U.S. Supreme Court United States v. Ceccolini, 435
U.S. 268 (1978) United States v.
Ceccolini No. 76-1151 Argued December 5,
1977 Decided March 21,
1978 435
U.S. 268 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND
CIRCUIT Syllabus A police officer (Biro), while taking a break in respondent's
flower shop and conversing with an employee of the shop
(Hennessey), noticed an envelope with money protruding therefrom
lying on the cash register. Upon examination, he found it contained
not only money, but policy slips. Biro then placed the envelope
back on the register and, without telling Hennessey what he had
found, asked her to whom the envelope belonged. She told him it
belonged to respondent. Biro's finding was reported to local
detectives and to the FBI, who interviewed Hennessey some four
months later without referring to the incident involving Biro.
About six months after that incident, respondent was summoned
before a federal grand jury, where he testified that he had never
taken policy bets at his shop, but Hennessey testified to the
contrary, and, shortly thereafter, respondent was indicted for
perjury. Hennessey testified against respondent at his trial, but,
after a finding of guilt, the District Court granted respondent's
motion to suppress Hennessey's testimony and set aside that
finding. The Court of Appeals affirmed, noting that the "road" to
that testimony from the concededly unconstitutional search was
"both straight and uninterrupted." Held: The Court of Appeals erred in concluding that the
degree of attenuation between Biro's search of the envelope and
Hennessey's testimony at the trial was not sufficient to dissipate
the connection between the illegality of the search and challenged
testimony. Pp. 435 U. S.
273 -280.

															(a) In determining whether the exclusionary rule, with its
deterrent purpose, should be applied, its benefits should be
balanced against its costs, and, in evaluating the standards for
application of the rule to live witness testimony in light of this
balance, material factors to be considered are the length of the
"road" between the Fourth Amendment violation and the witness'
testimony; the degree of free will exercised by the witness; and
the fact that exclusion of the witness' testimony would perpetually
disable the witness from testifying about relevant and material
facts regardless of how unrelated such testimony might be to the
purpose of the originally illegal search or the evidence discovered
thereby. Pp. 435 U. S.
273 -279.

															(b) Here, where the evidence indicates overwhelmingly that
Hennessey's Page 435 U. S. 269 testimony was an act of her own free will in no way coerced or
induced by official authority as a result of Biro's discovery of
the policy slips where substantial time elapsed between the illegal
search and the initial contact with the witness and between the
latter and her trial testimony, and where both Hennessey's identity
and her relationship with respondent were well known to the
investigating officers, and there is no evidence that Biro entered
the shop or picked up the envelope with the intent of finding
evidence of an illicit gambling operation, application of the
exclusionary rule could not have the slightest deterrent effect on
the behavior of an officer such as Biro, and the cost of
permanently silencing Hennessey is too great for an evenhanded
system of law enforcement to bear in order to secure such a
speculative and very likely negligible deterrent effect. Pp. 435 U. S.
279 -280.

															(c) The exclusionary rule should be invoked with much greater
reluctance where the claim is based on a causal relationship
between a constitutional violation and the discovery of a live
witness than when a similar claim is advanced to support
suppression of an inanimate object. P. 435 U. S.
280 .

															542 F.2d 136, reversed.

															REHNQUIST, J., delivered the opinion of the Court, in which
STEWART, WHITE, POWELL, and STEVENS, JJ., joined. BURGER, C.J.,
filed an opinion concurring in the judgment, post, p. 435 U. S. 280 .
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
joined, post, p. 435 U. S. 285 .
BLACKMUN, J., took no part in the consideration or decision of the
case.

															MR. JUSTICE REHNQUIST delivered the opinion of the Court.

															In December, 1974, Ronald Biro, a uniformed police officer on
assignment to patrol school crossings, entered respondent's place
of business, the Sleepy Hollow Flower Shop, in North Tarrytown,
N.Y. He went behind the customer counter and, in the words of
Ichabod Crane, one of Tarrytown's more Page 435 U. S. 270 illustrious inhabitants of days gone past, "tarried," spending
his short break engaged in conversation with his friend Lois
Hennessey, an employee of the shop. During the course of the
conversation, he noticed an envelope with money sticking out of it
lying on the drawer of the cash register behind the counter. Biro
picked up the envelope and, upon examining its contents, discovered
that it contained not only money, but policy slips. He placed the
envelope back on the register and, without telling Hennessey what
he had seen, asked her to whom the envelope belonged. She replied
that the envelope belonged to respondent Ceccolini, and that he had
instructed her to give it to someone.

