Petition — United States v. Ceccolini

No. 761131

An the Supreme Court of the United States

OCTOBER TERM, 1976

UNITED STATES OF AMERICA, PETITIONER

v.

RALPH CECCOLINI

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

DANIEL M. FRIEDMAN,

Acting Solicitor General,

RICHARD I. THORNBURGH,

Assistant Attorney General,

RICHARD A. ALLEN,

Assistant to the Solicitor General,

SIDNEY M. GLAZER,

HOWARD WEINTRAUB,

Attorneys,

Department of Justice,

Washington, D. C. 20530.

Page

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r . eee 2

Constitutional provision involved .............. 2

r rte see 2

Reasons for granting the writ ................ 7

r rc. eee 20

Appendix A wie6dededeeceveceee coves la

r „t, 21a

r A eee 23a

r esse 5a

PT UE eee ese 39a

CITATIONS

Cases :

Alderman v. United States, 394 U.S. 165. 10

Brown v. Illinois, 422 U.S. 590 ............ 14,17

Brown v. United States, 375 F. 2d 310,

certiorari denied, 388 U.S. 915 .......... 15, 19

Broum v. United States, 411 U.S. 223 ........ 10

Desist v. United States, 394 U.S. 244. 8-9, 10

Edwards v. United States, 330 F. 2d 849 15

Frisbie v. Collins, 342 U. S. 5119999999 19

Harris v. New York, 401 U.S. 222 .......... 11

Harrison v. United States, 392 U.S. 219 13

Linkletter v. Walker, 381 U.S. 618. 9, 10

Michigan v. Tucker, 417 U.S. 43333. 8,9

McLindon v. United States, 329 F. 2d 238 .... 15

Nardone v. United States, 308 U.S. 338 ...... 14

Oregon v. Hass, 420 U.S. 714 .............. 11

(I)

Cases—Continued

Parker v. Estelle, 498 F. 2d 625, certiorari

Gonfied, GEE UF. OER onc ccccccccccccecese 17

Smith v. United States, 324 F. 2d 879,

certiorari denied, 377 U.S. 954 .......... 15, 18

Smith v. United States, 344 F. 2d 545. 15

Stone v. Powell, No. 74-1055, decided July 6,

77e ——«˙Ü seuct 8

United States v. Beasley, 485 F. 2d 60,

certiorari denied, 416 U.S. 9111141414 17

United States v. Brignoni-Ponce, 422 U.S. 873 13

United States v. Crouch, 528 F. 2d 625,

certiorari denied, No. 75-6985, October 18,

D 16—17

United States v. Evans, 454 F. 2d 813,

certiorari denied, 406 U.S. 98ũũ 9. 17

United States v. Guana-Sanchez, 484 F. 2d 590,

certiorari granted, 417 U.S. 967, certiorari

dismissed as improvidently granted, 420

e 17

United States v. Hoffman, 385 F. 2d 501,

certiorari denied, 390 U.S. 101 17

United States v. Janis, No. 74—958, decided

I 8

United States v. Jenkins, 420 U.S. 358 6

United States v. Karathanos, 531 F. 2d 26,

certiorari denied, No. 75-1402, July 6, 1976 14

United States v. Mandujano, 425 U.S. 564.... 11

United States v. Marder, 474 F. 2d 1192 15

United States v. Mullens, 536 F. 2d 997 14

United States v. Peltier, 422 U.S. 531 ....... 8, 10

Page

Cases—Continued

United States v. Raftery, 534 F. 2d 854,

certiorari denied, October 4, 1976,

e Ee 12

United States v. Scios, No. 75-1619, decided

August 23, 1976, petition for rehearing

D nn beedcontunnesssdtecces< 14

United States v. Tane, 329 F. 2d 848 ........ 14

United States v. Turk, 526 F. 2d 654,

certiorari denied, October 4, 1976,

D ˙ AA 12

Walder v. United States, 347 U.S. 2 11

Wong Sun v. United States, 371 U.S. 471. 14

Constitut ions and statutes:

United States Constitution, Fourth Amendment 2

, ̃ ˙ Ü iQ ͤ 2

OcTOBER TERM, 1976

No.

UNITED STATES OF AMERICA, PETITIONER

v.

RALPH CECCOLINI

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

The Solicitor General, on behalf of the United States,

petitions for a writ of certiorari to review the judg-

ment of the United States Court of Appeals for the

Second Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra)

is reported at 542 F.2d 136. The oral opinion of the

district court (App. D, infra) is unreported.

JURISDICTION

The judgment of the court of appeals (App. B,

infra) was entered on September 15, 1976. A petition

for rehearing and suggestion for rehearing en banc

was denied on December 21, 1976 (App. C, infra). On

January 13, 1977, Mr. Justice Marshall extended the

time for filing a petition for a writ of certiorari to and

including February 19, 1977. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

(1)

QUESTIONS PRESENTED

1. Whether the exclusionary rule prevents the use

of the fruits of an illegal search in a prosecution for

perjury committed after the search.

2. Whether the exclusionary rule requires the sup-

pression of the trial testimony of a witness whose

identity or whose possession of relevant information

was learned as the result of an illegal search.

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United States Consti-

tution provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no warrants shall issue, but

upon probable cause, supported by oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

STATEMENT

After a jury-waived trial in the United States Dis-

trict Court for the Southern District of New York,

respondent was found guilty of one count of making a

false declaration before a federal grand jury investi-

gating gambling operations, in violation of 18 U.S.C.

1623. The district judge thereupon immediately set

aside his finding on the ground that the testimony of

government witness Lois Hennessey should be sup-

pressed as the fruit of an unlawful search of an en-

velope on a counter in respondent’s flower shop (App.

D, infra, pp. 24a, 34a). On the government’s appeal,

the court of appeals affirmed (App. A, infra, pp. la— .

20a).

1. The evidence showed that in the second half of

1973, F. B. I. agents conducted an investigation of

gambling in North Tarrytown, New York, that in-

cluded a surveillance of respondent’s flower shop, a

place that was frequently visited by Francis J. Millow,

a target of the investigation. Their observations led

them to conclude that the flower shop was either a drop

spot or pickup spot for policy gambling operations.

The surveillance was discontinued in December 1973

(Tr. 302-308, 314-316).

On December 18, 1974, uniformed police officer

Ronald Biro, who had been assigned to patrol school

crossings on that day, entered respondent’s shop on a

cigarette break. Biro was acquainted with Lois Hen-

nessey, an employee in respondent's shop, and as he

talked with her he observed an envelope on the top of

the cash register drawer with money protruding from

it. Biro picked up the envelope, looked through its con-

tents, observed that the envelope also contained policy

slips, and put the contents back in the envelope. He

then placed the envelope back on the cash register (Tr.

66, 99-103, 117, 143, 184-189, 200-202).

Hennessey was reading a newspaper while Biro ex-

amined the envelope, and Biro did not inform her of

what he had discovered (Tr. 102, 143-144, 202). In re-

sponse to Biro’s inquiry as to whose envelope it was,

Hennessey replied that it was respondent’s and that

respondent had told her to give the envelope to some-

one. Biro did not ask her who the intended recipient

4

was. Biro then left respondent’s shop. (Tr. 66, 102-

103, 187-188, 202-203). At the time he examined the

envelope, Biro was unaware that a gambling investi-

gation of the shop had been undertaken and had no

reason to suspect that Hennessey was giving envelopes

with policy wagers to Millow or anyone else (Tr. 203

204, 206-207, 223).

On the following day, Biro mentioned what he had

observed in the flower shop to other local police officers

(Tr. 203-204), who in turn informed F. B. I. Agent

A. Lance Emory that Biro had seen an envelope con-

taining gambling records in the flower shop. Emory

assumed that the information that was relayed to him

had been legally obtained (Tr. 360-362, 368, 482).

Approximately four months later, in March or April

1975, Emory conferred with Lois Hennessey at her

home for about 15-20 minutes, in the presence of her

mother and two sisters. After identifying himself,

Emory told Hennessey that he had learned through the

police department that she was employed by respondent

and that the “Government was interested in any infor-

mation she might provide regarding incidents in [re-

spondent’s shop]! (Tr. 108-112, 124-125, 153-154,

363-365, 369, 372, 390-391, 397-398). Hennessey, who

was then studying police science in college and was

interested in police work, said that “she would be

willing to help the Government” (Tr. 390). Although

Emory did not specifically refer to the Biro incident

during the course of their meeting, and Hennessey

' Respondent was not present at the time Biro was in the

shop, and it was not until shortly before trial that he became

aware of Biro’s search (App. A, infra, p. 4a).

testified that the incident “wasn’t on my mind” at the

time, she related the events of that day to Emory (Tr.

109, 111-112, 125-126, 365-367, 371, 389). There-

after, Emory informed an attorney for the Depart-

ment of Justice about Hennessey (Tr. 392, 402-403).

In May 1975, both Hennessey and respondent were

subpoenaed to testify and did testify before the grand

jury. In his testimony on May 12, respondent un-

equivocally denied that he ever took policy bets at his

shop for Millow (Govt. Ex. 2).

Respondent’s grand jury testimony was shown to be

false at trial by the testimony of Hennessey. She testi-

fied that she had observed customers place policy and

football bets with respondent and that those bets were

then given by respondent to Millow, who would come

into respondent’s shop almost daily (Tr. 67-74, 80-85,

89, 113-114, 117, 141-142). A tape recording of an

intercepted telephone conversation between respondent

and Millow also implicated respondent in gambling

activity (Tr. 339-341), as did the evidence of the

physical surveillance of respondent’s shop (Tr. 302-

308, 315-316).

2. At the conclusion of the trial, the district court

found respondent guilty of perjury.’ After making this

2? A witness at respondent's trial testified (Tr. 166-167) that

she was present during a conversation between respondent and

Millow on May 9, three days prior to respondent's grand jury

appearance, at which Millow told respendent “[y]ou are going

downtown Monday to see the big boys\* * and whatever they

ask you, just tell them you don't remember, because if you

don't remember, that is not lying (Tr. 168).

* Respondent was acquitted on a second count of perjury,

finding however, the court granted respondent’s mo-

tion to suppress Hennessey’s testimony,‘ on the basis of

the court’s determination that her testimony at trial

was tainted by the fact that her potential as a witness

“first came directly to the attention of the government

as a result of an illegal search” and that the govern-

ment “has not sustained its burden of showing that

Lois Hennessey’s testimony definitely would have been

obtained without the illegal search” (App. D, infra, pp.

26a-—27a). The court concluded that, without her testi-

mony, there was insufficient evidence of respondent’s

guilt (App. D, infra, p. 30a).

3. On the government’s appeal, a divided court of

appeals affirmed (App. A, infra). The court rejected

the government’s contention that the testimony of Lois

Hennessey was an act of free will sufficient to purge

the taint of any unlawful invasion * * * on December

18, 1974” (App. A, infra, p. 12a). Noting that the

F. B. I. agent had sought out Hennessey, it concluded

that the district court’s suppression of Hennessey’s

testimony was proper because “the road to Miss Hen-

nessey’s testimony from Officer Biro’s concededly un-

which charged that he had made false statements in the grand

jury when testifying that he did not know that one Hank Bucci

was involved in gambling operations.

‘ Before the evidence was presented, respondent had made a

motion to exclude the testimony of Lois Hennessey on the

ground that her identity was procured as a result of an illegal

search. The court reserved decision on the motion until the

trial was completed (Tr. 17-19).

The court first held (App. A, infra, p. 7a) that the govern-

ment could appeal the ruling of the district court. This conclu-

sion was plainly correct. See United States v. Jenkins, 420

U.S. 358, 365.

7

constitutional search is both straight and uninter-

rupted” (App. A, infra, p. 13a). The court also re-

jected the government’s argument that the exciusion-

ary rule should not be applied when the evidence

derived from the search is being used to prove an inde-

pendent crime, here perjury, that occurred long after

the unlawful intrusion (id. at 13a—15a).

Judge Van Graafeiland, dissenting, urged that the

doctrine of attenuation of taint should have different

application when the evidence under consideration is

the testimony of a live witness. Since Hennessey was not

coerced by the government into becoming a witness,

and her testimony was clearly established as being the

product of her “ ‘willingness to cooperate with the

FBI’ ” (App. A, infra, p. 18a), Judge Van Graafeiland

concluded that the testimony should be admissible be-

cause the factor of the witness’s willingness to coop-

erate sufficiently purged the taint of the prior search

(id. at 17a—18a). Aligning himself with decisions of

the United States Court of Appeals for the District of

Columbia Circuit, he noted that there “is a marked

difference * * * between our holdings and those of [that

court] which should, perhaps, be resolved by the Su-

preme Court” (id. at 17a, n. 3). In his view, the ma-

jority’s decision could only be “attributed to its dis-

enchantment with the attenuation rule itself, not

the application of the rule to the facts of this case“ (id.

at 19a—20a).

REASONS FOR GRANTING THE WRIT

This case presents two important questions concern-

ing the application of the exclusionary rule: first,

whether the rule requires the exclusion of the fruits of

an illegal search when they are introduced to prove a

crime that was neither committed nor foreseeable at

the time of the search; and second, whether the rule

requires the exclusion of the testimony of a live witness

whose identity or whose possession of relevant informa-

tion was learned as a result of an illegal search. Both

issues have generated conflicting courts of appeals de-

cisions, and review by this Court is appropriate both

because of the inherent significance of the issues and

in order to resolve the conflict among the circuits.

