How Illegally Obtained Evidence Becomes Legal, Attenuation and Inevitable Discovery

Let’s assume Frank was illegally detained by the police. And, as a result the police came across evidence that shows Frank committed a felony. The the bewilderment of many of our clients, the evidence may still be admissible if it is “sufficiently removed” from the illegal search by an exception to the rule known as “suppression of evidence.” That exception is called “attenuation.” The word attenuation comes from Latin, and means a “lessening.” Sometimes the rule of “inevitable discovery” may also apply.

In the famous attenuation case of Wong Sun v. United States, the defendant was illegally seized by the cops, but, many days after being let go, the defendant returned – by his own freewill and choice – to the police station and confessed. The United States’ Supreme Court ruled that under those circumstances, the confession was so “attenuated” from the illegal arrest, it should be admissible in court. In other words, the Court essentially said, “Look, the confession was so distant from the illegal arrest that it makes no sense to toss it out.” So, it’s like something stationary that you see in the rear view mirror of your car. In other words, the more you drive, the smaller things become, and ultimately, you can’t see them at all (they lessen to the point that they seem to disappear).

For a court to determine that the attenuation exception has taken place, the court will look at 1) how much times passed between the illegal arrest and the discovery of the evidence, 2) whether there were intervening events, 3) the nature and scope of the police misconduct, and 4) whether the defendant was given his “Miranda warnings,” which means informed of his “rights.”

In 2015, the Utah Supreme Court further explained this concept in State v. Strieff, which overturned a Utah Court of Appeals decision, and which was applauded by defense attorneys.

The Court explained the general rule is that when evidence is illegally obtained, it must be excluded. After all, if this were not the case, cops would have no reason to play by the rules, unless they simply had a very high regard for the US Constitution (and nobody wants to have to count on the honor any particular cop).

This Strieff case dealt with an illegal detention (arrest), which led the police to the discovery of an arrest warrant that the defendant had. Naturally, upon learning that the defendants had a warrant, they arrested him, and after that, the police conducted “a search incident to arrest.”

The Utah Supreme Court said “the lower courts are in disarray in their application of the attenuation doctrine to the outstanding warrant scenario.” In other words, across the country, courts are very confused by this rule. Strieff noted for some courts the discovery of an outstanding warrant is considered a “compelling” or dispositive “intervening circumstance,” which purges “the taint of an initially unlawful detention,” so long as the illegal arrest was not a “purposeful” or “flagrant” violation of the Fourth Amendment. In other words, all the cops had to say was, “Oops, I guess we made a mistake by illegally arresting you, but since we ran your name on the computer and see you have a warrant, it doesn’t matter. Now we can legally arrest you!” You can see how fishy this could become.

Strieff noted this was not the same in other court that treat the outstanding warrant issue as a matter of “minimal importance.”

Utah decided to adopt a third way of handling this. The Court said, “We conclude that the attenuation exception is limited to the general fact pattern that gave rise to its adoption in the United States Supreme Court—of a voluntary act of a defendant’s free will (as in a confession or consent to search). In other words, the Court went back to the reasoning of Wong Sun v. United State, and did not want to expand that ideology. So, if the defendant comes back and confesses of his own free will and choice, he can only blame himself. However, the Court said sometimes that police can police they would have discovered the evidence regardless, and that is called “inevitable discovery.”

The Utah Court then said for cases that show two acts of police work—”one unlawful and the other lawful”—courts should look to the “inevitable discovery” exception instead. The exception was adopted first by the United States Supreme Court in Nix v. Williams in 1984. The ruling was that evidence obtained in violation of the defendant’s constitutional rights would still be admissible if it could be established (with the burden on the police) that normal police work would have inevitably led to the uncovering of the evidence. In other words, if the cops did not benefit from the illegal search, and would have found it any way, no harm no foul.

The Utah Court said, “Thus, we read the Court’s attenuation cases to define the conditions for severing the proximate causal connection between a threshold act of police illegality and a subsequent, intervening act of a defendant’s free will. And in the distinct setting of both unlawful and then lawful police activity, we deem the inevitable discovery doctrine to control.”

In the Strieff case there was “no independent act of a defendant’s free will” and only two parallel lines of police work, so the Court held the attenuation doctrine did not apply, and reversed the lower court.

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