Petitioner for ReHearing — United States v. Crews

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Supreme Court, U. Se \|

FILED

JUN 13 j979

No. 78-777 i

papcerecseuamssonsodil

In the Supreme Court of the United States

OCTOBER TERM, 1978

UNITED STATES OF AMERICA, PETITIONER

Vv.

KEITH CREWS

ON WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

BRIEF FOR THE UNITED STATES

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

FRANK J. MARINE

Attorney

Department of Justice

Washington, D.C. 20530

ESET VR

Jurisdiction

Question presented ..

Statement

Summary of argument ...

Argument:

I. The identification testimony of the rob-

bery victim was not a “fruit” of the

unlawful detention of respondent

A. The fruits theory of the court of

appeals has never been endorsed

by this Court and is inconsistent

with the principles established in

analogous CASES .................--.00-000-+-

B. The general purposes and policies

of the exclusionary rule do not

support the court of appeals’

a a

1. The court of appeals’ theory of-

fers limited additional deter-

rence benefits ....

2. The costs of exclusion under

theory of retroactive taint are

NTC SER aca

3. Considerations of judicial ad-

ministration counsel rejection

of. the principle of retroactive

taint

Argument—Continued

II. Even if Owens’ in-court identification

were properly deemed a “fruit” of re-

spondent’s detention, it should not have

been suppressed ...........

1. Temporal proximity

Intervening events .......

3. Free will of the witness

The character of the Fourth Amend-

OAS | ING Sts vg edelsioseneeesetinn

III. The testimony of the victim of a crime

should not be subject to suppression

under the Fourth Amendment exclu-

I TID sshansntssccicaecianncbesciidanseninnds

REC EIRSE RPCE LE Vien 8 Go EO

CITATIONS

Cases:

Page

Alderman v. United States, 394 U.S. 165.. 30, 44

Allen v. Estelle, 568 F.2d 1108 ........20000..

Baker v. State, 39 Md. App. 138, 383 A.2d

RC TER Res raarcd PRU Rayer OAL Ee ONAL ATK

Bivens v. Six Unknown Fed. Narcotics

Agents, 408 U.S. 388 ~........................

Brewer v. Williams, 480 U.S. 387 ..........

Brown v. Illinois, 422 U.S. 591 200.

Bynum v. United States, 262 F.2d 465....

Carson v. United States, 332 F.2d 784....

Clemons v. United States, 408 F.2d 1230..

Commonwealth v. Garvin, 448 Pa. 258,

TU a a

Cases—Continued Page

Davis v. Mississippi, 394 U.S. 721....12, 20, 28, 24

Dellums v. Powell, 566 F.2d 167, cert. de-

nied, 488 U.S. 916 .............. 32

Dunaway v. New York, No. 78-5066

CPeatee 6, TOT BY nessa peiccciscnscnconiscansie 5, 51, 58, 54

Edwards v. United States, 330 F.2d 849.. 27

Franklin v. United States, 382 A.2d 20.... 51

Frisbie v. Collins, 342 U.S. 519 -......... 8, 9, 11, 12,

20, 21, 22, 45

Gerstein v. Pugh, 420 U.S. 108 ~............. 9, 21, 23

Gilbert v. California, 388 U.S. 268 _..... 25, 31, 32

Golliher v. United States, 362 F.2d 594... 27

Government of Virgin Islands v. Gereau,

502 F.2d 914, cert. denied, 420 U.S.

LPR RIL LS UNE iae i LI CANIN RET es PE BTEC HE 35

Ho Chong Tsao v. INS, 588 F.2d 667,

cert. denied, 430 U.S. 906 -................... 28

Hoonsilapa v. INS, 575 F.2d 73865 ............ 28

Huerta-Cabrera v. INS, 466 F.2d 759...... 28

Jacobson v. United States, 356 F.2d 685.. 27

Johnson v. Louisiana, 406 U.S. 356 ........ 19

Ker v. Illinois, 119 U.S. 486 -.............. 8-9, 21, 22

Killough v. United States, 336 F.2d 929.. 35

Manson v. Brathwaite, 432 U.S. 98 ..:...25, 31, 34

Mapp v. Ohio, 367 U.S. 648 20... 22

Michigan v. Tucker, 417 U.S. 483 ............ 30, 54

Nardone v. United States, 308 U.S. 338.. 20, 40

Oregon v. Hass, 420 U.S. 714 .................. 45

Payne v. United States, 294 F.2d 723...... 15, 56

Russell v. United States, 408 F.2d 1280,

cert. denied, 395 U.S. 928 -...0.00000200... 41

Scott v. United States, 486 U.S. 128 ........ 33

Silverthorne Lumber Co. v. United States,

251 U.S. 386 ..... 19

Cases—Continued Page

Stone v. Powell, 428 U.S. 466 .......... 21, 23, 29, 42

Stovall v. Denno, 388 U.S. 298 ................ 31

Terry v. Ohio, 392 U.S. 1 222.22... eens 33, 50, 51

United States v. Barragan-Martinez, 504

PiZG T1G6 on eccsccccten Bs 27

United States v. Calandra, 414 U.S. 338.. 30, 44

United States v. Ceccolini, 485 U.S. 268..passim

United States v. Cella, 568 F.2d 1266...... 40

United States v. Coades, 549 F.2d 1803.... 41

United States v. Cole, 463 F.2d 168, cert.

denied, 409 U.S. 942 0... eect eeeeeeee eee 35

United States v. Cruz, 587 F.2d 277 ........ 55

United States v. Edmons, 432 F.2d 577.... 28, 26,

27-28

United States v. Falley, 489 F.2d 33........ 35

United States v. Friedland, 441 F.2d 855,

cert. denied, 404 U.S. 867 40

United States v. Higgans, 507 F.2d 808.. 32

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

cert. denied, 390 U.S. 1031 .. 27

United States v. Humphries, No. 78-1622

(9th Cir. Jan. 19, 1979), petition for

cert. filed, No. 78-1808 28, 41, 55

United States v. Janis, 428 U.S. 483........ 29, 30,

$1, 44

United States v. Martinez, 512 F.2d 830.. 28

United States v. Nardone, 127 F.2d 521,

cert. denied, 316 U.S. 698 .. 40

United States v. Sand, 541 F.2d 1370,

cert. denied, 429 U.S. 1108 -...000022 2... 40

United States v. Scios, 590 F.2d 956 ........ 55

United States v. Seohnlein, 423 F.2d

1051, cert. denied, 399 U.S. 918 .......... 35

United States v. Wade, 388 U.S. 218....25, 26, 31

United States v. Watson, 423 U.S. 411 .... 58

Cases—Continued Page

United States v. Wylie, 569 F.2d 62 ........ 51

United States v. Young, 512 F.2d 321,

cert. denied, 424 U.S. 956 ...................... 27

United States ex rel. Pella v. Reid, 527

I RNR ER NER IROPR SER APs Re a CP 28

Wayne v. United States, 318 F.2d 205,

cert. denied, 375 U.S. 860 ..........---.2.....- 35

Wong Chung Che v. INS, 565 F.2d 166.... 28

Wong Sun v. United States, 371 US.

RAO er ECR PR oeaR a 17, 20, 46

Constitution and statutes:

United States Constitution:

Fourth Amendment ..................-....----- passim

Fifth Amendment. ................---..2.....--- 27

Sixth Amendment. ...........................-.. 27

BE Re Cia, OUD Lnosutcnncccaecscotinetorese 15, 26, 55, 57, 58

D.C. Code § 22-2901 (1978) -..........2.....--- 2

D.C. Code § 22-8202 (1978) ..................-.-- 2

D.C. Code § 31-201 (1978) ....22...22..22.02------ 4

Miscellaneous:

McGowan, Constitutional Interpretation

and Criminal Identification, 12 Wm. &

Mary L. Rev. 235 (1970) -.................. 26, 32, 34

Pitler, The Fruit of The Poisonous Tree,

Revisited and Shepardized, 56 Calif L.

BROW, DTD CRO) ames 23

Ruffin, Out on A Limb of the Poisonous

Tree: The Tainted Witness, 15 U.C.L.A.

Rigs BOO. BR CEI) aarinkccacescesnssLacopesatioress 43

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-777

UNITED STATES OF AMERICA, PETITIONER

Vv.

KEITH CREWS

ON WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the en banc court of appeals (Pet.

App. la-60a) is reported at 389 A.2d 277. The

earlier panel opinion (Pet. App. 63a-87a) is reported

at 369 A.2d 1063.

JURISDICTION

The judgment of the court of appeals (Pet. App.

61a-62a) was entered on June 14, 1978. The time for

(1)

filing a petition for a writ of certiorari was extended

to and including November 11, 1978. The petition for

a writ of certiorari was filed on November 10, 1978,

and was granted on February 21, 1979. The juris-

diction of this Court rests on 28 U.S.C. 1257(3).

QUESTION PRESENTED

Whether the reliable in-court identification testi-

mony by the victim of a crime, who immediately re-

ported 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 ard 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 (Pet. App. C; 369 A.2d

1063, 1064), the court considered the case en banc

and reversed, two judges dissenting (Pet. App. A).

1. Before trial, respondent moved to suppress all

evidence showing his identification by the three vic-

tims as the robber. The evidence adduced at the

suppression hearing established that on the morning

of January 3, 1974, while Carol 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, which she gave him (A. 9-10). When the assail-

ant demanded more money, Owens told him she did

not have any more. The assailant then forced entry

into the stall and made sexual advances. 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 (A. 10-11, 16-17).

The restrooms were well lit by fluorescent lighting,

and Owens testified that she got a good look at her

assailant for at least two and a half to three minutes

(A. 10-11, 16-17). Owens described her assailant as

dark complexioned, 16-18 years old, with smooth skin,

and about 5’5” to 5’8” tall (A. 11). Twenty minutes

after the robbery, she reported it to the police and

gave them a description of the assailant (A. 11, 30-

31).*

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 the description given by Owens of the

January 3 robber (A. 31; Pet. App. 3a).

Around noon on January 9, 1974, two Park Police

officers saw respondent near the concession stand at

the Washington Monument. The officers approached

1 Qn the day of the robbery, police showed Owens about 100

photographs of possible suspects, but she did not identify

any as her assailant (A. 11-12).

him, asked him his name and age, and told him that

he matched the description of a suspect sought in con-

nection with robberies at the Monument. Respondent

gave the officers his name and said his age was 16.

When asked why he was not in school, respondent re-

plied that “he walked away from school.” 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 Monument area on the day of the January 3rd

robbery. 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 Janu-

ary 3.’ The officers then approached respondent again

and detained him. Detective Ore, who was investi-

gating the robberies, was immediately summoned. He

tried to take several Polaroid photographs of respond-

ent at the scene, but it’ was raining and the photo-

graphs did not develop properly. Accordingly, the

officers took respondent to Park Police headquarters,

where they photographed him, telephoned his school,

and released him within an hour * (A. 32-33, 37, 40).

