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PURSUANT TO THE INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT’S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT’S RESIDENCE (FIRST DEPT).

The First Department, in a detailed decision, over a dissent, determined that the illegal search of defendant’s belongings at the hospital did not taint the subsequent search of an area near defendant’s residence (his uncle’s apartment) which turned up a gun. Defendant, although charged with robbery, was convicted only of criminal possession of a weapon. The victim had been robbed by a masked man who fired a gun in the elevator where the robbery took place. Because the police could not find evidence a shot was fired in the elevator they believed the robber may have shot himself. The police found the defendant at a hospital, suffering from a gunshot wound in his leg. Defendant’s belongings were searched at the hospital and items taken in the robbery were seized. The police spoke with the defendant and his girlfriend and eventually searched the apartment where defendant lived with his uncle, with the uncle’s consent. The majority held that the investigation would have continued even if the illegal search at the hospital had not been conducted. The dissent argued the police would have had no reason to continue the investigation without the items found in the illegal search:

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“[W]here the evidence sought to be suppressed is the product of an independent source entirely free and distinct from proscribed police activity, it should be admissible and not subject to a per se rule of exclusion based solely on the unlawful conduct” … . “[T]he independent source rule is applicable . . . [where] there is no causal connection, direct or indirect, proximate or attenuated, between the illegality and the subsequent seizure. In cases where this causal nexus is lacking, the exclusionary rule simply does not apply” … . A key consideration in determining whether this rule applies is whether “the prosecution has somehow exploited or benefitted from its illegal conduct, [whether] there is a connection between the violation of a constitutional right and the derivative evidence” … .

Here, the challenged searches were attenuated from the illegal search of defendant’s clothing bags. When the detective entered the hospital room, his theory of the crime was that it had been committed by a black male who had a gunshot wound to the leg. Defendant fit that description. Thus, we disagree with the dissent’s statement that, even if the search of the clothing bags turned up no evidence, the police “would have had little cause to pursue the investigation, let alone . . . search defendant’s vehicle and home.” To the contrary, regardless of what the detective were to find in defendant’s possession, he was likely to continue investigating defendant as a possible suspect. Such investigation would have included the routine and natural investigatory step of interviewing defendant and his girlfriend, which is what led him to learn about the car and the apartment. Further, none of the items recovered during the illegal search was used to procure defendant’s uncle’s consent to search the apartment, so the police did not engage in “exploitation of [the] illegality” as charged by the defense. People v Hill, 2017 NY Slip Op 0592, First Dept 8-1-17

 

CRIMINAL LAW (EVIDENCE, PURSUANT TO THE INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT’S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT’S RESIDENCE (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, PURSUANT TO THE INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT’S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT’S RESIDENCE (FIRST DEPT))/SEARCH AND SEIZURE (INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT’S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT’S RESIDENCE (FIRST DEPT))/INDEPENDENT SOURCE RULE (CRIMINAL LAW, PURSUANT TO THE INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT’S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT’S RESIDENCE (FIRST DEPT))

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