The Court discusses what circumstances can be considered to be "intervening" in the legal chain of events leading to discovery of evidence.
The “attenuation” exception to the exclusionary rule applies when an unlawful detention leads to the obtaining of an arrest warrant followed by a search incident to arrest. Attenuation is essentially determination by a proximate cause analysis. The doctrine asks “whether the fruit of the search is tainted by the initial, unlawful detention, or whether the taint is dissipated by an intervening circumstance.”
The Brown court gave three factors of relevance to the analysis: “the ‘temporal proximity of the arrest and the confession’; the ‘presence of intervening circumstances’; and the ’purpose and flagrancy of the official misconduct.’”
The threshold inquiry for attenuation analysis concerns the existence of “intervening circumstances.” Such circumstances are those that establish a break in the legal chain of events leading to the discovery of the evidence at issue. See United States v. Green, 111 F.3d 515, 522 (7th Cir. 1997).
The Utah Supreme Court stated that “[a] prototypical intervening circumstance involves a voluntary act by the defendant, such as a confession or consent to search given after illegal police action.” The independence of such acts comes when the confession or consent “comes well after termination of a defendant’s illegal detention, after defendant’s consultation with counsel, or as a spontaneous comment not in response to any police interrogation.”
This court followed Chief Justice Parient’s dissent in State v. Frierson, 926 S0.2d 1139 (Fla. 2006) (Parient, C.J., dissenting). He proposed to limit the attenuation doctrine as it was originally, to cases involving voluntary confessions resulting from an independent act of the defendant’s “free will.”
The court determined that “the Brown formulation of attenuation [is] limited to cases involving a defendant’s independent acts of free will.” Here, the attenuation was based on a warrant, and not a voluntary act, the attenuation exception does not apply.