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Appellate Court cases over many years interpreting the 4th Amendment’s prohibition against unreasonable searches and seizures have come up with the doctrine of the “fruit of the poisonous tree.” Under this principal, evidence obtained due to an illegal search is not admissible in a criminal trial against the person illegally searched. Whether circumstances “attenuate” or “dissipate the taint” of the improper search and seizure was explored in a recent unreported opinion from Maryland’s Court of Special Appeals in its opinion in Terrence Edwards v. State of Maryland.
The opinion indicates that following a series of taxicab robberies, police in Baltimore used a device to search for the cell phone that called the taxis, but they did not get a warrant to do so. That search led them to an apartment where they found Edwards, who was taken in for questioning, photographed and released. One of the robbery victims identified his picture from a photo array as the robber, whereupon Edwards was arrested and photographed again when he was booked. Two days later, that photo was shown to a second victim, who again picked him out as the robber.
At the trial for the second robbery, the trial judge rejected a defense motion to exclude the identification from this second photo array, and a jury convicted Edwards of robbery. The appellate Court noted that determining whether the “poison” from an illegal search has “become so strained and diluted that is it no longer lethal,” one argument the State can make is attenuation of the taint of the search. The Court’s determination of that issue is based on three factors: 1) the temporal relationship between the illegal search and the evidence in question, 2) any intervening circumstances, and 3) the purpose and flagrancy of the challenged police conduct.
Here, the appellate court agreed with the trial judge that the photo identification in this case was sufficiently attenuated from the original search for the cell phone so that the evidence was properly admitted. It noted that although time is the least important factor, it was two days after Edwards original detention and release before this photo identification was made. The argument that “but for” the original search the police never would have found Edwards was rejected. More importantly, the Court found that the intervening circumstance of use of a booking photo in a second, independent photo array was held to break the causal chain to the original search.
The Court also found that the police misconduct was also not so flagrant as to make the photo identification inadmissible.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.