Respondent was never formally arrested nor charged

with an offense, and he never voiced objection to hav-

ing his photograph taken (A. 38, 41-42).

* At trial the tour guide positively identified respondent as

the person he saw near the scene of the January 3 robbery of

Owens (A. 57).

3 The officers took the photographs both pursuant to routine

police procedures relating to possible truants (A. 32-33, 39-

40; see D.C. Code § 31-201 (1973) ) and to show them to the

robbery victims (A. 37).

On January 10, 1974, the officers showed a photo-

graphic array, including a photograph of respondent,

to Owens. She selected respondent’s photograph as

that of the person who had robbed her (A. 12-13).

On January 13, Lawson also selected respondent’s

photograph from an array (A. 25). Respondent was

again taken into custody, and on January 16 a Su-

perior Court judge ordered him to appear at a lineup

(Pet. App. 5a). At the lineup, Owens and Lawson

positively identified respondent as their assailant (A.

13, 25). Denner did not review any photographic

array or attend the lineup (A. 29).

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 prob-

able cause.‘ Although it did not find the photographic

or lineup identification to have been suggestive, it

ruled that both were fruits of the illegal arrest and

that evidence of those identifications could not be

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 en-

tirely disagree with the court of appeals’ characterization of

petitioner’s detention at Park Police headquarters as a “fla-

grant” violation of his Fourth Amendment rights (Pet. App.

44a), we do not here challenge the ruling of the courts below

that the nature and extent of the detention exceeded permissi-

ble bounds. See Dunaway v. New York, No. 78-5066 (June 5,

1979). See also discussion infra, pages 50-53.

introduced at trial (A. 44). Finding, however, that

the victims’ identification of respondent at trial would

be based on observations made at the time of the crime

and would be independent of the photographic and line-

up identifications, the court declined to suppress the

victims’ in-court identifications of respondent (A.

44-45).

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

(A. 52; see generally A. 46-53). Lawson also posi-

tively identified respondent as the person who robbed

her and Denner (A. 65-66). Denner was less sure

of her identification, but selected respondent as the

person in the courtroom most closely resembling her

assailant (A. 60-61). Respondent denied committing

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 (Pet. App. 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 re-

lated to respondent’s arrest, the policies of the ex-

clusionary rule did not require suppression. The

court noted that “[i]n the final analysis, what [re-

spondent] seeks is no less than an immunity from any

prosecution”’—a result that would impose a social

cost outweighing “whatever incremental deterrence

arguably 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 (Pet. App. 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 ulti-

mately to his trial in which the testimony was given

(id. at 20a-21a). Thus the court stated (ibid.) :

The causal chain posited by appellant runs as

follows: the unlawful arrest produced photo-

graphs which were shown to the complaining

witnesses who, as a result, identified appellant;

this resulted in his reapprehension, which yield-

ed a court-ordered lineup identification and,

eventually, in-court identification testimony dur-

ing prosecution of the case. Thus, appellant says,

the courtroom identification testimony was “ac-

tually discovered by” (i.e., made available to the

government through) “a process initiated by the

unlawful act.” United States v. Paroutian, 299

F.2d 486, 489 (2d Cir. 1962).

* * * * *

Appellant Crews clearly demonstrated a causal

connection between the unlawful arrest and the

in-court identification in this case.

The court rejected the government’s argument that

respondent’s identity would inevitably have been dis-

covered through routine investigation, declining to

adopt the inevitable discovery doctrine in its juris-

diction (id. at 28a-29a). Finally, the court rejected

the contention that the victim’s testimony was suf-

ficiently attenuated from the illegality attendant upon

the brief detention on January 9. The court distin-

guished this Court’s decision in United States v. Cec-

colini, 4385 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” and in any

event largely irrelevant (Pet. App. 38a-39a), that

there were no “significant” intervening events (id. at

39a-43a), that the police misconduct here was “fla-

grant” and “purposeful” (7d. at 44a), and that Owens’

free will in testifying did not “represent an attenuat-

ing, intervening force” (id. at 52a n.37).°

5 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,

Judges Nebeker and Harris dissented (Pet. App.

55a-60a). In their view, Owens’ in-court identifica-

tion testimony could not reasonably be viewed as a

fruit of respondent’s detention on January 9, and the

majority’s decision had the consequence of “perma-

nently silenc[ing] the victim of a crime whose ability

to testify was unrelated in any way to the unconsti-

tutional seizure of [respondent]” (id. at 60a), a

result they deemed incompatible with Ceccolini.

SUMMARY OF ARGUMENT

This case concerns the admissibility of reliable and

independent in-court testimony of a robbery victim

identifying her assailant. The court of appeals held

the victim’s testimony to be an inadmissible “fruit”

of an illegal detention of respondent because, during

the course of the detention, police obtained a photo-

graph of respondent that was used to identify

him as the culprit. We advance three grounds for

the conclusion that the court of appeals erred: (1)

because the police knew the identity of the witness

and were aware that she could identify her assailant

prior to and independently of the illegal detention of

respondent, the in-court testimony cannot properly be

119 U.S. 436 (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 (Pet. App. 8a; 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

court was only suppressing evidence and was not dismissing

the indictment (Pet. App. 15a & n.7).

viewed as a suppressible “fruit” of the subsequent

Fourth Amendment violation; (2) even if the in-court

testimony could be viewed as a “fruit,” the principles

of attenuation indicate that it is admissible; and (3)

even if it could otherwise be viewed as a non-attenu-

ated fruit of the illegal detention, the testimony of

the victim of a crime, particularly a crime of violence,

should not be subject to suppression.

The first and most important question posed by

this case is whether evidence lawfully acquired by

investigating officers prior to or independently of a

Fourth Amendment violation should be deemed a

“fruit” of the violation, when the violation simply

enables the police to link the lawfully acquired evi-

dence to a particular suspect. Although the evidence in

this case happens to be witness testimony, the “fruits”

analysis employed by the court of appeals, if valid,

could also lead to the suppression of physical evi-

dence, such as fingerprints or items of clothing left at

the scene of the crime.

A. This Court has never had occasion to confront

directly a “fruits” question of the kind presented in

this case. The Court’s previous decisions respecting

the “fruits” of illegal conduct all involved the more

conventional situation in which the challenged evi-

dence has been acquired by the police as a result of a

chain of events proceeding from an initial unlawful!

act. In such cases the court has inquired whether

the challenged evidence was itself illegally obtained

by the police, and the doctrine of attenuation has been

the means by which the Court has sought to determine

whether the nexus between the illegality and the

evidence is sufficiently great to justify suppression.

We submit that evidence lawfully acquired should

simply not be subject to the Fourth Amendment ex-

clusionary rule. The evidence in this case—Owens’

ability to identify respondent as her assailant—be-

came available to the police when she reported the

robbery; it was not the product of a Fourth Amend-

ment violation. The court of appeals, however, sup-

pressed that lawfully acquired evidence because the

detention of respondent was an important step in the

chain of events that enabled the witness to identify

respondent at the trial.

We acknowledge that there is a sense in which it

may be said that Owens’ testimony was a “fruit” of

respondent’s detention. As a matter of common sense,

however, it seems strained to say that the victim’s

ability to identify her assailant was illegally acquired

by the police despite the fact that they already “pos-

sessed” this evidence when respondent was detained.

B. To the extent this Court’s prior decisions shed

light on this question, they support our position. In

Frisbie v. Collins, 342 U.S. 519 (1952), the Court

held that a prosecution could properly proceed despite

the fact that the defendant’s presence in court was

the result of an illegal seizure of his person. While

it is true that Frisbie concerned the trial court’s ju-

risdiction and not the admissibility of evidence, we

think it unlikely that the Court that allowed the trial

to go forward would have countenanced exclusion of

all the prosecution’s evidence on the ground that the

illegal seizure of the defendant was indispensable to

the successful use of that evidence. In both Frisbie

and the instant case, the fact that evidence otherwise

lawfully acquired gained prosecutive utility by virtue

of an illegal arrest does not require its exclusion.

In Davis v. Mississippi, 394 U.S. 721 (1969), the

prosecution introduced fingerprints that were ob-

tained during an unlawful arrest of the petitioner,

matching them to those found at the scene of a rape.

The Court held that this set of fingerprints (analog-

ous to Owens’ pretrial photo identification of respond-

ent) should have been suppressed. On the court of

appeals’ theory in this case, however, all the evidence

identifying Davis as the rapist, including the victim’s

testimony, would similarly have been subject to sup-

pression. Far from suggesting any such result, the

Court’s opinion indicates the contrary. See 394 U.S.

at 725 n.4; see also id. at 730 (Stewart, J., dissent-

ing). :

C. Our position is further bolstered by considera-

tions of exclusionary rule policy. The incremental

deterrence benefits that might derive from adoption

of the court of appeals’ analysis are outweighed by

its potential costs to society and to the administration

of justice.

We do not deny that, to the extent supression of

evidence influences police behavior, the risk of the

“retroactive taint” of evidence already possessed will

provide some increment of deterrence against unlaw-

ful detentions to aid in suspect identification. We

suggest, however, that this increrhent will not be sub-

stantial in light of the impact of conventional appli-

cations of the exclusionary rule. Thus, in the absence

of attenuating circumstances, an illegal detention will

result in suppression of statements made by the sus-

pect, evidence found on his person, and pretrial

identifications produced during or by the detention.

In-court identification testimony could also be ex-

cluded if it is found not to have a basis independent

of the pretrial identification. Moreover, in-court

identifications, made months after the crime, usually

have far less persuasive force than prompt pretrial

identifications. In light of these costs, the marginal

deterrence benefits of retroactive taint are unlikely to

be substantial.

The costs of the court of appeals’ theory of “retro-

active taint” are substantial, however, particularly

in contrast to its limited and speculative benefits. In

the instant case, the theory results in silencing the

victim of a crime. But the theory cannot effectively

be limited to a narrow category of cases. Rather,

whenever an unlawful arrest or detention has led to

identification of the defendant as the perpetrator of a

crime, the taint would bar the use of all lawfully

acquired evidence that gained utility to the prosecution

because it was linked to the defendant as a result of

the detention. The consequence would be to immunize il-

legally arrested defendants from effective prosecution

in a large class of cases, even though the prosecution

would not be offering any evidence that was itself

unlawfully obtained.