1. The suppression of the fruits of an unlawful

search in a prosecution for an independent offense

committed long after the search is contrary to the

policies underlying the exclusionary rule, which “has

never been interpreted to proscribe the use of illegally

seized evidence in all procedings, or against all per-

sons” and which, in view of its substantial societal

costs, is to be carefully “restricted to those areas where

its remedial objectives are thought most efficaciously

served.” United States v. Calandra, 414 U.S. 338, 348.

See also Stone v. Powell, No. 74-1055, decided July 6,

1976, slip op. 19.

The primary objective, if not the sole objective, of

the exclusionary rule “is to deter future unlawful

police conduct and thereby effectuate the guarantee of

the Fourth Amendment against unreasonable searches

and seizures.” United States v. Calandra, supra, 414

U.S. at 347. Accord, e.g., United States v. Janis, No.

74-958, decided July 6, 1976, slip op. 13; Stone v.

Powell, supra, slip op. 18-19; United States v. Peltier,

422 U.S. 531, 536-539; Michigan v. Tucker, 417 U.S.

433, 446-447; Desist v. United States, 394 U.S. 244,

254 n. 24; Linkletter v. Walker, 381 U.S. 618, 636

637. Accordingly, this Court has declined to apply the

exclusionary rule in circumstances where exclusion

would have a minimal deterrent effect on police miscon-

duct and where exclusion would frustrate significant

public interests.

Thus, in Calandra, the Court declined to apply the

exclusionary rule to ‘prohibit the government from

asking a grand jury witness questions based on infor-

mation obtained in an illegal search. The Court ob-

served that such an “extension of the exclusionary rule

would seriously impede the grand jury” and stated that

“{a]ny incremental deterrent effect which might be

achieved by extending the rule to grand jury proceed-

ings is uncertain at best.” 414 U.S. at 349, 351. In

Janis, the Court declined to apply the exclusionary rule

to bar evidence illegally seized by a state officer from

admission in a federal civil tax proceeding, reasoning

that “the additional marginal deterrence provided by

forbidding a different sovereign from using the evi-

dence in a civil proceeding surely does not outweigh the

cost to society of extending the rule to that situation”

(slip op. 20). In Michigan v. Tucker, the Court held

that the Miranda exclusionary principle did not

apply to bar the testimony of a witness who was iden-

tified by the defendant in the course of questioning

that followed inadequate warnings, in part on the

ground that the “deterrent effect on future police con-

duct [of] the exclusion of [the defendant’s] statements

* * * would [not] be significantly augmented by exclud-

10

ing the testimony of the witness * * * as well” (417

U.S. at 448).°

The principle underlying the foregoing decisions ap-

plies with particular force to prosecutions for crimes

committed after the unlawful police conduct has oc-

curred, especially when, as in this case, the subsequent

crime is independent of the purpose of the police in-

vestigation that embodied the unlawful search. It is

difficult to imagine how police misconduct could be sig-

nificantly deterred by the prospect of the exclusion of

the fruits of a search in the prosecution of a crime that

has not taken place and the commission of which is not

foreseeable at ibe time of the search. However zealous

they may be, law enforcement officials surely have little

incentive to conduct illegal searches for evidence of

crimes that have not yet taken place, particularly since

their actions may jeopardize the prosecution of a crime

that has taken place. Indeed, the potential for deter-

rence is even less than in cases such as Calandra, Janis,

and Michigan v. Tucker, in which the Court has de-

clined to apply the exclusionary rule.

There are especially compelling reasons, moreover,

for declining to apply the exclusionary rule when the

subsequently committed crime is perjury. This Court

has held that the compelling public interest in securing

The absence of significant deterrence benefits has also been

the basis of decisions declining to apply exclusionary rules

retroactively (see United States v. Peltier, 422 U.S. 531;

Desist v. United States, 394 U.S. 244, 254, n. 24; Linkletter v.

Walker, 381 U.S. 618, 636-637) and of decisions denying

standing to persons who were not themselves the victim of

unconstitutional searches. Alderman v. United States, 394 U.S.

165, 174-175; Brown v. United States, 411 U.S. 223.

— —

11

truthful testimony—an objective that is essential to

the very functioning of the judicial process—cannot

permit the exclusionary rule to be used as a shield

against legitimate grand jury investigations or as a

license for perjury. United States v. Calandra, supra;

United States.v. Mandujano, 425 U.S. 564. See also

Oregon v. Hass, 420 U.S. 714; Harris v. New York,

401 U.S. 222, and Walder v. United States, 347 U.S.

62, where the Court declined to apply the exclusionary

rule to prohibit the government from impeaching false

testimony by means of unlawfully obtained evidence.

The policies underlying those decisions should con-

trol the instant case. In Mandujano, the Court held that

a defendant could be prosecuted for perjury even if his

allegedly false grand jury testimony was procured

without giving constitutionally required warnings. In

Hass, Harris, and Walder, as here, the government

sought to use unlawfully obtained evidence against

perjury committed after the evidence was obtained.

The fact that here, unlike those cases, the evidence is

sought to be used directly in a prosecution for perjury

rather than for the impeachment of false testimony

given during the trial of some other charge is imma-

terial. In both situations the evidence is used against

subsequent perjury, and its use is necessary to protect

the judicial process from false testimony; moreover,

the evidence may be as damaging to the defendant

when used for impeachment as when used directly to

prosecute for perjury.

The decision below is in direct conflict with decisions

of the Fifth and the Ninth Circuits, which have held

that the exclusionary rule does not prevent the use of

12

the fruits of an illegal search in a prosecution for

perjury committed after the search. United States v.

Turk, 526 F. 2d 654 (C.A. 5), certiorari denied, Octo-

ber 4, 1976, No. 75-1633; United States v. Raftery,

534 F. 2d 854 (C.A. 9), certiorari denied, October 4,

1976, No. 76-5007. The courts in those cases analyzed

the policies of the exclusionary rule, as reflected in the

decisions of this Court discussed above, and concluded

that the marginal deterrent effect of suppressing the

evidence did not outweigh the substantial interest in

preventing perjured testimony.

In contrast, the conclusion of the court below that

the exclusionary rule applies to the prosecution of sub-

sequently committed crimes of any kind, including

perjury, cited no authority and was made without

analysis of the relevant policies underlying the exclu-

sionary rule (App. A, infra, pp. 13a—15a). The court

attempted to distinguish Turk and_Raftery on the

ground that the defendants in those cases were aware

of the illegal searches when they gave their false testi-

mony (App. A, infra, p. 14a), but such a distinction is

untenable. The courts in Turk and Raftery relied pri-

marily on the absence of significant deterrence benefits

to be derived from applying the exclusionary rule to

these circumstances and on the compelling public inter-

est in truthful testimony. Those considerations are not

affected by the witness’s awareness or ignorance of the

illegal search. In either case, the exclusionary rule

should not apply.

2. The decision below also squarely presents the issue

of whether and under what circumstances the volun-

tary testimony of a witness at trial * * * is subject to

— ae ~~

13

suppression as the fruit of an illegal search.” That

is an important question that has been reserved by this

Court ( United States v. Brignoni-Ponce, 422 U.S. 873,

876, n. 2; Harrison v. United States, 392 U.S. 219, 223,

n. 9) and upon which there is “marked difference” of

opinion in the courts of appeals (App. A, infra, p. 17a,

n. 3) which this Court should resolve.

The court of appeals concluded that because Hen-

nessey’s knowledge of the matters under investigation

was discovered as a result of an illegal search, her trial

testimony should be suppressed: “the road to Miss

Hennessey’s testimony from Officer Biro’s concededly

unconstitutional search is both straight and uninter-

rupted, and we would not hold her testimony admis-

sible merely because her cooperation with the Govern-

ment was not coerced” (App. A, infra, p. 13a). The

court declined to consider the lapse of time between

the search and Hennessey’s testimony, the likelihood

that Hennessey’s utility as a witness would have been

discovered quite apart from the improper search,’ and

the other evidence at trial which, as Judge Van Graafei-

land observed (App. A, infra, pp. 18a—19a), clearly

established that Hennessey’s cooperation with the gov-

® United States v. Brignoni-Ponce, 422 U.S. 873, 876, n. 2.

The government contended on appeal, in addition to the

issues raised in this petition, that Hennessey’s testimony should

have been admissible because the investigation would inevita-

bly have disclosed her utility. The court of appeals rejected the

factual bremise for this contention (see App. A, infra, pp.

8a-—lla). While we do not here seek review¥the court's con-

clusion that the discovery of Hennessey was not inevitable,

the-court-+deeisiaig we believe that the likelihood that a live

witness would become available apart from any illegal search

is relevant to a proper analysis of the issue we do present.

14

ernment and her testimony were the product of her own

free will. In sum, the court of appeals’ analysis draws

no distinction for purposes of the application of the

exclusionary rule between the testimony of live wit-

nesses and any other evidence that might be said to

be the fruit of an illegal search.* —

In our view there are significant differences between

live witnesses and other types of evidentiary fruits“

of police misconduet, differences that relate to the

fundamental policies of the exclusionary rule and that

are implicit in the attenuation doctrine of the exclu-

sionary rule, set forth in such cases as Brown v. Illinois,

422 U.S. 590; Wong Sun v. United States, 371 U.S. 471,

488; and Nardone v. United States, 308 U.S. 338, 341.

The difference between live witness testimony and

other types of evidentiary fruits has been recognized

and applied by the District of Columbia Circuit in sev-

eral cases, the most recent of which is United

States v. Scios, No. 75-1619, decided August 23, 1976

petition for rehearing pending (reproduced at App. E,

infra), where the court held that the testimony of a

witness was admissible after applying an analysis sub-

stantially different from that of the instant case. In

That approach is reflected in other Second Circuit decisions.

See, e.g, United States v. Tane, 329 F. 2d 848, 853 (C. A. 2),

where the court suppressed the testimony of a witness whose

identity was revealed by an illegal wiretap, because the “road

from the tap to the testimony may be long, but it is straight.”

See also United States v. Karathanos, 531 F. 2d 26, 34-35

(C. A. 2), certiorari denied, No. 75-1402, July 6, 1976; but ef.

United States v. Mullens, 536 F. 2d 997 (C. A. 2), where the

court refused to suppress the confession of a defendant who

presented himself to police officers and gave incriminating

statements following an unlawful search of his home.

15

Scios agents illegally searched a file folder in the

defendant's office and discovered the name of an

individual who was subsequently contacted for ques-

tioning. After consulting with an attorney, the indi-

vidual refused to testify before a grand jury unless

immunized, was given immunity, and then testified as

a grand jury witness against the defendant. The court

of appeals, after applying the principles set forth in

Brown v. Illinois, supra, ruled that the prospective

trial testimony of the witness was admissible, conclud-

ing that the lapse of time and other intervening events

sufficiently dissipated the taint of the illegal search as

to make the witness's testimony the product of his free

will (App. E, infra, pp. 48a—56a). The court also con-

cluded that the inspection of the file folder was not

sufficiently flagrant to warrant suppression of the wit-

ness’s testimony and that the “the deterrent purpose

of exclusion would be minimally advanced in this case“

by barring the witness from testifying (id. at 57a).“

Other circuits have applied a similar approach and

have considered a variety of factors in determining

whether live-witness testimony should be suppressed.

For example in United States v. Marder, 474 F. 2d

1192, 1196 (C. A. 5), the court said:

*The approach in Scios follows other decisions of the Dis-

trict of Columbia Circuit, which have generally held the testi-

mony of live witnesses admissible. See Brown v. United States,

375 F. 2d 310, 313-315 (C.A.D.C.), certiorari denied, 388 U.S.

915 (testimony admitted); Smith v. United States, 344 f 2d

545 (C. A. D.C.) (testimony not admitted); Kdwards v. United

States, 330 F. 2d 849 (C. A. b. C.) (testimony admitted); Smith

v. United States, 324 F. 2d 879, 881-882 (C.A.D.C.), certiorari

denied, 377 U.S. 954 (testimony admitted). Cf. MeLindon v.

United States, 329 F. 2d 238 (C. A. D.C.).

16

Proof that the witness would have come

forward by his own volition, regardless of his

identification by the illegal search, would be

extremely relevant to a determination of at-

tenuation. United States v. Hoffman, 385

F.2d 501, 504 (7th Cir. 1967) [certiorari

denied, 390 U.S. 1031]. Likewise, evidence

that the witness was completely uncoopera-

tive when originally discovered by the illegal

search but later changed his attitude and

supplied the necessary information, would

tend to prove the attenuation of the original

taint. See Smith & Bowden v. United States,

324 F.2d 879, 882, 117 U.S. App. D.C. 1

(1963) [certiorari denied, 377 U.S. 954].

This is certainly not an exhaustive list of the

factors to be considered. Only reasoned judg-

ment will determine whether the necessary

circumstances exist which call for the appli-

cation of the attenuation rule to so called

“live testimony.” ”

There are, as the cases indicate, a variety of possible

approaches to the question of live witness testimony.

At one extreme, reflected in the opinion below, live

witness testimony is treated no differently from other

evidentiary fruits and is suppressed whenever the iden-

tity and usefulness of the witness came to the attention

of law enforcement officials as a result of an unlawful

"In Marder, the court held that the testimony should not

have been admitted but that its admissic.: was harmless. Other

courts applying the balancing test have generally held the

testimony admissible. See [/nited States v. Crowch, 528 F. 2d

17

search. Such an approach, we submit, is contrary to the

principles of Brown v. Illinois and Wong Sun, supra,

in which the Court recognized that testimonial evidence

may depending on such factors as the time interval

between the misconduct and the receipt of the evidence,

intervening circumstances, and the purposes and flag-

rancy of the misconduct—be “sufficiently a product of

free will to break, for Fourth Amendment purposes,

the causal conection between the illegality and the

[testimonial evidence].” Brown v. Illinois, supra, 422

U.S. at 603."

