                                  [J-93-2018]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                               EASTERN DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


 COMMONWEALTH OF PENNSYLVANIA,                   :   No. 1 EAP 2018
                                                 :
                      Appellee                   :   Appeal from the Order of the Superior
                                                 :   Court entered on April 20, 2017 at No.
                                                 :   1191 EDA 2016 affirming in part,
               v.                                :   reversing in part and remanding the
                                                 :   Order entered on March 18, 2016 in
                                                 :   the Court of Common Pleas,
 ANGEL SANTIAGO,                                 :   Philadelphia County, Criminal
                                                 :   Division, at No. CP-51-CR-0000903-
                      Appellant                  :   2015.
                                                 :
                                                 :   ARGUED: December 6, 2018


                                         OPINION


JUSTICE TODD                                                     DECIDED: June 18, 2019
       The “fruit of the poisonous tree” doctrine prohibits the admission of evidence at

trial that was tainted by unconstitutional actions by law enforcement officials. Certain

exceptions, however, exist to this doctrine. In this appeal by allowance, we consider

whether a police officer’s initial observations of a defendant at the scene of a crime,

followed by a warrantless search of a cellular telephone left at the scene, which leads to

the discovery of defendant’s identity, taints the officer’s subsequent in-court identification

of the defendant. For the reasons set forth below, we find, under the fruit of the poisonous

tree doctrine, that an identification made as a result of a warrantless search of the

contents of a cell phone renders such identification tainted and inadmissible. However,

a pre-search identification of a defendant may be admissible, if independent of the taint
of the subsequent unconstitutional search. Thus, we affirm the order of the Superior

Court.

         On July 31, 2014, at approximately 6:50 p.m., Philadelphia Police Officer Paul

Sanchez was on foot patrol with his partner on the 3500 block of Randolph Street in

Philadelphia when he observed a Mitsubishi Galant operating with a heavily tinted

windshield in violation of the Motor Vehicle Code.1 When Officer Sanchez waved the car

down, the driver, Appellant Angel Santiago, pulled over and lowered the driver’s side

window as the officer approached that side of the vehicle. Appellant seemed nervous

and avoided eye contact with Officer Sanchez, who asked for Appellant’s license,

registration, and insurance information. Appellant replied that he had no license. The

officer estimated that one to two minutes elapsed during the exchange during which he

had the opportunity to observe Appellant’s behavior at close range. When the officer

directed Appellant to turn off the vehicle, Appellant did not comply with this request, and

began to reach into the center console. Officer Sanchez immediately reached through

the window and grabbed Appellant’s arm to prevent him from retrieving anything from the

console.

         When Officer Sanchez grabbed Appellant’s arm, Appellant accelerated the car with

half of the officer’s body still inside it. Officer Sanchez repeatedly requested Appellant to

pull over as Appellant sped away. Officer Sanchez released his grip on the driver, causing

the officer to be thrown away from the vehicle and onto the road, and Appellant’s vehicle

ran over Officer Sanchez’s right foot. The officer later required medical treatment for his

injuries. At no time during the encounter did Officer Sanchez learn the driver’s name or

identity.




1   75 Pa.C.S. § 4524(e)(1).


                                      [J-93-2018] - 2
       Immediately after Appellant fled the scene, Officer Sanchez and other officers

returned to the location of the original traffic stop and retrieved a cell phone on the ground.

Officer Sanchez opened the phone and accessed it, without securing a search warrant,

in an attempt to ascertain the identity of the phone’s owner.2 Only two contacts were

found in the phone, neither of which was immediately displayed upon opening the phone;

rather, the officer had to affirmatively navigate through the phone and select the

necessary functions to make the names and phone numbers appear on the screen. The

first contact was “Angel Santiago,” and the second one was “My Babe.” Officer Sanchez

called the contact “My Babe,” but no one answered.

       Later that day, a detective assigned to the case ran a search of the name Angel

Santiago through the National Crime Information Center (“NCIC”) database.3 As a result

of the search, the detective obtained a recent prison release photograph of an Angel

Santiago in the Philadelphia area. When the detective showed Officer Sanchez the

photograph, the officer immediately identified the pictured individual as the driver of the

vehicle.   Based on that identification and information the officer provided when

interviewed about his encounter with Appellant, an arrest warrant was issued, and

ultimately Appellant was arrested and charged with aggravated assault and other crimes.

       Appellant filed an omnibus pre-trial motion seeking, inter alia, to suppress Officer

Sanchez’s anticipated testimony at trial regarding his out-of-court identification of

Appellant from the criminal database photograph, and his in-court identification of

2  The Commonwealth concedes the cell phone was not voluntarily abandoned in light of
its dislodging during the struggle between the Appellant and Officer Sanchez, and, thus,
that the search of the phone without a warrant was illegal.
3The NCIC is an electronic clearinghouse of criminal data that can be accessed by most
criminal justice agencies nationwide, to assist in the apprehension of fugitives, locate
missing persons, recover stolen property, and identify terrorists. See generally
www.fbi.gov/services.cjis.ncic.



                                       [J-93-2018] - 3
Appellant at trial, asserting that any identification of Appellant by the officer would be

solely the product of the officer’s unconstitutional warrantless search of the contacts in

Appellant’s cell phone – i.e., the fruit of the poisonous tree.4

       At the suppression hearing, Appellant did not contest whether Officer Sanchez had

a sufficient opportunity to view Appellant, the clarity of the observation, or the officer’s

ability to examine Appellant’s face. N.T., 2/19/16, at 39 (“It’s not the fruit itself that is the

issue. It is not the in court identification. Again, I am not arguing that the officer didn’t

have enough time to look at my client, and was it dark outside, you know, did you see his

eyes, that kind of stuff. That is not what I am arguing. I am arguing that the flow that gets

us to this point, that is what’s tainted. That is the poisonous tree that makes the in court

[sic]”). Thus, by Appellant counsel’s own statements and actions at trial, he was not

contesting Officer Sanchez’s ability to view Appellant at the initial encounter in which he

was both investigating officer and victim. Rather, Appellant’s focus was that Officer

Sanchez’s in-court identification, even if initially founded solely on his encounter with

Appellant, was tainted by his subsequent viewing of Appellant’s NCIC photograph.

       The Philadelphia County Court of Common Pleas granted Appellant’s motion and

suppressed both anticipated identifications of Appellant. The trial court, per Judge Kai N.

Scott, first concluded that Officer Sanchez’s warrantless search of Appellant’s cell phone

was unconstitutional.     Moreover, the court found that the officer’s testimony at the

suppression hearing confirmed that the unlawful search produced the prison photograph,

which enabled the police to confirm Appellant’s identity, which led to Officer Sanchez


4 As discussed below, generally speaking, the exclusionary rule applies to evidence that
was obtained from a search or seizure in violation of the Fourth Amendment. The fruit of
the poisonous tree doctrine extends the exclusionary rule to render evidence inadmissible
which was derived from the initially illegally obtained evidence.




                                        [J-93-2018] - 4
positively identifying him out-of-court. The court reasoned that Appellant would not have

become a suspect but for the illegally-obtained evidence.

       More specifically, the court determined that, because an arrest warrant was issued

immediately after the search of the cell phone, this demonstrated that the Commonwealth

relied entirely on the illegally-obtained evidence of Appellant’s identity as the means to

effectuate his arrest and to procure his presence for trial. The court concluded that, even

if Officer Sanchez were to identify Appellant in court, such testimony was inseparable

from, and dependent upon, the warrantless search. Furthermore, the court reasoned that

the officer’s identification could not dissipate the taint of the unlawful search of the cell

phone because the “very opportunity for the officer to identify [Appellant] by his physical

presence in the courtroom is occasioned upon the exploitation of the warrantless search

to secure his attendance.” Trial Court Opinion, 7/18/16, at 12. According to the court,

there was no evidence independent of the unlawful search that could establish Appellant’s

identity in court, as the officer’s unlawful search and out-of-court identification were what

enabled the officer to identify Appellant at trial.

