Petition — Fredericks v. United States

um, U.

| FILED

\

in the ypoees RODAK, JR., CLERK |

Supreme Court

of the

United States

October Term, 1978

_NO--8-1244

VALERIE FREDERICKS,

Petitioner,

US.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE FIFTH CIRCUIT

STUART A. MARKUS

Counsel for Petitioner

2251 S.W. 22nd Street

Miami, Florida 33145

(305) 856-6910

—

eT on kb ywtss's'e ses eke 2

Ne edb xe Katies vues 2

Cee a ise awedes ons 2

Ee as eke uesesbuceseess 2

I ccc wc sc ccnccccccccs 4

ee eae ic ce absbecvcseceses 13

EES SE 14

Appendix A — Opinions and Judgment below App. |

B — Conflicting Opinion ........... App. 34

CITATIONS

United States v. Ceccolini,

eo. cc éccdicaeSen 4

i

in the

Supreme Court

of the

United States

October Term, 1978

cee

a

VALERIE FREDERICKS,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner prays that a writ of certiorari issue to

review the judgment of the United States Court of Ap-

peals for the Fifth Circuit, entered in the above-entitled

case on December 15, 1978.!

'The style of the case in the Fifth Circuit read as

follows: United States of America, Piaintiff/Appellee v. Valerie

Fredericks, Craig Calver, and Leon Perry, Defendants/Appellants;

No. 77-5802.

CITATIONS TO OPINIONS BELOW

The opinion of the United States Magistrate is un-

reported and is printed in Appendix A hereto infra, p.

1 . The opinion of the District Court, is unreported and

is printed in Appendix A hereto infra, p. 6 . The opinion

of the Circuit Court of Appeals, printed in Appendix A

hereto infra, p. 9 , is reported in 586 F.2d 470.

JURISDICTION

The judgment of the Circuit Court of Appeals was

entered on December 15, 1978, infra. Rehearing was

denied on January 11, 1979, printed in Appendix A

hereto, infra, App. 33. The jurisdiction of this Court is

invoked under 28 U.S.C. Section 1254(1).

QUESTION PRESENTED

Whether, when abusive, coercive tactics are used by

government agents against a party in order to elicit in-

criminating testimony against a second party, that

second party has standing to cite those illegal police tac-

tics as an infringement against his constitutional

guarantees sufficient to warrant his right to assert them

in a motion to suppress the first party's testimony

relative to himself (the second party).

STATEMENT

The Petitioner/Defendant, Valerie Fredericks, was

charged with Co-Defendants Leon Perry and Craig

Calver in an indictment filed by the Grand Jury on

August 25, 1977 with conspiracy to distribute metha-

qualone hydrochloride and possession with intent to dis-

bo

tribute methaqualone hydrochloride. The indictment

was based on the following factual situation.

On August 2, 1977, two narcotics agents arrested

Leon Perry and Craig Calver in the latter's apartment.

After Perry and Calver had been placed under arrest,

the Petitioner, Valerie Fredericks and unindicted Co-

Conspirator, Robin Ehrlich were inticed inio Calver’s

apartment. Miss Ehrlich was immediately separated

from all of the others present in the apartment and was

interrogated by the agents. The actions of the agents

were fraught with illegalities. First, Miss Ehrlich was

questioned without ever having had her Miranda rights

read to her.

Second, the agents were so threatening and coercive

in their tactics that Miss Ehrlich responded by suc-

cumbing to their questions and psychological brutality

with tears and volunteering incriminating information

as to the the Petitioner/Defendant, Valerie Fredericks,

thinking that to do so would get herself and her

bovfriend, Leon Perry, out of any trouble. So in-

timidated and bullied by the agents was Miss Ehrlich

that she agreed to grant them access to Leon Perry's

apartment. The Defendant, Leon Perry’s Motion to

Suppress the evidence seized from that illegal search

and seizure was granted.

However, the Petitioner/Defendant Valerie

Fredericks’ Motion to Suppress the testimony of Robin

Ehrlich obtained illegally and subsequently used

against her was denied on the basis that the moving

defendant lacked standing.

By affirming the District Court, the Fifth Circuit is

in direct conflict with this Court’s opinion in the United

States v. Ceccolini, (1978) 435 U.S. 268, 98 S.Ct. 1054,

55 L.Ed.2d 268.

REASONS FOR GRANTING THE WRIT

1. The decision in the court below in the instant

case is directly in conflict with the decision of this Court

in United States v. Ceccolini, supra. Brietly, the facts in

Ceccolini, were as tollows: <A police officer discovered

an envelope containing money and policy slips inside

Detendant Ceccolini’s flower shop. Same was discovered

through the means of an illegal search and seizure. Upon

said discovery, Officer Biro (discovering policeman)

asked the Defendant's employee, Lois Hennessey, who

the envelope belonged to. As a direct result of Miss Hen-

nessey's response, the envelope was reported to the

F.B.I. who initiated an investigation into the matter

some four months later. Six months after the initial in-

terrogation by the F.B.I., Ceccolini was called betore a

Grand Jury and at that time denied any knowledge

regarding the envelope. Miss Hennessey was also called

before the Grand Jury and her testimony, supporting

her earlier statements, conflicted directly with that of

Ceccolini. Following the statements in front of the

Grand Jury an indictment was handed down and Miss

Hennessey was called as a key witness at the trial of the

Defendant. After a guilty verdict was rendered against

Ceccolini, the District Court granted the Defendant's

Motion to Suppress Miss Hennessey’s testimony and set

aside the verdict.

It is made clear by this Court's recitation of the

facts that the District Court's decision to grant Cec-

colini’s Motion to Suppress the testimony of Hennessey

alter the guilty verdict was made because Hennessey

first came directly to the attention of the government as

the result of an illegal search and the government had

not sustained its burden of showing that Hennessey’s

testimony definitely would have been obtained without

the illegal search. Contrasting that factual pattern with

the facts in the case sub judice, the District Court was in

error in not granting Petitioner's Motion to Suppress

Robin Ehrlich’s testimony because, as in Ceccolini,

Robin's statements as well as Robin herself came to the

attention of the government as the result of illegal police

conduct and interrogation, and, further, the government

had not sustained its burden of showing that Ehrlich’s

testimony definitely would have been obtained without

the illegal activity. Hence, the Fifth Circuit's affirmance

of the District Court's decision blatantly goes against

the policy emminating from Ceccolini.

In Ceccolini, it is clear that the Second Circuit’s af-

firmance of the suppression of Hennessey’s testimony

was, by implication, a ruling that Ceccolini had suf-

ficient standing to move to suppress the testimony of

Hennessey based on the fact that her testimony was il-

legally obtained (ie: as the result of an illegal search).

And, while this Court ultimately ruled that Hennessey’s

testimony should have been allowed in, it did so on other

grounds. In other words, the High Court’s opinion never

denies that had the original taint not sufficiently dis-

sipated, Ceccolini would have had the requisite standing

to move to suppress Hennessey’s statements.

In its review of the Second Circuit’s decision, this

Court held, as to the issue of extending the exclusionary

rule to persons other than the ones subjected to the il-

legal search that an essentially important element is

whether or not the testifying witness is coming forward

voluntarily. In evaluating the standards of application

of the exclusionary rule to live-witness testimony in

light of the public policy of bringing forth all evidence

which exposes the truth regarding alleged criminal

activity-versus-a per se or ‘but for’ rule that would make

inadmissable any evidence, whether tangible or live-

witness testimony, that came to light via original illegal

policv conduct, this Court opines:

We are first impelled to conclude that the

degree of free will exercised by the witness is

not irrelevant in determining the extent to

which the basic purpose of the exclusionary

rule will be advanced by its application.

(Ceccolini, at 1060)

This Court goes on to discuss that where a witness,

although initially discovered via illegal means, comes

forward of his own free will and testifies freely and

voluntarily, that would be sufficient to dissipate any .

original taint. Stated conversely, then, a witness, first

discovered through illegal means (as here, where Robin

was deceitfully coaxed into Calver’s apartment by the

Government agents for what she thought was a party)

and who thereafter unwillingly makes statements

(ie: again, as here, where Robin was threatened and psy-

chologically manipulated into giving damaging

testimony), the original taint does not so dissipate as to

make her testimony admissable. Going one step further,

if Ceccolini had had standing to suppress Hennessey's

testimony because the taint had not so dissipated then

too, did your Respondent/Defendant, Valerie

Fredericks, have the requisite standing to suppress

Robin’s testimony.

Continuing then with this Court’s opinicn as to

what is required in order to suppress a witness’

testimony, this Court stated that the link between the

illegality and the testimony must be straight and unin-

terrupted:

In short, since the cost of excluding live-witness

testimony often will be greater, a closer, more

direct link between the illegality and that kind

of testimony is required. (Ceccolini, at 1061).

In Fredericks, there is no question that the link is

direct. The illegality regarding the obtaining of Robin

Ehrlich’s testimony occurred when: (1) the policemen

began questioning Ehrlich without giving her Miranda

warnings; and (2) Ehrlich responded, giving statements

to the agents under brutal, threatening conditions.

There was absolutely no break in the chain of causation.

Clearly, this ‘“‘chain of causation” was one of the

basic factors upon which this Court made its determina-

tion that the holding of the Second Circuit in Ceccolini

had to be reversed. Quoting from this Court’s opinion:

We hold that the Court of Appeals erred in

holding that the degree of attenuation was not

sufficient to dissipate the connection between

the illegality and the testimony. The evidence

indicates overwhelmingly that the testimony

given by the witness was an act of her own free

will in no way coerced or even induced by of-

ficial authority. . . (Ceccolini, at 1062).

Had Hennessey’s statements been elicited as a

direct result of the illegality, it follows that this Court

~]

would have held that they were properly the subject of

suppression.

There, then, is the final conflict between this

Court’s decision and the decision in the Fifth Circuit.

Hennessey’s testimony, as decided by this Court, should

have been allowed into evidence over Ceccolini’s objec-

tions because of three factors that were present (1) the

degree of attenuation was sufficient to dissipate the con-

nection between the illegality and the testimony; (2) the

testimony by the witness was given of her own free will;

and (3) there was no evidence whatsoever that the initial

illegality (the initial illegal search by policeman Biro)

was conducted with the intent of finding a willing and

knowledgeable witness to testify against Ceccolini. (It

should be pointed out that the direct opposite of all

three factors is present in Fredericks.)

Basing its decision on these three elements, this

Court concluded that silencing Hennessey (by making

the exclusionary rule applicable as to her) would very

likely have a negligible deterrent effect. The same can-

not be true in the Fredericks’ case. If this Court deter-

mines that heavy-handed and coercive police tactics

cannot be used so as to obtain testimony for the govern-

ment because the use of such means is repugnant to our

Constitution, the deterrent effect on similar police ac-

tivity in the future would ‘be significant.

Relying on the three factors used by this Court in

determining that Hennessey’s testimony should have

been allowed into evidence, your Petitioner would now

examine the decision of the Fifth Circuit and would con-

clude that because none of the three factors present in

Ceccolini are present in Fredericks there is a direct con-

flict between this Court’s decision and that of the Fifth

Circuit.

It was conceded by the Circuit Court in Fredericks,

that:

Robin Ehrlich was lead into a separate room

and, according to her uncontroverted

testimony, subjected to threatening and heavy

handed interrogation concerning the

wereabouts of the quaaludes and whether she

used drugs. As several government agents later

testified, she was extremely upset that her

boyfriend, Leon Perry had been arrested and,

presumably, that she too was being detained

. . . Ehrlich then admitted that the quaaludes

were in the apartment that she shared with

Perry and that they had been brought there in

a suitcase by Valerie Fredericks. Subsequent

testimony given by the various government

agents was inconclusive concerning whether

Ehrlich had been given any Miranda warnings

prior to this interrogation, even though she

was, according to one officer’s testimony, under

arrest and it was manifestly clear to all, in-

cluding Ehrlich herself, that she was not free to

lea 2. (Fredericks, at 1596), (emphasis added)

Hence, as pointed out by the Fifth Circuit itself in

its own recitation of the facts, the illegal tactics

immediately precipitated the involuntarily obtained

testimony of Ehrlich. Again, it must be stressed that

there was no break in the link of causation between the

illegal police tactics and the statements obtained via the

use of those tactics.

