finding that illegal search which led to co-conspirator’s cooperation did not taint subsequently seized evidence since “the seizure of the [goods] ... was the product of Cohen’s voluntary cooperation” which "broke the chain of causation”
How later courts described this case
- finding that illegal search which led to co-conspirator’s cooperation did not taint subsequently seized evidence since “the seizure of the [goods] ... was the product of Cohen’s voluntary cooperation” which "broke the chain of causation”
- “[t]he mere fact that [the defendants] chose to warehouse their merchandise [on the premises at issue] will not confer standing on them”
Written by the judges who cited it.
The opinion
IRVING R. KAUFMAN, Chief Judge
(concurring):
I completely agree with Judge Meskill’s able analysis of the difficult questions of standing presented by this case. My difference relates entirely to the majority’s view that the seizure of the stolen camera lenses was lawful, although the search was not.
I have always thought that evidence discovered as a result of an unconstitutional search was inadmissible, regardless of the time when it was seized. Moreover, I am not convinced that the agents did not in fact seize the contraband when they discovered it on April 9. Although the record is not too clear on the point, the agents seem to have inspected the cartons to assure themselves that the basement cache really contained the stolen camera lenses. Cf. United States v. Sokolow, 450 F.2d 324 (5th Cir. 1971). And, more importantly, the agents plainly exercised dominion over the camera lenses from the moment they were discovered. Under these circumstances, it is clear that the lenses were as much in the Government’s possession as if the agents had carted them away.
Although it may be reasonable in this case to distinguish between the search and the seizure, I do not agree that Cohen’s “voluntary” cooperation dissipated the taint of the unlawful search. Unlike in United States v. Mullens, 536 F.2d 997 (2d Cir. 1976), Cohen did not freely come forward to exonerate a third party. See United States v. Ceccolini, 542 F.2d 136, 142, n.9 (2d Cir. 1976). Rather, Cohen’s cooperation was induced by his desire to mitigate the consequences of a prosecution against him for a serious offense, based at least in part upon the discovered lenses.
Moreover, ,1 am reluctant to extend Mullens to a case like this, because one found in possession of incriminating evidence always has a powerful incentive to cooperate “voluntarily” in a further investigation. The difficulty I have with the majority’s analysis is the extent to which it could be carried. If, for example, police unconstitutionally searched a narcotics suspect and discovered contraband, they could partly evade the exclusionary rule by inducing the suspect’s cooperation and also delaying formal “seizure” until the drug was passed to a colleague. I fear that such an attenuation would unjustifiably diminish the rule’s deterrent effect.
I do believe, however, that on the unusual facts in this case, the law enforcement officials would have discovered the camera lenses even if they had not conducted the April 9 search. The majority correctly observes that the FBI would have placed the Bristol Bargain Fair under surveillance in any event. Cohen, after his initial arrest, was anxiously pressing Galante to remove the cameras. It is inconceivable on these facts that the stolen camera lenses would not have been discovered when Cameriero arrived to cart away the contraband. Accordingly, despite my reservations regarding the majority’s application of Mullens , I concur.