attenuation doctrine in New York

2025"The attenuation doctrine requires a court to consider 'the temporal proximity of the arrest and the confession, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct' application of the attenuation doctrine is a mixed question of law and fact" ( People v. Bradford , 15 NY3d 329, 333 [2010]).

2025"The attenuation doctrine requires a court to consider 'the temporal proximity of the arrest and the confession, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct' application of the attenuation doctrine is a mixed question of law and fact" ( People v. Bradford , 15 NY3d 329, 333 [2010]).

2013As the majority correctly notes, in applying the attenuation doctrine, courts must consider the “temporal proximity” between the arrest and the discovery of the challenged evidence, “the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct” (Brown v Illinois, 422 US 590, 603-604 [1975] [citation omitted]; People v Bradford, 15 NY3d 329, 333 [2010]).

2010The attenuation doctrine requires a court to consider “the temporal proximity of the arrest and the confession, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct” (id.; see Brown v Illinois, 422 US 590, 603-604 [1975]).

2026The majority's attenuation analysis is mistaken, but even accepting its flawed logic, the proper course would be to review the attenuation finding for record support ( see People v Conyers , 68 NY2d 982, 984 [1986]).

2026The majority's attenuation analysis is mistaken, but even accepting its flawed logic, the proper course would be to review the attenuation finding for record support ( see People v Conyers , 68 NY2d 982, 984 [1986]).

2026The majority understandably takes issue with the Appellate Division's citation to People v Borges (69 NY2d 1031 [1987]), and the factors relevant to an attenuation analysis when discussing voluntariness (majority op at 16).

2026Footnote 5: Borges explained that voluntariness is an important but not dispositive factor in the attenuation analysis, and went on to discuss "a variety of factors" that should also be considered, including "the temporal proximity of the consent to the arrest, the presence or absence of intervening circumstances, whether the police purpose underlying the illegality was to obtain the consent or the fruits of the search, whether the consent was volunteered or requested, whether the [person] was aware [they] could decline to consent, and particularly, the purpose and flagrancy of the official mi

2025"Under the attenuation exception to the exclusionary rule, '[t]he question to be resolved when it is claimed that evidence subsequently obtained is 'tainted' or is 'fruit' of a prior illegality is whether the challenged evidence was [obtained] 'by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint'" ( People v Johnson , 79 AD3d 905, 906 [internal quotation marks omitted], quoting Segura v United States , 468 US 796, 804-805 ; see People v Contreras , 194 AD3d 835, 837 ).

2021"Under the attenuation exception to the exclusionary rule, '[t]he question to be resolved when it is claimed that evidence subsequently obtained is 'tainted' or is 'fruit' of a prior illegality is whether the challenged evidence was [obtained] 'by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint'" ( People v Johnson , 79 AD3d 905, 906 , quoting Segura v United States , 468 US 796, 804-805 [internal quotation marks omitted]).

2013That is, the People did not prove that the evidence was not acquired by exploiting the illegal arrest but, rather, came about by means “sufficiently distinguishable from [the illegality] to be purged of illegality” (People v Johnson, 66 NY2d 398, 407 [1985]; see Brown v Illinois, 422 US at 603-604 ; People v Borges, 69 NY2d 1031, 1033 [1987]).

2009Should Supreme Court find that, after applying the relevant attenuation factors (see People v Johnson, 66 NY2d 398, 407 [1985]; cf. Borges, 69 NY2d at 1033 ), defendant’s confessions were acquired by means sufficiently independent of his initial detention, its judgment should be amended to reflect that determination.

2024Attenuation, the exception at issue here, focuses "on the presence or absence of free will or voluntariness regarding a defendant's acts which follow illegal police conduct; thus, the attenuation inquiry resolves whether the causal connection between the police misconduct and the later discovery of the challenged evidence is so far removed as to dissipate the taint" ( People v Small , 110 AD3d at 1140 [internal quotation marks, ellipsis and citation omitted]).

2017The People have the burden of proving the applicability of the attenuation exception (see People v Small, 110 AD3d at 1141 ).

2014People v Divine, 6 NY3d 790, 791 [2006]), the Court may reverse the lower court's attenuation finding only if there is no evidence in the record to support the decision (see People v Bradford, 15 NY3d 329, 333 [2010]).

