What if police find a dead body during an illegal search?
<p>Suppose police conduct an illegal search of a residence (no warrant, no consent, no probable cause) and find a dead body. There is plenty of evidence in plain sight that it was a murder and also evidence of who the killer is: he is standing next to the body with the murder weapon in his hand.</p>

<p>The murderer, being a smart lawyer, keeps his mouth shut.</p>

<p>Would all of the evidence found during the search be excluded under the "fruit of the poisonous tree" doctrine? If so, how could the murderer be prosecuted?</p>

<p>If that which you describe in your comment ( Facebook post as only basis for warrantless search) is, and can be shown, to be the only basis for the search, and there was no evidence of a crime in plain view when they arrived.....then yes, it is likely the search and all evidence acquired from the search would be excludable. As to whether the individual could still be prosecuted, that depends if a case could be built independent of the evidence collected during the search. </p>

<p><strong>Realistically speaking,</strong> if a "smoking gun" like that was found from an illegal search, the authorities would <em>absolutely perjure themselves to prevent a suppression</em>.  A probable cause would be found; they had smelled the odor of the decaying body before muscling in and coercing a search; an "eyewitness" had (been persuaded to claim that he) heard a gunshot or the cries of the victim; the perpetrator had unknowingly confessed to an "informant" or given consent to an undercover, etc.</p>

<p>The way this would unfold in court is that the smoking gun evidence would, in the eyes of the court, substantiate the prosecution's telling of events; <strong>the suspect's push for a suppression would be improbable on the merits of the case, and outright impossible politically</strong>.  The judge is going to stand for re-election, after all.  The jury <em>will</em> see the evidence, and they <em>will</em> fry the convict.</p>

<p>In <em>Nix v. Williams</em>, <a href="https://supreme.justia.com/cases/federal/us/467/431/" rel="nofollow noreferrer">467 U.S. 431</a> (1984), the U.S. Supreme Court created an &quot;inevitable discovery&quot; exception to the exclusionary rule. The exclusionary rule makes most evidence gathered through violations of the Fourth Amendment to the United States Constitution, which protects against unreasonable search and seizure, inadmissible in criminal trials as &quot;fruit of the poisonous tree&quot;. In <em>Nix</em>, the Court ruled that evidence that would inevitably have been discovered by law enforcement through legal means remained admissible. The inevitable discovery doctrine permits the introduction of illegally obtained evidence if the prosecutor can prove that the otherwise excluded evidence would have been lawfully discovered in the course of a routine, predictable investigation.</p>
<p>Furthermore, under the &quot;independent source&quot; doctrine, the Fourth Amendment does not require the suppression of evidence initially discovered during police officers' illegal entry of private premises if that evidence is also discovered during a later search pursuant to a valid warrant that is wholly independent of the initial illegal entry. <em>Murray v. United States</em>, <a href="https://supreme.justia.com/cases/federal/us/487/533/" rel="nofollow noreferrer">487 U.S. 533</a> (1988).</p>
<p>Whether either of these ground could be established in this case is a tricky question. Fine details of the facts would matter as would the exact account of what the police did next.</p>
<p>An inevitable discovery argument might be stronger than an independent source argument in this case, where there was really no basis upon which a warrant could have been applied for and nothing that would have tipped off the police other than the discovery that they made during the illegal search that a crime was committed.</p>
<p>Another conceivable exception has already been ruled out. In <em>James v. Illinois</em>, <a href="https://supreme.justia.com/cases/federal/us/493/307/" rel="nofollow noreferrer">493 U.S. 307</a> (1990), the United States Supreme Court prohibited the admission of evidence obtained in violation of the Fourth Amendment for the use of impeaching statements made by a defense witness, such as the defendant asserting his innocence in testimony at trial, for example, by presenting testimony in support of a false alibi defense.</p>
<p>However, while <em>James v. Illinois</em> is a binding U.S. Supreme Court precedent, I wouldn't be too surprised if this 5-4 decision made by a much more liberal court might be overruled by the current U.S. Supreme Court which is the most conservative U.S. Supreme Court that the U.S. has seen in six decades or more, particularly in a case that provided any basis for distinguishing that 1990 decision, even if the distinction was rather dubious.</p>
<p>Also, this illegally obtained evidence might be available to press professional ethics charges against an attorney who knowing that this inadmissible impeachment evidence existed, allowed his or her client to testify falsely under oath in the criminal trial of his client. <em>See</em> <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal/" rel="nofollow noreferrer">Model Rule of Professional Conduct 3.3</a>, since the search did not violate the lawyer's Fourth Amendment rights, only the Fourth Amendment rights of his or her client. So the exclusionary rule might not apply to that ethics sanction proceeding.</p>
<p>As a result, the criminal defense attorney for the defendant might be compelled as a practical matter to have his or her client not testify and to hold the government to its obligation to provide the case beyond a reasonable doubt with admissible evidence.</p>
<p>Of course, the U.S. Supreme Court is not the only source of case law related to the 4th Amendment. Roughly half of all appellate court cases in the United States are criminal appeals. One of the most common grounds for an appeal in a criminal case is that evidence should have been suppressed pursuant to the 4th Amendment but was admitted in a manner that was prejudicial to the defendant.</p>
<p>There are probably more than a thousand published appellate court precedents in the United States addressing exceptions to the 4th Amendment exclusionary rule that are potentially relevant to this fact pattern. There are probably at least a dozen or two cases that involve almost identical facts nationwide. Those cases would be the focus of any briefing on this legal issue in a real case. If there were a case in the state or judicial circuit where the case was going to be tried that involved almost identical facts, that case would control the outcome, at least below the U.S. Supreme Court level.</p>

united-states criminal-law evidence murder