															The next day, Officer Biro mentioned his discovery to North
Tarrytown detectives, who, in turn, told Lance Emory, an FBI agent.
This very ordinary incident in the lives of Biro and Hennessey
requires us, over three years later, to decide whether Hennessey's
testimony against respondent Ceccolini should have been suppressed
in his trial for perjury. Respondent was charged with that offense
because he denied that he knew anything of, or was in any way
involved with, gambling operations. Respondent was found guilty
after a bench trial in the United States District Court for the
Southern District of New York, but, immediately after the finding
of guilt, the District Court granted respondent's motion to
"suppress" the testimony of Hennessey because the court concluded
that the testimony was a "fruit of the poisonous tree"; assuming
respondent's motion for a directed verdict included a motion to set
aside the verdict of guilty, the District Court granted the motion
because it concluded that, without Hennessey's testimony, there was
insufficient evidence of respondent's guilt. The Government
appealed these rulings to the Court of Appeals for the Second
Circuit.

															That court rightly concluded that the Government was entitled to
appeal both the order granting the motion to suppress and the order
setting aside the verdict of guilty, since Page 435 U. S. 271 further proceedings if the Government were successful on the
appeal would not be barred by the Double Jeopardy Clause. [ Footnote 1 ] 542 F.2d 136, 139-140
(1976). The District Court had sensibly first made its finding on
the factual question of guilt or innocence, and then ruled on the
motion to suppress; a reversal of these rulings would require no
further proceedings in the District Court, but merely a
reinstatement of the finding of guilt. United States v.
Morrison, 429 U. S. 1 (1976); United States v. Wilson, 420 U. S. 332 , 420 U. S.
352 -353 (1975).

															The Government, however, was not successful on the merits of its
appeal; the Court of Appeals, by a divided vote, affirmed the
District Court's suppression ruling. 542 F.2d at 14142. We granted
certiorari to consider the correctness of this ruling of the Court
of Appeals. 431 U.S. 903 (1977). I During the latter part of 1973, the Federal Bureau of
Investigation was exploring suspected gambling operations in North
Tarrytown. Among the establishments under surveillance was
respondent's place of business, which was a frequent and regular
stop of one Francis Millow, himself a suspect in the investigation.
While the investigation continued on a reduced scale after December
1973, [ Footnote 2 ] surveillance
of the flower Page 435 U. S. 272 shop was curtailed at that time. It was thus a full year after
this discontinuance of FBI surveillance that Biro spent his patrol
break behind the counter with Hennessey. When Biro's discovery of
the policy slips was reported the following day to Emory, Emory was
not fully informed of the manner in which Biro had obtained the
information. Four months later, Emory interviewed Hennessey at her
home for about half an hour in the presence of her mother and two
sisters. He identified himself, indicated that he had learned
through the local police department that she worked for respondent,
and told her that the Government would appreciate any information
regarding respondent's activities that she had acquired in the
shop. Emory did not specifically refer to the incident involving
Officer Biro. Hennessey told Emory that she was studying police
science in college, and would be willing to help. She then related
the events which had occurred during her visit with Officer
Biro.

															In May, 1975, respondent was summoned before a federal grand
jury, where he testified that he had never taken policy bets for
Francis Millow at the flower shop. The next week, Hennessey
testified to the contrary, and, shortly thereafter, respondent was
indicted for perjury. [ Footnote
3 ] Respondent waived a jury, and, with the consent of all
parties, the District Court considered simultaneously with the
trial on the merits respondent's motion to suppress both the policy
slips and the testimony of Hennessey. At the conclusion of the
evidence, the District Court excluded from its consideration "the
envelope and the contents of the envelope," but nonetheless found
respondent guilty of the offense charged. The court then, as
previously Page 435 U. S. 273 described, granted respondent's motion to suppress the testimony
of Hennessey, because she "first came directly to the attention of
the government as a result of an illegal search" and the Government
had not "sustained its burden of showing that Lois Henness[e]y's
testimony definitely would have been obtained without the illegal
search." App. to Pet. for Cert. 28a-29a.

															The Court of Appeals affirmed this ruling on the Government's
appeal, reasoning that "the road to Miss Henness[e]y's testimony
from Officer Biro's concededly unconstitutional search is both
straight and uninterrupted." 542 F.2d at 142. The Court of Appeals
also concluded that there was support in the record for the
District Court's finding that the ongoing investigation would not
have inevitably led to the evidence in question without Biro's
discovery of the two policy slips. Id. at 141. Because of
our traditional deference to the "two court rule," Graver Mfg.
Co. v. Linde Co., 336 U. S. 271 , 336 U. S. 275 (1949), and the fact that the Government has not sought review of
this latter ruling, we leave undisturbed this part of the Court of
Appeals' decision. Because we decide that the Court of Appeals was
wrong in concluding that there was insufficient attenuation between
Officer Biro's search and Hennessey's testimony at the trial, we
also do not reach the Government's contention that the exclusionary
rule should not be applied when the evidence derived from the
search is being used to prove a subsequent crime such as
perjury. II The "road" to which the Court of Appeals analogized the train of
events from Biro's discovery of the policy slips to Hennessey's
testimony at respondent's trial for perjury is one of literally
thousands of such roads traveled periodically between an original
investigative discovery and the ultimate trial of the accused. The
constitutional question under the Fourth Amendment was phrased in Wong Sun v. United States, 371 U.
S. 471 (1963), as whether

															"the connection Page 435 U. S. 274 between the lawless conduct of the police and the discovery of
the challenged evidence has 'become so attenuated as to dissipate
the taint.'" Id. at 371 U. S. 487 , 371 U. S. 491 .
The question was, in turn, derived from the Court's earlier
decision in Nardone v. United States, 308 U.
S. 338 , 308 U. S. 341 (1939), where Mr. Justice Frankfurter stated for the Court:

															"Here, as in the Silverthorne case [ Silverthorne
Lumber Co. v. United States ], the facts improperly obtained do
not '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' simply because it is used derivatively. 251 U.S. 435 U. S. 385 , 251 U. S.
392 ."

