the initial search and seizure of the “Your Pharmacy” file was illegal under Chimel, a recent decision which established the permissible scope of certain searches incident to arrest. This presupposition has caused me to review Chimel and its progeny as well as the testimony in the suppression hearing in the District Court. Such inquiry has convinced me that the parties and the trial court are misreading Chimel and the “plain view” doctrine, and that the facts of this case indicate the search and seizure of the file in question conformed to the applicable principles laid down by the Supreme Court.
The controlling language of Chimel states:
When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area “within his immediate control” — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs —or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The “adherence to judicial processes” mandated by the Fourth Amendment requires no less.
395 U.S. at 762-63, 89 S.Ct. at 2040 (emphasis added, footnote omitted).
Several observations should be made from the foregoing language. First, while it does refer to searches to protect the arresting officers, it is not limited to protective or security searches. It likewise authorizes certain searches for evidence that can be concealed or destroyed. Actually, protective searches may be more expansive.
Chimel clearly recognizes the right to search for evidence. See, e. g., United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973)
Chimel authorizes a search incident to an arrest of “the area within [the arrestee’s] reach . . . .” 395 U.S. at 766, 89 S.Ct. at 2042. Elsewhere the Court describes it as
the area from which the [arrestee] might have obtained either a weapon or something that could be used as evidence against him.
395 U.S. at 768, 89 S.Ct. at 2043 (emphasis added).
There is no requirement in Chimel or any other case that the Government must prove as a prerequisite to a valid search, as the majority argues, that the presence of the accused created a “danger” that he would “snatch and destroy” the evidence or that the agent seized the evidence under threat of its immediate destruction. It is sufficient that the “evidence” was situated within an area which would permit the accused so to act if he were of a mind to do so. Cf. Maj. op. n.15. And the arm’s length search that is authorized is not strictly limited to absolutely no more than the seated or stationary reach of the person being arrested — the majority misread the record when it construes the search as being limited to that point in time during which Scios was seated or stationary. Any reasonable interpretation of Chimel would include in the permissible search area that area within which the arrestee could reach after taking one step, as most people do when they reach. As the record here indicates, “with a slight body movement” (Tr. Ill, 48).
In light of the foregoing overview of the constitutionally permissible scope of warrantless searches incident to arrest on a warrant, we turn to the relevant facts as reported at the suppression hearing. The principal facts to be extracted from the testimony there received relate to the proximity of Scios to the “Your Pharmacy Service” file during the time he was in his office, as under some of the issues raised this geographical proximity is largely dis-positive of whether or not the file was “within [Scios’] immediate control” or his “reach” and thus legitimately searched by the police. There is unequivocal evidence in the record indicating that the file was indeed within Scios’ “immediate control” and at certain times within his “reach” and it was thus clearly erroneous for the trial court to find that the search extended beyond the limits permitted by Chimel.
In this case, as a preliminary matter, it needs to be noted that there can be no legitimate question but that the file and its contents were destructible evidence. The statement by the trial court to the contrary — perhaps prompted by a confusion with contraband — is clearly erroneous. It is significant that the majority do not support the trial court on this point. This error alone is sufficient to reverse the trial court.
Also, destructible evidence need not be destructible instantaneously. The destructibility of the “Pharmacy” file is apparent from a cursory examination of its contents. The file is Government Exhibit I. An examination discloses that it is a small light brown manila folder IIV2" X 9" with a tab 3%" long that protrudes /i6ths of an inch above the top edge at the left corner. It contained papers on which were printing, writing and typing. Included was a bill of the Royal Motel in Washington, D.C. This single bill constituted a major contribution of allegedly inculpating evidence. The re
It is well settled that searches incident to an arrest can discover documents as well as other forms of evidence, United States v. Simpson, 453 F.2d 1028 (10th Cir.), cert. denied, 408 U.S. 925, 92 S.Ct. 2504, 33 L.Ed.2d 337 (1972); United States v. Kirschenblatt, 16 F.2d 202 (2d Cir. 1926), and the documents in question here, being easily destructible, were manifestly within the search authorized by Chimel, provided that they can legitimately be described as “within the area of the defendant’s immediate control,” or within his “reach,” or as having been within one of the exceptions (plain view) which the decision contemplated.
The trial court found that the files in question were not within Scios’ “immediate control,” stating:
In this case, even if the FBI version is believed, the defendant was seated at his desk and had been disarmed. There were three FBI agents in the room, including one who blocked defendant’s access to the credenza. The credenza was not within defendant’s immediate control, [5 ] the agents testified they sought no other weapons, and the agents could not have been seeking to protect destructible evidence since there was none.[6 ] .
The Court in Chimel stated:
There is no . . . justification . for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Id. [395 U.S.] at 763 [89 S.Ct. 2034],
The court concludes that a search of the credenza or through the file folders would have exceeded the permissible scope under Chimel and any evidence found in such a search would have to be suppressed.
Appellant’s Br., App. at 53 (emphasis added). This analysis proceeds from the premise that in this case the area “within defendant’s immediate control” is to be determined by what was within his “reach” solely at that moment in time when “the defendant was seated at his desk and had been disarmed,” and when “defendant’s access to the credenza” was blocked by one of the three FBI agents in the room. The statement that the agent blocked him may well be accurate, but in restricting its analysis to his permissible “reach” solely at that moment and to a limited view of the facts concerning “defendant’s access,” the court was applying an unduly restrictive reading of Chimel.
Further, review of the record reveals that the uncontradicted testimony of all parties establishes the fact, completely ignored by the defendant and the trial court, that Scios passed within less than arm’s length reach of the file folder when he entered his office and seated himself at his desk (Tr. 1,17-18). The file was then within his “immediate control” and his proximity to it at that time alone justified its seizure, e. g., United States v. Mason, 173 U.S.App.D.C. 173, 523 F.2d 1122 (1975); United States v. Patterson, 447 F.2d 424 (10th Cir. 1971), cert. denied, 404 U.S. 1064, 92 S.Ct. 748, 30 L.Ed.2d 752 (1972); United States v. Wysocki, 457 F.2d 1155 (5th Cir.), cert. denied, 409 U.S. 859, 93 S.Ct. 145, 34 L.Ed.2d 105 (1972), which followed shortly thereafter. See Maj. op. n.15.
Scios also, on his own volition, and without being commanded to or hindered from doing so, got up and moved around the room after his arrest to go to the office
It is a completely incorrect application of Chimel to deny that the file was under his “immediate control,” or “within his reach” when he walked past the credenza. That he thereafter seated himself behind the desk, with an agent between him and the credenza, does not invalidate the agent’s right to explore the files in open view on the credenza which had been within his reach on the three occasions referred to. We are not confronted here with the general exploratory search that Chimel forbids. We have specifically held that an object within three or four feet of a defendant was “within his immediate control” even when the defendant was handcuffed, United States v. Mason, supra. The distance between Scios and his files was less than that on the three occasions when he walked by the credenza and the file was just slightly beyond that when he was seated.
When the arresting officer was actually interposed between Scios and the files, it would be reasonable to conclude that Scios would not actually exercise physical control over the documents. However, if the agents were not present, the proximity of the files though slightly beyond his stationary reach when seated, was so close that it could reasonably be said that they were within the area of his immediate control. See Defendant’s Exhibits 3L and 3M. Exhibit 3L is reproduced at this point as Figure 1. (In viewing it the distortions of perspective should be compensated for.)
The “concealment or destruction” that Chimel refers to is not confined to proof that the arrestee was capable of concealing and destroying the evidence in the presence of the arresting agents. In this respect and in others the majority misapply Chimel, Maj. op. n.15. Most egregiously the majority assert the logic that “it was not possible for defendant to snatch and destroy the folder [because Agent Swayze] was physically blocking defendant’s access [to the file].” Such contention fails fully to understand the “destruction” of evidence that Chimel seeks to guard against and the application of Chimel to this case. Chimel authorizes a search of the permissible area for “a weapon or evidentiary items . in order to prevent [their] concealment or destruction.” The “destruction” so referred to is not limited to a threat of present destruction while the agents are present. It also includes future destruction.
Thus, as applied here, the fact that the agents may have been physically capable of temporarily preventing Scios from destroying the file, while all three of them were in the room, is not the sole opportunity for destruction that Chimel recognizes should be prevented. In addition Chimel intends to guard against the later destruction of the file that could easily occur if it were not seized when it was discovered. If the agents were prohibited from seizing the file when it was discovered the alternative would be to leave it in the office. Some might argue that some of the agents could stay there while others went for a search warrant, but if the business that authorized their entry was concluded and a search warrant was required before they could proceed further, strictly speaking they would have no further right to remain in the building after the arrest was made. They would thus be required to leave and find a magistrate to issue a search warrant. After they left, Scios’ partner, who could be reached by their shortwave radio (Tr. Ill, 26), or his “girlfriend” (Tr. I, 15), who was in the house, could destroy the file. Scios’ temporary inability to destroy or conceal the file while the agents were present does not deny the agents’ right to seize destructible evidence that could be subjected to future destruction or concealment. As we observed in United States v. Thweatt, 140 U.S.App.D.C. 120, 433 F.2d 1226 (1970):
We might add that obviousness is a form of exigency in the sense that failure to act immediately when confronted with evidence in this manner may result in its disappearance.
140 U.S.App.D.C. at 125, 433 F.2d at 1231. In addition, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1940) and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) both recognize the exigency created when the opportunity to search is “fleeting” and the evidence “may never be found again if a warrant must be obtained.” 403 U.S. at 460, 91 S.Ct. at 2035. To the same effect, United States v. Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538 (1977) states:
Such searches [pursuant to custodial arrests] may be conducted without a warrant and they may also be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence.
(Emphasis added.) Quoted in United States v. Foster, Stafford & Prince, 190 U.S.App.D.C.-at-, 584 F.2d 997 at 1002 (1978).
' Other circuits have not restricted searches to the wooden interpretation of Chimel asserted by the majority. After all, the Constitution permits “reasonable” searches. United States v. Patterson, supra, upheld the seizure of a “partially hidden [file] folder or envelope sitting on a shelf in a cabinet . . . four to six feet away from where [the arrestee] was standing at the time.”
II. THE PLAIN VIEW DOCTRINE
A.