Furthermore, because the Fourth Amendment vio-

lation would lack the normal causal relationship to

the challenged evidence, it would prove difficult to

utilize attenuation analysis to limit the impact of the

“retroactive taint” principle. It is hard to give mean-

ingful application to considerations of temporal proxi-

mity, intervening cause, and witness free will when

the acquisition of the challenged evidence is lawful

and precedes the Fourth Amendment violation. The

attempt to apply attenuation analysis on a case-by-

case basis would, we believe, require an expenditure

of judicial energies far in excess of any sensible and

meaningful results that could be obtained.

Even if this Court accepts the principle of retro-

active taint and approaches this case by application

of attenuation analysis, Owens’ testimony should not

be subject to suppression. While the factors of tem-

poral proximity and intervening cause usually can

have little meaningful application when the evidence

was acquired prior to the violation, we note the pres-

ence in this case of one significant intervening event

that was indispensable to the admission of Owens’

testimony and not predictable at the time respondent

was improperly detained: the ruling by the trial

court that Owens’ in-court testimony was reliable and

independent of the suppressed pretrial identifications.

As for the factor of witness free will, it is difficult

to imagine a case in which that factor is more clearly

present. Moreover, we submit that the relatively brief

detention of respondent for the limited purpose of

taking his photograph was not a flagrant violation of

his Fourth Amendment rights. Finally, we note that

the court of appeals appeared to give no weight to this

Court’s injunction in United States v. Ceccolini, 435

U.S. 268, 277-280 (1978), that exclusion of live wit-

ness testimony should be ordered reluctantly and

should be limited to cases involving the most direct

nexus between the violation and the acquisition of the

testimony. See also 18 U.S.C. 3502.

Ill

Finally, even if Owens’ testimony could properly be

regarded as an unattenuated fruit of respondent’s

detention, the suppression of the willing, volunteered,

and reliable identification testimony of the victim of

a crime is, as the court of appeals stated in Payne v.

United States, 294 F.2d 723 (D.C. Cir. 1961), “not

the right way to control the conduct of the police, or

to advance the administration of justice”? Whatever

considerations may be appropriate for other kinds of

evidence, depriving an individual of an opportunity

to appear at the bar of justice and testify against the

person who injured him threatens to produce a resent-

ment and disrespect for the law considerably greater

than that which may be engendered by exclusion of

other kinds of evidence.

I. THE IDENTIFICATION TESTIMONY OF THE

ROBBERY VICTIM WAS NOT A “FRUIT” OF THE

UNLAWFUL DETENTION OF RESPONDENT

The court of appeals held that the testimony of the

victim, Carol Owens, identifying respondent as the

person who robbed her on January 3, 1974, should

have been suppressed because (1) that testimony was

the evidentiary “fruit,” for exclusionary rule pur-

poses, of respondent’s illegal detention on January 9,

and (2) the use of that testimony was not sufficiently

attenuated from the initial illegality to dissipate the

taint. Both conclusions are necessary to the court’s

holding, and we argue in Point II, infra, that even

assuming the correctness of the first, the court was

wrong in concluding that the taint, if any, was not

attenuated. We argue in this Point that the court’s

principal error is in its first conclusion, 7.e., that

Owens’ testimony was the fruit of respondent’s de-

tention for exclusionary rule purposes. _

In the conventional setting in which this Court

and the lower federal courts have explicated the

“fruit of the poisonous tree” doctrine, there has deen

an illegal search or arrest by law enforcement officers

initiating a chain of events leading to the acquisition

of the challenged piece of evidence. In such cases, the

courts are called upon to decide whether there is a

sufficiently direct nexus between the illegality and

the acquisition of the evidence to justify application

of the exclusionary rule. Because of the multitude of

factual configurations in which this type of question

arises, it has proved exceptionally difficult to evolve

“bright-line” tests by which the correct result may be

ascertained. The principal governing standard is

attenuation, 2.e., the extent to which the acquisition

of the challenged.evidence is proximate to or remote

from the illegal act and the extent to which its

acquisition is the product of significant intervening

and untainted causes. See Wong Sun v. United

States, 371 U.S. 471 (1963). Consideration may also

be given in certain classes of cases to the nature of

the evidence that is sought to be suppressed (see

United States v. Ceccolini, 435 U.S. 268 (1978) ) and

to the purposefulness or flagrancy of the violation

(see Brown v. Illinois, 422 U.S. 591, 604 (1975) ).

The present case, however, involves an entirely

different kind of relationship between the challenged

evidence—the identification testimony of Owens, the

robbery victim—and the Fourth Amendment viola-

tion. Owens’ knowledge of the appearance of her

assailant and other circumstances of the crime was

known to the police before any illegal act on their

part, and thus, unlike the typical “fruits” case, the

improper detention did not initiate a chain of events

leading to the acquisition of the challenged evidence.

Rather, the detention served the function of giving

prosecutive utility to evidence already possessed by

the police. The basic question, accordingly, is whether

evidence already possessed by the police prior to any

illegal act on their part (or developed by them wholly

independent of any such act) should be viewed as a

potentially suppressible “fruit” solely on the ground

that the illegal act served to link the lawfully obtained

evidence to the individual and give it prosecutive

utility at trial.

It is our basic submission in this case that evidence

lawfully acquired should never be subject to exclusion

when the sole “taint” concerns the manner in which

it was linked to the particular defendant. Under the

view of the court of appeals, on the other hand, any

evidence linking the defendant to the offense is a

potentially suppressible “fruit” of an illegal arrest or

detention precisely because that action enabled the

investigating officers to realize that the defendant is

indeed the culprit.

Which of these positions is sounder is a matter that

cannot be resolved by sheer force of logic or by

semantic analysis of the metaphor “fruit of the poison-

ous tree.” While the challenged evidence in this case

was itself in no way the product of respondent’s deten-

tion—the police already knew of Owens, and her

capacity to identify respondent existed independent

of the detention and the photograph procured during

that detention—it was nevertheless the unlawful de-

tention that led to the use of the evidence against

respondent at his trial. Moreover, because there is

no causal chain leading from the illegality of the

discovery of the evidence, attenuation analysis is

exceedingly difficult to apply.

However intractable the problem may appear as a

matter of abstract logic, we submit that prior deci-

sions of this Court in closely analogous contexts point

to the conclusion that lawfully obtained evidence is

not to be deemed a suppressible product of an unlaw-

ful arrest or detention that gives that evidence prose-

cutive utility. This conclusion is, moreover, substan-

tially reinforced by considerations of exclusionary

rule policy.°

A. The Fruits Theory of the Court of Appeals Has

Never Been Endorsed by This Court and Is Incon-

sistent With the Principles Established in Analogous

Cases.

Almost all of the decisions of this Court in which

evidence has been challenged as the tainted fruit of

official misconduct have involved physical evidence,

information, or testimony about such information

that had been acquired by the police after and as a

result of their misconduct. See, e.g., Silverthorne

Lumber Co. v. United States, 251 U.S. 385 (1920)

(documents discovered in the course of an illegal

6 Our point here relates to cases in which the only nexus

between the challenged evidence and the unlawful conduct is

the linking of lawfully acquired information to the particular

defendant—a nexus that, as noted, is entirely different from

the conventional nexus between evidence and unlawful con-

duct that the courts have considered in applying the exclu-

sionary rule. In our view, therefore, there is a significant dif-

ference between evidence like Owens’ in-court identification

testimony and such evidence as her post-arrest identification

of respondent’s photograph. The relationship between the un-

lawful detention and the latter kind of evidence is an example

of the conventional relationship to which the “fruit of the

poisonous tree” concept has been applied: but for the unlawful

detention, the police would not have obtained the photo identifi-

cation. To such evidence, established principles of attenuation

can be meaningfully applied. See Johnson v. Louisiana, 406

U.S. 356, 365 (1972).

search); Nardone v. United States, 308 U.S. 338

(1939) (evidence obtained after and allegedly as a

result of an illegal wiretap); Wong Sun v. United

States, supra, and Brown v. Illinois, supra (incrimi-

‘nating statements by the defendants made after their

unlawful arrest) ; Davis v. Mississippi, 394 U.S. 721

(1969) (fingerprints taken from the defendant dur-

ing his unlawful detention); United States v. Cec-

colini, 435 U.S. 268 (1978) (testimony of a witness

whose knowledge of criminal activity was learned by

the police after and, in a strictly,causal sense, as a

result of an unlawful search). -

Those and other decisions at least implicitly indi-

cate that the evidentiary products to which the ex-

clusionary rule applies have been generally under-

stood to consist of information that the police have

acquired after and as a result of their unlawful con-

duct. Indeed, in the few cases in which the claim has

been made, the Court has expressly rejected chal-

lenges to the use of lawfully acquired evidence where

the challenge is based on some subsequent misconduct.

We submit that the decision of the court of appeals

in this case cannot be reconciled with the principles

established by those cases.

In Frisbie v. Collins, 342 U.S. 519 (1952), the

defendant Collins had been tried and convicted of

murder by a state court in Michigan. He later con-

tended in a petition for habeas corpus that the con-

viction was invalid because he had been brought to

trial in Michigan only as a result of having been

| kidnapped by Michigan officers in Illinois, in violation

of the Fourth Amendment and the Federal Kidnap-

ping Act. This Court rejected the claim and unani-

mously reaffirmed the principle established in Ker v.

Illinois, 119 U.S. 486 (1886), that

the power of a court to try a person for crime

is not impaired by the fact that Ke had been

brought within the court’s. jurisdiction by reason

of a “forcible abduction.” * * * [The Ker line

of cases] rest on the sound basis that due process

of law is satisfied when one present in court is

convicted of crime after having been fairly ap-

prized of the charges against him and after a

fair trial in accordance with constitutional pro-

cedural safeguards. There is nothing in the

Constitution that requires a court to permit a

guilty person rightfully convicted to escape jus-

tice because he was brought to trial against his

will.

342 U.S. at 522 (footnote omitted). This Court re-

cently reaffirmed that principle in Gerstein v. Pugh,

420 U.S. 103, 119 (1975), and Stone v. Powell, 428

U.S. 465, 485 (1976). .

