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Sunday, July 26, 2009

New York Independent Source Doctrine

The Court of Appeals, in a case remarkably similar to that at bar, has clearly held that the inevitable discovery doctrine can never be used to allow the admission into evidence of contraband which was directly seized as the result of an illegal search. People v. Stith, 69 N.Y.2d 313, 319 (1987).

Moreover, a brief review of the history of this doctrine demonstrates why the People should not be allowed to resort to the Inevitable Discovery doctrine to "save" the illegally obtained evidence in this case.

A. The "Inevitable Discovery" Exception to the Exclusionary Rule does not apply here. The exclusionary rule has been applied in New York State, as elsewhere, to fulfill the twofold purpose of preserving the integrity of the judicial system and deterring illegal conduct by the police by excluding from use in Court as evidence property secured by the government in violation of an individual's constitutionally protected rights.

Exclusion of evidence is hoped to remove any incentive for law enforcement officials to employ illegal means to obtain evidence.

To achieve these ends, our federal courts, since Silverthorne Lumber Company v. United States, 251 U.S. 385 (1920), and the states, since Mapp v. Ohio, 367 U.S. 643 (1961), in addition to excluding the illegally obtained evidence itself, also refuse to admit any evidence derived from or found as a result of the improper conduct, labelling such derivative evidence the "fruit of the poisonous tree."

The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Silverthorne, 251 U.S. at 392.

Silverthorne allowed that if knowledge of derivative facts "is gained from an independent source they may be proved like any others ...." 251 U. S. at 392. It is from this "independent source" exception to the exclusionary rule that courts have found an "inevitable discovery" exception to the exclusionary rule.

It would be well to note at present two elementary features of the " independent source" doctrine which are important to a correct understanding of the "inevitable discovery" rule: first, it is not too simple to observe that the "independent source" "exception" is an exception to the exclusionary rule which applies to evidence derived from conduct unlawful under the Fourth, Fifth or Sixth Amendment; it is not an " exception" to the warrant requirement, the Fifth Amendment privilege, or the right to counsel. That is, the "independent source" rule is not concerned with justifying or excusing the primary intrusion.

Second, as a consequence, the "independent source" exception is not concerned with the admissibility of the primary evidence obtained in the wrongful intrusion, which is always suppressed, but with whether evidence derived from that unlawful intrusion or that primary evidence must also be suppressed.[ 1 Somewhat akin are the "purged taint" exception, Wong Sun v. United States, 371 U.S. 471, 488 (1963) and the "attenuation of taint" rule, Cf. U.S. v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054.]1

The New York Court of Appeals may be the first in the nation to have articulated the true "bright line" between a narrow "inevitable discovery" exception to the exclusionary rule and a broader loophole that would actually be an exception to the warrant requirement itself. Under New York law, the primary evidence obtained in an unlawful intrusion may not be used at all. Only evidence derived secondarily will be admitted if it was inevitable that evidence would have been found by lawful means anyway.

This is the only articulation of the rule which discourages evasion of the warrant mandate. People v. Stith, 69 N.Y. 2d 313, 514 N.Y.S. 2d 201 (1987).

Since the evidence sought to be offered in this case is the primary evidence that was seized by the trooper at the time of the stop of the vehicle and its unlawful search, the "inevitable discovery" exception provides no relief for the state from the application of the exclusionary rule.

The only legitimate route for the police to have obtained the evidence now sought to be entered would have been on an application for a warrant to search the vehicle, armed with the information that some white paper was seen in the door panel. Thus, this case is a clear example of how allowing the evidence in would circumvent the warrant requirement.

B. History of the inevitable discovery exception to the exclusionary rule. The history of the inevitable discovery exception leading up to Stith explains the rationale of that case and, simultaneously, the inapplicability to this case, at least under the New York constitution, of the inevitable discovery exception.

The first clear application of the "inevitable discovery" exception was in Somer v. U.S., 138 F.2d 790 (2nd Cir. 1943) where, although Judge Hand found that the primary evidence had been illegally procured, the derivative arrest of the accused could be upheld if the prosecution could show that the defendant would have been arrested without the illegally obtained information.

1. Primary vs. Secondary Evidence. The distinction between primary and derivative evidence has already been addressed, for it is elemental to the independent source exception. The primary evidence is, in this case, the controlled substances that were discovered and retrieved by the trooper when he unlawfully deviated from what has been argued as an inventory of the vehicle.

Neither the Supreme Court, Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501 (1984); Gilbert v. California, 388 U.S. 263, 272 (1967), nor the New York Court of Appeals, People v. Fitzpatrick, 32 N.Y.2d 499, 346 N.Y.S.2d 793 (1973); People v. Payton, 45 N.Y.2d 300, 408 N.Y.S.2d 395; People v. Knapp, 52 N.Y.2d 689, 439 N.Y.S.2d 871 (1981), had ever applied the "inevitable discovery" exception to primary evidence seized.

If the primary evidence could be admitted where it was shown that its discovery would have been "inevitable" without the unlawful conduct, the "inevitable discovery" exception would become an exception to the warrant requirement, or the right to counsel, or the Fifth Amendment privilege.



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