b. Independent Source. Here, the government may argue that the evidence really wasn't the
result, or product, of the illegal search. In other words, the government may show that the evidence
was not obtained through an exploitation of its earlier illegal actions. In one case, for example, the
issue was whether the testimony of a witness was the product of an illegal search. The court found it
was not; the witness's identity wasn't tainted because the government was already aware of it, prior to
the illegal search. U.S. v. Waller, 3 MJ 32 (CMA, 1977). In other words, the issue is whether or not the
discovery of the evidence occurred as a result of the illegal search. If not, the purpose of the
exclusionary rule does not call for the exclusion of the evidence. U.S. v. Boisvert, 1 MJ 918 (AFCMR,
1976). Remember, the exclusionary rule bars from trial "evidence obtained either during or as the
direct result of an unlawful intrusion." It does not exclude evidence that is obtained independently, or
apart from, the illegal conduct. U.S. v. Sowards, 6 MJ 864 (AFCMR, 1978).
In U.S. v. Moreno, 23 MJ 622 (AFCMR, 1986), the court dealt with the problem of an illegal search
which was followed by a second, legal, search. In other words, suppose there is an unlawful search.
The police later obtain a search warrant and perform a second search, this one being lawful. The
second search is, of course, legal, and the evidence will be admissible "as long as the search
authorization was based on an independent source of information...The evil which the exclusionary rule
is guarding against is the use of illegally obtained information to support a search warrant." There is no
problem, then, if the second search is based on information known before the illegal search was
conducted. The Supreme Court has similarly held that evidence will not be suppressed if it was seized
under a valid search warrant that is based on information the police had PRIOR to an unlawful entry
into a residence. In other words, the search warrant was based on information that was "unrelated to
the entry and therefore constituted an independent source for the evidence." Under such facts, "the
exclusionary rule has no application where the government learned of the evidence from an
independent source...None of the information on which the warrant was secured was derived from or
related in any way to the initial entry...the information came from sources wholly unconnected with the
entry and was known to the agents well before the initial entry. No information obtained during the
initial entry or occupation of the apartment was needed or used by the agents to secure the warrant."
Segura v. U.S. 82 L.Ed.2d 599 (1984).
In Murray v. U.S., 56 L. W. 4801 (1988), the police placed the defendant under surveillance for
drug activities, based on information they obtained from informants. After watching the defendant drive
a truck into a warehouse, the police later entered the warehouse (unlawfully) where they found bundles
of marijuana in plain view. The police didn't disturb the bundles, but left the premises. They later
applied for a search warrant, but did NOT mention the prior illegal entry or anything that they had
observed during the illegal entry. When they obtained the warrant, they re-entered the warehouse and
seized 270 bales of marijuana. The Supreme Court held:
"..if that later acquisition was not the result of the earlier entry, there is no reason why the
independent source doctrine should not apply...So long as a later, lawful seizure is genuinely
independent of an earlier, tainted one...there is no reason why the independent source doctrine
should not apply."
MP1021
1-18
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