The principle of Frisbie and Ker is inconsist-

ent with the court of appeals’ holding that Owens’

testimony was a fruit of respondent’s detention

for exclusionary rule purposes. Although the .court

of appeals concluded that Frisbie and Ker were

inapposite because those cases concerned only the jur-

isdiction of a court to try a defendant and not the

suppression of specific evidence (Pet. App. 6a-1l5a),

that distinction overlooks the principle of those cases

and the rationale employed by the court of appeals

itself in concluding that Owens’ testimony was a

tainted fruit. If, as the court of appeals held, evi-

dence lawfully acquired by the police should be sup-

pressed when a later unlawful arrest of the defendant

is what makes that evidence useful and leads to its

presentation at trial, then all of the evidence intro-

duced against Ker or Collins, or any other defendant

brought to trial by means violating their Fourth

Amendment rights, should have been suppressed on

the same principle. In those cases, as here, the value

of that evidence, including any testimony by victims

or eyewitnesses, was realized only by virtue of such

Fourth Amendment violations. (See also pages 37-38,

infra.) Yet it would be implausible to suppose that

this Court in Frisbie and Ker was of the view that such

evidence could not be used at trial, and that it held only

that courts have jurisdiction over prosecutions that

would in fact be impossible because the prosecution’s

evidence would all be inadmissible. Rather, Frisbie

and Ker stand for the general principle that the Con-

stitution does not require the extreme result of pro-

hibiting a prosecution—including the necessary pres-

entation of evidence in court and the matching of that

evidence to the defendant in the courtroom—merely

because in some sense an unlawful arrest was the sine

qua non of the prosecution.’

7It has been suggested that, because Ker and Frisbie were

decided before Mapp v. Ohio, 367 U.S. 643 (1961), applied

the exclusionary rvz'* to the states, those cases would be

Although the Fourth Amendment violation here

was far less egregious, the circumstances are analog-

ous in some respects to Davis v. Mississippi, supra.

In Davis a woman was raped and fingerprints of the

apparent assailant were found. at the scene. Without

probable cause, the police rounded up a large number

of Negro youths, including Davis, and obtained from

Davis a set of fingerprints that matched those found

at the scene of the crime. This Court concluded that

evidentiary use of the fingerprints taken during the

unlawful arrest (analogous to Owens’ photo identifi-

cation of respondent in this case) was prohibited as

a tainted fruit of that arrest. There is no suggestion

in Davis, however, that anything should have been

suppressed other than the set of fingerprints taken

during the arrest, and in dissent Mr. Justice Stewart

made the point, not controverted by the majority, that

other legally obtained fingerprints of the defendant

decided differently today. See Pitler, The Fruit of The Poi-

sonous Tree, Revisited and Shepardized, 56 Calif. L. Rev. 579,

599-601 (1968). See also United States v. Edmons, 432 F.2d

577, 583 (2d Cir. 1970), in which the court suppressed the

identification testimony of victims in part on the ground that

“whether the [Supreme] Court would now adhere to [F'risbie-

Ker] must be regarded as questionable.” As the court of

appeals acknowledged here, that contention has been rejected

by the great majority of the courts of appeals (see Pet. App.

8a-9a, collecting cases) and is plainly untenable in view of this

Court’s recent statements indicating its continuing adher-

ence to the Ker-Frisbie doctrine. See Gerstein v. Pugh, supra,

420 U.S. at 119; Stone v. Powell, 428 U.S. 465, 485 (1976).

could be used at a retrial and matched with those

found at the scene (394 U.S. at 730).°

It is significant that the majority in Davis did not

disagree with the proposition stated by Mr. Justice.

Stewart, but concluded that it was irrelevant to the

exclusionary rule. In the majority’s view, whether

or not the prosecution could easily obtain the same

information by lawful means and match it at trial

with other evidence lawfully obtained (7.e., the finger-

prints found at the scene) was immaterial because

the exclusionary rule nevertheless requires the sup-

pression of evidence actually obtained by unlawful

means. 394 U.S. at 725 n.4.° The Court thus im-

8’ Thus, Mr. Justice Stewart stated (394 U.S. at 730; foot-

note omitted) :

Fingerprints are not “evidence” in the conventional

sense that weapons or stolen goods might be. Like the

color of a man’s eyes, his height, or his very physiognomy,

the tips of his fingers are an inherent and unchanging

characteristic of the man. And physical impressions of

his fingertips can be exactly and endlessly reproduced.

We do not deal here with a confession wrongfully ob-

tained or with property wrongfully seized—so tainted

as to be forever inadmissible as evidence against a de-

fendant. We deal, instead, with “evidence” that can be

identically reproduced and lawfully used at any subse-

quent trial.

® Thus, the Court noted with approval the statement of the

court of appeals in a similar case, Bynwm v. United States,

262 F.2d 465, 468-469 (D.C. Cir. 1958) : “It is entirely irrele-

vant that it may be relatively easy for the government to

prove guilt without using the product of illegal detention.

The important thing is that those administering the criminal

law understand that they must do it that way.” The Court

also noted that “[o]n Bynum’s retrial another set of finger-

prints in no way connected with his unlawful arrest was used,

and he was again convicted.” 394 U.S. at 726 n.4.

plicitly recognized the distinction that we are urging

between evidence acquired after and as a result of an

illegal act—which is a fruit subject to suppression—

and evidence lawfully obtained that merely becomes

linked to the defendant through a later unlawful act

—which is not. 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 testimony 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 culprit. (See als

pages 37-38, infra.) 7

Finally, we believe that United States v. Wade, 388

U.S. 218 (1967), and related cases,® although in-

volving somewhat different considerations, are in-

structive in this context and reflect a view at odds

with the broad theory of tainted fruits adopted by the

court of appeals. Those cases have established that

evidence of a pretrial identification must be sup-

pressed if the procedures employed in securing the

identification were unduly suggestive, or if, subse-

quent to the attachment of a right to counsel, the

- defendant was deprived of assistance of counsel dur-

ing a lineup. Nevertheless, the Court has permitted

the victim or witness to make an in-court identifi-

cation if that testimony is, as here, based upon an

independent recollection untainted by the improper

10 See, e.g., Gilbert v. California, 388 U.S. 263 (1967) ;

Manson V. Brathwaite, 432 U.S. 98 (1977).

pretrial identification procedures. See id. at 239-

241."

We recognize, as the court of appeals noted in dis-

tinguishing the Wade line of cases (Pet. App. 21a),

that this Court was concerned primarily with the un-

reliability of suggestive or uncounselled identifica-

tions, and not with Fourth Amendment violations or

their fruits. It is nevertheless worth noting certain

parallels between those cases and this case. In all

pretrial identification cases (including those involv-

ing uncounselled or unduly suggestive identification

procedures), the ability of the witnesses to identify

the suspect will influence, to a greater or lesser de-

gree, the belief of the police in the suspect’s guilt; in-

deed, it will often be a significant factor in the decision

whether or not to prosecute. To the extent there can

be said to be some causal nexus between a pretrial

identification and the decision to prosecute, the wit-

11 Indeed Congress has passed a statute mandating this re-

sult for trials in federal courts. 18 U.S.C. 3502 provides in

pertinent part: “The testimony of a witness that he saw the

accused commit or participate in the commission of the crime

for which the accused is being tried shall be admissible in

evidence * * *.” To the extent that such testimony refers to

independent in-court identifications, the statute simply states

the Wade rule and reflects the legislature’s judgment that the

suppression of such testimony would impose an unwarranted

and unduly severe cost on society. To the extent the statute

may be read to refer to identification testimony that is itself

tainted by an impermissible pretrial identification, evidence of

which is inadmissible under Wade, its validity has been ques-

tioned. See McGowan, Constitutional Interpretation and

Criminal identification, 12 Wm. & Mary L. Rev. 235, 249

(1970) ; United States v. Edmons, supra, 432 F.2d at 586.

ness’s in-court testimony would, under the court of

appeals’ view, be a fruit of the identification; and if

the pretrial identification was improper, the witness’s

in-court testimony should, under that view, be sup-

pressed as a tainted fruit. Yet this Court has never

suggested that independent and reliable in-court

identification testimony should be suppressed as the

fruit of a pretrial identification that violated the

defendant’s Fifth or Sixth Amendment rights, even

though the prosecutive utility of the testimony may

have been in a real sense enhanced by the prior il-

legality, and even though suppression might provide

further deterrence against engaging in such pro-

cedures.”

12 While this Court has not addressed the precise question,

the great preponderance of the decisions of the courts of ap-

peals on the matter have rejected the view of the court below

that the independent identification testimony of witnesses or

victims known to the police at the outset may be suppressed

as the fruit of a pretrial identification resulting from an un-

lawful arrest. See 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. de-

nied, 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) ; Payne v. United States, 294

F.2d 723 (D.C. Cir. 1961); see also Baker v. State, 39 Md.

App. 133, 383 A.2d 698 (1978) ; Commonwealth v. Garvin, 448

Pa. 258, 264-266, 293 A.2d 33, 37 (1972). We are aware of only

three published opinions that have employed a theory similar

to that of the court below to suppress the testimony of such

witnesses or victims. United States v. Barragan-Martinez,

504 F.2d 1155 (9th Cir. 1974) ; United States v. Edmons, 432

While we have argued that none of this Court’s

decisions supports the decision below and that several

of them are inconsistent with it in principle, we

nevertheless recognize that the Court has not ad-

dressed the precise issue presented in this case and

that no court has articulated a definition of fruits or

general method of analysis that would be readily

applicable to that issue. We therefore turn to a con-

sideration of the general purposes and policies of the

exclusionary rule, which we believe support recog-

nition of the limiting principle we have suggested and

F.2d 577 (2d Cir. 1970); cf. United States v. Humphries,

No. 78-1622 (9th Cir. Jan. 19, 1979), petition for cert. filed,

No. 78-1803. In Edmons, supra, the decision was based in part

on the court’s doubts about the continuing vitality of the Ker-

Frisbie doctrine and also on the ground that the arrests were

not made in “good faith” (482 F.2d at 583-584). A later Sec-

ond Circuit opinion, however, permitted the in-court identifi-

cation testimony of witnesses on the ground that the unlawful

arrest leading to the pretrial identifications was made in

“good faith.” United States ex rel. Pella v. Reid, 527 F.2d

380, 383 (2d Cir. 1975).

Similarly, the courts of appeals have declined to apply a

theory of retroactive taint to other evidence in the govern-

ment’s possession prior to an unlawful act that helps identify

the individual as the culprit. For example, it has been con-

sistently held that preexisting records in possession of the

Immigration and Naturalization Service are not the fru’ of

a subsequent unlawful search or arrest that iventifies a per-

son as an illegal alien, and are admissible in his deportation

proceeding. Hoonsilapa v. INS, 575 F.2d 735, 738 (9th Cir.

1978) ; Ho Chong Tsao v. INS, 538 F.2d 667, 6@£ ‘oth Cir.

1976), cert. denied, 430 U.S. 906 (1977); United States v.

Martinez, 512 F.2d 830, 832 (5th Cir. 1975) ; Huerta-Cabrera

v. INS, 466 F.2d 759, 761-762 (7th Cir. 1972); cf. Wong

Chung Che v. INS, 565 F.2d 166, 168 (1st Cir. 1977).

rejection of the court of appeals’ expansive view of

fruits.

B. The General Purposes and Policies of the Exclu-

sionary Rule Do Not Support the Court of Appeals’

Theory of Fruits.