       Related thereto, the court rejected the Commonwealth’s argument that Officer

Sanchez was able to identify Appellant at trial on the independent basis of his

observations of Appellant during the initial traffic stop.      Possibly as a result of trial

counsel’s position, in granting Appellant’s motion, the trial court did not find Officer

Sanchez’s initial viewing of Appellant at the scene of the crime to be defective. N.T.,

3/18/16, at 5-6 (“The Commonwealth . . . talked a lot about the suggestivity of the

identification, and that is one basis for exclusion identification, but it’s not the sole basis

that an I.D. can be excluded. I’m not suggesting that Officer Sanchez wasn’t able to see

what he saw.”). Instead, the court concluded that no independent basis existed for the

officer’s in-court identification because the officer’s testimony was inseparable from and




                                        [J-93-2018] - 5
dependent upon the warrantless search that he conducted of Appellant’s cell phone.

Thus, according to the court, the Commonwealth failed to establish that the officer’s

observations were “truly independent” of either his actions that constituted misconduct or

the tainted testimonial evidence that his illegal search produced because the officer

himself conducted the warrantless search, and such “unlawful search disqualifies his

testimony on that matter at trial.” Trial Court Opinion, 7/18/16, at 16-17.            The

Commonwealth appealed.5

         In a unanimous opinion, President Judge Emeritus John T. Bender, writing for a

three-judge panel of the Superior Court, affirmed in part, reversed in part, and remanded

the matter for further proceedings. Commonwealth v. Santiago, 160 A.3d 814 (Pa. Super.

2017).    As neither party disputed the suppression court’s underlying ruling that the

warrantless search of Appellant’s cell phone was unconstitutional, the Superior Court

limited its review to the scope of the suppression remedy afforded to Appellant as a result

of the unconstitutional search, and an examination of the Commonwealth’s contention

that, because eyewitness identification testimony is never suppressible, the trial court

erred in suppressing Officer Sanchez’s anticipated in-court identification of Appellant.

         The court first spoke to the Commonwealth’s blanket assertion that neither a

defendant’s presence, nor a witness’s independent memory of a face, is suppressible, by

tracing the history of applicable federal and Pennsylvania case law beginning with the

United States Supreme Court’s decision in Wong Sun v. United States, 371 U.S. 471

(1963).6 The court observed that, under certain circumstances, eyewitness identifications

5 On April 14, 2016, the Commonwealth filed a notice of appeal indicating that the
suppression court’s order terminated or substantially handicapped the prosecution of
Appellant, justifying an interlocutory appeal per Pa.R.A.P. 311(d).
6 The reference to the suppression of the accused’s “person,” “body,” or “face,” at trial,
stems from the United States Supreme Court’s consideration of this concept in United
States v. Crews, 445 U.S. 463 (1980), discussed below. For purposes of this decision,



                                      [J-93-2018] - 6
have been suppressed under the fruit of the poisonous tree doctrine. See, e.g., Gilbert v.

California, 388 U.S. 263, 272 (1967). The Superior Court reasoned that, under Gilbert,

both in-court and out-of-court identity-related testimonial evidence is “potentially

suppressible,” but that identification testimony that was a direct result of unconstitutional

conduct should be suppressed to deter police from engaging in such conduct. Santiago,

160 A.3d at 820 (emphasis original). Yet, the Superior Court noted that the Gilbert Court

found that “the state should be afforded the opportunity to prove that the in-court

identifications (based on direct observations of criminal conduct) were admissible if such

testimony was ‘untainted’ by the unconstitutional acts, by showing an independent source

for such testimony.” Id.

       Next, the Superior Court turned to United States v. Crews, 445 U.S. 463 (1980),

wherein the high Court found a victim’s in-court identification of the defendant should not

have been suppressed because it was based entirely on the victim’s detailed recollection

of the defendant, and was neither the product of, nor tainted by, police misconduct. The

court noted that the United States Supreme Court did not embrace “the theory that

eyewitness identification testimony is categorically not suppressible.” Santiago, 160 A.3d

at 822. Rather, it concluded it drew a “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.” Id. (emphasis original).7

we will refer to the idea of suppressing an accused’s body or face as his or her “person”
at trial. This can be contrasted with identification evidence or testimony.
7 The Superior Court also distinguished the United States Supreme Court’s decision in
INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), on which the Commonwealth relied.
Addressing the high Court’s statement that the “body” or “identity” of a defendant is never
itself suppressible as a fruit of an unlawful arrest, the Superior Court first offered that the
decision arose in the context of a deportation hearing, and not a criminal trial, which
colored the high Court’s view of the strength of protections against unlawful governmental



                                       [J-93-2018] - 7
       Finally, the court extensively examined this Court’s decision in Commonwealth v.

Garvin, 293 A.2d 33 (Pa. 1972). In Garvin, the defendant’s arrest by police on suspicion

of robbery and burglary was deemed illegal by this Court; however, a robbery victim’s

subsequent in-person identification of the defendant as the perpetrator, after he was

taken into custody, and her in-court identification of the defendant, were deemed

admissible. The Garvin Court reasoned that, although the police lacked probable cause

to arrest the defendant, “[n]o law abiding society could tolerate a presumption that but for

the illegal arrest the suspect would never have been required to face his accus[e]rs,” and

“the only effect of the illegal arrest was to hasten the inevitable confrontation and not to

influence its outcome.” Id. at 37. Concluding that, because the illegal arrest of the

defendant merely allowed the victim to confront the defendant more promptly than would

otherwise have been the case, and that the arrest played no part in the victim’s

identification of the defendant, as she did not meet the defendant again until the day of

trial, the Garvin Court held it could not be assumed that, but for the illegal arrest, the

defendant would have remained at large indefinitely, and “the illegality contributed neither

to the knowledge of the witnesses nor the accuracy of their identifications.” Id. at 38.

Observing that the Garvin Court employed the taint/independent-source test, as did the

high Court in Gilbert, rather than any categorical ban on the suppression of identity

evidence, the Superior Court herein rejected the Commonwealth’s assertion that

eyewitness testimony is never suppressible under the fruit of the poisonous tree doctrine.




conduct. Moreover, the Superior Court read Lopez-Mendoza to stand for the proposition
that the non-suppressibility of the body or identity of the defendant only related to a
defendant’s inability to object to his own physical presence in the courtroom, an argument
that was not raised by Appellant herein. Rather, Appellant asserted that the police
officer’s testimony, through which the Commonwealth attempted to establish Appellant’s
identity as the perpetrator, was inadmissible.


                                      [J-93-2018] - 8
       Applying this decisional law, the Superior Court noted that Officer Sanchez’s out-

of-court identification of Appellant, i.e., his identification of Appellant’s photograph, was

directly related to his unconstitutional search of Appellant’s cell phone, and, thus,

suppression of that identification was required. However, the court went on to determine

that Officer Sanchez could have identified Appellant in court, based on his observations

of Appellant made prior to the unconstitutional search of the cell phone. Thus, the

Superior Court concluded that, because the officer's ability to identify Appellant in court

“existed independently of, and arose prior to, the illegal act which otherwise corrupted his

out-of-court identification,” the officer’s in-court identification of Appellant should not have

been suppressed. Santiago, 160 A.3d at 829. We granted Appellant’s petition for

allowance of appeal to our Court.

