Need Some Help from a Criminal Procedure Guru

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Need Some Help from a Criminal Procedure Guru

Postby blong4133 » Thu Dec 15, 2011 12:01 am

Probably a dumb question, but I have my crim pro final tomorrow afternoon and I'm having trouble getting a handle on Attenuation of the Taint (that's what she said). Can someone dumb it down for me. Our casebook isn't all that great on the topic and, like I said, I cannot get a handle on it based on my class notes.


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Re: Need Some Help from a Criminal Procedure Guru

Postby morris248 » Thu Dec 15, 2011 12:27 am

The Taint has been Attenuated

The Taint has been Attenuated: "(G)ranting establishment of the primary illegality," whether or not the resulting evidence is subject to suppression is a question of whether "the evidence . . . has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." (Wong Sun v. United States (1963) 371 U.S. 471, 487-488 [9 L.Ed.2nd

441, 455].)

In determining whether the "primary taint" (i.e., an illegal search, detention or arrest) has been sufficiently "purged" requires consideration of three factors:

The "temporal proximity" between the illegal act and the resulting evidence.
The presence of any "intervening circumstances;" and
The "purpose and flagrancy" of the official misconduct.

(Taylor v. Alabama (1982) 457 U.S. 687, 690 [73 L.Ed.2nd 314, 319]; see also United States v. Crawford (9th Cir. 2003) 323 F.3rd 700, 719-722; Brown v. Illinois (1975) 422 U.S. 590, 600-605 [45 L.Ed.2nd 416, 425-428]; Kaupp v. Texas (2003) 538 U.S. 626, 633 [155 L.Ed.2nd 814, 822.)

A Miranda admonishment and waiver, alone, is legally insufficient to attenuate the taint of an illegal arrest. (Brown v. Illinois, supra; Kaupp v. Texas, supra.)

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