The principal, if not the exclusive purpose of the

exclusionary rule is to deter constitutional violations

by law enforcement officers by removing the incen-

tive to commit those violations. See, e.g., Stone v.

Powell, 428 U.S. 465, 486 (1976); United States v.

Janis, 428 U.S. 488, 446 (1976). The fruit-of-the-

poisonous-tree doctrine is a logical corollary of the

rule in view of that purpose, since it is assumed that

suppression only of evidence directly obtained by

a violation, but no other fruits, would fail to provide

an adequate deterrent.

At the same time, the Court had recognized in

many cases that application of the exclusionary rule

imposes significant costs on society. These costs in-

clude, of course, the failure of a certain number of

prosecutions of guilty defendants because of sup-

pression of evidence; but, perhaps more significantly,

as the Court observed in Stone v. Powell, supra, 428

U.S. at 491, any widespread perception of undeserved

windfalls to culpable defendants threatens to bring

the law itself into disrespect and to undermine public

confidence in the administration of justice. Accord-

ingly, the Court has consistently applied the exclu-

sionary rule on the basis of the general precept that,

“Ta]s with any remedial device, the application of

the rule has been restricted to those areas where its

remedial objectives are thought most efficaciously

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

348 (1974).

In accordance with that precept, this Court has

recognized docirines that limit the application of the

rule, such as the requirement of “standing’”’ and the

theory of attenuation of taint. Such doctrines are

largely based on the conclusion that in certain cir-

cumstances the incremental deterrent benefits that

would result from suppression, although perhaps not

negligible, do not outweigh the substantial social costs

of suppression. See, e.g., United States v. Ceccolini,

supra, 485 U.S. at 275-276; United States v. Janis,

supra, 428 U.S. at 453-454; Michigan v. Tucker, 417

U.S. 433, 448 (1974); United States v. Calandra,

supra, 414 U.S. at 349, 351; Alderman v. United

States, 394 U.S. 165, 174-175 (1969). The same con-

siderations of deterrence and social cost, as well as

considerations of effective judicial administration,

support the conclusion that suppression should be re-.

stricted to evidence uncovered by or as a product of

the Fourth Amendment violation.

1. The Court of Appeals’ Theory Offers Limited

Additional Deterrence Benefits.

Under our analysis, the remedy of suppression

would not be available unless the eviderice in question

came to light as the result of an illegal search or

seizure or a chain of events proceeding causally from

such a violation. As we discuss more fully below, the

court of appeals’ far more sweeping “fruits” concept

would often bar virtually all of the prosecution’s evi-

dence, however acquired, when the defendant’s iden-

tity has been learned by virtue of an illegal arrest or

detention. We cannot deny that the considerably

more drastic impact of the court of appeals’ analysis

would, at least in theory, give the police some incre-

mental incentive scrupulously to observe Fourth

Amendment requirements in arresting or stopping

persons suspected of possible involvement in criminal

activity." Nevertheless, we submit that the marginal

deterrence that can reasonably be anticipated to flow

from the broad exclusionary principle of the court

of appeals is insufficient to justify its potential costs.”

Thus, accepting our more restrictive definition of

the “fruits” concept, there remain significant dis-

incentives to unlawful arrests of suspects in the hopes

of matching them to witnesses or other evidence al-

18 As this Court has noted on several occasions, whether or

how the exclusionary rule and its various ramifications has

actually affected police behavior has not yet been empirically

demonstrated. See, e.g., United States v. Janis, supra, 428

U.S. at 449-453. The assumption of its deterrent value must

be taken somewhat on faith. '

14 Although the Wade-Gilbert prohibition against conducting

lineups in the absence of defense counsel is motivated in sub-

stantial part by concerns about the reliability of such identifi-

cation procedures, the exclusionary rule fashioned in those

cases was also designed to deter improper police conduct. See

Manson V. Brathwaite, supra, 432 U.S. at 112; Stovall v. Den-

no, 388 U.S. 293, 297 (1967); Gilbert v. California, supra,

388 U.S. at 273. While the deterrent effect of the rule would

undoubtedly have been enhanced by exclusion of independ-

ently-based in-court identification testimony of witnesses who

have made identifications during such lineups, the Court has

nevertheless ruled that such testimony is admissible.

ready known. First, as happened in this case, if the

arrest is unlawful, pretrial identifications produced

by the arrest are subject to suppression. This Court

has noted that the probative value to a jury of pre-

trial identifications, made while the witness’s memory

is still fresh, is usually greater than an in-court iden-

tification made in a trial held months or years after

the crime.” See Gilbert v. California, supra, 388 U.S.

at 273-274 and n.3. See also United States v. Hig-

gans, 507 F.2d 808, 811 (7th Cir. 1974); Clemons

v. United States, 408 F.2d 1230, 1243 (D.C. Cir.

1968).** Second, any statement by the arrested indi-

vidual, or evidence on his person or fruits thereof,

would be subject to suppression. See, e.g., Brown v.

Illinois, supra. Finally, any unconstitutional arrest

or detention subjects the officers to possible civil lia-

bility under, inter alia, Bivens v. Six Unknown Fed.

Narcotics Agents, 403 U.S. 388 (1971). See, eg.,

Dellums v. Powell, 566 }'.2d 167 (D.C. Cir. 1977),

cert. denied, 438 U.S. 916 (1978).

15 The suppression of evidence regarding the pretrial identi-

fications of respondent by the two other robbery victims may

well have played a significant role in respondent’s acquittal

on those charges.

16 Indeed, one jurist has expressed the view that “juries

tend to be massively unimpressed by identification evidence

which consists solely of identification of the defendant by the

witness from the witness stand. * * * Trial judges of my

acquaintance report that juries not infrequently acquit when

they are given nothing but an in-court identification; and in

some instances individual jurors have complained to the judge

that, in not being told about pretrial identification, they were

being treated like children.” McGowan, supra, 12 Wm. & Mary

L. Rev. at 241.

Thus, even if evidence already known to the police

is not subject to retroactive taint as the result of an

illegal arrest, substantial disincentives to such mis-

conduct remain. Furthermore, it assumes an im-

probable degree of sophistication to suppose that

police officers would act unlawfully on the basis of cal-

culations regarding the inapplicability of the court of

appeals’ doctrine of retroactive taint. This case does

not disprove the point; indeed, it illustrates it. The

record shows that the officers took respondent to the

police station at least in part for the purpose of

obtaining a photograph they could show to the rob-

bery victims (A. 33, 37). But it does not show

they did so in purposeful, or even reckless, contra-

vention of what they believed to be their lawful au-

thority. To the contrary, the record indicates that

they believed their actions to be lawful, and that

belief, though perhaps not correct and not a defense

to any Fourth Amendment violation,’ was certainly

not unreasonable. See note 28, infra. Thus, in this

particular case the court of appeals theory of retro-

active taint, even if understood by the officers to have

been the law, would not have affected their conduct."

17 See Scott v. United States, 436 U.S. 128, 135-137 (1978) ;

Terry V. Ohio, 392 U.S. 1, 21-22 (1968).

‘8 For that reason, as we argue below, the particular facts

of this case militate against suppression under established

attenuation principles, which recognize good faith and the

non-flagrancy of the violation to be important factors in de-

termining whether any taint was attenuated. The point we

are making here, however, is that apart from the particular

facts of this case, a rule requiring the retroactive taint of

Even if the officers had thought that their arrest

of respondent would probably be held unlawful, how-

ever, and had engaged in a sophisticated calculation

of the likely costs and benefits of that action em-

ploying our analysis, it seems highly unlikely that

they would have made the arrest rather than pursue

their investigation by other means. They would know

that if they made the arrest they might well lose

the benefit of any statement made by the suspect

(cf. Brown v. Illinois, supra), as well as any pre-

trial identification or any evidence found on his per-

son, and might also incur substantial civil liability.

While their action might result in an in-court iden-

tification by the victim many months later, that is

hardly a prospect they could rely on with confidence

in view of the well-known vagaries of witnesses and

the impeachability of identification testimony.” If

some unconstitutional act were the only way of realiz-

ing that benefit, there might be sufficient incentive

to overcome the significant risks. But in this case,

and in most cases of this kind, other means were

available by which the officers could have obtained

respondent’s photograph, or otherwise had Owens

identify him, that would have been lawful and rela-

tively easy.

lawfully acquired evidence is not likely to have a significant

incremental deterrent benefit even in cases where the police

themselves believe that a particular course of conduct would

be found unlawful.

19 See Manson V. Brathwaite, supra, 432 U.S. at 118, n.14;

McGowan, supra, 12 Wm. & Mary L. Rev. at 241.

(sy cop pepe vec einen ei ia pneu wr. A I NA a a a a mk kak A IR aT Ra a a

Our point here is not that the police would inevi-

tably have refrained from detaining respondent.?° It

is rather that in cases where the police themselves

believe that their intended course of action would be

unlawful, a rule requiring the suppression of the in-

dependent identification testimony of witnesses (or

*°In view of the purposes of the exclusionary rule, it is

obviously not material that evidence unlawfully acquired

could have or might have been obtained by lawful means. But

in cases where it is shown that the challenged evidence would

inevitably have been discovered, many courts have held that

the exclusionary rule does not require suppression. See Brew-

er V. Williams, 430 U.S. 387, 406 n.12 (1977), in which the

Court indicated that on retrial the corpus delicti “might well

be admissible on the theory that the body would have been

discovered in any event.” See also United States v. Cole, 463

F.2d 163, 171-174 (2d Cir.), cert. denied, 409 U.S. 942 (1972) ;

United States v. Falley, 489 F.2d 83 (2d Cir. 1973) ; United

States v. Seohnlein, 423 F.2d 1051 (4th Cir.), cert. denied, 399

U.S. 913 (1970) ; Government of Virgin Islands v. Gereau, 502

F.2d 914, 927-928 (3d Cir. 1974), cert. denied, 420 U.S. 909

(1975) ; Killough v. United States, 336 F.2d 929 (D.C. Cir.

1964) ; Wayne Vv. United States, 318 F.2d 205 (D.C. Cir.), cert.

denied, 375 U.S. 860 (1963).

The courts of appeals have applied the “inevitable discov-

ery” doctrine cautiously and have required a strong showing

by the government that, in view of the course of investigation,

considered in light of normal investigative practices, the evi-

dence would inevitably have been disclosed. The court of ap-

peals rejected our argument that such a showine had been

made here, on the grounds both that it would not adopt the

inevitable discovery doctrine in its jurisdiction and that the

record did not in any event establish the necessary showing

(Pet. App. 28a-35a). In light of the latter conclusion, we do

not rely on the inevitable discovery doctrine itself. We do con-

tend, however, that the availability of alternative means of

obtaining a victim’s identification in this case and generally

are relevant considerations to the proper application of the

exclusionary rule.

other evidence lawfully acquired) in addition to the

ordinary fruits of that action is not likely to provide

a generally significant increment of deterrence. Cf.

