Petition — United States v. Crews
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No YR~ EG [Emionnen RODAK, JR., CLERK
Iu the Supreme Court of the United States
OCTOBER TERM, 1978
UNITED STATES OF AMERICA, PETITIONER
Vv.
KEITH CREWS
PETITION FOR A WRIT OF CERTIORARI TO THE
DISTRICT OF COLUMBIA COURT OF APPEALS
WADE H. McCRrEE, JR.
Solicitor General
PHILIP B. HEYMANN
Assistant Attorney General
ANDREW L. FREY
Deputy Solicitor General
RICHARD A, ALLEN
Assistant to the Solicitor General
JEROME M. FEIT
FRANK J. MARINE
Attorneys
Department of Justice
Washington, D.C. 20530
—
INDEX
Ene tne ee eae
FARTS Say STE EET ae SAO at POO
ES RE TL a
NNER EIST ERE [RDS OT OA ROR RCO OR
Reasons for granting the petition -...................
REESE CERES SSSA A
CITATIONS
Cases:
Brewer v. Williams, 430 U.S. 387 ..........
Brown v. Illinois, 422 U.S. 590 -................
Carson v. United States, 332 F.2d 784....
Edwards v. United States, 330 F.2d 849..
Frisbie v. Collins, 342 U.S. 519 -...............
Gerstein v. Pugh, 420 U.S. 108 -...............
Golliher v. United States, 362 F.2d 594....
Government of Virgin Islands v. Gereau,
502 F. 2d 914, cert. denied, 420 U.S.
Te ee
Jacobson v. United States, 356 F.2d 685....
Johnson v. Louisiana, 406 U.S. 356 -.........
Ker v. Illinois, 119 U.S. 486 _.....................
Manson v. Brathwaite, 432.U.S. 98 ..........
Neil v. Biggers, 409 U.S. 188 -...................
Payne v. United States, 294 F.2d 723......
Stone v. Powell, 428 U.S. 465 ~...................
United States v. Barragan-Martinez, 504
re at ie iciecennds
United States v. Cales, 493 F.2d 1215......
United States. v. Ceccolini, 435 U.S. 268....
Page
ow fNKS
20, 21
18
il
11
8, 14
20
11
12
21
8, 9,
13, 17, 18, 19, 20
II
Cases—Continued - ‘Page
United States v. Edmons, 432 F.2d 577.... 12
United States v. Falley, 489 F. 2d 33........ 20
United States v. Hoffman, 385 F. 2d 501,
cert. denied, 390 U.S. 1081 ..................... 11
United States v. Wade, 388 U.S. 218 ......... 16
United States v. Young, 512 F.2d 321,
cert. denied, 424 U.S. 956 _.............2.... 11
United States ex rel. Pella v. Reid, 527
pp cael CAEL SENS SO ee 12
Wong Sun v. United States, 371 U.S. 471.. 18
Constitution and statutes:
United States Constitution, Fourth Amend-
a os 5, 9, 18, 14, 15, 16, 20
D.C. Code (1973) :
OE. Ik SRE Aaa a Rare 2
nn Ge <a eR Ie OD oa RRS 2
NON RN ne ee 4
Iu the Supreme Court of the United States
OCTOBER TERM, 1978
No.
UNITED STATES OF AMERICA, PETITIONER
v.
KEITH CREWS
PETITION FOR A WRIT OF CERTIORARI TO THE
DISTRICT OF COLUMBIA COURT OF APPEALS
The Solicitor General, on behalf of the United
States, petitions for a writ of certiorari to review the
judgment of the District of Columbia Court of Ap-
peals in this case.
OPINIONS BELOW
The opinion of the en banc court of appeals (App.
A, infra) is not yet reported. The earlier panel
opinion (App. C, infra) is reported at 369 A.2d 1063.
JURISDICTION
The judgment of the court of appeals (App. B,
infra) was entered on June 14, 1978. The time for
filing a petition for a writ of certiorari was extended
(1)
2
to and including November 11, 1978. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether the reliable in-court identification testi-
mony by the victim of a crime, who immediately
reported the crime to the police, should have been sup-
pressed as the fruit of a later unlawful detention of
respondent that produced the initial identification of
him as the offender.
STATEMENT
Respondent was indicted and tried before a jury
for three robberies of different women in a restroom
near the Washington Monument, in violation of D.C.
Code 22-2901 and 22-3202 (1973). The jury convicted
him of the robbery of Carol Owens and acquitted him
of the other two robberies. He was sentenced to four
years’ probation under the Youth Corrections Act.
After a divided panel of the District of Columbia
Court of Appeals affirmed (App. C, infra, 64a; 369
A.2d 1063, 1065), the court considered the. case en
banc and reversed, two judges dissenting (App. A,
infra).
Before tria!, respondent moved to suppress all evi-
dence showing his identification by the three victims
as the robber. The evidence adduced at the suppres-
sion hearing established: that on the morning of
January 3, 1974, while Owens was in one of the stalls
of the restroom, a man reached over the top of the
partition, pointed a gun at her, and demanded $10,
3
which she gave him (Tr. 4-5).' When the assailant
demanded more money, Owens told him she did not
have any more. The assailant then forced entry into
the stall and made sexual advances (Tr. 5-6, 16).
Owens pleaded with him to leave, which he eventually
did after warning her not to come out for 20 minutes,
or he would return and shoot her (Tr. 6).
The restrooms were well lit by fluorescent lighting,
and Owens testified she got a good look at her assail-
ant for at least two and a half to three minutes (Tr.
7, 17). Owens described her assailant as dark com-
plexioned, 16-18 years old, with smooth skin, and
about 5’5” to 5’8” tall (Tr. 7). Twenty minutes after
the robbery, she reported it to the police and gave
them a description of the assailant (Tr. 8, 48-49).*
Three days later, in the mid-afternoon of January
6, 1974, a young man assaulted and robbed two other
women, Sandra Denner and Ann Lawson, in a similar
fashion in the same restroom. They also reported
the incident to the police and provided a description
matching that given of the January 3 robber (Tr.
50; App. A, infra, 3a).
Around noon on January 9, 1974, two Park Police
officers saw respondent near the concession stand at
the Monument. The officers approached him, asked him
his name and age, and told him that he matched the
1“Tr,” refers to the one volume transcript containing both
the pretrial suppression hearing and the trial.
2 On the day of the robbery, police showed Owens about 100
photographs of possible suspects, but she identified none as
her assailant (Tr. 8-9).
4
description of a suspect sought in connection with
robberies at the Monument (Tr. 51-52). Respondent
gave the officers his name and said his age was 16
(Tr. 52, 63). When asked why he was not in school,
respondent replied that “he walked away from
school” (Tr. 52). Respondent then left and went
into the men’s restroom. While he was there, the
officers spoke to a tour guide who had reported having
seen a young man “standing around” in the Monu-
ment area on the day of the January 38rd robbery
(Tr. 51, 123-125). When respondent came out of
the men’s room, the tour guide told the officers that
he thought that respondent was the person he had
seen on January 3 (Tr. 51). The officers then ap-
proached respondent again and detained him. Detec-
tive Ore, who was investigating the robberies, was
immediately summoned (Tr. 52-53). He tried to take
several Polaroid photographs of respondent at the
scene, but it was raining and the photographs did
not develop properly (Tr, 52-53, 59-60). Accordingly,
the officers took respondent to Park Police headquar-
ters, where they photographed him, telephoned his
school, and released him within an hour (Tr. 60-61).°
On January 10, 1974, the officers showed a photo-
graphic array, including a photograph of respondent,
to Owens, who selected respondent’s photograph as
that of the person who had robbed her (Tr. 8-9). On
* The officer took the photographs both pursuant to routine
police procedures relating to possible truants (Tr. 52-54, 63-
65 ; see D.C. Code 31-201 (1978) ) and to show them to the rob-
bery victims (Tr. 59).
5
January 13, Lawson also selected respondent’s photo-
graph from an array (Tr. 28-29). Respondent was
again taken into custody, and on January 16 a
Superior Court judge ordered him to appear at a
lineup (App. A, infra, 5a). At the lineup, Owens
and Lawson positively identified respondent as their
assailant (Tr. 10, 29). Denner did not review any
photographic array or attend the lineup (Tr. 39-40,
42).
At the conclusion of the suppression hearing, the
trial court ruled that the detention of respondent
at Park Police headquarters constituted an arrest and
was improper because it was not supported by proba-
ble cause.* It further ruled that the evidence of the
photographic and of the lineup identifications were
fruits of this illegal arrest and could not be intro-
duced at trial. Finding, however, that the victims’
identification of respondent would be based on ob-
servations made at the time of the crime and would
be independent of the photograph and lineup iden-
4 We believe that the facts known to the officers at the time
of their initial encounter with respondent and his tentative
identification by the tour guide were sufficient to establish a
reasonable suspicion that he was involved in criminal activi-
ties and to justify a brief detention for inquiry and for
the purpose of taking respondent’s photograph. While we
entirely disagree with the court of appeals’ characterization
of petitioner’s detention at Park Police headquarters as a
“flagrant” violation of his Fourth Amendment rights (App. A,
infra, 44a), we do not here challenge the ruling of the courts
below that the nature and extent of the detention exceeded
permissible bounds.
6
tifications, the court allowed the victims to make in-
court identifications at trial (Tr. 95, 96, 99).
At the trial, Owens testified that there was abso-
lutely no doubt in her mind that respondent was her
assailant. She stated that the restroom was well lit
and that at one point during the incident respondent
sat on her lap and was only a few inches from her
(Tr. 116; see generally Tr. 107-111). Lawson also
positively identified respondent as the person who
robbed her and Denner (Tr. 148). Denner was less
sure of her identification, but selected respondent as
the person in the courtroom most closely resembling
her assailant (Tr. 135-136). Respondent denied com-
mitting the robberies on either January 3 or January
6 (Tr. 172-179) and presented a witness who testified
that respondent went to a movie with him on January
6 (Tr. 153). The jury convicted respondent of the
January 3 robbery and acquitted him of the robberies
on January 6 (Tr. 239-240).
2. A panel of the District of Columbia Court of
Appeals affirmed (App. C, infra, 63a-87a). The panel
held that Owens’ in-court identification testimony was
not a fruit of the January 6 arrest of respondent
within the meaning of the “fruit of the poisonous
tree” doctrine, but rather was a product of Owens’
independent recollection of the crime (id. at 69a-73a).
Alternatively, the panel held that even if Owens’
testimony could be regarded as causally related to
respondent’s arrest, the policies of the. exclusionary
rule did not require suppression. The court noted
that “[i]n the final analysis, what [respondent]
7
seeks is no less than an immunity from any prose-
cution”—a result that would impose a social cost
outweighing “whatever incremental deterrence argu-
ably might be provided by barring the victims’ in-
court testimony, in addition to the photographic and
lineup identifications which were excluded by the trial
court * * *” (id. at 80a-81a).
The court of appeals en banc reversed, two judges
dissenting (App. A, infra, la-60a). The court held
that the victim’s in-court identification should have
been suppressed as the fruit of the January 9 detention,
notwithstanding that the identification was reliable
and based on the witness’s independent recollection
of the crime. The court reasoned that the testimony
was the fruit of the detention because the photograph
then taken led to the identification of respondent as
the assailant, which led to his rearrest, which led
ultimately to his trial in which the testimony was
given (id. at 20a-21a).° The court rejected the gov-
5 Thus the court stated:
The causal chain posited by appellant runs‘as follows:
the unlawful arrest produced photographs which were
shown to the complaining witnesses who, as a result,
identified appellant; this resulted in his reapprehension,
which yielded a court-ordered lineup identification and,
eventually, in-court identification testimony during prose-
cution of the case. Thus, appellant says, the courtroom
identification testimony was “actually discovered by”’ (i.e.,
made available to the government through) “a process
initiated by the unlawful act.” United States v. Parou-
tian, 299 F.2d 486, 489 (2d Cir. 1962).
* * * * *
Appellant Crews clearly demonstrated a causal connection
8
ernment’s argument that respondent’s identity would
inevitably have been discovered through routine in-
vestigation, declining to adopt the inevitable discovery
doctrine in its jurisdiction (id. at 28a-29a). The
court also rejected the contention that the victim’s
testimony was sufficiently attenuated from the illegal-
ity attendant upon the brief arrest on January 9, dis-
tinguishing this Court’s decision in United States v.
Ceccolini, 435 U.S. 268 (1978), on the grounds that
the time between the arrest and the testimony (three
and a half months) was “quite a brief period” (id. at
38a), that there were no “significant” intervening
events (id. at 39a-43a), that the police misconduct
here was “flagrant” and “purposeful” (id. at 44a),
and that Owens’ free will in testifying did not “rep-
resent an attenuating, intervening force” (id. at 52a
n.37).°
Judges Nebeker and Harris dissented. App. A,
infra, 55a-60a. In their view, Owens’ in-court iden-
tification testimony could not reasonably be viewed
as a fruit of respondent’s detention on January 9,
between the unlawful arrest and the in-court identifica-
tion in this case.
6 The court also rejected the argument that suppression of
Owens’ testimony would be contrary to the principles of
Frisbie v. Collins, 342 U.S. 519 (1952), and Ker v. Illinois,
119 U.S. 4386 (1886), which held that an unlawful arrest does
not impair the court’s jurisdiction to try the defendant. Al-
though the court expressed doubts about the continuing valid-
ity of Frisbie and Ker (App. A, infra, 82; but see Gerstein V.
Pugh, 420 U.S. 108, 119 (1975) ), it held that those decisions
were in any event inapposite because in the instant case the
cuurt was only suppressing evidence and was not dismissing
the indictment (id. at 15a & n.7).
9
and the majority’s decision had the consequence of
“permanently silenc[ing] the victim of a crime whose
ability to testify was unrelated in any way to the
unconstitutional seizure of [respondent]” (id. at
60a), a result they deemed incompatible with Cec-
colini. Both dissenters expressed the hope that this
Court would review the decision and “reject the ma-
jority’s manifestly unwarranted extension of the
exclusionary rule” (ibid).
REASONS FOR GRANTING THE PETITION
This case presents an important and recurring
question under the Fourth Amendment: whether the
in-court identification testimony of victims of a crime,
whose identity and knowledge of the crime are known
to the police from the outset, should be suppressed as
the fruit of a subseyuent unlawful arrest of the
defendant that leads police to conclude that the de-
fendant is the criminal and (wus to his prosecution.
Although this Court has not considered that precise
question, the decision below conflicts with. decisions
of most of the circuits and with principles established
by this Court in related contexts. Decisions of several
circuits, however, have applied the rationale of the
decision below to suppress the testimony of victims
or other witnesses already known to the police, and
this Court’s review is needed to resolve the conflict
on this important question.
1. The question is important and recurring. The
court of appeals held that the victim’s identification
10
testimony was the tainted fruit of respondent’s arrest
on January 9 because it was as a result of that arrest
that respondent was positively identified by his
victim, reapprehended, and brought to the trial in
which the testimony was given (see page 7, supra,
& note 5). If the court of appeals’ analysis is correct,
it would have substantial and far reaching impli-
cations. It would mean that the victims of a crime,
who have promptly reported it to the police, would
be forever barred from testifying about the crime if,
at some point in the ensuing investigation, the de-
fendant is unlawfully arrested and the arrest ma-
terially contributes to the police’s identification of
him as the offender. The effective consequence of that
analysis (if not the logically necessary consequence)
would be permanently to immunize most defendants
in such circumstances from prosecution.
The showing of arrested suspects in a lineup or of
their photographs in an array to victims or other
witnesses is a common and appropriate police pro-
cedure. Since there is the possibility in every case
that a court may later find the arrest to have been for
some reason unlawful, the determination that in those
circumstances the exclusionary rule requires suppres-
sion of not only the pre-trial identifications but also
the witnesses’ independent and reliable recollection of
the events and personae involved in the crime is one
that merits this Court’s review.
2. This Court has never endorsed the suppres-
sion of the reliable trial testimony of the victims’
of a crime, and most of the courts of appeals
11
have refused to impose such an extreme cost upon the
trial of criminal cases. Thus in Payne v. United
States, 294 F.2d 728, 727 (D.C. Cir. 1961), which
the court below declined to follow (App. A, infra,
13a, n.6), the court rejected a similar challenge to
the in-court identification testimony of the complain-
ing witness, stating:
The consequence of accepting appellant’s con-
tention in the present situation would be that
[the witness] would be forever precluded from
testifying against [the defendant] in court,
merely because he had complied with the request
of the police that he come to police headquarters
and had there identified [the defendant] as the
robber. Such a result is unthinkable. The sup-
pression of the testimony of the complaining
witness is not the right way to control the con-
duct of the police, or to advance the administra-
tion of justice. The rights of the accused in a
case like the present are adequately protected
when the complaining witness takes the stand in
open court, for examination and cross-examina-
tion. Cf. Frisbie v. Collins, 1952, 342 U.S. 519,
72 S.Ct. 509, 96 L.Ed. 541.
See also United States v. Young, 512 F.2d 321, 323
(4th Cir. 1975), cert. denied, 424 U.S. 956 (1976);
Carson v. United States, 332 F.2d 784 (5th Cir.