															"In practice, this generalized statement may conceal concrete
complexities. Sophisticated argument may prove a causal connection
between information obtained through illicit wiretapping and the
Government's proof. As a matter of good sense, however, such
connection may have become so attenuated as to dissipate the
taint."

															This, of course, makes it perfectly clear, if indeed ever there
was any doubt about the matter, that the question of causal
connection in this setting, as in so many other questions with
which the law concerns itself, is not to be determined solely
through the sort of analysis which would be applicable in the
physical sciences. The issue cannot be decided on the basis of
causation in the logical sense alone, but necessarily includes
other elements as well. And our cases subsequent to Nardone,
supra, have laid out the fundamental tenets of the
exclusionary rule, from which the elements that are relevant to the
causal inquiry can be divined.

															An examination of these cases leads us to reject the
Government's suggestion that we adopt what would, in practice,
amount to a per se rule that the testimony of a live
witness should not be excluded at trial no matter how close and
proximate Page 435 U. S. 275 the connection between it and a violation of the Fourth
Amendment. We also reaffirm the holding of Wong Sun, supra at 371 U. S. 485 ,
that

															"verbal evidence which derives so immediately from an unlawful
entry and an unauthorized arrest as the officers' action in the
present case is no less the 'fruit' of official illegality than the
more common tangible fruits of the unwarranted intrusion."

															We are of the view, however, that cases decided since Wong
Sun significantly qualify its further observation that "the
policies underlying the exclusionary rule [do not] invite any
logical distinction between physical and verbal evidence." 371 U.S.
at 371 U. S. 486 .
Rather, at least in a case such as this, where not only was the
alleged "fruit of the poisonous tree" the testimony of a live
witness, but, unlike Wong Sun, the witness was not a
putative defendant, an examination of our cases persuades us that
the Court of Appeals was simply wrong in concluding that, if the
road were uninterrupted, its length was immaterial. Its length, we
hold, is material, as are certain other factors enumerated below to
which the court gave insufficient weight.

															In Stone v. Powell, 428 U. S. 465 , 428 U. S. 486 (1976), we observed that,

															"despite the broad deterrent purpose of the exclusionary rule,
it has never been interpreted to proscribe the introduction of
illegally seized evidence in all proceedings or against all
persons."

															Recognizing not only the benefits but the costs, which are often
substantial, of the exclusionary rule, we have said that
"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 , 414 U. S. 348 (1974). In that case, we refused to require that illegally seized
evidence be excluded from presentation to a grand jury. We have
likewise declined to prohibit the use of such evidence for the
purpose of impeaching a defendant who testifies in his own behalf. Walder v. United States, 347 U. S. 62 (1954).

															We have limited the standing requirement in the exclusionary
rule context because the "additional benefits of extending Page 435 U. S. 276 the . . rule" to persons other than the ones subject to the
illegal search are outweighed by the

															"further encroachment upon the public interest in prosecuting
those accused of crime and having them acquitted or convicted on
the basis of all the evidence which exposes the truth." Alderman v. United States, 394 U.
S. 165 , 394 U. S.
174 -175 (1969). Even in situations where the
exclusionary rule is plainly applicable, we have declined to adopt
a " per se or but for' rule" that would make
inadmissible any evidence, whether tangible or live witness
testimony, which somehow came to light through a chain of causation
that began with an illegal arrest. Brown v. Illinois, 422 U. S. 590 , 422 U. S. 603 (1975). Evaluating the standards for application of the exclusionary
rule to live witness testimony in light of this balance, we are
first impelled to conclude that the degree of free will exercised
by the witness is not irrelevant in determining the extent to which
the basic purpose of the exclusionary rule will be advanced by its
application. This is certainly true when the challenged statements
are made by a putative defendant after arrest, Wong Sun,
supra at 371 U. S. 491 ; Brown v. Illinois, supra, and a fortiori is true
of testimony given by nondefendants.