       As the parties agree, and we accept, that the Commonwealth’s search of

Appellant’s cell phone was unconstitutional, we limit our review on appeal to the question

upon which we granted allocatur.         Specifically, we inquire whether the fruit of the

poisonous tree doctrine warrants suppression of in-court identification testimony by a

police officer who observed a defendant prior to an illegal search of that defendant’s cell

phone. Commonwealth v. Santiago, 179 A.3d 455 (Pa. 2018) (order).8 As this issue

implicates constitutional requirements and raises a pure question of law, our standard of

review is de novo, and our scope of review is plenary. Commonwealth v. Shabezz, 166

A.3d 278, 285 (Pa. 2017).




8 The dissent takes issue with our “reframing” the issue in a fashion that “differs textually
from that upon which we granted review.” Dissenting Opinion at 6, 11. Respectfully,
when our Court grants allocatur on an issue as framed by the appellant verbatim, as is
the case here, we have not hesitated to rephrase the issue in our opinion. It cannot be
seriously contended that our elucidation of the legal issue before us is inaccurate or that
we have failed to address the matters contained in the issue as framed by Appellant.


                                        [J-93-2018] - 9
       Appellant argues that the Superior Court erred in its suppression analysis.

Specifically, according to Appellant, the Superior Court applied the “taint doctrine” to in-

court identification testimony without making a case-by-case determination. Appellant’s

Brief at 11. Appellant further criticizes the Superior Court for solely relying on “overbroad

language” in our Court’s decision in Garvin that “[n]o law abiding society could tolerate a

presumption that but for the illegal arrest the suspect would never have been required to

face his accusers” and, “[t]hus, we conclude that the only effect of the illegal arrest was

to hasten the inevitable confrontation and not to influence its outcome.” Id. at 12 (quoting

Garvin, 293 A.2d at 1277). Appellant asks that our Court disavow this language. Instead,

Appellant stresses that, in Commonwealth v. Fulton, our Court reaffirmed the fruit of the

poisonous tree doctrine and held that, when a witness is discovered through an

unconstitutional search of a defendant’s cell phone, the witness’s statements to police

and her trial testimony must be suppressed. 179 A.3d 475 (Pa. 2018). Appellant also

points to the United States Supreme Court’s decisions in United States v. Wade, 388 U.S.

218 (1967), and Crews which disallowed in-court identification testimony by a government

witness unless the government showed by clear and convincing evidence that such

identification was untainted, and that it had independent origins based upon observations

and memories made at the time of the crime.

       Appellant contends that it was the Commonwealth’s burden, which the Superior

Court ignored, to prove that the challenged in-court identification testimony had an

independent basis which arose from the officer’s observations and memory of the

incident. Appellant stresses the officer’s limited time to observe the driver-assailant who

avoided eye contact and never got out of his car, and the absence of record evidence

that Officer Sanchez ever gave a description of the perpetrator before being shown the

illegally-derived police photograph. Further, Appellant claims that it was only through the




                                      [J-93-2018] - 10
illegal search of the cell phone that Appellant’s name was discovered through the NCIC

photo identification of Appellant. Thus, Appellant asserts that there was no showing by

the Commonwealth that the officer’s in-court identification testimony was untainted. For

these reasons, Appellant requests that we reverse the Superior Court’s decision and

order the suppression of Officer Sanchez’s in-court identification testimony.

       In response, the Commonwealth first argues that Appellant’s claim before our

Court ― that the in-court identification should have been suppressed due to Officer

Sanchez’s brief opportunity to observe the driver which was tainted as a product of undue

suggestion ― is waived, as Appellant’s counsel at the suppression hearing specifically

stated that he was not making this claim. In support thereof, the Commonwealth proffers

counsel’s statement at trial that “[i]t’s not the fruit itself that is the issue. It is not the in

court identification. Again, I am not arguing that the officer didn’t have enough time to

look at my client, and was it dark outside, you know, did you see his eyes, that kind of

stuff. That is not what I am arguing. I am arguing that the flow that gets us to this point,

that is what’s tainted. That is the poisonous tree that makes the in court [sic].” N.T.,

2/19/16, at 39.     Thus, according to the Commonwealth, Appellant renounced any

argument that Officer Sanchez’s opportunity to view him prior to seeing the contents of

his cell phone was deficient or tainted.9

       In any event, the Commonwealth asserts that such claim fails on the merits, as

there was no evidence or finding of undue suggestion, and Officer Sanchez’s

observations of Appellant during the commission of the crime had a sufficiently




9  As noted, the Commonwealth accepts that, in this appeal, a warrant or exigent
circumstances were required for a lawful search of the cellphone, and, in this instance,
the search was illegal. Commonwealth’s Brief at 5.



                                        [J-93-2018] - 11
independent basis for the officer’s in-court identification.10          According to the

Commonwealth, identification is not suppressible as the fruit of an unlawful search or

arrest. The Commonwealth, after cataloging relevant federal case law, offers that there

is a debate surrounding whether in-court evidence regarding the identity of the offender,

such as eyewitness testimony, is suppressible, compared to suppression of the accused’s

person. The Commonwealth maintains that, under either scenario, Officer Sanchez’s in-

court identification of Appellant should stand.

       Specifically, the Commonwealth first contends that, if evidence regarding identity,

such as eyewitness identification testimony, is not suppressible, it follows that Officer

Sanchez’s in-court identification testimony regarding Appellant is clearly admissible. The

Commonwealth continues that, even if only the accused’s person is not suppressible,

then Officer Sanchez’s in-court identification is still admissible, as Appellant will be

present in court, regardless of the cell phone search, and Officer Sanchez would be free

to identify Appellant as the one he observed at the traffic stop, prior to the illegal search

of his cell phone. While the Commonwealth acknowledges that suppression may still be

required where an in-court identification was based upon improper actions by law

enforcement, it asserts that no such allegation was made here, and the suppression court

made no such finding.      Even if there has been such an improper suggestion, the

Commonwealth contends a subsequent in-court identification may still be admissible if

there exists an independent basis for that identification and, here, Appellant’s counsel


10 The Superior Court perceived the Commonwealth’s argument before that court to be
that in-court identifications can never be suppressed. However, the Commonwealth
agrees that an in-court identification may be suppressed, if the witness bases the
identification on an impermissibly suggestive pretrial procedure, instead of an
independent recollection of the offender. This position, as explained below, is consistent
with the law as it has evolved with respect to the exclusion of eyewitness identification
testimony. Thus, we reject any contention that in-court identifications can never be
suppressed.


                                      [J-93-2018] - 12
effectively conceded that the officer’s view of Appellant was unimpeded, of sufficient

duration, and made at close range. Further, the Commonwealth points out that Officer

Sanchez never misidentified Appellant or equivocated when identifying him.             Thus,

according to the Commonwealth, Officer Sanchez’s testimony was far more than required

to establish an independent basis for the in-court identification, and any questions

regarding the reliability of that identification were for the trier of fact.

       By way of foundation for our analysis, we clarify a few matters before turning to the

legal issue before us. Initially, for ease of nomenclature, we characterize the three

observations/identifications at issue. First, there was the initial in-person encounter

between Officer Sanchez and the individual driving the vehicle on the streets of

Philadelphia (“initial encounter”) prior to the illegal search of Appellant’s cell phone.

Additionally, there are two proffered identifications made by Officer Sanchez of Appellant

subsequent to the illegal search. The first was when Officer Sanchez identified Appellant

after being shown the NCIC photograph of Appellant (“out-of-court identification”). The

second identification is the proffered identification by Officer Sanchez of Appellant at trial

(“in-court identification”).