1964) ; United States v. Hoffman, 385 F.2d 501, 504-
505 (7th Cir. 1967), cert. denied, 390 U.S. 1031
(1968) ; Golliher v. United States, 362 F.2d 594, 602
(8th Cir. 1966) ; Jacobson v. United States, 356 F.2d
685, 688 (8th Cir. 1966); Edwards v. United States,
330 F.2d 849, 851 (D.C. Cir. 1964).
12
On the other hand, decisions of the Ninth and
Second Circuits have employed a rationale similar to
that of the decision below to suppress the testimony
of victims or witnesses who were known to the police
prior to the defendant’s unlawful arrest. United
States v. Barragan-Martinez, 504 F.2d 1155 (9th
Cir. 1974); United States v. Edmons, 432 F.2d 577
(2d Cir. 1970).’
38. Although this Court has not yet addressed the
precise question presented here, several principles and
lines of analysis established in related decisions sup-
port the view of the majority of the courts of appeals
that the testimony of the victims of a crime should
not be suppressed in these circumstances.
a. First, we submit that the court of appeals
erred in concluding, as a threshold matter, that
Owens’ in-court identification testimony was a “fruit”
of respondent’s improper detention on January 9 for
tIn United States v. Barragan-Martinez, supra, the court
held that the in-court identification testimony of witnesses
who were present when the defendant’s car was unlawfully
stopped and who identified the defendant at the scene of the
arrest should have been suppressed as the fruit of the arrest.
In United States v. Edmons, supra, the court suppressed the
in-court identification testimony of victims of a crime on the
ground that it was the fruit of arrests of the defendant and
others that were made in “bad faith.” 432 F.2d at 583-584.
In a later case, however, the Second Circuit has permitted the
in-court testimony of witnesses to a crime who had identified
the defendants after their unlawful arrest on the ground that
the unlawful arrest was made in “good faith.” United States
ex rel. Pella v. Reid, 527 F.2d 380, 383 (2d Cir. 1975).
13
purposes of Fourth Amendment exclusionary rule
analysis. The evidence at issue—Owens’ knowledge
of the appearance of her assailant—was not some-
thing the police learned about as a result of having
arrested respondent on January 9. The police already
knew that Owens was the victim of the crime and
knew that she would probably be able to recognize
and identify her assailant. Thus, her trial testimony
was not a “fruit” of the arrest as the concept of the
“fruit of the poisonous tree” has been understood
and applied in this Court’s decisions—that is, where
some unlawful conduct has led the police to acquire
useful evidence, or, as in United States v. Ceccolini,
supra, to discover the identity of a witness whom
they had not previously known to be knowledgeable
about the crime. Rather, respondent’s arrest on Janu-
ary 9 was simply an event that allowed the govern-
ment to utilize the evidence it already possessed—a
catalyst, perhaps, but not a fruit-generating seed.
We do not deny that the evidence already possessed
by the police—knowledge that Owens could identify
her assailant if she saw him again—could acquire
prosecutive utility only if Owens was in fact con-
fronted with respondent or shown a photograph of
him. We also acknowledge that the potential utility
of her knowledge was realized in this case when she
was shown the photograph taken during the period
of improper detention. But we emphatically contest
the conclusion that evidence already in the possession
of the police can be retroactively disqualified by sub-
14
sequent Fourth Amendment violations.’ Our conten-
tion that the court of appeals fundamentally mis-
understood the kind of nexus that is required between
a Fourth Amendment violation and suppressible evi-
dence is demonstrated by reference to this Court’s
disposition of several significantly analogous lines of
cases.
For example, in Frisbie v. Collins, 342 U.S. 519
(1952), the Court unanimously reaffirmed the princi-
ple established in Ker v. Illinois, 119 U.S. 436 (1886),
that the fact that a defendant has been produced for
trial by virtue of an unlawful arrest does not prevent
the prosecution from going forward, even though it
obviously would not have proceeded but for the illegal
arrest. See also Gerstein v. Pugh, 420 U.S. 103, 119
(1975). The potential value of the evidence possessed
® Although the Fourth Amendment violation here was far
less egregious, the situation is parallel to that before this
Court in Davis v. Mississippi, 394 U.S. 721 (1969), where the
Court concluded that fingerprints obtained during an illegal
roundup of at least 24 Negro youths for questioning and
fingerprinting had to be suppressed as a tainted fruit (analo-
gous to the uncontested suppression in this case of the identi-
fication of respondent from the photo array). There is no
suggestion in Davis that anything should be suppressed other
than the fingerprints, and Mr. Justice Stewart’s dissent makes
the point, not controverted by the majority, that other finger-
prints of the defendant could be utilized at a retrial (394
U.S. at 730). If the court of appeals is correct in this case,
however, it would appear to follow not only that no other
fingerprints could have been used against Davis, but that the
evidence of the rape victim herself would have been subject to
exclusion because of the role the illegally procured fingerprints
played in identifying Davis as the cuiprit.
15
by the prosecutors of Ker and Collins, including any
testimony by victims or eyewitnesses, was realized
only by virtue of the violations of those defendants’
Fourth Amendment rights, yet the Court in each case
plainly was of the view that this did not foreclose
use of such evidence at trial.
In Johnson v. Louisiana, 406 U.S. 356 (1972), the
Court was presented with the contention that lineup
identifications of the defendant should have been sup-
pressed because he had been illegally arrested at night
without a warrant. Had he not been so arrested,
Johnson argued, he would not have been available to
be placed in a lineup. This line of argument, similar
to the analysis of the court of appeals in the instant
case linking respondent’s illegal detention to Owens’
in-court testimony, was rejected by the Court, which
held that the commitment of Johnson by a magistrate,
intervening between the arguably illegal arrest and
the lineup, made it “clear that no evidence that might
properly be characterized as the fruit of an illegal
entry and arrest was used against him at trial” (406
U.S. at 365).
The principle that irregularities in procuring the
initial identification of a suspect as the culprit will
not retroactively invalidate independent eyewitness
and victim identification testimony is also reflected in
the line of cases dealing with improper pretrial iden-
tification procedures. This Court has established
that evidence of pretrial identifications must be sup-
pressed at trial if the procedures employed in securing
the identification were unduly suggestive or if, sub-
16
sequent to attachment of a right to counsel, the de-.
fendant was deprived of the assistance of counsel
during a lineup. Nevertheless, the Court has per-
mitted the victim or witness to make an in-court
identification if that testimony is, as here, based upon
an independent recollection untainted by the improper
pretrial identification procedures. See, e.g., United
States v. Wade, 388 U.S. 218, 239-241 (1967); Man-
son v. Brathwaite, 482 U.S. 98 (1977); Neil v.
Biggers, 409 U.S. 188 (1972). Independent in-court
identifications are allowed even though it could be
said in those cases, as here, that the pre-trial identifi-
cation may have played a critical role in causing the
defendant to be brought to trial.
We recognize that it is possible to point to distinc-
tions between the foregoing cases and the circum-
stances presented by the instant case.’ Nevertheless,
we submit that those cases all look in a direction,
inconsistent with the conclusion of the court of ap-
° For example, the Wade line of cases, involving pre-trial
identifications, were concerned primarily with the unreliabil-
ity of suggestive or uncounselled identifications, and not with
Fourth Amendment violations or their fruits, and they were
distinguished by the court below on that basis (App. A, infra,
21a). Nevertheless, the suppression remedy required by those
cases was designed in part to deter improper identification
procedures (see, e.g., Mason V. Brathwaite, supra, 432 U.S. at
112), and the suppression of the fruits of such procedures
could be said to be a necessary corollary of that deterrent
purpose. But this Court has not regarded independently based
in-court identifications as the fruits of earlier improper pre-
trial identifications and thus has rejected the theory of causa-
tion employed by the court below.
17
peals, that the independent in-court testimony by
Owens that respondent was her assailant should not
be held to be a fruit of his improper detention.
b. Even if it were conceptually sound to regard
Owens’ testimony as the fruit of respondent’s im-
proper detention on January 9, there remain impor-
tant questions about the propriety, as a matter of
exclusionary rule policy, of the suppression of the
testimony of the victim of a crime, as well as about
the correctness of the application of attenuation
principles to the “fruits” analysis in circumstances
like these . We believe that it is rarely, if ever, justifi-
able to exclude the testimony of a victim of a crime,
particularly a crime of violence, where such testi-
mony is based upon the victim’s independent recol-
lection of the events. We further submit that proper
application of attenuation principles supports the ad-
missibility of such evidence. Since the situation pre-
sented by this case is by its nature common and re-
curring, and since this Court’s decision in United
States v. Ceccolini, supra, does not appear to have
settled the question for this class of cases, review of
these matters by this Court now appears appropriate.
In Ceccolini this Court, specificaily in the context of
_ live-witness testimony, reaffirmed the principle estab-
lished in earlier cases that whether evidence that is
causally linked to some police misconduct should be
suppressed depends on a consideration of a number
of factors. These factors include the “temporal prox-
imity” between the misconduct and the discovery of
the evidence, the presence of intervening circum-
18
stances such as the free will of the witness or the
declarant, “and, particularly, the purpose and fla-
grancy of the official misconduct.” 435 U.S. at 274-
280; see also Brown v. Illinois, 422 U.S. 590, 603-604
(1975); Wong Sun v. United States, 371 U.S. 471,
481-488 (1963).
The Court in Ceccolini also emphasized that the
deterrent purposes of the exclusionary rule and the
social costs of exclusion are relevant considerations,
and that in view of those considerations “the ex-
clusionary rule should be invoked with much greater
reluctance where the claim is based on a causal rela-
tionship 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.” 4385 U.S. at 280. Plainly, this reluctance
should be magnified when the live witness is the vic-
time of the crime and when the police already knew
of the existence and of the testimonial potential of
the witness prior to any constitutional violation.
The considerations identified in Ceccolini as bearing
upon the attenuation analysis in such cases generally
support our submission that the court of appeals
erred in this case. The factor of temporal proximity
is difficult to apply in the circumstances of this case,
since the police knew of the evidence at issue prior to
the detention of respondent. And while the court of
appeals stated a contrary conclusion (App. A, infra,
44a), we submit that the constitutional violation in-
volved in the detention of, respondent could hardly have
been less flagrant. The arrest was based on sub-
mar SRA ee
19
stantial grounds for suspecting respondent of the
robberies (even if not amounting to probable cause),
the nature and extent of the detention was a product
of weather conditions beyond the officers’ control, and
the detention itself was relatively brief and involved
few of the substantial intrusions, such as handcuffs,
booking, fingerprints, or incarceration in a cell, that °
ordinarily accompany a full custodial arrest.”
Beyond this, perhaps the most significant considera-
tions in formulating standards governing admissi-
bility of identification testimony by the victim of a
crime are the victim’s motivations for testifying and
the policies of the exclusionary rule. In Ceccolini the
Court stressed that “the willingness of the witness to
freely testify” is a significant factor in the attenua-
tion analysis. 435 U.S. at 276. If that factor is
significant in the case of an ordinary witness, whose
identity is discovered as the result of some police
misconduct, it should be virtually dispositive in the
‘© Furthermore, there was a reasonable basis for the officers’
belief that the arrest was authorized by respondent’s state-
ments indicating that he might have been a truant. While re-
spondent disputed that the officers had reasonable ground to
believe that he was a truant and the officers admitted that
their reason for taking him to Park Police headquarters was
at least in part for the purpose of investigating the robberies
(Tr. 59), nevertheless, at a minimum, the fact that respondent
admitted that he had simply walked away from school is rele-
vant in considering the reasonableness (or conversely, the
flagrancy) of the officers’ actions. We did not argue in the
court of appeals that the arrest: was legally justified by re-
spondent’s possible truancy and thus do not make that con-
tention here.
20
case of a victim of a crime, who has reported the
crime for the very purpose of seeking justice and the
protection of the law. In such a case there can be no
question that the victim’s testimony flows primarily
from his or her desire to see justice done. To apply
the exclusionary rule in those circumstances so as to
‘“nerpetually disable [the] witness from testifying”
(435 U.S. at 277) is likely to have the effect, not of
“nurturing * * * respect for Fourth Amendment
values * * * [but] of generating disrespect for the
law and the administration of justice.” Stone v.
Powell, 428 U.S. 465, 491 (1976).”
1 Ag this Court held in Ceccolini, supra, 485 U.S. at 276, the
motivation of the witness to testify is relevant to the policies of
the exclusionary rule because “[{t]he greater the willingness of
the witness to freely testify, the greater the likelihood that he
or she wili be discovered by legal means and, concommitantly,
the smaller the incentive to conduct an illegal search to dis-
cover the witness.” The same principle applies here, and also
underlies the “inevitable discovery” exception to the fruits
doctrine applied by several courts of appeals and noted with
apparent approval by this Court in Brewer v. Williams, 430
U.S. 387, 406 n.12 (1977). See also Government of Virgin
Islands v. Gereau, 502 F.2d 914, 927-928 (3d Cir. 1974), cert.
denied, 420 U.S. 909 (1975) ; United States v. Falley, 489 F.2d
38 (2d Cir. 1973). The more likely it is that routine, legal
investigation would have disclosed the evidence that was
actually uncovered as the result of some misconduct, the less
likely it is that suppression of the evidence will have a deter-
rent effect on police misconduct. The court of appeals, how-
ever, rejected our argument that routine investigation would
inevitably have led to identifying respondent as the assailant,
in part because it rejected the inevitable discovery doctrine
and, alternatively, because it concluded that the facts in the
record did not in any event demonstrate that the “evidence
would most certainly have been obtained by lawful means”
(App. A, infra, 34a; footnote omitted). Whether or not the
Oe ea
21
In contrast to the manifest costs to society of dis-
abling such witnesses, the deterrence benefits of exclu-
sion are questionable. As the original panel decision
noted (App. C, infra, 80a), the exclusion of the vic-
tims’ photographic and lineup identifications provides
significant disincentives to making unlawful arrests,
and the incremental deterrence provided by the sup-
pression of the victim’s independent recollection of
crime is not likely to be substantial.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
WADE H. McCREE, Jr.
Solicitor General
PHILIP B. HEYMANN
Assistant Attorney General
ANDREW L. FREY
Deputy Solicitor General
RICHARD A. ALLEN
Assistant to the Solicitor General
JEROME M. FEIT
FRANK J. MARINE
Attorneys
NOVEMBER 1978
government must, under the inevitable discovery doctrine,
demonstrate to a certainty that the evidence would have been
discovered (cf. United States v. Cales, 498 F.2d 1215, 1216
(9th Cir. 1974) ), the court below erred in rejecting, as essen-
tially irrelevant to the attenuation analysis, the likelihood that
respondent’s identity would have been discovered through
lawful means. Cf. Brewer v. Williams, supra. |
~~
OO Oe te a ere
iia riicntactn cating eee Ree
la
APPENDIX A
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 8507
KEITH CREWS, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the
District of Columbia
(Hon. Robert H. Campbell, Trial Judge)
(Argued en bane October 5, 1977
Decided June 14, 1978)
W. Gary Kohlman, Public Defender Service, for ap-
pellant.
John W. Polk, Assistant United States Attorney, with
whom Earl J. Silbert, United States Attorney, and Carl
S. Rauh, Principal Assistant United States Attorney,
John A. Terry, Stuart M. Gerson and Harry R. Benner,
Assistant United States Attorneys, were on the brief,
for appellee.
Before NEWMAN, Chief Judge, and KELLY, KERN,
GALLAGHER, NEBEKER, YEAGLEY, HARRIS, MACK, and
FERREN, Associate Judges.
Opinion for the court by Associate Judge FERREN, with
whom Chief Judge NEWMAN and Associate Judges KELLY,
KERN, GALLAGHER, YEAGLEY, and MACK concur.
-
2a
Dissenting opinion by Associate Judge NEBEKER, with
whom Associate Judge HARRIS concurs, at p. 55.
Dissenting opinion by Associate Judge HArRRis, with
whom Associate Judge NEBEKER concurs, at p. 56.
FERREN, Associate Judge: On February 16, 1977, a
division of this court, by a vote of 2-1, affirmed appellant
Keith Crews’ conviction for armed robbery (D.C. Code
1973, §§ 22-2901 and -3202). Crews v. United States, D.C.
App., 369 A.2d 1063 (1977). On May 12, 1977, we granted
appellant’s petition for rehearing en banc and vacated the
judgment of February 16. The sole question at the first
hearing, and upon rehearing en banc, is whether the
robbery victim’s in-court identification of appellant Crews
should have been suppressed as evidence obtained by
official exploitation of an unlawful arrest, in violation
of his Fourth Amendment rights.
On the facts of this case, we hold that the in-court
identification should have been excluded from appellant’s
trial. His conviction accordingly must be reversed.
Our analysis proceeds, in Part I, with an explication
of the facts and the trial court proceedings, followed in
Part II with a discussion of the threshold issue: whether
the case concerns merely the suppression of evidence
(as appellant contends) or actually amounts to an un-
tenable request for dismissal of the charges (as the
government maintains). After concluding that “suppres-
sion of evidence” is the correct characterization, we turn
to the question of the appropriateness of suppression.
Part III addresses the Fourth Amendment exclusionary
rule—its history (Section A) and relevance to the facts
of this case (Section B), followed by analysis and ap-
plication of the three commonly advanced exceptions to
the rule: “independent source” (Section C), “inevitable
3a
discovery” or “hypothetical independent source” (Section
D), and “attenuation” (Section E). After finding these
exceptions to be inapplicable, we conclude by holding that
the police conducted an unconstitutional “investigatory
arrest.” The evidentiary results of such an arrest—
including the contested identification testimony here—
cannot lawfully be admitted at trial.