Even assuming that the “Your Pharmacy” file was outside defendant’s “immediate control” or “reach,” so that its seizure would exceed the Chimel parameters, the particular search in question must still be deemed to be a “plain view” search and clearly reasonable under the Fifth Amendment. See, e. g., Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927). The Chimel doctrine has in no way restricted the permissibility or scope of plain view searches, Dorman v. United States, 140 U.S.App.D.C. 313, 322, 435 F.2d 385, 394 (1970) (en banc); United States v. Thweatt, supra, 140 U.S.App.D.C. at 123, 433 F.2d at 1229. Such searches are within the “well recognized exceptions” that Chimel refers to. The “Your Pharmacy” file must be held to have been within the “plain view” of the agent whose right to be where he was has not been questioned here.
About sixty of Scios’ business files were out in open view on the top of the credenza, as shown by Defendant’s Exhibit 3L, in three wires racks each containing about 20 files. From an examination of Exhibit I it can be seen that the typewritten “Your Pharmacy Service” on the protruding index tab of Scios’ file is sufficiently large so that it can be read from a distance of six feet by a person with normal eyesight (Officer Swayze was, in fact, within 18 inches of the file when he was “guarding Scios.”) The files on top of the credenza were arranged three groups each containing about twenty file folders (Tr. Ill, 52 and see Defendant’s Exhibit 3L reproduced supra). All were in an upright position, and the file in question was about 10 or 15 files from the front (Tr. Ill, 21). It appears from very close examination of Defendant’s Exhibits 3L and 3M and Government Exhibit I, that the files’ tabs were staggered (Tr. Ill, 50) with the result (and no doubt the express purpose) that one tab would not obstruct the view of the tabs on the back files. The agent testified that he “looked down the line” of the name tabs and discovered the file (Tr. Ill, 19). The files were not in any way concealed or placed in a closed area, and they were open at the top. They were not in
In those instances where from the initial view it is immediately apparent that the article constitutes relevant evidence in the case the courts hold that “no search” was indulged in and that the item is admissible. United States v. Copien, 541 F.2d 211, 214 (9th Cir. 1976), cert. denied, 429 U.S. 1073, 97 S.Ct. 810, 50 L.Ed.2d 791 (1977); United States v. Wilson, 524 F.2d 595, 598 (8th Cir. 1975), cert. denied, 424 U.S. 945, 96 S.Ct. 1415, 47 L.Ed.2d 351 (1976); Blassingame v. Estelle, 508 F.2d 668, 669 (5th Cir. 1975); United States v. Conner, 478 F.2d 1320, 1323 (7th Cir. 1973); Grimes v. United States, 405 F.2d 477, 478 (5th Cir. 1968); United States v. Wright, 146 U.S.App.D.C. 126, 130, 449 F.2d 1355, 1359 (1971), cert. denied, 405 U.S. 947, 92 S.Ct. 986, 30 L.Ed.2d 817 (1972); United States v. Cisneros, 448 F.2d 298, 303 (9th Cir. 1971); Grimes v. United States, 405 F.2d 477, 478 (5th Cir. 1968); Coates v. United States, 134 U.S.App.D.C. 97, 99, 413 F.2d 371, 373 (1969); Creighton v. United States, 132 U.S.App.D.C. 115, 116, 406 F.2d 651, 652 (1968); Hiet v. United States, 125 U.S.App.D.C. 338, 339, 372 F.2d 911, 912 (1967); cf. Coolidge v. New Hampshire, supra. In other cases where the initial observance of the article or articles in plain view is sufficient to find probable cause to conclude that they constitute evidence, but their precise evidentiary value is not immediately apparent and further inspection is necessary, we have also held that a limited search or examination is permissible. If the closer examination is conducted in a reasonable manner and leads to the discovery of relevant evidence the “search” is valid under the Fourth Amendment. United States v. Mason, supra; United States v. Wysocki, supra; United States v. Patterson, supra; Dorman v. United States, 140 U.S.App.D.C. 313, 323, 435 F.2d 385, 395 (1970) (en banc); United States v. Thweatt, supra; Ellison v. United States, 93 U.S.App.D.C. 1, 3, 206 F.2d 476, 478 (1953) (small musical instrument box found to contain narcotics). These decisions apply a combination of Chimel and the plain view doctrine.
B.
What is required then is proof (1) that the agents had a right to be in the location where they were when they observed the article; (2) that the sighting of the object was inadvertent; and (3) that it was immediately apparent that probable cause existed to believe that the article constituted relevant evidence. I find that all three requirements were satisfied.
There is no doubt that (1) is clearly satisfied. The agents had a right to be where they were to execute the warrant for arrest. Even using a flashlight to peer into obscure parts of an area does not defeat a “plain view” argument, e. g., United States v. Johnson, 506 F.2d 674 (8th Cir. 1974), cert. denied, 421 U.S. 917, 95 S.Ct. 1579, 43 L.Ed.2d 784 (1975); United States v. Wickizer, 465 F.2d 1154, 1157 (8th Cir. 1972) (concurring opinion of Judge Bright); Marshall v. United States, 422 F.2d 185 (5th Cir. 1970). There is thus no reason here to hold the search to be unconstitutional where, at the most, all that was done was to riffle the raised tabs of several files in plain view until the file marked “Your Pharmacy Service” was noted.
As for (2), the trial court seems to have been misled in failing to apply the “plain view” doctrine by a belief that the discovery of the files was not “inadvertent” and thus could not pass constitutional muster under the rubric of a “plain view” search. It is unquestioned when law enforcement personnel know in advance that certain evidence exists in a particular location and they enter intending to seize it, but neglect to get a warrant and thereafter seek to rely on the plain view doctrine, that such search is unconstitutional. E. g., Coolidge v. New Hampshire, supra, 403 U.S. at 470, 91 S.Ct. 2022; United States v. Griffith, 537 F.2d 900 (7th Cir. 1976). In such
The record here does not raise any serious doubt that when the arresting agents went to Scios’ home to arrest him, they did not intend to search warrantlessly for the file, see United States v. Sedillo, 496 F.2d 151, 152 (9th Cir.), cert. denied, 419 U.S. 947, 95 S.Ct. 211, 42 L.Ed.2d 168 (1974). They had no advance knowledge of the files and did not know that they would be admitted to Scios’ office. The agents presented themselves at Scios’ door prepared to arrest him when they were sure of his identity, and then it was Scios himself who led the police into his office so his female companion would not overhear their conversation (Tr. Ill, 45-46). Therefore, it cannot be concluded that the agents had planned to use the arrest as a pretext for searching his office, see United States v. Mason, supra, 173 U.S.App.D.C. at 177, 523 F.2d at 1126, or to acquire any items of evidence. The agents did not even know that the office existed, much less that Scios had a “Your Pharmacy” file with his other business files out in the open in his office. The agents did not know in advance whether any bugging equipment or files might be present. They actually did discover “some electronic equipment . . . some wires. Some little black boxes . . . ” in an attache case but they did not seize any of such material. No general search was conducted, but it is important to note that they turned up a loaded revolver, some shoulder arms and a sawed-off shotgun — none of which were seized. On the basis of this record, it thus appears that the discovery of the “business files” was clearly inadvertent.
It may also be stated that the discovery here was “inadvertent” within the Supreme Court standards because, to paraphrase the Coolidge standards, “the discovery [of the files was not] anticipated . . . the police [did not] know in advance they [would] find [the files] in plain view and intend to seize [them].” Cf. Coolidge v. New Hampshire, supra, 403 U.S. at 470, 91 S.Ct. at 2040.
C.
The majority, however, asserts that the file is not to be considered as being seized in a “plain view” search, i. e., that “[t]he folder was not in plain view.”
Such assertion involves an application of the third criteria, i. e., was the evidentiary relevance of the file immediately apparent when it was discovered. If the agent’s testimony is accepted that he “looked down the line” of file name tabs and discovered the file with the “Your Pharmacy Service” typed title on the upward protruding index tab, under the “plain view” cases cited and ante, p. - of 191 U.S.App.D.C., p. 974 of 590 F.2d, we have “no search” and hence no taint of the evidence resulted therefrom. Even if we reject the agent’s testimony, as the court apparently did in part, there is still no doubt that, following the discovery of 60 Scios business files in plain view, there was probable cause to believe that a file covering the work he did for the “Pharmacy” would be included among his other business files. The resulting closer look was therefore reasonable, and the mere discovery of the “Your Pharmacy Service” index tab was sufficient to make it “immediately apparent” to anyone that the file constituted relevant evidence of the offense for which Scios was being arrested.
It is significant that the agent did not examine the contents of the file (Tr. Ill, 30-31). It was seized solely because of its title, and I would hold that, from the title
D.
The situation here may be likened to that of an officer who observes a substantial number of opaque glassine bags, of the kind that are usually used to contain narcotics, on a distant desk while he is making a valid arrest under a warrant charging a narcotics offense. Suppose also, as here, that the arrestee had himself led the officers to the room where the bags were in plain view. Under such circumstances, it would clearly have been permissible to open the bags to see if they contained narcotics even though at the moment they were beyond the reach of the suspect and it was not immediately apparent that they contained narcotics.
Similarly, if an arrest warrant was issued against a suspect for robbing a bank of $25,000 in currency, and the agents in executing it observed packets of Treasury bills on the top of the credenza, just beyond the reach of the suspect, it would be permissible to seize the bills and examine (search) them to determine if the serial numbers conformed to those on the stolen currency.
Business files in open view to an agent standing where he has a right to be in an arrest on a charge involving the suspect’s business may be the subject of a search and seizure just as much as opaque glassine bags and currency in plain view in arrests on warrants charging narcotics or bank robbery offenses. One may reasonably conclude, given the nature of the crime alleged, that such files contain potentially incriminating evidence, and when they are first observed in plain view, it is reasonable and permissible to make a further close inspection without any violation of the Fourth Amendment.
Scios was being arrested for an offense related to his business and, from a mere glance at all the files in plain view, it was obvious from their number, size, character, labelling and location that they were Scios’ business files. See Defendant’s Exhibits 3L and 3M. Just recently, in United States v. Mason, supra, a search of a partially opened suitcase was deemed permissible under the “plain view” doctrine, and there is no principled distinction between examination of a partially open suitcase and files with index tabs that were partially disclosed.
In this case, and others similar to it referred to ante, it should be noted that the plain view doctrine does not require the officer or agent to determine positively from his first plain view of the article or articles from a distance that the particular article subsequently seized is relevant admissible evidentiary material to a criminal offense. What is required is that the article singly or with other articles or containers (boxes, suitcases, brief cases, etc.) be in plain view and that from what is so observed the agent or officer be justified, from his prior experience or otherwise, in having probable cause to believe that the article or articles constitute a threat to the arresting officers, or possible evidence related to law violations — preferably to the offense for which the party is being arrested. It is not necessary to the validity of a plain view search that the agent, when he first viewed the business files, determined without closer inspection that one of the files was the “Pharmacy” file. It is sufficient if the “Pharmacy” file was one of the files in plain view of the agent and there is no necessity that he identified the file before he began riffling the tabs.