       Furthermore, while Appellant has perfunctorily invoked the Pennsylvania

Constitution as an independent basis on which to analyze this matter, he fails to employ

the proper analytical framework announced in Commonwealth v. Edmunds, 586 A.2d 887

(Pa. 1991), or even offer any meaningful argument as to how the protections provided by

the Pennsylvania Constitution provide greater rights to our citizens than those provided

for by the federal charter. Thus, we consider the issue before us solely under the United

States Constitution.

       The Fourth Amendment to the United States Constitution, which mandates that

searches and seizures be reasonable, provides as follows:




                                        [J-93-2018] - 13
              The right of the people to be secure in their persons, houses,
              papers, and effects, against unreasonable searches and
              seizures, shall not be violated, and no Warrants shall issue,
              but upon probable cause, supported by Oath or affirmation,
              and particularly describing the place to be searched, and the
              persons or things to be seized.
U.S. Const. amend. IV. While prohibiting unreasonable searches and seizures, the

Fourth Amendment provides no express guidance on how to treat evidence that is

obtained by conduct that violates the Amendment’s protections. Thus, we turn to an

analysis of the relevant federal and Pennsylvania decisional law in this area.

       Historically, the common law provided for the admission of all relevant evidence

the government possessed, regardless of how it was obtained. As late as 1904, the

United States Supreme Court reaffirmed this approach. Adams v. New York, 192 U.S.

585, 595 (1904) (“It may be mentioned in this place that though papers and other subjects

of evidence may have been illegally taken from the possession of the party against whom

they are offered, or otherwise unlawfully obtained, this is no valid objection to their

admissibility if they are pertinent to the issue.”).

       Yet, within a decade, the Supreme Court for the first time departed from the

common law rule regarding the admissibility of illegally-obtained property in criminal

proceedings by adopting an exclusionary rule which required the suppression of such

evidence. Weeks v. United States, 232 U.S. 383 (1914) (finding federal marshal’s seizure

of letters without a search warrant, and use of letters at trial, constituted prejudicial error,

requiring return of documents to defendant). Subsequently, this exclusionary rule was

extended beyond personal property when the high Court announced a prophylactic rule

that evidence unconstitutionally seized could not be used by the prosecution for any

purpose. Silverthorne Lumber Co. v. United States, 251 U.S. 358 (1920). Writing for the

Court, Justice Oliver Wendell Holmes reasoned that “[t]he essence of a provision




                                       [J-93-2018] - 14
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.” Id. at 392.

       Yet, eschewing an absolutist approach, Justice Holmes was quick to qualify his

words, explaining that, “[o]f course this does not mean that facts thus [illegally] 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.” Id. Thus, the

independent source doctrine became the first recognized exception to the exclusionary

rule. Other exceptions followed.

       Almost 20 years following Silverthorne Lumber, in Nardone v. United States, 308

U.S. 338 (1939), Justice Felix Frankfurter, writing for the Court, reaffirmed the

“independent source” doctrine of Silverthorne Lumber, coined the phrase “fruit of the

poisonous tree,” and went on to embrace the exception of attenuation: “Sophisticated

argument may prove a causal connection between information obtained through illicit

wire-tapping and the Government's proof. As a matter of good sense, however, such

connection may have become so attenuated as to dissipate the taint.” Id. at 341.

       In broader fashion, the Court went on to set forth the burden-shifting analysis to be

applied in exclusionary rule cases:

              The burden is, of course, on the accused in the first instance
              to prove to the trial court’s satisfaction that wire-tapping was
              unlawfully employed. Once that is established ― as was
              plainly done here ― the trial judge must give opportunity,
              however closely confined, to the accused to prove that a
              substantial portion of the case against him was a fruit of the
              poisonous tree. This leaves ample opportunity to the
              Government to convince the trial court that its proof had an
              independent origin.

Id.




                                      [J-93-2018] - 15
       Finally, the high Court more recently endorsed a third exception to the fruit of the

poisonous tree doctrine when it adopted the “inevitable discovery” rule in Nix v. Williams,

467 U.S. 431 (1984). Therein, the high Court held that, if “the prosecution can establish

by a preponderance of the evidence that the information ultimately or inevitably would

have been discovered by lawful means . . . then the deterrence rationale has so little basis

that the evidence should be received.” Id. at 444.

       The current expression of the doctrine was set forth in the Court’s seminal decision

of Wong Sun, supra. In Wong Sun, the Court extended the exclusionary rule to verbal

statements that are the “fruits” of an unlawful search in violation of the Fourth Amendment.

In that matter, federal narcotics agents unlawfully entered defendant’s home at 6:00 a.m.

and arrested him. In the course of making several statements which were inadmissible

against him, the defendant told the agents the identity and location of a third party. The

agents immediately went to the third party and obtained narcotics from him which were

introduced at trial against the defendant. Holding that the narcotics were inadmissible

“fruit,” Justice William Brennan, writing for the majority of the Court, articulated the

modern foundational standard, again eschewing an absolutist approach, and focusing on

whether the evidence was obtained by exploitation of the illegal search, by independent

means, or was purged of the taint:

              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 the exploitation of that illegality or
              instead by means sufficiently distinguishable to be purged of
              the primary taint.


Id. at 487-88 (emphasis added).


                                     [J-93-2018] - 16
       As the standards and exceptions to the fruit of the poisonous tree doctrine have

evolved over time, the policy rationale for the doctrine has evolved as well. The doctrine

was initially based upon considerations of moral values, equitable restoration, and judicial

integrity. See Richard M. Re, The Due Process Exclusionary Rule, 127 Harv. L. Rev.

1885, 1893-94 (2014). However, justification for a broad exclusionary rule evolved to rest

on a single foundation: as a deterrent to police to refrain from infringing upon Fourth

Amendment protections. Id. at 1894; Davis v. United States, 564 U.S. 229 (2011)

(wherein all three opinions focused solely on deterrence considerations). Thus, the

doctrine currently acts as a deterrent to unlawful law enforcement conduct by depriving

police officers of any advantages they might derive from such unconstitutional behavior.

A strong enough disincentive should work to eliminate the misconduct. However, there

is a social cost to employment of the exclusionary rule. Application of the doctrine results

in the inadmissibility of certain evidence, and the potential release of the guilty. Thus, the

fruit of the poisonous tree doctrine, as an aspect of judicial “supervision” of police

practices, has always necessitated a delicate balance, as exemplified by the above-

discussed decisional law. The above constellation of federal and state high Court

decisional law represents a compromise, determining that the necessity for deterrence

does not reach so far as to immunize defendants from prosecution, or to require forever

banning evidence from the courtroom. If the government can show that it obtained the

challenged evidence by lawful means and from a source independent of the illegality, the

twin aims of protecting an individual’s Fourth Amendment rights and deterring illegal

police conduct are satisfied.




                                      [J-93-2018] - 17
       Thus, Silverthorne Lumber, Nardone, Nix, and, most recently, Wong Sun, reflect

the evolution of the fruit of the poisonous tree doctrine, exceptions thereto, its policy

underpinnings, and the standard by which this exclusionary analysis is to be conducted.11

The general rule arising from these decisions ― excluding all evidence unlawfully seized

― extends to the direct and indirect products of the illegality. The question of whether

evidence is the “fruit” of illegal police conduct is resolved by determining whether,

assuming the primary illegality has been established, the challenged evidence has been

obtained by exploitation of that illegality, or instead, by means sufficiently distinguishable

to be purged of the taint of the primary illegality.