I. FACTUAL BACKGROUND AND TRIAL COURT PROCEEDINGS
On January 3, 1974, at approximately 11:30 a.m., a
woman was accosted in a restroom in the vicinity of the
Washington Monument. The assailant, a 15- to 18-year-
old, slender, black male with a smooth complexion, ap-
proached the victim’s stall and demanded $10.00. The
victim initially refused, but she surrendered the sum
when the robber revealed a gun. After requesting $10.00
more and ascertaining that the woman did not have it,
the young man gained entry to the stall and made sexual
advances and requests. The victim pleaded with the
assailant to stop and to leave. He soon did, warning her
as he departed not to emerge from the restroom for 20
minutes; otherwise, he said, he would shoot her. The
woman complied, then reported the incident to the police.
Two other women were similarly robbed and assaulted
in the same Monument restroom during the mid-after-
noon hours of January 6, 1974. Threatening the women
with a broken bottle, the assailant (whose description
matched the January 3 robber) compelled them to turn
over $20.00, then departed, again advising the victims
not to leave for 20 minutes. The women reported this
incident to the police.
Three days later, in the early afternoon of January 9,
1974, Officer David Rayfield of the United States Park
Police observed appellant in the area of the Washington
4a
Monument concession stand. Aware of the January 3
and 6 robberies and of a police “lookout” describing the
‘perpetrator as a young black man 15-18 years old and
slender, in build—and believing that appellant resembled
this description—the officer and his partner, Officer Barg,
approached appellant. Upon being questioned, appellant
disclosed that his name was Keith Crews, his age was
sixteen, and he was not in school because he had “walked
away.” After this three-to-five-minute encounter, dur-
ing which the officers apprised Mr. Crews of his likeness
to the robbery suspect’s description, the officers allowed
him to go on his way. They watched him enter a nearby
men’s room,
Moments later, Officer Rayfield saw and summoned
James Dickens, a tour guide. The officer knew that Mr.
Dickens had seen “a subject” in the area on January 3,
the date of the first robbery. When appellant exited
from the men’s room, Mr. Dickens told Officer Rayfield
that appellant looked like the person he had observed
on January 3. His suspicions bolstered by this report, the
officer again stopped and detained Mr. Crews. This time,
Officer Rayfield summoned Detective Ore of the United
States Park Police, the investigator assigned to these
robberies, in order to have him view the individual who
resembled the lookout description. Detective Ore arrived
ten to fifteen minutes later. When inhospitable weather
frustrated the detective’s intent to obtain on-the-scene
photographs for display to the robbery victims, he trans-
ported Mr. Crews to headquarters. The police held him
for one hour, obtained the desired photographs, and then
released him.
At a photographic array session conducted the next
day, the victim of the first crime identified appellant.
One of the two January 6 victims made a like identifica-
5a
tion on January 13. On January 16, the court ordered
appellant Crews (who apparently had been reappre-
hended) to appear in a lineup on January 21, where
he was positively identified by the two women who had
made the photographic identifications.
The grand jury returned an indictment on February
22, 1974, charging Keith Crews with two counts of
armed robbery (D.C. Code 1973, $§ 22-2901, -3202), two
‘counts of robbery (D.C. Code 1973, § 22-2901), one
count of attempted armed robbery (D.C. Code 1973,
§$§ 22-2902, -3202), and three counts of assault with a
dangerous weapon (D.C. Code 1973, § 22-502). On
April 22, 1974, after a hearing on appellant’s motion
to suppress, the trial court determined that because the
government lacked probable cause to arrest, it could
not introduce the photographic or lineup identifications
into evidence. The court, however, decided to permit the
in-court identification.
Trial commenced immediately. Defendant Crews in-
terposed alibi defenses to all charges. On the next day,
April 23, the jury returned verdicts of not guilty on
all counts but the first. He was convicted of armed
robbery founded upon the events of January. 3.‘ Pur-
suant to the Youth Corrections Act, 18 U.S.C. § 5010
(a) (1970), the trial judge sentenced Keith Crews to
four years’ probation. He now appeals the conviction,
‘Although appellant was but sixteen years old, he was
prosecuted as an adult in the Criminal Division by virtue
of D.C. Code 1973, § 16-2301 (3) (A), which excludes from the
definition of “child” (for purposes of Family Division juris-
diction),
An individual who is sixteen years of age or older and—
(A) charged by the United States Attorney with
... robbery while armed....
6a
maintaining that the first victim’s in-court identification
was tainted by the illegality of his arrest and, as a
result, was necessarily subject to suppression by virtue of
the Fourth Amendment to the Constitution of the United
States.
II. SUPPRESSION OF EVIDENCE VERSUS DISMISSAL
OF THE CHARGE
Appellant casts his appeal in suppression-of-evidence
terms. The government, however, maintains that there
is no “evidence” to be suppressed; it argues that ap-
pellant’s goal should be characterized, more realistically,
as prevention of his prosecution with consequent dis-
missal of the charges. It follows, according to the gov-
ernment, that appellant’s effort runs afoul of the long-
standing, well-recognized, and still vital principle that
an illegal arrest cannot serve to bar a prosecution or
nullify a conviction that results from a fairly conducted
trial. Frisbie v. Collins, 342 U.S. 519 (1952); Ker v.
Tilinois, 119 U.S. 486 (1886). Accordingly, we must
first interpret the meaning and scope of the Frisbie-Ker
doctrine and then determine whether the relief sought
by appellant runs contrary to the constitutional authority
of those two cases.
A. The Frisbie-Ker Doctrine
In Frisbie v. Collins, supra, and Ker v. Illinois, supra,
the Supreme Court was confronted with claims that the
forcible abduction of the defendants by government agents
for the purpose of subjecting them to the jurisdiction
of the respective trial courts violated due process. De-
fendants accordingly claimed that their convictions had
to be voided. In both cases the Court held that the Con-
stitution did not require the state courts to decline juris-
diction.
7a
[T]he power of a court to try a person for a
crime is not impaired by the fact that he [has]
been brought within the court’s jurisdiction by
reason of a “forcible abduction.” ... [D]ue
process of law is satisfied when one present in
court is convicted of crime after having been
fairly apprised of the charges against him and
after a fair trial in accordance with constitu-
tional procedural safeguards. There is nothing
in the Constitution that requires a court to per-
mit a guilty person rightfully convicted to escape
justice because he was brought to trial against
his will. [Frisbie, supra at 522 (footnote
omitted) .]
The holdings of the Court are actually quite clear and
simple. ‘These cases established that a criminal court
could exercise jurisdiction over a defendant however
his presence has been obtained.” 88 Harv. L. REv. 813,
815 (1975).* Clarity and simplicity notwithstanding,
2 The Supreme Court recently has offered its own sum-
maries of the Frisbie-Ker principle. In Gerstein v. Pugh, 420
U.S. 108, 119 (1975), the Court observed “the established rule
that illegal arrest or detention does not void a subsequent
conviction.” Similarly, in Stone v. Powell, 428 U.S. 465, 485
(1976), the Court acknowledged the “proposition that judicial
proceedings need not abate when the defendant’s person is
unconstitutionally seized.” These two expressions reveal an
important, often overlooked, aspect of the Frisbie-Ker doc-
trine: due process tolerates such compulsory attendance at
trial; it does not require a court to decline jurisdiction or
dismiss a case. But Frisbie-Ker does not limit a court’s power
to reject jurisdiction on nonconstitutional grounds. The Ker
court, in fact, specifically stated that it would not be averse
to a trial court’s refusal to sanction the prosecution of an
abducted defendant on other than due process grounds; “the
decision of that question is as much within the province of the
state court, as a question of common law, or of the law of na-
tions, of which that court is bound to take notice, as it is of
8a
the continuing validity of Frisbie-Ker is frequently ques-
tioned. We therefore must resolve the dispute over
Frisbie-Ker’s current status.
At least one commentator has maintained that de-
velopments in due process doctrine since Frisbie—es-
pecially the evolution of the exclusionary rule—cast
serious doubt upon the present validity of Frisbie-Ker.
See Pitler, The Fruit of The Poisonous Tree, Revised and
Shepardized, 56 CALIF. L. REv. 579, 599-601 (1968).
At least one court, in fact, has endorsed this position
by specifically rejecting Frisbie-Ker in a case of flagrant
international abduction and torture. United States v.
Toscanino, 500 F.2d 267, 273-75 (2d Cir. 1974).° Two
other circuit court opinions have referred to the criti-
cism and possible decline of Frisbie-Ker’s authority.
United States v. Edmons, 432 F.2d 577, 583 (2d Cir.
1970) ; Government of the Virgin Islands v. Ortiz, 427
F.2d 1043 (3d Cir. 1970). Nonetheless, a greater num-
ber of circuits has acknowledged the endurance of the
doctrine. United States v. Herrara, 504 F.2d 859 (5th
the courts of the United States.” Jd. at 444. Accordingly,
Frisbie-Ker does not foreclose the court’s option to refuse
to conduct the trial of a forcibly abducted defendant in the
exercise of its supervisory powers over the administration
of criminal justice. See United States v. Toscanino, 500 F.2d
267, 276 (2d Cir. 1974).
’ Although the Toscanino court clearly repudiated Frisbie-
Ker, the court’s conclusion that it lacked jurisdiction was also
supported by at least two nonconstitutional rationales: (1) the
federal court’s supervisory power over criminal justice, with
reference to preserving its own dignity, and (2) specific treaty
violations. The Second Circuit specifically distinguished both
Frisbie and Ker on these grounds. Furthermore, one com-
mentator has pointedly observed that the abandonment of
Frisbie-Ker was wholly unnecessary on the egregious facts
of Toscanino. 88 HARV. L. REV. 813, 817 (1975).
9a
Cir. 1974) ; United States v. Cotten, 471 F.2d 744, 748-
49 (9th Cir.), cert. denied, 411 U.S. 986 (1973) ; United
States ex rel. Calhoun v. Twomey, 454 F.2d 326 (7th Cir.
1971) ; United States v. Sherwood, 4385 F.2d 867 (10th
Cir. 1970), cert. denied, 402 U.S. 909 (1971) ; Sewell v.
United States, 406 F.2d 1289 (8th Cir. 1969). See also
United States v. Friedland, 441 F.2d 855 (2d Cir.), cert.
denied, 404 U.S. 867 (1971). Most important, the Su-
preme Court recently has indicated that Frisbie-Ker is
still good authority. Stone v. Powell, 428 U.S. 465, 485
(1976) ; Gerstein v. Pugh, 420 U.S. 108, 119 (1975).
Consequently, we feel ! ound by the Frisbie-Ker principle.
While we acknowledge such continuing validity, we
also must underscore that Frisbie-Ker does not conflict
with, let alone delimit, the exclusionary rule of the Fourth
Amendment announced in Weeks v. United States, 232
U.S. 383 (1914) and extended to the states in Mapp v.
Ohio, 367 U.S. 643 (1961). Each principle reigns su-
preme in its own sphere: Frisbie-Ker in holding that
under the due process clause, the conduct of a prosecution
is not prevented by, nor is a conviction voided by, the
illegal seizure of the person of the defendant; and Weeks-
Mapp in holding that under the Fourth and Fourteenth
Amendments, illegally seized evidence must be excluded
from federal and state criminal prosecutions. In sum-
mary, Frisbie-Ker deals with a court’s capacity to pursue
the overall criminal process against a particular defend-
ant, without regard to the evidence that may be intro-
duced. Weeks-Mapp, on the other hand, treats only a
limited portion of the criminal process—the admission of
particular evidence against a defendant who is properly
before the court. Thus, the two doctrines, as such, do
not conflict. See M.A.P. v. Ryan, D.C.App., 285 A.2d 310,
10a
315 (1971); District of Columbia v. Perry, D.C.App.,
215 A.2d 845, 847 (1966) .*
We now inquire whether the present case is better
characterized by reference to Frisbie-Ker or to Weeks-
Mapp.
‘We should note that Ker itself did not foreclose reliance
upon a constitutional violation as the ksis for seeking a
remedy other than dismissal of a prosecution (e.g., the sup-
pression remedy). By way of limitation upon its holding, the
Court stated:
We do not intend to say that there may not be proceed-
ings previous to the trial, in regard to which the prisoner
could invoke in some manner the provisions of this clause
of the Constitution, but, for mere irregularities in the
manner in which he may be brought into the custody of
the law, we do not think he is entitled to say that he
should not be tried at all for the crime with which he is
charged in a regular indictment. [/d. at 440.]
Also, it is important to stress that the Fvisbie-Ker doctrine
is specifically narrowed by the necessity that all trials, in-
cluding those which do proceed despite illegal apprehensions,
must be “fair” and “in accordance with constitutional pro-
cedural safeguards.” Frisbie, supra at 522. The doctrine
clearly was not intended to abrogate the Fourth Amendment
for trials conducted under its authority. We therefore find in
the very language of the two seminal cases additional support
for our conclusion that Frisbie-Ker does not encroach upon
the exclusionary rule of Weeks-Mapp and must be understood
and applied in light of that rule.
Finally, there is another significant limitation on Frisbie-
Ker. While that doctrine allows the government to pursue
a prosecution, with properly obtained evidence, against an
illegally arrested defendant, it by no means infringes on a
defendant’s Fourth Amendment “right to be released from
unlawful custody following an arrest made without a war-
rant or without probable cause.” Brown v. Illinois, 422 U.S.
590, 601 n.6 (1975). Undoubtedly, unless the government
possesses adequate untainted evidence of probable cause, a
forcibly abducted defendant is entitled to habeas corpus relief.
lla
B. Due Process Dismissal or Fourth Amendment
Exclusion?
The government contends that appellant actually seeks
a due process dismissal, precluded by Frisbie-Ker, because
(1) the in-court identification does not constitute sup-
pressible “evidence”, and because (2) dismissal of the
charges is the necessary consequence of granting the re-
lief sought. We reject both government arguments. We
perceive appellant’s claim to be merely the assertion of
a constitutional right to exclusion of illegally obtained
evidence. Because (as indicated above) such Fourth
Amendment relief is consonant with Frisbie-Ker, this
latter doctrine poses no impediment to the appeal,
Implicit in the government’s first argument (that there
is no “evidence” to suppress) is a purported distinction
between types of evidence for exclusionary rule purposes.
Legal precedent, however, is to the contrary. For the
purpose of determining whether evidence is subject to
suppression,
there is “no reasonable or logical basis for any
distinction between inanimate (tangible) and
animate (testimonial) evidence.” [People v.
Dentine, 21 N.Y.2d 700, 708, 234 N.E.2d 462,
463, 287 N.Y.S.2d 427, 429 (1967). (Fuld, C.J.,
dissenting). See United States v. Schipani, -289
F.Supp. 48, 59 (E.D.N.Y. 1968).]
It is beyond question that testimony is a proper target
for Fourth Amendment suppression. Indeed, the Fourth
Amendment landmark, Wong Sun v. United States, 371
U.S. 471 (1963), so held.* Numerous other cases, in fact,
* “Thus, verbal evidence which derives so immediately from
unlawful entry and an unauthorized arrest as the officer’s ac-
tion in the present case is no less the ‘fruit’ of official illegality
12a
have also made clear that all kinds of identification evi-
dence, whether in the form of testimony about a pretrial
lineup, showup, or photographic array, or of testimony
confirming an in-court identification, are the proper sub-
ject of a suppression motion under the Fourth, Fifth, and
Sixth Amendments. See Johnson v. Louisiana, 406 U.S.
356 (1972) ; Stovall v. Denno, 388 U.S. 293 (1967) ; Gil-
bert v. California, 388 U.S. 264 (1967); Wade v. United
States, 388 U.S. 218 (1967) ; Gatlin v. United States, 117
U.S.App.D.C. 123, 130, 326 F.2d 666, 673 (1963). See
also Payne v. United States, 111 U.S.App.D.C. 94, 97,
294 F.2d 723, 726 (1961).
We therefore cannot endorse the government’s argu-
ment that the suppression of courtroom identification tes-
timony necessarily transgresses F'risbie-Ker because it is
not “evidence.” No one disputes that in-court identifica-
tion testimony presupposes the defendant’s presence at
than the more common tangible fruits of [an] unwarranted
intrusion.” Jd. at 485 (footnote omitted). See also Harrison v.
United States, 392 U.S. 219 (1968) (testimony at first trial
excluded from second trial); Abbott v. United States, D.C.
Mun.App., 138 A.2d 485 (1958) (testimony of officers regard-
ing illegally obtained observations and admissions is exclud-
able); Smith v. United States, 120 U.S.App.D.C. 160, 344 F.2d
545 (1965) (testimony of two witnesses that defendants sold
them stolen property is excludable); Edwards v. United
States, 117 U.S.App.D.C. 383, 330 F.2d 849 (1964) (testimony
of witness whose name was unlawfully obtained is suppres-
sible).
In United States v. Ceccolini, 98 S.Ct. 1054 (1978), the
Supreme Court specifically reaffirmed Wong Sun’s holding that
“verbal evidence,” like “tangible fruits,” can be subject to
Fourth Amendment suppression. Ceccolini, supra at 1059.
The Court noted, however, that attenuation analysis may make
“verbal evidence” less suppressible under certain circum-
stances than “physical evidence.” See text in Part III.E.8. and
note 37, infra.
