State v. Maier

• Decision Date: 28 December 1979
• Docket Number: 79-695,Nos. 79-227,s. 79-227
• Parties: The STATE of Florida, Appellant, v. Walter R. MAIER, Jr., Appellee. Thomas James BUSIELLO, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1288

378 So.2d 1288

The STATE of Florida, Appellant, v. Walter R. MAIER, Jr., Appellee.

Thomas James BUSIELLO, Appellant, v. The STATE of Florida, Appellee.

Nos. 79-227, 79-695.

District Court of Appeal of Florida, Third District.

Dec. 28, 1979.

Rehearing Denied Jan. 28, 1980.

Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., Janet Reno, State's Atty. and Theda R. James, Asst. State's Atty., for the State.

Milton E. Grusmark, Miami, for Walter R. Maier, Jr., and Thomas James Busiello.

Before PEARSON, HUBBART and SCHWARTZ, JJ.

SCHWARTZ, Judge.

Although it is of course dangerous and forbidden to eat of its fruit, we hold in these cases that one may safely have a meal in a structure partially constructed with lumber made from the poisonous tree. The facts which give rise to the use of this outrageous, but we think appropriate, extension of the all-too-familiar metaphor follow.

On July 11, 1977, in their Coral Gables home, Mr. and Mrs. Shultz were robbed at gunpoint by two men, Maier and Busiello, who took several items of jewelry and other valuables and then fled. Mr. Shultz had had a recent eye operation and could make no identification. Mrs. Shultz, on the other hand, got a good look at and was able to describe them both. For a period immediately after the crime, however, the identity of the offenders remained unknown.

On July 16, 1977, Suffolk County, New York police officers, serving a warrant on a totally unrelated charge, arrested Maier at a condominium in which he and Busiello were living in Long Island, New York. In the course of that arrest, the officers seized pieces of jewelry from a bedroom in the apartment. The trial judge held below, and the state now concedes, that the seizure was unlawful and in violation of the Fourth Amendment. The effect of that determination is the focus of these appeals. This is so because the taking of the jewelry led directly to the identification of Maier and Busiello as the perpetrators of the Coral Gables burglary and armed robbery.

Indisputably, this occurred in an entirely fortuitous fashion. As a matter of routine, the Suffolk County authorities sent descriptions of the jewelry they had seized across the police teletype to several, apparently randomly selected, cities throughout the country. The teletype information came to the attention of Coral Gables police Sgt. James Butler, one of the officers investigating the Shultz robbery. Butler thought he recognized some of the described items as having been taken from the Shultzes and requested the Suffolk County police to forward photographs of the jewelry and of the persons who had occupied the apartment from which it was taken. The New York authorities complied with these requests. On August 24, 1977, the Coral Gables police showed Mrs. Shultz first the written descriptions, and then the photographs of the jewelry seized from the condominium. She positively identified several items as having been taken from her home during the robbery. As a result, about two weeks thereafter, on September 13, 1977, the officers displayed to Mrs. Shultz a photographic lineup which contained the pictures of Maier and Busiello obtained from Sufflok County. The lower court specifically determined and no attack is made here on that finding that the photo lineup itself was fairly conducted and was not improperly suggestive. Upon viewing the photo display, Mrs. Shultz quickly and with certainty identified the pictures of both Maier and Busiello as those of the offenders in question.

Based upon her identification, Busiello and Maier were charged in a three-count information filed in the Dade County Circuit Court with the armed robbery of the Shultzes, the armed burglary of their home, and the possession of a firearm in the commission of those felonies. After pre-trial discovery, both defendants moved to suppress (a) the jewelry seized in Suffolk County, New York; (b) Mrs. Shultz's September 13, 1977 out-of-court identifications at the photo lineup and (c) her in-court identification of defendants as those who had burglarized and robbed her. The trial judge suppressed the jewelry as the product of an illegal search; this ruling was concededly correct and is not before us. The out-of-court identification was also suppressed as to both defendants, solely on the basis of the ruling that their photographs would not have been obtained "but for" the clue to their relevance provided by the identification of the illegally seized jewelry. Concerning the In -court identifications by Mrs. Shultz, the trial judge reached a different conclusion as to each of the respective defendants. He concluded that Mrs. Shultz was able to identify Busiello entirely independently of the photo lineup, based solely on her recollection of him at the scene of the crime; the motion to suppress the in-court identification of Busiello was therefore denied. As to Maier, he determined that the photo lineup, while not suggestive, "sparked (Mrs. Shultz's) memory so that she is presently in a position to have a recollection regarding the identification of the defendant," which she would not have had if she had not been shown the offending photos. He therefore suppressed the In -court identification of Maier as also tainted by the unlawful seizure of the jewelry.