As is manifestly clear in the passage quoted

hereinabove, Ehrlich did not come forward voluntarily,

but was coerced into giving her statements, and, did not

testify voluntarily at the trial. Again, quoting from the

Fifth Circuit’s own recitation of the facts:

Before Ehrlich actually testified at trial,

however, she attempted through counsel

specially appointed to represent her at trial, to

assert her Fifth Amendment privilege against

testifying. She argued that she had not

testified voluntarily at the suppression hearing,

nor was her appearance at trial a voluntary

one. She admitted that she had not been gran-

ted any immunity, but she claimed that she

had been promised that she would not have to

testify against her boyfriend, Leon Perry. The

District Judge ruled that her testimony at the

suppression hearing had been given voluntarily

and that in giving her testimony she had

waived her Fifth Amendment privilege. He

therefore ordered to testify or be held in con-

tempt. (Fredericks, at 1597.)

Therefore, while one of the factors weighing heavily

on the decision of this Court in Ceccolini was that Miss

Hennessey came forward and testified against the

Defendant on a voluntary. basis, that is not the same

posture in which Miss Ehrlich came forward. She was

forced into testifying and in no way and at rio time came

forward as a voluntary witness on behalf of the govern-

ment.

10

The third point in Ceccolini, upon which this Court

based its judicious decision to allow Miss Hennessey's

testimony into evidence was that the initial illegality

was never conducted specifically with any intent of

finding a willing and knowledgeable witness to testify

against Ceccolini. This is simply not the same factual

picture that was drawn in Fredericks. There, the initial

illegality was conducted specifically with the intent of

finding a willing and knowledgeable witness to testify

against Perry, Calver, and your Petitioner, Fredericks.

As the argument hereinabove amply points out, the nar-

cotics agents enticed Ehrlich and Fredericks into

Calver’s apartment for the sole purpose of conducting an

in depth interrogation of them; all of which was com-

mandeered via illegal police conduct. It is evident, then,

that the factors which prompted this Court to hold that

Ceccolini did not have sufficient grounds upon which to

silence Hennessey’s testimony, are the same grounds

upon which your Petitioner does have standing to sup-

press Ehrlich’s testimony. The conflict, then, between

the two decisions is evident, and the Fifth Circuit's

opinion, contrary to the holding of this Court, requires

at the very least a closer examination by this High Court

so that this all important standing issue can at last be

resolved.

2. Clearly, the question presented is of importance

in the administration of the criminal justice laws. In-

deed, the time has finally come for this Court to deal

specifically with this most tenuous area of standing. As

can be seen from the Fifth Circuit’s opinion in

Fredericks, the police used heavy-handed, psy-

chologically coercive tactics in their illegal interrogation

of Ehrlich. And, as conceded by the lower court, said

tactics were used as a means of obtaining incriminating

11

testimony against Valerie Fredericks. And yet, when

Valerie attempted to suppress Ehrlich’s testimony on

the basis of these illegalities, she was denied standing.

In upholding the District Court’s decision to deny

standing, the Fifth Circuit opined:

In this case, however, the actions of the DEA

officers, even if viewed in the worst possible

light, were a far cry from the sort of third-

degree physical or psychological coercion that

might prompt us to disregard all together the

societal interest in law enforcement by ex-

cluding the highly probative testimony of a

nondefendant. (Fredericks, at 1601).

What would so “prompt the court”? Torture? This

area is crying out for some sort of standard, one to which

both the government agents and the courts must be held

accountable so that the rights of Codefendants,

(Codefendants who are undeniably victimized by the

police illegal conduct) may be afforded the Con-

stitutional protections this Court has always sought to

give.

Hence, settlement of the question by this Court is

plainly in the public interest, since it is likely to be a

question presented in a majority of criminal cases in

volving the testimony of Codefendants, and some sense

of federal uniformity must be established.

3. The decision of the Court below is believed to

be erroneous and the conflicting decision of the Court in

Ceccolini, not only correct, but, because it is the deci-

sion of the highest court of this nation would of course

supercede the Fifth Circuit holding.

12

a ema ws ---

CONCLUSION

For the foregoing reasons, this Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

/s/ STUART A. MARKUS,

Counsel for Petitioner

February 8, 1979.

13

GAM oes

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No.

VALERIE FREDERICKS,

Petitioner,

Vv.

UNITED STATES OF AMERICA

TO Solicitor General of the United States,

Counsel for Respondent:

YOU ARE HEREBY NOTIFIED that the petition

for writ of certiorari in the above-entitled and numbered

case was filed in the Supreme Court of the United States

on the 9th day of February, 1979.

/s/ STUART A. MARKUS,

Counsel for Petitioner

2251 S.W. 22nd Street

Miami, Florida 33145

(305) 856-6910

14

cn Ol

IE SENS

STATE OF FLORIDA )

i: *

COUNTY OF DADE)

PERSONALLY APPEARED before me this day,

STUART A. MARKUS, who, being duly sworn on oath

deposes and says:

l.

io)

That he is Counsel for the Petitioner in the

above and foregoing cause.

That three copies of the foregoing Petition for

Writ of Certiorari have been served on the

Solicitor General of the United States, Depart-

ment of Justice, Washington, D.C. 20530.

That he has read the allegations contained

herein and the same are true and correct

SWORN TO and SUBSCRIBED TO before me this

8th day of February, 1979.

/s/ STUART A. MARKUS

NOTARY PUBLIC,

STATE OF FLORIDA

My Commission Expires:

15

ae

APPENDIX A

Copies of opinions and judgments below.

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT OF

FLORIDA

NO. 77-405-Cr-CA

UNITED STATES OF AMERICA,

Plaintiff,

US.

LEON PERRY,

Defendant.

PROCEEDINGS ON

MOTION TO SUPPRESS

Room 258,

United States Courthouse,

300 Northeast Ist Avenue,

Miami, Florida,

Thursday, October 6, 1977.

The above-entitled matter came on for Hearing, pur-

suant to notice, commencing at 1 p.m.

BEFORE:

THE HONORABLE PETER R. PALERMO,

United States Magistrate.

APPEARANCES:

App. 1

PATRICK SULLIVAN, Esq.,

on behalf of the Government.

STUART A. MARKUS, Esq.,

on behalf of Valerie Fredericks.

GEORGE NICHOLAS, Esq.,

on behalf of the Defendant.

Perry — Direct

Q. Did she have a key to the apartment?

A. She has a key.

THE COURT: We don’t have any controversy

here.

Are there any further questions of this witness?

Any other questions from the Government

MR. NICHOLAS: Nothing, Your Honor.

(Thereupon, the witness was excused.)

THE COURT: Any other witnesses from the

defendant?

MR. NICHOLAS: No, Your Honor.

THE COURT: This Court would find that the

issue before it on the motion to suppress is (1) whether

or not Robin lived with Mr. Perry and both had access

and lived there.

App. 2

The Court would find that as a fact.

The issue, of course, is whether the admission of the

officers to go in there was voluntarily given, freely and

voluntarily given by Robin.

Secondly, whether the officer had the right to

search the suitcase.

This Court would find from the testimony and con-

clusive as a fact that the entry to the apartment was not

proper, according to the discussion, nor was the search

of the suitcase. It would find that the agents, under the

conditions that existed at the time, had plenty of time to

secure the apartment and to obtain a search warrant, if

they had probable cause for same, both as to going into

the apartment. And, even if the apartment was entered

legally to gain possession of the suitcase, they could

have gained possession and gotten a search warrant for

the suitcase and the Court would so find that both the

search of the apartment and the search of the suitcase

was not proper and recommends suppression as to the

Quaaludes.

As to standing, it would find that all parties have

standing.

The testimony of Robin was that Miss Fredericks

brought the suitcase into the apartment, which would

give her standing.

Since it was Perry’s apartment, it would give him

standing.

App. 3

As to Craig Calver, I didn’t hear any testimony as to

his standing whatsoever.

I would rule that the mction to suppress does not

apply as to him.

The Government can proceed from there.

MR. MARKUS: What about Count I?

THE COURT: I am not dismissing it. I am just

recommending a finding of fact.

The Court is ruling that as to Perry and Fredericks,

the search of the apartment was illegal and also the suit-

case.

MR. SULLIVAN: May I clarify one thing?

Does the Court find that Robin Ehrlich’s consent to

enter her apartment was or was not freely given?

THE COURT: It was not freely given.

1 would believe that any reasonable person of her

age and sex or whatever, when confronted with

policemen under those circumstances, from her own

testimony, she was questioned, taken in. There was the

proffer she was even yelled at. I would think even I

would agree to let them in my apartment under those

conditions. Any reasonable person would. And I would

not feel it was freely and voluntarily given and I will so

recommend.

App. 4

Gentlemen, I have stated the ground rules. The

court reporter will file his transcript. You can appeal to

Judge Atkins. I will deliver the file with a memorandum

to him at least by tomorrow so he will be aware of the

possibilities.

You have five days from the date of the filing of the

transcript.

I will speak with Judge Atkins and let him know

that I have so ruled.

MR. SULLIVAN: _Is the evidence suppressed as to

both counts or only as to Count II, the possessory count”

THE COURT: I don’t think that is my

prerogative. That is what Judge Atkins has to rule on. |

am ruling that the seizure of the property as to those two

people was illegal and not voluntarily given. And Judge

Atkins can take it from there.

I am only ruling as to the individuals and the

search. I am not ruling as to any other part of the counts

or the indictment. I am not going to get into what was

dismissed. Only Judge Atkins has the authority to do

that.

(Thereupon, the hearing was concluded.)

App. 5

IN THE DISTRICT COURT OF THE UNITED

- STATES FOR THE SOUTHERN DISTRICT OF

FLORIDA

NO. 77-405-Cr-CA

UNITED STATES OF AMERICA,

Plaintiff,

US.

CRAIG CALVER, LEON PERRY,

VALERIE FREDERICKS,

Defendants.

South Courtroom

United States Court House

Miami, Florida

Tuesday, October 18, 1977

1:00 o'clock P.M.

The above entitled cause came on for trial before

The Honorable C. CLYDE ATKINS, and a jury duly

empaneled.

APPEARANCES:

EDWARD GALANTE, Assistant United

States Attorney,

On behalf of the Government.

App. 6

MELVYN KESSLER, ESQ.,

On behalf of Defendant Calver.

GEORGE NICHOLAS, ESQ.,

On behalf of Defendant Perry.

STUART A. MARKUS, ESQ., and

KENNETH FELDMAN, ESQ.,

On behalf of Defendant Fredericks.

THE CLERK: As I call your name, will you

answer so that you can be heard by all.

(Thereupon the jury was polled as to their ver-

dict and all answered in the affirmative to the

question: ‘Are the verdicts as read, your ver-

dicts?’’)

THE COURT: Thank you, ladies and gentlemen,

for your service as jurors in this case.

(Thereupon the jury was excused.)

THE COURT: Craig Calver, Leon Perry and

Valerie Fredericks, a jury of your peers having returned

verdicts of guilty as to each of you, with respect to the

charges contained in the indictment, the Court now ad-

judges you guilty and refers this matter to the Probation

Office for a presentence report. At that time I will hear

from you and your counsel as to any matters that I

should consider before imposing sentences.

These defendants are at liberty on bond. Is there

any objection to their remaining on the same bonds?

App. 7

MR. GALANTE: No, sir.

THE COURT: I will permit you to remain at

liberty under the same bonds previously posted and un-

der the same conditions.

I do remind you that if you fail to appear after hav-

ing been notified to attend upon the Court for the pur-

pose of sentencing that your failure to be here would be a

separate offense as to that which you have been found

guiltv here today.

Good evening.