United States v. Ceccolini, supra, 435 U.S. at 276.

2, The Costs of Exclusion Under the Theory of

Retroactive Taint Are Excessive.

While the incremental deterrence benefits to be

derived from adoption of the court of appeals’ theory

of retroactive taint are limited and speculative, its

potential costs to the sound administration of justice

and to law enforcement threaten to be substantial—

and, what is especially significant here, to be dispro-

portionate to the benefits in a way that is manifestly

not the case with the conventional fruits doctrine

heretofore applied by this Court. Its consequence in

this case is to prevent the victim of a crime from

21In Ceccolini, the Court made a similar point when it

noted that a rule requiring the suppression of the testimony

of a witness who was discovered as the result of an unlawful

search but who was willing to testify was likely to have less

of a deterrent effect than the ordinary suppression of tangible

evidence. The Court said (435 U.S. at 276; footnote omitted) :

“The greater the willingness of the witness to freely testify,

the greater the likelihood that he or she will be discovered by

legal means and, concomitantly, the smaller the incentive to

conduct an illegal search to discover the witness.” Although

this case is different because the witness was known to the

police before any illegal act (and for that reason, we submit,

supports a general rule of admissibility that the Court de-

clined to fashion in Ceccolini (see 435 U.S. at 274-275) ), the

point made by the Court is even more applicable in this con-

text. When the only object of the police action is to obtain

the physivguomy of a suspect (or a photographic reproduc-

tion of it), the likelihood that that could or would be obtained

by legal means is extremely high, and the incentive to obtain

it by unlawful means is correspondingly low.

i le A ID lt

testifying against her assailant—a result that most

courts, understandably, have found to be unaccept-

able. See note 12, supra. But, as we have noted, the

theory of retroactive taint, if accepted, would hove

implications far beyond the results of this case.

First, that theory cannot be limited to identifica-

tion testimony, but logically includes any information

lawfully acquired by the police that becomes linked

to the defendant or acquires prosecutorial utility as

a result of some subsequent misconduct. Suppose,

for example, that in the course of a burglary the

burglar inadvertently drops his wallet containing a

photograph of himself (or leaves a fingerprint or

any other potentially identifying evidence), which the

police promptly discover in investigating the bur-

glary. Months later the burglar is unlawfully de-

tained (either in connection with the burglary in-

vestigation or some unrelated matter), and in the

course of the detention the police notice that he

matches the photograph found at the scene, and for

that reason they arrest him and bring him to trial.

Under the court of appeals’ theory, the photograph

(and testimony about how and where it was discov-

ered) could never be admitted at trial because its very

presentation in evidence and its prosecutorial utility

were “made available to the government through

“‘a process initiated by [an] unlawful act’” (Pet.

App. 20a).

Although the court of appeals did not expressly

say so, that is the necessary consequence of its ra-

tionale, because Owens’ knowledge of the appearance

of her assailant is analytically no different from the

photograph in the example. In both cases the police

lawfully acquire information that they know to be

of potentially identifying value, but they do not know

the identity of the person whom it matches; and in7~)

both cases it is the unlawful detention that enables

the police to match that information to the defendant.

Moreover, the evidence that is tainted under the

court of appeals’ theory of fruits would seem to be

permanently tainted. At least it is difficult to see any

rational or workable principle by which Owens’

knowledge of the robbery and of the appearance of

the robber could, after respondent was detained and

she identified his photograph, ever be lawfully

acquired or utilized. Indeed, the court of appeals

in effect acknowledged the permanency of its theory

of taint in rejecting the government’s argument that

any taint was attenuated by the lapse of time between

the arrest and the trial testimony and by other events

during that period (Pet. App. 38a-39a) :

[W]hile the initial arrest and the taking of the

photograph did occur on January 9, 1974, the

illegality in this case did not end on that date.

The eventual re-arrest and confinement of Mr.

Crews and his ultimate appearance at trial were

all based on tainted facts (the government dem-

onstrated no independent basis for re-arrest).

Thus, the entire course of events was accom-

plished in violation of the Fourth Amendment.'*!

22 Apparently seeking to mitigate the conclusion that it was

in fact permanently suppressing the defendant, the court sug-

gested that Owens’ testimony might have been admissible if,

In short, the logical implication of the court of ap-

peals’ theory is permanently to bar all evidence

acquired by the police whenever some misconduct

helps to connect it to the defendant and thus leads to

its presentation in court.

It is true that in some cases applying ordinary

exclusionary rule principles, the suppression of an

item of evidence may as a practical matter preclude

successful prosecution. But at least the exclusion of

evidence discovered or acquired by virtue of an illegal

search or seizure has a limited scope that can be ac-

cepted as in some sense proportional to the conduct

sought to be deterred; it only reaches forward from

the illegal act, and its impact in appropriate cases

after the January 9 arrest and subsequent photo identifica-

tion, there had been “an identification of the accused by the

same witness after a lawful arrest on another charge, or an

identification by the same witness to a different team of detec-

tives who had included a lawfully obtained picture of the

accused in a standard photographic array” (Pet. App. 24a)

This statement seems to suggest that, after the events of Jan-

uary 9, the police could have untainted Owens’ knowledge of

the crime by following respondent around until he committed

some infraction for which he could be arrested, or by having

“a different team of detectives” find (or perhaps take) some

other photograph of respondent and show it to Owens in a

standard array. If, as would almost invariably be the case

such further police activities were motivated by their belief,

based on the tainted identification of the photograph that

they had the right man, it is hard to believe that the court of

appeals would have found the taint removed. If it would

there would seem to be little point in suppressing her testi-

mony in this case; if the suppression of her testimony is to

have — tae is difficult to see any rational grounds for

ever admitting that testimo i i

natives ny, or any other evidence tainted

can be ameliorated by principles of attenuation and

independent source, principles that do not readily ap-

ply to a theory of retroactive taint.” Under the ~

court of appeals’ theory, in contrast, police officers can

develop substantial information in a case, perhaps

through a long and scrupulous investigation, only to

bave it all tainted through some later or unrelated

event that helps connect it to the culprit. In such

cases, it seems to us unreasonable to expect the police

(or the public) to perceive the suppression of such

evidence as proportional to the infraction.”

23 See pages 17, supra; 48-49, infra.

24 A que concern for restraint and proportionality has in-

fluenced the judicial response to cases—analogous yet ana-

lytically distinct from retroactive taint cases such as the

present case—in which an illegal search or seizure gives rise

to police suspicion and prompts further investigation. When

such investigation has been lawfully conducted, and the sole

taint relates to the manner in which suspicion was initially

aroused, courts have generally been reluctant to suppress the

evidence produced by such investigations. As Judge Learned

Hand stated in the remand of Nardone v. United States, 308

U.S. 388 (1939), the government should not be required to

show that an initial illegality “has not itself spurred the au-

thorities to press an investigation which they might otherwise

have dropped. We do not believe that the Supreme Court

meant to involve the prosecution of crime in such a tenebrous

and uncertain inquiry, or to make such a fetich [sic] of the

statute as so extreme an application of it would demand.”

United States v. Nardone, 127 F.2d 521, 523 (2d Cir.), cert.

denied, 316 U.S. 698 (1942). See also United States v. Fried-

land, 441 F.2d 855, 860-861 (2d Cir.), cert. denied, 404 U.S.

867 (1971) ; United States v. Cella, 568 F.2d 1266, 1286 (9th

Cir. 1977) ; United States v. Sand, 541 F.2d 1370, 1376 (9th

Cir. 1976), cert. denied, 429 U.S. 1103 (1977).

More recently, however, the Ninth Circuit has ordered the

suppression of evidence on the basis of the proposition re-

sion tes techn mite Dae tess as

ee ee

Furthermore, the impact of the court of appeals’

theory of retroactive taint would not be confined to a

relatively small class of unusual cases. It is standard

and ordinarily appropriate police procedure to take

photographs of arrested suspects to exhibit to wit-

nesses or to retain in police files for possible future

use, to place arrested suspects in lineups for identifi-

cation by victims or eyewitnesses, and to conduct

prompt post-crime showups of suspects arrested or

detained shortly after an offense. If properly con-

ducted, lineups, showups, and photo displays not only

serve an investigative and evidence-gathering func-

tion, but often serve the interest of a detained sus-

pect, who may be quickly released if the witnesses

exonerated him.” Since there is always the possi-

bility that an unlawful arrest or detention has pre-

ceded the use of the identification procedure, the court

of appeals’ theory of retroactive taint would exact.a

heavy price for error preceding the use of these

routine and appropriate police procedures.

Finally, as we discuss more fully in Point III, infra,

the theory of retroactive taint imposes particularly

jected by Judge Hand and its own prior decisions, and we

have filed a petition for a writ of certiorari to review that

question. United States v. Humphries, supra, petition for

cert. filed, No. 78-1803. In Humphries, the court also sup-

pressed the testimony of a witness on a theory that is the

same in principle as that relied on by the court below, and

our petition also presents that question for review.

*5 See, e.g., Allen v. Estelle, 568 F.2d 1108, 1112-1113 (5th

Cir. 1978) ; United States v. Coades, 549 F.2d 1303, 1305 (9th

Cir. 1977) ; Russell v. United States, 408 F.2d 1280 (D.C.

Cir.), cert. denied, 395 U.S. 928 (1969).

onerous costs when its effect is, as here, to prevent

the victim of a crime of violence from testifying

against his or her assailant. To the citizen who has

sought the protection of the law and vainly invoked

the machinery of justice, considerations of the Fourth

Amendment and its enforcement are likely to be

eclipsed by more fundamental questions about the

government’s fulfillment of its part of the social con-

tract. See Stone v. Powell, supra, 428 U.S. at 491.

3. Considerations of Judicial Administration Coun-

sel Rejection of the Principle of Retroactive

Taint.

We have argued above that the cost to society and

law enforcement of adopting the court of appeals’

theory of retroactive taint, would outweigh any in-

cremental deterrent effect that it might have. It

would be possible to attempt to limit those costs by

seeking to apply, on a case-by-case basis, principles

of attenuation developed in other contexts. Under

such an approach, the propriety of suppression would

depend upon whether, in the particular case, the vio-

lation was more or less “flagrant”; whether it was

“exploited”; whether time, the witness’s “free will”

or other “intervening” circumstances were deemed

sufficient to break the causal chain; or in general

whether suppression would be sufficiently likely to

deter police officers faced with the same situation in

the future from violating the law to outweigh the

adverse consequences. In Point II, infra, we argue

that application of those principles to this case (awk-

ward though we believe the process to be) estab-

ne ee ee

lishes that suppression of Owens’ in-court identifi-

cation testimony was not appropriate.

