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Defendants Contend Out of Court Identifications Should Be Supressed

On July 11, 1977, in their Coral Gables home, a couple was robbed at gunpoint by two men, who took several items of jewelry and other valuables and then fled. The husband had had a recent eye operation and could make no identification. The wife, on the other hand, got a good look at and was able to describe them both. For a period immediately after the criminal act, however, the identity of the men who made the assault remained unknown.

On July 16, 1977, Suffolk County, New York police officers, serving a warrant on a totally unrelated charge, arrested one of the men who robbed the couple at a condominium in which he and his fellow robber were living in Long Island, New York. A New York Drug Crime Lawyer said that in the course of that arrest, the officers seized pieces of jewelry from a bedroom in the apartment. The trial judge held and the state concedes, that the seizure was unlawful and in violation of the Fourth Amendment. The effect of that determination is the focus of their appeals. This is so because the taking of the jewelry led directly to the identification of the two robbers as the perpetrators of the Coral Gables criminal acts of burglary and armed robbery.

Indisputably, the occurred is an entirely fortuitous fashion. As a matter of routine, the Suffolk County authorities sent descriptions of the jewelry they had seized across the police teletype to several, apparently randomly selected, cities throughout the country. The teletype information came to the attention of Coral Gables police officers investigating the criminal act. The police officer thought he recognized some of the described items as having been taken from the couple and requested the Suffolk County police to forward photographs of the jewelry and of the persons who had occupied the apartment from which it was taken. The New York authorities complied with the requests. On August 24, 1977, the Coral Gables police showed the wife first the written descriptions, and then the photographs of the jewelry seized from the condominium. She positively identified several items as having been taken from her home during the robbery assault. As a result, about two weeks thereafter, on September 13, 1977, the officers displayed to the wife a photographic lineup which contained the pictures of the two robber men obtained from Suffolk County. A New York Drug Possession Lawyer said the lower court specifically determined and no attack is made on the finding that the photo lineup itself was fairly conducted and was not improperly suggestive. Upon viewing the photo display, the wife quickly and with certainty identified the pictures of both men as those of the offenders in question.

Based upon her identification, the two men were charged with three-count information filed in the Dade County Circuit Court with the armed robbery assault of the couple, the armed burglary of their home, and the possession of a firearm in the commission of those criminal acts. After pre-trial discovery, both accused moved to suppress the jewelry seized in Suffolk County, New York; the wife’s September 13, 1977 out-of-court identifications at the photo lineup and her in-court identification of the accused as those who had burglarized and robbed her. The trial judge suppressed the jewelry as the product of an illegal search; the ruling was concededly correct. The out-of-court identification was also suppressed as to both accused, solely on the basis of the ruling that their photographs would not have been obtained but for the clue to their relevance provided by the identification of the illegally seized jewelry. Concerning the in-court identifications by the wife, the trial judge reached a different conclusion as to each of the respective accused men. He concluded that the wife was able to identify one of the men entirely independently of the photo lineup, based solely on her recollection of him at the scene of the crime; the motion to suppress the in-court identification of one of the accused man was therefore denied. A Nassau County Drug Possession Lawyer said the other accused man, he determined that the photo lineup, while not suggestive, sparked the wife’s memory so that she is presently in a position to have a recollection regarding the identification of the accused robbers, which she would not have had if she had not been shown the offending photos. He therefore suppressed the in-court identification of the other accused man as also tainted by the unlawful seizure of the jewelry.

After the denial of his motion to suppress the in-court identification, the robber who was identified pled guilty, specifically reserving the right to review the propriety of that ruling. The man seeks review of the judgment and sentence entered against him upon the court’s acceptance of that plea. An appeal is made by the state from the order suppressing the in-court and out-of-court identifications of the other man. A Queens Drug Possession Lawyer said treating both cases together, the photographic lineup was not tainted by its tenuous connection with the illegally seized jewelry and that neither the out-of-court nor, therefore, the in-court identifications of the accused men were subject to suppression. Accordingly, the man’s conviction is affirmed and the order was reversed to suppress the identifications of the accused.

The contentions of both accused are entirely based upon a single simple fact that if the jewelry had not been illegally seized, the police would not have become aware of the accused men’s existence and they would not have been identified by the wife; and upon the claim that any evidence which would not have existed but for a violation of the Fourth Amendment must be suppressed. Primarily because the law is directly contrary to that contention, the arguments for suppression must be rejected. There is simply no blanket but for test which results consequently in the exclusion of all testimony which is causally related to an illegal search or seizure. To the contrary, such testimony should be admitted.

The connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint. There is no need to hold that all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality. The evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.

The illegal police action in the case at bar occurred during the investigation of a crime totally unrelated to the crime for which the identification was necessary. It was pure coincidence that the police uncovered the credit cards during the illegal search of appellant’s apartment for narcotics. The trial judge suppressed the direct product of the illegal search. While the illegally seized credit cards led to the connection of appellant with another robbery, the identification evidence presented by the Commonwealth at trial was so independent of the seizure as to be untainted by any illegality and therefore not within the fruit of the poisonous tree prohibition.
In several cases, the actual photograph identified by a witness was secured only after and as a direct result of an unlawful but unrelated arrest of the defendant. Although this situation is less attenuated than the one before us, in which there is no claim that the pictures of the two men were themselves illegally obtained, it has been consistently held that the illegal arrest does not render the identification or even the photograph itself inadmissible.

To hold that all such pictures resulting from illegal arrests are inadmissible forever because they are fruits of the poisonous tree would not merely permit the criminal to go free because the constable has blundered but would allow the criminal immunity because another constable in another jurisdiction in another case had blundered.

For these reasons, the out-of-court identifications of both accused men by the wife should not have been suppressed. It follows, all the more so, both that the in-court identification of one of the accused is likewise admissible and that there was no error in declining to exclude the in-court identification of the other accused.

The order of suppression is reversed and the cause is remanded with directions to deny the motion to suppress the identifications in question.

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