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    Colorado Criminal Law – Understanding The Fruit of the Poisonous Tree Doctrine

    By H. Michael Steinberg Colorado Drug Crimes Criminal Defense Lawyer – Attorney

    Colorado Criminal Law - Understanding The Fruit of the Poisonous Tree Doctrine












    Colorado Criminal Law – Understanding The Fruit of the Poisonous Tree Doctrine – When one hears the words “fruit of the poisonous tree” in the context of a criminal case, the public, (while perhaps pleased by the sound of the words which sound promising), may not have a comprehensive understanding of how the rule came into being and exactly when, or if, damaging evidence can be excluded from their case through the application of the “fruits” doctrine .

    This article addresses the fruit of the poisonous tree doctrine as applied through the use of the exclusionary rule.

    Basically, the rule is this: when an illegal action such as an illegal search and seizure is used by the police to obtain gain any incriminating evidence, that evidence which stemmed from the illegal action – (evidence that is the “fruit of the poisonous tree”) cannot be admitted at trial.

    The Reasoning Underlying the “Fruits of the Poisonous Tree” Rule

    Before the year 1914 illegal and warrantless searches conducted by law enforcement went unpunished America. In 1914 the United States Supreme Court decided Weeks v. United States, 232 U.S. 383, 34 S. Ct.341, 58 L. Ed. 652 (1914) and the law changed with the application of the exclusionary rule to illegally obtained evidence.

    This “Fruits” Rule is essentially an extension of a broader umbrella concept called the exclusionary rule. The exclusionary rule applies to exclude ANY evidence that is illegally obtained and prohibits the use of that evidence in the trial of a Defendant.

    The Fruits of the Poisonous Tree Doctrine was established to prevent police misconduct, specifically as it relates to violations of the constitutional rights of those accused of crime. The reasoning underlying the rule is that if the tree, (the illegally obtained evidence) is poisoned, so, too, must be the “fruit” of that tree.

    Again, it is a rule that requires that all evidence derived from the unconstitutional actions of law enforcement be excluded from evidence as well as the original, illegally seized evidence. It is designed to prevent abusive, eager-beaver policemen from trampling Fourth Amendment protections.

    The unusual term of fruit of the poisonous tree was coined by Justice Frankfurter in 1939.

    The Bill Of Rights And The Application Of The Exclusionary Rule

    The exclusionary rule is a rule of law which is grounded on constitutional law. As noted the larger rule precludes ALL evidence collected or analyzed in violation of a Defendant’s constitutional rights from being used in a court of law and therefore the constitutional history of the rule is extremely relevant.

    The history of the exclusionary rule establishes that the rule was and is intended to be “prophylactic” – meaning it is intended to prevent violations of an accused’s constitutional rights. Those constitutional rights stem from the Bill of Rights and the application of the rule to those rights protects citizens from the Government’s unlawful actions.

    The exclusionary rule is powerful. It not only applies to specific pieces of evidence, it applies to illegal arrests, illegal wiretapping, and illegal interrogations. Any and ALL evidence gathered through questionable or outright illegal means cannot be used against a Defendant.

    Without the fruit of the poisonous tree doctrine as an evidentiary rule that can be used to exclude evidence at trial, a violation of key provisions of the Bill of Rights would have no “teeth.”

    Key Provisions Of The Bill Of Rights Protected By The Exclusionary Rule

    The Fourth Amendment

    The Fourth Amendment is essentially the most important components of your right to privacy.

    The Fourth Amendment provides to people the right:

    “…to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and requires warrants to be based “upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    The rights afforded by the Fourth Amendment are fundamental to our democracy and are under constant threat from the Governmental interest in “efficient” law enforcement. The “fruit of the poisonous tree” doctrine puts a check on illegal conduct by the police by limiting or foreclosing the use and admissibility of that Governmental evidence that has been gained through an illegal search or seizure.

    The Fifth Amendment

    The Fifth Amendment is another key component to the right to privacy. The Fifth Amendment protects a person from being “compelled in any criminal case to be a witness against himself.” The right to be free from self-incrimination is critical to the individual’s protection from the State’s interest in a successful prosecution at all costs.

    The Fifth Amendment seeks to protect the truth seeking function of the courts.

