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Attenuation of Taint — Statements

State v. Scott Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997)
For Kiekhefer: Linda Hornik


Our inquiry does not end here, however. Because the agents’ entry constituted a violation of Kiekhefer’s Fourth Amendment protections, the question remains whether all of the seized evidence should be suppressed utilizing the attenuation doctrine articulated in Wong Sun v. United States, 371 U.S. 471, 488 (1963). This is also a question of constitutional fact that we review independently of the trial court. See State v. Anderson, 165 Wis.2d 441, 447, 477 N.W.2d 277, 280 (1991)….

Wong Sun not only requires that the statement meet the Fifth Amendment standard of voluntariness, but it must also be “`sufficiently an act of free will to purge the primary taint.'” See Phillips, 209 Wis.2d at 568, 563 N.W.2d at 576 (quoted source omitted). The concern in attenuation cases is whether the connection between the illegal police activity and a later statement has “`become so attenuated as to dissipate the taint.'” See id. (quoted source omitted). If a defendant’s statement and consent to search were obtained by exploitation of prior illegal police activity, then any statements and evidence obtained during a search must be excluded. See id. at 569, 563 N.W.2d at 576.

The following factors must be considered under an attenuation theory: (1) the temporal proximity of the official misconduct and the subsequent statements by a defendant; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. See id. We conclude that this case fails under the application of each of these factors.

Issue/Holding2: Statements after illegal entry weren’t attenuated from that primary illegality, given: temporal proximity (10 minutes) to entry; absence of any intervening circumstances such as Miranda warnings, and flagrancy of police misconduct.


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