Poisonous Fruit Case Analysis

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Because the U.S. Supreme Court has granted review in U.S. v. Patane, both the State and defendants should continue to preserve any issues concerning suppression of evidence that results from an unlawful interrogation, pending resolution of that case.

In the interim, however, lower courts still have to decide what to do when physical evidence results from a negligent, as opposed to intentional, violation of Miranda.
The court expressly declined to choose between Faulkingham and Patane, stating instead, “We accept much of the reasoning in Faulkingham and in Patane.”

Looking to sheer volume, it would appear that the court may regard Patane as the more persuasive decision. Discussing Faulkingham, the court does no more than set forth the holding, while the court not only quotes extensively from Patane, but several law review articles which the Tenth Circuit found persuasive.

Looking to the strength of the reasoning, however, Patane is suspect. In that case, the suspect himself cut off the officer’s attempt to advise him of his Miranda rights, saying he already knew his rights.

Under such circumstances, the law clearly requires the statements be suppressed. A strong argument can be made, however, that it is overkill to suppress the physical evidence, as well, in order to deter police misconduct.

As for the court’s holding that George had apparent authority to consent to the search, notwithstanding the decision in State v. Kieffer, the question arises, “What remains of the holding in Kieffer?” The answer is difficult, because the majority opinion barely mentioned Kieffer, much less attempted to distinguish it.

Three factual differences were noted by the State: in Kieffer, the defendant’s bedroom was in a separate structure; George kept personal property in Knapp’s bedroom; and George had access to Knapp’s bedroom.

The court did not expressly rely on the first for support, but may have done so implicitly. The court stated, at one point, that George and Helen were “keepers of that residence.” Arguably, where the bedroom is in a separate structure, even if it is owned by the person giving consent, that statement would not ring true.

The second and third factors, the majority conflated into one, using the fact that George kept personal property in Knapp’s bedroom (a fact that, as Abrahamson noted, the officer clearly did not find out until after entering it) to bolster the conclusion that George had access to the bedroom.

However, there are two other differences between the two cases the court did not mention. First, in Kieffer, the landlord did not have a key to the premises, only the defendant and his wife (the landlord’s daughter) did, a fact known to the officers. Also, in Kieffer, the landlord explicitly told the officers he always knocks before entering “out of respect.” Kieffer, 217 Wis.2d at 550. No such information was provided in Knapp.

Second, there are significant differences in the surrounding facts, making it more reasonable for the officers in Knapp to take the landlord’s consent to search at “face value.”

	Links Wisconsin Supreme Court Related Article Poisonous fruit doctrine applies to confessions

The landlord in Kieffer was very upset because his son had been arrested on a drug charge, and because there may be drugs in the loft, he was eager to rid the premises of drugs.

The court stated, “we find troubling the circuit court’s reliance, at least in part, on Garlock’s [the landlord’s] emotional state at the time of the search. The officers’ observation that Garlock was upset and wanted to help ‘rid his premises of drugs’ cannot support a reasonable belief that Garlock had common authority to consent to a search of the loft area. This emotional response of a property owner sheds no light on whether that person enjoys a ‘mutual use of the property’ and whether he o
r she has ‘joint access or control for most purposes’ of that property. See Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at 993 n. 7. Such a response could have reflected a general antidrug attitude, or a reaction to the news that his son Scott had just been arrested for possession of a controlled substance. Under the circumstances of this case, Garlock’s emotional reaction, by itself, did not support a reasonable belief that he possessed authority to consent to a search of the loft.” Id.

Thus, the landlord in Kieffer made clear he did not have access to the loft, but would assert such access anyway out of pique.

By contrast, as the majority found in Knapp’s case, George’s actions and words suggested he did have access and actual authority to consent to the search. Without question, the officers could have questioned him in more detail to determine whether he really did, but, at least there were no explicit statements made by George to suggest that he did not.

– David Ziemer

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David Ziemer can be reached by email.