Application of Fruit of the Poisonous Tree Doctrine to In-Court Identification Testimony
Com. v. Santiago, 160 A.3d 814 (Pa. Super. 2017), allocatur granted Jan. 22, 2018, appeal docket 1 EAP 2018
During a police stop for heavy window tint on his vehicle, Angel Santiago fled from police, running over Officer Sanchez’s foot in the process. After a failed pursuit, police returned to the location of the stop where they found a cell phone on the ground. Without attempting to determine who owned the phone, police conducted a warrantless search of the phone, which contained two contacts: “My Babe” and “Angel Santiago.” Based on the contacts listed, police searched the national crime database for “Angel Santiago.” As a result of this search, police obtained a photograph of the Defendant, who Officer Sanchez identified as the driver of the vehicle. Based on this identification and the officer’s interview regarding the incident, Santiago was arrested and charged with simple assault, aggravated assault, recklessly endangering another person, and fleeing or attempting to elude a police officer.
Santiago filed a motion to suppress the in-court identification testimony of the officer based on his observations from the scene of the incident, arguing that such testimony by Officer Sanchez was the fruit of the poisonous tree stemming from his unconstitutional search of Appellee’s cell phone. Officer Sanchez was the only witness to testify at the suppression hearing. The trial court granted Santiago’s motion, suppressing Officer Sanchez’s in-court identification of Santiago.
The Commonwealth appealed. On appeal, the Superior Court considered whether the trial court committed an error of law when it deemed Officer Sanchez’s testimony regarding Santiago’s identity suppressible as fruit of an unlawful search.
The court began its analysis with a review of controlling United States Supreme Court precedent. Addressing the case of Gilbert v. California, 388 U.S. 263 (1967), involving in court identifications stemming from observations made at the scene of the crime prior to an unconstitutional line-up, the Superior Court noted the Supreme Court’s holding that the state should be afforded the opportunity to prove that the in-court identifications based on direct observations of the criminal conduct were admissible if such testimony was untainted by the unconstitutional acts, by showing an independent source for such testimony. The Superior Court then looked to United States v. Crews, 445 U.S. 463 (1980), noting the Crews court “drew a sharp distinction between ‘identity’ itself – that is, the presence of the defendant at trial – which is never suppressible, and eyewitness identification testimony, both of the in-court and out-of-court variety such as at issue in this case, which is potentially suppressible.” Slip Op., at 12.
Finally, the Superior Court reviewed I.N.S. v. Lopez-Mendoza et al., 468 U.S. 1032 (1984), where an illegal immigrant objected to being summoned into court because of his unlawful arrest by an Immigration and Naturalization Service (“INS”) agent. In that case, the court opined that “[t]he ‘body’ or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest[.]” Slip Op., at 14. However, the Superior Court found Lopez-Mendoza inapplicable based on the Supreme Court’s ultimate holding in that case that the exclusionary rule was inapplicable to civil deportation hearings held by INS. Additionally, the Superior Court opined that to the extent Lopez-Mendoza stated principles applicable to criminal law, it was “not convinced that the nonsuppressibility of ‘[t]he ‘body’ or identity of a defendant[,]’ encompasses anything more than a defendant’s inability to object to his own physical presence in the courtroom.” Slip Op., at 16.
Having found no support for a categorical ban on the suppression of eyewitness testimony in United States Supreme Court precedent, the Superior Court looked to the Pennsylvania Supreme Court’s decision in Commonwealth v. Garvin, 293 A.2d 33 (Pa. 1972). Noting that the Garvin Court did not distinguish between the in- and out-of-court identification for purposes of suppression, the Superior Court found the Garvin Court’s application of the taint/independent-source doctrine to the eyewitness identification at issue in that case was contrary to the categorical ban on suppression argued by the Commonwealth.
Returning to the facts of Santiago’s case and applying these principles to the in-court identification testimony of Officer Sanchez, the Superior Court explained:
With regard to that testimony [out of court identification testimony], Officer Sanchez’s status as the officer who committed the unconstitutional search is far less relevant to the ‘taint’ attached to his in-court identification testimony. Officer Sanchez could have identified Appellee in-court, based on his observation of Appellee made prior to the unconstitutional search, whether or not his illegal conduct ultimately hastened that in-court confrontation. See Garvin, 293 A.2d at 37 (noting that the effect of the unconstitutional arrest had only hastened the inevitable in-court confrontation, but did not influence its outcome). As the Garvin Court stated:
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.’
Id. (quoting Wong Sun, 371 U.S. at 487–88, 83 S.Ct. 407). Here, Officer Sanchez’s ability to identify Appellee in-court existed independently of, and arose prior to, the illegal act which otherwise corrupted his out-of-court identification.
Slip Op., at 26-27.
Reiterating that identity itself cannot be suppressed, the Superior Court found that, while Officer Sanchez’s in-court testimony was “potentially suppressible in the right circumstances,” the trial court erred in its analysis. Specifically, the Superior Court found, based on its analysis of the applicable case law that “[t]he nuanced, but critical distinction to make is whether evidence about identity has been tainted by illegal conduct or whether the relationship between the illegality and the evidence is tenuous; the question is not whether the perpetrator’s identity itself was likely to have been discovered without the illegality.” Slip Op., at 29.
Having found no other legal basis for suppression of Officer Sanchez’s in-court testimony, the Superior Court reversed the trial court’s suppression order.
The Pennsylvania Supreme Court granted allocatur on the following issue as stated by Santiago:
Is not the Superior Court’s published opinion applying the fruit of the poisonous tree doctrine to in-court identification testimony inconsistent with controlling Fourth Amendment United States Supreme Court precedent and Article I, § 8, and does not its reliance on overly broad language in Commonwealth v. Garvin, 293 A.2d 33 (Pa. 1972), necessitate this Court’s guidance and explicit rejection of Garvin and its progeny?