Tagged: Fruit of the Poisonous Tree Doctrine

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #409


Well, I can’t put it off any longer no matter how hard I try. And believe me, I’ve tried.

The last time I started a column with those words we were engaged in a not-so-great Civil War. It’s how I began my multi-column series on Marvel’s Civil War II. Today we turn to the aftermath of Civil War II. Call it Marvel’s Reconstruction Era, only the historical one was probably less painful.

Inhuman Ulysses Cain predicted future crimes. Captain Marvel arrested everyone the predictions said would commit some future crime and put them in jail. I wrote about why this was against the law. You know, it’s a pity that this Captain Marvel is forcing a perfectly respectable Captain Marvel  to call himself Shazam.

One of the future criminals Captain Marvel imprisoned was Allison Green. Problem was, the prediction about Allison was wrong. She was neither a terrorist nor a criminal mastermind. Or wasn’t until she got so upset by what happened to her that she dedicated herself to bringing down Captain Marvel and other super heroes. Then she became both.

Toward this end, Alison formed an anti-super hero network which Captain Marvel wanted to infiltrate. Toward that end, Captain Marvel enlisted former super heroine turned private investigator Jessica Jones. They faked a fall from grace that sent Jessica to jail and ruined her reputation. Then they dangled the Jessica bait in front of Allison Green.

This fake-somebody’s-fall-so-the-badguys-will-recruit-him ploy was already old when 77 Sunset Strip used it in its first season, and that was so long ago that even men of a certain age are too young to have seen it first-run. (Only men of an more uncertain age, like me, had that chance.) Still, the ploy worked as well as it did back when Hector’s grandfather was a pup. Allison Green scooped up Jessica and in Jessica Jones #6, Jessica lured Captain Marvel into Allison’s trap.

This ploy only works if the big bad cooperates by revealing his or her plan. Allison did not disappoint, other than that she fell for a trick as old as the fruit salad in the Garden of Eden. She monologued like she was performing every tragedy Shakespeare ever wrote. She admitted she was going to kill the Champions and make it look like it was their fault then use the ensuing chaos to turn people against the super heroes. “The world is going to burn you all at the stake. The heroes are going to try to fight back and that ensuing ugliness is the end of the age of heroes.”

At which point, Captain Marvel and Jessica Jones revealed their plan, arrested Allison, and told her that she was going to a deep, dark prison cell where the S.H.I.E.L.D. Psych Squad would “pull all the other names and details of your burgeoning organization right out of your head … whether you like it or not.”

This story raised a few questions. I have a few answers. Let’s hope as many answers as there were questions.

Was faking Jessica Jones’s fall from grace so Allison Green would recruit her into her evil empire entrapment? No.

Entrapment happens when law enforcement officials originate a criminal design and implant the disposition to commit a crime into an innocent person’s head. If an undercover cop offers to sell someone drugs, that would be entrapment, as the government planted the idea of buying drugs into the innocent person’s head.

Allison Green was about as innocent as a newborn babe thirty-six years later; after he had become a paid assassin. She had already committed some crimes. She formed an organization to commit more crimes. Jessica did not implant the idea of committing crimes in Allison.

Did Allison’s monologued confession violate the Fifth Amendment guarantee against self-incrimination? No.

Captain Marvel and Jessica Jones tricked Allison into confessing, so there was state action. But the state action has to force the criminal to confess in order to violate the Fifth Amendment. Allison gave her confession like she was entering Dracula’s castle, freely and of her own will.

If the S.H.I.E.L.D. Psych Squad extracts information from Allison’s brain “whether she likes it or not,” would that information be suppressed under the Fifth Amendment? Hell yes!

In Schmerber v. California, the Supreme Court ruled the police could forcibly take a blood sample from a suspected drunk driver. But taking evidence using a bodily intrusion could only be done after the police obtained a search warrant. Schmerber allowed this because blood samples are not testimonial in nature. That meant only Fourth Amendment search and seizure law applied, not Fifth Amendment self-incrimination law.

Non-testimonial evidence is evidence which doesn’t require the suspect to reveal anything. As the Supreme Court noted in Curcio v. United States, the Fifth Amendment prohibits forcing someone to “disclose the contents of his own mind.” Ordering a defendant to produce blood samples, fingerprints, or the like does not require a defendant to “disclose the contents of his mind.”

Extracting thoughts from a criminal’s brain by telepathy “whether she likes it or not,” on the other hand, does force the defendant to “disclose the contents of [her] mind.” Literally.

So Captain Marvel, if you want to teep Allison’s house – well, her mental house, as it were – I have some advice; don’t. Any evidence telepathically extracted from Allison’s mind would be inadmissible because it would violate her Fifth Amendment rights. In addition, under the Fruit of the Poisonous Tree Doctrine, that evidence wouldn’t be admissible against any member of her “burgeoning organization” either. Apparently Civil War II didn’t teach Captain Marvel anything about the law, because her costume is still a fascist statement.

Last, and most important question, do I have any more columns about Civil Wars II on tap? You’ll be glad to know, the answer is no.

The Law Is A Ass

Bob Ingersoll: THE LAW IS A ASS #373


Seriously writers and producers of Rosewood, you don’t have to make it this easy for me.

Rosewood is a new TV series on Fox. It’s a police procedural; but to make it different from all the other procedurals it has a gimmick: the main character takes a drug that unlocks the full potential of his brain. No, wait, it’s that the main character is a naked amnesiac with tattoos all over her body.