13a
trial, and that in this sense the evidence cannot ripen
until trial. But the converse is not true; contrary to the
government’s contention, exclusion of identification tes-
timony does not require that a defendant be absent from
trial, in derogation of Frisbie-Ker. The exclusionary
principle merely prevents a particular witness from testi-
fying. Thus, only the exclusion of evidence, not the pre-
vention or nullification of a prosecution, is directly at
stake. In line with compelling authority, we find sup-
pressible evidence at issue.°
°*The government cites Payne v. United States, 111 U.S.
App.D.C. 94, 294 F.2d 723 (1961), where the court rejected
appellant’s Fourth Amendment challenge to an in-court identi-
fication by the complaining witness:
The consequence of accepting appellant’s contention in
the present situation would be that [the witness] would
be forever precluded from testifying against [the appel-
lant] in court, merely because he had complied with the
request of the police that he come to police headquarters
and had there identified [the appellant] as the robber.
Such a result is unthinkable. The suppression of the testi-
mony of the complaining witness is not the right way to
control the conduct of the police, or te advance the ad-
ministration of justice. The rights of the accused in a
case like the present are adequately protected when the
complaining witness takes the stand in open court, for
examination and cross-examination. Cf. Frisbie v. Collins,
1952, 342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541.
[Payne v. United States, supra at 98, 294 F.2d at 727.]
Insofar as that opinion implies a basis for distinction be-
tween suppressibility of tangible and testimonial evidence, it
cannot be reconciled with the weight of authority. Further,
if the court’s intention was to isolate in-court identifications
as a special category exempt from the demands of the exclu-
sionary rule, we can, as noted above, find no support for that
conclusion. Finally, perhaps some readers will understand
the Payne court to have implied that the reliability of in-
court identification testimony provides a reason for its
exemption from the exclusionary rule. The reliability of evi-
‘ l4a
The government attempts, second, to erect another
Frisbie-Ker roadblock by contending that because dis-
missal must inevitably result from the suppression of the
complainant’s courtroom identification testimony, Frisbie-
Ker is properly invocable to preserve the identification
and thus preclude the forbidden dismissal. Again, the
government misses the target. Frisbie-Ker held that an
illegal arrest, in itself, does not furnish a due process
basis for a court’s refusal of jurisdiction and the conse-
quent dismissal of a criminal prosecution. The Supreme
Court, however, did not hold that if suppression of ille-
gally obtained evidence would result in dismissal of a
case for lack of sufficient evidence overall, then the evi-
dence must be admitted—despite the Fourth Amendment
—to keep the case alive. And yet the government’s argu-
ment, in effect, is precisely that.
“|T | he exclusion of evidence resulting from an illegal
arrest does in some cases effectively deprive the state of
any possibility of convicting the defendant.” 88 Harv. L.
REV. 813, 816 n.22 (1975). Yet, the doctrine of Frisbie-
dence is irrelevant in determining whether it is of a charac-
ter suitable for suppression under the Fourth Amendment.
The exclusionary rule was fashioned as a sanction to re-
dress and deter overreaching governmental conduct pro-
hibited by the Fourth Amendment. 7’'0 make an exception
for illegally seized evidence which is trustworthy would
fatally undermine these purposes. [ Davis v. Mississippi,
394 U.S. 721, 724 (1969) (emphasis added).]
See the text at note 16, infra. Indeed, much tangible evidence
(e.g., narcotics) which commonly is suppressed is of the high-
est probative value—as much so as testimonial evidence.
Therefore, we reject Payne’s intimation that for exclusionary
rule purposes, in-court identifications are categorically sepa-
rable (on the ground of high reliability) from other forms
of evidence, and that their suppression somehow runs afoul
of the Frisbie-Ker doctrine.
l5a
Ker is not concerned with such indirect, “effective” pre-
clusion of the government’s opportunity to prevail.
Frisbie-Ker, rather, is concerned only with dismissals di-
rectly attributable to the fact of the illegal arrest itself,
without regard to the government’s evidence. Were the
government’s argument to be accepted, the exclusionary
rule would be substantially vitiated, for the consequence
of suppression is often the impossibility of successful
prosecution. The Supreme Court, however, has adopted
the exclusionary rule and continued to apply it with full
awareness of the F'risbie-Ker doctrine and of the primary
criticism that “[t]he criminal is to go free because the
constable has blundered.” People v. Defore, 242 N.Y.
13, 21, 150 N.E. 585, 587, cert. denied, 270 U.S. 657
(1926). We therefore find the government’s “necessity
of dismissal” argument to be without merit.’
In summary, we hold that the principles of Frisbie and
Ker present no barrier to appellant Crews in seeking the
exclusion of illegally obtained identification evidence. We
therefore turn to the overriding issue: the appropriate-
‘We also note that the present case is distinguishable from
those which have expressed disapproval at the prospect of
life-long immunity from investigation and prosecution
simply because a violation of the Fourth Amendment first
indicated to the police that a man was not the law-abiding
citizen he purported to be... . [United States v. Fried-
land, 441 F.2d 855, 861 (2d Cir.), cert. denied, 404 U.S.
867 (1971).]
Appellant receives no immunity by virtue of our decision in
this case. As will become apparent, we merely require the
suppression of specifically and sufficiently tainted “fruits”
of a Fourth Amendment violation. Friedland, supra, and
similar cases cast no doubt on the justifiability and rationality
of such a result. See, e.g., Bond v. United States, D.C.App.,
310 A.2d 221 (1973); Gisendanner v. Wainwright, 482 F.2d
1293 (5th Cir. 1978).
16a
ness of Fourth Amendment suppression of the in-court
identification.
Ill. THE FouRTH AMENDMENT EXCLUSIONARY RULE
In- order to resolve the Fourth Amendment issue, we
seek guidance from the origin and development of the
exclusionary rule.
A. Brief History of the Exclusionary Rule
In 1914, the Supreme Court adopted the exclusionary
rule in Weeks v. United States, supra.* There, the Court
held that a proscription against governmental use of ille-
gally obtained evidence was vital to preservation of
Fourth Amendment rights. Six years later, in Silver-
thorne Lumber Co. v. United States, 251 U.S. 385 (1920),
the Court announced that not only direct products of offi-
cial illegality but also secondary, i.e., derivative, results
must be excluded under this Fourth Amendment rule. In
announcing this extension of the rule, the Court stated a
limit on how far the rule extended. It fashioned the first
of the exceptions: “If knowledge of [facts] is gained
from an independent source they may be proved like any
others....” Jd. at 392 (emphaiss added). Almost twenty
years later, in Nardone v. United States, 308 U.S. 338
(1939), the Court reconfirmed the principle that deriva-
tive products are suppressible, characterizing them as the
8In Weeks the Court promulgated an exclusionary rule for
the federal courts. Later, the Court held that although the
Fourth Amendment was incorporated into the Fourteenth
Amendment, the exclusionary rule would not be applied to the
states. Wolf v. Colorado, 338 U.S. 25 (1949). In Mapp v.
Ohio, 367 U.S. 643 (1961), the Court recanted and imposed
the exclusionary rule on state law enforcement officials and
courts. The Fourth Amendment, of course, is directly ap-
plicable in the District of Columbia.
ee
17a
“fruits of the poisonous tree.” Jd. at 340-41. The Court
then announced a second exception to the exclusionary
rule: the connection between the illicit official conduct and
the evidence yielded “may have become so attenuated as
to dissipate the taint.” Jd. at 341 (emphasis added).
After more than another two decades, in 1963, the
Court issued its landmark opinion in Wong Sun, supra,
in which it reviewed and endorsed the holdings of Silver-
thorne, supra, and Nardone, supra, before endeavoring
more specifically to describe where the boundary line be-
tween exclusion and admission should be drawn.’ In the
oft-quoted statement that characterizes Wong Sun, the
Court opined:
We need not hold that all evidence is “fruit of
the poisonous tree’”’ simply because it would not
have come to light but for the illegal actions of
the police. Rather, the more apt question in such
a case is “whether, granting establishment of
the primary illegality, the evidence to which in-
stant objection is mace has been come at by ex-
ploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the
primary taint.” Maguire, Evidence of Guilt,
221 (1959). [371 U.S. at 487-88. ]
In all cases involving secondary (derivative) “fruits,”
such as the identification challenged in the present case,
this standard is the inevitable point of departure and
basis for assessment.
In recent years,,the exclusionary rule has endured a
hailstorm of criticism, and yet the foundational princi-
* Wong Sun was not intended to expand the exclusionary
rule but rather to delimit the category of “tainted fruits.”
United States v. Friedland, supra at 860.
18a
ples sketched above have generally survived.” Recently,
there has been an increasing emphasis on implementation
of the rule by reference to its underlying purposes. See
Brown v. Illinois, 422 U.S. 590 (1975). We take that
approach in the present case.
B. The Fourth Amendment Violation in the Present
Case
The trial judge found that when the officers arrested
Keith Crews on the morning of January 9, 1974, and
transported him to police headquarters, they lacked prob-
able cause to arrest him for any crime. Accordingly, the
judge suppressed the photographic array and lineup iden-
tifications. He did not, however, exclude the courtroom
identification, for he concluded that there was an “inde-
pendent source” for it.
Appellant maintains that the court either did not en-
gage in, or at least did not appropriately conduct, the
Fourth Amendment inquiry in arriving at the “inde-
pendent source” conclusion. The government takes issue
with the court’s probable cause determination; but, as-
10 See, e.g., Stone v. Powell, supra at 496 (Burger, C.J.,
concurring); Brewer v. Williams, 430 U.S. 387, 416 (1977)
(Burger, C.J., dissenting).
™ The dual purpose underlying the exclusionary rule was
explained by the Court in Elkins v. United States, 364 U.S.
206 (1960):
The rule is calculated to prevent, not to repair. Its pur-
pose is to deter—to compel respect for the constitutional
guaranty in the only effective way—by removing the in-
centive to disregard it. [Jd. at 217.]
{[T]here is [also] another consideration—the imperative
of judicial integrity. [Jd. at 222.]
19a
suming the lack of probable cause to arrest, it_urges this
court to affirm the finding of an “independent source” for
the courtroom identification.
We are compelled to accept the trial court’s appraisal
that there was no probable cause to arrest.” The govern-
ment did not appeal that determination and the resulting
evidentiary suppression. In any event, the trial judge’s
conclusion was correct on the facts.** Keith Crews’ pres-
ence at the scene of the robberies, his minimal resem-
blance to the quite general description of the assailant,
and his weak, very tenuous identification by tour guide
Dickens, did not constitute probable cause to believe that
he had participated in the robberies and assaults.
Having affirmed the Fourth Amendment violation—the
unlawfulness of Keith Crews’ arrest—we must inquire
whether the trial court erred in concluding that the court-
room identification. was not the result of official “exploi-
tation” of the “primary illegality” within the meaning
of Wong Sun.
12 We have encountered some difficulty in resolving this case
because of the absence of any specific written or oral findings
and conclusions by the trial court. Although the impediment
in this case has not been too serious, we are concerned for the
future. We therefore take this opportunity to urge the trial
courts to make clear their particular fdctual findings and
legal conclusions at suppression hearings. As will become
clearer later in this opinion, exclusionary determinations hinge
upon the interaction of myriad factors, and proper application
of the analytical criteria depends upon awareness of the pre-
cise circumstances. Our appellate task when suppression of
evidence is at issue demands an intelligible, complete record.
18 At this juncture it is sufficient to determine that probable
cause was lacking. The exact nature—that is, the egregious-
ness or innocence—of the constitutional transgression, will
be treated later. See Part III.E.3., infra.
20a
C. Causation and the “Independent Source” Exception
The initial question in assessing the asserted “exploita-
tion” is whether the unlawful police behavior had a causal
relationship to obtainment of the contested identification
testimony."* Obviously, this evidence cannot be the prod-
uct of exploitation if an official violation did not actually
_ lead to or “cause” its acquisition. (Or, as expressed in
Wong Sun, the evidence must have been “come at by”
the exploitation. 371 U.S. at 488.) If, in the words of
Silverthorne, supra, the courtroom identification arose in-
stead from an “independent source,” it cannot be tainted.”
The causal chain posited by appellant runs as follows:
the unlawful arrest produced photographs which were
shown to the complaining witnesses who, as a result,
identified appellant; this resulted in his reapprehension,
which yielded a court-ordered lineup identification and,
eventually, in-court identification testimony during prose-
cution of the case. Thus, appellant says, the courtroom
identification testimony was “actually discovered by”
(i.e., made available to the government through) -‘‘a pro-
cess initiated by the unlawful act.” United States v. Par-
outian, 299 F.2d 486, 489 (2d Cir. 1962).
Once a defendant makes a sufficient prima facie show-
ing of illegality and a causal connection to the alleged
fruit, the burden of producing evidence that will bring
the case within one or more exceptions to the exclusionary
“For a general discussion of causation, see Maguire, How
to Unpoison the Fruit—The Fourth Amendment and the
Exclusionary Rule, 55 J. CRIM. L.C. & P.S. 307, 310 et seq.
(1964) (hereafter “Maguire’’).
1 For a discussion of how “independent source” analysis
under the Fourth Amendment differs from such analysis un-
der the Fifth Amendment, see text at note 16, infra.
2la
rule rests squarely upon the prosecution. See Alderman
v. United States, 394 U.S. 165, 183 (1969) ; Note, The In-
evitability Exception to the Constitutional Exclusionary
Rules, 74 COLUM. L. REv. 88, 90 n.21 (1974) (hereafter
-“CoLuM.”). Appellant Crews clearly demonstrated a
causal connection between the unlawful arrest and the
in-court identification in this case. The onus thus shifted
to the government.
Endeavoring to satisfy the independent-source excep-
tion, the government relies upon the victim’s memory and
abilities. She could identify him, the government argues,
without regard to how he came to be in court or to the
pretrial identification procedures in which she had par-
ticipated. This argument is unsound, for it confuses “in-
dependent source” doctrine under the Fourth Amendment
with due process analysis under the Fifth Amendment.
When an in-court identification is contested under the
Fifth Amendment on the basis of a “suggestive” pretrial
identification procedure, the concern is the “reliability”
of the identification. See Manson v. Brathwaite, 432 U.S.
98 (1977); Neil v. Biggers,.409 U.S. 188 (1972) ; Sim-
mons v. United States, 390 U.S. 377 (1968); Stovall v.
Denno, supra. See also Patterson v. United States, D.C.
App., 384 A.2d 663 (1978). Thus, the Fifth Amendment
question is whether, under the “totality of the circum-
stances,” the witness’ identification is reliable enough,
based on a previous, independent observation of the de-
fendant, to withstand challenge on the ground that the
pretria! procedure must have distorted the witness’ per-
ceptions. See Manson, supra; Neil, supra. When the
courts find such reliability, they often characterize the
identification as having an “independent source,” i.e., in-
dependent of the suggestive pretrial procedure. See.
Clemons v. United States, 1383 U.S.App.D.C. 27, 34, 408
.~ 22a
F.2d 1230, 1287 (1968) (en banc), cert. denied, 394 U.S.
964 (1969). It is this kind of reliability analysis that
the government apparently advances here.
The Fourth Amendment concern, however, is not reli-
ability of evidence; it is deterrence of illegal searches and
seizures by exclusion of unlawfully obtained evidence.
Thus, the Fourth Amendment has an altogether different
type of “independent source” exception. By definition, all
evidence that is the product of—i.e., has been “come at
by exploitation of”—the official misconduct has no “inde-
pendent source”; it is dependent on, and thus derived
from, the violation of Fourth Amendment rights itself.
Thus, it must be excluded no matter how reliable. Wong
Sun v. United States, supra.“ In summary, with regard
1° As applied to identification evidence, this Fourth Amend-
ment concern about deterrence—and the exclusionary rule
response—are akin to the Sixth Amendment policy barring
admission of a pretrial identification when an accused’s right
to counsel at that critical stage of the proceeding has been
violated. See Moore v. Illinois, 98 S.Ct. 458 (1977); Gilbert v.
California, 388 U.S. 263 (1967). In a Sixth Amendment
case, however, although the initial identification (absent coun-
sel) is suppressed, a later in-court identification will be per-
mitted if the witness’s ability to identify is based on an un-
questionably reliable “source” or “origin” independent of the
pretrial identification (which was presumed to be suggestive
in the absence of defense counsel). See Untied States v. Wade,
388 U.S. 218 (1967). Application of the Sixth Amendment
exclusionary rule, therefore, involves a dual purpose—relia-
bility and deterrence—neither of which is necessarily offended
by admission of an identification subsequent to the one when
counsel was absent. The concern about reliability is met by
the same type of independent source test employed in Fifth
Amendment analysis. Compare Wade, supra, and Manson,
supra. And deterrence of Sixth Ameadment violations by. the
conduct of initial identifications without defense counsel pres-
ent is deemed satisfied by the initial suppression, since acqui-
23a
to independent-source inquiry (but without regard to
other possible exceptions to the exclusionary rule), the
Fourth Amendment requires exclusion of all evidence, in-
cluding identification testimony, that is directly traceable
to—is causally related to—unlawful official behavior.
There is another perspective that helps make the con-
stitutional distinctions clear. A Fifth Amendment viola-
tion will never occur unless unreliable evidence is intro-
duced at trial. Thus, a defendant’s due process rights
will be protected if a witness’ ability to identify is
shown to be reliable irrespective of any suggestiveness
at a pretrial identification; the pretrial taint will never
cause a Fifth Amendment violation. A Fourth Amend-
ment transgression, however, becomes an accomplished
fact at the time of the illegal search or seizure. Thus,
the exclusionary rule cannot prevent or adequately re-
dress the present violation of Keith Crews’ rights—nor
is its purpose to do so. Elkins v. United States, 364 U.S.