(Thereupon the trial was adjourned.)

App. 8

UNITED STATES of America,

Plaintiff-Appellee,

US.

Valerie FREDERICKS, Craig Calver,

and Leon Perry,

Defendants-Appellants.

No. 77-5802.

United States Court of Appeals,

Fifth Circuit.

Dec. 15, 1978.

Appeals from the United States District Court for

the Southern District of Florida.

Betore BROWN, Chief Judge, GODBOLD and

FAY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Valerie Fredericks, Craig Calver, and Leon Perry

have been found guilty by a jury for conspiring to dis-

tribute methaqualone hydrochloride (quaalude cap-

sules), in violation of 21 U.S.C.A. §846. The Govern-

ment investigation which led to their convictions was

hardly exemplary, but we find that none of the de-

fendants’ asserted points of error require reversal and we

therefore affirm the judgments entered below.

App. 9

I. The Evidence Before The Jury

The evidence introduced at trial consisted

primarily of the testimony, of three witnesses: Armando

Marin and Robert Fredericks, both Special Agents with

the Drug Enforcement Administration (DEA), and

Robin Ehrlich, who was an unindicted coconspirator of

the three defendants. !

Special Agent Marin testified that on July 30, 1977,

while acting in an undercover capacity, he was in-

troduced to Craig Calver by a Carlos Lagos-Martinez at

Calver’s residence. In the presence of Marin and an in-

formant. Calver asked Lagos-Martinez if he was still in-

terested in obtaining some quaaludes, and Lagos-

Martinez said that he was.

Two days later, according to Marin’s testimony,

while in Lagos-Martinez’s hotel room, he answered a

telephone call for Lagos-Martinez from ‘“‘Leon.” The gist

of Leon’s message was that he had the 2,000 quaaludes

that Lagos-Martinez desired. Marin told Leon that he,

Marin, was to be the actual purchaser of the quaaludes

and that he wanted 10,000 tablets, not 2,000. Leon told

Marin that obtaining 10,000 quaaludes would take a

while longer and that he would call Marin back later.

Shortly thereafter, Leon called again and told Marin

that he would be able to supply 10,000 tablets, but that

Marin would have to pick them up at “Craig's house.”

Marin testified that he subsequently ascertained that

Leon was referring to the apartment of Craig Calver.

‘Defendant Craig Calver also testified, but his testimony was

limited to his educational background and his general good charter,

and is not pertinent to this appeal. The other two defendants did

not take the stand.

App. 10

Less than an hour after Leon’s second call, Marin

called Craig Calver’s apartment. Calver answered the

phone and Marin asked to speak to Leon. Calver told

him that Leon was ‘getting something together” and

was not there at the moment. Marin asked if Leon was

getting the quaaludes together and Calver answered:

“Yes. You are going to have to come and pick them up.”

Marin then testified that about 9:00 p.m. on the

same day, August 1, he went to Calver’s apartment

along with an informant. Both Calver and Leon Perry

were at the apartment, and Marin was introduced to

Perry by Calver. As Marin shook Perry’s hand, he ob-

served to Perry that they had earlier spoken to one

another on the phone and Perry acknowledged that fact.

Perry then asked Marin if he had the money for the

quaaludes. Marin assured Perry that he did, but said

that he would not reveal any money until he could see

the quaaludes. Perry told Marin that the quaaludes

were at his girlfriend Robin’s house, which was a few

buildings away, and that Marin would have to wait at

Calver’s apartment for a few minutes. Calver and Perry

then left the apartment.

When Calver and Perry returned about ten minutes

later, Perry told Marin that they would have to postpone

the transaction for a while because there were too many

police officers in the area. Calver indicated his agree-

ment that the deal would have to be postponed. Marin

then revealed the fact that he was a federal officer and

arrested Calver and Perry.

Special Agent Fredericks corroborated some of the

testimony given by Agent Marin. Fredericks testified

that on the night of August 1, 1977, he, along with other

agents, was stationed outside Craig Calver’s apartment.

App. 11

In the course of his surveillance, he observed Agent

Marin enter the apartment, defendants Calver and

Perry leave the apartment, and finally Calver and Perry

return to the apartment, after which he assisted Agent

Marin in arresting the two male defendants.

The final Government witness was Robin Ehrlich,

the unindicted coconspirator. She testified that she

shared an apartment with Leon Perry and that on

August 1, 1977, Perry told her that some people would

be dropping by. Later that day, according to Ehrlich’s

testimony, the defendant Valerie Fredericks arrived by

taxi with a suitcase. Ehrlich testified that while in the

presence of herself, Perry, Fredericks, and another in-

dividual, the suitcase was opened revealing stacks of foil

packages, which Fredericks referred to as quaaludes.

Fredericks then stated that before she relinquished the

quaaludes, she would have to receive some money, and

she was assured that some men were coming with the

money.

Ehrlich also testified that later during the same

evening, after 9:00 p.m., she and Fredericks left Perry's

apartment. When asked why they left the apartment,

Ehrlich responded that she was concerned about Perry's

whereabouts and Fredericks ‘“‘wanted to find out what

happened with the deal.’’ According to Ehrlich’s subse-

quent testimony, the two women went to Craig Calver’s

apartment, where they faund Calver and Perry and a

number of agents.

After the Government rested its case, Special

Agent Marin was recalled to the stand by the defense.

At that point it was brought out that he had arrested

Valerie Fredericks at Calver’s apartment approximately

twenty minutes after she had arrived there.

App. 12

This account of the testimony heard by the jury is

not a complete account of the facts relevant to our dis-

position of this appeal. But we have separately pre-

sented the evidence before the jury in order to respond to

the first contention made by each of the three appellants

— that there was insufficient competent evidence to

sustain the jury’s verdict that they had conspired to dis-

tribute quaaludes. Each of the appellants also urges

that their convictions must be reversed on three other

vrounds. We will supply the background for each of

those contentions when we respond to them in the

course of this opinion.

II. Sufficiency Of The Legally

Competent Evidence

[1-3] At the close of the prosecution’s case-in-

chief, each of the defendants moved for acquittal on the

ground that the prosecution had failed to introduce suf-

ficient, legally competent evidence to prove that a con-

spiracy existed, that each defendant knew about it, and

that each defendant voluntarily participated in the

conspiracy.” The defendants’ motion were denied. The

test for sufficiency of proof on a motion for judgment of

*The essential elements of a criminal conspiracy are an agree-

ment by two or more persons to commit an offense against the

United States attended by an overt act by one of them in

furtherance of the agreement. E. g., United States v. Perez, 5 Cir.,

1973, 489 F.2d 51, 61, cert. denied, 1974, 417 U.S. 945, 94 S.Ct. 3067,

41 L.Ed.2d 664. While no formal agreement nor direct evidence is

necessary to establish a conspiracy, United States v. Barrera, 5

Cir., 1977, 547 F.2d 1250, 1256, “‘[t]here must be proof beyond a

reasonable doubt that a conspiracy existed, that the accused knew

of it, and that the accused, with that knowledge, voluntarily

became a part of it,” United States v. Gutierrez, 5 Cir., 1977, 559

F.2d 1278, 1280.

App. 13

acquittal, and on review of the denial of such a motion,

is whether the jury might reasonably conclude that the

evidence, viewed in the light most favorable to the

prosection, is inconsistent with every reasonable

hypothesis of the accused’s innocence. E. g., United

States v. Barrera, 5 Cir., 1977, 657 F.2d 1250, 1255;

United States v. Warner, 5 Cir., 1971, 441 F.2d 821, 825,

cert. denied, 1971, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d

58.

[4] Assuming for the moment that all the evidence

recounted above was properly admitted, there is no

question that it was sufficient for the jury to exclude any

reasonable hypothesis but that of the defendants’ guilt.

The jury could infer the existence of an illegal con-

spiracy and the defendants’ knowing and willing par-

ticipation in it from the initial meeting of Calver and

Special Agent Marin at Calver’s apartment, from the

phone conversations Marin had with Perry and Calver

negotiating and making arrangements for the sale of

10,000 quaaludes, from the conversations that occurred

at Calver’s apartment when Marin went there to com-

plete the sale, from the postponement of the deal by

Perry and Calver because too many police were in the

vicinity, from Fredericks’ arrival at Perry’s apartment

with a suitcase of quaaludes and the conversation be-

tween Fredericks and Perry about money, and from

Fredericks’ trip to Calver’s apartment to find out what

was happening with the deal.’ And the jury was war-

‘The overt act requirement need be satisfied by only one of the

coconspirators. See note 2, supra. In this case, the jury could have

found that all three defendants committed the necessary overt

act—for example, that Perry telephoned Marin to make arrange-

ments for the transaction and contacted Fredericks to supply the

quaaludes; that Calver, along with Perry, left Calver’s apartment to

pick up the quaaludes; and that Fredericks actually supplied the

quaaludes.

App. 14

ranted in deducing from this evidence inferences that

excluded beyond a reasonable doubt any possibility of

innocence.

The crucial question then is whether all this

evidence was properly admitted for the jury’s considera-

tion. In their briefs, the appellants challenged the ad-

mission of Robin Ehrlich’s testimony in its entirety on

the ground that it was obtained and introduced in viola-

tion of both their constitutional rights and hers. In Part

VI of this opinion, however, we reject this argument and

hold that notwithstanding any violation of Robin

Ehrlich’s rights, appellants were not entitled to the sup-

pression of her testimony.

i5, 6] In oral argument, appellants raised an ad-

ditional objection to the competence of the evidence.

Each appellant claimed that the prosecution failed to

establish the necessary foundation for the admission of

various coconspirator statements against all of the

defendants and not just the declarant. F.R.Evid.

801(d)(2)(E) provides that statements made by a

coconspirator during the course and in furtherance of

the conspiracy are not hearsay and may be admitted

against other coconspirators.‘ Nevertheless, such state-

ments cannot serve as the sole proof that the defendant

against whom they are admitted indeed was a member

‘Hearsay’ is defined in Rule 801(c) as ‘‘a statement, other

than one made by the declarant while testifying at the trial or hear-

ing, offered in evidence to prove the truth of the matter asserted.”

Rule 801(d)(2)(E) in essence codifies the long-recognized

coconspirator exception to the hearsay rule by providing that *‘|a]

statement is not hearsay if * * * [t]he statement is offered against

a party and is * * * astatement by a coconspirator of a party dur-

ing the course and in furtherance of the conspiracy.”

App. 15

of the conspiracy. The Government must produce in-

dependent evidence both that the conspiracy existed

and, with respect to any defendant coconspirator

against whom the statements are admitted, that he or

she was a member of that conspiracy.° The Government

may use, however, any otherwise admissible evidence in

meeting this threshold burden of production, including

— with respect to any particular defendant — any out-

The declarations of one conspirator made _ in

furtherance of the objects of the conspiracy, and during its

existence, are admissible against all members of the con-

spiracy. * * * But a defendant’s connection with a con-

spiracy cannot be established by extrajudicial declarations

of a co-conspirator, made out of the presence of the defen-

dant. There must be proof aliunde of the existence of the

conspiracy, and of the defendant's connection with it,

before such statements become admissible as against a

defendant not present when they were made. * * *

United States v. Apollo, 5 Cir., 1973, 476 F.2d 156, 159, quoting

Montford v. United States, 5 Cir., 1952, 200 F.2d 759, 760; see also

United States v. Hansen, 5 Cirs, 1978, 569 F.2d 406, 409.

Apollo also announced certain procedures for determining

whether these conditions of proof aliunde are satisfied. The Apollo

procedural framework was recently overhauled in the court's opi-

nion in United States v. James, 5 Cir., 1978, 576 F.2d 1121, now

pending on rehearing en banc, but neither this aspect of Apollo nor

the James revision is material to any of the issues raised by ap-

pellants in this case.

