CITES BY TOPIC:  evidence

Admissibility

"As a matter of strict right, either party litigant has the right to the unbiased opinion of the trial judge, based upon legal evidence." Rulofson v. Billings (1903), 140 C. 452, 74 P. 35.

Knowledge of the Law

"Ignorance of the law does not excuse misconduct in anyone, least of all in a sworn officer of the law." In re McCowan (1917), 177 C. 93, 170 P. 1100.

"All are presumed to know the law." San Francisco Gas Co. v. Brickwedel (1882), 62 C. 641; Dore v. Southern Pacific Co. (1912), 163 C. 182, 124 P. 817; People v. Flanagan (1924), 65 C.A. 268, 223 P. 1014; Lincoln v. Superior Court (1928), 95 C.A. 35, 271 P. 1107; San Francisco Realty Co. v. Linnard (1929), 98 C.A. 33, 276 P. 368.

"It is one of the fundamental maxims of the common law that ignorance of the excuses no one." Daniels v. Dean (1905), 2 C.A. 421, 84 P. 332.

Materiality

"Evidence on the part of the defendant to disprove what the plaintiff has failed to allege and prove, and which was necessry to sustain his cause of action, is properly excluded as immaterial." Marriner v. Dennison (1889), 78 C. 202, 20 P. 386.

"Evidence which is not pertinent to the issues raised by the pleadings is immaterial, and allowing its introduction constitutes error." Fuentes v. Tucker (1947), 31 C.2d 1, 187 P.2d 752.

"Court should admit no evidence that is not material, and by admitting evidence, over objection, it necessarily determines that it is material." Schmidt v. Macco Const. Co. (1953), 119 C.A.2d 717, 260 P.2d 230.

"The rejection of immaterial evidence does not constitute error." Moore v. Moore (1885), 2 C.U. 510, 7 P. 688.

Presumptions

"There is no presumption that United States citizen knows law of foreign country." Tavares v. Glens Falls Ins. Co. (1956), 143 A.C.A. 864, 300 P.2d 102, hearing denied.

"Presumptions are indulged to supply the absence of facts, but never against ascertained and established facts." Boggs v. Merced Min. Co. (1859), 14 C. 279, 375 err dismd. (1866) 3 Wall. (U.S) 304, 18 L.Ed. 245.

"No party can claim the right of a presumption against his own admission under oath." Braselton v. Vokal (1921), 53 C.A. 582, 200 P. 670.

"Presumptions are purely creatures of the law." Davis v. Hearst (1911), 160 C. 143, 116 P. 530.

"A presumption cannot be based upon a presumption." Walsh v. American Trust Co. (1935), 7 C.A.2d 654, 47 P.2d 323.

Authority

"The presumption of law is that a condition of things once shown to exist continues until some charge is made to appear." Page v. Rogers (1886), 31 C. 293.

"A status once established is presumed by the law to remain until the contrary appears." Kidder v. Stevens (1882), 60 C. 414, overruled by Vance v. Anderson (1896), 113 C. 532, 45 P. 816; Eltzroth v. Ryan (1891), 89 C. 135, 26 P. 647; Metteer v. Smith (1909), 156 C. 572, 105 P. 735.

NOTE: YOUR REVOCATION OF POWER OF ATTORNEY IS THE EVIDENCE OF A CHANGE IN STATUS WHICH IS CONTRARY TO THE PRESUMPTION THAT YOU ARE A "resident of california."

Judicial Notice of History

"Every judge is bound to know the history and the leading traits which enter into the history of the country where he presides." Conger v. Weaver (1856), 6 C. 548, 65 Am. Dec. 528.

"Courts are bound to take notice of matters of public history affecting the whole people" Payne v. Treadwell (1860), 16 C. 220.

"The history of the state is a matter of which courts will take judicial notice." Gray v. Reclamation District No. 1500 (1917), 174 C. 622, 163 P. 1024.

"The supreme court takes judicial notice of public history." San Diego v. Cuyamaca Water District Co. 1930), 209 C. 105, 287 P. 475, discussed in C.L.R. 672.

Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407 (1963)

We now consider whether the exclusion of Toy's declarations requires also the exclusion of the narcotics taken from Yee, to which those declarations led the police. The prosecutor candidly told the trial court that ‘we wouldn't have found those drugs except that Mr. Toy helped us to.’ Hence this is not the case envisioned by this Court where the exclusionary rule has no application because the Government learned of the evidence ‘from an independent source,’ Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319; nor is this a case in which the connection between the lawless conduct of the police and the discovery of the challenged evidence has ‘become so attenuated as to dissipate the taint.’ Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307. We need not hold that all evidence*488 is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire, Evidence of Guilt, 221 (1959). We think it clear that the narcotics were ‘come at by the exploitation of that illegality’ and hence that they may not be used against Toy.

[Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407 (1963)]

Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501 (U.S.,1984)

The doctrine requiring courts to suppress evidence as the tainted “fruit” of unlawful **2508 governmental conduct had its genesis in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); there, the Court held that the exclusionary rule applies not only to the illegally obtained evidence itself, but also to other incriminating evidence derived from the primary evidence. The holding of Silverthorne was carefully limited, however, for the Court emphasized that such information does not automatically become “sacred and inaccessible.” Id., at 392, 40 S.Ct., at 183.

“If knowledge of [such facts] is gained from an independent source, they may be proved like any others....” Ibid. (emphasis added).

Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), extended the exclusionary rule to evidence that was the indirect product or “fruit” of unlawful police conduct, but there again the Court emphasized that evidence that has been illegally obtained need not always be suppressed, stating:

*442 “We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Id., at 487-488, 83 S.Ct., at 417 (emphasis added) (quoting J. Maguire, Evidence of Guilt 221 (1959)).

The Court thus pointedly negated the kind of good-faith requirement advanced by the Court of Appeals in reversing the District Court.

Although Silverthorne and Wong Sun involved violations of the Fourth Amendment, the “fruit of the poisonous tree” doctrine has not been limited to cases in which there has been a Fourth Amendment violation. The Court has applied the doctrine where the violations were of the Sixth Amendment, see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), as well as of the Fifth Amendment.FN3

FN3. In Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 79, 84 S.Ct. 1594, 1609, 12 L.Ed.2d 678 (1964), the Court held that “a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him.” The Court added, however, that “[o]nce a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.” Id., at 79, n. 18, 84 S.Ct., at 1609, n. 18; see id., at 103, 84 S.Ct., at 1616 (WHITE, J., concurring). Application of the independent source doctrine in the Fifth Amendment context was reaffirmed in Kastigar v. United States, 406 U.S. 441, 460-461, 92 S.Ct. 1653, 1664-1665, 32 L.Ed.2d 212 (1972).
The core rationale consistently advanced by this Court for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct has been that this admittedly drastic and socially costly course is needed to deter police from *443 violations of constitutional and statutory protections. This Court has accepted the argument that the way to ensure such protections is to exclude evidence seized as a result of such violations notwithstanding the high social cost of letting persons obviously guilty go unpunished for their crimes. On this rationale, the prosecution is not to be put in a better position than it would have been in if no illegality had transpired.

By contrast, the derivative evidence analysis ensures that the prosecution is not put in a worse position simply because of some earlier police error or misconduct. The independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation. That doctrine, although closely related to the inevitable discovery doctrine, does not apply here; Williams' statements to Leaming indeed led police to the child's body, but that is not **2509 the whole story. The independent source doctrine teaches us that the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred.FN4 See Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 79, 84 S.Ct. 1594, 1609, 12 L.Ed.2d 678 (1964); Kastigar v. United States, 406 U.S. 441, 457, 458-459, 92 S.Ct. 1653, 1663-1664, 32 L.Ed.2d 212 (1972). When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation. There *444 is a functional similarity between these two doctrines in that exclusion of evidence that would inevitably have been discovered would also put the government in a worse position, because the police would have obtained that evidence if no misconduct had taken place. Thus, while the independent source exception would not justify admission of evidence in this case, its rationale is wholly consistent with and justifies our adoption of the ultimate or inevitable discovery exception to the exclusionary rule.