206, 222 (1960). Its goal, rather, is to deter future con-
stitutional transgressions. Jd. Unless the court excludes
identification testimony that is obtained by unlawful ar-
rest and confrontation with the witness, this “fruit” of
the illegality will surface at trial; and the Fourth Amend-
ment’s deterrent purpose will be frustrated. Because the
strength of a witness’s independent ability to identify
has no bearing on the means of obtaining evidence, it is
sition of later identification evidence has no significant causal
relation to the initial absence of counsel.
In our Fourth Amendment situation, however, the in-court
identification remains causally related to the unlawful arrest,
for that arrest led directly to production of the courtroom
evidence. Thus, absent suppression, the deterrnet purpose of
the exclusionary rule would be frustrated (unless the attenu-
ation exception is applicable). See Part IJI.E., infra.
24a
irrelevant to the Fourth Amendment exclusionary pur-
pose.
It follows, therefore, that the “independent source” ex-
ception under the Fourth Amendment, when identification
evidence is an issue, cannot be satisfied by reference to
a witness’ independent capacity to identify; that is the
wrong question. The Fourth Amendment exception is
limited to an identification that has been acquired wholly
apart from the illegal seizure. Such an_ independent
source might include, for example, an identification of
the accused by the same witness after a lawful arrest
on another charge, or an identification by the same wit-
ness to a different team of detectives who had included
a lawfully obtained picture of the accused in a standard
photographie array. For Fourth Amendment purposes,
however, there can be no “independent” source for an
identification that “stems from’ the very illegality at
issue. See United States v. Paroutian, supra at 489.
In this case, the government proffers no independent
source of the disputed identification evidence unrelated
to appellant Crews’ illegal apprehension; it therefore
has not carried the burden of showing that the challenged
evidence was “in no way connected with the unlawful
arrest.” Bynum v. United States, 107 U.S.App.D.C. 109,
274 F.2d 767 (1960). We conclude that the contested
identification cannot be excepted from suppression under
the Wong Sun-Silverthorne “independent source’ test."’
—-—-—-
' Mr. Justice Powell acknowledged the threshold nature of
an actual causation determination when he concluded:
[C]ompeting considerations [become] invotved in a deter-
mination to exclude evidence after finding that official
possession of that evidence was to some degree caused
by a violation of the Fourth Amendment. [Brown v.
25a
An affirmative answer to the causation question, how-
ever, by no means ends the discussion about exploitation
of the illegality. The government has suggested other
exceptions to the exclusionary rule—to which we now
turn,
B. The “Inevitable Discovery” or “Hypothetical In-
dependent Source” Doctrine
The so-called “inevitable discovery” exception to the
exclusionary rule permits the government to “unpoison
fruits” of official illegality by demonstrating that the
evidence acquired by such exploitation also would in-
evitably have been obtained by legal means.'* The
origin of this principle can be traced to the Supreme
Court’s independent source doctrine promulgated in Silver-
Illinois, supra at 607 (Powell, J., concurring in part;
emphasis added). ]
Thus, it is the existence of a causal chain—of “some degree”
of actual causation—that is tested by an independent source
assault. The strength of the causal chain—-the question
whether the illegality is of sufficient force to require exclusion
of resulting evidence—is the focus of “attenuation” analysis.
See Part IIL.E., infra. When viewed in this light, it is evident
that for exclusionary rule purposes the in-court identification
of Mr. Crews was actually caused by—it was the product of—
the Fourth Amendment wrong.
- ' See Note, Inevitable Discovery: The Hypothetical Inde-
pendent Source Exception to the Exclusionary Rule, 5 HOrstRA
L. REV. 137 (1976) [hereafter “Horstra Note’’]; Note, The Jn-
evitable Discovery Exception to the Constitutional Kxclu-
sionary Rules, 74 CoLUuM. L. Rev. 88 (1974) [hereafter
“CoLuM.”]; Pitler, “The Fruit of the Poisonous Tree’: Re-
visited and Shepardized, 56 CAL. L. Rev. 579, 627-30 (1968)
[hereafter “Pitler’]; Maguire, supra.
26a
thorne;'* but its introduction of supposition into the
analysis—its reliance on a hypothetical independent
source—is a substantial departure from the actual, in-
dependent-causation rationale which underlies that doc-
trine. Despite the recognition by two Justices that “[i]t
is a significant constitutional question whether the ‘in-
dependent source’ exception to inadmissibility of fruits,
Wong Sun, supra at 487-88, encompasses a hypothetical
as well as an actual independent source,” Fitzpatrick
v. New York, 414 U.S. 1050 (1973) (White, J. & Doug-
las, J., dissenting from denial of certiorari), the Supreme
Court has declined the invitation to pass upon the validity
of such an exception. See United States v. Ceccolini, 98
S.Ct. 1054, 1058 (1978); United States v. Castellana,
488 F.2d 65, 68 (5th Cir.), modified en banc, 500 F.2d
325 (1974).” We are therefore left to examine the varied
opinions of the lower courts, in light of the purposes of
the exclusionary rule, in deciding whether to adopt the
“inevitable discovery” exception and, if so, whether to
apply it to the circumstances here.
-The inevitability asserted by the government in this
case—a hypothetical chain of events between the police
officers’ initial sighting of Keith Crews at the Monu-
ment and his eventual identification by the victims—is
premised on an argument that discovery of the contested
evidence would have resulted from the diligent pursuit
of “routine police investigatory procedures.” See CoLuUM.,
’ The inevitable discovery doctrine has been denominated
“(t]he major attempt to flesh out the ‘independent source’
standard ....” COLUM., supra at 90.
2° The Seventh Circuit’s contrary conclusion in United States
ex rel. Owens v. Twomey, 508 F.2d 858, 865 (7th Cir, 1974)
betrays a strained. untenable reading of Wong Sun and its
progeny.
al
27a
supra at 91. The government claims, in other words,
that the in-court identification is admissible simply be-
cause the police would have identified and photographed
Mr. Crews anyway, as a routine matter, as a result of
evidence legally obtained during the stop, prior to arrest.
Individual courts have revealed significant internal di-
visions over the propriety of relying on such inevitable
discovery. See People v. Fitzpatrick, 32 N.Y.2d 499, 300
N.E.2d 139, 346 N.Y.S.2d 793, cert. denied, 414 US.
1033 (1973); Commonwealth v. Garvin, 448 Pa. 258,
293 A.2d 33 (1972). Legal commentary has both con-
demned inevitability doctrine (Pitler, supra) and con-
doned it. Note, Inevitable Discovery: The Hypothetical
Independent Source Exception to the Exclusionary Rule,
§ Horstra L. Rev. 137 (1976) (hereafter “HorsTRA
Note”); Maguire, How to Unpoison the Fruit—The
Fourth Amendment and the Exclusionary Rule, 55 J.
Crim. L.C. & P.S. 307 (1964) (hereafter “Maguire’’).
We find the Second Circuit’s analysis of the issue to be
the most enlightened. In United States v. Paroutian,
supra, government agents twice executed unsuccessful,
warrantless searches of appellant’s apartment in the ab-
sence of exigent or exceptional circumstances. Event-
ually, during a third—this time lawful—entry and
search, the investigators found a secret compartment con-
taining heroin. The circuit court of appeals‘ reversed
the trial judge’s denial of suppression of the heroin, for
the government had not refuted the prima facie showing
of a causal link between knowledge acquired during the
two illegal searches and the discovery of the evidence.
Noting that evidence actually derived from independent
legal leads—from an “independent source,” id. at 489—
was admissible, the court declined to extend the inde-
pendent source rule into the realm of the “possible.”
28a
[A] showing that the government had sufficient
independent information available so that in the
normal course of events it might have discovered
the questioned evidence without an illegal search
canno! excuse the illegality or cure tainted mat-
ter. Such a rule would relax the protection of
the right of privacy in the very cases in which,
by the government’s own admission, there is no
reason for an unlawful search. The better the
government’s case against an individual, the
freer it would be to invade his privacy. We can-
not accept such a result. The test must be one
of actualities, not possibilities. [/d. at 489.]
The court, refusing to conjecture about what might have
been, acknowledged that while the government might have
found the evidence in a wholly legal fashion, “that is not
what happened.” /d.
We find Paroutian, supra, persuasive and reject the
reasoning of cases involving similar factual patterns,
such as People v, Fitzpatrick, supra, and Commonwealth
v. Garvin, supra, which, in our judgment, find inevit-
able discovery too convenient a tool to chip away at Fourth
Amendment guarantees.*' After thoroughly examining
** For other cases which have espoused inevitable discovéry
principles to varying extents in a host of different circum-
stances, see United States ex rel. Owens v. Twomey, supra;
Government of the Virgin /slands v. Gereau, 502 F.2d 914
(3d Cir. 1974), cert. denied, 420 U.S. 909 (1975); United
States v. Falley, 489 F.2d 33 (2d Cir. 1973); United States v.
Seohnlein, 423 F.2d 1051 (4th Cir.), cert. denied, 399 U.S.
913 (1970); Killough v. United States, 119 U.S.App.D.C,. 10,
336 F.2d 929 (1964); Wayne v. United States, 115 U.S.App.
D.C, 235, 318 F.2d 205, cert. denied, 375 U.S. 860 (1963);
United States ex rel. Roberts Vv. Ternullo, 407 F.Supp. 1172
(f.D.N.Y. 1976).
[Continued]
29a
the case law and canvassing the pertinent legal literature,
we have concluded that there are at least two substantial
reasons militating against adoption in this jurisdiction
of an inevitable-discovery exception based on speculation
about routine police investigatory procedures.”
™ [Continued }
For opinions which have repudiated the doctrine, sce United
States v. Castellana, 488 F.2d 65 (5th Cir.), modified en bane,
500 F.2d 3825 (1974); United States v. Falley, supra at 42
(Oakes, J., concurring and dissenting); United States v.
Schipani, 289 F.Supp. 48 (.D.N.Y. 1968), aff'd, 414 F.2d
1262 (2d Cir. 1969); Killough v. United States, 114 U.S.App.
D.C, 305, 312, 315 F.2d 241, 248 (1962) (Wright, J., con-
curring); Bynum v. United States, 104 U.S.App.D.C. 368, 262
F.2d 465 (1958).
** In addition to the inevitability of discovery premised on
routine investigatory procedures, courts and commentators
have accepted and rejected potential inevitability resulting
from: imminent or ongoing investigations-—saturation and
otherwise, Government of the Virgin Islands v. Gereau, supra;
United States v. Falley, supra; United Statcs v. Castellana,
supra; United States ex rel. Roberts v. Terrullo, supra, Sce
also United States v. Griffin, 502 F.2d 959 (6th Cir.), cert,
denied, 419 U.S. 1050 (1974); and “operation of law,” Wayne
v. United States, supra (coroner's required autopsy of dead
body). See also TOFSTRA Note, supra at 156 et seq.; COLUM.,
supra at 91 et seq. There are other cases which have addressed
inevitability concepts but defy rigid categorization. See, e.g.,
Warren v. Territory of Hawaii, 119 F.2d 936 (9th Cir. 1941).
The rationales for rejecting inevitable discovery doctrine in
the present case are equally applicable in these other situa-
tions, for the doctrine is exceedingly difficult to apply and is
counterproductive from the deterrent standpoint.
There are at least two other recurring situations in the case
law which may or may not actually implicate inevitable dis-
covery principles and which are often mixtures of independ-
ent source, inevitability, and attenuation doctrines. First,
there is the case of “dual actual causation”—i.e., both legal
30a
First, the exception negates the deterrent purpose of
the exclusionary rule. The deterrent effect of the sup-
pression sanction is premised on the belief that the nega-
tive consequence (i.e., suppression of evidence) flowing
from official misbehavior will help correct the future be-
havior of the particular offending official as well as
others involved in law enforcement. As a result, trans-
gressions of the Fourth Amendment will be minimized.
To the contrary, however, a hypothetical independent
source, premised on “inevitable discovery,” relieves the
pressure to act constitutionally; it sanctions end runs
and shortcuts; it severely weakens and arguably removes
the intended exclusionary deterrent. It would allow the
police illegally to arrest, detain, and photograph Keith
Crews for an hour instead of following constitutional
investigatory procedures that may—or may not—have
yielded his correct identity, his photograph, and his posi-
tive identification by the victims. Indeed, such an ap-
proach would encourage officials to pursue an unlawful
course, confident that after-the-fact recognition of the
and illegal sources are “contributing causes” (Maguire, supra
at 311) to the chain which ultimately produces contestable
evidence. One court has metaphorically termed this situation
the case “of a tree nourished by both pure and polluted
waters.” United States v. Schipani, supra. See James v. United
States, 185 U.S.App.D.C. 314, 418 1150 (1969). The other
type of case often associated with inevitable discovery doctrine
involves the very initiation of an investigation on the basis
of illegal leads, with the eventual uncovering of evidence.
See United States v. Cole, 463 F.2d 163 (2d Cir.), cert. denied,
409 U.S. 942 (1972); United States v. Friedland, supra.
Since ours would be a case of inevitable discovery allegedly
resulting from “routine investigative procedures,” we need
not, and do not, confront the “dual origin” or “illegal initia-
tion” issues. We have noted these concepts and representative
cases to illustrate the difficulties encountered when the judi-
ciary attempts to speculate on the matter of actual causation.
3la
availability of a constitutional alternative would shiel
their wrongs. : .
Commentators have recognized the essential inconsis-
tency between the inevitability doctrine and the exclu-
sionary rule.
Judicial sanctioning of [the doctrine] can only
encourage police shortcuts whenever evidence
may be more readily obtained by illegal than
by legal means. This, of course, is the opposite
of the purpose of the exclusionary rule: to de-
ter law enforcement officers from using illegal
methods to procure evidence. Although the ef-
ficiency and effects of the exclusionary rule have
come under increasing attack, as long as it is
the accepted means of deterring official miscon-
duct, judicial rules should be formulated to ef-
fectuate its intent. And the subverting effect that
rules such as the inevitable discovery exception
have on the exclusionary rule should be avoided.
[COLUM., supra at 99-100 (footnotes omitted) .]
See HOFSTRA Note, supra at 156 et seqg.; Pitler, supra at
630; but see Maguire, supra at 317. Moreover, there is
no lack’ of judicial opposition to the encroachment. The
Third Circuit, for example, refused
the government’s invitation to embrace [inevit-
able discovery because} ... to admit unlawfully
obtained evidence on the strength of some judge’s
speculation that it would have been discovered
legally anyway would be to cripple the exclu-
sionary rule as a deterrent to improper police
conduct. [United States v. Castellana, supra at
68. ]?°
28 See also United States v. Falley, supra at 42-43 (Oakes, J.,
concurring and dissenting); People v. Fitzpatrick, supra at
32a
In summary, the fundamental deterrent purpose of the
exclusionary sanction, as developed in Weeks, Silver-
thorne, Nardone, Wong Sun, and even in the recent case
law limiting the rule, cannot accommodate an inevitable-
discovery exception.
The second reason for rejecting inevitable-discovery
doctrine is the ambiguity, subjectivity, and consequent
potential for abuse inherent in its application. It is too
difficult—too speculative—to apply with confidence that
the Fourth Amendment is not being compromised.*'
513, 300 N.E.2d at 146, 346 N.Y.S.2d at 803 (Wachtler, J.,
concurring); Wayne v. United States, supra at 244, 318 F.2d
at 214 (Edgerton, J., dissenting).
** The dangerous, shortcut analysis permitted by inevitable
discovery doctrine is exemplified by Commonwealth v. Garvin,
448 Pa. 258, 293 A.2d 33 (1972). The Pennsylvania Supreme
Court, alluding to and relying in part on the inevitability of
the defendant’s eventual prosecution, refused to suppress a
victim’s in-court identification. The police had illegally ar-
rested a robbery-burglary suspect on an informant’s tip which
did not satisfy the probable cause standards of Spinelli v.
United States, 393 U.S. 410 (1969), and Aguilar v. Texas, 378
U.S. 108 (1964), and had taken him immediately to the scene
of the crime and presented him to a victim, who identified him.
Later both that victim and another positively identified the
defendant at trial. The reasoning of the Pennsylvania court is
not clear; it reflects the difficulties posed by the analytical
mixture of exclusionary rule exceptions. After raising the pos-
sibility of attenuation resulting in a dissipated taint, the court
begged the question by merely concluding that there was no
reason to “employ the [exclusionary] sanction” when “the
testimonial evidence did not derive from ‘exploitation’ of any
illegality. .. .” Garvin, supra at 265-66, 293 A.2d at 37. The
court implied that as long as the_courtroom accusations of the
witnesses were accurate and based on independent knowl-
edge, they could not be Fourth Amendment fruits. According
to the majority: ~~ P
[Continued]
cat ee Ate ge hte fee eee et
33a
[A]llowing “‘poisoned” evidence in on the ground
that some hypothetical police search would have
uncovered the evidence anyway results in a
speculative theory with no discernable limits.
oo
The “inevitable discovery doctrine is . . . am-
biguous and. . . subject to abuse... .” [People
v. Fitzpatrick, supra at 513-15, 300 N.E.2d at
146-47, 346 N.Y.S.2d at 803-04 (Wachtler, J.,
concurring). |]
We perceive a serious potential for abuse not only by
individuals whose task is to discover and prevent crime
** [Continued]
The illegal arrest in this instance merely provided the
means for the confrontation with [the victim] more
promptly than would otherwise have been the case... .
