Our Blog

Fruit of the Poisonous Tree

The Fourth Amendment and the Exclusionary Rule

Earlier this month, while waiting in court to represent a client, I watched an interesting proceeding I’d like to share with you. A defendant was facing charges of possessing a gram of Black tar heroin. His defense lawyer asked the judge to conduct a “probable cause” hearing during a preliminary court appearance. A probable cause hearing asks the judge to decide at the outset of the case if the police officer had probable cause to stop and detain the defendant and to search him and seize any of his property.

The officer took the stand and testified the reason he stopped the defendant was because he observed him smoking a cigarette and the defendant appeared to him to be under the age of 18 (a minor crime in California). The officer then testified that he obtained the defendant’s consent to search him, which he did, and which led to his discovery of the balloon of heroin. The officer therefore arrested the defendant and felony charges of intent to distribute illegal narcotics were brought against him.

When I heard the police officer’s testimony, I was ready to jump out of my seat and object, since it seemed to me the defendant was well into his thirties – nowhere close to 18 years old. Apparently, the judge was in sync with my thoughts. He asked the prosecutor whether he “honestly” agreed with the officer that the defendant appeared to be under age.   In a valiant effort, the D.A. admitted the defendant might not have looked under age on the day he was in court, but that on the day of the arrest he could have been wearing different clothes, had a different hairstyle, and had freshly shaven – all making the defendant seem much younger.

Like me, the judge wasn’t buying it. He ruled the stop and detention of the defendant lacked probable cause and therefore the resulting search and seizure were illegal. The judge ruled all evidence obtained from the search and seizure would be inadmissible at trial, and he ultimately dismissed all charges against the defendant.

You may wonder why the defendant – who was clearly in possession of a large quantity of an illegal drug and had clearly committed a crime – was let off scot free? The answer lies in our Constitution.