Thus, the plain view doctrine as applied in Dorman, Thweatt, Patterson, Wysocki, Ellison and Mason permits the agent to “search,” i. e., examine closer, the suspicious article or articles in plain view to determine if his suspicion is justified. The majority in n. 15 seems to be operating under the misapprehension that it was impermissible to
Both the trial judge and the majority make the error of contending that the inadvertence required by the plain view doctrine must be restricted to the point of requiring that the officer conclusively discover when the files were first observed that the particular item of evidence in question was absolutely material, relevant and admissible in the case. But, as explained above, inadvertence to that extent is not required. The discovery of the group of business files was completely inadvertent and that is all the inadvertent discovery that is required since the discovery of their existence constituted probable cause to believe that the “Pharmacy” file was among them.
In application of this principle courts have held it to be permissible to examine a closed box that the agent reasonably suspected of holding a gun and to introduce the stolen money orders that were discovered even though no gun was found. United States v. Wysocki, supra. Also, while looking for a gun it is constitutional to seize a “partially hidden folder or envelope” from a shelf in a cabinet which subsequent examination disclosed contained a “check . checkbook . . . and a safety deposit box key . . . .” that were admitted in the trial of the offense (forgery) for which the arrest was made. United States v. Patterson, supra. Following the same logic, in United States v. Mason, supra, we allowed the seizure of unidentified car keys discovered in plain view on a table in the apartment where the arrest was made, even though it was not discernible from the initial “plain view” that the keys were for any car that was involved in the criminal offense being investigated. In Dorman v. United States, supra (en banc), we upheld a warrantless search made pursuant to an entry on probable cause to arrest. The search resulted in the discovery in a closet in plain view after the door was opened, of a suit resembling one stolen in the crime being investigated, but while the suit was “readily identifiable,” a closer inspection was obviously necessary to determine that it bore the “label of Carl’s Men’s Shop.” The seizure under such circumstances was held to be reasonable.
Allowing narcotics officers to seize white powder in glassine bags in plain view at the time of a narcotics arrest is also everyday routine, and admittedly constitutional, notwithstanding that a subsequent test is necessary to determine whether or not the contents contain a controlled substance.
Finally, we are admonished by Chimel that “the reasonableness of searches . [depend upon] the total atmosphere of the case” — which was quoted from United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653 (1950). When this standard is applied it is my conclusion that the search and seizure of the file in
It thus appears that the majority are adopting an overrigid interpretation of Chimel insofar as it relates to the permissible scope of warrantless searches incident to arrests. Such ruling will unnecessarily handicap reasonable efforts to bring law violators to justice. I have particular difficulty with n. 15 in the majority opinion which in the fifth paragraph relies upon Chimel, and in the sixth paragraph declares that “Chimel is inapplicable.” In my view, as outlined above, the majority opinion misapplies the law in controlling particulars, especially (1) as to the search that was permissible because of Scios’ proximity to the files on three separate occasions at about the same time that the agent was looking at the files, and (2) as to the plain view exception. See Maj. op. n. 15 specifically. The recent opinion of Mr. Justice Stewart in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), does not compel a different result in any respect. In fact, Mincey reaffirmed the continued viability of Chimel and the “plain view” doctrine, at 393, 98 S.Ct. 2408, when it refused to validate the greatly delayed general search of the entire house which was not finished until four days after the murder.
I thus respectfully dissent from the majority opinion, join the opinion of Judge Robb, and join the result reached by Judge Wilkey’s opinion, but for a different reason. Judge Robb joins in this opinion.
At the suppression hearing there were three separate transcripts, which will hereafter be designated as follows: Defendant Scios (Tr. I); FBI Agent Breen (Tr. II); FBI Agent Swayze (Tr. III).
. The “plain view” doctrine is completely compatible with Chimel. As Mr. Justice Stewart, who also wrote Chimel, remarked in Coolidge v. New Hampshire, after quoting Chimel:
Where, however, the arresting officer inadvertently comes within plain view of a piece of evidence, not concealed, although outside of the area under the immediate control of the arrestee, the officer may seize it, so long as the plain view was obtained in the course of an appropriately limited search of the arrestee.
403 U.S. at 466 n.24, 91 S.Ct. at 2038.
. United States v. Bowdach, 561 F.2d 1160, 1168-69 (5th Cir. 1977):
The law in this circuit holds that police officers have a right to conduct a quick and cursory check of a residence when they have reasonable grounds to believe that there are other persons present inside the residence who might present a security risk. . . . The exigent circumstances presented by this reasonable fear of violence distinguishes this factual setting from Chimel v. California
United States v. Mulligan, 488 F.2d 732, 735 (9th Cir. 1973), cert. denied, 417 U.S. 930, 94 S.Ct. 2640, 41 L.Ed.2d 233 (1974):
The search here [throughout the house] was to protect the agents from possible harm. The latter type of search is expressly condoned by Chimel .
Hopkins v. State of Alabama, 524 F.2d 473, 475 (5th Cir. 1975):
Both [Vale [Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970)] and Chimel] are distinguishable from the facts*966 presented here. Vale involved a search for narcotics and Chimel for evidence relating to the burglary of a coin shop. Neither case presented the exigent circumstances and fact setting shown in this case. . The immediate need to ensure that no one remained in the house preparing to fire the yet unfound weapon obviously justified the warrantless search.
United States v. Hobson, 519 F.2d 765, 776 (9th Cir.), cert. denied, 423 U.S. 931, 96 S.Ct. 283, 46 L.Ed.2d 261 (1975):
Chimel was intended to prevent officers from using an arrest as a pretext for ransacking a defendant’s house in the search for evidence. Clearly, where the house is reputed to contain an arsenal of weapons and people who know how to use them and have expressed an intent to do so, some protective measures are in order. ... It was entirely proper to search each room for additional persons and weapons.
United States v. Smith, 515 F.2d 1028, 1031 (5th Cir. 1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 322 (1976) is to the same effect.
. In Robinson, the Supreme Court held that in the case of a lawful, custodial arrest the police could make a full search of the prisoner’s person whether or not there was reason to suspect that the arrestee was armed or in possession of destructible evidence. This decision suggests, and was chided by the dissent for suggesting, that the guidelines established in Chimel for the acceptable scope of a search incident to arrest could be applied without regard for whether there was, in the particular circumstances of the specific case, any plausibility in the claim that the arrestee might be able to reach weapons or destructible evidence. By the same token that Robinson’s person could be searched even though the underlying Chimel rationale of preventing the prisoner obtaining destructible evidence or a weapon was inapplicable, the police in this case should have been allowed to conduct a limited search of material situated in that area of the room immediately adjacent to Scios — provided they did not rifle through “all the desk drawers or other closed or concealed areas” — even though such material was slightly beyond Scios’ reach when seated behind the desk. This would be a separate basis for the search in addition to the plain view doctrine and to the fact that the file was within arm’s length reach of Scios when he entered the room immediately prior to the search.
. While it is not necessary to my conclusion in this case, it is my view that “immediate control” must be interpreted to mean that control which excludes the restraining influence and permissible control of arresting officers. Otherwise, since the arrest and presence of the officers could be construed to deprive the suspect of all mobility and control, the words would be meaningless. No area could be searched if normal control was not intended.
. The trial court erred in concluding that the area “within defendant’s immediate control” was to be restricted to the area that he could control while “seated at his desk” after he had just passed the credenza.
. The finding that the file was not “destructible evidence” was clearly erroneous.
. United States v. Patterson, 447 F.2d 424 (10th Cir. 1971), cert. denied, 404 U.S. 1064, 92 S.Ct. 748, 30 L.Ed.2d 752 (1972). An arrest warrant issued in connection with a forgery was served on Patterson in her apartment at a time when she and her husband were in the living room. No general search was undertaken:
In the process of making the arrest, one of the police detectives went into the kitchen where he saw a partially hidden folder or envelope sitting on a shelf in a cabinet. The cabinet was four to six feet away from where Mrs. Patterson was standing at the time. The folder was in partial view of the detective because the cabinet door was about halfway open. The detective removed the folder from the cabinet against Mrs. Patterson’s protests and found, among other things, [relevant evidentiary articles] . . .. The detective testified he was searching for a pistol since he knew Mrs. Patterson was a suspect in the burglary of Mudrick’s apartment and this was one of the items taken.
447 F.2d at 425-26 (emphasis added).
Appellant’s position here is that Mrs. Patterson’s arrest occurring in the living room would thereby limit the search to only that room. The record discloses that Mrs. Patterson, of her own volition, had moved to the doorway between the kitchen-dining room area and the living room. Access to the kitchen-dining room area was available to her by merely turning around. This justified the detective’s precautionary measure of entering the kitchen.
447 F.2d at 426.
The record here clearly discloses Mrs. Patterson had access to the kitchen-dining room area. . . . Until . . . [she was handcuffed] that area continued within the area of her “immediate control”.
* * * * * *
The detective’s entry into the kitchen was reasonable in assuring the safety of the arresting officers. This area was within the immediate control of appellant’s wife. Therefore, it was a reasonable search incident to a lawful arrest. The evidence obtained would be admissible since “objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067, 1069 (1968).
447 F.2d at 427.
. United States v. Wysocki, 457 F.2d 1155 (5th Cir.), cert. denied, 409 U.S. 859, 93 S.Ct. 145, 34 L.Ed.2d 105 (1972). Wysocki’s arrest took place on probable cause without a warrant in a motel room 10 to 12 feet wide and 14 to 16 feet in depth. Wysocki was found in the middle of the room and the agents searched that immediate area. A closet door was open and Wysocki asked the agent to get some clothes. In doing so the agent observed a box which he thought “was a gun box” but it was six feet from Wysocki. Nevertheless he opened it and discovered a batch of stolen money orders. The search was held to be reasonable and the seizure of the box not to be contrary to Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); United States v. Squella-Avendano, 447 F.2d 575 (5th Cir.), cert. denied, 404 U.S. 985, 92 S.Ct. 450, 30 L.Ed.2d 369 (1971); United States v. Brookins, 434 F.2d 41 (5th Cir. 1970), cert. denied, 401 U.S. 912, 91 S.Ct. 880, 27 L.Ed.2d 811 (1971); Klingler v. United States, 409 F.2d 299 (8th Cir.), cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969). The trial court was' sustained in its refusal to suppress the money orders as the fruits of an unlawful search. The court noted that the officer was “where he had a right to be . . ..” 457 F.2d at 1160. The plain view doctrine was not expressly relied upon as such, but the reasoning is in that vein. What the court in effect held was that it was within Chimel, et al., to search (open the box) that was observed in plain view some six feet from where the arrestee was seated in the middle of the room. While Scios is a stronger case on the facts than Wysocki — because when Scios was walking around the room he was much closer than six feet to the files — the essential facts in Wysocki are practically the same as those involved with one aspect of Scios.