    The Miranda decision is the case all of us reflect upon when we think of the Fifth Amendment. After the Miranda decision, the police must give a warning to a suspected criminal Defendant of their right to remain silent. The “Miranda warnings” alert a suspected criminal defendant not only of his or her right to remain silent and to the fact that anything he says can be used against him ( the protections of the Fifth Amendment) but the warning also alerts him or her to the constitutional right to consult with an attorney and to have an attorney present during questioning (the Sixth Amendment).

    Furthermore, he Miranda rule requires that once an accused has invoked his right to have counsel present during custodial interrogation, law enforcement must stop ALL questioning at the point of invocation.

    The “fruit of the poisonous tree” doctrine is used by the Courts to protect against violations of the Fifth Amendment as applied to statements. The doctrine may be applied when the Government seeks to admit at trial unwarned statements which have been tainted and are therefore the “fruit of the poisonous tree.”

    The Sixth Amendment

    The Sixth Amendment’s “counsel clause “provides that:

    “[i]n all criminal prosecutions, the accused shall enjoy the right…to have the assistance of counsel for his defense.

    Like the Fourth and Fifth Amendment, the remedy for a violation of the Sixth Amendment’s right to a lawyer (depending on the facts of course) is the exclusion from evidence of statements obtained unlawfully. However the basis for the application of the Sixth Amendment’s exclusionary rule is directed more to the right to a fair trial and less to deter illegal police conduct.

    How The “Fruit Of The Poisonous Tree” Doctrine Works In Real Life

    A Motion To Suppress Evidence is the proper vehicle at a pretrial hearing called a Motions Hearing to challenge unlawfully obtained evidence.

    Application Of The Exclusionary Rule In Colorado Drug Cases

    In Colorado drug crime cases the most common example of the application of the “fruits” doctrine is the classic illegal search of a vehicle or a person following a simple traffic stop. If a Colorado law enforcement officer stops your car for a traffic violation and he or she does NOT have probable cause to search your car, an illegal search of that car and the discovery of controlled substances is unlawful under the Fourth Amendment.

    The Government is NOT allowed to later use that unlawfully obtained evidence at a trial on charges of the Unlawful Possession of Controlled Substances.

    At the Motion To Suppress Evidence hearing the defense lawyer would demand the Trial Judge invoke the exclusionary rule and suppress illegally seized drugs. A Judge not a jury makes this decision. In Colorado, the Defendant has the initial burden of showing that his proving constitutional rights were violated.

    If the Trial Judge decides the seizure of the evidence was illegal, and the seizure did not fall into one of the FOUR recognized exceptions (see below) the exclusionary rule requires that the evidence will be suppressed in the pending case.

    Not Always A Dismissal Of The Case

    This is where it becomes a little confusing. A Trial Judge only has the authority to suppress the evidence illegally seized and NOT to dismiss the case. If, after application of the exclusionary rule there remains OTHER EVIDENCE from another source, the District Attorney has the right to proceed to trial on that evidence.

    Finally, if a Trial Judge grants a Motion to Suppress, the DA has the right, under certain circumstances, to immediately appeal that decision in an expedited proceeding that challenges the Trial Judge’s decision before the case goes to trial.

    A Fifth Amendment Example:

    In the Fifth Amendment context, the exclusionary or “fruits” rule applies,  if a person is in custody (under arrest or detained unlawfully) and the police question that person after the person demands the right to a lawyer. When the police fail to scrupulously honor the right to “lawyer up,” ignoring the suspects request for lawyer and continue their questioning any incriminating statements, such as a confession, is tainted or “poisoned” and those statements must be suppressed.

    Fruit Of The Poisonous Tree Exceptions – The Government’s Way Around The Exclusion Of Evidence Under The “Fruits” Doctrine

    Over many years courts of appeal around the country have developed exceptions to what many believe are the harsh impacts of excluding key evidence in criminal cases. As a result four primary exceptions to the exclusionary rule have evolved. Therefore, even when evidence is obtained illegally by the police, a Colorado Trial Judge may still admit the evidence at trial under one or more of the following four main exceptions.