															The greater the willingness of the witness to freely testify,
the greater the likelihood that he or she will be discovered by
legal means and, concomitantly, the smaller the incentive to
conduct an illegal search to discover the witness. [ Footnote 4 ] Witnesses are not like guns or
documents which remain hidden from view until one turns over a sofa
or opens a filing cabinet. Witnesses can, and often do, come
forward and offer evidence entirely of their own volition. And,
evaluated properly, the degree of free will necessary to dissipate
the taint will very likely be found more often in the case of live
witness testimony Page 435 U. S. 277 than other kinds of. evidence. The time, place and manner of the
initial questioning of the witness may be such that any statements
are truly the product of detached reflection and a desire to be
cooperative on the part of the witness. And the illegality which
led to the discovery of the witness very often will not play any
meaningful part in the witness' willingness to testify.

															"The proffer of a living witness is not to be mechanically
equated with the proffer of inanimate evidentiary objects illegally
seized. The fact that the name of a potential witness is disclosed
to police is of no evidentiary significance, per se, since
the living witness is an individual human personality whose
attributes of will, perception, memory and volition interact to
determine what testimony he will give. The uniqueness of this human
process distinguishes the evidentiary character of a witness from
the relative immutability of inanimate evidence." Smith v. United States, 117 U.S.App.D.C. 1, 3-4, 324
F.2d 879 881-882 (1963) (Burger, J.) (footnotes omitted), cert.
denied, 377 U.S. 954 (1964).

															Another factor which not only is relevant in determining the
usefulness of the exclusionary rule in a particular context, but
also seems to us to differentiate the testimony of all live
witnesses -- even putative defendants -- from the exclusion of the
typical documentary evidence, is that such exclusion would
perpetually disable a witness from testifying about relevant and
material facts, regardless of how unrelated such testimony might be
to the purpose of the originally illegal search or the evidence
discovered thereby. Rules which disqualify knowledgeable witnesses
from testifying at trial are, in the words of Professor McCormick,
"serious obstructions to the ascertainment of truth"; accordingly,
"[f]or a century, the course of legal evolution has been in the
direction of sweeping away these obstructions." C. McCormick, Law
of Evidence § 71 (1954). Alluding to the enormous cost engendered
by Page 435 U. S. 278 such a permanent disability in an analogous context, we have
specifically refused to hold that

															"making a confession under circumstances which preclude its use
perpetually disables the confessor from making a usable one after
those conditions have been removed." United States v. Bayer, 331 U.
S. 532 , 331 U. S. 541 (1947). For many of these same reasons, the Court has also held
admissible at trial testimony of a witness whose identity was
disclosed by the defendant's statement given after inadequate Miranda warnings. Michigan v. Tucker, 417 U. S. 433 , 417 U. S.
450 -451 (1974).

															"For, when balancing the interests involved, we must weigh the
strong interest under any system of justice of making available to
the trier of fact all concededly relevant and trustworthy evidence
which either party seeks to adduce. . . . Here, respondent's own
statement, which might have helped the prosecution show
respondent's guilty conscience at trial, had already been excised
from the prosecution's case pursuant to this Court's Johnson
[v. New Jersey, 384 U. S. 719 (1966)] decision.
To extend the excision further under the circumstances of this case
and exclude relevant testimony of a third-party witness would
require far more persuasive arguments than those advanced by
respondent."

															In short, since the cost of excluding live witness testimony
often will be greater, a closer, more direct link between the
illegality and that kind of testimony is required.

															This is not to say, of course, that live witness testimony is
always or even usually more reliable or dependable than inanimate
evidence. Indeed, just the opposite may be true. But a
determination that the discovery of certain evidence is
sufficiently unrelated to or independent of the constitutional
violation to permit its introduction at trial is not a
determination which rests on the comparative reliability of that
evidence. Attenuation analysis, appropriately concerned with the
differences between live witness testimony and inanimate
evidence, Page 435 U. S. 279 can consistently focus on the factors enumerated above with
respect to the former, but on different factors with respect to the
latter.

															In holding that considerations relating to the exclusionary rule
and the constitutional principles which it is designed to protect
must play a factor in the attenuation analysis, we do no more than
reaffirm an observation made by this Court half a century ago:

															"A criminal prosecution is more than a game in which the
Government may be checkmated and the game lost merely because its
officers have not played according to rule." McGuire v. United States, 273 U. S.
95 , 273 U. S. 99 (1927). The penalties visited upon the Government, and in turn upon
the public, because its officers have violated the law must bear
some relation to the purposes which the law is to serve. III Viewing this case in the light of the principles just discussed,
we hold that the Court of Appeals erred in holding that the degree
of attenuation was not sufficient to dissipate the connection
between the illegality and the testimony. The evidence indicates
overwhelmingly that the testimony given by the witness was an act
of her own free will, in no way coerced or even induced by official
authority as a result of Biro's discovery of the policy slips. Nor
were the slips themselves used in questioning Hennessey.
Substantial periods of time elapsed between the time of the illegal
search and the initial contact with the witness, on the one hand,
and between the latter and the testimony at trial, on the other.
While the particular knowledge to which Hennessey testified at
trial can be logically traced back to Biro's discovery of the
policy slips, both the identity of Hennessey and her relationship
with the respondent were well known to those investigating the
case. There is, in addition, not the slightest evidence to
suggest Page 435 U. S. 280 that Biro entered the shop or picked up the envelope with the
intent of finding tangible evidence bearing on an illicit gambling
operation, much less any suggestion that he entered the shop and
searched with the intent of finding a willing and knowledgeable
witness to testify against respondent. Application of the
exclusionary rule in this situation could not have the slightest
deterrent effect on the behavior of an officer such as Biro. The
cost of permanently silencing Hennessey is too great for an
evenhanded system of law enforcement to bear in order to secure
such a speculative and very likely negligible deterrent effect.

