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GAZETTE
SEPTEMBER 1980
the rights of the third party by giving him damages in an
action based on tort. Thus in
Wong Sun v. U.S.
371 U.S.
471, two defendants were tried together on a narcotics
charge. The first defendant, under illegal arrest, made
statements which led the police to seize narcotics from a
third party. These drugs were inadmissible evidence
against the first defendant as they were the fruits of the
unconstitutional action of the State against him. The same
evidence was admissible against the second defendant as
a violation of no right of his led to their production which
would entitle him to object to their use at his trial. The
rule is stated in
Jones v. U.S.,
262 U.S. 257.
" In order to qualify as a person agrieved by an
unlawful search and seizure one must have been the
victim of a search and seizure common to one against
whom the search is directed, as distinct from one who
claims prejudice only through the use of evidence
gathered as a consequence of a search and seizure
directed at someone else.
"Ordinarily, then, it is entirely proper to require of
one who seeks to challenge the legality of the search as
the basis for surpressing relevant evidence that he
alleged, and if the allegation be disputed that he
established, that he himself was the victim of an
invasion of privacy."
(2) As the burden to vindicate the citizen's constitutional
rights is on the State the evidence sought to be adduced
by the State will only be inadmissible where their servants
or agents have been the perpretators of the breach of the
accused's constitutional rights. Again in this respect we
follow the position in the United States. Thus in
Burdow
v. McDowell
1931, 256 U.S. 465, the petitioner accused
was charged with illegally transmitting mail. He was
employed and had an office at the premises of Doherty
and Co. as head of their Natural Gas Division. On the
petitioners dismissal from office for alleged fraudulent
malpractises an officer of the company
placed
McDowell's office in the hands of private detectives and
grilled open his private safe to obtain his papers which
were later surrendered to the Federal Prosecutor Burdow.
On indictment the petitioner objected to the use of
evidence so obtained as a violation of the rule in Week's
case. Mr. Justice Day held that the case did not fall within
the doctrine of the exclusion of the fruits of the poison tree
expounded in Week's case. He stated that the constitu-
tional prohibition was intended:
"As a restraint upon the activities of the sovereign
authority, and was not intended to be a limitation
upon other governmental agencies."
(3) The third exception in American law to the doctrine
of the exclusion of the fruits of the poisoned tree does not
seem to be implicit in the judgment of Walsh J. in
O'Brien's case and may not be followed here. It is less
logical than the previous two. In
Walder v. U.S.
247 U.S.
62 (1953) heroin had been obtained from the petitioner
through unconstitutional search and seizure. An indict-
ment against him for illegal possession of narcotics was
dismissed for lack of admissible evidence. On a
subsequent indictment for illegal dealings in narcotics the
petitioner testified that he had never purchased, sold, or
possessed any drugs. To impeach his testimony the
prosecution introduced the testimony of officers who had
participated in the earlier search and siezure and the
evidence of the chemist who had analysed the drugs
seized. The Trial Judge admitted the evidence but charged
the jury carefully that it went to the credit of the accused's
testimony but was irrelevant to the issue of guilt. Frank-
furter J. affirmed the Trial Judge's decision and said:
"The Government cannot violate the Fourth Amend-
ment in the only way that the Government can do
anything, namely through its agents - and use the
fruits of such unlawful conduct to secure a
conviction;
Weeks
v.
U.S.,
233 U.S. Nor can the
Government make indirect use of such evidence for
its case;
Silverthorne Lumber Co. v. U.S.
251 U.S.
or support a conviction obtained through leads from
the unlawfully obtained evidence. Cf.
Nordone
v.
U.S.,
308 U.S. All these methods are outlawed and
convictions obtained from them invalidate it because
they encouraged the kind of society that is obnoxious
to free men.
It is one thing to say that the Government cannot
make an affirmative use of evidence unlawfully
obtained. It is quite another to say that the Defen-
dant can turn the illegal method by which the
evidence was obtained to his own advantage and
provide himself with a shield against his own
untruths. Such an extension would be a pervertion of
the Weeks doctrine."
It strikes me as illogical that unconstitutionally obtained
evidence may be admitted in a criminal trial to prove that
the accused is a liar but cannot be admitted to prove that
he is a murderer.
Evidence Admitted in Extraordinary Circumstances
Even though the rule in O'Brien's case is infringed, under
the rule extraordinary circumstances may excuse the
breach of the accused's rights, and allow the evidence to
be admitted. Walsh J. in his judgment in O'Brien's case
mentioned as extraordinary and excusing circumstances,
the destruction of vital evidence, and the need to rescue a
victim in peril. He also included a search incidental to and
contemperaneous with unlawful arrest though made
without a valid search warrant; in England the common
law has developed to the extent of making this action
within the law; Cf.
Jeffrey v. Black
[1978] 1 All E.R.
559. The rationale for the existence of these circum
stances, which would allow the unconstitutionally
obtained evidence to be admitted, appears from the
judgment in O'Brien's case to be that in certain extra-
ordinary circumstances the obligation, placed on the State
by Article 40.2. to vindicate the personal rights of the
citizen may have to yield in extraordinary circumstances
to a higher duty, that of protecting the rights to life of a
citizen in peril or of rescuing vital evidence which is about
to be destroyed. If, in these extraordinary circumstances
the State has no obligation to vindicate the accused's
personal rights, that duty will not fall on the Courts, as the
obligation on the Government under Article 40.2, is not
an absolute one but is expressed in terms of "protect as
best it ma y ". The extraordinary circumstances will
necessitate a breach of the accused's personal rights but
that breach will not be a failure to vindicate his rights as
best the State may in circumstances of sufficient gravity
and urgency. In these circumstances there may be no
constitutional mandate.
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