    The FOUR PRIMARY EXCEPTIONS that amount to “work arounds” to the impacts of the fruit of the poisonous tree doctrine are:

    I. The Inevitable Discovery Exception.

    II. The Attenuation Exception.

    III. The Independent Evidence Exception.

    IV. The Good Faith Exception.

    I. The Inevitable Discovery Exception. The rationale behind this exception is that the subject evidence obtained illegally would have been discovered anyway, even without the tainted source.

    “Exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial.”

    II. The Attenuation Exception. More complex than the inevitable discovery exception, under the attenuation exception the Government must establish that the subject evidence was discovered as a result of an untainted, admissible source. Essentially attenuation means that the method used to for obtain the subject evidence has become so far removed from the illegal seizure that it “becomes” admissible. Under this exception, the link between the illegal search and seizure and the subject evidence is essentially broken. This is true even if the illegal search set in motion a chain of events that led to evidence that is ultimately revealed. The causal relationship between the primary constitutional illegality and the evidence obtained is so attenuated as to purge the latter of the taint.

    III. The Independent Evidence Exception. Again, a relatively simple exception. If the subject evidence is first discovered illegally but then legally discovered later, it is admissible at trial. The Government must prove that the subject evidence was discovered by a source that was wholly independent of the illegality.

    IV. The Good Faith Exception. Colorado has codified the Good Faith Exception under CRS § 16-3-308. This is a somewhat complex exception. Under this exception even if a search warrant was illegally issued my some error on the part of a Colorado Judge, if the police executed the search warrant in “good-faith” believing that the warrant was valid, the evidence would be admissible at

    The focus then is on the warrant and on the actions of the police.

    Fighting The Good Faith Exception

    There are several ways to defeat the State’s attempt to admit evidence under the Good Faith Exception.

    First: The Judge who signed and issued the warrant cannot have been mislead by the “affiant” (the police officer requesting the warrant). Therefore, if the affiant knew the information that was provided in the warrant was false or he should have know the information was false and acted in in reckless disregard of the truth, the good faith exception can be defeated.

    Second: If the Judge who signed and issued the warrant abandoned her or his role as a judge or magistrate, the good faith exception can be defeated.

    Third: If the warrant itself was “so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable” or “so facially deficient” that the officers executing the warrant could not have reasonably presumed it to be valid, the exception will again fail.

    A Balancing Act

    There is no question that the Fruit of the Poisonous Tree Doctrine is controversial. It is a powerful weapon in the arsenal of the Colorado criminal defense lawyer and it is used by the defense to defeat the government in cases where a jury might convict had the evidence in question not been obtained illegally. Having said that the intent of the rule is to protect all citizens from illegal government activity and is an attempt to balance the competing policy interests of protecting Colorado’s citizens from crime, and protecting those same citizens from the illegal actions of law enforcement.

    Colorado Criminal Law – Understanding The Fruit of the Poisonous Tree Doctrine

    If you found any of the information I have provided on this web page article helpful please click my Plus+1 or the Share buttons for Twitter and Facebook below so that others may also find it.

    The contents of this article are based upon my research, my personal experience and my personal analysis and opinions developed from my thirty six years (as of 2018) of criminal trial experience from both sides of the courtroom – as a former career prosecutor for Arapahoe and Douglas Counties (13 years) and as the owner of my own Criminal Defense Law Firm since 1999 (19 years).

    The reader is also admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

    If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

    Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael will be at your side every step of the way – advocating for justice and the best possible result in your case. H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case

    Over 40 Years Specializing in Colorado Criminal LawABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at:

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    A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

    “A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

    You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer. We encourage you to “vet” our firm. Over the last 36 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice.

    Putting more than 36 years of Colorado criminal defense experience to work for you.

    H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Law – Understanding The Fruit of the Poisonous Tree Doctrine.

    Colorado Criminal Law - Understanding The Fruit of the Poisonous Tree Doctrine
    Article Name
    Colorado Criminal Law - Understanding The Fruit of the Poisonous Tree Doctrine
    When one hears the words "fruit of the poisonous tree" in the context of a criminal case, the public, (while perhaps pleased by the sound of the words which sound promising), may not have a comprehensive understanding of how the rule came into being and exactly when, or if, damaging evidence can be excluded from their case through the application of the "fruits" doctrine .

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    If you found the information provided on this webpage to be helpful, please click my Plus+1 button so that others may also find it.

    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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