Page 40 - TPA Journal July August 2023

upon whether the second factor (any “intervening that was not causally connected to an
circumstances”) is present. So, when there is an unlawful entry by a state agent.
intervening circumstance as contemplated by Therefore, the exclusionary rule does
Brown, the Brown inquiry emphasizes the third not apply to this case.
factor—the purpose and flagrancy of the police
misconduct. The Court essentially treated the suspect’s illegal
response to the police officer’s alleged misconduct
Many courts, including this Court, have recog- as an intervening circumstance that was sufficient,
nized that “new offenses” committed by a person by itself, to break the causal connection—even
who is the focus of alleged police misconduct are without reference to the other two Brown factors.
necessarily intervening circumstances as contem-
plated by Brown. In addition, many of those Other courts, both before and since this Court
courts seem to have concluded that the commis- decided Iduarte, have ruled similarly, that evi-
sion of a new offense, when considered as an dence of the commission of an offense in response
intervening circumstance, will almost invariably to unconstitutional police conduct will not be sup-
outweigh both of the other two Brown factors and pressed under the exclusionary rule. Like this
establish a per se attenuation of taint, at least with Court in Iduarte, these courts seem to have
respect to evidence of the new offense itself. Thus, reached that conclusion without explicitly consid-
if a defendant commits a new offense in response ering any Brown factors other than the second
to police misconduct, the police misconduct will one—“presence-of-intervening circumstances.”
almost never result in suppression of evidence of They almost seem to treat that intervening cir-
the new offense that was committed in reaction or cumstance offense as all-by-itself determinative of
in response to it. whether the exclusionary rule applies.

In State v. Iduarte, , for example, a suspect pulled Of course, the question in this case is not whether
a gun on a police officer who had entered his to suppress evidence of Appellant’s new offenses
apartment without a warrant during a domestic- of resisting arrest and evading detention. Insofar
dispute call. The trial court found that “the offi- as we know, Appellant has not even been formal-
cer’s actions overstepped the limits of his authori- ly charged with either of those offenses. Instead,
ty.” Although the new offense would likely not the question is whether Appellant’s commission of
have occurred “but for” the alleged police miscon- those new offenses constitutes an intervening cir-
duct, this Court decided that acquisition of evi- cumstance under Brown, so as to attenuate the
dence pertaining to this new aggravated assault taint of police misconduct with regard to evidence
“was not causally connected to the officer’s of still another, different offense— possession of a
allegedly illegal entry.” The Court explained: controlled substance—discovered subsequent to
the alleged police misconduct. In similar circum-
The exclusionary rule] does not . . . stances, some courts have seemed to consider the
provide limitless protection to one new offense—committed in response to the origi-
who chooses to react illegally to an nal alleged police misconduct—as independently
unlawful act by a state agent. If that determinative in favor of attenuation. Those courts
were allowed, the genuine protection appear to conclude that the new offense brakes the
that the exclusionary rule provides causal connection, not only between the alleged
would be undermined. Here, evidence police misconduct and the new offense committed
of the charged offense did not exist in response to it, but also between the misconduct
before the officer’s challenged actions and the subsequent discovery of evidence of even
because the charged offense had not another, different offense. But we ultimately con-
yet occurred; the evidence showed a clude that, at least until the United States Supreme
subsequent independent criminal act Court says otherwise, the admissibility of this cat-

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