App. 16

of-court statements made by that defendant in the

presence of a witness testifying under oath.°

[7-9] Contrary to the appellants’ assertion, the

prosecution satisfied the conditions for application of

Rule 801(d)(2)(E). Calver’s conversations with Marin as

well as his conduct at his apartment on the night of

August 1 constituted sufficient independent evidence of

his participation in the conspiracy for the out-of-court

statements of the other co-conspirators to be admitted

against him. Similarly, Perry’s conversations with

Marin and in the presence of Ehrlich, as well as his ac-

tivities both at his apartment and at Calver’s, permitted

the admission of his fellow conspirator’s statements

against him. Finally, the statements of Calver and Perry

could be used against Fredericks by virtue of her state-

ments and actions in the presence of, and as attested to

by, Robin Ehrlich. E

III. A Prosecutorial Lapse

|10, 11] The second ground upon which appellants

seek to have their convictions overturned involves an

improper remark by the prosecutor during his closing

argument. The impulse for the prosecutor’s indiscretion

was provided by the attorney for Craig Calver, who, dur-

6Cf. United States v. Crockett, 5 Cir., 1976, 534 F.2d 589, 599; 4

Weinstein’s Evidence { 801(d)(2)(E)[01], at 801-148 n. 28 (J.

Weinstein & M. Berger, 1976). Extrajudicial statements made by a

defendant will usually be admissible against him to show his know-

ing participation in a conspiracy under one or more Federal Rules

— e. g., F.R.Evid. 801(d(2)(A) (personal admission); F.R.Evid.

803(3) (statement of then existing state of mind); F.R.Evid. 803(6)

(records of regularly conducted activity); F.R.Evid. 804(b)(3)

(statement against interest).

App. 17

ing his summation to the jury, legitimately attempted to

undermine the Government's case by asking,

rhetorically, why the Government had not called several

possible material witnesses, among them Carlos Lagos-

Martinez, the man whom Agent Marin testified had in-

troduced him to Craig Calver.’ The prosecuting attorney

took the bait and, when his turn came, responded, **Mr.

Lagos-Martinez is in jail’’ — a fact that had never been

introduced into evidence. All three defense counsel im-

mediately objected and moved for a mistrial. The Judge

denied the motion, but carefully instructed the jury to

disregard the prosecutor’s remark.

Appellants contend that this reference to a fact not

in evidence was so improper and highly prejudicial that

they were deprived of a fair trial, notwithstanding the

curative instructions given by the Trial Judge. We

disagree.

We acknowledge that the comment in question was

improper, and we recognize that improper statements

‘The relevant portions of the argument by Calver’s attorney are

as follows:

Where is this Mr. Carlos Lagos-Martinez? Where is he?

Where is this informant that the Government said was

there? Why wasn't he put on the stand to corroborate the

agent's testimony”? ,

I am not saying that the agent is lying, obviously not.

That is not the issue. The issue is that it is uncorroborated.

* * * * * *

Why wasn't Carlos Lagos-Martinez brought in? He was

not indicted in this case.

App. 18

by prosecutors in summation is a recurring problem in

this Court. But several factors militate against finding

reversible error in this cause. The infelicitous remark

was not uttered out of the blue. Rather, it was made in

response to the closing argument of Calver’s attorney.

This fact alone does not, of course, exonerate the

prosecutor, but it does tend to absolve him of any pre-

judicial intent that might otherwise warrant our

reprobation in the form of a reversal under our super-

visory powers regardless of whether any prejudice in fact

occurred.

Furthermore, not only does the record indicate that

the remark was devoid of prejudicial intent, but we also

are unable to conclude that it had any prejudicial effect.

Prejudice would have occurred only if the jurors made

the broad inferential leap from the mere statement that

a relatively minor figure in the events recounted at trial

was in jail to the conclusion that he was in jail because

of his participation in those same events and that

therefore the defendants must also be guilty. We

seriously doubt whether the jurors would have drawn

such an inference even in the absence of any curative in-

structions. And since ample instructions to disregard

were in fact given, we are satisfied beyond any doubt

that the defendants were not unfairly prejudiced by the

remark. See generally United States v. Morris, 5 Cir.,

1978, 568 F.2d 396, 401-02.

IV. Behind The Scenes: A

Bungled Investigation

The remaining two errors that the appellants join in

asserting relate specifically to witness Robin Ehrlich

App. 19

and the testimony she gave. Consideration of these two

purported errors requires us to examine in some detail

aspects of this case that were not included in our ac-

count of the evidence before the jury.*

On August 1, 1977, shortly after Calver and Perry

had been interrogated by numerous agents inside

Calver’s apartment, Valerie Fredericks and Robin

Ehrlich appeared at the door of Calver’s apartment and

were invited inside by one of the agents. Because the

behavior of the women indicated that they were familiar

with Calver and Perry, the agents began to question

them as well. Robin Ehrlich was led into a separate

room and, according to her uncontroverted testimony,

subjected to threatening and heavy-handed interroga-

tion concerning the whereabouts of the quaaludes and

whether she used drugs. As several Government agents

later testified, she was extremely upset that her

boyfriend Leon Perry had been arrested and,

presumably, that she too was being detained. One of the

agents advised her that the best thing she could do un-

der the circumstances was to cooperate with the Govern-

ment. Ehrlich then admitted that the quaaludes were in

the apartment that she shared with Perry and that they

had been brought there in a suitcase by Valerie

Fredericks. Subsequent testimony given by the various

Government agents was inconclusive concerning

whether Ehrlich had been given any Miranda warnings

prior to this interrogation, even though she was, ac-

*This second and concluding chapter in our tale of the

quaalude quagmire has been drawn from the transcript of a sup-

pression hearing before a United States Magistrate and the

transcript of several hearings held outside the presence of the jury

during the trial itself.

App. 20

cording to one officer’s testimony, under arrest and it

was manifestly clear to all, including Ehrlich herself,

that she was not free to leave.

The agents asked Ehrlich to lead them to Perry's

apartment, telling her that if she refused to do so she

would go to jail. She complied with this veiled threat.

The door to Perry’s apartment was locked, however, and

Ehrlich did not have her key. Pressed by the agents,

Ehrlich told them that Perry would have a key to the

apartment. One of the agents warned her: ‘You had bet-

ter not be lying to us, because if we have to get a search

warrant, and we have to go through the trouble of that,

it is going to be hard on you. You are going to go to jail

for sure.”’ Two of the agents returned to Calver’s apart-

ment, and, without his consent and while he was

handcuffed, removed his keyes from his pantspocket.

The agents returned with the key to Perry’s apartment

(where Ehrlich had remained in the custody of another

agent), gave the key to Ehrlich, and ordered her to open

the door. She obeyed and they entered the apartment.

Inside, the agents found a man whom they arrested and

subsequently released as well as the suitcase which

Ehrlich had stated had been brough to the apartment by

Fredericks. The agents opened the suitcase, revealing

the quaaludes wrapped in aluminum foil.

The agents handcuffed Ehrlich and took her to a

DEA office for processing. At the DEA office, an agent

read the Miranda warnings to Ehrlich, she waived her

rights, and she gave a complete account of her

knowledge of the quaalude activities of Calver, Perry,

and Fredericks. Ehrlich later testified that this was the

first time she was advised of her Miranda rights, and the

Government never was able to establish otherwise. In-

App. 21

dicative of the confused and haphazard treatment ac-

corded Ehrlich is the fact that no two Government

agents ever agreed about the precise time at which she

was arrested.

Calver, Perry, and Fredericks subsequently were in-

dicated both for conspiracy to distribute quaaludes and

for possession of quaaludes with intent to distribute,

while Robin Ehrlich assumed the status of an unin-

dicted coconspirator. Prior to trial, the three defendants

moved to suppress the quaaludes. Ehrlich was sub-

poenaed to testify at the suppression hearing and was

told that if she failed to testify she would be arrested.

Before testifying, she asked an Assistant United States

Attorney if she could bring an attorney with her and was

told that while she could, he did not think she would

need an attorney. Without ever having consulted a

lawyer of her own, she gave testimony at the suppression

hearing incriminating all three defendants.

After hearing her testimony and that of two police

officers, the Magistrate ruled that the warrantless entry

of Perry’s apartment had been effected without the con-

sent of either Perry or Ehrlich and was therefore im-

proper. He also ruled that the warrantless search of

Fredericks’ suitcase was improper. In accordance with

these rulings, he recommended suppression of the

quaaludes as evidence dgainst Perry and Fredericks.

The District Judge adopted the findings of the

Magistrate and granted the motion to suppress the

quaaludes as to Perry and Fredericks. As a result, the

Government, during the trial, agreed to drop the sub-

stantive count against all three defendants, including

Calver.

App. 22

Each of the defendants then proceeded to challenge

the testimony of Robin Ehrlich, who figured to be a

crucial, if reluctant, witness for the prosecution. This

motion to suppress her testimony was based on the

ground that the Government had initially obtained her

testimony without giving her Miranda warnings and as a

result of an illegal search and arrest. The District Judge

denied the motion, ruling that ‘“‘[a]ny alleged illegal

arrest or interrogation of Robin Ehrlich * * * cannot in-

ure to the benefit of the defendants.”

Before Ehrlich actually testified at trial, however,

she attempted, through counsel specially appointed to

represent her at trial, to assert a Fifth Amendment

privilege against testifying. She argued that she had not

testified voluntarily at the suppression hearing, nor was

her appearance at trial a voluntary one. She admitted

that she had not been granted any immunity, but she

claimed that she had been promised that she would not

have to testify against her boyfriend, Leon Perry. The

District Judge ruled that her testimony at the suppres-

sion hearing had been given voluntarily and that in giv-

ing that testimony she had waived her Fifth Amend-

ment privilege. He therefore ordered her to testify or be

held in contempt.

Shortly after the Government began its direct ex-

amination of Ehrlich, she realized her testimony was be-

ing admitted against Leon Perry. She protested, citing

her agreement with the Government that no evidence

would be elicted from her concerning Leon Perry. The

Government acknowledged the agreement, and all three

defendants moved for a mistrial. The District Judge

denied the motion, observing that any agreement be-

tween the Government and Ehrlich was not binding

App. 23

upon the Court and that as far as he was concerned the

defendants would have the usual latitude to cross-

examine within the ambit of the direct and would be

free to develop anything in the nature of impeachment.

When direct examination of Ehrlich resumed, she gave

the testimony reported above.

V. Right Of Confrontation

[12] Of the two objections appellants raise to

Robin Ehrlich’s testimony, one borders on the frivolous.

Despite the fact that the Trial Judge expressly refused

to give any deference to the agreement between the

Government and Robin Ehrlich concerning the scope of

her testimony, appellants argue that they were denied

their Sixth Amendment right of confrontation by virtue

of that agreement.’ The record reveals, however, that

the appellants had a full, fair, and meaningful oppor-

tunity to cross-examine Ehrlich both as to matters she

testified to on direct and as to her agreement with the

Government and its underlying motivation — her desire

to avoid prosecution herself and to minimize the conse-

quences of prosecution for her boyfriend, Leon Perry. Cf.

United States v. Onori, 5 Cir., 1976, 535 F.2d 938, 945.

Thus, far from bearing infringed, appellants’ right of

confrontation was fully honored and protected. '"

‘

"Oddly enough, Leon Perry joins in this argument.

Indeed, Robin Ehrlich answered whatever questions concern-

ing Leon Perry or her cooperation with the Government the defense

attorneys asked her.

App. 24

VI. Suppression, Tainted Fruit,

And Standing

{13-17| Appellants’ other objection to the

testimony of Robin Ehrlich is somewhat more substan-

tial, though ultimately no more meritorious. Appellants

argue that Ehrlich’s testimony should have been ex-

cluded in its entirety on four grounds: (1) it was ob-

tained antecedent to, and as a consequence of, an illegal

search; (2) it was obtained pursuant to an illegal arrest;

(3) it was elicited from Ehrlich in derogation of the

Miranda precepts;'! and (4) it was compelled at trial in

violation of Ehrlich’s Fifth Amendment privilege

against self-incrimination.