FN4. The ultimate or inevitable discovery exception to the exclusionary rule is closely related in purpose to the harmless-error rule of Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967). The harmless-constitutional-error rule “serve[s] a very useful purpose insofar as [it] block[s] setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.” The purpose of the inevitable discovery rule is to block setting aside convictions that would have been obtained without police misconduct.
It is clear that the cases implementing the exclusionary rule “begin with the premise that the challenged evidence is in some sense the product of illegal governmental activity.” United States v. Crews, 445 U.S. 463, 471, 100 S.Ct. 1244, 1250, 63 L.Ed.2d 537 (1980) (emphasis added). Of course, this does not end the inquiry. If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means-here the volunteers' search-then the deterrence rationale has so little basis that the evidence should be received.FN5 Anything less would reject logic, experience, and common sense.
FN5. As to the quantum of proof, we have already established some relevant guidelines. In United States v. Matlock, 415 U.S. 164, 178, n. 14, 94 S.Ct. 988, 996, n. 14, 39 L.Ed.2d 242 (1974) (emphasis added), we stated that “the controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence.” In Lego v. Twomey, 404 U.S. 477, 488, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972), we observed “from our experience [that] no substantial evidence has accumulated that federal rights have suffered from determining admissibility by a preponderance of the evidence” and held that the prosecution must prove by a preponderance of the evidence that a confession sought to be used at trial was voluntary. We are unwilling to impose added burdens on the already difficult task of proving guilt in criminal cases by enlarging the barrier to placing evidence of unquestioned truth before juries.

Williams argues that the preponderance-of-the-evidence standard used by the Iowa courts is inconsistent with United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In requiring clear and convincing evidence of an independent source for an in-court identification, the Court gave weight to the effect an uncounseled pretrial identification has in “crystalliz[ing] the witnesses' identification of the defendant for future reference.” Id., at 240, 87 S.Ct., at 1939. The Court noted as well that possible unfairness at the lineup “may be the sole means of attack upon the unequivocal courtroom identification,” ibid., and recognized the difficulty of determining whether an in-court identification was based on independent recollection unaided by the lineup identification, id., at 240-241, 87 S.Ct., at 1939-1940. By contrast, inevitable discovery involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment and does not require a departure from the usual burden of proof at suppression hearings.

*445 The requirement that the prosecution must prove the absence of bad faith, imposed here by the Court of Appeals, would place courts in the position of withholding from juries relevant and undoubted truth that would have been available to police **2510 absent any unlawful police activity. Of course, that view would put the police in a worse position than they would have been in if no unlawful conduct had transpired. And, of equal importance, it wholly fails to take into account the enormous societal cost of excluding truth in the search for truth in the administration of justice. Nothing in this Court's prior holdings supports any such formalistic, pointless, and punitive approach.

[5] The Court of Appeals concluded, without analysis, that if an absence-of-bad-faith requirement were not imposed, “the temptation to risk deliberate violations of the Sixth Amendment would be too great, and the deterrent effect of the Exclusionary Rule reduced too far.” 700 F.2d, at 1169, n. 5. We reject that view. A police officer who is faced with the opportunity to obtain evidence illegally will rarely, if ever, be in a position to calculate whether the evidence sought would inevitably be discovered. Cf. United States v. Ceccolini, 435 U.S. 268, 283, 98 S.Ct. 1054, 1064, 55 L.Ed.2d 268 (1978):

“[T]he concept of effective deterrence assumes that the police officer consciously realizes the probable consequences of a presumably impermissible course of conduct” (opinion concurring in judgment).

On the other hand, when an officer is aware that the evidence will inevitably be discovered, he will try to avoid engaging in *446 any questionable practice. In that situation, there will be little to gain from taking any dubious “shortcuts” to obtain the evidence. Significant disincentives to obtaining evidence illegally-including the possibility of departmental discipline and civil liability-also lessen the likelihood that the ultimate or inevitable discovery exception will promote police misconduct. See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 397, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971). In these circumstances, the societal costs of the exclusionary rule far outweigh any possible benefits to deterrence that a good-faith requirement might produce.

Williams contends that because he did not waive his right to the assistance of counsel, the Court may not balance competing values in deciding whether the challenged evidence was properly admitted. He argues that, unlike the exclusionary rule in the Fourth Amendment context, the essential purpose of which is to deter police misconduct, the Sixth Amendment exclusionary rule is designed to protect the right to a fair trial and the integrity of the factfinding process. Williams contends that, when those interests are at stake, the societal costs of excluding evidence obtained from responses presumed involuntary are irrelevant in determining whether such evidence should be excluded. We disagree.

Exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial. The Sixth Amendment right to counsel protects against unfairness by preserving the adversary process in which the reliability of proffered evidence may be tested in cross-examination. See United States v. Ash, 413 U.S. 300, 314, 93 S.Ct. 2568, 2576, 37 L.Ed.2d 619 (1973); Schneckloth v. Bustamonte, 412 U.S. 218, 241, 93 S.Ct. 2041, 2055, 36 L.Ed.2d 854 (1973). Here, however, Detective Leaming's conduct did nothing to impugn the reliability of the evidence in question-the body of the child and its condition as it was found, articles of clothing found on the body, and the autopsy. No one would seriously contend that the presence of counsel in the police car when Leaming appealed to Williams'*447 decent human instincts would have had any bearing on the reliability of the body as evidence. Suppression, in these circumstances, would do nothing whatever to promote the integrity of the trial process, but would inflict a wholly unacceptable burden on the administration of criminal justice.

Nor would suppression ensure fairness on the theory that it tends to safeguard the adversary system of justice. To assure the fairness of trial proceedings, this Court has **2511 held that assistance of counsel must be available at pretrial confrontations where “the subsequent trial [cannot] cure a[n otherwise] one-sided confrontation between prosecuting authorities and the uncounseled defendant.” United States v. Ash, supra, at 315, 93 S.Ct., at 2576. Fairness can be assured by placing the State and the accused in the same positions they would have been in had the impermissible conduct not taken place. However, if the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings. In that situation, the State has gained no advantage at trial and the defendant has suffered no prejudice. Indeed, suppression of the evidence would operate to undermine the adversary system by putting the State in a worse position than it would have occupied without any police misconduct. Williams' argument that inevitable discovery constitutes impermissible balancing of values is without merit.

More than a half century ago, Judge, later Justice, Cardozo made his seminal observation that under the exclusionary rule “[t]he criminal is to go free because the constable has blundered.” People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926). Prophetically, he went on to consider “how far-reaching in its effect upon society” the exclusionary rule would be when

“[t]he pettiest peace officer would have it in his power through overzeal or indiscretion to confer immunity upon *448 an offender for crimes the most flagitious.” Id., at 23, 150 N.E., at 588.

Some day, Cardozo speculated, some court might press the exclusionary rule to the outer limits of its logic-or beyond-and suppress evidence relating to the “body of a murdered” victim because of the means by which it was found. Id., at 23-24, 150 N.E., at 588. Cardozo's prophecy was fulfilled in Killough v. United States, 114 U.S.App.D.C. 305, 309, 315 F.2d 241, 245 (1962) (en banc). But when, as here, the evidence in question would inevitably have been discovered without reference to the police error or misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible.

[Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501 (U.S.,1984)]

Segura v. U.S., 468 U.S. 796, 104 S.Ct. 3380 (U.S.,1984)

The suppression or exclusionary rule is a judicially prescribed remedial measure and as “with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.” United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974). Under this Court's holdings, the exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), but also evidence later discovered and found to be derivative of an illegality or “fruit of the poisonous tree.” Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939). It “extends as well to the indirect as the direct products” of unconstitutional conduct. Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963).

Evidence obtained as a direct result of an unconstitutional search or seizure is plainly subject to exclusion. The question to be resolved when it is claimed that evidence subsequently obtained is “tainted” or is “fruit” of a prior illegality is whether the challenged evidence was

“ ‘come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged *805 of the primary taint.’ ” Id., at 488, 83 S.Ct., at 417 (citation omitted; emphasis added).

It has been well established for more than 60 years that evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is “so attenuated as to dissipate the taint,” Nardone v. United States, supra, 308 U.S., at 341, 60 S.Ct., at 268. It is not to be excluded, for example, if police had an “independent source” for discovery of the evidence:

“The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course, this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others.” Silverthorne Lumber Co. v. United States, 251 U.S., at 392, 40 S.Ct., at 183 (emphasis added).

In short, it is clear from our prior holdings that “the exclusionary rule has no application [where] the Government learned of the evidence ‘from an independent source.’ ” Wong Sun, supra, 371 U.S., at 487, 83 S.Ct., at 417 (quoting Silverthorne Lumber Co., supra, 251 U.S., at 392, 40 S.Ct., at 183); see also United States v. Crews, 445 U.S. 463 (1980); United States v. Wade, 388 U.S. 218, 242, 87 S.Ct. 1926, 1940, 18 L.Ed.2d 1149 (1967); Costello v. United States, 365 U.S. 265, 278-280, 81 S.Ct. 534, 541-542, 5 L.Ed.2d 551 (1961).

