Also known as: attenuated as to dissipate the taint · attenuation dissipates the taint · attenuation doctrine · fruit of the poisonous tree attenuation
Written by attorneys — see sources below.
A doctrine under which evidence obtained following an unconstitutional search or seizure remains admissible when the causal connection between the illegality and the evidence has become sufficiently remote. Courts assess attenuation by weighing temporal proximity between the violation and the discovery of evidence, the presence of intervening circumstances, and the purpose and flagrancy of official misconduct.
State investigators unlawfully detained nurse Lynne at Coastal Therapeutics without probable cause and seized her phone. Two days later Lynne appeared at the station with counsel and voluntarily surrendered records and passwords that led to additional evidence. The passage of time combined with her counseled decision to come forward broke the causal chain, rendering the later evidence admissible.
Federal agents detained line worker Diego without probable cause and obtained incriminating statements. Diego was released and two days later returned voluntarily with counsel, received warnings, and signed a detailed confession identifying a storage unit. The intervening release, passage of time, and counseled appearance purged any taint from the initial detention.
On May 13, 1968, Chicago police detectives William Nolan and William Lenz broke into petitioner Richard Brown's apartment without a warrant or probable cause, searched it, and waited inside. When Brown arrived around 7:45 p.m. and climbed the rear stairs, the detectives arrested him at gunpoint after one positioned himself at the rear door window and the other approached from behind. The detectives had obtained Brown's name from the brother of murder victim Roger Corpus, killed one week earlier on May 6 with a .38-caliber revolver, but had identified him only as an acquaintance and lacked probable cause for arrest. They transported Brown to the Maxwell Street police station. At the station, after obtaining the Corpus homicide file, the detectives gave Brown Miranda warnings around 8:45 p.m. and questioned him for twenty to twenty-five minutes. Brown signed a two-page statement acknowledging that he and Jimmy Claggett had visited Corpus on May 5, that Claggett ordered Brown at gunpoint to bind Corpus, and that Claggett shot Corpus three times with a revolver Brown had sold him. The detectives and Brown then searched for Claggett, arrested him around 12:15 a.m., and returned to the station. Brown remained at the station and at 2 a.m. spoke with Assistant State's Attorney Crilly, who again administered Miranda warnings. Brown gave a second statement around 3 a.m. that was substantially consistent with the first but contained inaccuracies about his employment and education; he refused to sign it. Brown made a phone call to his mother at 4 a.m. and was taken before a magistrate at 9:30 a.m., approximately fourteen hours after arrest. Brown and Claggett were indicted on June 20, 1968. The trial court denied Brown's motion to suppress the statements after a hearing. At trial the State introduced evidence of both statements through Detective Nolan's testimony and the reading of the second statement to the jury. Brown was convicted of murder and sentenced to fifteen to thirty years' imprisonment. The Illinois Supreme Court affirmed the conviction.
Agents conducted an unlawful search of a hotel room and discovered a coded list of doctors. Weeks later, after an internal review, prosecutors obtained grand jury subpoenas that produced prescription records and testimony. The substantial time gap and the intervening formal grand jury process rendered the subpoena evidence admissible.
Federal agents were surveilling Michael F. Murray and several co-conspirators based on information from informants. At about 1:45 p.m. on April 6, 1983, the agents observed Murray drive a truck and James D. Carter drive a green camper into a warehouse in South Boston. When the vehicles left about twenty minutes later, the agents saw within the warehouse two individuals and a tractor-trailer rig bearing a long, dark container. Murray and Carter later turned over the truck and camper to other drivers; those drivers were followed, arrested, and the vehicles were lawfully seized and found to contain marijuana. After receiving this information, several agents converged on the South Boston warehouse and forced entry. They found the warehouse unoccupied but observed in plain view numerous burlap-wrapped bales that were later found to contain marijuana. The agents left without disturbing the bales, maintained surveillance, and did not reenter until they had a search warrant. In applying for the warrant, the agents did not mention the prior entry and did not rely on observations made during that entry. The warrant issued at 10:40 p.m., approximately eight hours after the initial entry; the agents immediately reentered the warehouse and seized 270 bales of marijuana and notebooks listing customers. Before trial, petitioners moved to suppress the warehouse evidence. The District Court denied the motion, rejecting claims that the warrant was invalid because the agents did not inform the Magistrate of their prior warrantless entry and that the warrant was tainted by that entry. The First Circuit affirmed, assuming for purposes of decision that the first entry was unlawful. The cases were consolidated and brought to the Supreme Court. The District Court did not explicitly find that the agents would have sought a warrant if they had not earlier entered the warehouse.
