435 U.S. 268 (1978), 76-1151, United States v. Ceccolini

Docket Nº:No. 76-1151
Citation:435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268
Party Name:United States v. Ceccolini
Case Date:March 21, 1978
Court:United States Supreme Court

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435 U.S. 268 (1978)

98 S.Ct. 1054, 55 L.Ed.2d 268

United States



No. 76-1151

United States Supreme Court

March 21, 1978

Argued December 5, 1977




A police officer (Biro), while taking a break in respondent's flower shop and conversing with an employee of the shop (Hennessey), noticed an envelope with money protruding therefrom lying on the cash register. Upon examination, he found it contained not only money, but policy slips. Biro then placed the envelope back on the register and, without telling Hennessey what he had found, asked her to whom the envelope belonged. She told him it belonged to respondent. Biro's finding was reported to local detectives and to the FBI, who interviewed Hennessey some four months later without referring to the incident involving Biro. About six months after that incident, respondent was summoned before a federal grand jury, where he testified that he had never taken policy bets at his shop, but Hennessey testified to the contrary, and, shortly thereafter, respondent was indicted for perjury. Hennessey testified against respondent at his trial, but, after a finding of guilt, the District Court granted respondent's motion to suppress Hennessey's testimony and set aside that finding. The Court of Appeals affirmed, noting that the "road" to that testimony from the concededly unconstitutional search was "both straight and uninterrupted."

Held: The Court of Appeals erred in concluding that the degree of attenuation between Biro's search of the envelope and Hennessey's testimony at the trial was not sufficient to dissipate the connection between the illegality of the search and challenged testimony. Pp. 273-280.

(a) In determining whether the exclusionary rule, with its deterrent purpose, should be applied, its benefits should be balanced against its costs, and, in evaluating the standards for application of the rule to live witness testimony in light of this balance, material factors to be considered are the length of the "road" between the Fourth Amendment violation and the witness' testimony; the degree of free will exercised by the witness; and the fact that exclusion of the witness' testimony would perpetually disable the witness from testifying about relevant and material facts regardless of how unrelated such testimony might be to the purpose of the originally illegal search or the evidence discovered thereby. Pp. 273-279.

(b) Here, where the evidence indicates overwhelmingly that Hennessey's

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testimony was an act of her own free will in no way coerced or induced by official authority as a result of Biro's discovery of the policy slips where substantial time elapsed between the illegal search and the initial contact with the witness and between the latter and her trial testimony, and where both Hennessey's identity and her relationship with respondent were well known to the investigating officers, and there is no evidence that Biro entered the shop or picked up the envelope with the intent of finding evidence of an illicit gambling operation, application of the exclusionary rule could not have the slightest deterrent effect on the behavior of an officer such as Biro, and the cost of permanently silencing Hennessey is too great for an evenhanded system of law enforcement to bear in order to secure such a speculative and very likely negligible deterrent effect. Pp. 279-280.

(c) The exclusionary rule should be invoked with much greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object. P. 280.

542 [98 S.Ct. 1057] F.2d 136, reversed.

REHNQUIST, J., delivered the opinion of the Court, in which STEWART, WHITE, POWELL, and STEVENS, JJ., joined. BURGER, C.J., filed an opinion concurring in the judgment, post, p. 280. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 285. BLACKMUN, J., took no part in the consideration or decision of the case.

REHNQUIST, J., lead opinion

MR. JUSTICE REHNQUIST delivered the opinion of the Court.

In December, 1974, Ronald Biro, a uniformed police officer on assignment to patrol school crossings, entered respondent's place of business, the Sleepy Hollow Flower Shop, in North Tarrytown, N.Y. He went behind the customer counter and, in the words of Ichabod Crane, one of Tarrytown's more

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illustrious inhabitants of days gone past, "tarried," spending his short break engaged in conversation with his friend Lois Hennessey, an employee of the shop. During the course of the conversation, he noticed an envelope with money sticking out of it lying on the drawer of the cash register behind the counter. Biro picked up the envelope and, upon examining its contents, discovered that it contained not only money, but policy slips. He placed the envelope back on the register and, without telling Hennessey what he had seen, asked her to whom the envelope belonged. She replied that the envelope belonged to respondent Ceccolini, and that he had instructed her to give it to someone.