2014People v Divine, 6 NY3d 790, 791 [2006]), the Court may reverse the lower court’s attenuation finding only if there is no evidence in the record to support the decision (see People v Bradford, 15 NY3d 329, 333 [2010]).

2013The focus of the attenuation exception is “on the presence or absence of ‘free will’ or voluntariness regarding a defendant’s . . . acts which follow illegal police conduct; thus, the attenuation inquiry resolves whether the causal connection between the police misconduct and the later discovery of the challenged evidence is so far removed as to dissipate the taint” (People v Richardson, 9 AD3d 783, 788 [2004], lv denied 3 NY3d 680 [2004]; see Segura v United States, 468 US at 805 ).

2013The focus of the attenuation exception is “on the presence or absence of ‘free will’ or voluntariness regarding a defendant’s . . . acts which follow illegal police conduct; thus, the attenuation inquiry resolves whether the causal connection between the police misconduct and the later discovery of the challenged evidence is so far removed as to dissipate the taint” (People v Richardson, 9 AD3d 783, 788 [2004], lv denied 3 NY3d 680 [2004]; see Segura v United States, 468 US at 805 ).

2010People v Ryan, 12 NY3d 28, 31 [2009]; People v Divine, 6 NY3d 790, 791 [2006]), our review is limited and the determination of the Appellate Division may be disturbed only if there is no evidence in the record to support it (see People v Paulman, 5 NY3d 122, 129 [2005]).

2010Under the attenuation exception to the exclusionary rule, “[t]he question to be resolved when it is claimed that evidence subsequently obtained is ‘tainted’ or is ‘fruit’ of a prior illegality is whether the challenged evidence was [obtained] ‘ “by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint” ’ ” (Segura v United States, 468 US 796, 804-805 [1984], quoting Wong Sun v United States, 371 US at 488 ; see People v Paulman, 5 NY3d 122, 130-131 [2005]).

2010Under the attenuation exception to the exclusionary rule, “[t]he question to be resolved when it is claimed that evidence subsequently obtained is ‘tainted’ or is ‘fruit’ of a prior illegality is whether the challenged evidence was [obtained] ‘ “by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint” ’ ” (Segura v United States, 468 US 796, 804-805 [1984], quoting Wong Sun v United States, 371 US at 488 ; see People v Paulman, 5 NY3d 122, 130-131 [2005]).

2004Such evidence is immune from suppression pursuant to the attenuation doctrine (see generally Wong Sun v United States, 371 US 471, 486-488 [1963]; People v Townes, 41 NY2d 97 , 101-102 [1976]; People v Evans, 289 AD2d 994 [2001], lv denied 97 NY2d 728 [2002]).

2004The court properly applied the particular attenuation test for abandonment situations set forth in People v Boodle ( 47 NY2d 398 [1979]).

1998Clair, 80 AD2d 691 , affd, 54 NY2d 900 ), a successful challenge to the cocaine found in the patrol vehicle was unlikely under the attenuation doctrine (see, People v Boodle, 47 NY2d 398, 404 , cert denied 444 US 969 ; People v Smith, 235 AD2d 639, 640 , lv denied 89 NY2d 1041 ).

2026In light of this holding, Harris reversed our Court for erroneously conducting an attenuation analysis when a defendant, unlawfully arrested inside the home in violation of Payton , signed a written statement confessing to the crime at the police station ( see id. at 15-16, 19).

2026And despite conceding that "involuntariness of consent can be an independent basis for suppression," the majority apparently remits on attenuation because "the question of voluntariness arises here in the context of an attenuation analysis, which is only 'appropriate where, as a threshold matter, courts determine that the challenged evidence is in some sense the product of illegal governmental activity' " (majority op at 10 n 2, quoting Harris , 495 US at 19).

2025"Under the attenuation exception to the exclusionary rule, '[t]he question to be resolved when it is claimed that evidence subsequently obtained is 'tainted' or is 'fruit' of a prior illegality is whether the challenged evidence was [obtained] 'by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint'" ( People v Johnson , 79 AD3d 905, 906 [internal quotation marks omitted], quoting Segura v United States , 468 US 796, 804-805 ; see People v Contreras , 194 AD3d 835, 837 ).

2021"Under the attenuation exception to the exclusionary rule, '[t]he question to be resolved when it is claimed that evidence subsequently obtained is 'tainted' or is 'fruit' of a prior illegality is whether the challenged evidence was [obtained] 'by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint'" ( People v Johnson , 79 AD3d 905, 906 , quoting Segura v United States , 468 US 796, 804-805 [internal quotation marks omitted]).