We cannot assume that but for the illegal arrest the ap-
pellant would have remained at large indefinitely. [{/d.
at 266, 293 A.2d at 37-38 (footnote omitted) .]
Although the court did not specifically address inevitable dis-
covery doctrine and relied upon a combination of mingled
rationales, the implication of the final quoted sentence is
clear: the identification eventually would have been performed
absent the illegality. As Justice Manderino concluded in dis-
sent, the majority abandoned accepted Fourth Amendment
analysis in favor of “speculation . .. that the ‘illegally seized
person’ would not have remained at large indefinitely and the
illegal arrest merely hastened the inevitable confrontation.”
Id. at 271, 293 A.2d at 40.
Even if the inevitable discovery exception were valid, the
Garvin majority misapplied it. Its refusal to “assume that
but for the illegal arrest the appellant would have remained
at large indefinitely,” id. at 266, 2983 A.2d at 38, improperly
put the burden on defendant to show that he would have re-
mained free absent the illegal identification. It is widely rec-
ognized that the burden of “untainting’”’ evidence by refer-
ence to any exclusionary rule exception is upon the govern-
ment. See Part III.C., supra, and note 29, infra.
34a
but also by prosecutors, whose “ ‘sophisticated argu-
ment’ aided by hindsight [could] be used to show what
the police would have done in a given situation.” HOFSTRA
Note, supra at 155. We decline to expose the safeguard
of the Fourth Amendment to an “inevitable discovery”
exception that undermines the Fourth Amendment ex-
clusionary deterrent by reliance on conjecture. As the
District of Columbia Circuit Court once admonished:
The important thing is that those administering
the criminal law understand that they must do it
[the legal] way. [Bynum v. United States, 104
U.S.App.D.C. 368, 872, 262 F.2d 465, 469
(1958) (emphasis added) .]!**!
It is important to stress, finally, that even if we were
persuaded not to reject the doctrine of inevitable dis-
covery altogether it could not properly be applied to the
present setting. As noted earlier, by the terms of the
accepted formulation of inevitability doctrine, the prose-
cution has the burden to show that the evidence would
most certainly have been obtained by lawful means.”
2° The District of Columbia Circuit’s position on inevitability
doctrine is not clear. Bynum, supra, would appear to repudiate
the doctrine. However, in both Wayne v. United States, supra,
and Killough v. United States, 119 U.S.App.D.C. 10, 336 F.2d
929 (1964), both of which involved attempts to suppress
illegally discovered bodies of murder victims, split divisions
of the circuit court endorsed the doctrine. Because of their
unique facts, and the additional fact that Wayne’s inevitability
resulted from “operation of law,” we find these cases to be of
limited precedential value, and certainly not indicative of the
circuit’s general acceptance of the theory. In any event, even
if the D.C. Circuit had accepted the doctrine outright prior to
1971, this court, sitting en banc, is empowered to disagree.
M.A.P. v. Ryan, D.C.App., 285 A.2d 310, 312 (1971).
* Maguire, supra at 317: “It must satisfy the court, as a
fact, that the proffered evidence would have been acquired
ot
35a
In the special breed of cases in which the government
contends that “routine investigative procedures” would
lead to “inevitable discovery,” the government must show
that the procedure “is clearly routine and its results
readily predictable.” COLUM., supra at 93.
The prosecution must prove both that the pro-
cedure would have been used and that it would
have actually turned up the questioned evidence.
The prosecution does not satisfy this burden by
mere speculation that such procedures would
have been used and such results obtained. [J/d.
(footnotes omitted) .]
The government has not persuaded us that based on
an awareness of appellant’s name, age, and description
(the data which we assume was properly acquired; see
Terry v. Ohio, 392 U.S. 1 (1968)) it definitely would
have been able to obtain an initial photograph and an
ultimate in-court identification. We are requested to
speculate that the appellant’s name, age, and descrip-
tion would, without doubt, have enabled the authorities
to find appellant and photograph him (or obtain a recent
photograph); that the witnesses would have continued
to have the ability to identify appellant at the end of
whatever time period it would have taken to obtain such
a photograph; and that the officers actually would have
pursued all the leads necessary. We decline. “Likelihood,
even great likelihood, is not, of course, inevitability.”
COLUM., supra at 98. We cannot conclude with cer-
tainty that the evidence challenged here would have
been inevitably discovered. Even were we not to reject
through lawful sources of information even if the illegal act
had never taken place.”
86a
the inevitability doctrine as a general proposition, we
could not approve its invocation here.”
E. Attenuation Doctrine
Finally, our resolution of the question whether the
courtroom identification of appellant Crews was obtained
by “exploitation” of the “primary illegality” must deal
with the most prominent of the exceptions to the exclu-
sionary rule: attenuation. The government contends
that the circumstances necessitate a holding that the
taint of the illegal arrest had been adequately purged
by the time the in-court identification took place. Ap-
pellant urges that this taint did not dissipate; it carried
through to the courtroom identification.
As noted earlier, the a‘‘>nuation principle, announced
in Nardone v. United States, supra, was significantly de-
veloped by Justice Brennan’s elaboration in Wong Sun,
supra. Recently, in Brown v., Illinois, supra, the Supreme
Court discussed even more thoroughly the dimensions,
details, and proper application of “attenuation.” There,
the Court held that the inculpatory statements of a de-
fendant arrested without probable cause or a warrant
should be suppressed, even though preceded by Miranda
warnings, since these warnings themselves did not provide
sufficient attenuation to “purge the taint of an illegal
arrest.” Brown, supra at 605.
*7 At least one author urges the limited acceptance of in-
evitable discovery principles and their application in light of
“the policies underlying the exclusionary rule.”” HOFSTRA Note,
supra at 162. He would take into account variables such as the
“good faith” of the officers. Because we find the theory of
inevitable discovery inconsistent with the exclusionary rule,
but also because we find the policy factors more ‘appropriately
discussed in the context of “attenuation,” see Brown v. Illinois,
supra, and not “causation,” we reject this approach.
87a
In the majority opinion, Justice Blackmun indicated
that the key words in the Wong Sun formulation are
found in the question whether the evidence has been
developed “by means sufficiently distinguishable to be
purged of the primary taint.” Wong Sun, supra at 488
(emphasis added). He stressed that this question of
attenuation must be answered in each case consistent with
the “considerations of deterrence and of judicial integ-
rity” which undergird the exclusionary rule. Brown,
supra at 599. See Elkins v. United States, quoted at
note 11, supra. He then delineated and approved the
pertinent variables developed by the lower courts in ap-
plying the prge principles of Nardone and Wong Sun to
the secondary (derivative) fruits of Fourth Amendment
illegality :
(1) “[{T]Jemporal proximity”; 7.e., the amount of time
between the illegality and the obtainment of the disputed
evidence ;
(2) “[I]ntervening circumstances” ;
(3) “[Ajnd, particularly, the purpose and flagrancy
of the official misconduct.” Jd. at 603-04,
The Brown opinion thus injected precision into the
process of assessing attenuation. See id, at 606 (Powell,
J., concurring). Too often courts had set out the facts
of a case and merely concluded that on the whole attenu-
ation appeared—i.e., the fruit had been unpoisoned—
without a reasoned analysis of pertinent considerations.
See, e.g., Lockridge v. Superior Court, 3 Cal.38d 166, 174,
474 P.2d 683, 688, 89 Cal. Rptr. 731, 736-37 (1970), cert.
denied, 402 U.S. 910 (1971). Now, in light of Brown, it
is clear that such conclusory decisions must be avoided
in favor of concrete application of these three principal
variables.*
28 At the outset of this discussion, it is important to note
that the attenuation exception, unlike the independent source
38a
1, Temporal Proximity
Time is to be factored into attenuation determinations.
The Brov .. opinion adopts the view that the length of the
time between the illegality and the obtaining of evidence
has a direct bearing on whether exclusion of that evidence
will deter future misconduct. The Supreme Court accepts
the proposition that the potential impact of the exclu-
sionary rule on law enforcement agents’ behavior dimin-
ishes as the connection between the misconduct and the
evidence is protracted over time. In other words, the
prospect of exclusion far in the future does not provide
as much disincentive for misdeeds in the present. See
United States v. Ceccolini, supra at 1062.
In our case the government points to the time span
between the January 9, 1974, arrest of Mr. Crews and the
April 23, 1974, in-court identification as a basis for suffi-
cient attenuation to avoid exclusion of the evidence. While
this expanse may have some dissipating significance, it
is obviously quite a brief period in the context of the
criminal justice process. Moreover, there are two other
reasons why this January-April time interval does not
contribute very much to carrying the government’s bur-
den to demonstrate the purge.”
First, while the initial arrest and the taking of the
photograph did occur on January 9, 1974, the illegality
in this case did notsend on that date. The eventual re-
exception, applies only to secondary, i.e., derivative, fruits,
such as the identification testimony here at issue, and not to
the initial, immediate products of an illegal search or seizure.
A chain of one link cannot be attenuated.
* It is vital to bear in mind that the government bears the
burden of proof of attenuation of the taint, Brown, supra at
605, as it does for all exceptions to exclusion. See Part III.C.,
supra.
a ee ee
39a
arrest and confinement of Mr. Crews and his ultimate
appearance at trial were all based on tainted facts (the
government demonstrated no independent basis for re-
arrest). Thus, the entire course of events was accom-
plished in violation of the Fourth Amendment. See Part
III.B., supra. Since apparently there was no independent
probable cause for official detention and the wrong thus
continued, the time between initial arrest and ultimate
procurement of evidence must be substantially discounted.
See United States ex rel. Gockley v. Myers, 450 F.2d 232,
238 (8d Cir. 1971), cert. denied, 404 U.S. 1063 (1972).
Second, time is usually the least influential element of
attenuation analysis. A contrary conclusion would place
a substantial premium upon investigative and prosecu-
torial delay with an eye to dissipation. As will appear
from the following sections, the presence or absence of
significant intervening events and the character of the
offending official behavior are more crucial determinants
in the equation. The effect of a time lapse of any dura-
tion must be considered in light of the other two factors;
otherwise, the deterrent rationale may be disserved.
2. Intervening Events
The prosecution points to a number of occurrences be-
tween the police impropriety and the production of the
contested identification which allegedly dissipated the
taint: (1) appellant’s January 16, 1974, appearance in
court and the resulting court-ordered lineup; (2) the
February 22, 1974, grand jury indictment; (3) appel-
lant’s March 8, 1974, arraignment;_and (4) his two pre-
trial status hearing appearances on March 26 and April
5, 1974. We cannot conclude that any of these events
was an effective attenuator. Nor were all taken together.
40a
While there are no clear criteria against which to as-
sess such interim occurrences, it is evident that to purge
the taint the government must establish a “significant
intervening event [which] altered the relationship estab-
lished .between petitioner and the officers by the illegal
arrest.” Brown, supra at 608 (Powell, J., concurring in
part; emphasis added). The intervention of an event—
even several “official” events as occurred here—will not
be “significant” unless the tainted chain is severed. The
event must be of a nature that forecloses the possibility
of substantial deterrence from suppression; thus, it must
preclude both the appearance and reality of gain from
misconduct.*® Only if there is a broken connection between
the violation and the ultimate evidentiary profit can it be
assumed that exclusion would not foster deterrence—that
admission of the evidence would not encourage illegality.
Wong Sun itself involved the most frequently effective
intervening event: an act of free will by an individual
in giving a statement or other evidence to officials.
On the evidence that Wong Sun had been re-
leased on his own recognizance after a lawful
arraignment, and had returned voluntarily sev-
eral days later to make the statement, [the Court
held] that the connection between the arrest and
the statement had “become so attenuated as to
dissipate the taint.” Nardone v. United States,
308 U.S. 338, 341. [Wong Sun, supra at 491.]
The basis for finding a defendant’s untainted exercise of
free will—i.e., the voluntary choice to furnish evidence—
to be a significant intervening event consonant with the
deterrence policy was explicated by Justice Powell in
Brown v. Illinois, supra at 610:
“” This aspect of attenuation is analogous to independent
source doctrine. See Part IIIL.C., supra,
Ne ae
en. we
4la
If an illegal arrest merely provides the occasion
of initial contact between the police and the ac-
cused, and because of time or other intervening
factors the accused’s eventual statement is the
product of his own reflection and free will, ap-
plication of the exclusionary rule can serve little
purpose: the police normally will not make an
illegal arrest in the hope of eventually obtaining
such a truly volunteered statement. [Emphasis
added. |
See also United States v. Scotten, 428 F.Supp. 256 (D.
Nev. 1976), appeal dismissed, 556 F.2d 590 (9th Cir.
1977). Thus, we conclude that an intervening event
will not be “significant” for attenuation purposes unless
it alters the relationship between the police and the ac-
cused in a way that precludes the police from perceiving
a reward for taking illegal advantage of the accused. See
discussion of United States v. Ceccolini, supra, in note
37, infra.
None of the attenuating events proifered by the govern-
ment can serve to purge the taint in this case. Appel-
lant’s January 16 court appearance with the consequent
court-ordered lineup, as well as his February 22 indict-
ment, have superficial appeal in the sense that independ-
ent governmental authorities interposed their judgment
that there was a basis for detaining and trying Mr.
Crews. The fallacy of reliance upon the court’s and the
grand jury’s decisions, however, lies in the obvious fac-
tual underpinning of those determinations: the tainted
identifications made by the witnesses at the photo array
sessions. The government cannot untaint identifications
by conducting its own intervening events which them-
‘selves are flavored with the very same source of impro-
priety. The impermissible bootstrap effect is obvious.
42a
The identical flaw also infects the arraignment and pre-
trial status hearings. In addition, even if these hearings
were not so affected, it is not at all apparent that they
would constitute independent legal determinations suffi-
cient to fracture the deterrent chain. It is difficult to
perceive how an arraignment or a simple status hearing
could “significantly alter the relationship” originated by
official illegality. In any event, the government has not
carried its burden in this regard; and it is not within
our province to speculate about significant intervention.”
Finally, we perceiv? a critical distinction between this
case and the one chiefly relied upon by the government,
Johnson v. Louisiana, supra. In Johnson, the accused,
alleging that “his nighttime arrest without a warrant
was unlawful,” id. at 365, challenged his subsequent iden-
tification at a lineup on Fourth Amendment grounds.
The court, assuming invalidity of the arrest, held that
the defendant’s lineup identification could not be a
poisoned fruit of that arrest because
[p]rior to the lineup . . . he had been brought
before a committing magistrate to advise him
of his rights and set bail. At the time of the
“If Mr. Crews_had returned to official custody of his own
volition, any evidence developed as a result would have been
purged of the primary taint. Like Wong Sun, appellant would
have severed the legal connection between official misbehavior
and the evidentiary harvest, for, as Justice Powell noted in
Brown, supra at 610, the police are not presumed to anticipate
“truly volunteered” evidence, and exclusion accordingly would
“serve little purpose.” The government, however, has pointed
to no voluntary action by appellant in the chain of events here,
and the “voluntary” identification by the witness cannot sub-
stitute. That identification most certainly was within the ambit
of official anticipation. See the discussion of United States v.
Ceccolini, supra, in Part III.E.8, infra and at note 37, infra.
—.
es
Eee
48a
lineup, the detention of the appellant was under
the authority of this commitment. [/d.]
In Johnson, there could be no question of a taint attach-
ing to a probable cause or other postarrest judicial deter-
mination, for prior to the arrest the government was
lawfully aware that “the victim of an armed robbery
had identified Johnson from photographs as having com-
mitted the crime.” Jd. at 358. Consequently, the defend-
ant did not challenge the sufficiency of the factual predi-
cate for arrest; instead he objected to the unexcused
failure to obtain a warrant. This procedural failure,
even if unconstitutional, could not have had a bearing on
the magistrate’s subsequent, independent determination
of probable cause founded upon sufficient, untainted evi-
dence possessed prior to the unlawful arrest. Because the
magistrate’s determination was not dependent upon in-
formation attributable to the unlawful arrest, that sepa-
rate, neutral judicial event—which might have led to
defendant’s release absent reliable, prearrest identifica-
tion evidence—“significantly altered the relationship” be-
tween the accused and the police. It broke any causal
connection between the illegal arrest and the lineup iden-
tification.
As we have already noted, however, judicial interven-
tion which itself is afflicted with the very infirmity it is
supposed to prevent—i.e., the taint of an arrest without
probable cause—cannot serve the attenuating function of
the independent magistrate’s determination in Johnson.
All the intervening events alleged by the government in
this case were themselves tainted by Keith Crews’ arrest.
They could not supplant the illicit source; they could only
reinforce it. Therefore, we hold that the courtroom iden-
tification of appellant was not purged of the taint by any
significant intervening event. A contrary result, from
the deterrent standpoint, would be counterproductive.
44a
We turn now to the third and final variable in evaluat-
ing attenuation.
8. The Nature and Character of the Fourth Amend-
ment Violation
The government argues that the actions of the police
officers in arresting appellant, conveying him to head-
quarters, and then photographing him do not constitute
2 purposeful, let alone flagrant, Fourth Amendment viola-
tion. To the contrary, the government maintains that “an
illegal arrest is the most that this record establishes.”
Because our reading of the relevant testimony does not
square with this characterization, we cannot find a source
of attenuation in the official conduct of this case.”