625, 630 (C. A. 7), certiorari denied, No. 75-6985, October 18,

1976 (testimony admitted); Parker v. Estelle, 498 F. 2d 625,

629-630 (C. A. 5), certiorari denied, 421 U.S. 963 (testimony

admitted); l/nited States v. Hoffman, 385 F. 2d 501, 504-505

(C.A. 7), certiorari denied, 390 U.S. 1031 (testimony ad-

mitted) ; United States v. Evans, 454 F. 2d 813, 817-818 (CA.

8), certiorari denied, 406 U.S. 969 (testimony admitted);

United States v. Beasley, 485 F. 2d 60, 63-64 (C.A. 10), certi-

orari denied, 416 U.S. 941 (testimony admitted). See also

United States v. Guana-Sanchez, 484 F. 2d 590, 592-596

(C.A. 7) (Pell, J., dissenting), certiorari granted, 417 U.S. 967,

certiorari dismissed as improvidently granted, 420 U.S. 513.

Application of those considerations to the instant case

should result in the admissibility of Hennessy testimony.

With respect to temporal proximity, Hennessy was not con-

tacted for questioning until four months after the search that

suggested her as a potential witness and did not testify at trial

for another six months. Moreover, when she was first contacted

for questioning she expressed a willingness to cooperate de-

rived from her interest in police science, and she later testified

that the initial incident concerning the search of the envelope

played no role in her readiness to cooperate, since it was not

even on her mind. Finally, the initial search of the envelope

was hardly flagrant and was in no way motivated by a desire

to identify persons who might connect respondent with illicit

A substantially different approach from that of the

court below, giving great weight to the inherent dif-

ferences between the trial testimony of a third party

witness and other types of evidentiary fruits, supports

the conclusion that it is generally inappropriate to sup-

press such testimony, except perhaps in egregious cases

where a flagrantly unlawful search is undertaken for

the conscious purpose of discovering potential wit-

nesses. As Chief Justice (then Judge) Burger observed

in Smith v. United States, 324 F. 2d 879, 881-882

(C.A.D.C.), certiorari denied, 377 U.S. 954:

The proffer of a living witness.is not to be

mechanically equated with the proffer of in-

animate evidentiary objects illegally seized.

The fact that the name of a potential witness

is disclosed to police is of no evidentiary sig-

nificance, per se, since the living witness is an

individual human personality whose attri-

butes of will, perception, memory and volition

interact to detemine what testimony he will

give. The uniqueness of this human process

distinguishes the evidentiary character of a

activities. While obviously not commendable, the search con-

sisted of nothing more than casual inspection of an envelope

lying on a counter by a policeman who was legally entitled to

be where he was. Nor is there any evidence that the search was

“purposeful” or its results “exploited”; Officer Biro had no

previous knowledge of respondent's gambling activities, and

the FBI agent who later interviewed Hennessy had no know!l-

edge that any unlawful conduct had prompted the report that

she might be able to supply useful information.

19 ~

witness from the relative immutability of in-

animate evidence.

Consideration of the basic purposes of the Fourth

Amendment, the deterrence objectives of the exclusion-

ary rule, and the impact on the integrity of the judicial

process resulting from treating live witness testimony

like other evidentiary fruits also supports a general

presumption against the suppression of live-witness

testimony.

A third approach is reflected in the decisions of the

District of Columbia Circuit and other circuits that

have applied a variety of factors on a case-by-case basis

to determine whether live-witness testimony is suffi-

ciently attenuated to purge the primary taint, but that

have also recognized that live-witness testimony is, for

these purposes, significantly different from other types

of evidentiary fruits.

In short, whether and under what circumstances the

exclusionary rule applies to the trial testimony of a

The intervening circumstances of the trial itself and the

witness's willingness to testify under oath and to be subject to

cross-examination may also warrant a presumption that the

testimony is the product of the witness’s act of free will rather

than of the initial misconduct. As Chief Justice Burger also

observed in Brown v. United States, 375 F. 2d 310, 319 (C.A.

D.C.) (concurring), certiorari denied, 388 U.S. 915:

[Live witnesses are not suppressed, as inanimate

objects may be. When an eyewitness is willing to give

testimony under oath and subject to all the rigors of

cross-examination and penalties of perjury, he must

be heard. How he came to be in court is a matter

which goes only to the weight, not the admissibility

of his testimony.

Cf. Frisbie v. Collins, 342 U.S. 519.

witness whose utility was discovered as a result of an

improper search is squarely presented by the decision

below, involves a conflict among the circuits, is impor-

tant to law enforcement, and should be resolved by this

Court.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari should

be granted.

DANIEL M. FRIEDMAN,

Acting Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

RICHARD A. ALLEN,

Assistant to the Solicitor General.

SIDNEY M. GLAZER,

HOWARD WEINTRAUB,

Attorneys.

FEBRUARY 1977.

—

—— —

—

APPENDIX A

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT _

UNITED STATES OF AMERICA, APPELLANT,

v.

RALPH CECCOLINI, DEFENDANT-APPELLEE.

No. 1125, Docket 76-1091.

ARGUED JUNE 8, 1976.

DECIDED SEPT. 15, 1976.

Before KAUFMAN, Chief Judge, and FEINBERG and

VAN GRAAFEILAND, Circuit Judges.

FEINBERG, Circuit Judge:

This admirably argued case comes to us in an un-

usual procedural posture. After a non-jury trial in the

United States District Court for the Southern District

of New York on two counts charging perjury before a

grand jury, 18 U.S.C. § 1623, Judge Lee P. Gagliardi

found defendant Ralph Ceccolini not guilty on one

count and guilty on the other. But the judge then imme-

diately set aside the guilty verdict on the ground that

essential testimony against defendant had to be sup-

pressed as the fruit of an illegal search. Citing 18

(la)

U.S.C. § 3731 and 28 U.S.C. § 1291, the Government

appeals and argues that the judge erred in suppress-

ing the evidence and setting aside the verdict. Appellee

Ceccolini contends that the Double Jeopardy Clause

bars the Government’s appeal and, even if that is not

so, that the judge’s ruling was correct. We reject the

former contention, but agree with the latter. Therefore,

we affirm.

L

The relevant facts are as follows. In the second half

of 1973, federal authorities conducted an investigation

of gambling in North Tarrytown, New York. Surveil-

lance by federal agents included various stores, includ-

ing defendant Ceccolini’s Sleepy Hollow Flower Shop,

which were frequently visited by Francis J. Millow, a

target of the investigation. In this period, the agents

did not question any employee of any of these busi-

nesses. Surveillance was discontinued in December

1973.

On December 18, 1974, North Tarrytown Police

Officer Ronald Biro entered the flower shop merely, ac-

cording to Biro, to enjoy a cigarette break. He went

into the part of the shop customarily used only by em-

ployees, where he noticed on the cash register an enve-

lope with some money sticking out. Biro picked up the

Although surveillance of the stores was discontinued, on

December 3, 1974, a telephone conversation between Millow

and Ceccolini, implicating the latter in a betting operation,

was intercepted by local police officers participating in a com-

bined federal-state gambling investigation.

eee — — —

envelope, examined its contents, saw that it contained

currency and policy slips, and replaced it. Lois Hen-

nessy, an employee, was present while this was going

on. Biro did not tell Miss Hennessy what he had seen

in the envelope but did ask her questions about it. Miss

Hennessy told Biro that Ceccolini had told her to give

the envelope to someone.

Within 24 hours, Biro notified North Tarrytown de-

tectives who, in turn, informed Lance Emory, an FBI

agent who had participated in the gambling investiga-

tion. About four months later, Emory interviewed Miss

Hennessy at her home for about 20-30 minutes. At the

time, Emory was under the impression that Biro’s ac-

tivities had been entirely legal. Miss Hennessy related

the events of the December 18, 1974 incident to Emory.

Thereafter, defendant Ceccolini was subpoenaed before

the grand jury and testified that he had never taken

policy bets at his flower shop for Francis J. Millow. The

following week, Miss Hennessy gave contradictory

testimony before the grand jury; shortly afterwards,

Ceccolini was indicted on the perjury charge now the

subject of this appeal.’

2 This was Count I of the indictment. Count 2 charged that

Ceccolini had made a false statement to the grand jury when

he testified that he did not know that Hank Bucci was in-

volved in gambling operations. Judge Gagliardi found de-

fendant not guilty on this count because

although there is evidence to support this charge the

government has not met its burden of proof beyond

a reasonable doubt. The defense did establish the

possibility that Hank Bucci, who had several previous

gambling convictions, was not known by the defend-

ant to be currently involved in gambling at the time

the question was asked.

4a

Ceccolini made several motions in preparation for

trial. In July, the district judge granted various re-

quests for discovery; the Government did not comply

until the end of September, shortly before the scheduled

trial date. The Government’s list of witnesses included

Officer Biro, and when the defense interviewed him, it

learned for the first time of Biro’s December 18, 1974

search. At the start of the trial, defendant orally moved

to suppress testimony, including Miss Hennessy’s, de-

rived from Biro’s search, but acceded to the judge’s

suggestion that the hearing on the motion proceed si-

multaneously with the non-jury trial. Thereafter, the

judge heard testimony from Officer Biro, Agent Emory

and others. At the close of the Government’s case, de-

fendant moved for a directed verdict, which was de-

nied. Defendant testified in his own behalf and called

other witnesses. The judge, as the trier of fact, reserved

decision until after considering a memorandum of law

submitted by the Government on the suppression of

Miss Hennessy’s testimony.

Several months later, the judge in open court pro-

nounced the defendant guilty on Count 1 but then im-

mediately stated his assumption that the defendant’s

prior motion for a directed verdict included “a motion

now. to set aside the verdict of guilty on Count 1.”

Defendant’s counsel quickly acquiesced, and the judge

then gave an oral opinion in which he first granted the

motion to suppress Miss Hennessy’s testimony and then

set aside the verdict for insufficient evidence. Some col-

loquy followed in which defense counsel said that the

testimony should have been suppressed before the ver-

dict, in which event the Double Jeopardy Clause would

have barred government appeal. The judge disagreed

and confirmed this view in a later memorandum opin-

ion, which stated, in relevant part:

In light of the serious legal issues raised by

the motion to suppress—particularly on the

question of taint—it was this court’s explicit

intention that the government have the right

to appeal an adverse decision on that issue.

18 U.S.C. § 3731 clearly contemplates that

the government be permitted to appeal trial

court rulings which do not place a defendant

in double jeopardy. Here Ceccolini was found

guilty on the basis of all the evidence pre-

sented to this court. His conviction was set

aside because evidence adduced at trial indi-

cated that the testimony of the government’s

key witness was tainted by an illegal search.

The hearing on the motion to suppress was

consolidated with the trial for the convenience

of the court, counsel and the witnesses, with-

out objection by Ceccolini. Furthermore in

this case the issue of taint was sufficiently un-

certain that had there been a jury trial, the

court would have let the Hennessy testimony

go to the jury and then ruled on the motion to

exclude it in the event Ceccolini was con-

victed. Under those circumstances, the gov-

ernment would then have had the right to

appeal this court’s ruling. There is no reason

why the government should be deprived of

this opportunity because the case was tried

without a jury.

This appeal by the Government followed.

II.

Ceccolini renews his argument that under the cir-

cumstances of this case the Double Jeopardy Clause

precludes a government appeal. He claims that the

judge should have ruled on the admissibility of Miss

Hennessy’s testimony before deciding the ultimate is-

sue of guilt or innocence. Had the judge done that, he

would have had to acquit because the evidence was

otherwise insufficient to convict, as the judge found.

Since the Government could not have appealed from

such a judgment, it should not be able to do so now.

The argument is correct as far as it goes but it does

not go far enough. The judge could have followed the

suggested procedure but it was not the only possible

alternative. The judge could also have ruled on the

motion to suppress prior to the start of the trial. If he

had followed that course and reached the same result,

the Government points out to us, it could have immedi-

ately appealed under 18 U.S.C. § 3731 to test the sup-

pression ruling. We are aware that Ceccolini did not

know until just before trial about Biro’s search and his

connection with the Hennessy testimony and so could

not have moved sooner.’ We also realize that such a

motion would have required a separate evidentiary

hearing. But in a non-jury case such potential duplica-

* Judge Gagliardi so found.

Ta

tion of tesitmony is often eliminated at trial, if the

motion to suppress is denied, by allowing the record

of the suppression hearing to be used at trial. That

procedure would have been preferable to the one fol-

lowed here. See United States v. Birrell, 470 F.2d 113,

115 (2d Cir. 1972).

In any event, we agree with the district judge

and the Government that the course followed here did

not deprive it of the right to appeal. The judge as trier

of fact first found defendant guilty and then granted

defendant’s motion to set aside the guilty verdict. In

United States v. De Garces, 518 F.2d 1156 (2d Cir.

1975), the same sequence occurred and we held, on

the authority of United States v. Jenkins, 420 U.S.

358, 365, 368, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975),

that the Government could appeal. The trier of fact in

De Garces was a jury and here it was a judge, but the

distinction is not controlling. If the Government’s posi-

tion on the merits is correct, “a retrial would not be

required.” United States v. Jenkins, supra, 420 U.S.

at 365, 95 S.Ct. at 1011, citing United States v. Wilson,

420 U.S. 332, 344-45, 352-53, „ S.Ct. 1013, 43

L.Ed.2d 232 (1975). In De Garces, since the Govern-

ment’s position on the merits was correct, we merely

vacated the judgment of acquittal granted by the judge

after the guilty verdict and remanded the case to the

district court with directions to reinstate that verdict.