															Obviously. no mathematical weight can be assigned to any of the
factors which we have discussed, but, just as obviously, they all
point to the conclusion that the exclusionary rule should be
invoked with much greater reluctance where the claim is based on a
causal relationship between a constitutional violation and the
discovery of a live witness than when a similar claim is advanced
to support suppression of an inanimate object. The judgment of the
Court of Appeals is accordingly Reversed. MR. JUSTICE BLACKMUN took no part in the consideration or
decision of this case.

															[ Footnote 1 ]

															Appeal from the suppression order is, of course, authorized by
the clear language of 18 U.S.C. § 3731 (1976 ed.). That section
permits

															"[a]n appeal by the United States . . . from a decision or order
of a district courts [ sic ] suppressing or excluding
evidence . . . not made after the defendant has been put in
jeopardy and before the verdict or finding on an indictment or
information. . . ."

															If Congress had intended only pretrial suppression orders to be
appealable, it would not have added the phrase "and before the
verdict or finding on an indictment or information."

															[ Footnote 2 ]

															The extent of the continued investigation is not made clear on
the record, but we do know at least that, on December 3, 1974, a
telephone conversation between Millow and Ceccolini, which
implicated the latter in a policy betting operation, was
intercepted by local police participating in a combined
federal-state gambling investigation.

															[ Footnote 3 ]

															Respondent was also indicted on a second count which charged
that he had knowingly made a false statement when he testified that
he did not know Hank Bucci was involved in gambling operations. The
judge found respondent not guilty on this count, however, because,
"although there is evidence to support this charge, the government
has not met its burden of proof beyond a reasonable doubt." App. to
Pet. for Cert. 28a.

															[ Footnote 4 ]

															Of course, the analysis might be different where the search was
conducted by the police for the specific purpose of discovering
potential witnesses.

															MR. CHIEF JUSTICE BURGER, concurring in the judgment.

															I agree with the Court's ultimate conclusion that there is a
fundamental difference, for purposes of the exclusionary rule,
between live witness testimony and other types of evidence. I
perceive this distinction to be so fundamental, however, that I
would not prevent a factfinder from hearing and considering the
relevant statements of any witness, except perhaps under the most
remarkable of circumstances -- although none such have ever been
postulated that would lead me to exclude the testimony of a live
witness. Page 435 U. S. 281 To appreciate this position, it is essential to bear in mind the
purported justification for employing the exclusionary rule in a
Fourth Amendment context: deterrence of official misconduct. See Stone v. Powell, 428 U. S. 465 , 428 U. S. 486 (1976); United States v. Janis, 428 U.
S. 433 , 428 U. S.
458 -459, n. 35 (1976). As an abstract intellectual
proposition, this can be buttressed by a plausible rationale, since
there is at least some comprehensible connection -- albeit largely
and dubiously speculative -- between the exclusion of evidence and
the deterrence of intentional illegality on the part of a police
officer. [ Footnote 2/1 ] But if that
is the purpose of the rule, it seems to me that the appropriate
inquiry in every case in which a defendant seeks the exclusion of
otherwise admissible and reliable evidence is whether official
conduct in reality will be measurably altered by taking such a
course.

															On the facts of this case, the Court is, of course, correct in
holding that the "[a]pplication of the exclusionary rule in this
situation could not have the slightest deterrent effect on the
behavior of an officer such as Biro." Ante at 435 U. S. 280 .
Reaching this result, however, requires no Judicial excursion into
an area about which "philosophers have been able to argue
endlessly," [ Footnote 2/2 ] namely,
the degree of "free will" exercised by a person when engaging in an
act such as speaking.

															In the history of ideas, many thinkers have maintained with
persuasion that there is no such thing as "free will," in the sense
that the term implies the independent ability of an actor to
regulate his or her conduct. Others have steadfastly maintained the
opposite, arguing that the human personality is one innately free
to choose among alternatives. Still a third group Page 435 U. S. 282 would deny that the very term "free will" has coherent meaning.
These are only a few of the many perspectives on a subject which
lies at the core of our intellectual and religious heritage. While
this ancient debate will undoubtedly continue,

															"society and the law have no choice in the matter. We must
proceed . . . on the scientifically unprovable assumption that
human beings make choices in the regulation of their conduct and
that they are influenced by society's standards as well as by
personal standards." Blocker v. United States, 110 U.S.App.D.C. 41, 53, 288
F.2d 853, 865 (1961) (Burger, J., concurring in result). Mr.
Justice Jackson expressed this in Gregg Cartage & Storage
Co. v. United States, 316 U. S. 74 , 316 U. S. 80 (1942):

															"[T]he practical business of government and administration of
the law is obliged to proceed on more or less rough and ready
judgments based on the assumption that mature and rational persons
are in control of their own conduct."