32 When this appeal was before a division of this court, and
again as part of the briefing and oral argument before the en
bane court, the parties focused heavily on appellant’s claim
that the arrest here was a “sham” or a “pretext”—a pur-
ported arrest for truancy to cover the intention to arrest and
obtain evidence for armed robbery and assault. Particular
attention was devoted to the extreme case of Edmons v. United
States, supra (FBI “dragnet arrest” of several individuals for
selective service violations when the true purpose was to ob-
tain identifications of assailants of fellow agents). See
Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir.
1968); Taglavore v. United States, 291 F.2d 262 (9th Cir.
1961); McKnight v. United States, 87 U.S.App.D.C. 151, 183
F.2d 977 (1950). Courts are uniform in condemning this
practice under the Fourth Amendment and invoking the ex-
clusionary rule. “An arrest may not be used as a pretext to
search for evidence.” United States v. Lefkowitz, 285 U.S. 452,
467 (1932). These cases can be said to comprise a “sham”
or “pretext” arrest subspecies under the Fourth Amendment.
We do not believe it appropriate to classify this case under
the sham-pretext line of authority. Although the officers who
apprehended Mr. Crews may have had grounds for apprehend-
ing him as a potential truant, the fact is that they did not do
so. The record does not reflect that appellant was informed he
Sra ee oa
ee
te ions
45a
Although “no mathematical weight can be assigned to
any of the factors” bearing on attenuation, United States
v. Ceccolini, supra at 1062, the character of the official
impropriety is the most germane of the attenuating vari-
ables and is clearly the dispositive one in the balance
struck here.** The majority opinion in Brown v. Illinois,
supra, held “particularly [relevant] the purpose and fla-
was being detained and transported to headquarters as a sus-
pected truant. To the contrary, he was told that he matched a
robber’s description. Further, although the officers stated that
appellant was “processed” as a truant, it does not appear that
the procedures followed in Mr. Crews’ case conformed to the
typical truancy practices also described by the officers. While
there is some ambiguity and contradiction, the thrust of the
testimony reveals that the photograph was taken for display
to robbery victims; and the school was called to determine
whether appellant was present on January 3 and 6, the dates of
the robberies. It appears that the officers never even super-
ficially pursued the truancy matter.
Accordingly, we believe that the official misconduct here—
the arrest for armed robbery and assault without probable
cause—is more suitably analyzed under traditional Fourth
Amendment exclusionary rule criteria and thus, more par-
ticularly, as a factor bearing on attenuation. In summary,
we do not order suppression of the evidence on the theory
that the government engaged in a sham. Instead, we factor
the degree of official misbehavior into the formula for deter-
mining whether the initial taint of illegality has dissipated.
*8 Recall that this factor is pertinent only when attenuation
is at stake—i.e., when secondarily acquired, derivative evi-
dence is challenged. See note 28, supra. If the evidence is an
immediate product of an unlawful search and seizure, that
evidence is automatically excludable; there is no room for a
court to weigh admissibility based on the degree of misconduct.
We join Justice Powell in concluding that suppression of im-
mediately derived products, no matter what the nature of the
source, is a “constraint . .. imposed by existing exclusionary-
rule law.” Brown, supra at 612.
46a
grancy of the official misconduct,” id. at 604, and Justice
Powell’s partial concurrence announced that “the point at
which the taint can be said to be dissipated should be
related, in the absence of other controlling circumstances,
to the nature of the taint.” Id. at 609 (emphasis added) .*
As with “temporal proximity” and “significant inter-
vening events,” the “nature of the conduct” attenuator
has a sound foundation in the deterrent theory of the
exclusionary rule, for the “basic purpose of the rule...
is to remove possible motivations for illegal arrests.”
Brown, supra at 610 (Powell, J., concurring in part; em-
phasis added). It is presumed, and soundly so, that offi-
cials who have consciously chosen to tread upon Fourth
Amendment protections are particularly aware of the
connection between their conduct and the evidence pro-
duced. Thus, they will be especially susceptible to deter-
rence if deprived of the benefit of that evidence. As a
consequence, when a Fourth Amendment violation has
occurred, the government’s burden to demonstrate attenu-
ation is usually a heavy one; and the government’s diffi-
culty in doing so will increase in proportion to the offen-
siveness and purposiveness of the misconduct.
%*The Second Circuit, in United States v. Edmons, supra
at 584, pointedly acknowledged that the language chosen in
Wong Sun strongly implies that the nature of the transgres-
sion plays a vital role in “fruit of the poisonous tree” assess-
ments:
It has been well said of the statement by Professor
Maguire endorsed in Wong Sun that “the sense of pur-
posiveness and self-seeking of the term ‘exploitation’ is
striking, arid serves as a reminder that the exclusionary
rule is a deterrent device.” Ruffin, Out on a Limb of the
Poisonous Tree: The Tainted Witness, 15 U.C.L.A. L.
Rev. 82, 28 (1967). See also Pitler, supra, 56 Calif. L.
Rev. at 588-89.
ee een
47a
Both explicitly and implicitly, there is a widespread
case law recognition of this point: the more flagrant the
unconstitutionality, the less curable is the taint.*® The
majority opinion in Brown v., Illinois, supra, relied pri-
marily on the fact that the
illegality . . . had a quality of purposefulness.
The impropriety of the arrest was obvious... .
The arrest, both in design and in execution, was
investigatory. [Id. at 605 (emphasis added).]
Similarly, in United States v. Edmons, supra, the court
found that the arrests at issue “violated the Fourth
Amendment . . . because law enforcement officers . . .
deliberately seized the appellants . . . for the purpose of
displaying them to the agents who had been present at
the scene of the crime.” Jd. at 583 (emphasis added).
The court held that “in applying the exclusionary rule as
a deterrent device, account should be taken of the degree
of police misconduct.” Jd. at 585. Finally, the District
of Columbia Circuit, in suppressing a confession and
lineup identification testimony, leaned heavily upon the
circumstance that “the manner in which |the defendant’s]
ease was handled by the police clearly demonstrate[d]
that it was one for investigation.” Gatlin v. United
States, supra at 128, 326 F.2d at 671 (1963) (emphasis
added). The courts, therefore, have specifically con-
demned deliberate seizures for investigation.
The facts of this case bring it squarely under the au-
thority of the controlling principles of these cases con-
demning the evidentiary fruits of investigatory arrests.
One of the officers who initially detained appellant con-
** Indeed, even critics of the scope of the exclusionary rule
acknowledge its utility in cases of intentional official miscon-
duct. See Michigan v. Tucker, 417 U.S. 438, 447 (1974).
48a
ceded that from the start the focus upon Keith Crews
was initiated by suspicion of his involvement in the Wash-
ington Monument robberies. Indeed, the police told Mr.
Crews straightaway, upon the initial stop, that he
matched the culprit’s description. Detective Ore, who was
in charge of the robbery investigation, admitted that he
was summoned to the scene to view a robbery suspect;
that Mr. Crews was taken to the station and _photo-
graphed because he matched the robber’s description;
that the ongoing intent was to display such photographs
to the victims; and that they called appellant’s school to
discover whether he had attended on the days of the two
robberies. The scenario which emerges from this testi-
mony is unambiguous: appellant Crews was intentionally
subjected to an investigatory arrest for the very purpose
of obtaining identification evidence. See note 33, supra.
The remarkable parallels to the offending police ac-
tivity in Brown v. Illinois, supra, are noteworthy. In
that case, as in this,
{t]he impropriety of the arrest was obvious;
awareness of that fact was virtually conceded
by the two detectives when they repeatedly ac-
knowledged, in their testimony, that the purpose
of their action was “for investigation” or for
“questioning.” . . . The detectives embarked
upon this expedition for evidence in the hope
that something might turn up. [J/d. at 605
(footnote omitted) .] '**!
% The severe constitutional perils inherent in “investiga-
tory” seizures of citizens already had been described by the
Supreme Court in Davis v. Mississippi, 394 U.S. 721 (1969):
Investigatory seizures would subject uniimited numbers
of innocent persons to harassment and ignominy incident
to involuntary detention. Nothing is more clear than that
—-.
>
ii oD
Shek Kt
49a
Further, we agree with the authorities which have ob-
served that the importance and necessity of suppressing
evidence are substantially enhanced when the evidence
unlawfully obtained s the specific goal the police set
out to achieve: |
When the police, not knowing the perpetrator’s
identity make an arrest in deliberate violation
of the Fourth Amendment for the very purpose
of exhibiting a person before a victim and with
a view toward having any resulting identifica-
tion duplicated at trial, the fulfillment of this
objective is... an exploitation of “the primary
illegality” .... The government “exploits” an
unlawful arrest when it obtains a conviction on
the basis of the very evidence . . . which it
hoped to obtain by its unconstitutional act. |Ed-
mons, supra at 584 (emphasis added).]
See also United States v. Bacall, 443 F.2d 1050 (9th
Cir.), cert. denied, 404 U.S. 1004 (1971).
The present case, therefore, stands in marked con-
trast to the recent Supreme Court decision in United
States v. Ceccolini, supra, relied upon by the dissenters.
the Fourth Amendment was meant to prevent wholesale
intrusions upon the personal security of our citizenry,
whether these intrusions be termed “arrests” or “investi-
gatory detentions.” [/Jd. at 726-27 (footnote omitted) .]
It would not matter that the police did not engage in wide-
spread arrests of all youths who fit the general description
in this case. Actually, our inability to know whether or not
there were others, or how many others were treated similarly
to appellant, strengthens the argument for proscr.oing the
known incident, for it is the unknown, innocent individuals
whose rights can only be safeguarded by the deterrence
achieved in cases such as this. See Elkins v. United States,
supra at 217-18.
50a
There, a uniformed police officer, taking a break from
assisting at a school crossing, visited a friend at a flower
shop where she was employed. He observed an envelope
on the cash register with money sticking out of it. Upon
opening it (apparently on impulse), he discovered policy
slips. He asked his friend, the employee, to whom the
envelope belonged, whereupon she gave the defendant's
name. The officer reported the incident to detectives
on the force who then informed the FBI. Four months
later an FBI agent interviewed the employee. Over a
year later defendant testified before a grand jury that
he had never taken policy bets; thereafter, the flower
shop employee testified to the contrary. Defendant was
then indicted for perjury. At the perjury trial, the
District Court suppressed the flower shop employ<e’s tes-
timony as the fruit of an illegal search of the. envelope.
The Second Circuit affirmed but the Supreme Court re-
versed on a finding of sufficient attenuation.
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 [Of-
ficer] Biro’s discovery of the policy slips. Nor
were the slips themselves used in questioning
[witness] 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 tial on the other. While the par-
ticular knowledge to which Hennessey testified
at trial can be logically tracked back to Biro’s
discovery of the policy slips, both the identity of
Hennessey and her relationship with the respond-
ent was [sic] well known to those investigating
the case. There is, in addition, not the slightest
5la
evidence to suggest that Biro entered the shop
or picked up the envelope with the intent 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. Ayplica-
tion of the exclusionary rule in this situation
could not have the slightest deterrent effect on
the behavior of an officer such as Biro. [Id.
at 1062 (emphasis added).]
The court suggested that suppression of the evidence
might have been warranted if “the search [had been]
conducted by the police for the specific purpose of dis-
covering potential witnesses,” id. at 1060 n.4—a state-
ment reaffirming the message of Brown v. Illinois, supra
that the evidentiary fruits of an unlawful investigatory
arrest are not likely to survive suppression on the grounds
of attenuation."
** Ceccolini, therefore, is distinguishable from the present
case with reference to all three attenuation variables: (1) the
official conduct was not flagrant; it did not reflect a purpose-
ful search for evidence bearing on an illicit gambling opera-
tion; (2) the length of time between the officer’s illegal search
of the envelope and the witness’s eventual testimony at trial
was considerable; and (3) the witness’ free will in Ceccolini
(in contrast with the present case) was a significant inter-
vening event.
More particularly, as to this last, “free will” variable, we
note that in Ceccolini the witness was discovered as a result
of the illegal search. Suppression of her testimony, however,
would not have served the deterrent purpose of the exclusion-
ary rule, for the policeman at the flower shop could not have
perceived the eventual reward of that witness’ testimony from
his unlawful look inside the envelope. As the Court indicated
in Brown v. Illinois, supra at 610, the rationale for recogniz-
ing a witness’ free will as a significant attenuating variable
52a
We believe that fidelity to the Constitution mandates
our disapproval of the official misconduct which was
designed to lead—and did lead—to the identification evi-
dence in this case. We reject the notion that mere sup-
pression of the photographic and lineup identification
testimony, but not the in-court identification, would
somehow be an adequate deterrent sanction in this case.
This conclusion could only result from the untenable
assumption that a sufficient disincentive results when the
police are prohibited from enjoying some, but not all,
of the products of their wrong.
Once we restore any profit to the unlawful
search or seizure . . . we furnish an incentive
is that “the police normally will not make an illegal arrest [or
search] in the hope of eventually obtaining such a truly vol-
unteered statement.”
In Ceccolini, however, the Court “reject[ed] the Govern-
ment’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 from trial ... .” /d. at 1059. The
present case is a clear example of why such a per se rule would
compromise the Fourth Amendment. Here, the witness could
never have volunteered an identification of Keith Crews of her
own free will, absent the unlawful arrest and photograph. Her
in-court identification was premised on this critical link to Mr.
Crews illegally acquired by the police. Thus, in the present
case, the significant result of the unlawful police activity was
not discovery of the witness (who was already known and
ready to testify); it was the tangible evidence that made her
initial identification, as well as her eventual in-court identifi-
cation, possible. The police had every reason to anticipate that
if they could obtain a photograph of the assailant, by any
means, identification by a ready witness would quickly follow.
Accordingly, the free will of the witness in the present case
does not represent an attenuating, intervening force. To
the contrary, unless the exclusionary rule is applied in this
case, an important deterrent would be relaxed; an incentive
would be created for illegal arrests and searches in the hope
of finding tangible evidence to facilitate identifications by
known witnesses.
53a
for law enforcement officials to engage in un-
constitutional methods of law enforcement, and
the. danger of the use of such methods extends
to the citizenry generally, including the inno-
cent. In order for the exclusionary rule to be
effective in deterring unconstitutional searches
and seizures, it is not enough to remove some
of the profit of such searches and seizures; all
of the profit must be removed, for law enforce-
ment officials, faced with a situation which per-
mits any gain from the unlawful conduct, how-
ever remote, are furnished an incentive to vio-
late the constitutional guarantees. [Lockridge
v. Superior Court, supra at 173, 474 P.2d at
688, 89 Cal. Rptr. at 736 (Peters, J., dissenting;
emphasis in original) .]!**)
In summary, we cannot find sufficient attenuation of
serious taint created by the purposeful, unconstitutional
** We find critical distinctions between the cases cited in
support of the government’s argument for dissipation and the
present case. In Bond v. United States, D.C.App., 310 A.2d
221. (1973), this court concluded there was no indication
that a photograph obtained in an allegedly illegal arrest
in another matter “caused the police to concentrate atten-
tion upon [appellant] when trying to find the culprit in
this case.” Jd. at 225. Thus, any identification “fruit” utilized
in the second case, Bond, was acquired “not [by] exploitation
but [by] happenstance.” Jd. Clearly, in Bond the time gap
between original illegality and eventual “fruit,” the Jack of
relationship between the crime involved in the illegal arrest
and the crime leading to the later arrest, conviction and ap-
peal, and the evident lack of design or purpose by officialdom
were influential in the court’s attenuation conclusion.
It is also clear that neither Payne v. United States, supra
(analyzed and criticized in note 6, supra) nor United States
v. Reid, 527 F.2d 380 (2d Cir. 1975) involved purposeful
Fourth Amendment violations. See id. at 383 (court dis-
tinguished Edmons on this critical ground).
54a
conduct of the law enforcement agents in this case. There
was neither an expanse of time, nor a significant inter-
vening event, nor a sufficiently innocuous violation of
rights adequate to exempt the government from applica-
tion of the exclusionary rule.*
** Marly in our discussion of the Fourth Amendment’s ex- °
clusionary rule, we adverted to its dual purpose: deterrence
and judicial integrity. See Part III.A. and note 11, supra.
We have, nevertheless, relied solely on the deterrence rationale
in progressing through the variety of purported justifications
for admission of the contested in-court identification of appel-
lant Crews. Although we therefore follow the Supreme Court
view that deterrence is the “primary justification for the
exclusionary rule,” Stone v. Powell, supra at 485, we wish
to stress that the “imperative of judicial integrity,” Elkins
v. United States, supra at 222, is an important factor in
direct review of official constitutional violations. The more
purposeful the official transgression, the greater is the reason
for judicial refusal to sanction it. This is particularly true
when-—as in this case—the materialization of the evidence
sought by the official misconduct is effected through the medi-
um of trial. We believe that courts must be chary of becoming
accomplices in the invasion of an individual’s privacy. In this
era of heightened public sensitivity to ethics in governmental
affairs, the judiciary must still “resolutely set its face” against
the “pernicious doctrine” that “the government may commit
crimes in order to secure the conviction of a private criminal.”
Olmstead v. United States, 277 U.S. 438, 485 (Brandeis, J.,
dissenting). See also United States v. Toscanino, supra at 274.
(“Society is the ultimate loser when, in order to convict the
guilty, it uses methods that lead to decreased respect for the
law.’’)
We therefore rely secondarily upon the preservation of the
integrity of our judicial system in ordering suppression of
the courtroom identification of appellant. We accept judicial
integrity as a still vital supplementary rationale whose cogency
is closely related to that of deterrence in a given case.
