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UNITED STATES v. ALSTON

March 6, 1970

UNITED STATES of America
v.
Elby ALSTON


Gesell, District Judge.


The opinion of the court was delivered by: GESELL

GESELL, District Judge.

 Defendant moved to suppress a check the police took from his wallet and the proffered testimony of the complaining witness located from the name on the check. He asserts that the seizure of the check was illegal and that subsequent testimony from the witness is tainted by that illegality under the "fruit of the poisonous tree" doctrine.

 Testimony was taken at a hearing. The proof showed that defendant was lawfully arrested for disorderly conduct, taken to the police precinct and booked for disorderly. He gave the name Roy Thomas; because he had told the arresting officer that he had numerous arrests and had just been released from jail on a homicide charge, an inquiry was made at the precinct during booking to determine if defendant was wanted on any other charges.

 When no record of his prior law involvements could be verified under the name Roy Thomas, police suspected defendant was using a false name and looked through his wallet in an effort to determine his true identity. They then returned the wallet and its contents to defendant.

 Defendant deposited the necessary $10 collateral and was permitted to forfeit. However, he was not allowed to leave. Instead, he was asked to wait in an adjoining room at the precinct, no reason being given. Within the next five minutes the police asked again to see his wallet. A more careful search disclosed an uncancelled check. While defendant was still detained, a telephone call was made to the maker of the check who stated that the check, which was for a small amount, was part of the loot in a $186.00 robbery. Defendant was then charged with robbery and was, several days later, identified at a properly conducted lineup. This indictment charging robbery and ADW resulted.

 It does not require any extended discussion under these facts to demonstrate that the seizure of the check was unreasonable and prohibited by the Fourth Amendment. Once defendant was permitted to forfeit at the precinct, his subsequent detention was illegal and the second search of his wallet was improper. The Government suggests that the three-hour provision allowed for interrogation under 4 D.C. Code 140(a) should be interpreted to permit the postforfeiture detention and search. While interrogation prior to booking for a reasonable time under proper circumstances may be permitted, once a suspect has been arrested, booked, searched and allowed to pay his penalty, further detention and search is unequivocally improper. The check will be suppressed.

 The Government's case, however, rests primarily upon the testimony of the witness whom it concedes it would not have located but for the illegal search. The question whether this evidence must also be suppressed because of the original illegal search is a more difficult one. The answer must come from an analysis of the "fruit of the poisonous tree" doctrine, as enunciated primarily in three decisions of the Supreme Court. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319 (1920); Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939); Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

 In Silverthorne, Mr. Justice Holmes first announced the doctrine in a case where the Government sought to introduce photographs they had made of illegally seized corporate records which had been held inadmissible.

 
"The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court, but that it shall not be used at all." 251 U.S. at 392, 40 S. Ct. at 182.

 Mr. Justice Frankfurter broadened the exception in Nardone. He stated:

 
"Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government's proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint." 308 U.S. at 341, 60 S. Ct. at 268.

 Thus, apparently facts not obtained from an independent source but distant in causal connection from the ...


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