Agents unlawfully entered a hotel room and seized a prepaid phone containing call logs. Weeks later the logs led agents to another guest who voluntarily consented to a search of his room that uncovered pills. The extended time interval and the guest's independent consent dissipated any taint from the original entry.
On May 3, 1978, the Bloomingdale, Illinois, Police Department received an anonymous handwritten letter alleging that Lance and Susan Gates were selling drugs from their home at 37 North Ridgeway Avenue in Bloomingdale. The letter stated that Susan Gates had driven their car with Illinois license plate 1-366-497 to Florida on May 2, 1978, that Lance Gates had flown to Florida a few days earlier to drive the car back with over $100,000 worth of drugs in the trunk, that the couple kept over $100,000 worth of drugs in their basement, and that they bragged about profits from their illegal business while maintaining a modus operandi of drug purchases in Florida. Detective Mader of the Bloomingdale Police Department investigated the tip by confirming Lance Gates's address from a telephone book and verifying that the license plate number belonged to him. Mader learned from a confidential source and police records that Lance Gates had a reputation for narcotics trafficking and had been arrested in 1971 for marijuana possession. The police also confirmed through the Drug Enforcement Administration and airline records that Lance Gates had flown to West Palm Beach, Florida, on May 5, 1978, checked into a motel room registered under his wife's maiden name, and that the couple had driven north together the next morning in a Mercury station wagon bearing the reported license plates. On May 5, 1978, Detective Mader submitted an affidavit containing the anonymous letter and the results of the investigation to an Illinois Circuit Court judge, who issued a search warrant for the Gateses' residence and automobile. On May 7, 1978, after the Gateses returned to Bloomingdale following a 22-hour drive from Florida, officers executed the warrant and seized approximately 350 pounds of marijuana from the car trunk along with additional marijuana, weapons, and other contraband from the home. Lance and Susan Gates were indicted for violations of Illinois drug laws. The Illinois Circuit Court granted their motion to suppress the evidence, holding that the anonymous letter as corroborated did not establish probable cause. The Illinois Appellate Court affirmed the suppression order, and the Illinois Supreme Court also affirmed, concluding that the letter and affidavit failed to satisfy the two-pronged test under Aguilar v. Texas and Spinelli v. United States. The United States Supreme Court granted certiorari to consider the application of the Fourth Amendment to a magistrate's issuance of a search warrant based on a partially corroborated anonymous informant's tip.
An officer stopped Warren on a public street without reasonable suspicion and ran her identification. The check revealed a valid preexisting warrant unrelated to the stop. The officer arrested Warren on the warrant and found cocaine during a search incident to arrest. The discovery of the unconnected warrant constituted an intervening circumstance that attenuated the taint.
In December 2006, an anonymous tipster contacted the South Salt Lake City police department's drug-tip line to report narcotics activity at a particular residence, specifying that the activity involved a white male and providing a physical description of the man and his car. Detective Douglas Fackrell was assigned to investigate the tip and conducted intermittent surveillance of the home over the course of about a week. During this period, Fackrell observed visitors who would frequently enter the residence and leave after short periods of time, a pattern consistent with drug dealing in his experience. One of the visitors was Edward Strieff. Officer Fackrell observed Strieff exit the house and walk toward a nearby convenience store. In the store's parking lot, Fackrell detained Strieff without reasonable suspicion, identified himself as a police officer, and asked what Strieff was doing at the residence. As part of the stop, Fackrell requested Strieff's identification, and Strieff produced his Utah identification card. Fackrell relayed the information to a police dispatcher, who reported that Strieff had an outstanding arrest warrant for a traffic violation. Fackrell arrested Strieff pursuant to the warrant. When Fackrell searched Strieff incident to the arrest, he discovered a baggie of methamphetamine and drug paraphernalia. The State of Utah charged Strieff with unlawful possession of a controlled substance and possession of drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was obtained by exploitation of an unlawful investigatory stop. The trial court denied the motion to suppress. The Utah Court of Appeals affirmed the trial court's denial of the suppression motion. The Utah Supreme Court reversed. The United States Supreme Court granted certiorari.