The next day, Officer Biro mentioned his discovery to North Tarrytown detectives, who, in turn, told Lance Emory, an FBI agent. This very ordinary incident in the lives of Biro and Hennessey requires us, over three years later, to decide whether Hennessey's testimony against respondent Ceccolini should have been suppressed in his trial for perjury. Respondent was charged with that offense because he denied that he knew anything of, or was in any way involved with, gambling operations. Respondent was found guilty after a bench trial in the United States District Court for the Southern District of New York, but, immediately after the finding of guilt, the District Court granted respondent's motion to "suppress" the testimony of Hennessey because the court concluded that the testimony was a "fruit of the poisonous tree"; assuming respondent's motion for a directed verdict included a motion to set aside the verdict of guilty, the District Court granted the motion because it concluded that, without Hennessey's testimony, there was insufficient evidence of respondent's guilt. The Government appealed these rulings to the Court of Appeals for the Second Circuit.

That court rightly concluded that the Government was entitled to appeal both the order granting the motion to suppress and the order setting aside the verdict of guilty, since

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further proceedings if the Government were successful on the appeal would not be barred by the Double Jeopardy Clause.1 542 F.2d 136, 139-140 (1976). The District Court had sensibly first made its finding on the factual question of guilt or innocence, and then ruled on the motion to suppress; a reversal of these rulings would require no further proceedings in the District Court, but merely a reinstatement of the finding of guilt. United States v. Morrison, 429 U.S. 1 (1976); United States v. Wilson, 420 U.S. 332, 352-353 (1975).

The Government, however, was not successful on the merits of its appeal; the Court of Appeals, by a divided vote, affirmed the District Court's suppression ruling. 542 F.2d at 14142. We granted certiorari to consider the correctness of this ruling of the Court of Appeals. 431 U.S. 903 (1977).


During the latter part of 1973, the Federal Bureau of Investigation was exploring suspected gambling operations in North Tarrytown. Among the establishments under surveillance was respondent's place of business, which was a frequent and regular stop of one Francis Millow, himself a suspect in the investigation. While the investigation continued on a reduced scale after December 1973,2 surveillance of the flower

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shop was curtailed at that time. It was thus a full year after this discontinuance of FBI surveillance that Biro spent his patrol break behind the counter with Hennessey. When Biro's discovery of the policy slips was reported the following day to Emory, Emory was not fully informed of the manner in which Biro had obtained the information. Four months later, Emory interviewed Hennessey at her home for about half an hour in the presence of her mother and two sisters. He identified himself, indicated that he had learned through the local police department that she worked for respondent, and told her that the Government would appreciate any information regarding respondent's activities that she had acquired in the shop. Emory did not specifically refer to the incident involving Officer Biro. Hennessey told Emory that she was studying police science in college, and would be willing to help. She then related the events which had occurred during her visit with Officer Biro.

In May, 1975, respondent was summoned before a federal grand jury, where he testified that he had never taken policy bets for Francis Millow at the flower shop. The next week, Hennessey testified to the contrary, and, shortly thereafter, respondent was indicted for perjury.3 Respondent waived a jury, and, with the consent of all parties, the District Court considered simultaneously with the trial on the merits respondent's motion to suppress both the policy slips and the testimony of Hennessey. At the conclusion of the evidence, the District Court excluded from its consideration "the envelope and the contents of the envelope," but nonetheless found respondent guilty of the offense charged. The court then, as previously

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described, granted respondent's motion to suppress the testimony of Hennessey, because she "first came directly to the attention of the government as a result of an illegal search" and the Government had not "sustained its burden...

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