The only one of these asserted violations that ap-

pellants may properly urge in their own defense as

grounds for the suppression of Ehrlich’s testimony is the

first — that her testimony was the result of an illegal

search in violation of Perry’s and Fredericks’ Fourth

Amendment rights. Despite the Government’s conten-

tions, there is no question but that the warrantless

search of Perry’s apartment and Fredericks’ suitcase

was unconstitutional,'? and that the subsequently

seized quaaludes could not be used as evidence against

''\See Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694.

'’The Government fell far short in meeting its burden of prov-

ing that either Perry or Ehrlich had freely and voluntarily given

their consent to the search of Perry’s apartment, see Schneckloth v.

Bustamonte, 1973, 412 U.S. 218, 233, 93 S.Ct. 2041, 36 L.Ed.2d 854;

Bumper v. North Carolina, 1968, 391 U.S. 543, 548, 88 S.Ct. 1788,

20 L.Ed.2d 797, and it has never even claimed that the DEA agents

opened Fredericks’ suitcase with her consent.

App. 25

Perry or Fredericks. Nor is there any question but that

the exclusionary rule applies not only to evidence ac-

tually seized in an illegal search, but also to evidence

located as a result of information obtained in an illegal

search, 1.e., to evidence that is, according to the

somewhat tiresome legal argot, the “fruit of the

poisonous tree.” E.g., Wong Sun v. United States, 1963,

371 U.S. 471, 484-88, 83 S.Ct. 407, 9 L.Ed.2d 441;

Silverthorne Lumber Co. v. United States, 1920, 251,

U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319." Further, it is cleat

that verbal evidence as well as physical evidence may be

the tainted fruit of an unlawful search and therefore

suppressed. E.g., United States v. Ceccolini, 1978, 435

U.S. 268, 275, 98 S.Ct. 1054, 55 L.Ed.2d 268; Wong Sun,

supra, 371 U.S. at 485-86, 83 S.Ct. 407.

|18| But to grant appellants these points does not

compel the conclusion that Robin Ehrlich’s testimony

should have been suppressed. The fatal flaw in the ap-

pellants’ argument is that the “fruit of the poisonous

tree doctrine” is simply inapplicable in this context.

Assuming that Ehrlich’s testimony was in fact the

“fruit’’ of governmental conduct, it was the fruit of

actions other than the illegal entry into Perry's apart-

''There are, however, two important exceptions to the “fruit of

the poisonous tree’ branch of the exclusionary rule. Even if the

Government acquires evidence indirectly through an illegal search,

illegal arrest, or illegal interrogation of a defendant, that evidence

need not be excluded (1) if the substance of the tainted evidence is

subsequently discovered or acquired through an independent

source, or (2) if the causal connection between the indirectly ac-

quired evidence and the Government’s unlawful conduct has

“become so attenuated as to dissipate the taint.’’ See generally

Wong Sun, supra, 371 U.S. at 487-88, 83 S.Ct. 407; Parker v. Es-

telle, 1974, 5 Cir., 498 F.2d 625, 629, cert. denied, 421 U.S. 963, 95

S.Ct. 1951, 44 L.Ed.2d 450.

App. 26

ment. The DEA officers, for example, had ascertained

Ehrlich’s identity, her relationship with Leon Perry, and

the crucial element of her testimony — that a suitcase

containing quaaludes had been brought to Perry's apart-

ment by Valerie Fredericks — before their un-

constitutional search of Perry’s apartment. To the ex-

tent that the illegal search was the source of evidence

against the appellants (namely, the suitcase and the

quaaludes), the exclusionary rule was properly and fully

applied. For the rule to be extended to encompass and

exclude Ehrlich’s testimony as well, appellants must

show that it was by some other violation of their con-

stitutional rights that the Government secured and in-

troduced that testimony.

The evidence in the record is inconclusive, but it

does suggest that there were indeed other constitutional

violations in this case connected with the testimony

Robin Ehrlich ultimately gave at trial. While there most

likely was probable cause to support the arrest of

Ehrlich, the evidence indicates that she was subjected

to at least one custodial interrogation without having

been advised of her Miranda rights. Moreover, Ehrlich's

assertion of her Fifth Amendment privilege against self-

incrimination may very well have been erroneously

overruled by the Trial Judge. But whether or not

Ehrlich’s rights were infringed by her arrest, her in-

terrogation, or the compulsion of her testimony is im-

material to this appeal. For the simple fact of the matter

is that appellant’s rights were not violated by any of

those governmental acts and therefore suppression of

Ehrlich’s testimony is not required to protect or vin-

dicate their rights.

App. 27

119] The Supreme Court expounded upon this

principle that defendants do not have ‘“‘standing” to

assert on their own defense the denial of certain con-

stitutional rights to others in Alderman v. United

States, 1969, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176,

a case which involved a claim that all incriminating

evidence obtained through an illegal wiretap should be

suppressed against all defendants, even those who were

not parties to the bugged conversations:

The established principle is that suppres-

sion of the product of a Fourth Amendment

violation can be successfully urged only by

those whose rights were violated by the search

itself, not by those who are aggrieved solely by

the introduction uf damaging evidence.

Coconspirators and codefendants have been ac-

corded no special standing.

We adhere * * ~* tothe general rule that

Fourth Amendment rights are personal rights

which, like some other constitutional rights

may not be vicariously asserted. * * * None

of the special circumstances which prompted

NAACP v. Alabama, 357 U.S. 449, 78 S.Ct.

1163, 2 L.Ed.2d 1488 (1958), and Barrows v.

Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed.

1586 (1953), are present here. There is no

necessity to exclude evidence against one

defendant in order to protect the rights of

another. No rights of the victim of an illegal

search are at stake when the evidence is offered

against some other party. The victim can and

App. 28

NT A ee

very probably will object for himself when and

if it becomes important for him to do so.

394 U.S. at 171-74, 89 S.Ct. at 965-67.

[20] Although Alderman and most other ‘‘standing”’

cases have involved Fourth Amendment violations, the

principle has also been applied where, as in this case,

one codefendant or coconspirator seeks to suppress

evidence incriminating him that was obtained from a

coparticipant in crime without proper compliance with

the procedural requirements of Miranda or otherwise in

violation of that party’s Fifth or Sixth Amendment

rights. E. g., Gissendanner v. Wainwright, 5 Cir., 1973,

482 F.2d 1293, 1296 - 97; United States v. Pruitt, 9 Cir.,

1972, 464 F.2d 494, 495; United States v. Schennault, 7

Cir., 1970, 429 F.2d 852, 855; United States v. Bruton, 8

Cir., 1969, 416 F.2d 310, 312-13, cert. denied, 1970, 397

U.S. 1014, 90 S.Ct. 1248, 25 L.Ed.2d 428. Similarly, at

trial, a defendant can neither assert the Fifth Amend-

ment right against self-incrimination on behalf of a

witness, nor, if the witness himself asserts his privilege,

take advantage of an error of the court in overruling it.

See, e. g., United States v. Colyer, 5 Cir., 1978, 571 F.2d

941, 945; Hall v. United States, 5 Cir., 1969, 413 F.2d 45,

48; United States v. Skolek, 10 Cir., 1973, 474 F.2d 582,

584-85; Bowman v. United States, 9 Cir., 1965, 350 F.2d

913, 915-16, cert. denied, 1966, 383 U.S. 950, 86 S.Ct.

1209, 16 L.Ed.2d 212.

(21] By holding that appellants are not entitled to

suppression of Ehrlich’s testimony because of probable

governmental violations of her rights, we do not sanction

gross police misconduct against third parties in the

overly zealous pursuit of criminal convictions. To use an

App. 29

extreme example, the prosecution certainly would not

be allowed to admit statements wrung from one of four

criminal suspects through torture and unremitting

prolonged interrogation in the trial of the other three

suspects.'! In this case, however, the actions of the DEA

officers, even if viewed in the worst possible light, were a

far cry from the sort of third-degree physical or psy-

chological coercion that might prompt us to disregard

altogether the societal interest in law enforcement by

excluding the highly probative testimony of a nondefen-

dant.'®. Nor is there the slightest indication in the

record that the reliability of Ehrlich’s testimony,

however involuntarily given, was at all suspect. Indeed,

her story was consistent and persuasive throughout —

“Cf. Bradford v. Johnson, E.D.Mich., 1972, 354 F.Supp. 1331,

aff'd, 6 Cir., 1973, 476 F.2d 66; see also LaFrance v. Bohlinger, |

Cir., 1974, 499 F.2d 29, cert denied, 1974, 419 U.S. 1080, 95 S.Ct.

669, 42 L.Ed.2d 674; United States v. Payner, N.D.Ohio, 1977, 434

F.Supp. 113. The objection to the introduction of statements ex-

tracted from a nondefendant by extreme coercion and inquisitional

tactics is twofold. First, there is the distinct possibility that the

jurors will be captivated by the high degree of relevance such state-

ments often possess and will fail to take into account the increased

likelihood that the statements are unreliable. Second, the use of

statements derived through shocking and intentional police mis-

conduct offends the fundamental fairness essential to due process of

law.

‘.

‘Cf. United States v. Janis, 1976, 428 U.S. 433, 448-49, 96

S.Ct. 3021, 49 L.Ed.2d 1046; Michigan v. Tucker, 1974, 417 U.S.

433, 450-51, 94 S.Ct. 2357, 41 L.Ed.2d 182; Nardone v. United

States, 1939, 308 U.S. 338, 340, 60 S. Ct. 266, 267, 84 L.Ed. 307

(“any claim for the exclusion of evidence logically relevant in

criminal prosecutions is heavily handicapped. It must be justified

by an over-riding public policy expressed in the Constitution or the

law of the land."’)

App. 30

——

ees

from the time of the arrests, through the suppression

hearing, up to and including trial.

Appellants’ right to a fair trial was not prejudiced

by the introduction of this reliable and relevant

testimony. Nor were any other of their rights violated by

the manner in which the Government obtained that

testimony. They have nothing about which to:complain

except their own indiscretion in dealing in quaaludes.

AFFIRMED.

App. 31

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 77-5802

D.C. Docket No. 77-405-CR-CA

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VALERIE FREDERICKS, CRAIG CALVER

and LEON PERRY,

Defendants-Appellants.

Appeals from the United States District Court for the

Southern District of Florida

Before BROWN, Chief Judge, GODBOLD and Fay,

Circuit Judges

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Southern District of Florida, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here or-

dered and adjudged by this Court that the judgments of

the said District Court in this cause be, and the same are

hereby, affirmed.

December 15, 1978

App. 32

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 77-5802

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VALERIE FREDERICKS, CRAIG CALVER

AND LEON PERRY,

Defendants-Appellants

Appeals from the United States District Court for the

Southern District of Florida

ON PETITION FOR REHEARING

(January 11, 1979)

Before BROWN, Chief Judge, GODBOLD and FAY,

Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing

filed by Valerie Fredericks in the above entitled and

numbered cause be and the same is hereby DENIED.

ENTERED FOR THE COURT:

BROWN, Chief Judge

App. 33

APPENDIX B

Conflicting opinion.

App. 34

al ten A a sc

ens <b AA Be ah Re i En a a

UNITED STATES,

Petitioner

v.

Ralph CECCOLINI.

No. 76-1151.

Argued Dec. 5, 1978.

Decided March 21, 1978.

Richard A. Allen, for petitioner. ©

Leon J. Greenspan, White Plains, N.Y., for

respondent.

Mr. Justice REHNQUIST delivered the opinion of

the Court.

In December 1974, Ronald Biro, a uniformed police

officer on assignment to patrol school crossings, entered

respondent's place of business, the Sleepy Hollow

Flower shop, in North Tarrytown, N.Y. He went behind

the customer counter and, in the words of Ichabod

Crane, one of Tarrytown’s more illustrious inhabitants

of days gone past, “‘tarried,” spending his short break

engaged in conversation with his friend Lois Hennessey,

an employee of the shop. During the course of the con-

versation he noticed an envelope with money sticking

out of it lying on the drawer of the cash register behind

the counter. Biro picked up the envelope and, upon ex-

App. 35

amining its contents, discovered that it contained not

only money but policy slips. He placed the envelope

back on the register and, without telling Hennessey of

what he had seen, asked her to whom the envelope

belonged. She replied that the envelope belong to

respondent Ceccolini, and that he had instructed her to

give it to someone.

