Question: If your search and seizure of a suspect has been determined invalid, is the evidence you found still able to be used for a conviction?
Quick Answer: No, if the evidence is “fruit of the poisonous tree.”
State of Ohio v. Thompson, Second Appellate District, Montgomery County, Nov. 1, 2013
State of Ohio v. Sarno, Second Appellate District, Montgomery County, Nov. 15, 2013
Facts in Thompson: Sgt. John Riegel had been driving his marked cruiser when he saw a car turn too fast for the road conditions, pass the cruiser, and turn into an alley without signaling. The car was being driven by Peter Thompson. Riegel activated his lights and followed Thompson into an apartment building parking lot. This particular lot had been the subject of previous complaints of drug activity. Riegel parked directly behind Thompson and walked rapidly toward him. When Riegel caught up to him, he asked if Thompson lived in the building and if he had a driver’s license. Thompson only had a temporary permit. Riegel ran Thompson’s information and discovered the temporary permit had been suspended. Riegel performed a pat-down, cuffed Thompson, and placed him inside the cruiser, noting that during the pat-down, Thompson was shaking so violently he was concerned for his safety. Riegel then stood outside Thompson’s car, looked through the window, and noticed a single marijuana cigarette in the center console. During inventory of the car after a tow, marijuana, heroin, and cocaine were found in the center console.
Facts in Sarno: Trooper Kyle Pohlabel was on patrol looking for impaired drivers. He saw a van pass going the opposite direction with an estimated speed of 50 mph in a 40 mph zone. Pohlabel pulled out the radar and clocked the van at 49 mph and 47 mph. He made a U-turn and pulled the van over for speeding. Andrew Sarno was the driver of the van. When Pohlabel approached the van, he asked Sarno to get out for a field sobriety test. When Sarno got out of the van, Pohlabel noted the smell of raw marijuana. Pohlabel performed the horizontal gaze nystagmus test, and Sarno showed no indicia of impairment. Pohlabel had Sarno sit in the cruiser while he searched the van. Upon search, he found a plastic bag of cocaine under an ashtray and a marijuana pipe containing residue. Sarno moved to suppress the cocaine, arguing Pohlabel had no reason to ask Sarno to get out of the van as he lacked a sufficient basis for administering the field sobriety tests.
Importance: Evidence only discovered from knowledge law enforcement gain through an illegal search or seizure is referred to “fruit of the poisonous tree” and must be suppressed. In other words, the only reason you know about the evidence is because you have done something wrong in your search or seizure protocol. In the above cases, the criminals argued that officers had conducted an illegal search of each car. In both cases, the “fruit” was the drugs seized. The risk of creating “poison fruit” of essential evidence can be detrimental to your case. It may be suppressed, and a criminal could go free.
Keep in Mind: Where a search is done properly or based on a separate reason other than basis of the improper search, the “fruit” will not be poisoned. For example, in
Thompson, the appellate court found the search was done based on plain view, not incident to the arrest, which was later deemed improper. Because of this separate source of probable cause, the “fruit” was not poisoned. And in
Sarno, the court determined as long as the vehicle was pulled over on a lawful stop, an officer may ask anyone to exit a vehicle, for any reason, during a traffic stop. Since nothing was improper with the seizure in the first place, the “fruit” in that case was not poisoned.
More on Search of Vehicles
You can run, but you can’t hide. You are checking registrations of parked cars at a rest stop and notice a car parked backwards. There is no front license plate, so you start to get out of your cruiser to walk around the car. The driver then turns the car on, pulls forward, and moves to another parking space at the other end of the parking lot. You get back in your cruiser and follow the car. The car then backs up and heads for the freeway entrance. You are able to see the plate, run it, and find the car is not registered. You activate your lights and pull the car over. Did you have an articulable suspicion to pull the car over? The court in
Rice says yes. Under the totality of the circumstances and based on years of experience, the trooper had enough reasonable suspicion of criminal activity to stop David Rice. Specifically, the fact that the driver parked the car the wrong way in the parking space drove the wrong way in the parking lot, seemingly attempted to avoid the officer by moving to a different parking spot, and the car was not registered provided enough reasonable suspicion of criminal activity.
State of Ohio v. Rice, Second Appellate District, Miami County, Nov. 15, 2013
Do sniffs prolong traffic stops? While on patrol with your canine, you see a car speeding and cross center on multiple occasions. You find it has expired tags. You pull the car over, approach, and note an open beer in the back seat. You do not, however, detect an odor of alcohol or observe any suspicious behavior of the driver. The driver admits he was driving erratically and says it was because he was on the phone having a heated fight with his girlfriend. Due to a significant drug problem in your county, you have your canine partner perform a sniff. The dog alerts, and you find 90 hydrocodone pills and two bags of heroin. You then write the traffic ticket. Did the sniff inappropriately extend the traffic stop? The court in
Brown says no. It determined the dog sniff did not unconstitutionally prolong the stop. Based on the testimony, only five minutes had elapsed from the time of the stop to the walk-around, and Glenn Brown had not yet been issued a citation to conclude the traffic stop.
State of Ohio v. Brown, Sixth Appellate District, Huron County, Nov. 8, 2013
Is my information stale? Based on a confidential source and a pattern of drug activity, you get a warrant to place a GPS on a suspect’s car because the suspect will be traveling to Chicago in the next 30 days. The warrant allows for the GPS to remain on the car for that 30-day period; however, the suspect does not leave the city. You learn from the confidential source that the suspect was unable to leave the county due to pending civil charges, but those were cleared and he will be leaving in the next few weeks. As a result, you ask that the warrant be extended, but add no additional information to the affidavit. Has the information gone “stale”? The court in
Winningham says no. It determined the information had not gone stale because the informant had given police the reason why Lawrence Winningham had not gone to Chicago. The informant also provided a new timeline and told police about a secret compartment in the car. As such, this was new information to establish probable cause for the second warrant.
State of Ohio v. Winningham, First Appellate District, Hamilton County, Nov. 6, 2013