       In a series of decisions following Wong Sun, the United States Supreme Court

applied the fruit of the poisonous tree doctrine in the difficult area of eyewitness

identification. Indeed, the specific question of whether identification evidence acquired

subsequent to illegal conduct is fruit of the poisonous tree, and, therefore, subject to the

exclusionary rule, has vexed courts. Thus, a survey of the relevant federal and state

cases in this area is warranted.

       Over 50 years ago, in Wade, supra, the high Court considered a question similar

to the matter sub judice involving a pretrial identification deriving from an illegal arrest and



11 The protections announced in these decisions were made applicable to the states
through the high Court’s influential 1961 decision in Mapp v. Ohio, which declared that
“all evidence obtained by searches and seizures in violation of the Constitution is, by that
same authority, inadmissible in a state court.” 367 U.S. 643, 655 (1961). Previously, the
exclusionary rule had been required as a remedy only in federal courts for constitutional
violations by the federal government. The primary concern of the Mapp Court was the
protection of the fundamental right to privacy. Noting that the exclusionary rule is a
constitutionally required right of the Fourth and Fifth Amendments, the Court further
justified its decision to apply the exclusionary rule to the states upon the imperative of
judicial integrity and the deterrence of police misconduct.


                                       [J-93-2018] - 18
a subsequent in-court identification by the same witness. The Court considered the

import of an alleged bank robber’s participation in a pretrial lineup, conducted in the

absence of counsel, and whether a witness’s subsequent in-court identification should be

excluded. The case involved two men who robbed a Texas bank, and two bank witnesses

who identified the defendant in a pretrial lineup conducted in a local county courtroom.

While counsel was appointed to represent the defendant, he received no notice of the

lineup. After explaining the potential risk of prejudice in a pretrial lineup, Justice Brennan,

again writing for the Court, determined that such lineup was a critical stage of the

prosecution to which the right to counsel attached, and, thus, the defendant’s participation

in the lineup in the absence of counsel violated his Sixth Amendment right to a fair trial.

       Turning to the proper relief, the Court denied the defendant’s motion to strike the

identification by a bank witness at trial, until the government was given the opportunity to

establish that the in-court identification was based upon observations of the defendant

apart from the tainted lineup identification. Relying upon the test articulated in Wong Sun,

the Court questioned whether the identification derived from the illegal lineup, or by other

means sufficiently distinct.12     The Court could not determine whether the in-court

identification had an origin independent of the lineup, and concluded that such an inquiry


12 The Court listed several factors that courts should consider when evaluating whether
an in-court identification is derived from sources independent of an uncounseled pretrial
identification. These factors included: the prior opportunity to observe the alleged
criminal act, the existence of any discrepancy between any pre-lineup description and
defendant's actual description, any identification of another person prior to lineup,
identification by picture of the defendant prior to lineup, the failure to identify the defendant
on a prior occasion, and the lapse of time between the alleged act and lineup
identification. Wade, 388 U.S. at 241.




                                       [J-93-2018] - 19
was most properly made by the trial court. Thus, the Court vacated the conviction,

pending a hearing to determine whether there was an independent source for the in-court

identification.

       In Gilbert, supra, a companion case rendered the same day as Wade, Justice

Brennan more sharply clarified the parameters for admission of in-court identification

evidence in light of Wong Sun.        The high Court made a clear distinction between

identification testimony that was tainted by an illegal lineup and that which had an

independent source, such as an identification that preceded the illegal conduct.

Specifically, in Gilbert, a bank cashier testifying in an armed robbery trial identified the

defendant as the robber in the courtroom.          Defense counsel moved to strike her

testimony, asserting that her in-court identification was predicated in large part on her

identification at a police lineup that violated the defendant’s Sixth Amendment rights. The

Court reasoned that the admission of the cashier’s in-court testimony came without an

initial determination that her identification of the defendant was not tainted by the illegal

lineup. 388 U.S. at 272. As the record did not permit an informed judgment on whether

the in-court identification had an independent source, the Court remanded the matter for

a hearing to allow the State the opportunity to establish that the cashier’s in-court

identification had such a source.

       The Court contrasted its treatment of this witness with witnesses whose testimony

established the identity of the defendant solely as a result of the illegal lineup. The Court

found that the testimony of these individuals was “the direct result of the illegal lineup

‘come at by exploitation of (the primary) illegality.’” Id. at 272-73 (citing Wong Sun). Thus,

the State was not permitted an opportunity to demonstrate that the identifications had an




                                      [J-93-2018] - 20
independent source, reasoning that only a per se application of the exclusionary rule

would ensure that law enforcement would respect an individual’s constitutional right to

counsel at a lineup. Expressing that the contours of the doctrine were based upon a

balancing of considerations, the Court further opined that “in the absence of legislative

regulations adequate to avoid the hazards to a fair trial which inhere in lineups as

presently conducted, the desirability of deterring the constitutionally objectionable

practice must prevail over the undesirability of excluding relevant evidence.” Id. at 273.

       Thereafter, in Garvin, supra, our Court was confronted with the question of whether

an identification that was the result of an illegal arrest was tainted by that illegality.

Specifically, the defendant robbed a beauty salon and two victims had ample opportunity

to observe him, as they saw him for approximately five minutes in good lighting. After the

defendant was illegally arrested, he was taken to the beauty shop where one of the victims

identified him as one of the robbers. At trial, both victims made a positive in-court

identification of the defendant. After confirming that the defendant’s arrest was illegal,

Justice Robert Nix, writing for the Court, considered whether the identifications should

have been suppressed. Importantly, in his argument, the defendant did not differentiate

between the in-court identification and the out-of-court identification, but contended that

each was a fruit of the illegal arrest.     The Court rejected the argument that the

identifications should have been suppressed, offering that “[n]o law abiding society could

tolerate a presumption that but for the illegal arrest the suspect would never have been

required to face his accusors [sic]. Thus, we conclude that the only effect of the illegal

arrest was to hasten the inevitable confrontation and not to influence its outcome.” 293

A.2d at 37.




                                     [J-93-2018] - 21
       Applying Wong Sun, we reasoned that “the testimonial evidence did not derive

from ‘exploitation’ of any illegality,” and, thus, there was no reason to exclude the

evidence. Id. According to the Court, the illegal arrest only hastened the confrontation

with the one victim, and played no part in the identification of the defendant by the other

victim, who did not meet the defendant again until trial. We went on, however, to opine

that “[i]n either case it is clear that the illegality contributed neither to the knowledge of

the witness nor to the accuracy of their identifications.” Id. at 38.

       Eight years later, the United States Supreme Court in Crews, supra, again

addressed the suppression of an in-court identification of the defendant following his

unlawful arrest in violation of the Fourth Amendment. At the Washington Monument, a

woman was accosted in a restroom and robbed at gunpoint. Three days later, two other

women were assaulted and robbed in the same restroom. The description of the assailant

given by these women matched that given by the first victim. Police later observed the

defendant who resembled the description of the perpetrator. After approaching and

questioning him, he was allowed to leave.         Later, a tour guide confirmed that the

defendant looked like an individual he had seen on the day of the first robbery, and police

arrested the defendant, albeit it was later determined this arrest was illegal.          The

defendant was photographed, and the first robbery victim was shown an array of eight

photographs, including one of the defendant. This victim immediately selected the photo

of the defendant as the individual who robbed her, and the two other victims made similar

identifications. The trial court, recognizing the arrest was illegal, found that the victims’

ability to identify the defendant in court was independent and untainted by the intervening

identifications, and, thus, admissible.    On appeal, the District of Columbia Court of




                                      [J-93-2018] - 22
Appeals reasoned that, but for the defendant’s unlawful arrest, the police would not have

obtained the photograph that led to his subsequent identification by the first victim. Thus,

the court found that this victim’s in-court identification was at least partially the product of

governmental misconduct, and so should have been excluded.