In our view, however, significant considerations of

judicial administration weigh against such a case-by-

case approach and in favor of recognition of a gen-

eral principle that evidence obtained by or known to

the police independently of an unlawful search or

seizure is not a suppressible product of that search or

seizure simply because it is thereby linked to the

particular defendant. We advert here to the judicial

energies that will be expended seeking to resolve the

factual and legal complexities of an issue that by its

nature will not readily submit to easily applicable

standards of decision. As one commentator has ob-

served, soundly in our view, the formulation of rules

governing the suppression of evidence should reflect

“a concern for the limits to which judicial machinery

can sustain the time-consuming demands and stresses

of solving complex fact problems which are collateral

to ultimate questions of fact.” Ruffin, Out on a Limb

of the Poisonous Tree: The Tainted Witness, 15

U.C.L.A. L. Rev. 32, 78-79 (1967).

The application~of, attenuation factors is difficult

enough in the ordinary context of evidence acquired

subsequent to and indiréétly as a product of an il-

legal search or arrest; the complexities of attempting

to identify and weigh the factors in a context to

which the attenuation principle itself does not readily

apply is not worth the burdens of the effort. How

can one meaningfully consider, for example, the

length of time between the Fourth Amendment vio-

lation and the procurement of the challenged evidence

when the latter precedes the former? Similarly, how

can one ask whether independent, untainted factors

have intervened sufficient to attenuate the causal

chain between the violation and the evidence when

there really is no causal path, either direct or at-

tenuated, between the two? Furthermore, how can

one meaningfully apply the factor of the witness’s

free will when the testimonial capability of the wit-

ness was already known to the police at the time of

the violation?

Thus, while we believe, as we next discuss, that

the decision below could be reversed on the basis of

conventional attenuation analysis, such a course

would leave litigants and courts to struggle in future

eases with difficult and largely irrelevant (to the

policies of the exclusionary rule) efforts to analyze

causal chains, free will, flagrancy of violation, and so

forth.

In similar contexts under the Fourth Amendment

this Court has rejected a case-by-case approach and

has adopted general principles precluding suppres-

sion without regard to the flagrancy of the particular

violation, the subjective purposes of the police, or

other particular circumstances of the case. See, ¢€.g.,

Alderman v. United States, 394 U.S. 165 (1969)

(use of evidence seized in violation of rights of per-

sons other than the defendant); United States v.

Janis, supra (use in federal civil cases of evidence

unlawfully seized by state officers) ; United States v.

Calandra, supra (use of unlawfully seized evidence in

grand jury proceedings); Oregon v. Hass, 420 U.S.

714 (1975) (use of improperly obtained evidence for

impeachment purposes); Frisbie v. Collins, supra

(prosecution of unlawfully seized defendant). Those

decisions are based in large part on the conclusion

that a rule allowing the possibility of suppression in

each context would, as a general matter, impose a cost

far in excess of its incremental deterrent benefit, and

implicitly on the conclusion that sound judicial ad-

ministration does not warrant or require a particu-

larized determination of the propriety and utility of

suppression in each individual case. In our view, the

Same considerations of deterrence, social cost, and

sound judicial administration warrant recognition of

the principle that the exclusionary rule does not apply

to cases where the challenged evidence was known to

the police before the occurrence of some unlawful act

that served only to link the evidence to a particular

individual.

Il. EVEN IF OWENS’ IN-COURT IDENTIF

ICATION

WERE PROPERLY DEEMED A “FRUIT” OF RE-

SPONDENT’S DETENTION, IT SHOULD NOT

HAVE BEEN SUPPRESSED

We have argued above that Owens’ in-court identi-

fication is not a “fruit” of respondent’s unlawful

detention for exclusionary rule purposes, and that

principles of attenuation developed by this Court in

considering the relationship between a Fourth Amend-

ment violation and subsequently acquired evidence are

not readily applicable to previously obtained informa-

tion. If the Court disagrees with that submission,

however, and concludes that Owens’ testimony can be

considered a “fruit” of respondent’s detention for

exclusionary rule purposes, established principles of

attenuation (as best they can be applied), support its

ion. ;

geo ER relevant to determining whether

a taint has been attenuated have been set forth most

comprehensively in Wong Sun v. United States, supra,

Brewn v. Illinois, supra, and, with specific reference

to live witness testimony, United States v. Ceccolini,

"ta Ailes Sun, which dealt with incriminating state-

ments made by the defendants after their unlawful

arrests, the Sourt stated the general principle (371

U.S. at 487-488; citations omitted) :

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 made has been come at by

exploitation of that illegality or instead by

means sufficiently distinguishable to be purged

of the primary taint.”

In Brown v. Illinois, which also dealt with incrimi-

nating statements made after an unlawful arrest,

the Court reaffirmed the principle of Wong Sun and

refined the analysis by identifying a number of fac-

tors relevant to determining whether verbal evidence

hme Rs See —"

is sufficiently attenuated to purge the primary taint

(422 U.S. at 603-604; footnote omitted) :

No single fact is dispositive. * * * The Miranda

warnings are an important factor * * *. The

temporal proximity of the arrest and the con-

fession, the presence of intervening circum-

stances * * *, and particularly, the purpose and

flagrancy of the official misconduct are all rele-

vant.

In Ceccolini, the Court upheld the relevance of the

Brown v. Illinois factors in determining the admis-

sibility of the trial testimony of a witness whose

identity and knowledge of the crime was discovered

by the police as a result of an unlawful search. But

in addition the Court stressed that a particularly rele-

vant factor in the context of live-witness testimony is

the free will of the witness in testifying (435 U.S.

at 276-277). And it also emphasized that in that

context, the “enormous cost engendered” by perma-

nently disabling a witness from testifying about rele-

vant matters warrants “the conclusion that 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.” 435 U.S. at 277, 280.

In sum, application of conventional attenuation

analysis calls for evaluation of four factors—tem-

poral proximity between the violation and the acqui-

sition of the challenged evidence; the presence or |

absence of intervening events contributing along with

the illegal search or seizure to its acquisition; the

character of the violation in terms of its purpose and

flagrancy; and the free will of the witness in the

case of testimonial “fruits.” In the case of live wit-

ness testimony, these factors are to be weighed in a

fashion reflecting reluctance to suppress such evi-

dence. We now consider these factors, in ascending

order of importance to the proper disposition of this

case.

1. Temporal proximity. The court of appeals char-

acterized this as “the least influential element of at-

tenuation analysis” (Pet. App. 39a), and, at least

in the ‘present context, we agreé. In the conventional

attenuation case, the initial illegality launches a chain

of events that, with varying immediacy and direct-

ness from case to case, leads to discovery of the

challenged evidence. The time span between viola-

tion and discovery of evidence will often correlate

strongly with the foreseeability to the police that

their misconduct would produce the evidence, and is

thus material to the attenuation analysis. But where

the evidence is not a product of the search, being

already in the possession of the police, the temporal

factor has no meaningful role to play.”

26 Since the “fruit” of respondent’s detention was Owens’

in-court testimony, it *may be said that there was a delay

of 314 months between the violation and the benefit.

Whether that time is long or short for attenuation purposes

is difficult to say, but we do not rely upon it in any event,

since we doubt it would play a significant role in influencing

police behavior, which was here motivated primarily by the

desire to obtain the suppressed pretrial identification.

antl tel te ein ged Liit

2. Intervening events. As with temporal proxim-

ity, the absence of a meaningful cause-effect relation-

ship here between the illegality and a subsequent dis-

covery of evidence diminishes the utility of this fac-

tor in the attenuation analysis.

There is, however, one intervening factor, not spe-

cifically addressed by the court of appeals, that we

think significant in supporting a finding of attentua-

tion: the determination by the trial court that Owens’

in-court testimony was reliable and independently

based, and therefore not subject to suppression as

a fruit of the tainted pretrial identifications. To the

extent the police illegally arrest or deinen in

an effort to obtain both pretrial identifications and

eventual in-court testimony, they can have no assur-

ance whatsoever that their actions will not result in

losing both. Whether the in-court testimony will be

available thus depends upon the outcome of an un-

predictable subsequent event, the judicial determina-

tion of its independent reliability. Thus, this factor

supports a finding of attenuation in the present case.

3. Free will of the witness. The court of appeals

did not examine this consideration, although Cecco-

lini dictates that it be considered. Owens’ willingness

to testify regarding the circumstances of the crime

and to identify her assailant is beyond dispute, and

this factor thus weighs in favor of a finding of

attenuation.”

** The weight to be accorded this factor—which will always

be present when the issue is suppression of the testimony of a

victim—is debatable. When, as in Ceccolini, there is a conven-

4. The character of the Fourth Amendment viola-

tion. The attenuation factor that is least distorted

by the absence of a conventional cause-effect relation-

ship between the police misconduct and the challenged

evidence concerns the character of the violation, in

terms of its purpose and its flagrancy. In largt part

that is because this factor is pertinent not so much

to the effort to identify the strength of the nexus

between the violation and the evidence as to more

general considerations of exclusionary rule policy. To

the extent that a violation is neither purposeful nor

flagrant, suppression of evidence on account of the

violation is less likely to be viewed by society as legiti-

mate and proportional to the wrong, and is also less

likely to exert a beneficial influence upon future

police behavior.

Although we have not contended that respondent’s

detention was based upon information amounting to

probable cause or that it was sufficiently brief to have

been warranted on less than probable cause under the

Terry v. Ohio line of cases, it exceeded the line of

permissible action, if at all, only marginally.”

tional cause and effect relationship between the violation and

the discovery of a witness, the factor is significant in part

because the substantial likelihood that such witnesses will

come forward in any event diminishes police incentives to em-

ploy improper means to discover them (see 435 U.S. at 276).

When, as here, the police already know the witness’s testi-

monial capability, it is more difficult to know how to weigh the

factor of free will in the analysis.

28 Had the detaining officers in this case read some of the

recent decisions of the District of Columbia Court of Appeals,

they might have been doubly surprised to learn that their

— nl

eee beeen aceens kent

bad eth Seat te Mitta Mabe

First, the information known to the police before

they took respondent to the police station and on

which their suspicions were based was substantial.

Three victims of robberies at the same location and

closely spaced in time had given the police a rela-

tively detailed description of their assailant as a dark

complexioned, smooth-skinned youth of about 16-18

years of age and of about 5’5” to 5’8” in height

(A. 11, 31, 65-66). Three days after the second set

of robberies, police officers saw a person fitting that

‘description near the same location, asked him for his

name and address, and were informed that “he [had]

walked away from school” (A. 32-33). They did not

detain him further at that time, but sought additional

information from a tour guide, who tentatively iden-

tified respondent as the person he had seen “stand-

ing around” on January 3, the day of the Owens

robbery (ibid.) The officers then approached re-

spondent again and sought, unsuccessfully, to take

detention of respondent violated the Fourth Amendment.

