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UNITED STATES v. WYLER

October 24, 1980

UNITED STATES of America
v.
Robert WYLER and Dianne Becker, Defendants



The opinion of the court was delivered by: PIERCE

OPINION AND ORDER

The Court has previously granted defendants' motion to suppress physical evidence unlawfully seized from a house which they rented at 3800 N.W. 89th Avenue, Hollywood, Florida (hereinafter "3800" or the "Florida house" alternatively) and which was entered and searched by federal agents without a warrant. Among the documents seized during that search the government found the names of one William Miles and Gulfport Seafoods Co. International (hereinafter "Gulfport"). Approximately six months later, the agents located Miles and interviewed him. During the interview they learned about the extortion charged in this indictment. The Court now addresses whether the statements and testimony of William Miles, the victim of the alleged extortion, must be suppressed as a "fruit" of the unlawful search.

 The government contends, inter alia, that the motion to suppress Miles' testimony should be denied because the evidence of this live witness has become so attenuated from the unlawful search as to dissipate the taint of the illegality. Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 455 (1963).

 At an "attenuation" hearing the government presented two witnesses, F.B.I. Special Agent Christopher Mattiase and William Miles. After considering their testimony and having observed the demeanor of these witnesses during the hearing, the Court finds that the testimony of William Miles will be admissible during a trial of the charges in the indictment. Accordingly, the Court denies the motion to suppress Miles' testimony based upon the findings set forth hereinbelow.

 DISCUSSION

 It is well settled that the exclusionary rule is applicable to both direct and indirect products of unlawful searches, Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319 (1920), and that it protects against the use of unlawfully obtained verbal statements as well as use of papers and other physical evidence. Wong Sun v. United States, supra, 371 U.S. at 485, 83 S. Ct. at 416. Thus, "verbal evidence which derives so immediately from an unlawful entry ... is no less the "fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion." Id. Yet, unlawfully obtained "fruits" are not per se inadmissible. Rather, as the Court concluded in Wong Sun:

 
"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 ... 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).

 Id. at 487-88, 83 S. Ct. at 417.

 In support of its claim of attenuation the government relies upon the standards set forth in United States v. Ceccolini, 435 U.S. 268, 98 S. Ct. 1054, 55 L. Ed. 2d 268 (1978) and United States v. Leonardi, 623 F.2d 746 (2d Cir. 1980). Also relying upon Ceccolini, the defendants additionally urge, inter alia, that Miles' testimony should be suppressed based upon the holdings of United States v. Scios, 191 U.S. App. D.C. 254, 590 F.2d 956 (D.C.Cir.1978) (en banc); United States v. Karathanos, 531 F.2d 26 (2d Cir.), cert. denied, 428 U.S. 910, 96 S. Ct. 3221, 49 L. Ed. 2d 1217 (1976); and United States v. Tane, 329 F.2d 848 (2d Cir. 1964).

 The holdings in these cases instruct that a determination by this Court should not be predicated solely "on the basis of causation in the logical sense", United States v. Ceccolini, supra, 435 U.S. at 274, 98 S. Ct. at 1059. Rather, while "no mathematical weight can be assigned to any of the factors", id. at 280, 98 S. Ct. at 1062, this Court's determination of attenuation must be based upon the totality of the circumstances and events surrounding the witness' testimony.

 Ceccolini, Leonardi and Scios present an array of factors which the Court may consider in determining attenuation. They include:

 a. Whether the identity and relationship of the witness would have been known to the investigators without the illegally seized evidence.

 b. Whether the witness' testimony was an act of free will, neither coerced nor induced ...


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