[. . .]

Every time a court holds that unconstitutionally obtained evidence may not be used in a criminal trial it is acutely aware of the social costs that such a holding entails.FN21 **3398 Only *828 the most compelling reason could justify the repeated imposition of such costs on society. That reason, of course, is to prevent violations of the Constitution from occurring.FN22

FN21. Justice Holmes commented on this dilemma: “[W]e must consider the two objects of desire, both of which we cannot have, and make up our minds which to choose. It is desirable that criminals should be detected, and to that end that all available evidence should be used. It also is desirable that the Government should not itself foster and pay for other crimes, when they are the means by which the evidence is to be obtained. If it pays its officers for having got evidence by crime I do not see why it may not as well pay them for getting it in the same way, and I can attach no importance to protestations of disapproval if it knowingly accepts and pays and announces that in future it will pay for the fruits. We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part.” Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 575, 72 L.Ed. 944 (1928) (dissenting opinion).
FN22. Justice Stewart has written:

“[T]he Framers did not intend the Bill of Rights to be no more than unenforceable guiding principles-no more than a code of ethics under an honor system. The proscriptions and guarantees in the amendments were intended to create legal rights and duties.

“The Bill of Rights is but one component of our legal system-the one that limits the government's reach. The primary responsibility for enforcing the Constitution's limits on government, at least since the time of Marbury v. Madison, has been vested in the judicial branch. In general, when law enforcement officials violate a person's Fourth Amendment rights, they do so in attempting to obtain evidence for use in criminal proceedings. To give effect to the Constitution's prohibition against illegal searches and seizures, it may be necessary for the judiciary to remove the incentive for violating it. Thus, it may be argued that although the Constitution does not explicitly provide for exclusion, the need to enforce the Constitution's limits on government-to preserve the rule of law-requires an exclusionary rule.” Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule, 83 Colum.L.Rev. 1365, 1383-1384 (1983).

As the Court has repeatedly stated, a principal purpose of the exclusionary rule is to deter violations of the Fourth Amendment. See, e.g., Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 3048, 49 L.Ed.2d 1067 (1976); United States v. Janis, 428 U.S. 433, 446-447, 96 S.Ct. 3021, 3028-3029, 49 L.Ed.2d 1046 (1976); United States v. Peltier, 422 U.S. 531, 536-539, 95 S.Ct. 2313, 2317-2318, 45 L.Ed.2d 374 (1975); United States v. Calandra, 414 U.S. 338, 347-348, 94 S.Ct. 613, 619-620, 38 L.Ed.2d 561 (1974).

“The rule is calculated to prevent, not to repair. Its purpose is to deter-to compel respect for the constitutional*829 guaranty in the only effectively available way-by removing the incentive to disregard it.” Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960).

The deterrence rationale for the exclusionary rule sometimes, but not always, requires that it be applied to the indirect consequences of a constitutional violation. If the government could utilize evidence obtained through exploitation of illegal conduct, it would retain an incentive to engage in that conduct. “To forbid the direct use of methods thus characterized [as illegal] but to put no curb on their full indirect use would only invite the very methods deemed ‘inconsistent with ethical standards and destructive of personal liberty.’ ” Nardone v. United States, 308 U.S. 338, 340, 60 S.Ct. 266, 267, 84 L.Ed. 307 (1939).

We have not, however, mechanically applied the rule to every item of evidence that has a causal connection with police misconduct. “The notion of the ‘dissipation of the taint’ attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost.” Brown v. Illinois, 422 U.S. 590, 609, 95 S.Ct. 2254, 2264, 45 L.Ed.2d 416 (1975) (POWELL, J., concurring in part).FN23