If the Government were correct here on the merits, we

would follow the same procedure.‘ This appeal is not

offensive to the Double Jeopardy Clause.

Cf. United States v. Fayer, 523 F. 2d 661, 664 (2d Cir.

1975).

8a

III.

We turn now to the merits of the Government's

appeal. The most damning evidence on Count 1 was the

testimony of Lois Hennessy that, while she was an

employee at the flower shop, she saw customers place

bets with Ceccolini and that she knew these bets were

turned over to Millow. Although Miss Hennessy’s testi-

mony was corroborated, the judge was correct in hold-

ing that without it there was insufficient evidence to

convict defendant. The more difficult issue is whether

that testimony had to be suppressed as the product of

Officer Biro’s unlawful search.’ The Government offers

a number of reasons why suppression was inappropri-

ate.

The Government’s most substantial argument

is that its investigation would have produced Lois Hen-

nessy’s testimony even if the December 18, 1974 search

had never occurred. It relies upon a line of cases, ex-

emplified by United States v. Falley, 489 F.2d 33, 40-

41 (2d Cir. 1973), for the proposition that the taint

from an unlawful search is removed if independent

The Government conceded at oral argument that Officer

Biro’s search was illegal, although its brief does note that

“there is at least some question” whether Ceccolini can com-

plain of the “Fourth Amendment violation” because he was

not present at the time and had transferred “an apparently

open envelope to Miss Hennessy,” who “would appear to 92

been authorized to permit perusal of the envelope in the man-

ner that occurred.” Brief of the United States of America,

at 97. To the extent the argument is being pressed, we reject

it. The point was not raised in the trial court, there is no

evidence that Miss Hennessy had authority to show it to any-

one but Millow, and Biro apparently searched in the envelope

without anyone’s permission.

investigation would have led to the evidence in question

in any event. See also, e.g., United States v. Capra, 501

F.2d 267, 280 n.12 (2d Cir. 1974), cert. denied, 420

U.S. 990, 95 S.Ct. 1424, 43 L.Ed.2d 670 (1975);

United States v. Cole, 463 F.2d 163, 171-74 (2d Cir.),

cert. denied, 409 U.S. 942, 93 S.Ct. 238, 34 L.Ed.2d

193 (1972). However, Judge Gagliardi was aware of

this doctrine, specifically referred to the Falley deci-

sion twice in his oral ruling setting aside the guilty

verdict, and found that:

[Time government has failed to show by the

fair preponderance of the evidence that Lois

Hennessy’s knowledge of Ceccolini’s gam-

bling operations and her willingness to coop-

erate with the FBI was the normal output of

the investigation which was in progress at

the time of the illegal search. Therefore, . . .

the Falley case . cannot be relied on here

to purge the Hennessy testimony of the taint

resulting from the illegal search on December

18th.

On this ultimate issue, the question is whether Judge

Gagliardi's finding was clearly erroneous or embodied

an error of law. See United States v. Scipani, 414

F.2d 1262, 1266 (2d Cir. 1969), cert. denied, 397 U.S.

922, 90 S.Ct. 902, 25 L.Ed.2d 102 (1970).

The Government presses a number of conten-

tions on appeal that are primarily factual. Most of

them were argued to the trial judge, who found as

follc ws:

10a

The government contends that since Lois

Hennessy was employed in the shop which

was already under surveillance the FBI

would have inevitably discovered her exist-

ence and obtained her testimony for this trial

without the illegal search.

I do not agree. Agent Lance Emory, special

agent for the FBI in charge of the case, had

already stated in response to a question by me

that Lois Hennessy came to his attention be-

cause of the December 18th incident involv-

ing Officer Biro and because she was an em-

ployee of the shop. It is thus clear that the

illegal search was at least in part the actual

source of the government’s information that

Lois Hennessy would be an important witness

about Ceccolini’s gambling activities, and

that prior to the search the government’s at-

tention had not focused on her in that capac-

ity.

While certainly it is possible, perhaps even

probable, that the FBI would have interviewed

Miss Hennessy later in the course of the gam-

bling investigation, I de not believe that the

government has sustained its burden of prov-

ing by a fair preponderance of the credible

evidence that it would have inevitably come

across her in the course of its investigation.

At the time she was interviewed no other

employee of Ceccolini's flower shop had been

lla

interviewed by the FBI. While it is true that

other employees were subsequently inter-

viewed and called before the grand jury, it is

not entirely clear that the investigation would

have focused on the employees of the flower

shop at all were it not for the illegal search

and the favorable response of Lois Hennessy

to the FBI interview.

Under these circumstances the govern-

ment’s assertion that any taint resulting

from the illegal search is purged by the fact

that the Hennessy testimony would have been

inevitably discovered by the FBI must fail.

These findings were amply supported by the record.

The Government emphasizes to us that since sur-

veillance of the flower shop and an intercepted tele-

phone call both occurred prior to the illegal search, the

latter did not initiate the gambling investigation that

led to Ceccolini. However, the direct surveillance of the

flower shop had ceased a year before Biro’s search and

there is no testimony that Agent Emory was aware of

the recorded phone call between Ceccolini and Millow

when he interviewed Miss Hennessy. Judge Gagliardi

obviously felt the’ the illegal search triggered the

phase of the investigation that focused on Ceccolini.

His conclusion that the previous investigation did not

purge the taint from Miss Hennessy’s testimony was

a justifiable one.

Citing Wong Sun v. United States, 371 US.

471, 486, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and

12a

United States v. Brignoni-Ponce, 422 U.S. 873, 876

n.2, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the Gov-

ernment also claims that the testimony of Lois Hen-

nessy “was an act of free will sufficient to purge the

taint of any unlawful invasion that may have occurred

on December 18, 1974.” * The Government stresses that

Miss Hennessy’s testimony was not coerced, that Agent

Emory did not know that Biro’s search had been il-

legal, and that Biro’s conduct was hardly purposeful

or flagrant. See Brown v. Illinois, 422 U.S. 590, 603-

04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). However,

we do not believe that the cited cases and the empha-

sized facts require us to reverse the trial judge here.

Only a few months ago, we analyzed and rejected much

the same arguments and affirmed a similar suppression

of evidence. United States v. Karathanos, 531 F.2d 26,

3435 (2d Cir.), cert. denied, —— U.S. ——, 96 S.Ct.

3221, 49 L.Ed.2d —— (1976). See also United States

v. Tane, 329 F.2d 848 (2d Cir. 1964), discussed at

length in Karathanos.’ The Government responds that

in Karathanos and Tane, the witnesses whose testi-

mony was uncovered by the illegal search were pres-

sured into testifying, while Miss Hennessy was not.

At oral argument, Ceccolini’s counsel disputed the Gov-

ernment’s version of what occurred in this case. We

need not deal with the issue at length. We doubt that

this point was pressed in the district court, because

* Brief of the United States uf America, at 8.

* Karathanoes takes note of Brown v. Illinois, 422 U.S. 590,

95 S. Ct. 2254, 45 L.Ed. 2d 416 (1975), Michigan v. Tucker,

417 U.S. 433, 94 S. Ct. 2357, 41 L.Ed. 2d 182 (1974), and

Wong Sun, 371 U.S. 471, 83 S. Ct. 407, 9 L.Ed. 2d 441 (1963).

13a

the judge made no specific findings regarding Lois

Hennessy’s state of mind.“ But even if the argument

had been made, we do not regard it as dispositive under

the precedents cited above. Cf. United States v. Kurzer,

534 F.2d 511, 518 (2d Cir. 1976). In any event, the

road to Miss Hennessy’s testimony from Officer Biro’s

concededly unconstitutional search is both straight and

uninterrupted, and we would not hold her testimony

admissible merely because her cooperation with the

Government was not coerced.’

Finally, the Government argues that the rule

excluding the fruit of an illegal search is inappropriate

in a perjury prosecution, especially when the perjury

occurred after the illegal intrusion. Citing United

States v. Raftery, 534 F.2d 854 (9th Cir. 1976), and

United States v. Turk, 526 F.2d 654 (5th Cir. 1976),

the Government contends that suppression serves no

deterrent purpose when the search precedes the crime

and that perjury cannot be condoned in any event.

»The Government's only reference to this issue in its memo-

randum of law submitted to Judge Gagliardi concerning the

suppression of Miss Hennessy’s testimony appears in a foot-

note in the “Conclusion” of a 14-page memorandum.

»The recent decision of a panel of this court in United

States v. Mullens, 536 F. 2d 997 (2d Cir. 1976), is distinguish-

able. The panel held that statements of a defendant, who

mself at a police station following an illegal

home and the arrest of his parents, were “suffi-

product of [the def J free will to purge the

taint of the earlier, illegal search. .. Id. at 1000. In Mullens,

the defendant came forward on his own, and the question was

whether his own voluntary statements could be used against

him. In this case, the government agent exploited the illegally

obtained information by seeking out Lois Hennessy and asking

questions directly related to the illegal search.

14a

We put to one side the Government's failure to raise

this issue in the trial court, although we view that

omission with somewhat more gravity than the Gov-

ernment apparently does. We are fully in sympathy

with the Government’s plea that perjury not be con-

doned. But we see no sufficient basis for distinguishing

trials of perjury charges from trials on charges of

other serious crimes to which the exclusionary rule

would apply in the Government’s direct case at trial.

If the Government’s position were accepted, then logi-

cally the exclusionary rule would also be nullified for

any crime that occurred after the illegal search. What-

ever may be the future of the exclusionary rule,” we

do not understand the Government’s position to be the

law.“ Moreover, this is not a case, such as Raftery or

Turk, in which an immunized witness was aware of

an illegal search and thereupon made use of that

knowledge to perjure himself with impunity. Rather,

Ceccolini had no inkling of Biro’s actions, and was in

fact given comforting assurances by the Government

that he was not a target of the grand jury’s inquiry.

Finally, we disagree with the Government’s contention

” See, e.g., Kaplan, The Limits of the Exclusionary Rule,

26 Stan. L. Rev. 1027 (1974).

„In attacking “the tattered curtain of the exclusionary

rule,” our dissenting brother relies heavily on Stone v. Powell,

— US. —, 96 S. Ct. 3037, 49 L.Ed. 2d —— (1976), and

United States v. Janis, —— U.S. -—, 96 S. Ct. 3021, 49 L.Ed.

2d —— (1976). But the former opinion reaffirms the exclu-

sionary rule in a direct criminal appeal, —— U.S. at ——, 96

S. Ct. 3037, which is what we have here. And the latter opin-

ion merely refused to “extend” the exclusionary rule to a civil

proceeding brought by or against the United States Govern-

ment when the evidence was illegally seized by state officers.

15a

that the exclusionary rule serves no purpose here.

Thus, we hold that it was proper to suppress Miss Hen-

nessy’s testimony in this perjury prosecution.

Judgment affirmed.

VAN GRAAFEILAND, Circuit Judge (dissenting) :,

“Such is the irresistible nature of truth”, said

Thomas Paine, that all it asks, and all it wants, is the

liberty of appearing.” ' Nowhere, I submit, is it more

important that truth be given the “liberty of appear-

ing“ than in the administration of justice. According-

ly, because my brothers continue to draw the tattered

curtain of the exclusionary rule ever tighter in the

face of truth, I must once again record my dissent.

The Supreme Court’s most recent pronouncement of

the exclusionary rule is Stone v. Powell, — U.S. ——,

96 S.Ct. 3037, 49 L.Ed.2d _._.. (1976). There the

Court said at p. ——, 96 S.Ct. at 3049:

The costs of applying the exclusionary rule

even at trial and on direct review are well

known: the focus of the trial, and the atten-

tion of the participants therein, is diverted

from the ultimate question of guilt or inno-

cence that should be the central concern in a

criminal proceeding . . . Application of the

rule thus deflects the truthfinding process

and often frees the guilty. The disparity in

particular cases between the error committed

‘Foner, The Complete Writings of Thomas Paine, 354

(1945).

16a

by the police officer and the windfall afforded

a guilty defendant by application of the rule

is contrary to the idea of proportionality that

is essential to the concept of justice. Thus,

although the rule is thought to deter unlawful

police activity in part through the nurturing

of respect for Fourth Amendment values, if

applied indiscriminately it may well have the

opposite effect of generating disrespect for

the law and administration of justice.

In the instant case, the defendant, convicted of pur-

jury, is set free because the testimony of a witness,

given freely and without coercion, is stricken from the

record. How far have we come from the ennobling

statement of Benjamin Disraeli that “Justice is truth

in action”? How much farther can we go before we

generate the “disrespect for the law and administra-

tion of justice” which is the concern of the Supreme

Court?

Our nation’s highest court has firmly committed

itself to the proposition that statements volun-

tarily offered as acts of free will may be received

despite a primary taint which might otherwise have

made them inadmissible. Wong Sun v. United States,

371 U.S. 471, 486, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ;

Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 45

L.Ed.2d 416 (1975).* In Michigan v. Tucker, 417 U.S.

Although the Government's trial memorandum dealt pri-

marily with the independent source issue, it clearly advanced

the possibility that Miss Hennessy might have inculpated the

defendant to the Government of her own volition.” The ma-

17a

433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), the Su-

preme Court held that the “fruit of the poisonous tree”

doctrine did not require the exclusion of the testimony

of a witness who was identified by the defendant while

being interrogated without proper Miranda warnings.

The Court said at 447-448, 94 S.Ct. at 2365:

The statements actually made by respondent

to the police, as we have observed, were ex-

cluded at trial in accordance with Johnson v.

New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16

L.Ed.2d 882 (1966). Whatever deterrent ef-

fect on future police conduct the exclusion of

those statements may have had, we do not be-

lieve it would be significantly augmented by

excluding the testimony of the witness Hen-

derson as well.