After the denial of his motion to suppress the in-court identification, Busiello pled nolo contendere, specifically reserving the right to review the propriety of that ruling. ¹ In Case no. 79-695, Busiello seeks review of the judgment and sentence entered against him upon the court's acceptance of that plea. Case no. 79-227 is an appeal by the state from the order suppressing the in-court and out-of-court identifications of Maier. Treating both cases together, we hold that the photographic lineup was not "tainted" by its tenuous connection with the illegally seized jewelry and that neither the out-of-court nor, therefore, the in-court identifications of the defendants were subject to suppression. Accordingly, we affirm Busiello's conviction and reverse the order suppressing the identifications of Maier.

The contentions of both Maier and Busiello are entirely based upon a single simple fact: if the jewelry had not been illegally seized, ² the police would not have become aware of the defendants' existence and they would not have been identified by Mrs. Shultz; and upon the claim that any evidence which would not have existed but for a violation of the Fourth Amendment must be suppressed as "fruit of the poisonous tree." Primarily because the law is directly contrary to that contention, their arguments for suppression must be rejected. There is simply no blanket "but for" test which results ipso facto in the exclusion of all testimony which is causally related to an illegal search or seizure. ³ To the contrary, such testimony should be admitted when, as the Supreme Court held in Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963):

(T)he connection between the lawless conduct of the police and the discovery of the challenged evidence has 'Become so attenuated as to dissipate the taint.' Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307, 312. 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.' Maguire, Evidence of Guilt, 221 (1959). (e. s.)

As it was similarly and recently stated in United States v. Ceccolini, 435 U.S. 268, 276, 98 S.Ct. 1054, 1060, 55 L.Ed.2d 268, 277 (1978):

Even in situations where the exclusionary rule is plainly applicable, we have declined to adopt a 'per se or "but for" rule' that would make inadmissible any evidence, whether tangible or live-witness testimony, which somehow came to light through a chain of causation that began with an illegal arrest. Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975).

In applying these principles to the cases before us, we must of course focus upon the underlying Reason for the existence of the exclusionary rule: to deter government officials from constitutional violations by denying them the use of improperly obtained evidence. See Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233 (1956). It is apparent that this policy is more-than-sufficiently vindicated by the exclusion from evidence of the illegally seized jewelry itself, see People v. Griffin, 59 Cal.App.3d 532, 130 Cal.Rptr. 648, 652 (1978), and, on the other hand, would not be furthered in the slightest by precluding evidence of Mrs. Shultz's independent identifications of the defendants as the robbers. Surely, the Suffolk County police officers who actually committed the illegal act will not be rendered any less likely to do it again by their knowledge of such a result. United States v. Ceccolini, supra, at 435 U.S. 280, at 98 S.Ct. 1062, at 55 L.Ed.2d 279. Moreover, there is no evidence of a collusive pre-search communication between Coral Gables and New York or of knowledge by the Suffolk County officials of the fact that the Coral Gables offense had even taken place. There was certainly no indication of a deliberate or purposeful desire illegally to secure the jewelry as a means of solving that crime. Compare United States v. Edmons, 432 F.2d 577 (2d Cir. 1970). Under these circumstances, it is plain that the eye-witness identification of the defendants was not the result of an "exploitation" of the illegal seizure of the jewelry, see also United States v. Ceccolini, supra, at 435 U.S. 280, at 98 S.Ct. 1062, at 55 L.Ed.2d 268; Brown v. Illinois, 422 U.S. 590, 95...