. The plain view doctrine is partially misapplied by Judge Tone’s opinion in United States v. Griffith, 537 F.2d 900, 903 (7th Cir. 1976) to the extent that it decides the search was not inadvertent because the “officer’s inspection was not inadvertent.” Under Coolidge v. New Hampshire, it is the “discovery,” 403 U.S. at 470, 91 S.Ct. 2022, of the suspicious article that determines “inadvertence,” not the subsequent closer inspection or examination of that article. Griffith, however, is saved from being controlled by error because the discovery was not inadvertent since the officers had been in the room earlier and had seen the various articles. Their subsequent return to the room thus puts the case into the category of a planned warrantless search for the articles they had previously observed — clearly an advertent search — a far cry from this case.
Dissenting Opinion
dissenting:
I concur in the views expressed by Judge MacKinnon and add a few words.
When this case was before the panel of which I was a member, in 1976, I thought the “fruit of the poisonous tree” doctrine did not require the suppression of Massa’s testimony. I reasoned that the basis of this exclusionary rule is that it deters police misconduct, and that the nature of the police conduct in each case is the decisive factor in judging whether unlawful searches and seizures will be deterred. It seemed to me that exclusion of Massa’s testimony could have no deterrent effect because the FBI agents who seized the Scios folder had acted in good faith and their conduct was at most marginally unlawful.
My theory became untenable in 1978 when the Supreme Court decided United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978). In that case the Court listed the factors which made the witness Hennessey’s testimony admissible:
The evidence indicates overwhelmingly that the testimony given by the witness was an act of her own free will in no way coerced or even induced by official aüthority as a result of Biro’s discovery of the policy slips. Nor were the slips themselves used in questioning Hennessey. Substantial periods of time elapsed between the time of the illegal search and the initial contact with the witness, on the one hand, and between the latter and the testimony at trial on the other. While the particular knowledge to which Hennessey testified at trial can be logically traced back to Biro’s discovery of the policy slips, both the identity of Hennessey and her relationship with the respondent was well known to those investigating the case. There is in addition, not the slightest evidence to suggest that Biro entered the shop or picked up the envelope with the intent of finding tangible evidence bearing on an illicit gambling operation, much less any suggestion that he entered the shop and search with the intent of finding a willing and knowledgeable witness to testify against respondent. Application of the exclusionary rule in this situation could not have*979 the slightest deterrent effect on the behavior of an officer such as Biro. The cost of permanently silencing Hennessey is too great for an even-handed system of law enforcement to bear in order to secure such a speculative and very likely negligible deterrent effect.
Id. at 1062.
In the case before us (1) we cannot say that Massa’s testimony was the act of his own free will, in no way coerced or even induced by official authority. He was threatened with jail if he remained silent; (2) the papers obtained in the search at the Scios office were used by the agent who questioned Massa; (3) the identity of Massa as a witness and his relationship with Scios were not known to the investigators until the leads obtained by the search were exploited; (4) it cannot be said that when Scios invited the agents into his office they entered with no intention of finding tangible evidence. In short, the evidence in our case negatives most of the factors upon which the Supreme Court relied in its Ceccolini decision. The Supreme Court did say “no mathematical weight can be assigned to any of the factors which we have discussed.” Id. I cannot believe however that the only two affirmative factors found in this case — the lapse of time and the nature of the police conduct — can outweigh all the negative factors which are present.
Reflection has led me to reexamine the premises upon which the District Court’s conclusions were based. These premises were (1) the warrant for the arrest of Scios was invalid because unsupported by probable cause and (2) assuming that the warrant was valid, seizure of the file folder was unlawful.
In my opinion the affidavit supporting the warrant does establish probable cause to believe that Scios was responsible for the taps on the telephone lines of “Your Pharmacy, Inc.” On its face the affidavit sets out the following facts: The attorney for the drugstore, Forrester, asked Scios to investigate the financial losses being suffered by the store. Scios replied that he “didn’t do this kind of thing, but was primarily a ‘wiretapper, bugger and camera surveillance man.’ ”. Forrester said he could not employ Scios but he referred him to the owner of the store, Judge Norton. Subsequently Norton hired Scios and paid him “by a check drawn to another name”. Thereafter the taps on the lines of “Your Pharmacy, Inc.” were found by telephone linemen. In the course of the resulting investigation a telephone conversation took place between Scios and an FBI agent posing as a father concerned about his daughter’s association with an undesirable man. Although guarded in his remarks Scios plainly indicated that he was prepared to investigate the matter by means of wiretaps, and he at least intimated that he had done similar work for “Your Pharmacy, Inc.” In my judgment these facts are enough to support a reasonable belief that Scios was the man who placed the taps at “Your Pharmacy, Inc.”
As for the seizure of the file folder, I agree with Judge MacKinnon that it was valid within the principle of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The wire rack holding the folder was in plain view within six feet of Scios when he was arrested, and I think a search incident to the arrest could include an examination of the contents of the file folder. There was no rummaging through desk drawers or closets, but a mere riffling of the protruding index tabs of the files in the open rack. See United States v. Patterson, 447 F.2d 424 (10th Cir. 1971); United States v. Sheard, 154 U.S.App.D.C. 9, 14, 473 F.2d 139, 144 (1972), cert. denied, 412 U.S. 943, 93 S.Ct. 2784, 37 L.Ed.2d 404 (1973). The momentary presence of an agent between Scios and the file, at the time it was seized, did not mean that it had not been within his immediate control before the seizure. The file was on top of a credenza, directly to the right of where Scios was sitting at his desk, and not more than six feet away; and obviously the agent could not examine it without coming between Scios and the credenza. The search for evidence was not invalidated merely because the act of making it placed the evidence beyond the prisoner’s reach.
Dissenting Opinion
with whom TAMM, Circuit Judge, joins, dissenting:
The question in this case is whether the Fourth Amendment exclusionary rule renders inadmissible, as fruit of the poisonous tree, the .testimony of a live witness whose identity was learned as the result of an illegal search. The majority holds, first, that the exclusionary rule generally applies to cases of live-witness testimony and, second, that the exclusionary rule applies on the facts of this case because the taint affecting the testimony of Thomas Massa, Jr., has not been attenuated, either by that witness’ acts of volition or by other intervening events. I disagree with both conclusions.
If traditional “attenuation” analysis is applied here, it demonstrates, I believe, that any taint attaching to the testimony of Thomas Massa, Jr., has been dissipated. More fundamentally, however, I believe that traditional “attenuation” analysis is in-apposite in cases of this sort. The question whether live-witness testimony should be suppressed ought to be answered, not by a case-by-case “attenuation” inquiry, but by direct resort to exclusionary rule policies, employing the analysis the Supreme Court has employed in other recent cases involving extensions of the exclusionary rule, such as United States v. Calandra,
If this balancing approach is applied here, it yields, I believe, a general rule that the exclusionary rule does not operate to exclude the testimony of a live witness whose identity was learned as the result of an illegal search. I conclude, therefore, that Thomas Massa, Jr., should testify, and respectfully dissent.
I. FACTS
It may be useful to begin by detailing somewhat the background to this case, since the majority’s position on the merits has permitted a rather terse and therefore selective recapitulation of the facts. On 15 February 1974 Robert Scios was arrested in New York. In a search incident to that arrest, a file folder was improperly seized by the FBI. Included in the file was a receipt from a motel in Washington, D. C.; attached to this receipt was a piece of paper bearing the name “Mr. Massa.” An FBI agent interviewed the desk manager and the bookkeeper of the motel; neither remembered the occupant of the room. Inquiry revealed, however, that there was still available a record of telephone calls made from the room. There were two numbers,
When Thomas Massa, Jr., returned to New York, his family told him of the Government’s inquiries and persuaded him that he should speak to the prosecutor. Massa consulted a lawyer in New York, who advised him to say nothing until he was granted immunity. The prosecutor in charge of the investigation refused to offer Massa immunity by letter. On 5 May 1974, therefore, Massa went to Washington and spoke with an Assistant U. S. Attorney. Massa said that he would assert his privilege against self-incrimination before the grand jury. The prosecutor told Massa that a grant of immunity was imminent and asked him for an off-the-record proffer. Massa replied by giving an outline of what his testimony would be. During this meeting Massa was shown some of the Government’s evidence, including material seized from the file folder. Later that same day, Massa claimed his Fifth Amendmént privilege before the grand jury. On 8 May Massa returned to court, having retained counsel in Washington. The district court signed immunity papers, and Massa testified before the grand jury under grant of immunity.
II. TRADITIONAL ATTENUATION ANALYSIS IN LIVE-WITNESS CASES
In Silverthorne Lumber Co. v. United States,
The Supreme Court elaborated the attenuation doctrine in Wong Sun v. United States,
The Court descanted on the voluntariness requisite to attenuation in Brown v. Illinois,
These cases did not require the Court to consider whether the exclusionary rule renders inadmissible as fruit of the poisonous tree the testimony of a live witness whose identity was learned as the result of an illegal search.
Equally prominent in the courts’ analyses has been the inquiry, likewise drawn from Wong Sun, whether the testimony of the live witness is “sufficiently an act of free will to purge the primary taint.”
If this traditional multi-factor analysis is applied to the facts of this case, it reveals, I believe that any taint attaching to the testimony of Thomas Massa, Jr., has been attenuated. This result follows whether one focuses on the indirectness of the link between that testimony and the primal illegality,
Having pondered our experience as revealed in these precedents, however, I have concluded that the traditional analysis should be employed no longer. This fact-oriented, case-by-case approach, which is perpetuated by the majority today, has produced an incoherent and intractable body of law. Whatever the utility of the multi-factor analysis in gauging attenuation of the taint in cases of physical evidence or confessions, that analysis is based on principles which, in the case of live-witness testimony, are of dubious logical relevance. The traditional analysis is bereft of intellectual rigor, for it consists for the most part of bandying conclusory terms that do no more than express the result a court desires to reach. The traditional analysis, not surprisingly, has led to a plethora of inconsistent decisions, not only among the circuits, but within the same circuit.