See also United States v. Brignoni-Ponce, 422 U.S.

873, 876 n.2, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).

Although this Circuit has declined to adopt a rule

that the testimony of a living witness is per se admis-

sible despite underlying taint, United States v. Kurzer,

534 F.2d 511, 518 (2d Cir. 1976), it has recognized

jority correctly points out in a footnote that this argument

was set forth in a footnote. However, it must be apparent to

the person reading these lines that the contents of footnotes

do not escape the attention of careful judges and practitioners.

* There is a marked difference on this point between our

holdings and those of the District of Columbia Circuit which

should, perhaps, be resolved by the Supreme Court. See, e. 9.

Brown v. United States, 126 U.S. App. D.C. 134, 375 F. 2d 310

(D.C. Cir. 1966), cert. denied, 388 U.S. 915, 87 S. Ct. 2133, 18

L.Ed. 2d 1359 (1967); Smith v. United States, 117 U.S. App.

18a

that a truly voluntary decision to speak is sufficient to

break the causal chain between an illegal search and

the statements made. United States v. Mullens, 536

F.2d 997 (2d Cir. 1976). This “attenuation-of-the-

taint” doctrine is consistent with the balancing of the

“public interest in determination of truth at trial“

against the “incremental contribution . . to the pro-

tection of Fourth Amendment values by application of

the [exclusionary] rule”. Stone v. Powell, supra, —

U.S. at „ n. 26, 96 S.Ct. at 3049 n. 26.

Here the witness’ “willingness to cooperate with the

FBI“ was clearly established. The interview with

D.C. 1, 324 F. 2d 879 (D.C. Cir. 1963), cert. denied, 377 U.S.

954, 84 S. Ct. 1632, 12 L.Ed. 2d 498 (1964). In Smith, at 881,

then Judge Burger said:

Here no confessions or utterances of the appellants

were used against them; tangible evidence obtained

from appellants, such as the victim’s watch, was sup-

pressed along with the confessions. But a witness is

not an inanimate object which like contraband nar-

cotics, a pistol or stolen goods, “speak for them-

selves.” The proffer of a living witness is not to 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 personality whose at-

tributes of will, perception, memory and volition in-

teract 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. (Footnotes

omitted).

‘ Assuming that the quoted language from Judge Gagliardi's

opinion cannot be construed to be a finding concerning the

state of mind of the witness, “the trial resulted in a record

19a

Agent Emory that led to her testimony took place fully

four months after the Biro incident, in the calm at-

mosphere of her home and in the presence of her fam-

ily. Her narration of the events of December 18 came,

not in response to questions referring to that date or

to Officer Biro, but rather to a general inquiry as to

whether she remembered an incident in December.

When asked if she would be willing to help the Gov-

ernment, she replied without hesitation in the affirma-

tive, adding that she was studying police science in

college and that she was interested in police work. A

careful review of the trial transcript shows her to have

been anything but an unwilling witness, a fact high-

lighted by her statements that she had placed bets with

appellant, statements potentially adverse to her penal

interests.

The majority appears to concede that this testimony

was not coerced and that the witness was not pressured

into testifying but finds this not to be dispositive of the

issue before us, relying principally on United States v.

Karathanos, 531 F.2d 26 (2d Cir.), cert. denied, ——

U.S. ——, 96 S.Ct. 3221, 49 L.Ed.2d (1976) and

United States v. Tane, 329 F.2d 848 (2d Cir. 1964).

However, in both Karathanos and Tane we carefully

pointed out that the testimony precluded was coerced

and not the product of an act of free will. In my view,

the result reached by the majority can only be attrib-

uted to its disenchantment with the attenuation rule

of amply sufficient detail and depth from which the determina-

tion may be made.” Brown v. Illinois, 422 U.S. 590, 604, 95

S. Ct. 2254, 2262, 45 L.Ed. 2d 416 (1975).

itself, not the application of the rule to the facts of this

case. Like it or not, this rule has repeatedly been ap-

proved by the Supreme Court, and its most recent de-

cisions, such as Stone v. Powell, supra, show no dis-

position to retreat from such approval.

In United States v. Janis, —— U.S. „ , 96

S. Ct. 3021, 49 L.Ed.2Zd —— (1976), Mr. Justice

Blackmun, speaking for the majority said:

There comes a point at which courts, consist-

ent with their duty to administer the law,

cannot continue to create barriers to law en-

forcement in the pursuit of a supervisory role

that is properly the duty of the Executive and

Legislative Branches.

When a court prohibits a willing witness from

bringing the truth to light solely because she was em-

ployed at a place where a school patrol officer impul-

sively peeked into an open envelope in plain view

before him, I think that point has been reached.

I dissent.

In Stone, —— U.S. at —— n. 26, 96 S. Ct. 3037 n. 6. Mr.

Justice Powell, citing Brown v. Illinois, supra, and Wong Sun

v. United States, supra, stated that the “attenuation-of-the-

taint” doctrine is consistent with the balancing approach to

the exclusionary rule, the approach advocated by that Court.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated Term of the United States Court of Ap-

peals for the Second Circuit, held at the United States

Courthouse in the City of New York, on the fifteenth

day of September one thousand nine hundred and

seventy-six.

Present: HON. IRVING R. KAUFMAN

Chief Judge

HON. WILFRED FEINBERG

Hon. ELLSWORTH A. VANGRAAFEILAND

Circuit Judges,

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLANT

v. 76-1091

RALPH CECCOLINI,

DEFENDANT-APPELLEE.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF NEW YORK

This cause came to be heard on the transcript of rec-

ord from the United States District Court for the

Southern District of New York, and was argued by

counsel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that the judg-

ment of said District Court be and it hereby is affirmed

in accordance with the opinion of this court.

A. DANIEL FUSARO,

Clerk

VINCENT A. CARLIN,

Chief Deputy Clerk

(21a)

APPENDIX C

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of Ap-

peals, in and for the Second Circuit, held at the United

States Court House, in the City of New York, on the

twenty-first day of December, one thousand nine hun-

dred and seventy-six.

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLANT,

v. 76-1091

RALPH CECCOLINI,

DEFENDANT-APPELLEE.

A petition for rehearing containing a suggestion that

the action be reheard en banc having been filed herein

by counsel for the Appellant, U. S. A., and no active

judge or judge who was a member of the panel having

requested that a vote be taken on said suggestion,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is denied.

IRVING R. KAUFMAN,

Chief Judge

(23a)

APPENDIX D

TRANSCRIPT OF RECORD OF PROCEEDINGS

DATED FEBRUARY 10, 1976

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

75 Cr. 519

UNITED STATES OF AMERICA,

V.

RALPH CECCOLINI, Defendant.

February 10, 1976

10:20 a.m.

BEFORE:

Hon. LEE P. GAGLIARDI,

District Judge.

APPEARANCES:

MICHAEL ABZUG, Esd.,

Attorney, Special Task Force.

JOEL MARTIN AURNOU, Esd.,

Attorney for Defendant.

[2] ses

The Court: Following is the opinion of the Court:

Defendant Ralph Ceccolini was indicted on two

counts of perjury allegedly committed on May 12, 1975,

in his testimony before a grand jury investigating

gambling operations in Westchester County.

(25a)

The defendant duly waived his right to a jury, and,

in addition, did not request the facts be specially found

as provided for on Rule 23(c). Nonetheless, since this

case presents significant legal questions which could

not be reviewed if a general finding were made, the

Court feels it appropriate to set forth its findings.

On the basis of all the evidence presented before me

at trial, I find the defendant Ceccolini guilty of the

crime charged in Count 1, and not guilty of the crime

charged in Count 2.

The defendant made a motion for a directed verdict,

and J assume that would also include a motion now at

this time to set aside the verdict of guilty on Count 1.

Mr. Aurnou: Yes, your Honor.

The Court: The indictment charges the defendant

with committing perjury as set forth before in Count

1 in testifying that he never took policy bets [3] at

his flower shop in North Tarrytown, New York, for

Francis J. Millow, and that he did not know that Hank

Bucci, in Count 2, was involved in gambling opera-

tions.

As set forth in my finding of guilty on Count 1, I

find that contrary to his sworn grand jury testimony

that the defendant Ceccolini placed and took policy bets

for Millow.

This finding is based upon the testimony of Lois

27a

Hennessy, an employee of Ceccolini’s flower shop in

1974, who stated that she observed customers in the

shop place policy and football bets with Ceccolini, and

that she knew these bets were later turned over to

Millow.

She also testified that she herself had placed football

and numbers bets during the football season with Cec-

colini, and that Ceccolini had discussed various aspects

of his numbers operations with her.

Corroboration of her testimony was furnished by a

tape recording of a wire tapped conversation between

Millow and defendant in which Millow asked Ceccolini

for his breakdown “day by day”; by surveillance re-

ports of FBI agents which show that Millow entered

the flower shop daily between ten and eleven, remained

only a few moments; and that many people regularly

entered and left the shop [4] after a few minutes

without buying any merchandise; and (3) betting

slips seized from Millow’s home containing the nota-

tion “Chick,” allegedly Ceccolini’s nickname.

I consider particularly the tape of the telephone con-

versation between Millow and Ceccolini, which can only

be reasonably interpreted to apply to a betting opera-

tion, to be significant corroborating evidence of Lois

Hennessy’s basic testimony.

Although the defense presented witnesses who testi-

fied that Lois Hennessy had a reputation for exaggera-

tion, in light of the strong corroborating evidence in

this case I find her testimony credible.

In contrast, I find the defendant’s testimony that he

never collected policy bets for Millow to be unconvinc-

ing at best. Despite the many and fine character wit-

nesses vouching for his reputation for truth and ver-

acity, I find that his testimony on cross-examination

about the telephone conversation in which he and Mil-

low discuss the need for “day by day totals” related to

only two football bets in particular strained the cre-

dulity of a reasonable person.

I believe on the basis of Lois Hennessy’s testimony

the defendant on Count 1 is guilty beyond a reasonable

doubt.

[ 5] 2 „ „

With respect to the charge Ceccolini lied when he

denied that he knew Hank Bucci was involved in gam-

bling operations, I find that although there is evidence

to support this charge the government has not met its

burden of proof beyond a reasonable doubt. The de-

fense did establish the possibility that Hank Bucci, who

had several previous gambling convictions, was not

known by the defendant to be currently involved in

gambling at the time the question was asked.

The difficulty with Count 1 arises from the fact that

Lois Hennessy’s knowledge about Ceccolini’s gambling

activities first came directly to the attention of the gov-

ernment as a result of an illegal search. The circum-

stances surrounding the search described by North

Tarrytown Patrolman Ronald Biro at length in his

testimony at trial need not be repeated here.

I previously ruled the search to be illegal, and I be-

lieve that the government tacitly agreed to this conclu-

sion. The question which I asked counsel to address in

post trial memoranda is whether that illegal search

taints Lois Hennessy’s testimony and requires its ex-

clusion from the trial.

I now find that it does. This finding is based on my

finding that the government has not sustained [6] its

burden of showing that Lois Hennessy’s testimony

definitely would have been obtained without the illegal

search.

The search in question here took place on December

18, 1974. At that time Ceccolini’s flower shop was

under surveillance by federal authorities. Patrolman

Biro, who made the search, immediately made a report

of it to his superiors who subsequently forwarded it

to the FBI.

As a result of this search, Lois Hennessy’s knowl-

edge of Ceccolini’s gambling operations came directly

to the attention of the FBI, and she was shortly there-

after interviewed.

The government contends that since Lois Hennessy

was employed in the shop which was already under

surveillance the FBI would have inevitably discovered

her existence and obtained her testimony for this trial

without the illegal search.

I do not agree. Agent Lance Emory, special agent

for the FBI in charge of this case, had already stated

in response to a question by me that Lois Hennessy

came to his attention because of the December 18th

incident involving Patrolman Biro and because she was

an employee of the shop. It is thus clear that the illegal

search [7] was at least in part the actual source of the

government’s information that Lois Hennessy would

be an important witness about Ceccolini’s gambling

activities, and that prior to the search the govern-

ment’s attention had not focused on her in that ca-

pacity.

While certainly it is possible, perhaps even probable,

that the FBI would have interviewed Miss Hennessy

later in the course of the gambling investigation, I do

not believe that the government has sustained its bur-

den of proving by a fair preponderance of the credible

evidence that it would have inevitably come across her

in the course of its investigation.

At the time she was interviewed no other employee

of Ceccolini’s flower shop had been interviewed by the

FBI. While it is true that other employees were sub-

sequently interviewed and called before the grand

jury, it is not entirely clear that the investigation

would have focused on the employees of the flower shop

31a

at all were it not for the illegal search and the favor-

able response of Lois Hennessy to the FBI interview.

Under these circumstances the government’s asser-

tion that any taint resulting from the illegal search is

purged by the fact that the Hennessy testimony would

have been inevitably discovered by the FBI must fail.

[8] In order for the inevitable discovery exception to

the exclusionary rule, which the government claims

this Circuit has adopted in the United States v. Falley,

489 F.2d 33, to be applicable, the tainted evidence dis-

covered must be evidence which absent the illegality

would be the normal output of an ongoing lawful in-

vestigation.

Here the government has failed to show by the fair

preponderance of the evidence that Lois Hennessy’s

knowledge of Ceccolini’s gambling operations and her

willingness to cooperate with the FBI was the normal

output of the investigation which was in progress at

the time of the illegal search. Therefore, even if the

Falley case has overruled the Second Circuit’s long-

standing rejection of the inevitable discovery rule an-

nounced in United States v. Paroutian, 299 F.2d 486,

it cannot be relied on here to purge the Hennessy testi-

mony of the taint resulting from the illegal search on

December 18th.