Sorry I get confused. There are so many of these procedurals on TV that they’re starting to mix into one giant alphabet soup of NCSICIS.

Dr. Beaumont Rosewood, Jr. is an independent pathologist in Miami. When someone dies and the grieving family or friends aren’t satisfied with the findings of a standard autopsy performed by that incompetent government pathologist, they plop down 5k – 7,500 for a rush job – to hire Rosewood and all of his state-of-the-art equipment for an independent autopsy. So every week, Dr. Rosewood will look into some homicide and then proceed to procedural with Homicide detective Annalise Villa to solve that murder, because the police and their incompetent government pathologist could never do it on their own. (How many multi-millionaires took their talents to South Beach, anyway? Are there really enough super rich grieving family and friends to keep this pricey pathologist in practice?)

In the pilot episode of Rosewood, Dr. Rosewood and Detective Villa investigated the murder of a young woman. After they spun their wheels (literally; they showed Rosewood’s classic GTO convertible so many times, GM must have coughed up for product placement) for thirty-three of the show’s forty-five minutes – because wheel spinning’s the procedure of procedurals – they settled on their prime suspect. I’d say they found said suspect, because he was the only one left after they eliminated everyone else, but that wouldn’t be true. The first time this suspect was even mentioned in the show was when Rosewood and Villa decided he was the killer.

Said suspect was a


high-end Miami DJ with a yacht from which he held spun platters and held parties. Sometimes he’d even take the party to Mexico, where he’d pick up black cocaine that had been molded so that it looked like records and smuggled it into Miami by mixing it in with his other records. The victim was one of his party girl dancers, who learned what he was doing. So he killed her.

In order to investigate the DJ, Rosewood and Villa went to one of his parties. Villa danced with the DJ. Then, while Rosewood created a diversion, Villa went below deck, knocked out the security guard who was guarding the below deck area insecurely, and proceeded to search the DJ’s living quarters and office. She found the black cocaine. She also found the DJ, who chose this plot-appropriate time to come below deck.

The DJ pulled a gun on Villa, because what’s a cop show without a cop in jeopardy? The DJ proceeded to confess to the murder, because what’s a cop show without a bad guy who monologs? Villa disarmed the DJ, but he got away and started to run, because what’s a cop show without a chase scene?

Not to worry, Rosewood and Villa caught him.

(Oops, forgot to SPOILER ALERT that “they caught him” bit. If you didn’t see the police catching the murderer in a police procedural coming, sorry I spoiled it for you.)

And, I’m sure they took the DJ to trial. I’m just not sure on what charges.

Murder? I’m not sure they have the evidence to make that charge stick. The second Villa searched the below deck area without a warrant she made an illegal search. The cocaine disguised as records that she found would be inadmissible. hat would make proving the DJ’s motive difficult.

Drug smuggling? Same problem. Illegal search, inadmissible evidence.

What about the fact that the DJ confessed to the crimes? Well here’s the thing, Villa got the DJ to confess by talking to him while he held the gun on her. She exploited her initial illegal search to get the confession. The Fruit of the Poisonous Tree Doctrine says any evidence obtained by exploiting an initial illegal search is also inadmissible. So the DJ’s confession probably wouldn’t be admissible, either.

Moreover, even if the confession wasn’t Fruit-of-the-Poisonous-Tree inadmissible, it was inadmissible for another reason. When Villa was dancing with the DJ, she slipped her phone’s bluetooth headset into his pocket. What he said was broadcast to some nearby police officers who had recording equipment bonded to Villa’s bluetooth.

Which begs the question, how powerful was Villa’s bluetooth? If I leave my phone in the kitchen and walk to the bedroom, my phone drops the bluetooth connection. How were some police officers who were several dozen yards away able to keep the connection open?

It also begs a more important question; hasn’t anyone connected with Rosewood heard of wiretap laws?

Seriously, how long would it take to research illegal wiretap laws in Florida? Exactly as long as it takes to type “Florida illegal wiretap law” into Google then hit the Enter key. That simple task immediately produces a link to Florida Statute 934.03.

Okay, it takes a little longer. You also have to read the statute.

Or you can trust me when I say I read the statute and it makes using an electric device – like a bluetooth – to intercept an oral communication a crime. So Villa’s bugging the DJ was also an illegal search, because it broke the law. (Breaking the law, how much more illegal can you get?)

But don’t worry, Rosewood and Villa can still get the DJ on another charge. See, while he was running away from the police, the DJ grabbed a girl at gunpoint used her as a hostage. Then he was captured.

While I had the Florida statutes keyed up, I also read Florida Statute 787.01. So if you’re still willing to trust me, I can tell you in Florida, a person who abducts another person (i.e., like grabbing her at gunpoint) to use as a hostage is guilty of kidnapping. When the DJ kidnapped the girl, he committed a new crime. Even better, the kidnapping was sufficiently attenuated from Villa’s illegal search, that the fruit of the poisonous tree doctrine wouldn’t apply to it.

So good news Rosewood and Villa, you can convict that bad old DJ on something. Maybe not murder. Or even drug smuggling. But kidnapping ain’t exactly chump change. And it’s extra special good news, considering your bad police work almost botched the case entirely. Remember Columbo’s gimmick was that he only pretended to be incompetent.


These procedurals all have some gimmick to differentiate them from all the other procedurals on the air. As gimmicks to separate you from other procedurals go, having investigators who are actually incompetent might be kind of fun.