       The Supreme Court rejected this approach. Again writing for the high Court,

Justice Brennan explained that, pursuant to Wong Sun and its progeny, exclusionary

sanctions apply to any “fruits,” including “tangible, physical material actually seized in an

illegal search, items observed or words overheard in the course of the unlawful activity,

or confessions or statements of the accused obtained during an illegal arrest and

detention.” Crews, 445 U.S. at 470. While noting that most cases in this area deal with

evidence that was acquired after the illegal conduct, the Court proffered that there were

three elements of the first victim’s in-court identification that could establish an

independent source for the testimony: (1) the victim was present at trial to provide

testimony as to what transpired at the time of the crime, and the identity of the defendant

as the offender; (2) the victim was able to reconstruct the crime and to identify the

defendant from her observations at the time of the crime; and (3) the defendant was

present in the courtroom, so that the victim could compare his appearance to her memory

of the offender.

       Moreover, the Court found that none of these elements came by exploitation of the

illegality, and compared this to the case where a witness’s identity was discovered or her

cooperation secured only as a result of illegal conduct by the government. Specifically,

the Court reasoned that the victim's presence in the courtroom was not the product of any

police misconduct. Furthermore, due to the victim’s independent observations at the time




                                       [J-93-2018] - 23
of the robbery, she was able to identify the defendant as the offender, and, thus, her

identification was independent of the illegality:

              Nor did the illegal arrest infect the victim's ability to give
              accurate identification testimony.         Based upon her
              observations at the time of the robbery, the victim constructed
              a mental image of her assailant. At trial, she retrieved this
              mnemonic representation, compared it to the figure of the
              defendant, and positively identified him as the robber. No part
              of this process was affected by respondent's illegal arrest. In
              the language of the “time-worn metaphor” of the poisonous
              tree, the toxin in this case was injected only after the
              evidentiary bud had blossomed; the fruit served at trial was
              not poisoned.
Id. at 472 (citations omitted).

       The Court cautioned, however, that an identification made after an illegal arrest

could impact the reliability of the in-court identification and render it inadmissible. Yet,

the trial court expressly found the victim’s in-court identification was a product of an

“independent recollection of her initial encounter with the assailant, uninfluenced by the

pretrial identifications, and this determination finds ample support in the record.” Id. at

473. Thus, the Court was comfortable in holding that the victim’s capacity to identify her

assailant in court was not a result of the unlawful police conduct committed after the victim

had developed that ability to identify.

       Finally, addressing the third element, the Court explained that an “illegal arrest,

without more, has never been viewed as a bar to subsequent prosecution, nor as a

defense to a valid conviction.” Id. at 474. Related thereto, the Court addressed the

assertion that the defendant’s person, akin to a photograph, should be considered

evidence, and subject to the exclusionary rule as fruit of the illegal police conduct. While

not deciding this issue, as the record disclosed that, prior to his illegal arrest, the police

knew the defendant’s identity and suspected his involvement in the criminal activity,

Justice Brennan explained that the doctrine “enjoins the Government from benefiting from



                                      [J-93-2018] - 24
evidence it has unlawfully obtained; it does not reach backward to taint information that

was in official hands prior to any illegality.” Id. at 475.

       Most recently, the United States Supreme Court dealt with the evidentiary

consequences of a Fourth Amendment violation in the context of a deportation hearing in

INS v. Lopez-Mendoza, supra. After noting that a deportation hearing is a purely civil

action whose purpose is not to punish but to determine eligibility to remain in the country,

the high Court stated “the ‘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, even if it is

conceded that an unlawful arrest, search, or interrogation occurred,” analogizing it to

forfeiture proceedings directed against contraband. Id. 468 U.S. at 1039-40. While at

least suggesting that, in the criminal context, a culprit’s presence is not excludable, the

Court continued by rejecting a claim that evidence offered at the hearing was suppressible

due to an unlawful arrest, holding broadly that the exclusionary rule does not apply in

deportation hearings. Id. at 1050.

       Finally, and related to our discussion, Professor Wayne LaFave offers the “pristine”

example of the independent source exception ― that is, an observation of an object (even

made by police), prior to unconstitutional conduct, which he concludes is unquestionably

admissible:

              But, in what is perhaps the most pristine example of the
              “independent source” exception discussed herein, the
              discovery of an object by an illegal search does not bar
              testimony about that object based upon an earlier, lawful
              viewing of it. See, e.g., United States v. Templeman, 965 F.2d
              617 (8th Cir. 1992) (where package opened pursuant to valid
              warrant and then was closed up and controlled delivery made
              to defendant, whose home then illegally entered and contents
              of package seized, testimony about those contents
              admissible, as “they had previously been discovered as a
              result of the valid search”); Cooper v. State, 432 So.2d 161
              (Fla. App. 1983) (where police illegally seized meat stolen
              from grocery store, manager of store could testify about


                                       [J-93-2018] - 25
              observing the taking of the meat and could testify about the
              value of the meat if he knew it from that observation, but could
              not testify as to value if it determined by examining the meat
              after the police recovered it); State v. Black, 175 W.Va. 770,
              338 S.E.2d 370 (1985) (though cash boxes recovered from
              defendant's house in illegal search, officer could testify as to
              seeing those boxes in defendant's car earlier during lawful
              stop).
6 LaFave, Search & Seizure, § 11.4 at 322 n.1.

       From this decisional law, scholarship, and underlying policy expressions emerge

certain guiding principles regarding application of the fruit of the poisonous tree doctrine

relevant to the identification testimony issues before us. First, Wong Sun provides the

general inquiry underlying the doctrine: “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.” Wong Sun, 371 U.S. at 488. The general rule excludes all evidence

unlawfully seized, and this extends to the direct and indirect products of the illegality.

Silverthorne Lumber. Moreover, excludable evidence includes proof that is tangible and

physical materials, items observed, words overheard, confessions or statements made

by the accused, and eyewitness identification testimony. Crews.

       Further, there is no per se ban on the admission of all evidence resulting from

unlawful law enforcement conduct. Silverthorne Lumber; Wong Sun; Crews. Rather, an

inquiry must be made into the source of the evidence as well as any potential tainting of

the evidence due to unconstitutional actions by police. Any evidence that comes solely

as a result of illegal conduct is tainted fruit, and is not admissible. Gilbert. Conversely,

the mere fact that certain evidence was obtained illegally does not necessarily bar

evidence based upon an earlier, lawful viewing. Crews; 6 LaFave, Search & Seizure, §

11.4 at 322 n.1. Evidence whose origin is wholly independent of unconstitutional action

by law enforcement is admissible. Wade. However, even evidence that originates prior



                                     [J-93-2018] - 26
to illegal conduct may be impacted by these unconstitutional actions, as those actions

can affect the reliability of the evidence at trial or render it inadmissible. Crews. All these

principles apply equally to identification testimony. Wade; Gilbert; Crews.