Since Agent Emory testified that in seeking to inter-

view Lois Hennessy he did in fact rely at least in part

on the information forwarded to him by the local au-

thorities which unbeknownst to him resulted from an

illegal search, it is clear that her testimony is the fruit

of that illegal search and must be suppressed.

This is not a case in which the question is [9]

whether the information obtained was from the illegal

activity or from some other independent legal source.

Here Agent Emory admitted information obtained in

the search was relied on in locating a key witness.

Without that witness I find that there was insufficient

evidence to say beyond a reasonable doubt that Cec-

colini was guilty of Count 1 charged in the indictment.

Although the corroborating evidence—particularly

the wiretapped conversation—is strong when coupled

with Lois Hennessy’s testimony, standing by itself it

is insufficient to prove Ceccolini’s guilt beyond a rea-

sonable doubt.

The foregoing constitutes the Court’s findings of

fact and conclusions of law.

Now, Mr. Ceccolini was released on his own recog-

nizance.

Mr. Aurnou: He had posted, I believe, an unsecured

bond. .

The Court: All right. Bail is exonerated.

Mr. Aurnou: Your Honor, may I be heard briefly on

a technical matter which has left me in some confu-

sion? Perhaps your Honor would indulge me.

— — — — — — =

Be ——ͤ - PU— a ne ee —

The Court: Ves.

Mr. Aurnou: If I understand correctly, your [10]

Honor, in reaching a decision in this case, ruled on

both counts prior to the time that you made your find-

ing on the motion. Perhaps I misunderstood that.

The Court: Your motion was denied. The motion for

a verdict of not guilty was denied.

Mr. Aurnou: I understand. I was talking about the

motion to suppress, sir. In other words, this was an

unusual case, as your Honor will recall.

The Court: Yes.

Mr. Aurnou: Only in that my client was not aware

of the search until the eve of trial. And when I dis-

closed that matter to your Honor it was agreed that the

question of the illegality of the search would be heard

at the same time as the trial itself, and I think your

Honor will recall we followed precisely that format.

Now, what I was inquiring into, your Honor, was I

did not understand—perhaps I am just in error, and I

apologize to the Court if that is so—I do not mean to

be, but it was my understanding, your Honor, that the

ruling on what essentially is a pretrial motion would

precede the findings on Counts 1 and 2, and that the

findings on Counts 1 and 2 would be based on that

evidence which your Honor would not have suppressed.

[11] 89 0

The difference, of course, is one of substance to my

34a

client in terms of double jeopardy. For that reason,

your Honor, and only for that reason, and respectfully,

I would ask you for aclarification, if I may.

The Court: It is my recollection that during the

course of the trial the government counsel conceded

that the search was illegal. You weren’t there, I know

—or were you there?

Mr. Abzug: Yes, I was, your Honor.

The Court: Excuse me.

I thought you had conceded—

Mr. Abzug: We didn’t concede it, but your Honor

made a finding the search was illegal during the course

of the trial.

The Court: I think that has been taken care of, Mr.

Aurnou.

Mr. Aurnou: I realize it may be improper, but would

you consider seeing Mr. Abzug and myself at the bench

for just a moment?

The Court: No, I don’t think it is necessary.

Mr. Aurnou: I am concerned only with the clarifi-

cation of the order in which your Honor wishes these

to be recorded, and I mean—it may be just my con-

fusion, your Honor, as I say—if that is so I [12] ap-

ologize—but the problem I have is one of substance.

The Court: I would rather not do it right here.

——ä ——— — P ee —ET——

35a

Mr. Aurnou: Very well.

The Court: If you want to submit anything addi-

tional on it you are welcome to do it. As you can see,

I could have rendered a general verdict.

Mr. Aurnou: I understand that, and that would have

in effect had the double jeopardy effect.

The Court: No. I thought this was the appropriate

way to see whether or not the determination which I

had made as to the inevitable

Mr. Aurnou: On the inevitable discovery rule, your

Honor?

The Court: Yes.

Mr. Aurnou: I certainly take no quarrel with your

Honor’s ruling. I would only point out to you the rea-

son for my inquiry was that the unusual procedure in

this case resulted from the fact that the government

did not disclose the existence of the search, and ordi-

narily that matter would have been covered either at a

hearing just prior to the trial, as your Honor custom-

arily would, or even prior to that, and to have the rul-

ing on the merits—

The Court: I excluded what were the results [13] of

the search. There is no doubt that I excluded the results

of the search.

Mr. Aurnou: I am not very articulate this morning,

but I am suggesting if I understand your Honor cor-

reetly

The Court: I don't think it makes any difference as

to when I passed upon the exclusion of the fruits of the

search because it was clearly not admissible.

Mr. Aurnou: If that was true, if Lois Hennessy’s

testimony was a fruit of the illegal search, as I under-

stood your Honor to say, then the decision that your

Honor would render on the first count would be pre-

cisely the decision that you read toward the end of

your opinion with regard to the sufficiency of the evi-

dence. That would provide my client with an acquittal

on the merits which would not be appealable, which

would be, as a matter of double jeopardy law, final.

The Court: No, I don’t think this is any different

from my letting it go to the jury in a jury case and

then setting it aside afterwards because of the legal

grounds I have set forth in here, and that is my pur-

pose in rendering the decision the way I have.

If it had gone to the jury I would have excluded, as I

did from my own consideration, the envelope [14] and

the contents of the envelope, but I would have per-

itted Lois Hennessy to have testified and let the jury

fon a if they came in with a verdict of

} I would have dene on the facts here, then I

would have set it aside on the grounds that I have set

forth here.

37a

That is the procedure that I follow.

Mr. Aurnou: I understand exactly what your Honor

is saying, and I ask you to clarify for that reason, and

I am grateful you have.

My position, just so it is on the record, is if my client

were entitled to have the envelope suppressed, and the

testimony of Lois Hennessy, and the nature of your

reason for setting aside the verdict, then he would have

been entitled as a matter of law not to have had the

testimony heard.

The Court: I don't see how I could have passed upon

the admissibility of Lois Hennessy’s testimony until I

heard all the testimony at the trial. I certainly could

have passed, and did pass, upon the suppression of the

fruits of that illegal search by the Tarrytown authori-

ties. If you want to submit anything further to me,

you do it.

Mr. Aurnou: I appreciate that, sir.

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 75-1619

UNITED STATES OF AMERICA, APPELLANT

V.

ROBERT J. Scios a/k/a ROBERT SCHWARTZ

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

(D.C. Criminal 74-373)

Argued 22 September 1975

Decided 23 August 1976

Before: Rogg and WILKEY, Circuit Judges and

SoLOMON,“ United States Senior District

Judge for the District of Oregon

Opinion for the Court filed by Circuit Judge WI.

KEY.

40a

WILKEY, Circuit Judge: The Government appeals

from an order of the District Court (Flannery, J.) of

20 May 1975, suppressing the testimony of a potential

witness, Thomas Massa, Jr., at the trial of defendant-

appellee Robert J. Scios, indicted for unlawful inter-

ception of wire communications, and related offenses."

Prior to this order the District Court had issued a

memorandum opinion and order on 10 December 1974,

suppressing all tangible evidence seized by the FBI and

oral statements at the time of arrest of Scios on 15

February 1974.

We do not pass upon the sufficiency of the affidavit

supporting the arrest warrant or the validity of the

search of Scios incidental to arrest, issues on which de-

terminations favorable to the defendant were relied

upon by the trial judge in his first order of December

1974, from which no appeal was taken, and which like-

wise formed the basis of his later order suppressing

testimony, from which this appeal is taken. We do hold

that whatever taint attached to the live testimony of

the potential witness Massa by reason of the illegal

* Sitting by designation pursuant to 28 U.S.C. § 294(d).

118 U.S.C. § 2511(1)(a); disclosure and use of such un-

lawfully intercepted communications, 18 U.S.C. § 2511(1)(¢)

and 2511(1)(d); interstate transportation of wire communi-

cation interception devices, 18 U.S.C. § 2512 (1) (a).

4la

seizure of Scios’ file folder was attenuated, and thus

the District Court erred in suppressing the potential

witness’ testimony.

I. BACKGROUND FACTS

On 29 September 1972 electronic devices were found

attached to the telephone lines of a local business. After

a lengthy FBI investigation, the search for the of-

fender narrowed to the defendant Scios, and on 15

February 1974 a warrant for his arrest was obtained

in the District of Columbia. Scios was arrested in his

office in New York City that day. In a search purport-

edly incidental to arrest, an FBI agent pulled out a file

folder labeled “Your Pharmacy, Inc.” from a wire

rack on top of a credenza three or four feet from the

chair in which Scios was sitting. Among other things

in the folder was a credit card charge slip from the

Royal Motel in Washington, D. C., which had defend-

ant Scios’ name and the date 26 July 1972 on it. This

date was embraced in the period one and a half years

earlier from 19 July to 10 August 1972 during which

the wiretapping offenses were alleged in the indictment

to have occurred, On the itemized bill of the motel itself

was written at the top only “Mr. Massa”, with no

address, presumably indicating who had occupied the

room.

In its customary way the FBI began a follow up on

all leads to be derived from the file folder. On interview

the desk manager at the Royal Motel did not recall the

occupant of the room on the date shown on the receipt.

42a

Nor did the bookkeeper at the motel recall the occupant

either, but inquiry revealed that there was still avail-

able the record of telephone calls made from the room.

This consisted of four numbers, two local, one in New

Jersey, and one in New York. Subscribers to all phones

were identified, the one in New York being Thomas

Massa. A grand jury subpoena for Thomas Massa was

issued. The U. S. Marshal serving the subpoena dis-

covered there were two Thomas Massas, Senior and

Junior, father and son. Contact was made with

Thomas Massa, Sr., and other members of the family,

but Thomas Massa, Jr. was out of town, unlocatable

and unavailable for several days.

After telephone calls to members of the family and

to the potential witness himself, on 5 May 1974 Thomas

Massa, Jr. travelled to Washington and conferred with

an Assistant U. S. Attorney. The witness’ position was

that he would assert his privilege against self-incrimi-

nation, the prosecutor countered that a grant of immu-

nity was in process, and asked for an off-the-record

proffer, with which Massa complied by giving an out-

line of his prospective testimony. After going before

the grand jury and asserting his privilege that day,

Massa testified before the grand jury on 8 May under

a grant of immunity.

In its 10 December 1974 order the trial court ruled

that the affidavit was insufficient to support the arrest

warrant, because there was not probable cause to be-

lieve that defendant Scios had committed the wire-

tapping crimes. Alternatively, the court ruled that if

the affidavit in support of the arrest warrant was suffi-

— ED A

43a

cient, the search was illegal on two grounds: (1) The

file folder was not in plain view; (2) It was seized

from an area that was not in defendant’s control at

the time of arrest, and thus was not subject to search

incident to arrest for the purpose of protecting the

arresting officers. From this first order suppressing

“tangible evidence” derived from the file folder and

“oral statements” the Government did not take an

appeal. In a further hearing on 7 May 1975 to clarify

whether Massa would be allowed to testify, the Dis-

trict Court ruled that the taint from the unlawful

seizure of the file folder had not been dissipated, and

therefore that the witness Massa could not testify at

the trial of defendant Scios.

II. THE “ATTENUATION-OF-THE-TAINT” DOCTRINE AS AN

EXCEPTION TO THE EXCLUSIONARY RULE.

A.

One matter related and preliminary to our discussion

of the attenuation-of-the-taint doctrine should be dis-

posed of first. Defendant-appellee Scios contends that

the court lacks jurisdiction over this appeal under 18

U.S.C. § 3731 because (1) the District Court order of

10 December 1974 covered the testimony of all live

witnesses as well as tangible evidence discovered as a

result of the search and seizure held to be illegal, and

(2) the Government did not appeal from this first

order. The Government’s position is that it is appeal-

ing from the District Court order of 20 May 1975,

wherein the court ruled directly on the admissibility

of the witness Massa’s testimony.

44a

However, in that second order, the District Judge

did say “In an opinion and order issued December 10,

1974, this court ruled that the arrest and search of

defendant Scios had been illegal and granted in full

the motion to suppress evidence derived from the illegal

search and seizure. The Government did not appeal.”

Scios contends that the District Court’s second order

interpreted its own first order to mean that the first

order also had ruled on the inadmissibility of live testi-

mony, such as that of Massa derived from the file

folder illegally seized. If that was the District Judge’s

intention, he did not specifically say so, and the defend-

ant’s motion did not refer to future live testimony but

only to “tangible evidence” and “oral statements.” We

interpret “oral statements” as being like “tangible

evidence,” already obtained and admissible on their

own, such as anything Scios may have said at the time

of arrest, not the live testimony of a witness to be

offered in the future. Furthermore, as will be seen

from our discussion of the attenuation-of-the-taint

doctrine, the District Court was in no position in

December 1974 to rule on the admissibility of any

witness’ live testimony, because the admissibility of

any evidence, which arguably was admissible under

the attenuation doctrine, would necessarily rest on the

individual facts of attenuation, acts of volition, etc.,

in regard to that particular witness.