FN23. See 3 W. LaFave, Search and Seizure § 11.4(a) (1978); Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U.Pa.L.Rev. 378, 388-390 (1964); Pitler, “The Fruit of the Poisonous Tree” Revisted and Shepardized, 56 Calif.L.Rev. 579, 586-589 (1968).
This point is well illustrated by our cases concerning the use of confessions obtained as the result of unlawful arrests. In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), we rejected a rule that any evidence that would not have been obtained but for the illegal actions of the police should be suppressed. See id., at 487-488, 491, 83 S.Ct., at 417-418, 419. Yet in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), while continuing to reject a “but-for” rule, see id., at 603, 95 S.Ct., at 2261, we held that the taint of an unlawful arrest could not be purged merely by warning the arrestee of his right to remain silent and to consult with *830 counsel as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We explained:

**3399 “If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted. Arrests made without warrant or without probable cause, for questioning or ‘investigation,’ would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expedient of giving Miranda warnings. Any incentive to avoid Fourth Amendment violations would be eviscerated by making the warnings, in effect, a ‘cure-all,’ and the constitutional guarantee against unlawful searches and seizures could be said to be reduced to ‘a form of words.’ ” 422 U.S., at 602-603, 95 S.Ct., at 2261-2262 (citation and footnote omitted).

These holdings make it clear that taint questions do not depend merely on questions of causation; causation is a necessary but not a sufficient condition for exclusion. In addition, it must be shown that exclusion is required to remove the incentive for the police to engage in the unlawful conduct. When it is, exclusion is mandated if the Fourth Amendment is to be more than “a form of words.”

[Segura v. U.S., 468 U.S. 796, 104 S.Ct. 3380 (U.S.,1984)]

Padilla v. Miller, 143 F.Supp.2d. 479 (M.D.Pa.,2001)

Indeed, the courts that have addressed the issue have uniformly concluded that the exclusionary rule is not applicable in a § 1983 action. See e.g., Townes, 176 F.3d at 145 (“the fruit of the poisonous tree doctrine cannot link the unreasonable seizure and search to Townes' conviction and incarceration because this evidentiary doctrine is inapplicable to civil § 1983 actions”); Wren v. Towe, 130 F.3d 1154, 1158 (5th Cir.1997), cert. denied, 525 U.S. 815, 119 S.Ct. 51, 142 L.Ed.2d 40 (1998). (“Exclusion of the evidence found by [the police] on the theory that they had no legal right to search the vehicle would, in effect, be an application of the exclusionary rule to this case. Such an application would be inappropriate. The Supreme Court has never applied the exclusionary rule to civil cases, state or federal.”); Jonas v. City of Atlanta, 647 F.2d 580, 588 (5th Cir.1981) ( “[T]he desired deterrent effect has been achieved by the suppression of evidence [obtained as a result of an illegal search and seizure] in state criminal proceedings. The criminal enforcement process, which is the concern and duty of defendants, has been thwarted. Given the deterrence obtained by, in effect, precluding criminal prosecution, we think that the additional marginal deterrence provided in this case by disallowing the use of the evidence at this civil trial would not outweigh the societal cost of excluding relevant evidence and decreasing the possibility of obtaining accurate factual findings.”); Mejia v. City of New York, 119 F.Supp.2d 232, 254 n. 27 (E.D.N.Y.2000)(“The three subsequently seized portfolios are admissible in this action as evidence of probable cause, despite the fact that they were suppressed during Mr. Mejia's criminal trial, because the Fourth Amendment's exclusionary rule does not apply in civil actions, other than civil forfeiture proceedings.”). Thus, under traditional common law principles, Padilla would not be entitled to recover damages for that period of time between his arrest and arraignment because his detention was then supported by probable cause.

Of course, the common law is only to be “the starting point, not the only consideration in analyzing a claim under § 1983.” Hector, 235 F.3d at 157. In Hector, the court recognized that the Supreme Court's directive in Carey v. Piphus, 435 U.S. 247, 264-65, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978)-that compensatory damages “must be considered with reference to the nature of the interest protected by the particular constitutional right in question”-restricted recovery in the Fourth Amendment context to damages directly related to the invasion of privacy that the Fourth Amendment is intended to protect. In this *492 respect, the court in Hector expressly agreed with Townes-“ ‘[v]ictims of unreasonable searches or seizures ... cannot be compensated for injuries that result from the discovery of incriminating evidence and consequent criminal prosecution.’ ” Id., quoting Townes, 176 F.3d at 148. The post-arrest damages Padilla seeks result from the discovery of incriminating evidence and the ensuing prosecution.

[Padilla v. Miller, 143 F.Supp.2d 479 (M.D.Pa.,2001)]