Criminal Law Blog

Assaulting a police officer during an illegal stop lets the government use the evidence it finds

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Thurman N. Wilson v. United States, No. 13-CM-564 (decided November 6, 2014). 
Players:  Associate Judges Fisher & Beckwith, Senior Judge Nebeker.  Opinion by Judge Fisher.  Bryan P. MacAvoy for Mr. Wilson.  Trial Judge:  Harold L. Cushenberry, Jr.

Facts:   Officers observed Mr. Wilson engage in what they believed was a hand-to-hand drug transaction.  As officers approached to stop him, Mr. Wilson ran away but was eventually caught.  While Mr. Wilson was detained, he pulled out of the officers’ grasp, refused to stand up, and flailed and kicked.  The officers arrested him for assault on a police officer (APO).  At the station, a search incident to arrest revealed cocaine and $140 cash.  He was convicted of both APO and possession of cocaine.

Issue:  Assuming the police lacked probable cause to believe the defendant had committed a drug offense when they initially detained him, did the defendant’s assaultive conduct during the detention purge the taint of the Fourth Amendment violation and allow the government to use subsequently discovered evidence of the drug offense?

Held:  Yes.  Absent unforeseen exceptional circumstances, where Mr. Wilson commits a separate and distinct crime while unlawfully in police custody, evidence uncovered by a search incident to the later, lawful arrest is not suppressible as the fruit of the poisonous tree.  It does not matter that the evidence related to the crime for which the defendant was initially stopped, rather than the separate and distinct crime he committed after.  Because the APO statute criminalizes resistance even to unlawful police conduct, the defendant’s conduct constituted APO and the police therefore had probable cause to arrest him for that offense and conduct a search incident to arrest.  DG.