The fruit of the poisonous tree doctrine
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The exclusionary rule is premised on suppressing evidence that “is in some sense the product of illegal governmental activity.” Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (emphasis in original). This court has similarly characterized the exclusionary rule, stating: “Evidence obtained as a direct result of a violation of a constitutional right ... is inadmissible upon proper objection.” State v. Loeffler, 60 Wis.2d 556, 561, 211 N.W.2d 1 (1973). The primary purpose of the exclusionary rule **905 “is to deter future unlawful police conduct....” United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).FN5 However, “to the extent that application of the exclusionary rule could provide some incremental deterrent, that possible benefit must be weighed against the ‘substantial social costs exacted by the exclusionary rule.’ ” Illinois v. Krull, 480 U.S. 340, 352-53, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) (quoting United States v. Leon, 468 U.S. 897, 907, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)).
For this reason, the Supreme Court in Arizona v. Evans, 514 U.S. 1, 14-16, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995), concluded that the exclusionary rule did not apply to evidence obtained from an arrest that was premised on an arrest warrant that should have been quashed from computer records and would have been quashed but for a clerical error by court employees. The Court determined that there was nothing to deter by suppressing evidence obtained as a result of a court personnel's clerical error. The Court stated, “Because court clerks are not adjuncts to the law enforcement team engaged in the often competitive enterprise of ferreting out crime, they have no stake in the outcome of particular criminal prosecutions.” Id. at 15, 115 S.Ct. 1185. In addition, “If it were indeed a court clerk who was responsible for the erroneous entry on the police computer, application of the exclusionary rule ... could not be expected to alter the behavior of the arresting officer.” Id. Because “[t]here is no indication that the arresting officer was not acting objectively reasonably when he relied upon the police computer record,” the Court held that there was “a categorical exception to the exclusionary rule for clerical errors of court employees.” Id. at 15-16.
Although rooted in the Constitution, “[t]he exclusionary rule is a judge-made one in furtherance of conduct that courts have considered to be in the public interest and to suppress conduct that is not.” Conrad v. State, 63 Wis.2d 616, 636, 218 N.W.2d 252 (1974). It has also been said that the exclusionary rule applies only in contexts “where its remedial objectives are thought most efficaciously served.” Pennsylvania Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998) (citation and quotations omitted). Thus, the exclusionary rule is not absolute, but rather is connected to the public interest, which requires a balancing of the relevant interests. State v. Eason, 2001 WI 98, ¶ 43, 245 Wis.2d 206, 629 N.W.2d 625.
The exclusionary rule applies to both tangible and intangible evidence and also excludes derivative evidence under certain circumstances, via the fruit of the poisonous tree doctrine, if such evidence is obtained “by exploitation of that illegality.” Wong Sun v. United States, 371 U.S. 471, 485-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Schneidewind, 47 Wis.2d 110, 118, 176 N.W.2d 303 (1970). “[I]n its broadest sense, the [fruit of the poisonous tree doctrine] can be regarded ... as a device to prohibit the use of any secondary evidence which is the product of or which owes its discovery to illegal government activity.” State v. Schlise, 86 Wis.2d 26, 45, 271 N.W.2d 619 (1978).
Although the fruit of the poisonous tree sprouted from the Fourth Amendment, its application is not so confined. The fruit of the poisonous tree doctrine has been applied to the Fifth and Sixth Amendments, see Nix, 467 U.S. at 442, 104 S.Ct. 2501, as well as statutory violations.
Regarding Fifth Amendment applications, in Chavez v. Martinez, 538 U.S. 760, 769, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (plurality opinion), the Supreme Court noted that “our cases provide that those subjected to coercive police interrogations have an automatic protection from the use of their involuntary statements (or evidence derived from their statements) in any subsequent criminal trial.” (Emphasis in original.)
In United States v. Hubbell, 530 U.S. 27, 45, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000), which concerned the compelled production of documents, the Supreme Court concluded that “[i]t has ... long been settled that [the Fifth Amendment's] protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence.” Id. at 37, 120 S.Ct. 2037. Thus, the privilege protects against “use of incriminating information derived directly or indirectly from the compelled testimony....” Id. at 38, 120 S.Ct. 2037.
In Harrison v. United States, 392 U.S. 219, 220, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), the defendant testified after the government admitted into evidence three illegally obtained confessions. The Supreme Court concluded the defendant was impelled to testify, and that the testimony therefore was the fruit of a poisonous tree. The Supreme Court stated:
The petitioner testified only after the Government had illegally introduced into evidence three confessions, all wrongfully obtained and the same principle that prohibits the use of confessions so procured also prohibits the use of any testimony impelled thereby-the fruit of the poisonous tree, to invoke a time-worn metaphor.
In the Sixth Amendment context, in United States v. Wade, 388 U.S. 218, 237, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Supreme Court held that the absence of counsel at a post-indictment lineup violated a defendant's Sixth Amendment right to counsel. The Court held that a subsequent in-court identification may warrant suppression unless the State can show the identification had an independent origin, or its admission was otherwise harmless. Id. at 240-42, 87 S.Ct. 1926.
