April 5, 2018
So When You Drop a Gun….
The MN COA went hard this week and published a lot of cases. None of which had more consequence than the case about the fruit of the poisonous tree doctrine. Poisonous fruit is not when IHOP puts a few blueberries on their waffles smothered in whipped cream. Poisonous fruit is when the cops violate the Constitution. The Constitutional violation is the tree. That tree is poisonous like the Tuffula trees in the “Lorax.” The police would be the Onceler to continue the dumb analogy. The tuffula fruit from the tree is what was discovered by the police during that illegality. For example, if the police officers tackle Scott Baio because they hated “Charles in Charge,” and they find a meth pipe, the tackling would be the poisonous tree and the meth pipe would be the fruit of that. I am in no way suggesting that Scott Baio uses meth or that police in general, hated Cn’C.
So in this case they reviewed, it involves a guy named Corey Davis. This could have been the same Corey Davis who was picked 5th by the Tennessee Titans last year. MPLS PD was following a car that did not use a turn signal. Mr. Davis, who was a passenger, got out of the car. The cops believed it was odd that CD looked at them before walking away. The cops followed and handcuffed Mr. Davis who proceeded to tell them information that led to the officers finding a nearby a gun. A gun that Mr. Davis was not supposed to possess. The district court said even though the stop was illegal; the officers learned no new information from CD and their decision to search the nearby area was based on CD’s evasive conduct. So the gun came into evidence and Davis appealed.
Here is what the COA focused on this exchange:
Prosecutor: Did he say anything to you other than saying that he couldn’t sit down?
Officer Bartholomew: He did make an utterance to the effect that he had marijuana on him and that he had eaten it prior to being stopped, and he also stated that he thought he had some warrants.
Prosecutor: So, what did you do at this point?
Officer Bartholomew: Well, at that point I was suspicious that something may have been tossed, hidden somewhere in the area.
The use of the phrase “at that point,” which was the exact way the prosecutor asked the question, was where the COA put their focus. “At that point,” undermined the district court’s conclusion that the fact that the officers learned no new information. Also CD ate marijuana, that is new information. Since they did learn new information, was this FOPT? Several factors guide our poisonous-tree assessment, “including the temporal proximity of the illegality and the evidence alleged to be the fruit of that illegality, the presence of intervening circumstances, the purpose and flagrancy of the misconduct, and whether it is likely that the evidence would have been obtained in the absence of the illegality.” State v. Sickels, 275 N.W.2d 809, 814 (Minn. 1979).
The temporal proximity was nearly identical. They heard him say he ate his stash and then they searched. No circumstances intervened between the illegal detention and the questioning. The illegality? I’ll provide the quote:
“A passenger leaves a car whose driver failed to signal a turn, and the passenger is then grabbed by the arm, handcuffed, and ordered to the curb for police questioning in a residential neighborhood in broad daylight? All because, according to the officer, it appeared as though the person wanted to avoid interacting with police? This humiliating behavior is so obviously inconsistent with what the Fourth Amendment demands that we have no difficulty declaring it to be a flagrant affront to constitutional policing.”
And any intervening factor, the fourth one:
“We have no reason to assume that police customarily search the area whenever passengers leave cars being driven by turn-signal violators—even passengers who seem to want to avoid police contact. We have already determined that the officer’s testimony establishes that he based his decision to search on what he heard from Davis during the illegal detention, and so we must conclude that police would not have found the gun without the stop.”
They closed with this:
“But if courts do not deter the unconstitutional and demoralizing practice of detaining, handcuffing, sitting, and questioning people merely because they want to avoid police contact, the practice will only increase the number of people who want to avoid contact with police and will, consequently, add to the number of people who are then unconstitutionally detained merely for demonstrating this preference.”
Powerful words from Judge Kevin Ross.
The State tried to argue that the gun was abandoned so CD had no reasonable expectation of privacy in the gun because he threw it away. However, that was swatted away by saying the supreme court has also held that, when a defendant has “abandoned [contraband] after he was unlawfully directed to stop, the abandonment was the suppressible fruit of the illegality.” Matter of Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993). The illegal stop included questioning and the incriminating statements that inspired police to search the area and find the abandoned gun. This causal connection between the illegal stop and the recovered contraband is analogous to the connection in E.D.J., where the illegal stop led police to recover the abandoned drugs.
The court reversed in a victory for all who want to exit a car and not be handcuffed.