III. INADEQUACY OF THE TRADITIONAL ANALYSIS
A. Volition. The most common inquiry in traditional attenuation analysis is whether the witness’ testimony is “sufficiently an act of free will to purge the primary taint.” The threshold objection to this inquiry is the impossibility of determining what, in any given case, in fact causes a witness to testify. In reaching a decision to testify, a witness inevitably operates under a complex of “pressures,” some internally generated (desires to unburden guilt, to gain favor with authority, to be a good citizen), and some externally generated (threats of contempt, grants of immunity, promises of leniency). Psychological and philosophical uncertainties attending the concept of volition ill fit it as a tool of judicial analysis; to say that a statement should be suppressed as insufficiently a product of free will is simply to state the conclusion that the Government’s contribution to the complex of factors producing the testimony is impermissible. Indeed, it was the unmanageability of inquiries into free will that led the Supreme Court to abandon a case-by-case analysis in the coerced-confession cases and embrace a prophylactic rule in Miranda.
Precisely because the concept of volition is an uncertain tool of judicial analysis, it can be roundly manipulated by the courts. Some courts, for example, have found evidence of a witness’ free will in the fact that he originally resisted testifying, but subsequently changed his mind — as the result, for example, of prosecutorial promises of leniency.
Most importantly, inquiry into a witness’ free will is of scant logical relevance in determining whether “attenuation of the taint” has occurred. The courts, I believe, have unthinkingly imported this inquiry from cases like Wong Sun and Brown. Those cases were confession cases, and the confessions were made by the victims of illegal arrests. In order to ascertain whether the confessions were the fruit of illegality, it made sense to inquire whether the confessions were traceable to the lingering effects of improper detention, or whether they sprang from a truly independent source. If the confessions were sufficiently involuntary, in other words, that tended to show that they were the fruit of the poisonous tree. The situation is completely different when live-witness testimony is involved, because the live witness typically will not be the victim of the illegal search or arrest. If the witness’ testimony is “involuntary,” it will not be because the effects of the primal illegality linger and constrain his will, but because he fears prosecution or a contempt citation. Any “compulsion” on Thomas Massa, Jr., evidently, derives not from the taint of the illegal search, but from the judicial immunity order. If live-witness testimony is ever the fruit of the poisonous tree, that determination should be made as of the moment the witness takes the stand; whether he testifies because of an immunity order, a fear of prosecution, or a simple desire to tell the truth is irrelevant in gauging whether the “taint” is attenuated, for the “taint” existed in the distant past and never bore directly upon the witness anyway.
B. Directness of Causation. The second major inquiry in traditional attenuation analysis, likewise derived from Wong Sun,
Efforts to discern “exploitation” by analyzing the “directness” of the casual link between the illegality and the testimony fare no better. Terms like “direct result,” “proximate cause,” and “intervening cause” do not advance analysis: judges in good faith will pick their adjectives according to the result they want to reach. Assessments of the number of “intervening events,” with the implication that the taint becomes more attenuated as the investigation becomes more byzantine, likewise provide a field-day for judicial subjectivity. There is, moreover, little intellectual appeal in a rule which admits or excludes testimony in a criminal trial according to how nearly a police investigation resembles the plot of a cops-and-robbers movie.
The majority’s analysis of this subject, with all respect, is a case in point. The majority finds no attenuation here because “The location of Massa was not the product of an improbable, unforeseeable coincidence. It was good police work, but a straightforward exploration of the leads in the Pharmacy file. . . . ‘The road may be long, but it is straight.’ ”
IV. THE SUPREME COURT’S BALANCING APPROACH
Because of these inadequacies, I believe that traditional attenuation analysis should not be used to ascertain on a case-by-case basis the admissibility of live-witness testimony. Yet the traditional analysis is not only inapposite and impracticable; it is also largely irrelevant to the policies the exclusionary rule is intended to serve. “The basic purpose of the rule,” as Justice Powell said in Brown, “is to remove possible motivations for illegal arrests” and searches.
As a matter of logic, it is hard to see how application of a rule designed to control police behavior can be determined by an analysis that concerns itself exclusively with police behavior and witness motiva
In these cases, the Court has established beyond peradventure that “the ‘prime purpose’ of the [exclusionary] rule, if not the sole one, ‘is to deter future unlawful police conduct.’ ”
“Despite its broad deterrent purpose,” however, “the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons.”
Cognizant both of the deterrence benefits and the social costs of invoking the exclusionary rule, therefore, the Court in its recent cases has adopted a balancing approach. Under this approach, the Court has proceeded “by weighing the utility of the exclusionary rule against the costs of extending it” to a given class of Fourth Amendment claims,
In considering whether the exclusionary rule should be extended to cases of live-witness testimony, it is appropriate, I believe, to employ the same balancing approach that the Supreme Court used to consider extensions of the rule in Calandra, Michigan v. Tucker, Janis, and Stone v. Powell.
V. THE BALANCING APPROACH APPLIED TO LIVE-WITNESS TESTIMONY
Applying the Supreme Court’s balancing approach to this case, the question is whether the deterrence benefits of extending the exclusionary rule to live-witness testimony justify the social costs of deflecting the truthfinding process of the criminal trial. Crucial to this cost/benefit analysis is a careful appreciation of the cognitive and volitional factors that distinguish live-witness testimony from physical evidence. As I have argued above, these cognitive and volitional factors are not relevant to an ex post determination of whether, on the facts of a particular case, the casual chain stemming from the original misconduct is “indirect.” But they are highly relevant to an ex ante determination of whether, as a general rule, the police are likely to be deterred from misconduct by the exclusion of third-party testimony. On balance, I believe that the exclusion of live-witness testimony in general will provide significantly less deterrence and will impose significantly greater social costs than the exclusion of other types of evidentiary fruits.
A. Deterrence Benefits. Any estimate of the deterrence benefits of excluding live-witness testimony must focus on the motivations of the police prior to the “primal illegality.” The extent to which a police officer has an incentive to conduct an illegal search depends, first, on his expectation that the search will uncover useful evidence and, second, on his assessment of the likelihood that what he might discover could be learned in other ways. In both respects, the trial testimony of witnesses differs importantly from physical evidence.
First, owing to the nature of testimonial evidence, the discovery of a potential witness’ name is much less likely than the discovery of tangible objects to eventuate in useful evidence at trial. This is so because tangible evidence generally “speaks for itself,” whereas, as Judge (now Chief Justice) Burger said in Smith & Bowden v. United States,
[T]he living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give. The uniqueness of this human process distinguishes the evidentiary character of a witness from the relative immutability of inanimate evidence.
Police officers, for example, reasonably could expect that if their search uncovers heroin, that evidence (but for the exclusionary rule) could be used effectively against the target of the search. But if they discover the name of someone who might have relevant information, they still face a long list of uncertainties before that name is translated into useful trial testimony. These include, but are not limited to: whether they can locate the individual; whether he will have useful information; whether he will divulge that information; whether he will remain available to testify at the time of trial; whether, if he is unwilling to testify, the prosecutor will be willing to grant him immunity; and whether, if all these uncertainties are favorably resolved, the jury will'find him a credible witness. To these uncertainties must be added the awareness of experienced police
Second, owing to the nature of testimonial evidence, it is almost always significantly more likely that a witness can or will be discovered in the normal course of investigation than that a comparably probative item of tangible evidence can or will be discovered. A witness, unlike tangible evidence, has the capacity to make himself known, and the greater the police expectation that a useful witness exists, the more likely it is that he will come forward. Identification of witnesses, moreover, is a normal subject of any investigation, and witnesses, unlike tangible evidence, can be sought out and interviewed without the necessity of a search — legal or illegal. As a general rule, therefore, the police have significantly less incentive to search for witnesses by unlawful means than to search for other types of evidence by unlawful means.
Although exclusion of live-witness testimony undeniably would provide some “additional marginal deterrence,”
B. Social Costs. Whatever “incremental deterrent effect” exclusion of live-witness testimony would provide is outweighed by the substantial social costs such exclusion would impose. The Supreme Court has often stressed the deleterious impact of the exclusion of probative evidence on society’s ability to enforce the law.
The social costs of excluding live-witness testimony, moreover, appear in a particularly stark form, for they are less mitigated by countervailing social benefits from vindicating defendants’ privacy interests. Individuals, of course, have a constitutionally recognized expectation of privacy in their persons, houses, and effects. The introduction of illegally seized evidence frequently will entail a renewed invasion of their privacy.
For these reasons, I believe that the social costs of excluding live-witness testimony will almost invariably outweigh the incremental deterrent effect that invocation of the exclusionary rule would produce. This cost/benefit analysis might well come out differently if the police were shown to have acted unlawfully for the specific purpose of discovering potentially useful witnesses.
VI.
On 21 March 1978, shortly before our en banc opinions herein were scheduled to issue, the Supreme Court handed down its decision in United States v. Ceccolini.
The reasoning we initially followed in our en banc dissent to reach this result rested both on the per se rationale of the Chief Justice’s concurrence and on the traditional attenuation analysis of the Ceccolini majority. Our original, unanimous panel opinion rested only on the latter. Our analysis of the factors producing attenuation of the taint here, as they produced it in Ceccolini, has been removed from the earlier portion of this opinion and rewritten to take the Supreme Court’s latest position into account. But first we refer to the view of the Chief Justice.
In his concurrence the Chief Justice balanced the high cost to society of losing a competent witness “against the prospect of incrementally enhancing Fourth Amendment values,” and concluded that, in general, “the permanent silencing of a witness . is not worth the high price the exclusionary rule exacts.”
The Ceccolini majority, while echoing the concerns voiced by the Chief Justice, adopted a narrower approach. Rejecting Wong Sun’s suggestion that there is no “logical distinction between physical and verbal evidence,”
The approach that the Court adopted in Ceccolini differs significantly from the approach it adopted in Calandra, Janis, and Stone v. Powell. In those cases, the Court balanced the costs and benefits of the exclusionary rule “once and for all” and concluded that the rule generally should not apply in a given class of cases. The Ceccolini majority, by contrast, directed that the balancing should be done on a case-by-case' basis, within the framework of traditional (albeit more rigorous) multifactor attenua
Two of the factors mentioned by Justice Rehnquist as pointing to attenuation in Ceccolini are absent from this case.