Anticipating that the issue of live testimony might

arise later, the Government had requested, in the event

of a ruling unfavorable to the Government, in its sup-

plemental pleading of 22 November 1974, a hearing

45a

on the question of “inevitable discovery”. By this we

understand that the Government assumed that the

issue of live witnesses’ testimony would arise if the

court ruled against the Government on defendant Scios’

motion to suppress on the grounds of illegal search

and seizure. Prior to the trial court’s first opinion and

order ruling on the defendant’s motion to suppress,

the trial court was not even aware of the content of

Massa’s probable testimony, nor of all of the circum-

stances with regard to Massa intervening between

the discovery of his bare name on the motel bill and

his testimony before the grand jury. It is impossible

to say that the trial judge in December 1974 knew

facts which were only brought out in the hearing of

7 May 1975. Hence, the trial judge not being familiar

with the facts surrounding Massa’s prospective testi-

mony, which would support the Government’s attenua-

tion-of-the-taint argument, he could not have intelli-

gently ruled either to admit or suppress it.

We thus accept the Government’s position that it did

not appeal the December 1974 order because this was

limited to suppressing tangible evidence and oral state-

ments already garnered, but that it did seek and obtain

a hearing on live testimony of witnesses derived from

the file folder, and it now appeals from the trial judge’s

second order suppressing the live testimony of the pro-

spective witness Massa.

If there were no exception to the “fruit of the poison-

ous tree” rationale, then the establishment (1) of an

46a

illegal search and seizure, plus (2) that a piece of evi-

dence, whether tangible or live witness testimony, was

somehow derived through a chain of causation from

the illegal search, would in every case be sufficient to

bar the evidence. Yet the Supreme Court has consist-

ently refused to adopt a “but for” test whereby all

evidence which would not have been discovered but for

the illegal search must be excluded. If the two points

above were sufficient in every case to bar admissibility,

there could be no attenuation-of-the-taint doctrine ex-

ception to the fruit of the poisonous tree rationale.

“Rather, the more apt question in such a case is

‘whether, granting establishment of the primary

illegality, the evidence to which instant objection is

made has been come at by exploitation of that illegality

or instead by means sufficiently distinguishable to be

purged of the primary taint.’ Maguire, Evidence of

Guilt, 221 (1959)” * Primary taint may be purged, for

example, where circumstances which disrupt the causal

link * or make it too remote ‘ have intervened between

the discovery of the identity of a possible witness and

the actual testimony of that witness.

As we read the decisions of the Supreme Court on

2 Wong Sun v. United States, 371 U.S. 471, 488 (1963).

An independent act of volition may dissipate the taint. Id.

at 491.

See Nardone v. United States, 308 U.S. 338, 341 (1939).

U.S. District Judge Gesell has restated Nardone, quoted at

infra 22, as holding that where “the causal connection be-

tween initial illegality and evidence is such that ‘good sense’

indicates it is so complicated, remote and indirect . . . no de-

terrence could be achieved by exclusion.” United States v.

Alston, 311 F. Supp. 296, 299 (D.D.C. 1970).

47a

this point, the rationale of the attenuation-of-the-taint

doctrine is that the principal purpose of the exclusion-

ary rule (“to safeguard Fourth Amendment rights

generally through its deterrent effect“) would not be

served by the exclusion of any given evidence (whether

tangible or from a live witness) because the possible

effect of deterrence on law enforcement officers’ con-

duct would be too remote, just as remote as the attenu-

ated lengthy link-up of illegal search with the ultimate

evidence offered. Because of the remoteness and attenu-

ation of the linkage, both between the search and the

evidence offered, and between the exclusion penalty

and the possible deterrence of future police miscon-

duct, it would not serve the purpose of justice to deny

truth in a particular trial. The sacrifice of foregoing

admittedly valid evidence is a pure sacrifice, without

any advantage to the administration of justice whatso-

ever, if there is to be no deterrent effect on future

violations. The true interest of justice requires that

we accept the truth as testified to by the witness or

the tangible piece of evidence, even though the origin

of the evidence admittedly in the tenuously linked past

was an illegal search and seizure.‘

A series of Supreme Court decisions in recent years

5 United States v. Calandra, 414 U.S. 338, 348 (1974).

This is not the same as finding an “independent source“

for the evidence offered by the Government. The attenuation

doctrine recognizes that the proffered evidence did indirectly

derive from an illegal search and seizure, but also recognizes

that the linkage is too remote for the exclusionary rule to

have any success in achieving its avowed purpose of deter-

rence or promoting judicial integrity.

48a

has emphasized that the exclusionary rule is not to

operate rigidly and automatically. As early as Wong

Sun v. United States the Court noted: “We need

not hold that all evidence is ‘fruit of the poisonous tree’

simply because it would not have come to light but for

the illegal actions of the police.“ Again, in United

States v. Calandra,’ Mr. Justice Powell wrote: Despite

its broad deterrent purpose, the exclusionary rule has

never been interpreted to proscribe the use of illegally-

seized evidence in all proceedings or against all

persons.” 10

Even more recently, in Brown v. Illinois, the Court

confronted the attenuation exception to the exclusion-

ary rule in a situation similar to that in Wong Sun,

supra. While the Supreme Court held that the Illinois

court erred in adopting a per se rule that Miranda

warnings in and of themselves broke the causal chain

so that any subsequent statement was admissable, the

Court held that “in order for the causal chain, between

the illegal arrest and the statements made subsequent

thereto, to be broken, Wong Sun requires . that it

[subsequent statement] be ‘sufficiently an act of free

will to purge the primary taint.’ ” Mr. Justice Black-

mun further explained: “While we therefore reject the

371 U.S. 471 (1963).

Id. at 487 (Emphasis supplied).

* 414 U.S. 338 (1974).

1° Id. at 348.

1 422 U.S. 590 (1975).

12 Jd. at 602.

49a

per se rule which the Illinois courts appear to have ac-

cepted, we also decline to adopt any alternative per se

or ‘but for’ rule.“ The Court went on to say that

whether a confession is the product of a free will under

Wong Sun must be answered on the facts in each case,

and that while the Miranda warnings are an impor-

tant factor, they are not the only factor to be con-

sidered as to whether the confession was obtained by

exploitation of an illegal arrest.

The Case of Scios here does not deal with his or

Massa’s confession, the question of attenuation arises

in regard to the testimony of the witness Massa ulti-

mately derived from the illegal search. We cannot,

therefore, have a Miranda warning as a possible inter-

vening factor producing “an act of free will to purge

the primary taint”. However, after Mr. Justice Black-

man [sic] in Brown v. Illinois had pointed out the usual

inconclusiveness of the Miranda warning per se, he

enumerated other factors to be considered: “The

temporal proximity of the arrest and the confession,

the presence of intervening circumstances, see John-

son v. Louisiana, 406 U.S. 356, 365 (1972), and,

particularly, the purpose and flagrancy of the official

misconduct are all relevant.“ These factors cited by

the Court in Brown are relevant to the Scios-Massa

situation here, as we discuss under part C, infra.

Anticipating his opinion for the Court a year later

in Stone v. Powell,’ in his concurring opinion in Brown

18 Jd. at 603.

4 Jd. at 603-04, (footnotes omitted).

8 44 U.S. L. W. 5313 (6 July 1976).

50a

Mr. Justice Powell observed, It he notion of the

‘dissipation of the taint’ attempts to mark the point at

which the detrimental consequences of illegal police

action become so attenuated that the deterrent effect

of the exclusionary rule no longer justifies its cost..

And in words even more specifically applicable to the

ease of Scios here, he continued: “If an illegal arrest

merely provides the occasion of initial contact between

the police and the accused [witness here], and because

of time and other intervening factors the accused’s

eventual statement is the product of his own reflection

and free will, application of the exclusionary rule can

serve little purpose: the police normally will not make

an illegal arrest in the hope of eventually obtaining

such a truly volunteered statement.“

A year later, in the most recent Supreme Court

decision bearing on these issues, Stone v. Powell,”

in the opinion for the Court Mr. Justice Powell re-

ferred to... the balancing analysis applied generally

in the exclusionary rule context“, and noted specifi-

cally It jhe ‘attenuation-of-the-taint’ doctrine also is

consistent with the balancing approach,” citing Brown

v. Illinois, supra, and Wong Sun, supra. Stone held that

a state prisoner need not be granted habeas corpus

relief on the ground that evidence obtained through an

unconstitutional search and seizure was introduced at

his trial as long as the state has afforded an opportun-

16 422 U.S. at 609.

* Id. at 610.

18 Note 15, supra.

19 44 U.S.L.W. 5320, note 26.

51

ity for a full and fair litigation of that claim. In Stone,

the Court voiced the most valid and irrefutable

criticism of the exclusionary rule: “Application of the

rule thus deflects the truth-finding process and often

frees the guilty. The disparity in particular cases be-

tween the error committed by the police officer and the

windfall afforded a guilty defendant by application of

the rule is contrary to the idea of proportionality that

is essential to the concept of justice.” In deciding the

specific issue of Stone, the Court held that It Ihe

answer is to be found by weighing the utility of the

exclusionary rule against the cost of extending it to

collateral review of Fourth Amendment claims.” “

C.

We think the balancing approach taken by the

Supreme Court in these most recent exclusionary rule

cases requires an application of the attenuation-of-the-

taint doctrine in the circumstances of this illegal search

and seizure followed by the ultimate discovery and

proffer of the testimony of the witness Massa. In that

balancing we put into the scales the relevant factors

listed by the Court in Brown.”

These factors were listed by Justice Blackmun for

their bearing on whether the evidence in question, here

the testimony of Massa, was obtained “by exploita-

tion” of the illegal action, here the seizure of the file

10 Jd. at 5320.

n Id.

N —

folder. We have earlier noted™ that the taint of an

illegal seizure can be purged, and “exploitation”

thereby avoided, if the evidence in question is obtained

only after intervening circumstances, such as an act

of volition by the witness. One of the key elements in

determining volition is, of course, temporal proxi-

mity,“ since, like access to counsel, this factor may be

a precondition to meaningful reflection and decision.

In articulating the “possible relationships” of these

factors, Justice Powell, concurring,” suggested that

the less offensive the violation of the Fourth Amend-

ment, the less proof of volition ought to be required.”

23 Supra at 7.

% See Brown v. United States, 375 F. 2d 310, 314 (D.C. Cir.

1967): “In the circumstances of the case this intervening

period, with the impact upon [the challenged witness) of in-

numerable incidents and his mental processes of thirteen

months, attenuate any taint which may have existed orig-

inally.” (citation omitted).

10 Brown v. Nlinois, supra at 610-12.

*“ T]he point at which the taint can be said to have dis-

sipated should be related, in the absence of other controlling

circumstances, to the nature of the taint.” .. Those most

readily identifiable are on the extremes: the flagrantly abusive

violation of Fourth Amendment rights, on the one hand, and

‘technical’ Fourth Amendment violations, on the other. In my

view, these extremes call for significantly different judicial

responses.

“I would require the clearest indication of attenuation in

cases in which official conduct was flagrantly abusive of

Fourth Amendment rights.” .. At the opposite end of the

spectrum lie ‘technical’ violations of Fourth Amendment

rights where, for example, officers in good faith arrest an

individual in reliance on a warrant later invalidated or pur-

suant to a statute that subsequently is declared unconstitu-

tional,” Id. at 609-11. (footnotes and paragraphing omitted.)

Where a violation of the Fourth Amendment ap-

proaches a good error, the deterrence value of exclusion

of the fruits of the search, he argues, loses much of

its force” and should be applied flexibly. We adopt this

suggestion of a variable standard of proof, not repudi-

ated by the Brown majority, and consider it fully

consistent with the balancing calculus demonstrated

by Calandra and Stone. As we will detail later,“ the

seizure of the file folder here constituted, at most, “a

marginal case of law enforcement misconduct” and

warrants, therefore, a less stringent showing of

volition.

Turning to the first factor, temporal proximity,

from the contacts with his family by the Government

investigators the witness Massa learned in March or

April 1974 of the Government’s interest in his testi-

mony. He journeyed to Washington and had an inter-

view with the prosecutor on 5 May. Before his Wash-

ington trip he had conferred with a lawyer in New

York and conferred with different counsel in Wash-

ington after his interview. It was on 8 May 1974 that

the District Court signed immunity papers and Massa

testified before the grand jury under a grant of im-

munity. He has yet to testify in court, and it is this

testimony which is to be offered as evidence here. By

comparison, in the case of Wong Sun, the Court held

that in light of his release on his own recognizance

and of his return voluntarily several days later to

make the disputed statement, the connection between

* See also Michigan v. Tucker, 417 U.S. 433, 447 (1974).

28 Infra at 19-20.

his unlawful arrest and the statement had “become

so attenuated as to dissipate the taint.“ It was

that statement, or confession, already made, which the

prosecution wished to produce in Wong Sun’s case.

We do not think any given number of days or hours

can be defined as a requisite temporal interval between

arrest and confession as in Wong Sun and Brown,

nor between contact with the prosecutor and informal

statement, grand jury testimony, or testimony at trial

as here is offered, whichever is taken as the proper

measuring terminal for “temporal proximity”.” Rather

we think that what is important is an interval of time

0 Nardone v. United States, 308 U.S. 338, 341 (1939).

% Where there is an illegal arrest and a subsequent confes-

sion, it is clear that the time interval to be measured is that

between arrest and giving the confession, as Wong Sun and

Brown both hold. Where there is an arrest accompanied by

an illegal search producing evidence which much later leads

to a live witness, a question arises as to the relevant time

interval, i. e., from search to first statement of the witness

(5 May 1974 here), to grand jury testimony (8 May), or to

testimony at trial (not yet held). The confession in Wong Sun

and Brown was the evidence to be offered at trial; neither the

“off-the-record” statement of the witness Massa to the prose-

cutor nor his grand jury testimony would be available at

trial except by way of impeachment, the evidence ultimately

derived here from the search and the evidence which has

been ordered suppressed is the prospective live testimony

of the witness at a trial not yet held. Which is the terminus

of the time interval by which to measure “temporal prox-

imity”?