2026As we explained on remand from the Supreme Court in Harris , the Supreme Court's ruling regarding the scope of the exclusionary rule under federal law "is not adequate to protect New York citizens from Payton violations because of our right to counsel rule" (77 NY2d at 439).

2026As we explained on remand from the Supreme Court in Harris , the Supreme Court's ruling regarding the scope of the exclusionary rule under federal law "is not adequate to protect New York citizens from Payton violations because of our right to counsel rule" (77 NY2d at 439).

2026But reading the Appellate Division's decision as a whole, the Court clearly relied on the voluntariness factors sanctioned by the majority, and its finding of voluntariness is supported by the record despite the "incorrect language" discussing attenuation ( People v Sanchez , 32 NY3d 1021, 1023 [2018]).

2026But reading the Appellate Division's decision as a whole, the Court clearly relied on the voluntariness factors sanctioned by the majority, and its finding of voluntariness is supported by the record despite the "incorrect language" discussing attenuation ( People v Sanchez , 32 NY3d 1021, 1023 [2018]).

2026Moreover, though Lane analyzed the relevant attenuation factors for a voluntary third-party consent "in painstaking detail" (majority op at 12), it never meaningfully analyzed whether attenuation analysis was proper in the first place ( see Lane , 726 NW2d at 380-392 [Cady, J., plurality op]).

2026Moreover, though Lane analyzed the relevant attenuation factors for a voluntary third-party consent "in painstaking detail" (majority op at 12), it never meaningfully analyzed whether attenuation analysis was proper in the first place ( see Lane , 726 NW2d at 380-392 [Cady, J., plurality op]).

2025"Under the attenuation exception to the exclusionary rule, '[t]he question to be resolved when it is claimed that evidence subsequently obtained is 'tainted' or is 'fruit' of a prior illegality is whether the challenged evidence was [obtained] 'by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint'" ( People v Johnson , 79 AD3d 905, 906 [internal quotation marks omitted], quoting Segura v United States , 468 US 796, 804-805 ; see People v Contreras , 194 AD3d 835, 837 ).

2024"In deciding whether voluntary consent attenuated the taint of illegal police action, a court must give consideration to a variety of factors, including the temporal proximity of the consent to the illegal police action, the presence or absence of intervening circumstances, whether the police purpose underlying the illegality was to obtain the consent or the fruits of the search, whether the consent was volunteered or requested, whether the defendant was aware he [or she] could decline to consent, and particularly, the purpose and flagrancy of the official misconduct" ( Matter of Leroy M. , 16

2017The court’s interested witness charge, which followed the Criminal Jury Instructions, was not constitutionally deficient. (see People v Davis, 127 AD3d 614, 615 [1st Dept 2015], lv denied 26 NY3d 928 [2015]; People v Blake, 39 AD3d 402, 403 [1st Dept 2007], lv denied 9 NY3d 873 [2007]).

2017The court’s interested witness charge, which followed the Criminal Jury Instructions, was not constitutionally deficient. (see People v Davis, 127 AD3d 614, 615 [1st Dept 2015], lv denied 26 NY3d 928 [2015]; People v Blake, 39 AD3d 402, 403 [1st Dept 2007], lv denied 9 NY3d 873 [2007]).

2013But the majority glosses over the actual application of this doctrine: “intervening circumstances” typically include either release from custody or some action taken by a court (see Johnson v Louisiana, 406 US 356, 365 [1972] [intervening circumstances found where, “(p)rior to the lineup, at which (defendant) was represented by counsel, he was brought before a . . . magistrate to advise him of his rights and set bail”]; People v Wilson, 57 NY2d 786, 787-788 [1982] [intervening circumstances found because release followed by voluntary participation in lineup]; People v Pleasant, 54 NY2d 972, 97

2013But the majority glosses over the actual application of this doctrine: “intervening circumstances” typically include either release from custody or some action taken by a court (see Johnson v Louisiana, 406 US 356, 365 [1972] [intervening circumstances found where, “(p)rior to the lineup, at which (defendant) was represented by counsel, he was brought before a . . . magistrate to advise him of his rights and set bail”]; People v Wilson, 57 NY2d 786, 787-788 [1982] [intervening circumstances found because release followed by voluntary participation in lineup]; People v Pleasant, 54 NY2d 972, 97