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Attenutation of Taint – Search Warrant

State v. Eric Dwayne Rogers, 2008 WI App 176, PFR filed 12/12/08
For Rogers: Mark D. Richards

Issue/Holding: Although warrantless entry of and remaining in a home while a warrant was prepared was illegal, the warrant wasn’t based on any information turned up by this illegality and evidence seized during its execution was therefore admissible:

¶21      Still, “evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is ‘so attenuated as to dissipate the taint.’” Segura v. United States, 468 U.S. 796, 805 (1984) (citation omitted); see State v. Simmons, 220 Wis. 2d 775, 780, 585 N.W.2d 165 (Ct. App. 1998). Three factors are relevant to our inquiry: (1) the temporal proximity of the unlawful entry to the search, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. See State v. Walker, 154 Wis. 2d 158, 187-88, 453 N.W.2d 127 (1990). Importantly for this case, when the police have an “independent source” for their discovery, such as a warrant based on wholly unconnected information, the evidence seized is not to be excluded. Segura, 468 U.S. at 805, 814.

¶22       Based on the circumstances of the entire evening, the State has met all three factors. The officers’ good police work and prior drug seizure led them to apply for an additional search warrant based on that contraband. Then the officers waited two hours to search the residence with a valid warrant, albeit while waiting inside watching television. True, they did also perform a protective sweep, but they did not base their search or warrant on the unlawful entry or protective sweep. Instead, the officers obtained the search warrant for Rogers’ residence based entirely on an independent source—their prior search and seizure of Rogers’ car and person. Thus, the search of Rogers’ residence was sufficiently attenuated from the unlawful entry to permit the search and seizure of evidence of unlawful drug dealing. Had the search been conducted as a result of the illegal entry or had the protective sweep been just a pretext for a search for contraband, or had the police used information from the illegal entry to obtain the search warrant, this would be a different case.

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