The next day, Officer Biro mentioned his discovery

to North Tarrytown detectives who in turn told Lance

Emory, an FBI agent. This very ordinary incident in the

lives of Biro and Hennessey requires us, four years later,

to decide whether Hennessey’s testimony against

respondent Ceccolini should have been suppressed in his

trial for perjury. Respondent was charged with that of-

fense because he denied that he knew anything of, or

was in any way involved with, gambling operations.

Respondent was found guilty after a bench trial in the

United States District Court for the Southern District of

New York, but immediately after the finding of guilt the

District Court granted respondent’s motion to “sup-

press” the testimony of Hennessey because the court

concluded that the testimony was a “fruit of the

poisoned tree’; assuming respondent’s motion for a

directed verdict included a motion to set aside the ver-

dict of guilty, the District Court granted the motion

because it concluded that without Hennessey's

testimony there was insufficient evidence of respon-

dent's guilt. The Government appealed these rulings to

the Court of Appeals for the Second Circuit.

That court rightly concluded that the Government

was entitled to appeal both the order granting the mo-

tion to suppress and the order setting aside the verdict of

guilty, since further proceedings if the Government were

App. 36

AO et AA AR ae me ee a eS

successful on the appeal would not be barred by the

Double Jeopardy Clause.! 542 F.2d 136, 139-140 (2d. Cir.

1976). The District Court had sensibly first made its

finding on the factual question of guilt or innocence, and

then ruled on the motion to suppress; a reversal of these

rulings would require no further proceedings in the Dis-

trict Court, but merely a reinstatement of the finding of

guilt. United States v. Morrison, 429 U.S. 1, 97 S.Ct. 24,

50 L.Ed.2d 1 (1976); United States v. Wilson, 420 U.S.

332, 352-353, 95 S.Ct. 1013, 1026, 43 L.Ed.2d 232 (1975).

The Government, however, was not successful on

the merits of its appeal; the Court of Appeals by a

divided vote affirmed the District Court’s suppression

ruling. 542 F.2d, at 140-142. We granted certiorari to

consider the correctness of this ruling of the Court of Ap-

peals.

I

During the latter part of 1973, the Federal Bureau

of Investigation was exploring suspected gambling

operations in North Tarrytown. Among the establish-

ments under surveillance was respondent’s place of

business, which was a frequent and regular stop of one

Francis Millow, himself a suspect in the investigation.

‘Appeal of the suppression motion is, of course, authorized by

the clear language of 18 U.S.C. § 3731 . . . That section permits

‘‘|a|n appeal by the United States. . . from a decision or order of a

district courts [sic] suppressing or excluding evidence . . . not

made after the defendant has been put in jeopardy and before the

verdict or finding on the indictment or information . . .” If Con-

gress had intended only pretrial suppression motions to be ap-

pealable, it would not have added the phrase ‘“‘and before the ver-

dict of finding on the indictment or information.”

App. 37

While the investigation continued on a reduced scale af-

ter December 1973,” surveillance of the flower shop was

curtailed at that time. It was thus a full year after this

discontinuance of FBI surveillance that Biro spent his

patrol break behind the counter with Hennessey. When

Biro’s discovery of the policy slips was reported the

following day to Emory, Emory was not fully informed

of the manner in which Biro had obtained the informa-

tion. Four months later, Emory interviewed Hennessey

at her home for about half an hour in the presence of her

mother and two sisters. He identified himself, indicated

that he had learned through the local police department

that she worked for respondent, and told her that the

Government would appreciate any information

regarding respondent’s activities that she had acquired

in the shop. Emory did not specifically refer to the inci-

dent involving Officer Biro. Hennessey told Emory that

she was studying police science in college and would be

willing to help. She then related the events which had

occurred during her visti with Officer Biro.

In May of 1975, respondent was summoned before a

federal grand jury and testified that he had never taken

policy bets for Francis Millow at the flower shop. The

next week Hennessey testified to the contrary, and

*The extent of the continued investigation is not made clear on

the record but we do know at least that on December 3, 1974, a

telephone conversation between Millow and Ceccolini, which im-

plicated the latter in a policy betting operation, was intercepted by

local police participating in a combined federal-state gambling in-

vestigation.

App. 38

shortly thereafter respondent was indicted for perjury.*

Respondent waived a jury, and with the consent of all

parties the District Court considered simultaneously

with the trial on the merits respondent’s motion to sup-

press both the policy slips and the testimony of Hen-

nessey. At the conclusion of the evidence, the District

Court excluded from its consideration “‘the envelope and

the contents of the envelope,’’ but nonetheless found

respondent guilty of the offense charge. The court then,

as previously described, granted respondent’s motion to

suppress the testimony of Hennessey, because she ‘“‘first

came directly to the attention of the government as the

result of an illegal search”’ and the Government has not

‘‘sustained its burden of showing that Lois Hennessy’s

[sic] testimony definitely would not have been obtained

without the illegal search.” Pet. for Cert., pp. 28a-29a.

The Court of Appeals affirmed this ruling on the

Government’s appeal, reasoning that ‘“‘the road to Miss

Hennessy’s [sic] testimony from Officer Biro’s con-

cededly unconstitutional search is both straight and un-

interrupted.” 542 F.2d, at 142. The Court of Appeals

also concluded that there was support in the record for

the District Court’s finding that the ongoing investiga-

tion would not have inevitably let to the evidence in

question even without Biro’s discovery of the two policy

slips. Id., at 141. Because of our traditional deference to

‘Respondent was also indicated on a second count which

charged that he had knowingly made a false statement when he

testified that he did not known Hank Bucci was involved in gam-

bling operations. The judge found respondent not guilty on this

count, however, because ‘‘although there is evidence to support this

charge the government has not met its burden of proof beyond a

reasonable doubt.” Pet. for Cert., p.28a.

App. 39

the ‘“‘two court rule,” Graver Mfg. Co. v. Linde Co, 336

U.S. 271, 275, 69 S.Ct. 535, 537, 93 L.Ed. 672 (1949), and

the fact that the Government has not sought review of

this latter ruling, we leave undisturbed this part of the

Court of Appeals decision. Because we decide that the

Court of Appeals was wrong in concluding that there

was insufficient attenuation between Officer Biro’s

search and Hennessey’s testimony at the trial, we also

do not reach the Government’s contention that the ex-

clusionary rule should not be applied when the evidence

derived from the search is being used to prove a subse-

quent crime such as perjury

I

The ‘“‘road’’ to which the Court of Appeals

analogized the train of events from Biro’s discovery of

the policy slips to Hennessey’s testimony at respon-

dent’s trial for perjury is one of literally thousands of

such roads traveled periodically between an original in-

vestigative discovery and the ultimate trial of the ac-

cused. The constitutional question under the Fourth

Amendment was phrased in Wong Sun v. United States,

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

whether “‘the connection between the lawless conduct of

the police and the discovery of the challenged evidence

has become ‘so attenuated as to dissipate the taint.’

Id., at 487, 491, 83 S.Ct. at 417. The question was in turn

derived from the Court’s earlier decision in Nardone uv.

United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84

L.Ed. 307 (1939), where Mr. Justice Frankfurter stated

for the Court:

‘Here, as in the Silverthorne case, the facts im-

properly obtained do not ‘become sacred and

App. 40

aS Ee ey

en

inaccessible. If knowledge of them is gained

from an independent source they may be

proved like any others, but the knowledge

gained by the Government’s own wrong cannot

be used by it’ simply because it is used

derivatively. 251 U.S. 385, 392, 40 S.Ct. 182, 64

L.Ed. 319.

‘In practice this generalized statement may

conceal concrete complexities. Sophisticated

argument may prove a causal connection be-

tween information obtained through illicit

wire-tapping and the Government's proof. As a

matter of good sense, however, such connection

may have become so attenuated as to dissipate

the taint.”

This, of course, makes it perfectly clear, if indeed

ever there was any doubt about the matter, that the

question of causal connection in this setting, as in so

many other questions with which the law concerns itself,

is not to be determined solely through the sort of

analysis which would be applicable in the physical

sciences. The issue cannot be decided on the basis of

causation in the logical sense alone, but necessarily in-

cludes other elements as well. And our cases subsequent

to Nardone, supra, have laid out the fundamental tenets

of the exclusionary rule, from which the elements that

are relevant to the causal inquiry can be divined.

|1, 2] An examination of these cases leads us to re-

ject the Government’s suggestion that we adopt what

would in practice amount to a per se rule that the

testimony of a live witness should not be excluded at

trial no matter how close and proximate the connection

App. 41

between it and a violation of the Fourth Amendment.

We also reaffirm the holding of Wong Sun, supra, 371

U.S. at 485, 83 S.Ct. at 416, that “‘verbal evidence which

derives so immediately from unlawful entry and an un-

authorized arrest as the officer’s action in the present

case is no less the ‘fruit’ of official illegality than the

more commonplace tangible fruits of the unwarranted

intrusion.”’ We are of the vicw, however, that cases

decided since Wong Sun significantly qualify its further

observation that ‘the policies underlying the ex-

clusionary rule [do not] invite any logical distinction

between physical and verbal evidence.”’ Jd., at 486, 83

S.Ct. at 416. Rather, at least in a case such as this,

where not only was the alleged ‘‘fruit of the poisonous

tree’’ the testimony of a live witness, but unlike Wong

Sun the witness was not a putative defendant, an ex-

amination of our cases persuades us that the Court of

Appeals was simply wrong in concluding that if the road

were uninterrupted, its length was immaterial. Its

length, we hold, is material, as are certain other factors

enumerated below to which the court gave insufficient

weight.

In Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct 3037,

3047, 49 L.Ed.2d 1067 (1976), we observed that ‘“‘despite

the broad deterrent purpose of the exclusionary rule, it

has never been interpreted to proscribe the introduction

of illegally seized evidence in all proceedings against all

persons.” 428 U.S. 465, 486, 96 S.Ct. 3037, 49 L.Ed.2d

1067. Recognizing not only the benefits but the costs,

which are often substantial, of the exciusionary rule, we

have said that ‘‘application of the rule has been restric-

ted to those areas where its remedial objectives are

thought most efficaciously served,” United States v.

Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38

App. 42

L.Ed.2d 561 (1974). In that case, we refused to require

that illegally seized evidence be excluded from presenta-

tion to a grand jury. We have likewise declined to

prohibit the use of such evidence for the purpose of im-

peaching a defendant who testifies in his own behalf.

Walder v. United States, 347 U.S. 62, 74 S.Ct 354, 98

L.Ed. 503 (1954).

We have limited the standing requirement in the

exclusionary rule context because the “additional

benefits of extending the . . . rule” to persons other

than the ones subject to the illegal search are out-

weighed by the, “further encroachment upon the public

interest in prosecuting those accused of crime and hav-

ing them acquitted or convicted on the basis of all the

evidence which exposes the truth.”’ Alderman v. United

States, 394 U.S. 165, 174 - 175, 89 S.Ct. 961, 967, 22

L.Ed.2d 176 (1969). Even in situations where the ex-

clusionary rule is plainly applicable, we have declined to

adopt a “per se or ‘but for’ rule’ that would make inad-

missible any evidence, whether tangible or live-witness

testimony, which somehow came to light through a

chain of causation that began with an illegal arrest.

Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261,

45 L.Ed.2d 416 (1975).

Evaluating the standards for application of the ex-

clusionary rule to live-witness testimony in light of this

balance, we are first impelled to conclude that the

degree of free will exercised by the witness is not irrele-

vant in determining the extent to which the basic pur-

pose of the exclusionary rule will be advanced by its ap-

plication. This is certainly true when the challenged

statements are made by a putative defendant after

arrest, Wong Sun, supra, 371 U.S. at 491, 83 S.Ct. at

App. 43

419; Brown v. Illinois, supra, and a fortiori is true of

testimony given by nondefendants.

