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Attenuation of Taint – Arrest in Home, Payton Violation

State v. David J. Roberson, 2005 WI App 195, affirmed on other grounds2006 WI 80
For Roberson: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding: “(E)vidence acquired outside of the home after an in-home arrest in violation of Payton is not a product of the illegal governmental activity, if officers had probable cause to arrest developed apart from the illegal entry,” ¶23; therefore, police identification of defendant, developed by interaction and observation prior to and apart from their illegal entry of his home is not suppressible:

¶16      Under New York v. Harris, 495 U.S. 14, 19, 110 S. Ct. 1640 (1990), the remedy for a warrantless arrest in violation of Payton is suppression of any evidence that “bear[s] a sufficiently close relationship to the underlying illegality.” Id. ….

¶17      Thus, Harris established the following per se rule: “[W]here the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton.” Harris, 495 U.S. at 21. LaFave’s Search and Seizure, 4th Ed. § 11.4(4), citing Bryant v. United States, 599 A.2d 1107 (D.C. 1991), adds the following common-sense clarification: “Actually, this [rule] should be read as meaning probable cause developed apart from the illegal entry.” (Emphasis added.)

¶19      We agree that when, as in Bryant, the defendant’s location in the home at the time of the illegal arrest provides the legal basis for an arrest, officers must develop an evidentiary basis to arrest apart from the illegal entry for evidence acquired outside of the home to be admissible. To determine whether officers had probable cause to arrest the suspect, the evidentiary significance of the suspect’s presence in the home must be subtracted from the accumulated evidence supporting an arrest. The question then is whether the remaining evidence, developed apart from and untainted by the illegal entry, adds up to probable cause.

¶21      … Unlike in Bryant, the undisputed facts here show that officers had a sufficient evidentiary basis to arrest Roberson developed apart from the evidence of his location in the home. … Detective Wagner’s extended observation of Roberson and Terrell’s up-close contact with him during the drug buy were enough to develop probable cause necessary for an arrest apart from Roberson’s location in the home.

The court first granted relief but then withdrew that opinion by order dated 10/21/04. That withdrawn opinion relied on People v. Gethers, 86 N.Y.2d 159, 654 N.E.2d 102 (1995) for the idea “that an in-court identification by an officer cannot be ‘purged from the primary taint’ of the illegal arrest if that officer also participated in the ‘buy and bust’ operation that led to the arrest of the defendant.” Though the 1st Roberson opinion has been swept aside by the withdrawal order, there is nothing to say that Gethers can’t be invoked in the right circumstance. The court, that is, now distinguishes Gethers, but in doing so hardly rejects the underlying principle:

¶23      Roberson cites People v. Gethers, 654 N.E.2d 102 (N.Y. 1995), a case in which the New York Court of Appeals excluded an undercover officer’s showup identification following an arrest. Gethers is inapposite, however, because the court applied the exclusionary rule after concluding that the arresting officer lacked probable cause to arrest.  Id. at 161.  Gethers’ result is unsurprising because “the challenged evidence … [was] unquestionably the product of [the] illegal governmental activity— i.e., the wrongful detention.”Harris, 495 U.S. at 18. In contrast, evidence acquired outside of the home after an in-home arrest in violation of Payton is not a product of the illegal governmental activity, if officers had probable cause to arrest developed apart from the illegal entry.

In short, the result appears to be something along the line of the independent source doctrine, even if the analysis isn’t expressed in those terms.Update: The subsequent affirmance is indeed on independent-source ground. What, then, of the court of appeals’ probable cause discussion? The court of appeals lacks authority to withdraw or modify language from its own published decisions, e.g., State v. Andre Bolden, 2003 WI App 155, ¶¶9-10; State v. William L. Morford, 2004 WI 5, ¶40. That principle is worth noting here, because the court of appeals’ decision was not overruled in any respect; rather, the court of appeals derived one approach and the supreme court another. More specifically: the court of appeals held that the warrantless entry was based on probable cause, 2005 WI App 195, ¶¶16-21, while the supreme court simply assumed without deciding that the warrantless entry was illegal, 2006 WI 80, ¶31.

On the larger question, whether a Payton violation is even deemd to have occurred when the evidence (of whatever stripe, statement or physical evidence, or ID) is obtained outside the illegally entered home, see, e.g., Mosby v. Senkowski, 2nd Cir No. 05-1122-pr, 11/30/06, esp. fn. 4 (as federal matter, does not apply).


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