First, as Justice Blackmun in Brown had cited “[t]he temporal proximity of the arrest and the confession”
Second, the Court in Brown cited “the presence of intervening circumstances” as a relevant factor in determining attenuation. In this case, the following events intervened between the FBI’s search and Massa’s testimony before the grand jury: (1) the FBI unsuccessfully contacted the motel desk clerk and bookkeeper; (2) the FBI discovered a list of telephone calls made from the motel room; (3) subscribers to the phones were identified, including Thomas Massa; (4) the FBI contacted Massa’s family, and learned that Thomas Massa, Jr., in whom they were interested, was not available; (5) Massa consulted his family and his lawyer; (6) Massa went to Washington, spoke to a U. S. Attorney, and made an off-the-record proffer; (7) Massa consulted a Washington lawyer; (8) the court entered an order granting Massa immunity from prosecution.
Perhaps the most important “intervening event” is the last, which establishes a close nexus between this case and Justice White’s
A third factor, described in Brown as of particular relevance in gauging attenuation, is “the purpose and flagrancy of the official misconduct.”
Of even greater importance in this case, given Brown, is the non-flagrant nature of the original search. “The deterrent purpose of the exclusionary rule,” Justice Rehnquist wrote in Michigan v. Tucker, “necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right.”
Nor can it be argued that the agents’ good faith can be attributed only to “ignorance of the law.” The agents, obviously, were chargeable with knowledge of the Chime] rule; the point is that there was room for argument as to whether the Chime! rule interdicted a search on the facts of this case. Uncertainty as to the law’s fine lines, surely, is a plague that undoubtedly besets many law enforcement officers — a result that is not surprising in view of the tortured path our search-and-seizure law has followed. The FBI agents here treated Scios throughout with courtesy; they conducted no general search; and before seizing the file folder they had the presence of mind to discuss the propriety of the seizure in calm and reasoned terms. The agents, in short, behaved very much as we should like law enforcement officers to behave. Their behavior was in no sense egregious, and their decision to seize the folder, while not the decision some courts would have reached, was plainly not reached thoughtlessly or in bad faith. My point is simply that in these circumstances the exclusionary rule is of scant deterrent value — and this simple point is what this and other attenuation cases are all about.
A fourth factor, common in traditional attenuation analysis and central to Brown, is the degree to which verbal evidence represents the uncoerced product of the speaker’s will. The majority in Ceccolini likewise concluded that “the degree of free will exercised by the witness is not irrelevant in determining the extent to which the basic purpose of the exclusionary rule will be advanced by its application,”
From my discussion of these four attenuating factors, it is obvious that I do not regard Scios and Ceccolini as fitting hand in glove. Several of the factors pointing to Justice Rehnquist’s conclusion are absent, or are present in less convincing guise, here. Yet the Court cautioned against assigning the factors it discussed any “mathematical weight,” and precisely because Ceccolini was an easy case, subsequent eases cannot be expected to be decided within its facts. Nor, indeed, can we expect to decide many of these live-witness attenuation cases within the facts of previous decisions. The combination of circumstances has already proved to be infinite, so much so that the Supreme Court’s enumeration of relevant factors as guidelines in assessing attenuation on a case-by-case basis shows such variance (compare Justice Blackmun in Brown with Justice Rehnquist in Ceccolini, the factors cited as relevant obviously being inspired by the case at hand). This lends weight to the Chief Justice’s sponsorship of a per se rule in all but the most unusual live-witness cases. But since the Supreme Court majority has held that attenuation should be examined on a case-by-case basis, and analyzed with reference to factors relevant in each particular case, analysis of the circumstances of Massa’s live testimony in Scios’ case persuades me that, on all the precedents, there has been attenuation of
. The bulk of this opinion was written prior to United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978), in which the Supreme Court for the first time considered whether the exclusionary rule requires suppression of the testimony of a witness whose identity or whose possession of relevant information was learned as the result of án illegal search. The Ceccolini majority, while holding that sufficient attenuation had occurred on the facts of that case to make the testimony in question admissible, declined to embrace the principle, advocated by the Justice Department, adopted by the Chief Justice, and recommended here, that the exclusionary rule in general should not apply to live-witness testimony. • The multi-factor attenuation analysis employed by the Ceccolini majority is applied to the facts of this case in Part VI infra.
. 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (exclusionary rule does not operate in grand jury proceeding to bar questions based on evidence obtained from unlawful search and seizure).
. 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976) (exclusionary rule does not operate in federal civil proceeding to bar evidence unlawfully seized by state criminal authorities).
. 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (state prisoner cannot raise exclusionary rule claim on federal habeas corpus when he has been afforded opportunity for full and fair litigation of claim in state courts).
. 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920).
. See Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939).
. 251 U.S. at 392, 40 S.Ct. at 183.
. 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939).
. Id. at 341, 60 S.Ct. at 268.
. In' neither this Court nor the district court did the Government contend that there was an independent source for Massa’s testimony. See Brief of the United States at 12.
. 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
. Id. at 488, 83 S.Ct. at 417, quoting Maguire, Evidence of Guilt 221 (1959) (emphasis added).
. Id. at 486, 83 S.Ct. at 416 (footnote omitted, emphasis added). Defendant Toy had made incriminating statements in his bedroom following a 6 a. m. police raid. “Under such circumstances,” said the Court, “it is unreasonable to infer that Toy’s response was sufficiently an act of free will to purge the primary taint of the unlawful invasion.” Id. Defendant Wong Sun had made incriminating statements at the police station after he “had been released on his own recognizance . . . and had returned voluntarily several days later” to confess. On this evidence, the Court had that “the connection between the [illegal] arrest and the statement had ‘become so attenuated as to dissipate the taint.’ ” Id. at 491, 83 S.Ct. at 419, quoting Nardone, 308 U.S. at 341, 60 S.Ct. 266.
. 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).
. Id. at 603, 95 S.Ct. at 2261.
. Id. at 603-04, 95 S.Ct. 2254. Fifth Amendment voluntariness, said the Court, is merely a “threshold requirement.” Id. at 604, 95 S.Ct. 2254.
. The Court did not consider this question until United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978). See United States v. Brignoni-Ponce, 422 U.S. 873, 876 n.2, 95 S.Ct. 2574, 2577, 45 L.Ed.2d 607 (1975) (“There may be room to question whether voluntary testimony of a witness at trial . . . is subject to suppression as the fruit of an illegal search or seizure. . . . But since the question was not raised in the petition for certiorari, we do not address it.”); Harrison v. United States, 392 U.S. 219, 223 n.9, 88 S.Ct. 2008, 2010, 20 L.Ed.2d 1047 (1968) (“We have no occasion in this case to canvass the complex and varied problems that arise when the trial testimony of a witness other than the accused is challenged as ‘the evidentiary product of the poisoned tree’ ”) (quoting Ruffin, Out on a Limb of the Poisonous Tree: The Tainted Witness, 15 U.C.L.A.L.Rev. 32, 44 (1967)).
. E. g., United States v. Ceccolini, 542 F.2d 136, 142 (2d Cir. 1976), rev’d, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978); United States v. Guana-Sanchez, 484 F.2d 590, 592 (7th Cir. 1973), cert. dismissed as improvidently granted, 420 U.S. 513, 95 S.Ct. 1344, 43 L.Ed.2d 361 (1975); United States v. Marder, 474 F.2d 1192, 1195 (5th Cir. 1973) (“This circuit has followed the general rule that if the identity of a government witness and his relationship to the defendant are revealed because of an illegal search and seizure, the testimony of such witness must be excluded”) (citing cases); Smith and Anderson v. United States, 120 U.S.App.D.C. 160, 162, 344 F.2d 545, 547 (1965).
. United States v. Beasley, 485 F.2d 60, 64 (10th Cir. 1973), cert. denied, 416 U.S. 941, 94 S.Ct. 1946, 40 L.Ed.2d 292 (1974). See United States v. Hoffman, 385 F.2d 501, 504 (7th Cir. 1967), cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288 (1968); Smith and Anderson v. United States, 120 U.S.App.D.C. 160, 162, 344 F.2d 545, 547 (1965); Edwards v. United States, 117 U.S.App.D.C. 383, 385, 330 F.2d 849, 851 (1964).
. E. g., United States v. Karanthos, 531 F.2d 26, 35 (2d Cir.), cert. denied, 428 U.S. 910, 96 S.Ct. 3221, 49 L.Ed.2d 1217 (1976) (“close connection” between illegal search and live-witness testimony). Compare, Parker v. Estelle,
. E. g., United States v. Beasley, 485 F.2d 60, 64 (10th Cir. 1973), cert. denied, 416 U.S. 941, 94 S.Ct. 1946, 40 L.Ed.2d 292 (1974) (lapse of three days between illegal event and witness’ decision to testify causes attenuation); Brown v. United States, 126 U.S.App.D.C. 134, 138, 375 F.2d 310, 314, cert. denied, 388 U.S. 915, 87 S.Ct. 2133, 18 L.Ed.2d 1359 (1967) (lapse of 13 months between illegal event and witness’ testimony causes attenuation).
. E. g., United States v. Evans, 454 F.2d 813, 818 (8th Cir.), cert. denied, 406 U.S. 969, 92 S.Ct. 2423, 32 L.Ed.2d 668 (1972); Brown v. United States, 126 U.S.App.D.C. 134, 138, 375 F.2d 310, 314, cert. denied, 388 U.S. 915, 87 S.Ct. 2133, 18 L.Ed.2d 1359 (1967).
. E. g., United States v. Ceccolini, 542 F.2d 136, 142 (2d Cir. 1976), rev’d, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978) (road from unconstitutional search to witness’ testimony “is both straight and uninterrupted”); Williams v. United States, 382 F.2d 48, 51 (5th Cir. 1967) (“road from the illegal search to the testimony . . . although a little long, was not a winding one”); Smith and Anderson v. United States, 120 U.S.App.D.C. 160, 162, 344 F.2d 545, 547 (D.C.Cir. 1965), quoting United States v. Tane, 329 F.2d 848, 853 (2d Cir. 1964) (“The road from the [illegal source] to the testimony may be long, but it is straight”).
