People v. Mendez

• Citation: 268 N.E.2d 778,320 N.Y.S.2d 39,28 N.Y.2d 94
• Parties: , 268 N.E.2d 778 The PEOPLE of the State of New York, Respondent, v. America MENDEZ, Appellant.
• Decision Date: 03 March 1971
• Court: New York Court of Appeals

Page 39

320 N.Y.S.2d 39

28 N.Y.2d 94, 268 N.E.2d 778

The PEOPLE of the State of New York, Respondent, v. America MENDEZ, Appellant.

Court of Appeals of New York.

March 3, 1971.

Steven W. Wolfe and Charles A. Wolfe, New York City, for appellant.

Eugene Gold, Dist. Atty. (Helman R. Brook, Brooklyn, of counsel), for respondent.

GIBSON, Judge.

The narrow question presented is this: Where the police obtain the name of a witness by means of an illegal wiretap at the defendant's premises, may the evidence voluntarily supplied by that witness upon police interrogation be used against the defendant? Or is this witness' testimony to be excluded as forbidden fruit of the poisonous tree?

Defendant was charged with the crime of abortion under an indictment based, in part at least, on evidence taken from her dwelling upon a search pursuant to a warrant. Underlying the warrant were the affidavit of a policewoman and that of a woman, who subsequently became the complaining witness, upon whom defendant had allegedly performed an abortion.

Upon the first of defendant's applications for suppression of evidence, the prosecution disclosed that defendant's telephone had been tapped, but the court would not permit defendant to inspect the order authorizing the tap nor did it find that the evidence gained as a result of the subsequent search should be suppressed. Defendant thereupon pleaded guilty.

Following additional collateral proceedings and appeals taken in the course of them, ¹ the third and final hearing was held, at which it was stipulated, among other things, that the identity of the complainant, who provided one of the affidavits underlying the search warrant, was obtained solely by means of the wiretap and that in the absence of that wiretap her identity would not have been ascertained. At this hearing the policewoman testified that defendant had been placed under surveillance as a result of the wiretap; that when she interrogated complainant, she told her that the police knew an abortion had been performed upon her and that defendant had been followed to her home on that occasion, and that thereupon complainant confirmed that the crime had been committed. The witness testified that she did not inform complainant that her identity had been disclosed by a wiretap. The hearing court, relying primarily on People v. Scharfstein, 52 Misc.2d 976, 277 N.Y.S.2d 516, found that the search warrant was based on a source independent of the invalid wiretap, that is, the information furnished by complainant. Her information, said the court, was not induced by knowledge of the wiretap, thus the wiretap was not exploited and, therefore, the warrant was left untainted because it was undergirded by support independent of the wiretap.

The case once again went back to the Appellate Division, which thereupon affirmed the conviction, without opinion. ² Justice Benjamin dissented, considering that complainant's statement had been obtained as a direct result of the wiretap, and would not otherwise have been obtainable, and thus, in his view, was clearly a fruit of the poisonous tree. The hearing Judge had, of course, held the other way, finding that although complainant's identity had originally been disclosed by the illegal wiretap, and although defendant had thereafter, and as a result of the wiretap, been kept under surveillance until she went to complainant's home to perform the abortion, nevertheless 'we do have a source independent of the wiretapping, to wit the surveillance of a suspect abortionist.' The hearing court then proceeded to analyze and approve Scharfstein, 52 Misc.2d 976, 277 N.Y.S.2d 516, Supra and Smith v. United States, 117 U.S.App.D.C. 1, 324 F.2d 879 and upon the basis of those decisions denied the suppression motion.

The Scharfstein case is almost directly in point. There, the identity of witnesses, the victims of abortions, was learned as the result of illegal wiretaps. Defendants, indicted for the crime of abortion, moved to suppress any testimony by these witnesses. Justice Shapiro ruled that the witnesses' testimony should be allowed. Starting with Silverthorne Lbr. Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, he outlined the history of the poisonous tree theory through Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307, to Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, the gist of the question being whether, granting the primary illegality, the evidence to which objection is made has been discovered by exploitation of that illegality, or, instead, by means sufficiently distinguishable to be free of the primary taint--whether the connection between the primary illegality and the evidence in question is so 'attenuated' as to dissipate the taint.

It is necessary to make but brief reference to the Silverthorne-Nardone-Wong Sun trilogy.

In Silverthorne, Mr. Justice Holmes, writing for the court, rejected the contention that the protection of the Fourth Amendment extended only to the physical possession of the books and papers which in that case had been unlawfully seized, and continued: 'The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed.' (251 U.S. 385, 392, 40 S.Ct. 182, 183, Supra.)

In Nardone, the court, on the basis of its holding in Silverthorne, proscribed the use of the evidence illegally obtained, and its fruits as well; but voiced a limitation upon the general principle: 'Sophisticated argument may prove a causal connection between information obtained through illicit wiretapping and the Government's proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint.' (308 U.S. 338, 341, 60 S.Ct. 266, 268, Supra.)

The latest refinement of the rule appeared in Wong Sun, in which, after quoting Silverthorne and Nardone, the court said: 'We need not hold that all evidence is 'fruit of the poisonous tree' Simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'' (371 U.S. 471, 487--488, 83 S.Ct. 407, 417, Supra; emphasis supplied.)

The problem, of course, is to decide upon any given set of facts what amounts to sufficient attentuation. Thus, the court in Scharfstein (supra) reviewed at some length several Federal Circuit Court cases dealing with the essential problem before it, and noted that in United States v. Tane, 2 Cir., 329 F.2d 848 it was ruled that evidence sought to be given by a witness whose name was learned by way of an illegal wiretap should be suppressed, but Justice Shapiro observed also, in an attempt to resolve the 'exploitation' theory, that in that case the witness was unwilling to testify at all until confronted with the fact that his conversations had been tapped. That point was exposed to show what was meant by exploiting the primary illegality--the fact of the wiretap itself was used to induce, if not coerce, evidence from an otherwise reluctant witness. ³

Smith v. United States, 117 U.S.App.D.C. 1, 324 F.2d 879, Supra, was also cited and discussed in Scharfstein at some length. There the witness' identity was uncovered in a confession illegally obtained from the defendant. The question was whether the testimony of that witness ought to be suppressed. Judge Burger, as he then was, writing the opinion which found the evidence admissible, stated (pp. 881--882): 'Courts have gone a long way in suppressing evidence but no case as yet has held that a jury should be denied the testimony of an eyewitness to a crime because of the circumstances in which his existence and identity was learned. * * * Here no confessions or utterances of the appellants were used against them; tangible evidence obtained from appellant...