“Fruit of the Poisonous Tree” not so Tasty

The “fruit of the poisonous tree” is a legal catchphrase that refers to evidence or contraband seized in violation of the Fourth Amendment. When physical evidence is unconstitutionally obtained by the government in violation of the Fourth Amendment, the accused may have the remedy of excluding the seized evidence in court. The “exclusionary rule” disincentivizes law enforcement from violating citizen’s rights under the constitution. The “exclusionary rule” is basically the only legal mechanism that keeps law enforcement in check in this regard.

Prior to the ratification of the Constitution and the Bill of Rights, British Troops would harass the colonists in various ways. Some of the ways have remained common knowledge today like “No taxation without representation.” Others are now remnants of a time long past and are contained only within our founding documents like the protections grafted into the Bill of Rights. Remember, the Bill of Rights was in direct response to the tomfoolery of the Crown and its troops towards the colonists.

In colonial times, British Troops would march right into a person’s home, usually unannounced and without any suspicion of criminal wrongdoing, and search the residence for contraband. Sometimes it was for the fun of it. Sometimes it was to harass a local merchant, politician, or prominent person who had spoken out against the Crown. And sometimes it was done to simply remind the colonists who oversaw the colonies and was in charge.

During these unsanctioned searches, if contraband was recovered, then the colonist was taken into custody, jailed, and languished in custody awaiting a trial. Or, on the other hand, the colonist was tried on the spot in a secret trial, convicted, and sentenced unfairly. Like the rest of the Bill of Rights, the Fourth Amendment was a direct response to this type of nonsense, chicanery, and shenanigans.

Without the “exclusionary rule,” the Fourth Amendment has no teeth. The “exclusionary rule” is essentially a Sword of Damocles hanging over the government’s head to follow the law and to do the right thing. In this role, the “exclusionary rule” is a powerful remedy because it forbids the government from using that unconstitutionally seized evidence in the prosecution of the accused. In this regard, physical evidence may refer to a firearm, narcotics, wire intercepts, fingerprints, DNA, …etc. For instance in a possession of cocaine prosecution, if the evidence of narcotics (and any testimony about the narcotics evidence) is suppressed and excluded from the court proceedings due to an unconstitutional search and seizure, it is virtually impossible to prosecute an accused for possession of cocaine without the evidence of cocaine.

Keep in mind, however, the amendments to the constitution are not self-executing and require the aggrieved person to raise the issue in court with the judge prior to trial. To trigger the Fourth Amendment, there must be governmental action (as opposed to a private citizen finding evidence). Without governmental action, there is no Fourth Amendment violation. For example, the post office makes a huge mistake and delivers a package marked for your house to your neighbor’s house. Your neighbor ignores that the package is addressed to you and opens it. Inside the package, your neighbor learns that the package contains a kilogram of packaged cocaine and reports you to the police. The cocaine package is turned over to the police. There is no Fourth Amendment violation in that scenario because there was no unconstitutional seizure of evidence because there was no “governmental action” because a private citizen recovered the contraband.

Unconstitutionally seized evidence only has relevance in criminal or quasi-criminal prosecutions. If a defendant believes that law enforcement officers illegally seized evidence or arrested the defendant, the defendant must raise the issue in the trial court. This is almost certainly accomplished through a pretrial motion to suppress the illegally seized evidence.

The Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Id. (1789) When the Fourth Amendment was ratified, most Americans across the land vividly remembered the abuses and atrocities perpetrated by the British troops. In this regard, the colonists understood legal nuances of such behavior and did not need to spell out any further what needed to be protected other than what was actually written in the body of the Fourth Amendment.[i] Many of these sublet nuances in terms of thr language, syntax, and context have been lost to history and time. One thing was for certain, the people still want to be secure from indiscriminate, arbitrary, and capricious governmental harassment in the form of general warrants and writs of assistance.[ii] Clearly, Americans want to be free from “unreasonable” searches and seizures.

Coming full circle, the legal phrase “fruit of the poisonous tree”[iii] was first coined by Justice Felix Frankfurter describing evidence that had been unreasonably seized by the government. See Nardone v. U.S., 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939). Over the next few years, the “fruit of the poisonous tree” became the working term of art referring to any unconstitutionally seized evidence and its court remedy, the Weeks Exclusionary Rule.[iv]

In 1920, Justice Oliver Wendell Holmes, Jr., explained in Silverthorne Lumber[v] that the Weeks Exclusionary Rule applied to Fourth Amendment violations in federal court.

Although based in the language of the Fourth Amendment, the exclusionary rule remedy grew out of an understanding of fairness and purpose. If the government could prosecute someone with illegally obtained evidence, then what exactly was the purpose of the Fourth Amendment? And how was that fair? What did the Fourth Amendment protect if it could not be enforced on its face? Obviously, the government could not/should not get a windfall by circumventing the requirements of the Fourth Amendment…thus, the exclusionary rule remedy.

As stated, however, the problem was that at that specific time the Weeks Exclusionary Rule only applied to federal court and was not selectively incorporated to the states. In America, there are 51 criminal jurisdictions – the fifty states and the federal system. After Weeks, the states were free to adopt whatever understanding each stated wanted to use – some allowed unconstitutionally seized evidence to be used in state prosecutions and some did not. It was chaos without any predictability for judges, lawyers, and law enforcment.

Ten years after Nardone, Justice Frankfurter, who had so eloquently coined the phrase “fruit of the poisonous tree” in Nardone, penned a strange majority opinion in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949). In Wolf, Justice Frankfurter stated that the Weeks Exclusionary Rule did not apply to the states. It was a dark day for the Fourth Amendment; it would not be until 1961 and the Supreme Court’s decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)[vi] that this mess would all get straightened out once-and-for-all. Mapp overruled Wolf and applied the Weeks Exclusionary Rule to the Fourth Amendment via the Fourteenth Amendment’s equal protection clause.[vii]

If the trial court determines that the seized evidence is “fruit of the poisonous tree,” then the government will most likely not be able to use that unconstitutionally seized evidence against the accused.[viii] The basics are relatively easy to grasp. On the other hand, what is and is not unconstitutionally seized evidence depends largely on the factual scenario before the court.

Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog


If you or a loved one believe that the police unconstitutionally seized evidence in your case, then please do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss the matter. As a three-time, board-certified criminal trial defense attorney, I have the experience to represent you accurately and effectively. Over my 20-years, I have handled countless criminal trials and appeals so that I thoroughly understand the issues involved, especially unconstitutional searches and seizures.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. You can also check out the author at his profile at AVVO.com (Candela) 

Image source: pexels.com

No. 20-010

[i] Boyd v. U.S., 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886)

[ii] The general understanding of a writ of assistance is a court order to a law enforcement officer to perform some task. The abuses of the writ of assistance was one of a few sparks that led to the start of the Revolutionary War.

[iii] Nardone v. U.S., 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939).

[iv] Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914)

[v] Silverthorn Lumber Co v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920)

[vi] Justice Frankfurter was one of three justices that dissented in Mapp.

[vii] See United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Silverthorn Lumber Co v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, (1961) overruling Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) (Applies the Weeks Exclusionary Rule to the States via the Fourteenth Amendment. The Weeks Exclusionary Rule is designed to prevent police misconduct and prohibits prosecuting attorneys from using illegally seized evidence. See Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).)

[viii] Like any constitutional rule, there are very few limited exceptions.

Leave a Reply