. E. g., United States v. Karanthos, 531 F.2d 26, 35 (2d Cir.), cert. denied, 428 U.S. 910, 96 S.Ct. 3221, 49 L.Ed.2d 1217 (1976) (testimony inadmissible where witnesses were subject to Government “leverage”); United States v. Crouch, 528 F.2d 625, 629-30 (7th Cir.), cert. denied, 429 U.S. 900, 97 S.Ct. 266, 50 L.Ed.2d 184 (1976) (testimony admissible where witness “made a voluntary choice to divulge . information”); United States v. Beasley, 485 F.2d 60, 64 (10th Cir. 1973), cert. denied, 416 U.S. 941, 94 S.Ct. 1946, 40 L.Ed.2d 292 (1974) (testimony admissible where there was “high degree of probability that [witness] exercised her own volition”); United States v. Hoffman, 385 F.2d 501, 504 (7th Cir. 1967), cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288 (1968) (testimony admissible where witness made “voluntary decision to plead guilty” and testify for prosecution); United States v. Tane, 329 F.2d 848, 853 (2d Cir. 1964) (testimony inadmissible where witness was unwilling to testify until informed that police had information gained from illegal wiretap).
. McLindon v. United States, 117 U.S.App.D.C. 283, 286, 329 F.2d 238, 241 n.2 (1964).
. See United States v. Marder, 474 F.2d 1192, 1196 (5th Cir. 1973); Edwards v. United States, 117 U.S.App.D.C. 383, 385, 386, 330 F.2d 849, 851-52 (1964); McLindon v. United States, 117 U.S.App.D.C. 283, 286, 329 F.2d 238, 241 n.2 (1964).
. See United States v. Marder, 474 F.2d 1192, 1196 (5th Cir. 1973); McLindon v. United States, 117 U.S.App.D.C. 283, 286, 329 F.2d 238, 241 n.2 (1964).
. Id.
. Compare United States v. Karanthos, 531 F.2d 26, 35 (2d Cir.), cert. denied, 428 U.S. 910, 96 S.Ct. 3221, 49 L.Ed.2d 1217 (1976) (testimony inadmissible where witnesses agreed to testify after promise of non-prosecution) and Unit
. See United States v. Marder, 474 F.2d 1192, 1196 (5th Cir. 1973); United States v. Evans, 454 F.2d 813, 818 (8th Cir.), cert. denied, 406 U.S. 969, 92 S.Ct. 2423, 32 L.Ed.2d 668 (1972); Williams v. United States, 382 F.2d 48, 51 (5th Cir. 1967); McLindon v. United States, 117 U.S.App.D.C. 283, 286, 329 F.2d 238, 241 n.2 (1964).
. See pp.---of 191 U.S.App.D.C., pp. 993-994 of 590 F.2d infra.
. See pp.---of 191 U.S.App.D.C., pp. 995-997 of 590 F.2d infra.
. Several courts have commented on the disparate judicial approaches to the exclusion of live-witness testimony. E. g., United States v. Ceccolini, 542 F.2d 136, 144 n.3 (2d Cir. 1976) (Van Graafeiland, J., dissenting); United States v. Evans, 454 F.2d 813, 818 (8th Cir.), cert. denied, 406 U.S. 969, 92 S.Ct. 2423, 32 L.Ed.2d 668 (1972).
Intra-circuit conflict is perhaps most evident in this Court, the results ranging from the views of the present Chief Justice Burger to those of former Chief Judge Bazelon. In Smith and Bowden v. United States, 117 U.S.App.D.C. 1, 324 F.2d 879 (1963), cert. denied, 377 U.S. 954, 84 S.Ct. 1632, 12 L.Ed.2d 498 (1964), Judge Burger propounded what amounted to a per se rule of attenuation in live-witness cases. See id. at 3, 4, 324 F.2d at 881, 882; id. at 6, 324 F.2d at 884 n.6 (Bazelon, C. J., dissenting) (“The majority would except the oral testimony of a ‘living witness’ from the ‘fruit of the poisoned tree’ doctrine, on the ground that a witness is an ‘individual human personality’ possessing ‘attributes of will, perception, memory and volition.’ ”); Brown v. United States, 126 U.S.App.D.C. 134, 139, 375 F.2d 310, 319, cert. denied, 388 U.S. 915, 87 S.Ct. 2133, 18 L.Ed.2d 1359 (1967) (Burger, J., concurring) (“The critical aspect of Smith-Bowden is that live witnesses are not ‘suppressed,’ as inanimate objects may be. When an eyewitness is willing to give testimony, ... he must be heard.”) Subsequently, however, a different panel of this Court promulgated a “multiple factors,” case-by-case approach. See McLindon v. United States, 117 U.S.App.D.C. 283, 286, 329 F.2d 238, 241 n.2 (1964), cited in notes 27-30 supra; Edwards v. United States, 117 U.S.App.D.C. 383, 385-386, 330 F.2d 849, 851-52 (1964) (apparently following McLindon). In Smith and Anderson v. United States, 120 U.S.App.D.C. 160, 344 F.2d 545 (1965), a third panel of this Court paid lip-service to the McLindon approach, while pronouncing what amounted to a rule of “but-for” causality. See id. at 162, 344 F.2d at 547 (Bazelon, C. J.) (live-witness testimony inadmissible, despite intervention of “several ‘human personalities,’ ” because police “used” knowledge improperly obtained and witness would not have come forward “were it not for” police investigation).
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. See notes 108-09 infra.
. See note 29 supra.
. Ruffin, Out on a Limb of the Poisonous Tree: The Tainted Witness, 15 U.C.L.A.L.Rev. 32, 64 (1967).
. See Webster’s New Collegiate Dictionary 404 (1973).
. See Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
. Maj. op. at - of 191 U.S.App.D.C., at 961 of 590 F.2d, quoting United States v. Tane, 329 F.2d 848, 853 (2d Cir. 1964).
. See note 23 supra.
. 422 U.S. at 610, 95 S.Ct. at 2265 (Powell, J„ concurring in part).
. See United States v. Guana-Sanchez, 484 F.2d 590, 594 (7th Cir. 1973), cert. dismissed as improvidentiy granted, 420 U.S. 513, 95 S.Ct. 1344, 43 L.Ed.2d 361 (1975) (Pell, J., dissenting):
I have some conceptual difficulty in determining how an exclusionary rule designed to control police behavior can be applied on a case-by-case basis as Smith [and Anderson v. United States, cited in note 33 supra ] would have us do. I am certain that police officers would have an even greater difficulty in determining whether a possible witness’s testimony was attenuated from illegality.
. United States v. Janis, 428 U.S. 433, 446, 96 S.Ct. 3021, 3028, 49 L.Ed.2d 1046 (1976), quoting United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). Accord, Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 3048, 49 L.Ed.2d 1067 (1976) (“The primary justification for the exclusionary rule . . . is the deterrence of police conduct that violates Fourth Amendment rights.”) (cit-, ing cases). The Court occasionally has mentioned, as an alternative rationale for the exclusionary rule, “the imperative of judicial integrity.” E. g., United States v. Peltier, 422 U.S. 531, 536-39, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975); Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). In the Court’s more recent decisions, however, the “judicial integrity” rationale has been almost completely discarded. Taken to its logical extension, as Justice Powell pointed out in Stone, the “judicial integrity” rationale would dictate reversal of the Court’s well-established doctrines on standing to object to admission of illegally-seized evidence, impeachment use of such evidence, and admissibility of such evidence absent objection by defendant. See 428 U.S. at 485, 96 S.Ct. 3037 (citing cases). Justice Blackmun pointed out in Janis that the “judicial integrity” inquiry in Fourth Amendment cases “is essentially the same as the inquiry into whether exclusion would serve a deterrent purpose,” 428 U.S. at 458-59 n.35, 96 S.Ct. at 3034; and Justice Rehnquist noted in Michigan v. Tucker that the “judicial integrity” rationale “is really an assimilation of the more specific rationales” such as deterrence, “and does not in their absence provide an independent basis for excluding challenged evidence.” 417 U.S. at 450 n.25, 94 S.Ct. at 2367. Concern with judicial integrity, in sum, “has limited force as a justification for the exclusion of highly probative evidence.” Stone, 428 U.S. at 485, 96 S.Ct. at 3048 (footnote omitted).
. Michigan v. Tucker, 417 U.S. 433, 447, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182 (1974).
. United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974) (footnote omitted).
. Id. at 347, 94 S.Ct. at 620, quoting Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1457, 4 L.Ed.2d 1669 (1960). Whether the exclusionary rule is indeed “the only effectively available way” to deal with unconstitutional searches and seizures, of course, has become a matter of considerable doubt. The Court recently has acknowledged that the deterrent effect of the exclusionary rule is more an assumed hypothesis than a demonstrable fact. See Stone v. Powell, 428 U.S. at 492 & n.32, 96 S.Ct. 3037; United States v. Janis, 428 U.S. at 450-52 n.22, 96 S.Ct. 3021; United States v. Calandra, 414 U.S. at 348 n.5, 94 S.Ct. 613.
. Id. at 348, 94 S.Ct. at 620. See Stone v. Powell, 428 U.S. at 486-87, 96 S.Ct. 3037.
. United States v. Janis, 428 U.S. at 448-49, 96 S.Ct. at 3029. Accord, Michigan v. Tucker, 417 U.S. at 450, 94 S.Ct. 2357. The Court recognized the societal costs imposed by the exclusionary rule as early as Nardone:
*988 Any claim for the exclusion of evidence logically relevant in criminal prosecutions is heavily handicapped. It must be justified by an over-riding public policy expressed in the Constitution or the law of the land.
308 U.S. 338, 340, 60 S.Ct. 266, 267, 84 L.Ed. 307 (1939).
. Stone v. Powell, 428 U.S. at 490, 96 S.Ct. at 3050.
. Id. at 491, 96 S.Ct. at 3051 (footnote omitted).
. Id. at 490, 96 S.Ct. at 3050 (footnote omitted).
. Id. at 489, 96 S.Ct. at 3050.
. Id. at 486-87, 96 S.Ct. at 3049, citing United States v. Calandra, 414 U.S. at 348, 94 S.Ct. 613.
. Michigan v. Tucker, 417 U.S. at 448, 94 S.Ct. 2357.
. United States v. Janis, 428 U.S. at 453-54, 96 S.Ct. at 3032.
. Id. at 458, 96 S.Ct. at 3034.
. United States v. Calandra, 414 U.S. at 351, 94 S.Ct. 613.
. Stone v. Powell, 428 U.S. at 495, 96 S.Ct. 3037.