An officer stopped Regina near a manufacturing plant without reasonable suspicion based solely on her carrying a duffel bag at dawn. The officer immediately ran a warrant check that revealed a valid preexisting warrant for a child-support matter. The officer arrested Regina on the warrant and found methamphetamine during a search incident to arrest. The preexisting warrant and the officer's merely negligent conduct broke the causal chain.
On March 26, 1971, the proprietor of a pizza parlor in Rochester, New York, was killed during an attempted robbery. On August 10, 1971, Detective Anthony Fantigrossi learned of a possible lead implicating petitioner Irving Dunaway in the crime from an informant. Fantigrossi questioned a jail inmate but obtained no information sufficient to secure a warrant for Dunaway's arrest. Nevertheless, on the morning of August 11, 1971, three detectives located Dunaway at a neighbor's house and took him into custody. Although not told he was under arrest, Dunaway would have been physically restrained if he had attempted to leave. He was driven to police headquarters in a police car and placed in an interrogation room. After receiving Miranda warnings, Dunaway waived his right to counsel and made statements and drew sketches that incriminated him in the crime. He was then formally arrested and charged with murder and attempted robbery. Dunaway's motion to suppress the statements and sketches was denied at trial, and he was convicted by a jury. Following initial affirmances and a remand from the Supreme Court in light of Brown v. Illinois, the County Court found the detention illegal and granted the suppression motion, but the Appellate Division reversed that determination. The New York Court of Appeals dismissed Dunaway's application for leave to appeal.
Courts weigh three primary considerations: the temporal proximity between the illegality and the discovery of evidence, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. Purposeful or flagrant misconduct weighs strongly against attenuation.
A voluntary, counseled decision made after release and the passage of time can constitute a significant intervening circumstance that severs the causal chain. The decision must reflect an independent exercise of free will rather than continued coercion from the initial illegality.
…He was not in custody when he made the statement. The connection between the illegal arrest and the statement had become so attenuated as to dissipate the taint. The statement was therefore admissible. IV We turn finally to the heroin found in Yee's house. The Court of Appeals held that the heroin was admissible because it was not the fruit…
…as whether the connection between the lawless conduct of the police and the discovery of the challenged evidence has "become so attenuated as to dissipate the taint." ' " 435 U. S., at 273-274. It is also suprising to learn that the issues in Stone v. Powell are "distinct" from the Fourth Amendment. : Consider the full context of the…
…voluntarily several days later to make the statement, the connection between his unlawful arrest and the statement “had 'become so attenuated as to dissipate the taint.’ Nardone v. United States , 308 U. S. 338, 341 .” Id. , at 491. The Court said: “We need not hold that all evidence is '
…acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes so attenuated as to dissipate the taint. Almost simultaneously with our development of the exclusionary rule, we announced what has come to be known as the "independent source"
…must outweigh its substantial social costs. Hudson v. Michigan , 547 U. S. 586, 591 (2006). We have previously applied the attenuation doctrine in cases involving negligent police conduct. In Hudson , police officers executed a valid search warrant but violated the Fourth Amendment’s “knock-and-announce” rule. Id. , at 588. We…
Discovery of a valid preexisting warrant unrelated to the unlawful stop constitutes an intervening circumstance. When combined with at most negligent police conduct and the absence of purposeful or flagrant misconduct, the warrant breaks the causal chain even if temporal proximity is close.
Flagrant or purposeful misconduct weighs heavily against a finding of attenuation. Systematic or widespread practices that disregard Fourth Amendment limits are more likely to keep the taint intact than isolated negligent errors.
Yes, if the causal link remains unbroken despite the passage of time. When the later evidence flows directly from the initial illegality without meaningful intervening events, suppression is still required even after a substantial delay.