The greater the willingness of the witness to freely

testify, the greater the likelihood that he or she will be

discovered by legal means and, concomitantly, the

smaller the incentive to conduct an illegal search to dis-

cover the witness.‘ Witnesses are not like guns or docu-

ments which remain hidden from view until one turns

over a sofa or opens a filing cabinet. Witnesses can, and

often do, come forward and offer evidence entirely of

their own volition. And evaluated properly, the degree of

free will necessary to dissipate the taint will very likely

be found more often in the case of live-witness testimony

than other kinds of evidence. The time, place and man-

ner of the initial questioning of the witness may be such

that any statements are truly the product of detached

reflection and a desire to be cooperative on the part of

the witness. And the illegality which led to the discovery

of the witness very often will not play any meaningful

part in the witness’s willingness to testify.

“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 the 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 voli-

tion interact to determine what testimony he

‘Of course, the analysis might be different where the search

was conducted by the police for the specific purpose of discovering

potential witnesses.

App. 44

eee Le re ee ee

will give. The uniqueness of this human process

distinguishes the evidentiary character of a

witness from the relative immutability of in-

animate evidence.’’ Smith v. United States,

117 U.S.App.D.C. 1, 4, 324 F.2d 879, 881

(D.C.Cir. 1963), cert. denied, 377 U.S. 954, 84

S.Ct. 1632, 12 L.Ed.2d 498 (1964); Per

Burger, J.

Another factory which is not only relevant in deter-

mining the usefulness of the exclusionary rule in a par-

ticular context, but also seems to us to differentiate the

testimony of all live witnesses — even putative defen-

dants — from the exclusion of the typical documentary

evidence, is that such exclusion would perpetually dis-

able a witness from testifying about relevant and

material facts, regardless of how unrelated such

testimony might be to the purpose of the originally il-

legal search or the evidence discovered thereby. Rules

which disqualify knowledgeable witnesses from testify-

ing at trial are, in the words of Professor McCormick,

‘serious obstructions to the ascertainment of truth’’; ac-

cordingly, ‘‘[flor a century the course of legal evolution

has been in the direction of sweeping away these

obstructions.”” McCormick on Evidence §71, p. 150

(1954). Alluding to the enormous cost engendered by

such a permanent disability in an analogous context, we

have specifically refused to hold that “‘making a confes-

sion under circumstances which preclude its use per-

petually disables the confessor from making a usable

one after those conditions have been removed.” United

States v. Bayer, 331 U.S. 532, 540, 67 S.Ct. 1394, 1398,

91 L.Ed 1654 (1947). For many of these same reasons,

the Court has also held admissible at trial testimony of a

witness whose identity was disclosed by the defendant’s

App. 45

statement given after inadequate Miranda warnings.

Michigan v. Tucker, 417 U.S. 483, 450-451, 94 S.Ct.

2357, 2367, 41 L.Ed.2d 182 (1974).

‘For, when balancing the interests involved,

we must weight the strong interest under any

system of justice of making available to the

trier of fact all concededly relevant and

trustworthy evidence which either party seeks

to adduce. . . Here respondent’s own state-

ment, which might have helped the prosecutor

show respondent’s guilty conscience at trial,

had already been excused from the prosecutor’s

case pursuant to this Court’s Johnson v. New

Jersey, 384 U.S. 719, 96 S.Ct. 1772, 16 L.Ed.2d

882 (1966) decision. To extend the excision

further under the circumstances of this case

and exclude relevant testimony of a third-party

witness would require far more persuasive

arguments than those advanced by

respondent.”’ [bid.

In short, since the cost of excluding live-witness

testimony often will be greater, a closer more direct link

metween the illegality and that kind of testimony is

‘aquired.

[3] This is not to say, of course, that live-witness

testimony is always or even usually more reliable or

dependable than inanimate evidence. Indeed, just the

opposite may be true. But a determination that the dis-

covery of certain evidence is sufficiently unrelated to or

independent of the constitutional violation to permit its

introduction at trial is not a determination which rests

on the comparative reliability of that evidence. At-

App. 46

ee

tenuation analysis, appropriately concerned with the

differences between live-witness testimony and _ in-

animate evidence, can consistently focus on the factors

enumerated above with respect to the former, but on dif-

ferent factors with respect to the latter.

[4, 5] In holding that considerations relating to

the exclusionary rule and the constitutional principles

which it is designed to protect must play a factor in the

attenuation analysis, we do no more than reaffirm an

observation made by this Court half a century ago:

‘‘A criminal prosection is more than a game in

which the Government may be checkmated

and the game lost merely because its officers

have not played according to rule.”” McGuire v.

United States, 273 U.S. 95, 99, 47 S.Ct. 259,

260, 71 L.Ed. 556 (1927).

The penalties visited upon the Government, and in turn

upon the public, because its officers have violated the

law must bear some relation to the purposes which the

law is to serve.

Ill

[6] Viewing this case in the light of the principles

just discussed, we hold that the Court of Appeals erred

in holding that the degree of attenuation was not suf-

ficient to dissipate the connection between the illegality

and the testimony. The evidence indicates

overwhelmingly that the testimony given by the witness

was an act of her own free will in no way coerced or even

induced by official authority as a result of Biro’s dis-

covery of the policy slips. Nor were the slips themselves

App. 47

used in questioning Hennessey. Substantial periods of

time elapsed between the time of the illegal search and

the initial contact with the witness, on the one hand,

and between the latter and the testimony at trial on the

other. While the particular knowledge to which Hen-

nessey testified at trial can be logically traced back to

Biro’s discovery of the policy slips both the identity of

Hennessey and her relationship with the respondent was

well known to those investigating the case. There is in

addition, not the slightest evidence to suggest that Biro

entered the shop or picked up the envelope with the in-

tent of finding tangible evidence bearing on an illicit

gambling operation, much less any suggestion that he

entered the shop and searched with the intent of finding

a willing and knowledgeable witness to testify against

respondent. Application of the exclusionary rule in this

situation could not have the slightest deterrent effect on

the behavior of an officer such as Biro. The cost of per-

manently silencing Hennessey is too great for an even-

handed system of law enforcement to bear in order to

secure such a speculative and very likely negligible

deterrent effect.

[7] Obviously no mathematical weight can be

assigned to any of the factors which we have discussed,

but just as obviously they all point to the conclusion

that the exclusionary rule should be invoked with much

greater reluctance where‘the claim is based on a causal

relationship between a constitutional violation and the

discovery of a live witness than when a similar claim is

advanced to support suppression of an inanimate object.

The judgment of the Court of Appeals is accordingly

Reversed.

App. 48

Mr. Justice BLACKMUN took no part in the con-

sideration or decision of this case.

Mr. Chief Justice BURGER, concurring in—he

judgment.

I agree with the Court’s ultimate conclusion that

there is a fundamental difference, for purposes of the ex-

clusionary rule, between live-witness testimony and

other types of evidence. I perceive this distinction to be

so fundamental, however, that I would not prevent a

factfinder from hearing and considering the relevant

statements of any witness, except perhaps under the

most remarkable of circumstances — although none

such have ever been postulated that would lead me to

exclude the testimony of a live witness.

To appreciate this position, it is essential to bear in

mind the purported justification for employing the ex-

clusionary rule in a Fourth Amendment context:

deterrence of official misconduct. See Stone v. Powell,

428 U.S. 465, 486, 96 S.Ct. 3037, 3047, 49 L.Ed.2d 1067

(1976); United States v. Janis, 428 U.S. 433, 458-459, n.

35, 96 S.Ct. 3021, 3034, 49 L.Ed.2d 1046 (1976). As an

abstract intellectual proposition this can be buttressed

by a plausible rationale since there is at least some com-

prehensible connection — albeit largely and dubiously

speculative — between the exclusion of evidence and the

deterrence of intentional illegality on the part of a police

officer.' But if that is the purpose of the rule, it seems to

‘Empirically speaking, though, I have the gravest doubts as to

whether the exclusion of evidence, in and of itself, has any direct

appreciable effect on a policeman’s behavior in most situations —

emergency actions in particular. See Bivens, v. Six Unknown

Federal Agents, 403 U.S. 388, 416-417, 426-427, 91 S.Ct. 1999, 2014-

2015, 2019-2020, 29 L.Ed.2d 619 (1971) (Burger, C. J., dissenting).

App. 49

me that the appropriate inquiry in every case in which a

defendant seeks the exclusion of otherwise admissible

and reliable evidence is whether official conduct in

reality will be measurably altered by taking such a

course.

On the facts of this case the Court is, of course,

correct in holding that the “[a]pplication of the ex-

clusionary rule in this situation could not have the

slightest deterrent effect on the behavior of an officer

such as Biro.” Ante, at 1062. Reaching this result,

however, requires no judicial excursion into an area

about which “philosophers have been able to argue

endlessly,’’? namely, the degree of “free will’ exercised

by a person when engaging in an act such as speaking.

In the history of ideas many thinkers have main-

tained with persuasion that there is no such thing as

“free will,”’ in the sense that the term implies the in-

dependent ability of an actor to regulate his or her

conduct. Others have steadfastly maintained the op-

posite, arguing that the human personality is one in-

nately free to choose among alternatives. Still a third

group would deny that the very term “free will’ has

coherent meaing. These are only a few of the many

perspectives on a subject which lies at the core of our in-

tellectual and religious heritage. While this ancient

debate will undoubtedly continue, ‘‘society and the law

have no choice in the matter. We must proceed, on the

scientifically unprovable assumption that human beings

make choices in the regulation of their conduct and that

they are influenced by society’s standards as well as by

personal standards.” Blocker v. United States, 110 U.S.

*J. Sartre, Reing and Nothingness 433 (Barnes trans. 1956).

App. 50

ee ee

a nm. tl oS ae

ee

App.D.C. 41, 53, 288 F.2d 853, 865 (1961) (Burger, J.,

concurring). Mr. Justice Jackson expressed this in

Gregg Cartage & Storage Co. v. United States, 316 U.S.

74, 62 S.Ct. 932, 86 L.Ed. 1283 (1942): ‘the practical

business of government and administration. .. .

We are nonetheless cognizant to the fact that this

assumption must continually confront the inherent

practical obstacle of one person being unable to know

with certainty the content of another’s mind. We cross

this barrier daily, of course, in the process of determin-

ing criminal culpability.’ Yet in criminal trials we are

willing to bear the risk of error — substantially

diminished by the requirement of proof beyond a

reasonable doubt — in order to effectuate the common

law tradition of imposing punishment only upon those

who can be said to be morally responsible for their acts.

There is no analogue to this concern, however, in the

area of Fourth Amendment exclusion, which has an ad-

mitted pragmatic purpose — based as I suggested on

speculative hypotheses which ought to lead us to apply

it with reasoned discrimination, not as an automatic

response. In short, the results achieved from current ex-

clusionary rule standards are bizarre enough without

steering the analysis in the direction of areas which offer

no reasonable hope of a comprehensible framework for

inquiry.

3A somewhat similar hurdle is presented in civil cases, which

may rest decision on the standard of a ‘‘reasonable man’s’’ actions.

In those circumstances we assume that a person is ordinarily

capable of conforming conduct to an objective standard of

reasonableness. Consequently, while the assumption is indulged

that the person possesses control over his actions, there is generally

no need to inquire into mental processes as such.

App. 51

It would be obvious nonsense to postulate that dur-

ing his brief encounter in the florist shop Officer Biro

was making a painstaking analysis of the extent to

which Lois Hennessey’s ‘‘free will’’ would affect her dis-

position to testify against respondent at some future

point. It is one thing to engage in scholastic hindsight,

particularly as the dissent had done here, in which

speculation proceeds from unfounded hypotheses as to

the probable explanations for the decision of a live

witness to come forward and testify. But it is quite

another to suppose that the police officer, assuming he is

contemplating illegal action, will, or would be able to,

engage in a similar inquiry.