55a
IV. CONCLUSION
Essentially, this is a case concerning an unconstitu-
tional investigatory arrest. Such police action recently
has been condemned by the Supreme Court. See Brown
v. Illinois, supra at 605. It will not be tolerated in the
District of Columbia.
Reversed and remanded.
NEBEKER, Associate Judge, dissenting, with whom
HARRIS, Associate Judge, joins: This case was decided
correctly and for the right reasons by Judge Harris’ ear-
lier majority opinion for the division. Crews v. United
States, D.C.App., 369 A.2d 1063 (1977). Since then what
was arguably the subject of disagreement has been re-
solved by the recent decision of the Supreme Court in
United States v. Ceccolini, U.S. ——, 98 S.Ct. 1054
(1978). It is earnestly to be hoped that the instant case
will become the subject of further review where surely
it may be disposed of on the authority of Ceccolini in the
same manner used by the Court in deciding Pennsylvania
v. Mimms, —— U.S. ——, 98 S.Ct. 330 (1977).
Stripped of its labored and burdened analysis, the
majority opinion holds that an illegal arrest bars the
government from producing at trial a victim who readily
and willingly can identify the accused from observation
and memory of the criminal event. The perpetual dis-
ability is imposed in the face of the inescapable fact that
“the testimony given by the witness was an aet of her
own free will in no way coerced or even induced by offi-
cial authority as a result of” the illegal arrest. Ceccolini,
supra at —, 98 S.Ct. at 1062. Contrary to the assertion
56a
of the majority, the official misconduct did not “lead . .. to
the identification evidence in this case.” Slip op. at 52.
That evidence existed from the moment of the robbery
and came directly and independently to the trial. At
most, it was the government’s ability to have the accused
present at trial which “stems from” (slip op. at 24) the
illegal arrest. No prior authoritative decision has carried
the exclusionary rule over such a precipice of unaccept-
ability.
[T]he remedy does not extend to barring the
prosecution altogether. So drastic a step might
advance marginally some of the ends served by
exclusionary rules, but it would also increase to
an intolerable degree interference with the pub-
lic interest in having the guilty brought to book.
[United States v. Blue, 384 U.S. 251, 255
(1966) .]
Wisdom and the integrity of the judicial process cry out
against this holding. Its cost to society, on balance, is
too great. See Ceccolini, supra at —, 98 S.Ct. at 1060-61,
citing United States v. Calandra, 414 U.S. 338, 348
(1974), McCorMICK ON EVIDENCE § 71, at 150 (1954),
and Michigan v. Tucker, 417 U.S. 433, 450-51 (1974).
See also Dickerson v. United States, D.C.App., 296 A.2d
708 (1972) (Nebeker, J., concurring).
Harris, Associate Judge, dissenting: I shall not en-
large upon the views set forth in the original (but now
vacated) majority opinion which affirmed appellant’s con-
viction. Crews v. United States, D.C.App., 369 A.2d
1063 (1977). I do, however, assert my continued belief
in their validitv. I make but a few further observations.
57a
A new student of the Fourth Amendment and the
exclusionary rule which has been developed thereunder
soon learns a number of truisms. Among them are: (1)
there is an infinite variety of factual situations in search
and seizure cases, with virtually no two ever being iden-
tical; (2) appellate courts have—notwithstanding the
best of efforts and intentions—established a related body
of law which regrettably is imprecise and frequently in-
consistent; and (3) rational authority readily can be
found both for and against the admissibility of challenged
evidence in any questionable Fourth Amendment case.
The majority opinion, despite the obviously conscien-
tious efforts of its able author to justify the result chosen
by the majority, constitutes a legal smorgasbord of
Fourth Amendment concepts. A large percentage of the
factual situations and principles presented by the cases
relied upon in the majority opinion readily may be dis-
tinguished from this case. In effect, the majority opinion
fires an artillery shell at a target that calls for a marks-
man’s rifle. With the majority opinion constituting 55
pages in length in slip opinion form, however, a de-
tailed refutation thereof would be wholly infeasible.
In this case, in effect for want of a flashbulb, a con-
victed armed robber will evade justice. Suspicion was
focusing upon appellant as the perpetrator of at least
two assaultive thefts in the women’s rest room at the
Washington Monument. The detective in charge of in-
vestigating the offenses was summoned to the Monu-
ment grounds to see and photograph appellant, who had
identified himself by name to other officers. Bad weather
precluded acceptable photography, and appellant was
taken to Park Police Headquarters. While there, he was
photographed, an officer telephoned his school, and he
was released.
58a
To turn to the underlying proposition, the Fourth
Amendment provides in pertinent part: “The right of the
people to be secure in their persons . . . against unrea-
sonable searches and seizures, shall not be violated... .”
Despite the suspicions which justified the investigative
intrusion on appellant’s wanderings at the Monument
grounds that day, see, e.g., Terry v. Ohio, 392 US. 1
(1968), there is no question but that there then was no
probable cause for his seizure. Thus, his Fourth Amend-
ment rights were violated. If any incriminating evidence
had resulted from a search of appellant during his one-
hour detention, assuredly it properly would have been
suppressed as evidence. However, no evidence was seized ;
only appellant was. The majority thus initially faced
an intractable dilemma: Appellant could not be sup-
pressed. See, e.g., Bond v. United States, D.C.App., 310
A.2d 221, 224-25 (1973). The trial court did suppress
evidence of the photographic and lineup identifications of
apvellant which later were made.’ Thus, the majority
was left with only one remaining avenue of ordaining
an adverse legal consequence to its disapproval of the
conduct of the police: Suppress the testimony of the
victim of the armed robbery, who had nothing to do with
the improper detention and whose independent ability
to identify her assailant was wholly unaffected thereby.’
1 Having properly learned appellant’s identity through their
initial inquiry on the Monument grounds, the police readily
could have photographed him at a later time in a number of
permissible ways.
2 The dissent to the original majority opinion had as its
basic theme the apparent belief that appellant’s unwarranted
investigative detention was a sham arrest. The current ma-
jority opinion affirmatively disavows the existence of a sham
arrest. Additionally, it is noteworthy that the new majority
opinion does not even hint (nor could it) that the victim’s
ability to identify her assailant resulted from any improper
suggestivity.
a i i ae ti : aalasteioi
te i ites
59a
The majority opinion is disingenuous in various re-
spects. Illustrative of this is footnote 7 of the ma-
jority opinion. After citing (and quoting from) a case
which is contrary to the majority’s position, the majority
seeks to distinguish it by stating: “Appellant receives no
immunity by virtue of our decision in this case.” In a
hypertechnical, semantic sense, it might be arguable
that “immunity” is not what the majority confers upon
appellant. But as a practical matter, inescapably that is
precisely what the majority does. If there were any
valid authority or plausible rationale for the majority’s
. ruling, it would not be necessary for the majority to lead
us through such a misty Fourth Amendment wonderland.
Stripped of its often anfractuous reasoning, the majority
opinion reaches an extraordinary and unprecedented re-
sult. The innocent victim of a crime, whose independent
ability to identify her assailant has been and remains
undeniable, is to be deprived of her day in court be-
cause the constable blundered in a way which did not
lead to the discovery or seizure of any evidence which
was admitted at appellant’s trial.
In United States v. Ceccolini, 98 S.Ct. 1054 (1978), an
unconstitutional search ultimately led to the use of un-
coerced testimony by an independent witness.. The de-
fendant sought to suppress that testimony. The Supreme
Court held that the testimony was admissible, stating in
part:
The cost of permanently silencing [the witness]
is too great for an even-handed system of law
enforcement to bear in order to secure... a
speculative and very likely negligible deterrent
effect.'*) [Jd., at 1062.]
‘ §In Ceccolini, the Court specifically reaffirmed what it said
more than 50 years ago in McGuire v. United States, 273 U.S.
95, 99 (1927):
[Continued]
60a
Today, this court does not silence a disinterested wit-
ness whose testimony was indeed a consequence of -an
unconstitutional search (a result which the Supreme
Court refused to sanction in Ceccolini) , but rather perma-
nently silences the victim of a crime whose ability to
testify was unrelated in any way to the unconstitutional
seizure of appellant. I join my Brother NEBEKER in ex-
pressing the hope that the only remaining reviewing au-
thority will both have and seize the opportunity to reject
the majority’s manifestly unwarranted extension of the
exclusionary rule.
I am authorized to state that Associate Judge NEBEKER
shares these views.
’ [Continued]
A criminal prosecution 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. [95
S.Ct. at 1061.]
6la
APPENDIX B
DISTRICT OF COLUMBIA COURT OF APPEALS
JANUARY TERM, 1978
No. 8507
CR 10258-74-A
KEITH CREWS, APPELLANT
Uv.
UNITED STATES, APPELLEE
Appeal from the Superior Court of the
District of Columbia
Criminal Division
BEFORE: NEWMAN, Chief Judge, and KELLY, KERN,
GALLAGHER, NEBEKER, YEAGLEY, HARRIS,
MACK and FERREN, Associate Judges.
JUDGMENT
This cause came on to be heard on the transcript
of the record from the Superior Court of the District
of Columbia, and was argued by counsel.
ON CONSIDERATION WHEREOPF, it is now
hereby ordered and adjudged by this Court that the
judgment of conviction on appeal herein is reversed
and this cause is remanded to the trial court for fur-
62a
ther proceedings consistent with the opinion filed this
date.
PER CURIAM
For the-@ourt:
/s/ Alexander L. Stevas
ALEXANDER L. STEVAS
Clerk of the Court
Dated: June 14, 1978
Opinion for the Court by Associate Judge Ferren,
with whom Chief Judge Newman, and Associate
Judges Kelly, Kern, Gallagher, Yeagley and Mack,
concur.
Dissenting opinion by Associate Judge Nebeker,
with whom Associate Judge Harris concurs.
Dissenting opinion by Associate Judge Harris, with
whom Associate Judge Nebeker concurs.
A TRUE Copy.
TEST:
ALEXANDER L. STEVAS
Clerk of the District of Columbia
Court of Appeals
By /s/ Mary K. Whittaker
Deputy Clerk
cae —
“a x _ a ss] et er cee eee oe a
63a
APPENDIX C
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 8507
KEITH CREWS, APPELLANT,
Ve
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the
District of Columbia
(Argued July 16, 1975 Decided February 16, 1977)
W. Gary Kohlman, Public Defender Service, for ap-
pellant. Frederick H. Weisberg, Public Defender Serv-
ice, also entered an appearance on behalf of appellant.
John W. Poik, Assistant United States Attorney, with
whom Earl J. Silbert, United States Attorney, and John
A. Terry, Stuart M. Gerson, and Harry R. Benner, As-
sistant United States Attorneys, were on the brief, for
appellee.
Before FICKLING, NEBEKER, and HARRIS, Associate
Judges.
Opinion for the Court by Associate Judge HARRIS.
Dissenting opinion by Associate Judge FICKLING at
p. 20.
Harris, Associate Judge: Appellant challenges his con-
viction of armed robbery (D.C. Code 1973, §§ 22-2901
64a
and -3202) on the grounds that his in-court Mentifica-
tion was the “fruit” of an illegal arrest, which hence
should have been excluded as evidence. We affirm.
I
On the morning of January 3, 1974, a woman was
robbed at gunpoint in the ladies’ restroom on the grounds
of the Washington Monument. Her assailant, peering
through the crack between the door and the side of the
stall that she occupied, requested admission and demanded
$10. She refused, whereupon he pointed a pistol at her
and repeated his demands. She gave him $10, but he
insisted that she open the stall door. When she did so,
the gunman made sexual advances, including touching
her breasts and asking her to perform fellatio. She re-
sisted and pleaded with him to leave, which he finally
did.
A similar incident occurred on the afternoon of Jan-
uary 6. In the same restroom, two other women were
forced to surrender $20 to a youth who was wielding a
broken bottle. All three victims described their assailant
to the police as a 15-to-18-year-old Negro male of slender
build and light complexion.
Three days later, Officers Rayfield and Barg of the
United States Park Police observed appellant in the
vicinity of the Monument. They stopped him and asked
his name and age. He gave his name and his age, which
was 16.’ The officers asked why he was not in school,
and said that he bore a likeness to the descriptions given
' Appellant was prosecuted as an adult pursuant to D.C.
Code 1973, § 16-2301(3)(A). He was sentenced to four
years’ probation under the Youth Corrections Act. 18 U.S.C.
§ 5010(a) (1970).
65a
by the robbery victims. Appellant replied that he had
just “walked away from school’’, and the officers allowed
him to go on his way. They then asked James Dickens,
a tour guide who believed that he had seen the assailant
of the first victim on January 3, if appellant looked
(familiar. Dickens responded that he thought appellant
had b@en in the area that day. The Park Police officers
stopped appellant a second time and summoned Detective
Ore, the Metropolitan Police officer in charge of the
robbery investigation. The detective arrived a few min-
utes later and attempted to take a picture of appellant
to show to the robbery victims. When it was realized
that inclement weather precluded acceptable photography,
Detective Ore took appellant into custody as a suspected
truant and transported him to Park Police Headquarters.
He was detained there for approximately one hour, dur-
ing which time the detective telephoned appellant’s school,
and the youth was photographed and interviewed.? Ap-
pellant then was released.
On the following day, the first victim was shown
an array of eight photographs, including that of ap-
pellant. Although previously she had selected no suspect
after viewing several hundred mugshots, she immediately
identified appellant as her assailant. One of the other
D.C. Code 1973, § 31-201 requires school attendance by
all children between the ages of seven and 16. The officers
testified that they had not placed appellant under arrest
but had merely followed standard procedures for truancy
cases. There was conflict between the testimony of appel-
lant and that of the officers as to whether at the time he was
stopped appellant offered any identification to substantiate
his claim that he was sixteen and thus, by definition, not a
truant. Cf. Bates v. United States, D.C.App., 327 A.2d 542,
543 & n.2 (1974) (on appeal from a eonviction, the evidence
is to be viewed in the light most favorable to the govern-
ment).
66a
two victims made a similar identification of appellant
from the photographs. Later, the first victim again iden-
tified appellant at a lineup.
Appellant filed a pretrial motion to suppress all iden-
tification testimony, contending that his detention for
truancy had been a pretext to seek evidence for the rob-
bery investigation, and that being the product of his
illegal detention, the identification testimony was inad-
missible. Following extensive testimony by appellant,
the three victims, and Officer Rayfield and Detective Ore,
the trial court found that the second detention constituted
an arrest, and that as such it was defective for lack of
probable cause. The court ruled that. the photographic
~ and lineup identifications would be excluded. However,
on the grounds that the victims’ ability to identify the
robber (based on their face-to-face encounters with their
assailant) was unaffected by the police conduct, it con-
cluded that in-court identifications should be permitted.
The jury convicted appellant of the armed robbery of
the first victim, but found him not guilty of all other
charges." Appellant now contends that the trial court
erred in permitting the in-court identifications.
II
Appellant’s challenge to the identification testimony by
the three women rests upon the “fruit of the poisonous
tree” doctrine developed in Silverthorne Lumber Co. v.
United States, 251 U.S. 385 (1920), Wong Sun v. United
In addition to the charge of armed robbery upon which
appellant was convicted, the indictment included another
count of armed robbery, two counts of robbery, one count of
attempted armed robbery, and three counts of assault with
a dangerous weapon. D.C. Code 1973, §§ 22-2901, -3202;
22-2901; 22-2901, -3202, and 22-502.
i -?
67a
States, 371 U.S. 471 (1963), and their progeny. He
contends that the in-court identifications were the re-
sult or “fruit” of an illegal arrest and detention, and
therefore were inadmissible. We reject both his premise
and his conclusion. '
In Wong Sun, the Supreme Court held that in certain
circumstances, evidence which the government has ac-
quired either directly or indirectly as a result of a viola-
tion of an accused’s Fourth Amendment rights may not
be used to secure his conviction. See Mapp v. Ohio, 367
U.S. 643 (1961); Silverthorne Lumber Co. v. United
States, supra; Weeks v. United States, 232 U.S. 383
(1914). While the principle applies to testimonial as
well as to tangible evidence [Wong Sun v. United States,
supra, at 485-86; see also Bond v. United States, D.C.
App., 310 A.2d 221, 224-25 (1973)], the Wong Sun
Court emphasized that the reach of the exclusionary rule ,
is not unlimited (371 U.S. at 487-88) :
We need not hold that all evidence is “fruit of
the poisonous tree” simply because it would not
have come to light but for the illegal actions of
the police. Rather, the more apt question in such
ca” is “whether, granting the establishment
of th orimary illegality, the evidence to which
instant objection is made had been come at by
exploitation of that illegality or instead .by a
means sufficiently distinguishable to be purged
of the primary taint.” Maguire, Evidence of
Guilt, 221 (1959). |
Cf. United States v. Wade, 888 U.S. 218, 240-41 (1967);
see also Nardone v. United States, 308 U.S. 338, 340-41
(1939). Accepting the trial court’s finding that ap-
pellant’s detention constituted an arrest for which the
police lacked probable cause, the question for our deter-
68a
mination is whether the in-court identification testimony
by the robbery victims properly may be characterized as
evidence which resulted from an impermissible “exploita-
tion’? of that arrest. We conclude that it may not.
The challenged identifications rested upon the con-
currence of (1) the ability of the witnesses to render
such evidence (i.e
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