															And in Steward Machine Co. v. Davis, 301 U.
S. 548 , 301 U. S. 590 (1937), Mr. Justice Cardozo put it thus:

															"Till now, the law has been guided by a robust common sense
which assumes the freedom of the will as a working hypothesis in
the solution of its problems."

															We are nonetheless cognizant of the fact that this assumption
must continually confront the inherent practical obstacle of one
person's being unable to know with certainty the content of
another's mind. We cross this barrier daily, of course, in the
process of determining criminal culpability. [ Footnote 2/3 ] Yet, in criminal trials, we are willing to
bear the risk of error -- substantially diminished by the
requirement of proof beyond a reasonable doubt -- in order to
effectuate the common law tradition of Page 435 U. S. 283 imposing punishment only upon those who can be said to be
morally responsible for their acts. There is no analogue to this
concern, however, in the area of Fourth Amendment exclusion, which
has an admitted pragmatic purpose -- based, as I suggested, on
speculative hypotheses which ought to lead us to apply it with
reasoned discrimination, not as an automatic response. In short,
the results achieved from current exclusionary rule standards are
bizarre enough without steering the analysis in the direction of
areas which offer no reasonable hope of a comprehensible framework
for inquiry.

															It would be obvious nonsense to postulate that, during his brief
encounter in the florist shop, Officer Biro was making a
painstaking analysis of the extent to which Lois Hennessey's "free
will" would affect her disposition to testify against respondent at
some future point. It is one thing to engage in scholastic
hindsight, particularly as the dissent has done here, in which
speculation proceeds from unfounded hypotheses as to the probable explanations for the decision of a live witness
to come forward and testify. But it is quite another to suppose
that the police officer, assuming he is contemplating illegal
action, will, or would be able to, engage in a similar inquiry.

															There are several reasons which support this analysis, which, I
might add, is found acceptable in every other legal system in the
world. Initially, I would point out that the concept of effective
deterrence assumes that the police officer consciously realizes the
probable consequences of a presumably impermissible course of
conduct. The officer must be cognizant of at least the possibility
that his actions -- because of possible suppression -- will
undermine the chances of convicting a known criminal. I strongly
suspect that, in the vast majority of instances in this setting,
the officer accused of a Fourth Amendment violation will not be
even remotely aware of the existence of a witness, as for example,
where seizure of an item of evidence guides official inquiry to an
eyewitness. Page 435 U. S. 284 Of course, an officer conducting a search later held illegal may
have some hope that his inquiry will lead to persons who can come
forward with testimony. It is not plausible, however, that a police
officer would consciously engage in illegal action simply to gain
access to a witness, knowing full well that, under prevailing legal
doctrine, the result will be the certain exclusion of whatever
tangible evidence might be found. [ Footnote 2/4 ]

															Even if we suppose that the officer suspects that his illegal
actions will produce a lead to a witness, he faces the intractable
problem of understanding how valuable that person will be to his
investigation. As one philosopher has aptly stated the matter,
"[t]he freedom of the will consists in the impossibility of knowing
actions that still lie in the future." L. Wittgenstein, Tractatus
Logico-Philosophicus � 5.1362 (Pears & McGuinness trans.1961).
In Smith v. United States, 117 U.S.App.D.C. 1, 3-4, 324
F.2d 879, 881-882 (1963), cert. denied, 377 U.S. 954
(1964), this point was applied to the case of a live witness
testifying under oath:

															"The proffer of a living witness is not to be mechanically
equated with the proffer of inanimate evidentiary objects illegally
seized. The fact that the name of a potential witness is disclosed
to police is of no evidentiary significance per se, since
the living witness is an individual human personality whose
attributes of will, perception, memory and volition interact to
determine what Page 435 U. S. 285 testimony he will give. The uniqueness of this human process
distinguishes the evidentiary character of a [living] witness from the relative immutability of inanimate
evidence."

															(Emphasis added.) (Footnotes omitted.)

															It can, of course, be argued that the prospect of finding a
helpful witness may play some role in a policeman's
decision to be indifferent about Fourth Amendment procedures. The
answer to this point, however, is that we have never insisted on
employing the exclusionary rule whenever there is some possibility,
no matter how remote, of deterring police misconduct. Rather, we
balance the cost to society of losing perfectly competent evidence
against the prospect of incrementally enhancing Fourth Amendment
values. See, e.g., Stone, 428 U.S. at 428 U. S. 486 ; United States v. Calandra, 414 U.
S. 338 , 414 U. S.
350 -351 (1974); Alderman v. United States, 394 U. S. 165 , 394 U. S.
174 -175 (1969).

