Leon and Fruit of the Poisonous Tree
The police conduct a warrantless search of a house, and come across a marijuana-growing operation. On that basis, they obtain a warrant, raid the house, and seize the evidence of drug manufacturing and trafficking. The trial court determines that the original, warrantless search of the house was improper. Does that mean that the evidence seized in the search conducted with a warrant gets tossed?
You'd certainly think so. After all, under the "fruit of the poisonous tree" doctrine, an unconstitutional search or seizure taints whatever follows: there are any number of cases holding that information obtained from an illegal search can't be used to obtain a warrant to conduct a second, legal search.
But last year, in US v. McClain, the 6th Circuit decided that the illegality of the first search didn't require suppression of the evidence obtained in the second. The court noted that the case offered an opportunity to analyze the fruit of the poisonous tree doctrine in light of the "good faith" exception to the warrant requirement under US v. Leon, the 1984 US Supreme Court case which established that the exclusionary rule would not be applied to a search conducted with an invalid warrant as long as the police have a good faith belief that the warrant is valid. The court decided that the initial warrantless search was "close enough to the line of validity" to allow upholding the warrant search under the Leon exception. (In fact, one of the judges concurred on the grounds that he believed the initial search was valid, so there wasn't even an issue of taint.)
The 6th Circuit denied an en banc hearing this past summer, and last month the Supreme Court denied certiorari.
The court's decision is understandable, especially if one agrees with Leon's theory that the societal costs of excluding evidence for improper police conduct is not worth it where the police have no reason to believe that their conduct is improper. But the decision comes perilously close to establishing a good faith exception for a warrantless search, as this language indicates:
Because the officers who sought and executed the search warrants acted with good faith, and because the facts surrounding the initial warrantless search were close enough to the line of validity to make the executing officers' belief in the validity of the search warrants objectively reasonable, we conclude that despite the initial Fourth Amendment violation, the Leon exception bars application of the exclusionary rule in this case.
Obviously, under the court's analysis, if the first search had been completely bogus, the second set of officers wouldn't have had an objectively reasonable belief in the validity of the warrants. In short, the officers' "good faith" depended in large part upon their belief that the first search was valid, not the warrant.
This is bound to come up again, and it's not too difficult to imagine courts using McClain to uphold warrant searches based on borderline stop and frisks or similar situations. One of the problems with the exclusionary rule is that its costs are apparent: you know you're tossing out evidence which could result in the defendant's conviction. For that reason, there's a natural tendency by judges to avoid that result by upholding the search in marginal cases; this is one area where the defendant almost never gets the benefit of the doubt.
A couple of things to keep in mind. First, although Ohio courts pay deference to 6th Circuit decisions on Federal issues, those decisions aren't binding on the Ohio courts. McClain notes that the 9th and 11th Circuits have held that an illegal search taints a later warrant search, despite Leon, and it's perfectly proper to cite those cases. Secondly, as I pointed out back in July, the Ohio Supreme Court's decision in State v. Farris establishes that the Ohio constitution can serve as an independent basis for rights, and may extend more protection than the US constitution does in certain circumstances. It's worth a second look. But that means you have to assert it; if you haven't changed your form suppression motions to allege Ohio constitutional violations, it's a good time to do that.