Illegal Searches and Your Criminal Case

Sometimes, the prosecution and courts can still use illegally seized evidence.

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When law enforcement members disregard the Fourth Amendment and conduct an unreasonable search, often the evidence they procure will be ruled inadmissible in court. But not always. (To learn about an important exception, see Invalid Police Searches and the Good Faith Exception.)

Using Illegally Seized Evidence

Items or evidence seized illegally may still be used in these situations:

  • Sentencing. A judge may consider improperly seized evidence at sentencing.
  • Civil cases and deportation hearings. Likewise, evidence improperly seized may be introduced.
  • Impeachment. In some instances, a prosecutor may use illegally seized evidence to “impeach” a witness (to attack the witness’ credibility).

Example: Flo is on trial for possessing illegal drugs. During a pretrial hearing, the trial judge ruled that the police had illegally seized a gun from Flo’s bedroom, and that the prosecutor could not admit the gun into evidence. While testifying, Flo states, “I’ve never owned a weapon of any kind.” This testimony allows the prosecutor to use the illegally seized gun to attack the credibility of Flo’s testimony. Even though the search wasn’t legal, the prosecutor may show Flo the illegally seized gun and ask her a questions such as, “This gun belonged to you, correct?” “Your testimony that you’ve never owned a weapon was incorrect, wasn’t it?”

Using Illegally Seized Evidence to Find Other Evidence

Officers generally cannot use illegally obtained evidence as a means to find more evidence, because of a legal rule colorfully known as the “fruit of the poisonous tree doctrine.” This rule makes inadmissible any evidence that police officers seize or any information that police officers obtain as a direct result of an improper search or seizure. (The tree is the evidence that the police illegally seize in the first place; the fruit is the evidence that results from the illegally seized evidence. Both tree and fruit are inadmissible at trial.) The fruit of the poisonous tree doctrine removes what would otherwise be a big incentive for police officers to conduct illegal searches.

Example: Officer Wiley arrests Eddie for selling phony telephone cards. A judge ruled that Officer Wiley had illegally entered Eddie’s home and improperly seized a map showing the location where Eddie hid the phone cards. Officer Wiley then used the map to find and seize the phone cards. At trial, neither the map (the poisonous tree) nor the phone cards (the fruit) are admissible in evidence.

 This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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