															Using this approach, it strikes me as evident that the permanent
silencing of a witness -- who, after all, is appearing under oath
-- is not worth the high price the exclusionary rule exacts. Any
rule of law which operates to keep an eyewitness to a crime -- a
murder, for example -- from telling the jury what that person saw
has a rational basis roughly comparable to the primitive rituals of
human sacrifice.

															I would, therefore, resolve the case of a living witness on a per se basis, holding that such testimony is always
admissible, provided it meets all other traditional evidentiary
requirements. At very least, this solution would alleviate the
burden -- now squarely thrust upon courts -- of determining in each
instance whether the witness possessed that elusive quality
characterized by the term "free will."

															[ Footnote 2/1 ]

															Empirically speaking, though, I have the gravest doubts as to
whether the exclusion of evidence, in and of itself, has any direct
appreciable effect on a policeman's behavior in most situations --
emergency actions in particular. See Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U. S. 388 , 403 U. S.
416 -417, 426-427 (1971) (BURGER, C.J., dissenting).

															[ Footnote 2/2 ]

															J. Sartre, Being and Nothingness 433 (Barnes trans. 1956).

															[ Footnote 2/3 ]

															A somewhat similar hurdle is presented in civil cases, which may
rest decision on the standard of a "reasonable man's" actions. In
those circumstances, we assume that a person is ordinarily
capable of conforming conduct to an objective standard of
reasonableness. Consequently, while the assumption is indulged that
the person possesses control over his actions, there is generally
no need to inquire into mental processes as such.

															[ Footnote 2/4 ]

															Perhaps a case might arise in which the police conducted a
search only for the purpose of obtaining the names of witnesses. In
such a circumstance, it is possibly arguable that the exclusion of
any testimony gained as a result of the search would have an effect
on official behavior. This clearly did not occur here, nor can I
conceive of many instances in which it would. In any event, the
decision to exclude such testimony should depend on the officers' motivation, and not on the "free will" of the
witnesses. I would not want to speculate, however, as to whether
such an unlikely case would justify modifying a per se approach to this general problem.

															MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
dissenting.

															While "reaffirm[ing]" the holding of Wong Sun v. United
States, 371 U. S. 471 , 371 U. S. 485 (1963), that verbal evidence, like Page 435 U. S. 286 physical evidence, may be "fruit of the poisonous tree," the
Court today "significantly qualif[ies]" Wong Sun's further
conclusion, id. at 371 U. S. 486 ,
that no " logical distinction'" can be drawn between verbal and
physical evidence for purposes of the exclusionary rule. Ante at 435 U. S. 275 .
In my view, the distinction that the Court attempts to draw cannot
withstand close analysis. To extend "a time-worn metaphor," Harrison v. United States, 392 U.
S. 219 , 392 U. S. 222 (1968), I do not believe that the same tree, having its roots in an
unconstitutional search or seizure, can bear two different kinds of
fruit, with one kind less susceptible than the other of exclusion
on Fourth Amendment grounds. I therefore dissent. The Court correctly states the question before us: whether the
connection between the police officer's concededly unconstitutional
search and Hennessey's disputed testimony was "so attenuated as to
dissipate the taint," Nardone v. United States, 308 U. S. 338 , 308 U. S. 341 (1939). See ante at 435 U. S. 274 .
In resolving questions of attenuation, courts typically scrutinize
the facts of the individual case, with particular attention to such
matters as the "temporal proximity" of the official illegality and
the discovery of the evidence, "the presence of intervening
circumstances," and "the purpose and flagrancy of the official
misconduct." Brown v. Illinois, 422 U.
S. 590 , 422 U. S.
603 -604 (1975). The Court retains this general
framework, but states that "[a]ttenuation analysis" should be
"concerned with the differences between live witness testimony and
inanimate evidence." Ante at 435 U. S.
278 -279. The differences noted by the Court, however,
have, to a large extent, already been accommodated by current
doctrine. Where they have not been so accommodated, it is because
the differences asserted are either illusory or of no relevance to
the issue of attenuation.

															One difference mentioned by the Court is that witnesses, unlike
inanimate objects, "can, and often do, come forward and offer
evidence entirely of their own volition." Ante at 435 U. S. 276 .
Recognition of this obvious fast does nothing to advance Page 435 U. S. 287 the attenuation inquiry. We long ago held that, if knowledge of
evidence is gained from a source independent of police illegality,
the evidence should be admitted. Silverthorne Lumber Co. v.
United States, 251 U. S. 385 , 251 U. S. 392 (1920) (Holmes, J.). This "independent source" rule would plainly
apply to a witness whose identity is discovered in an illegal
search but who later comes to the police for reasons unrelated to
the official misconduct. In the instant case, however, as the Court
recognizes, ante at 435 U. S. 273 ,
there is a " straight and uninterrupted'" road between the
illegal search and the disputed testimony. Even where the road is uninterrupted, in some cases, the
Government may be able to show that the illegally discovered
evidence would inevitably have come to light in the normal course
of a legal police investigation. Assuming such evidence is
admissible -- a proposition that has been questioned, Fitzpatrick v. New York, 414 U. S. 1050 (1973) (WHITE, J., dissenting from denial of certiorari) -- this
"inevitable discovery" rule would apply to admit the testimony of a
witness who, in the absence of police misconduct, would have come
forward "entirely of [his or her] own volition." Again, however, no
such situation is presented by this case, since the Court accepts
the findings of the two lower courts that Hennessey's testimony
would not inevitably have been discovered. Ante at 435 U. S.
273 .