If it is the first statement of the witness, the intervening

factors are the FBI investigation, series of contacts with the

Government, and advice of New York counsel. Arguably the

court’s action in granting immunity would not be an inter-

vening factor, although it is undisputed that Massa made no

55a

during which the originator of the statement or testi-

mony can ponder the consequences of what he does and

then willingly do it. In the case at bar, Massa was

informed by his family while he was in New York of

the desire of the Government investigators to talk with

him before there ever was any contact with him per-

sonally. As to what was desired of him, he had time to

ponder the two or more telephone calls made by the

prosecutor to him and his family in New York, time

in which to consult a lawyer prior to his trip to Wash-

ington, and whatever time he thought he needed on the

basis of his previous reflection to consider what he

should tell the prosecutor and what should be his testi-

mony after he met with the prosecutor. The first

information which Massa gave the Government was an

outline of what his testimony would be, but this was

only after he himself had defined his position as plan-

ning to assert his privilege against self-incrimination

statement at all on 5 May 1974 until the prosecutor told him

that court process to secure immunity had already been set

in motion. If the grand jury testimony on 8 May is the

terminus of the time interval, we have the additional inter-

vening factors of judicial action and consultation with Wash-

ington counsel. If the testimony in court, the evidence which

was actually ordered suppressed, be taken as the terminus, the

witness has had an additional two and a half years for reflec-

tion, other factors to intervene, and exercise of his volition.

We do not find it necessary to decide (doubtless the Supreme

Court will ultimately enlighten us), for here we find the

“temporal proximity” to the earliest terminus, the first in-

formal statement, to be so elongated as to afford sufficient

opportunity for the witness’ independent reflection. Finally,

“temporal proximity” is but one of the three factors listed in

Brown bearing upon the existence of an act of volition on the

part of the witness.

56a

in the grand jury and had been informed that the

court would grant him immunity in order that he

could testify. On that same day, since immunity had

not been granted, Massa did claim his Fifth Amend-

ment privilege before the grand jury. Three days later,

after the District Court signed immunity papers,

Massa did testify before the grand jury. It is the

witness’ live testimony in court which the prosecution

now wishes to offer, which has been suppressed, and

which the witness has had two and a half years to

ponder, assisted by legal advice.

We think the totality of these circumstances shows

a reflective man seeking advice, pondering in advance

the consequences of action, exercising his free will in

giving the prosecutor certain information verbally, but

on the very same day declining to testify before the

Grand Jury, and then later after further counsel and

immunity had been secured, testifying before the

Grand Jury. These are acts of volition. The testimony

at trial will be “the product of a free will.“

To the extent that Massa’s testimony may be con-

sidered not the product of his free will, but rather the

product of the court’s grant of immunity and order

that he appear and testify, this brings us to the second

of the relevant factors listed in Brown, the presence

of intervening circumstances. With regard to the

court’s action as constituting intervening circum-

stances, we note the similarity of Massa’s situation

with that in Johnson v. Louisiana,” the very case cited

31 Brown v. Illinois, 422 U.S. at 608.

82 406 U.S. 356 (1972).

57a

by the Court in Brown as relevant to this particular

factor. In Johnson, the appellant was arrested at his

home without a warrant, booked and then submitted to

a line-up. The Supreme Court, however, rejected his

claim that the identification from the line-up should

be excluded as the fruit of an illegal entry and arrest.”

In Johnson, Mr. Justice White pointed out that prior

to the lineup Johnson was brought before a committing

magistrate to advise him of his rights and to set bail.

Consequently, at the time of the lineup, the detention

of Johnson was under the authority of this commit-

ment, and the lineup was conducted not by exploitation

of the challanged arrest but “by means sufficiently

distinguishable to be purged of the primary taint“.“

Thus, here, when Massa testified before the grand jury

under a grant of immunity, de was testifying under

the authority of the immunity papers signed that same

day by the district judge. The grand jury testimony

thus was not an exploitation of the challenged arrest

but the product of the act of the district judge in grant-

ing immunity “sufficiently distinguishable to be purged

of the primary taint.”

It should be noted that this Johnson ground for at-

The Court did not review the issue of the arrest itself,

which had been held legal by the court below, 255 La. 314,

230 So. 2d 825 (1970), because in any event it found that the

identification could not “properly be characterized as the fruit

of an illegal entry and arrest.” Johnson, supra at 356.

% Jd. at 365, quoting Wong Sun v. United States, 371 U.S.

471, 488 (1963). Cf. Walker v. City of Birmingham, 388 U.S.

307 (1967), where action in violation of a court order was not

excused even though the statute underlying the court order

may well have been unconstiutional.

tenuation appears to be a separate and distinct basis

from the volition ground. The intervening circum-

stance of the court custody did not presumably affect

Johnson’s volition: He probably would have refused

the line-up if given the option. This Johnson ground

seems also to be separate from the theory, developed

above, about the remoteness of the causation: the

court custody followed directly upon the warrantless

arrest.

The facts of Scios’ case show many other circum-

stances intervening between the discovery of the bare

inscription “Mr. Massa” on the motel charge slip in the

illegally seized file folder and the informal statement to

the prosecutor or the ultimate testimony of Massa

before the grand jury or at the coming trial. On 15

February 1974 the name “Mr. Massa” on the motel

receipt in itself conveyed absolutely nothing. It was

the subsequent FBI investigation over a period of

weeks, patiently following each link in the chain,

which eventually brought Thomas Massa, Jr. to Wash-

ington to the U.S. courthouse on 5 and 8 May 1974.

All that the FBI knew at the time of seizure was that

presumably the motel bill paid by Scios had something

to do with Your Pharmacy, Inc., since it was in the file

folder so labeled. It was necessary for the FBI to

contact the hotel manager, who had no information,

then to contact the hotel bookkeeper, who likewise

had no recollection of Massa. Following its usual

investigative technique, the FBI did persuade the book-

keeper to locate telephone records associated with this

room number on the date in question. Out of the four

numbers dialed from that room a New York FBI agent

found the name of Thomas Massa as a subscriber to

the New York number. On service of the subpoena by

a deputy marshal it was learned that there were two

Thomas Massas. The most likely prospect, Thomas

Massa, Jr., was unavailable and no information was

obtainable then as to his whereabouts. After the Gov-

ernment investigators subpoened Massa’s father, spoke

with his mother, and ultimately with Massa himself,

Massa eventually came to Washington.

True that the illegal seizure on 15 February pro-

vided a lead (doubtless one among dozens), but many

ir’ stigative steps were necessary before Mr. Massa”

wu. even identified, before he was located, before he

was persuated to come to Washington, and only after

the machinery to grant immunity had been set in mo-

tion was the prosecution able to discover whether Messa

in fact had any relevant testimony to give.

We therefore conclude that all these intervening

factors serve to make the causal connection so compli-

cated and remote as to dissipate the taint. Contemplat-

ing this situation, one commentator wrote:“

In such a case it is highly unlikely that the

police officers foresaw the challenged evidence

as a probable product of their illegality; thus

it could not have been the motivating force

behind it. It follows that the threat of exclu-

% Note, Fruit of the Poisonous Tree—A Plea for Relevant

Criteria, 115 U. Pa. L. Rev. 1136, 1148-49 (1967).

sion could not possibly operate as a deterrent

in that situation.

As further demonstration that the deterrent purpose

of exclusion would be minimally advanced in this case,

we now turn to the third factor enumerated in Brown

v. Illinois, “particularly, the purpose and flagrancy of

the official misconduct”. In so doing, we remember to

focus on “the deterrent purpose served by the exclu-

sionary rule, consistently with the balancing analysis

applied generally in the exclusionary rule context.“

We think it virtually impossible to argue that suppres-

sion of the testimony of the witness Massa will deter

similar investigative agency conduct in the future.

Application of the exclusionary rule could work only

harm here. The conduct of the FBI agents in making

the arrest of Scios and in further investigation is

hardly to be censored. At Scios’ home, the agencts

entered only after he had given his valid consent.

Furthermore, as the trial court put it, “Scios himself

chose to lead the agents to his office and the agents had

no information that Scios even had an office. The

arresting agents found a business file folder labeled

with the name of the business entity whose wire-

tapping they were investigating, “Your Pharmacy,

Inc.”, in a wire rack on a credenza three to four feet

from the desk where Scios was seated when he was

arrested. It was argued, and so held by the trial judge,

that at the moment the agent spotted the file folder

% Stone v. Powell, supra at 5320, n. 26.

* Memo. Op. of 10 Dec. 1974. App. at 51 n. 8. (This opinion

is unreported).

6la

Scios had already been disarmed and an agent had

placed himself between Scios and the credenza and

thus was in a position to prevent any lunge for a

weapon in that direction. But surely investigative

agents are supposed to look around the close vicinity

of the accused at the time of making an arrest. Accept-

ing the findings of the trial judge on conflicting evi-

dence, the file folder with a visible label “Your Phar-

macy, Inc.”, named in the affidavit supporting the

arrest warrant, was discovered by the agent in finger-

ing a stack of folders so that their labels could be read.

If this folder had been the first in line, it would have

been in “plain view” and subject to seizure.”

Surely this is a marginal case of law enforcement

misconduct, even if it can be labeled as such. It would

be difficult to hold in retrospect that the FBI agent in

charge of this arrest should then and there have made

the judicial decision that the file folder and its contents

were out of bounds, and that the agents would open

the folder at the peril of having any evidence dis-

covered by later lengthy investigation of leads barred

from admission at trial. Such a holding would not be

rational, first, because it is likely to have absolutely no

deterrent effect on investigative agent conduct in the

future, and secondly, if it did, it would probably deter

agents from acting to secure investigative leads when

* The “plain view” doctrine seems to be an “eyes only”

matter. Here the agent used his fingers to riffle a stack of

folders, and thus, according to the trial judge, sinned irre-

mediably. What if the agent had craned his neck, or bent his

knees to read the label? We do not pass on the legality of the

search here.

they should act in marginal cases, all to the detriment

of the interest the law abiding public has in effective

law enforcement.

In considering whether exclusion would serve a

“valid and useful purpose,” we are further guided

by the increasing case law that also pivots exclusion

upon the nature of police misconduct. In Michigan v.

Tucker,” for example, police learned the name of a

witness from a statement obtained without full

Miranda warnings, although in good faith compli-

ance with pre-Miranda standards.“ Noting that the

statement obtained under interrogation was excluded

at trial, the Court concluded that, “[w]hatever deter-

rent effect on future police conduct the exclusion of

those statements may have had, we do not believe it

would be significantly augmented by excluding the

testimony of the witness . . as well.” And so in the

case at bar: evidence taken from the search is excluded

‘though the search itself has been conducted in a good

faith manner,“ whatever additional deterrent value

would be gained by exclusion of the fruits, particularly

% Michigan v. Tucker, supra at 446.

Id. at 435-37.

The interrogation took place before the decision in Mir-

anda, 384 U.S. 436 (1966), but the trial occurred afterwards,

thus making Miranda applicable under the holding of Johnson

v. New Jersey, 384 U.S. 719 (1966).

Michigan v. Tucker, supra at 448.

On the facts of this case, it would appear that the officers

would be entitled to a good faith immunity from suit. Pierson

v. Ray, 386 U.S. 547 (1967). See also Bivens v. Six Unknown

Named Agents, 403 U.S. 388 (1971).

63a

here with the long chain of causation, is not justified

by the loss of this opportunity for testimony.

For reasoning parallel to Tucker, the nature of

police misconduct has been critical in the admission of

illegally seized evidence in probation and sentencing

proceedings.“ Decisions not to apply standards under

the Fourth Amendment retroactively have also relied

upon good faith conduct.“ One further example will

suffice. In recently allowing illegally seized evider.ce

to be admitted in civil proceedings, the Court in United

States v. Janis,“ in stating the proposition to be re-

solved, included that the officers acted “in good faith

reliance on a warrant that later proved to be defec-

tive.” For reasons of logic and precedent, therefore,

we conclude that the application of the “fruits” doc-

trine here would not aptly serve its deterrent rationale.

In the words of Mr. Justice Frankfurter: Sophisti-

cated argument may prove a causal connection be-

tween information obtained through illicit wire-tap-

ping [illegal search]and the Government’s proof. As a

matter of good sense, however, such connection may

Compare United States v. Vandemark, 522 F.2d 1019 (9th

Cir. 1975) with Verdugo v. United States, 402 F. 2d 599 (9th

Cir. 1968), cert. denied, 402 U.S. 961 (1971).

United States v. Peltier, 422 U.S. 531 (1975). The Court

explained that, “[i]f the purpose of the exclusionary rule is

to deter unlawful police conduct, then evidence obtained from

a search should be suppressed only if it can be said that ihe

law enforcement officer had knowledge, or may properly be

charged with knowledge, that the search was unconstitutional

under the Fourth Amendment.” /d. at 542.

“ 44 L. W. 5303 (6 July 1976).

64a

wo —

have become so attenuated so as to dissipate the

taint.” “ This is such a case.“ The witness Thomas

Massa, Jr., may testify. The order appealed from is

set aside and the case is

Remanded.

“" Nardone v. United States, 308 U.S. 338, 341 (1939).

We note that District Judge Flannery did not have the

benefit of the Supreme Court opinions in Brown v. Illinois,

422 U.S. 590 (June 1975) or Stone v. Powell, 44 L.W. 5313

(6 July 1976), United States v. Janis, 44 L.W. 5303 (6 July

1976), and other Supreme Court decisions on the exclusionary

rule during the 1975-1976 term, when he ruled on 20 May

1975 barring the testimony of the witness.

fr U.S. GOVERNMENT PRINTING OFFICE. 1977—228-685/57