. Several circuit courts have adopted a balancing approach in live-witness cases. In Smith and Bowden v. United States, 117 U.S.App.D.C. 1, 324 F.2d 879 (1963), cert. denied, 377 U.S. 954, 84 S.Ct. 1632, 12 L.Ed.2d 498 (1964), Judge (now Chief Justice) Burger fo-' cused on the unique nature of live-witness testimony and concluded that in general there was “no rational basis” for excluding the testimony of an eyewitness to a crime. See note 33 supra. Judge Clark used a balancing approach in Parker v. Estelle. See 498 F.2d 625, 630 (5th Cir. 1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975) (“[W]e do not think it would serve the deterrent purpose of the exclusionary rule to deny to [defendant’s] trial not merely the unlawful confession, but also truthful testimony from [a third-party witness]”). Judge Pell, dissenting in United States v. Guana-Sanchez, did the same. See 484 F.2d 590, 593 (7th Cir. 1973), cert. dismissed as improvidently granted, 420 U.S. 513, 95 S.Ct. 1344, 43 L.Ed.2d 361 (1975) (“[T]he rationale of the exclusionary rule . does not call for its extension to the point of excluding altogether an otherwise competent witness”). Cf. United States v. Paepke, 550 F.2d 385, 388-91 (7th Cir. 1977) (balancing deterrence benefits of exclusionary rule against risk of injury to tax-collection system and concluding that exclusionary rule does not prohibit use of illegally seized evidence in criminal prosecution for tax fraud committed after search) (citing Scios panel opinion).
. See 428 U.S. at 489 n.26, 96 S.Ct. 3037.
. 422 U.S. at 612, 95 S.Ct. at 2266 (Powell, J., concurring in part).
. Id. at 609, 95 S.Ct. at 2264.
. 117 U.S.App.D.C. 1, 3—4, 324 F.2d 879, 881-82 (1963), cert. denied, 377 U.S. 954, 84 S.Ct. 1632, 12 L.Ed.2d 498 (1964) (footnotes omitted).
. There are two extraordinary types of cases in which exclusion of a witness’ testimony is necessary to deter police misconduct. The first is where the police engage in unlawful acts for the specific purpose of discovering potentially useful witnesses. See p. - of 191 U.S.App.D.C., p. 991 of 590 F.2d infra. The second is where the witness’ testimony (e. g., the testimony of a police officer who participated in an illegal search) describes illegally seized evidence or otherwise inadmissible fruits. The deterrence principle obviously would be emasculated if the prosecution could use a willing witness to describe tainted evidence, and under established exclusionary rule doctrine such testimony is inadmissible. My analysis and conclusions are confined to the ordinary cases of live-witness testimony — the types of cases with which the circuit court opinions cited above have uniformly been concerned — in which the witness’ testimony derives from knowledge he possesses independently of any illegal police conduct.
. United States v. Janis, 428 U.S. at 453, 96 S.Ct. 3021.
. United States v. Calandra, 414 U.S. at 351, 94 S.Ct. at 621.
. Michigan v. Tucker, 417 U.S. at 448, 94 S.Ct. 2357.
. See pp.--- of 191 U.S.App.D.C., pp. 987-988 of 590 F.2d supra.
. In Stone, Justice Powell stressed the important role played by proportionality in criminal justice. See 428 U.S. at 490-91 & n. 29, 96 S.Ct. 3037, quoted at p. - of 191 U.S.App. D.C., p. 988 of 590 F.2d supra.
. The path of the law, of course, has headed unerringly toward unrestricted admission of relevant testimony. See McCormick’s Evidence § 71 at 150 (2d ed. E. Cleary 1972):
The rules which disqualify witnesses who have knowledge of relevant facts and mental capacity to convey that knowledge are serious obstructions to the ascertainment of truth. For a century the course of legal evolution has been in the direction of sweeping away these obstructions.
See Brown v. United States, 126 U.S.App.D.C. 134, 143, 375 F.2d 310, 319, cert. denied, 388 U.S. 915, 87 S.Ct. 2133, 18 L.Ed.2d 1359 (1967) (Burger, J., concurring), quoted in note 33 supra.
. It is on this principle, for example, that 18 U.S.C. §§ 2510-2520 (1976), regulating electronic surveillance, prohibit not only unauthorized interception of communications but equally their subsequent disclosure.
. See, e. g., United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (depositor has no Fourth Amendment interest in bank records relating to his accounts); Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973) (taxpayer has no Fourth or Fifth Amendment interest in financial records surrendered to accountant); United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (defendant has no Fourth Amendment interest in statements overheard by informer who was “wired for sound”).
. Testimony concerning matters known to a witness by virtue of illegal police activity, such as testimony describing objects illegally seized, is inadmissible. See note 65 supra.
. Such a case is probably illustrated by United States v. Karanthos, 531 F.2d 26 (2d Cir.), cert. denied, 428 U.S. 910, 96 S.Ct. 3221, 49 L.Ed.2d 1217 (1976). An affidavit supporting the search warrant in that case revealed that federal agents searched a restaurant for the specific purpose of discovering illegal aliens, id. at 28-29; the Government subsequently sought to use the aliens’ testimony against the restaurant owner.
. 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978). '
. Id. at 280, 98 S.Ct. at 1062, 55 L.Ed.2d at 279.
. Id. at 285, 98 S.Ct. at 1064-65, 55 L.Ed.2d at 282-83 (Burger, C. X, concurring in the judgment).
. Id. at 285, 98 S.Ct. at 1065, 55 L.Ed.2d at 283. The Chief Justice suggested that the per se rule might admit of an exception where police officers were shown to have searched for the specific purpose of discovering witnesses. See id. at 284, 98 S.Ct. at 1064 & n. 4, 55 L.Ed.2d at 292 & n. 4; cf. p. - of 191 U.S.App.D.C., p. 991 of 590 F.2d & note 75 supra.
. 435 U.S. at 275, 98 S.Ct. at 1059, 55 L.Ed.2d at 276, quoting 371 U.S. at 486, 83 S.Ct. 407.
. 435 U.S. at 275, 276, 98 S.Ct. at 1060-61, 55 L.Ed.2d at 277-78.
. Id. at 279, 98 S.Ct. at 1061, 55 L.Ed.2d at 279.
. Id., at 278, 98 S.Ct. at 1061, 55 L.Ed.2d at 278.
. Id., at 278, 98 S.Ct. at 1061, 55 L.Ed.2d at 278.
. Id., at 276, 98 S.Ct. at 1060, 55 L.Ed.2d at 277, citing 422 U.S. at 603, 95 S.Ct. 2254.
. 435 U.S. at 280, 98 S.Ct. at 1062, 55 L.Ed.2d at 279.
. Some of the evidence improperly seized from the file folder apparently was used in questioning Massa, whereas the illegally seized evidence was not used in questioning the witness in Ceccolini. See, 435 U.S. at 279, 98 S.Ct. at 1062, 55 L.Ed.2d at 279. Neither Massa’s identity nor his relationship with Scios was known to the FBI before the search, whereas “both the identity of [the witness] and her relationship with the respondent [were] well known to” the investigators in Ceccolini. See id., at 279, 98 S.Ct. at 1062, 55 L.Ed.2d at 279. It is unclear how much weight the Court meant to accord this latter factor, since it accepted the findings of both lower courts that “the ongoing investigation would not have inevitably led” to discovery of the witness in question. See id., at 273, 98 S.Ct. at 1058, 55 L.Ed.2d at 275.
. 422 U.S. at 603, 95 S.Ct. at 2261.
. 435 U.S. at 279, 98 S.Ct. at 1062, 55 L.Ed.2d at 279.
. Id., at 275, 98 S.Ct. at 1059, 55 L.Ed.2d at 276 (emphasis original).
. 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972).
. Id. at 365, 92 S.Ct. at 1626, quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
. 422 U.S. at 603-04, 95 S.Ct. 2254, citing 406 U.S. at 365, 92 S.Ct. 1620.
. 422 U.S. at 604, 95 S.Ct. at 2262 (footnote omitted).
. 435 U.S. at 280, 98 S.Ct. at 1062, 55 L.Ed.2d at 279.
. 417 U.S. at 447, 94 S.Ct. at 2365.
. 422 U.S. at 612, 95 S.Ct. at 2266 (Powell, J., concurring in part).
. 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (valid search incident to arrest limited to area “within the immediate control” of arrestee).
. Tr. II 30-31.
. See Brown v. Illinois, 422 U.S. at 610-11, 95 S.Ct. 2254 (Powell, J., concurring in part).
. 435 U.S. at 276, 98 S.Ct. at 1060, 55 L.Ed.2d at 277.
. Id. at 279, 98 S.Ct. 1062, 55 L.Ed.2d at 279.
. See p. - of 191 U.S.App.D.C., p. 983 of 590 F.2d & note 26 supra.
. See Parker v. Estelle, 498 F.2d 625, 630 (5th Cir. 1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975). Cf. United States v. Paepke, 550 F.2d 385, 390 (7th Cir. 1977) (defendant’s consultation of lawyer regarding tax returns purges taint of illegal search, allowing illegally seized evidence to be used in criminal prosecution for tax fraud committed after search) (citing Scios panel opinion).
. Maj. op. at - of 191 U.S.App.D.C., at 961 of 590 F.2d (emphasis added).
. United States v. Houltin, 566 F.2d 1027, 1031-32 (5th Cir. 1978) (alternate holding).
. See Brown v. United States, 126 U.S.App.D.C. 134, 139, 375 F.2d 310, 315, cert. denied, 388 U.S. 915, 87 S.Ct. 2133, 18 L.Ed.2d 1359 (1967) (strong evidence that witness agreed to testify after promise of non-prosecution); United States v. Beasley, 485 F.2d 60, 64 (10th Cir. 1973), cert. denied, 416 U.S. 941, 94 S.Ct. 1946, 40 L.Ed.2d 292 (1974) (“[W]hen the testimony of an accessory- is used there would often exist grounds for ruling that the giving of the testimony results from the accessory’s desire to help himself or herself. Thus, the exercise of human volition intervenes and it is not the product of the unlawful arrest.”).
. See United States v. Marder, 474 F.2d 1192, 1197 n. 6 (5th Cir. 1973); United States v. Evans, 454 F.2d 813, 819 (8th Cir.), cert. denied, 406 U.S. 969, 92 S.Ct. 2423, 32 L.Ed.2d 668 (1972); United States v. Hoffman, 385 F.2d 501, 504 (7th Cir. 1967), cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288 (1968); Edwards v. United States, 117 U.S.App.D.C. 383, 384, 330 F.2d 849, 850 (1964); Smith and Bowden v. United States, 117 U.S.App.D.C. 1, 2, 3, 324 F.2d 879, 880, 881 (1963), cert. denied, 377 U.S. 954, 84 S.Ct. 1632, 12 L.Ed.2d 498 (1964).
. 435 U.S. at 277, 98 S.Ct. at 1060, 55 L.Ed.2d at 277 (emphasis added).