       Based upon all of the above, we hold that an identification made wholly as a result

of a warrantless search renders such identification tainted and inadmissible. However,

eyewitness identification of a defendant occurring prior to illegal conduct by law

enforcement may be admissible, if based on observations that are independent of the

taint of the subsequent unconstitutional search.13

       Turning to application of these principles to the matter sub judice, if Officer

Sanchez’s in-court identification was not independent of the illegal search of Appellant’s

cellphone, but, rather, was tainted by the unconstitutional conduct and the subsequent

13  Our holding today is consistent with federal jurisprudence in this area. See, e.g., U.S.
v. Concepion, 983 F.2d 369, 378 (2d Cir. 1992) (in-court identification admissible where
witnesses had opportunity to observe defendant, nature of events, including identification
made unequivocally within minutes or hours of shooting); Montgomery v. Greer, 956 F.2d
677, 681-82 (7th Cir. 1992) (although post-arrest lineup identification inadmissible fruit of
illegal arrest, in-court identification admissible because based on independent
recollection of previous encounter and rape victim's opportunity to view assailant)
Killebrew v. Endicott, 992 F.2d 660, 664-65 (7th Cir. 1993) (in-court identification
admissible when witness had between 30 seconds and 3 minutes to observe defendant
from a distance of two feet, defendant spoke to witness, witness trained to observe
characteristics, and witness testified shape of defendant’s face and nose stuck in her
mind); U.S. v. Foppe, 993 F.2d 1444, 1451 (9th Cir. 1993) (although photo identification
inadmissible fruit of illegal arrest, in-court identification admissible because witness
previously observed defendant in well-lit bank at close range); U.S. v. Slater, 692 F.2d
107, 108 (10th Cir. 1982) (regardless of whether out-of-court identification from photo
obtained pursuant to illegal arrest was admissible, in-court identification admissible
because witness saw crime at close range, there was little discrepancy between pretrial
description and actual appearance, and no misidentification or failure to identify
defendant); U.S. v. Thody, 978 F.2d 625, 629 (10th Cir. 1992) (subsequent to
impermissibly suggestive line up, in-court identification admissible when witnesses
observed defendant for several minutes at a distance of a few feet, light was good,
witnesses were attentive and trained to describe robber, three witnesses’ description
were all similar, and one witness cried “it’s him” upon seeing defendant at second
robbery).



                                      [J-93-2018] - 27
observation of Appellant’s picture as a result of the NCIC search, then all evidence that

came as a byproduct of the illegal cell phone search, including the NCIC identification,

was properly suppressed.

       However, Officer Sanchez observed Appellant both as a government officer and

as a victim of a crime prior to the illegal search.14 Thus, Officer Sanchez’s identification

was potentially free from any taint caused by the illegal search. In other words, Officer

Sanchez’s in-court identification testimony may have been tainted by the illegal cell phone

search, or may have been sufficiently independent therefrom and, thus, admissible at

trial.15 Wade; Gilbert; Crews; Garvin.16

       After the Commonwealth placed into evidence at the suppression hearing the

officer’s observations of Appellant during their initial encounter, under the Nardone

burden shifting construct, supra, it was incumbent upon Appellant to challenge the illegal

14 We recognize that Officer Sanchez, in this instance, is in the unusual position of being
the initial witness to, and actual victim of, a crime, and also the government agent who,
as an investigator, then illegally searched Appellant’s cell phone without a warrant, and
viewed Appellant’s photograph through the NCIC system, leading to Appellant’s arrest.
Yet, we see no reason to treat law enforcement officers any differently than any other
witness to a crime, and no case law offered by the parties suggests otherwise. Either the
evidence has an independent source or the evidence is tainted, regardless of whether the
victim/witness identification testimony comes from a police officer or a member of the
general public.
15Of course, even if admissible at trial, Officer Sanchez’s identification testimony would
be subject to cross examination and a credibility determination by the finder of fact.
16 Appellant urges that Officer Sanchez’s identification testimony should be suppressed
in its entirety, consistent with our recent decision in Fulton, supra. We reject this
argument. Specifically, while Fulton, like this matter, involved the illegal search of a cell
phone, all the evidence suppressed in that case was obtained as a result of the illegal
search, including the existence of a witness whose testimony identified the defendant as
using a name that was linked to the name of the murderer. Fulton, 179 A.3d at 495.
Consistent with Fulton, and as noted above, we find that any evidence obtained wholly
as a result of the unconstitutional search of Appellant’s cell phone must be suppressed.
Unlike Fulton, however, here we have Officer Sanchez’s observations that occurred prior
to the unlawful search of the cell phone, which if independent of that taint, would not
constitute fruit of the poisonous tree, and, as a result, would be admissible at trial.


                                      [J-93-2018] - 28
search (which he did), but also the factual nexus, or relationship, between that primary

illegality and the evidence in issue, i.e., that the specific identification evidence against

him was, indeed, an identifiable fruit of the poisonous tree. That is, Appellant needed to

establish that the initial encounter observations were tainted (or challenge the veracity of

the officer’s observations as an independent means of identification that he was not, in

fact, able to identify Appellant as the perpetrator at that time).             In response, the

Commonwealth would have then had the opportunity to convince the court that the

identification testimony was independent of any taint of the illegal search. Nardone, 308

U.S. at 341.

       Yet, here, as we view counsel’s ambiguous objection at the suppression hearing,

Appellant advocated only that Officer Sanchez’s testimony was retroactively tainted by

the “flow” ― the post-encounter unconstitutional search. N.T., 2/19/16, at 39 (“It’s not the

fruit itself that is the issue. It is not the in court identification. Again, I am not arguing that

the officer didn’t have enough time to look at my client, and was it dark outside, you know,

did you see his eyes, that kind of stuff. That is not what I am arguing. I am arguing that

the flow that gets us to this point, that is what’s tainted. That is the poisonous tree that

makes the in court [sic]”). At the suppression hearing, Appellant did not contest whether

Officer Sanchez has a sufficient opportunity to view Appellant, whether the lighting was

sufficient, or the officer’s ability to examine Appellant’s face. Id. Rather, Appellant’s focus

throughout this litigation has been that Officer Sanchez’s in-court identification, even if

initially founded solely on his encounter with Appellant, was tainted by his post-encounter

observation of Appellant’s photograph in the NCIC database. Therefore, Appellant failed

to establish how the illegally searched cell phone tainted Officer Sanchez’s initial




                                        [J-93-2018] - 29
observations of Appellant, or to challenge the veracity of the officer’s identification. As a

result, we find Appellant did not meet his burden.17




17The dissent criticizes the majority for failing to properly construe Appellant’s arguments.
Dissenting Opinion at 8-11. However, we must resolve the legal issues before us in the
context of the advocacy preserved and presented ― both before the lower tribunals and
our Court ― and we find Appellant’s arguments ambiguous at best. Appellant’s
arguments, both at the suppression hearing and before us, in our view, do not comprise
the legal arguments now analyzed by the dissent, which include the inherent unreliability
of eyewitness identification, a Crews-based argument regarding a lack of capacity to
identify, and the sufficiency of Officer Sanchez’s initial recollection of events. To read
these arguments into Appellant’s brief borders on the clairvoyant.