That court has held, soundly we believe, that it is reasonable

and within the scope of Terry to detain a person stopped on

reasonable suspicion—and if necessary to transport him to

the scene of the crime—for the purpose of determining

whether eyewitnesses can identify him. See Franklin v.

United States, 382 A, 2d 20, 23 (D.C. Ct. App. 1979) ; Cooper

Vv. United States, 368 A. 2d 554 (D.C. Ct. App. 1977) ; see also

United States v. Wylie, 569 F. 2d 62, 70-71 (D.C. Cir. 1977 oi

It is debatable whether the detention here was materially

different. Even though the detention involved transporting

respondent to the police station, as in Brown v. Illinois, and

Dunaway v. New York, it nevertheless differed materially

from both of those cases both in the degree of intrusion and

in the reasonableness of the basis for the police action (see

pages 51-55, infra).

his photograph at the scene; only then did they

decide to take him to Park Police headquarters, where

they photographed him, telephoned his school, and

released him in less than an hour. Furthermore, the

officers did not formally. arrest respondent or charge

him with any offense (A. 38), they did not question

him about the robberies (Tr. 70-71), and respondent

never objected to having his photograph taken (A. 41-

42). In short, the reasons for the detention were

substantial, the intrusion on respondent’s constitu-

tionally protected interests was relatively limited, and

‘nothing in the circumstances of the case supports an

inference that the officers were acting in willful dis-

regard of what they understood to be their lawful

authority.”

The court of appeals did not disagree with what

we have said about the circumstances of respondent’s

detention. Rather, it found conclusive in the re-

spondent’s favor, in considering this attenuation ele-

ment, the fact that a specific purpose of respondent’s

2° Moreover, in addition to the information supporting the

officers’ suspicions of respondent, there was also a reasonable

basis for their belief that the detention was authorized by re-

spondent’s statements indicating that he might have been a

truant. While respondent disputed that the officers had rea-

sonable ground to believe that he was a truant, and the officers

admitted that their reason for taking him to Park Poice

headquarters was at least in part in connection with their

investigation of the robberies (A. 37), nevertheless, at a mini-

mum, the fact that respondent admitted that he had simply

walked away from school is relevant in considering the rea-

sonableness (or conversely, the flagrancy) of the officers’

actions.

wel ee

detention was to obtain his photograph for exhibition

to the robbery victims. While we do not doubt that

the presence of an investigative motive is a relevant

consideration weighing against the prosecution in the

attenuation analysis, we believe that the court of

appeals erred in making it the sole criterion and in

overlooking the equally important and distinct con-

sideration of the flagrancy of the violation. Since

most Fourth Amendment violations are prompted by

an investigative purpose (Ceccolini, which involved

a search apparently motivated by nothing more than

idle curiosity, is most unusual), a consideration only

of purpose will have the effect of eliminating this

factor from the attenuation analysis in nearly all

cases.*° |

% Brown V. Illinois, supra, involved a violati

fendant’s rights that was both purposeful npg Scnthaan

in the hope of obtaining a confession) and flagrant (i.e., an

extended seizure of the defendant’s person, accompanied by

other improper conduct, and justified by little more than

hunch). If the Court had accepted the State’s contention that

Miranda warnings automatically attenuate any taint from an

illegal arrest, its decision would have amounted to an open

invitation to police to conduct arrests for interrogation wholl

without regard to the existence of probable cause. In Disc.

away V. New York, No. 78-5066 (June 5, 1979), while the con-

duct of the police was less offensive in certain respects than

in Brown, the scope of the seizure of the defendant’s person

was similar in magnitude; indeed, the Court described the

circumstances of the case as “virtually a replica of the situa-

tion in Brown” (slip op. 17). Where, as in both of these cases

the police conduct was both purposeful and flagrant, this

factor obvi : , ‘

merely ously must be weighed against a finding of attenua-

We do not believe that this Court intends to ex-

clude from the attenuation analysis a meaningful

consideration of the flagrancy of the violation, nor

should it be excluded. To do so would risk severing

the attenuation inquiry from the fundamental ob-

jectives of the exclusionary rule, which is not de-

signed to deter all investigative efforts, but only

those that infringe a citizen’s constitutional rights.

Where the conduct of the police is undertaken in

good faith, without a recognition that it runs afoul

of the Fourth Amendment, and in the face of sub-

stantial potential costs from other impacts of the

exclusionary rule (see pages 31-36, supra)," the re-

lentless exclusion of all “derivative” evidence will ac-

complish little of value to the administration of crimi-

nal justice.

While it is of course true that good faith is not

an automatic bar to the application of the exclusion-

ary rule, the degree of flagrancy, or offensiveness, of

a particular violation as an objective matter is a rea-

sonable and relevant indicator of whether the officers

were acting in willful disregard of what they under-

stood to be their lawful authority, see Michigan v.

Tucker, supra, 417 U.S. at 447, and is a considera-

tion that deserves substantial weight in ruling upon

questions of attenuation of taint, see Brown v. Illi-

81 In this respect the present case is sharply distinct from

Brown and Dunaway, where admission of the confessions

would have left police with little significant disincentive

against taking suspects into extended custody for interroga-

tion purposes.

nois, supra, 433 U.S. at 609-612 (Powell, J., con-

curring).

Finally, the court of appeals failed to heed this

Court’s admonition in Ceccolini that courts, in ruling

on challenges to the testimony of live witnesses, should

consider particularly the social costs of excluding that

type of evidence, and that “the exclusionary rule

should be invoked with much greater reluctance”

(435 U.S. at 280) in the case of such testimony.”

The Court’s judgment on this point reflects the even

more unequivocal judgment of Congress. See 18

U.S.C. 3502 (discussed at pages 57-58, infra). Those

costs are particularly extreme when what is to be

suppressed is the testimony of a victim of a crime, who

has reported it to the police for the very purpose of

seeking justice and the protection of the law.

In sum, even if Owens’ in-court testimony could

be properly analyzed as a potential fru’ of the poi-

sonous tree, established principles of attenuation war-

ranted its admission into evidence.

Ill. THE TESTIMONY OF THE VICTIM OF A CRIME

SHOULD NOT BE SUBJECT TO SUPPRESSION

UNDER THE FOURTH AMENDMENT EXCLU-

SIONARY RULE

Even if Owens’ testimony is properly characterized

as a non-attenuated fruit of respondent’s detention,

it should not have been suppressed. Rather, the Court

82 Whether other courts of appeals have fully heeded that

admonition since Ceccolini is open to question. See United

States v. Scios, 590 F.2d 956 (D.C. Cir. 1978) ; United States

v. Cruz, 587 F.2d 277 (5th Cir. 1978); United States v.

Humphries, supra.

should recognize a general exception to the exclusion-

ary rule for the testimony of victims of a crime that

is reliable and independently based on their recollec-

tion of the crime. The cost to society and the adverse

impact on the administration of justice are too high

to warrant the deterrent benefits, if any, of suppres-

sion of this kind of evidence.

Our position reflects the prevailing view of the

courts of appeals on this question (see note 12, supra)

and is aptly expressed in the opinion of District of

Columbia Circuit in Payne v. United States, supra,

294 F.2d at 727:

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 re-

quest of the police that he come to police head-

quarters and had there identified [the defendant]

as the robber. Such a result is unthinkable.

The suppression of the testimony of the com-

plaining witness is not the right way to control

the conduct of the police, or to advance the ad-

ministration of justice. The rights of the accused

in a case like the present one are adequately pro-

tected when the complaining witness takes the

stand in open court, for examination and cross-

examination. Cf. Frisbie v. Collins, 1952, 342

U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541.

In our brief in Ceccolini, which did not involve the

testimony of a victim, we argued for a similar ex-

ception applicable to live-witness testimony generally.

2 = Teil

The Court, although it held the testimony to be ad-

missible for many of the reasons that we urged in

support of a general rule, declined to adopt such a

rule and concluded that a case-by-case approach is

appropriate, at least. with respect to the kind of

testimony involved in that case. 435 U.S. at 274-275.

Granting the appropriateness of a case-by-case in-

quiry in considering the admissibility of the testimony

of ordinary witnesses, a different rule is nevertheless

desirable in the special case of the victim of a crime,

particularly a crime of violence. Depriving such an

individual of the opportunity to appear at the bar of

justice and testify against the person who injured

him threatens to produce a resentment and disrespect

for the law far in excess of and different in kind

from that which may be engendered in the case of

more disinterested witnesses.

As this Court said in Ceccolini of live-witness

testimony in general (435 U.S. at 277), “[r]Jules

which disqualify knowledgeable witnesses from testi-

fying at trial are, in the words of Professor McCor-

mick, ‘serious obstructions to the ascertainment of

truth’; accordingly, ‘[f]or a century the course of

legal evolution has been in the direction of sweeping

away these obstructions.’ C. McCormick, Law of

Evidence § 71 (1954).”

We note in this connection that Congress has un-

equivocally declared that testimony such as that of

Owens in the present case is not to be excluded. 18

U.S.C. 3502 states:

The testimony of a witness that he saw the

accused commit or participate in the commission

of the crime for which the accused is being tried

shall be admissible in evidence in a criminal

prosecution in any trial court ordained and estab-

lished under article III of the Constitution of the

United States.

While this statute technically does not apply to the

Superior Court of the District of Columbia, which is

not an Article III court, and while we are not here

contending that the statute overrides constitutionally

based requirements of exclusion, Congress’s view of

public policy and of the requirements of the Consti-

tution is significant and entitled to considerable def-

erence from the courts. United States v. Watson, 423

U.S. 411, 416 (1976). Indeed, the legislative policy

so clearly reflected in Section 3502 should carry par-

ticular weight when the question before the Court

concerns the proper scope of the exclusionary rule,

which involves a necessarily predictive assessment of

incremental deterrent effects and adverse social and

judicial costs of alternative formulations of the rule.

Those policies have special force in the case of a rule

proposing to deny persons who are themselves the

victims of crime access to the machinery of justice.

This Court has never done so, and should not do so

now.

CONCLUSION

The judgment of the court of appeals should be

reversed.

WADE H. McCRrEE, Jr.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

RICHARD A. ALLEN \

4 Assistant to the Solicitor General

FRANK J. MARINE

Attorney

JUNE 1979

a eae ee Toe

: W ov. &. Government PRINTING OFFICE; 1979 29511! 6

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