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56 Calif. L. Rev. 579 (1968)
The Fruit of the Poisonous Tree Revisited and Shepardized

handle is hein.journals/calr56 and id is 583 raw text is: The Fruit of the Poisonous Tree Revisited and Shepardized Robert M. Pitler* It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analy- sis.'-Justice Oliver Wendell Holmes T HE CHARACTERIZATION OF SECONDARY EVIDENCE which owes its dis- covery to evidence initially obtained in violation of a constitutional, statutory, or court-made rule as the fruit of the poisonous tree2 evokes more passion than rational analysis. Although the author is tempted to use a more neutral vocabulary, clarity and tradition require continued ad- herence to the established terminology. The initially seized evidence customarily represents the poisonous tree, but that evidence is itself the first generation fruit of some illicit governmental activity. Thus, the books and records seized in Weeks v. United States3 were the first generation fruit of an unlawful search and seizure. They were excluded because: If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those placed are concerned, might as well be stricken from the Constitution.4 Of course, there must be a significant relationship' between the un- lawful activity and the evidence seized to warrant exclusion. Hence, al- though the Weeks opinion is silent on causation, it is evident that there was a causal relationship between the illegal search and seizure and the documentary evidence which it uncovered. *LL.B., 1966, Brooklyn Law School; LL.M., 1967, University of Michigan; Assistant Professor of Law at the University of Colorado Law School commencing in the fall of 1968. The author is extremely indebted to Professor Yale Kamnisar of the University of Michigan for his guidance, interest, and legal writings which have contributed greatly to this article. The author also wishes to acknowledge his appreciation to Professor Jerold Israel of the University of ichigan for his comments and criticisms concerning the substance and organ- ization of the article. 11Hyde v. United States, 225 U.S. 347, 391 (1912) (dissenting opinion). 2The phrase was coined by Justice Frankfurter in Nardone v. United States, 308 US. 338, 341 (1939). 8 232 U.S. 383 (1914). 4 Id. at 393. 5Some courts express the relationship in terms of causal connection. See Note, 66 YALE L.J. 270, 282 (1956). Others consider the relationship to be one of essential connection. See, e.g., Rogers v. Superior Court, 46 Cal. 2d 3, 10-11, 291 P.2d 929, 933-34 (1955).

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