More importantly, and simply stated, it was Appellant’s burden to establish the
relationship between the illegal search and the objected-to evidence ― that is, set forth
some argument explaining how Officer Sanchez’s in-court identification testimony was
tainted. Nardone, supra; Alderman v. United States, 394 U.S. 165, 183 (1969) (same).
In our view, Appellant’s single conclusory statement that “both the in[-]court and out[-]of
court identification came directly from that warrantless search and the in[-]court
identification would be considered fruits of the poisonous tree[,]” N.T., 2/19/2016, at 5,
does not satisfy this explanatory burden. While the dissent eschews the half-century old
standard set forth in Nardone, our Court has at least implicitly adopted the largely
uncontroversial standard set forth therein. Commonwealth v. Sartin, 751 A.2d 1140, 1146
(Pa. 2000) (quoting Alderman for proposition that “when a defendant claims that the
government has sought to introduce the fruits of a coerced confession, the defendant
must go forward with specific evidence demonstrating taint, upon which the government
‘has the ultimate burden of persuasion to show that its evidence is untainted.’”); see also
Commonwealth v. Murray, 223 A.2d 102, 105-06 (Pa. 1966) (“The Court said in the
Nardone case that once it is shown that there has been an unlawful wire tapping, as was
shown here, the accused has to be allowed the opportunity ‘to prove that a substantial
portion of the case against him was a fruit of the poisonous tree.’ That is all the Nardone
case established and, in fact, the Supreme Court reversed the conviction and sent the
case back for retrial because Nardone had not been given the opportunity to show how
much of the prosecution evidence was tainted.”). The generic cases cited by the dissent
simply do not implicate a burden question.

Finally, contrary to the dissent’s charge, Dissenting Opinion at 8 n.5, our characterization
of Appellant’s arguments is consistent throughout ― Appellant does not directly challenge
Officer Sanchez’s observations of him at the initial encounter, but, rather, asserts that the
subsequent in-court identification based upon the initial encounter was, in unspecified
fashion, tainted by the illegal search of Appellant’s cell phone and the out-of-court
identification. See Majority Opinion at 4, 10, 29-30, 32.

                                      [J-93-2018] - 30
       Related thereto, and perhaps due to Appellant’s failure to challenge Officer

Sanchez’s initial observations, the trial court engaged in no analysis of whether the

officer’s identification testimony was insufficiently founded on his initial encounter with

Appellant. Rather, the court seemingly also labored under the misunderstanding that,

because of the subsequent illegal search, the officer’s prior observations had to have

been ipso facto tainted.     Trial Court Opinion, 7/18/16 at 16 (“Even if Officer Sanchez

were to identify [Appellant] at trial based on his observations of [Appellant] made during

the vehicle stop, no independent basis exists for his in-court identification because his

testimony is inseparable from and dependent upon the warrantless search that he himself

conducted of [Appellant’s] cell phone.”). However, any such retroactive application of the

fruit of the poisonous tree doctrine has long been dispelled by the United States Supreme

Court. See Maryland v. Macon, 472 U.S. 463, 471 (1985) (“The exclusionary rule enjoins

the Government from benefitting from evidence it has unlawfully obtained; it does not

reach backward to taint information that was in official hands prior to any illegality.”

(quoting Crews, 445 U.S. at 475 (internal quotation marks omitted)). Thus, we reject any

suggestion that the fruit doctrine operates retroactively.

       Furthermore, as a distinct analysis, the trial court suggested that the illegal cell

phone search led to Appellant’s presence at trial, offering that the “very opportunity for

the officer to identify [Appellant] by his physical presence in the courtroom is occasioned

upon the exploitation of the warrantless search to secure his attendance.” Trial Court

Opinion, 7/18/16, at 12. In its view, it was solely Officer Sanchez’s unlawful search and

out-of-court identification that made it possible for the officer to identify Appellant at trial.

Before us, Appellant makes a similar argument, asking us to overrule Garvin to the extent

it stands for the proposition that one cannot suppress the accused’s person as fruit of the

poisonous tree. We reject the trial court’s analysis and Appellant’s request. We interpret




                                       [J-93-2018] - 31
Garvin, which made no distinction between in-court and out-of-court identification, to

stand for the unremarkable proposition that the defendant ― that is, his or her compelled

presence at trial ― is not subject to suppression. Garvin, 293 A.2d at 37 (“No law abiding

society could tolerate a presumption that but for the illegal arrest the suspect would never

have been required to face his accusors [sic]. Thus, we conclude that the only effect of

the illegal arrest was to hasten the inevitable confrontation and not to influence its

outcome.”); Crews, 445 U.S. at 474 (“[The Appellant] is not himself a suppressible ‘fruit,’

and the illegality of his detention cannot deprive the Government of the opportunity to

prove his guilt through the introduction of evidence wholly untainted by the police

misconduct.”);18 see also Commonwealth v. Carter, 643 A.2d 61, 68 (Pa. 1994) (“an illegal

arrest is not a bar to a subsequent prosecution nor a defense to a valid conviction.”).

Indeed, in Garvin, our Court found that identification evidence was not the product of an

unlawful arrest because the arrest did not contribute to the witness’s knowledge or the

accuracy of the identification. Garvin, 293 A.2d at 38. It was in this context that the Court

offered that the only effect of the illegal arrest was to hasten the inevitable confrontation

between witness and defendant, and that it could not be assumed that, but for the illegal


18 Although three members of the Court in Crews asserted that it was unnecessary to
“decide whether respondent's person [i.e., his face] should be considered evidence, and
therefore a possible ‘fruit’ of police misconduct,” because “the record plainly discloses
that prior to his illegal arrest, the police both knew respondent's identity and had some
basis to suspect his involvement in the very crimes with which he was charged,” Crews,
445 U.S. at 474-75, a majority of the Court disagreed. Two members of the Court stated
they “would reject explicitly … the claim that a defendant's face can be a suppressible
fruit of an illegal arrest,” id. at 477 (Powell, J., concurring), while three others made
essentially the same assertion and concluded “that a majority of the Court agrees that the
rationale of Frisbie [v. Collins 342 U.S. 519 (1952)] forecloses the claim that respondent's
face can be suppressible as a fruit of the unlawful arrest,” id. at 479 (White, J. concurring).
Thus, a majority of the Crews Court found that a defendant’s presence (and thus including
the defendant’s face for identification purposes) is not evidence subject to the fruit of the
poisonous tree doctrine. Cf. Lopez-Mendoza, 468 U.S. 1032, 1039-40 (1984).



                                      [J-93-2018] - 32
arrest, the defendant would have remained at large indefinitely. Id. Thus, the alleged

culprit, and his presence for purposes of identification, even if arrested as the result of an

illegal search, is not suppressible.19

       In conclusion, we agree with both the trial court and the Superior Court that Officer

Sanchez’s out-of-court identification was suppressible. As Officer Sanchez could have

identified Appellant in court based solely upon his observations of Appellant made during

the traffic stop, and because Appellant did not challenge this original observation

testimony as being infected by the taint of the unconstitutional search of Appellant’s cell

phone, the trial court erred in suppressing Officer Sanchez’s in-court identification as fruit

of the poisonous tree, as the Superior Court found. Accordingly, we affirm the order of

the Superior Court.

       Jurisdiction relinquished.

       Chief Justice Saylor and Justices Baer, Dougherty and Mundy join the opinion.

       Justice Wecht files a dissenting opinion in which Justice Donohue joins.




19 While the dissent contends that our discussion lacks “any rigorous analysis” regarding
Appellant’s invitation to revisit Garvin, Dissenting Opinion at 11, as the above discussion
makes plain, we have addressed that decision and its meaning in the context in which it
arose. Majority Opinion at 30-31. Furthermore, the dissent’s differing interpretation of
Garvin, and its conclusion that Garvin calls for the nullification of the exclusionary rule
and is contrary to Wong Sun, Dissenting Opinion at 12, fails to account for the teachings
of Crews and Carter, also discussed above, both of which post-date Wong Sun and stand
for the same proposition offered in Garvin ― that an illegal arrest does not bar a
subsequent prosecution or deprive the government the opportunity to establish guilt
through untainted evidence. Obviously, we do indeed decline Appellant’s invitation to
“explicitly disavow” the Garvin decision. Appellant’s Brief at 12-13.


                                         [J-93-2018] - 33