There are several reasons which support this

analysis, which, I might add is found acceptable in every

other legal system in the world. Initially, I would point

out that the concept of effective deterrence assumes that

the police officer consciously realizes the probable con-

sequences of a presumably impermissible course of con-

duct. The officer must be cognizant of at least the

possibility that his actions — because of possible sup-

pression — will undermine the chances of convicting a

known criminal. I strongly suspect that in the vast ma-

jority of instances in this setting the officer accused of a

Fourth Amendment violation will not even be remotely

aware of the existence of a witness, as for example,

where seizure of an item of evidence guides official in-

quiry to an eye witness. Of course , an officer conducting

a search later held illegal may have some hope that his

inquiry will lead to persons who can come forward with

testimony. It is not plausible, however, that a police of-

ficer would consciously engage in illegal action simply to

gain access to a witness, knowning full well that under

App. 52

ee

Oe ee

prevailing legal doctrine the result will be the certain ex-

clusion of whatever tangible evidence might be found.'

Even if we suppose that the officer suspects that his

illegal actions will produce a lead to a witness, he faces

the intractable problem of understanding how valuable

that person will be to his investigation. As one

philosopher has aptly put the matter, “‘[t]he freedom of

the will consists in the impossibility of knowing actions

that still lie in the future.’’ L. Wittgenstein, Tractatus

Logico-Philosophicus {5.1362 (Pears & McGuinness

trans. 1961). In Smith v. United States, 117

U.S.App.D.C. 1, 4, 324 F.2d 879, 881 (1963), cert.

denied, 377 U.S. 954, 84 S.Ct. 1632, 12 L.Ed.2d 498

(1964), this point was applied to the case of a live

witness testifying under oath:

“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 the 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 voli-

‘Perhaps a case might arise in which the police conducted a

search only for the purpose of obtaining the names of witnesses. In

such a circumstance it is possibly arguable that the exclusion of any

testimony gained as a result of the search would have an effect on

official behavior. This clearly did not occur here, nor would. In any

event, the decision to exclude such testimony should depend on the

officers’ motivation and not on the ‘free will’’ of the witnesses. I

would not want to speculate, however, as to whether such an un-

likely case would justify modifying a per se approach to this general

problem.

App. 53

tion interact to determine what testimony he

will give. The uniqueness of this human process

distinguishes the evidentiary character of a

[living] witness from the relative immutability

of inanimate evidence.’’ (Emphasis added.)

It can, of course, be argued, that the prospect of

finding a helpful witness may play some role in a

policeman’s decision to be indifferent about Fourth

Amendment procedures. The answer to this point,

however, is that we have never insisted on employing the

exclusionary rule whenever there is some possibility, no

matter how remote, of deterring police misconduct.

Rather, we balance the cost to society of losing perfectly

competent evidence against the prospect of incremen-

tally enhancing Fourth Amendment values. See, e. g.,

Stone, supra, 428 U.S. at 486, 96 S.Ct. at 3047; United

States v. Calandra, 414 U.S. 338, 350-351, 94 S.Ct. 613,

621, 38 L.Ed.2d 561 (1974); Alderman v. United States,

394 U.S. 165, 174-175, 89 S.Ct. 961, 966-977, 22 L.Ed.2d

176 (1969).

Using this approach it strikes me as evident that

the permanent silencing of a witness — who, after all, is

appearing under oath — is not worth the high price the

exclusionary rule exacts. Any rule of law which operates

to keep an eye witness to a crime —- a murder, for exam-

ple — from telling the jury what that person saw has a

rational basis roughly comparable to the primitive

rituals of human sacrifice.

I would, therefore, resolve the case of a living

witness on a per se basis, holding that such testimony is

always admissible, provided it meets all other

traditional evidentiary requirements. At very least this

App. 54

solution would alleviate the burden — now squarely

thrust upon courts — of determining in each instance

whether the witness possessed that elusive quality

characterized by the term “‘free will.”’

Mr. Justice MARSHALL, with whom Mr. Justice

BRENNAN joins, dissenting.

While ‘‘reaffirm|ing]’ the holding of Wong Sun v.

United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9

L.Ed.2d 441 (1963), that verbal evidence, like physical

evidence, may be ‘fruit of the poisonous tree,’ the

Court today “significantly qualiflies|’’ Wong Sun’s

further conclusion, id., at 486, 83 S.Ct. at 416, that no

‘logical distinction”’ can be drawn between verbal and

physical evidence for purposes of the exclusionary rule.

Ante, at 1059. In my view, the distinction that the Court

attempts to draw cannot withstand close analysis. To

extend “a time-worn metaphor,” Harrison v. United

States, 392 U.S. 219, 222, 88 S.Ct. 2008, 20 L.Ed.2d 1047

(1968), I do not believe the the same tree, having its

roots in an unconstitutional search or seizure, can bear

two different kinds of fruit, with one kind less suscepti-

ble than the other to exclusion on Fourth Amendment

grounds. I therefore dissent.

The Court correctly states the question before us:

whether the connection between the police officer’s con-

cededly unconstitutional search and Hennessey’s dis-

puted testimony was “‘so attenuated as to dissipate the

taint,’’ Nardone v. United States, 308 U.S. 338, 341, 60

S.Ct. 266, 268, 84 L.Ed. 307 (1939). See ante, at 1059. In

resolving questions of attenuation, courts typically

scrutinize the facts of the individual case, with par-

ticular attention to such matters as the ‘‘temporal prox-

App. 55

imity”’ of the official illegality and the discovery of the

evidence, ‘‘the presence of intervening circumstances,”’

and ‘“‘the purpose and flagrancy of the official

misconduct.” Brown v. Illinois, 422 U.S. 590, 603-604, 95

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

retains this general framework, but states that

“{a]ttenuation analysis” should be ‘‘concerned with the

differences between live-witness testimony and _in-

animate evidence.” Ante, at 1061. The differences noted

by the Court, however, have to a large extent already

been accommodated by current doctrine. Where they

have not been so accommodated, it is because the dif-

ferences asserted are either illusory or of no relevance to

the issue of attenuation.

One difference mentioned by the Court is that wit-

nesses, unlike inanimate objects, ‘‘can, and often do,

come forward and offer evidence entirely of their own

volition.” Id., at 1060. Recognition of this obvious fact

does nothing to advance the attenuation inquiry. We

long ago held that, if knowledge of evidence is gained

from a source independent of police illegality, the

evidence should be admitted. Silverthorne Lumber Co.

v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64

L.Ed. 319 (1920) (Holmes, J.). This ‘independent

source’ rule would plainly apply to a witness whose

identity is discovered in an illegal search but who later

comes to the police for reasons unrelated to the official

misconduct. In the instant case, however, as the Court

recognizes, ante, at 1058, there is a ‘‘ ‘straight and unin-

terrupted’ ”’ road between the illegal search and the dis-

puted testimony.

Even where the road is uninterrupted, in some cases

the Government may be able to show that the illegally

App. 56

ee re

discovered evidence would inevitably have come to light

in the normal course of a legal police investigation.

Assuming such evidence is admissible — a proposition

that has been questioned, Fitzapatrick v. New York, 414

U.S. 1050, 94 S.Ct. 554, 38 L.Ed.2d 338 (1973) (White,

J., dissenting from denial of certiorari) — this

“inevitable discovery” rule would apply to admit the

testimony of a witness who, in the absence of police mis-

conduct, would have come forward “entirely of [his or

her] own volition.” Again, however, no such situation is

presented by this case, since the Court accepts the

findings of the two lower courts that Hennessey’s

testimony would not inevitably have been discovered.

Ante, at 1058-1059.

Both the independent source and inevitable dis-

covery rules, moreover, can apply to physical evidence

as well as to verbal evidence. The police may show, for

example, that they learned from an independent source,

or would inevitably have discovered through legal

means, the location of an object that they also knew

about as a result of illegal police activity. It may be that

verbal evidence is more likely to have an independent

source, because live witnesses can indeed come forward

of their own volition, but this simply underscores the

degree to which the Court’s approach involves a form of

judicial “double counting.’”’ The Court would appar-

ently first determine whether the evidence stemmed

from an independent source or would inevitably have

been discovered; if neither of these rules were found to

apply, as here, the Court would still somehow take into

account the faet that, as a general proposition (but not

in the particular case), witnesses sometimes do come

forward of their own volition.

App. 57

The Court makes a related point that ‘‘|t|he greater

the willingness of the witness to freely testify . . . the

smaller the incentive to conduct an illegal search to dis-

cover the witness.” Ante, at 1060. The somewhat in-

credible premise of this statement is that the police in

fact refrain from illegal behavior in which they would

otherwise engage because they know in advance both

that a witness will be willing to testify and that he or she

“will be discovered by legal means.” Jbid. This reason-

ing surely reverses the normal sequence of events; the

instances must be very few in which a witness’

willingness to testify is known before he or she is dis-

covered. In this case, for example, the police did not

even know that Hennessey was a potentially valuable

witness, much less whether she would be willing to

testify, prior to conducting the illegal search. See id., at

1062. When the police are certain that a witness ‘‘will be

discovered by legal means,” id., at 1060 — if they ever

can be certain about such a fact — they of course have

no incentive to find him or her by illegal means, but the

same can be said about physical objects that the police

know will be discovered legally.

The only other point made by the Court is that ex-

clusion of testimony “perpetually disable[s] a witness

from testifying about relevant and material facts.”

Ante, at 1061. The ‘“‘perpetual . . . disable|ment]” of

which the Court speaks, however, applies as much to

physical as to verbal evidence. When excluded, both

types of evidence are lost for the duration of the par-

ticular trial, despite their being ‘‘relevant and material

. . .fand] unrelated. . . to the purpose of the originally

illegal search.” Ibid. Moreover, while it is true that “of-

ten” the exclusion of testimony will be very costly to

society, id., at 1061, at least as often the exclusion of

App. 58

ee

ae ee eee)

ae te eS ee ee ee

—

ee

physical evidence — such as heroin in a narcotics

possession case or business records in a tax case — will

be as costly to the same societal interests. But other,

more important societal interests, see Brown v. Illinois,

supra, 422 U.S., at 599-600, 95 S.Ct. at 2259-2260; Wong

Sun v. United States, supra, 371 U.S., at 486, 83 S.Ct. at

416, have led to the rule, which the Court today reaf-

firms, that “fruits of the poisonous tree’’ must be ex-

cluded despite their probative value, unless the facts of

the case justify a finding of sufficient attenuation.

The facts of this case do not justify such a finding.

Although, as the Court notes, ante, at 1058; see id., at

1062, four months elapsed between the illegal search

and the FBI’s first contact with Hennessey, the critical

evidence was provided at the time and place of the

search, when the police officer questioned Hennessey

and she identified respondent, id., at 1057. The time

that elapsed thereafter is of no more relevance than

would be a similar time period between the discovery of

an object during an illegal search and its later introduc-

tion into evidence at trial. In this case, moreover, there

were no intervening circumstances between Hennessey’s

statement at the time of the search and her later

testimony. She did not come to the authorities and ask

to testify, despite being a student of police science; an

FBI agent had to go to her home and interrogate her. Id.,

at 1.058.

Finally, whatever the police officer’s purpose in the

flower shop on the day of the search, the search itself

was not even of arguable legality, as was conceded by

the Government below. 542 F.2d 136, 140 n. 5 (CA2

1976). It is also undisputed that the shop had been un-

der surveillance as part of an ongoing gambling in-

App. 59

vestigation in which the local police force had actively

participated; its participaiton included interception of

at least one of respondent’s telephone conversations in

the very month of the search. Ante, at 1058, and n.2. Un-

der all of the circumstances, the connection here be-

tween the official illegality and the disputed testimony

cannot be deemed “‘so attenuated as to dissipate the

taint.”’ The District Court therefore properly excluded

the testimony.

I would affirm the judgment of the Court of Ap-

peals.

App. 60