															Both the independent source and inevitable discovery rules,
moreover, can apply to physical evidence as well as to verbal
evidence. The police may show, for example, that they learned from
an independent source, or would inevitably have discovered through
legal means, the location of an object that they also knew about as
a result of illegal police activity. It may be that verbal evidence
is more likely to have an independent source, because live
witnesses can indeed come forward of their own volition, but this
simply underscores the degree to which the Court's approach
involves a form of judicial "double counting." The Court would
apparently first Page 435 U. S. 288 determine whether the evidence stemmed from an independent
source or would inevitably have been discovered; if neither of
these rules was found to apply, as here, the Court would still
somehow take into account the fact that, as a general proposition
(but not in the particular case), witnesses sometimes do come
forward of their own volition.

															The Court makes a related point that "[t]he greater the
willingness of the witness to freely testify, . . . the smaller the
incentive to conduct an illegal search to discover the witness." Ante at 435 U. S. 276 .
The somewhat incredible premise of this statement is that the
police in fact refrain from illegal behavior in which they would
otherwise engage because they know in advance both that a witness
will be willing to testify and that he or she "will be discovered
by legal means." Ibid. This reasoning surely reverses the
normal sequence of events; the instances must be very few in which
a witness' willingness to testify is known before he or she is
discovered. In this case, for example, the police did not even know
that Hennessey was a potentially valuable witness, much less
whether she would be willing to testify, prior to conducting the
illegal search. See ante at 435 U. S.
279 -280. When the police are certain that a witness
"will be discovered by legal means," ante at 435 U. S. 276 -- if they ever can be certain about such a fact -- they, of
course, have no incentive to find him or her by illegal means, but
the same can be said about physical objects that the police know
will be discovered legally.

															The only other point made by the Court is that exclusion of
testimony "perpetually disable[s] a witness from testifying about
relevant and material facts." Ante at 435 U. S. 277 .
The "perpetual . . . disable[ment]" of which the Court speaks,
however, applies as much to physical as to verbal evidence. When
excluded, both types of evidence are lost for the duration of the
particular trial, despite their being "relevant and material . . .
[and] unrelated . . . to the purpose of the originally Page 435 U. S. 289 illegal search." Ibid. Moreover, while it is true that
"often" the exclusion of testimony will he very costly to society, ante at 435 U. S. 278 ,
at least as often, the exclusion of physical evidence -- such as
heroin in a narcotics possession case or business records in a tax
case -- will be as costly to the same societal interests. But
other, more important societal interests, see Brown v.
Illinois, 422 U.S. at 599-600; Wong Sun v. United
States, 371 U.S. at 371 U. S. 486 ,
have led to the rule, which the Court today reaffirms, that "fruits
of the poisonous tree" must be excluded despite their probative
value, unless the facts of the case justify a finding of sufficient
attenuation.

															The facts of this case do not justify such a finding. Although,
as the Court notes, ante at 435 U. S. 272 ; see ante at 435 U. S. 279 ,
four months elapsed between the illegal search and the FBI's first
contact with Hennessey, the critical evidence was provided at the
time and place of the search, when the police officer questioned
Hennessey and she identified respondent, ante at 435 U. S. 270 .
The time that elapsed thereafter is of no more relevance than would
be a similar time period between the discovery of an object during
an illegal search and its later introduction into evidence at
trial. In this case, moreover, there were no intervening
circumstances between Hennessey's statement at the time of the
search and her later testimony. She did not come to the authorities
and ask to testify, despite being a student of police science; an
FBI agent had to go to her home and interrogate her. Ante at 435 U. S.
272 .

															Finally, whatever the police officer's purpose in the flower
shop on the day of the search, the search itself was not even of
arguable legality, as was conceded by the Government below. 542
F.2d 136, 140 n. 5 (CA2 1976). It is also undisputed that the shop
had been under surveillance as part of an ongoing gambling
investigation in which the local police force had actively
participated; its participation included interception of at least
one of respondent's telephone conversations Page 435 U. S. 290 in the very month of the search. Ante at 435 U. S.
271 -272, and n. 2. Under all of the circumstances, the
connection here between the official illegality and the disputed
testimony cannot be deemed "so attenuated as to dissipate the
taint." The District Court therefore properly excluded the
testimony.

															I would affirm the judgment of the Court of Appeals.