Fruit of the Poisonous Tree

We are all familiar, at least to some degree, with the concept of chain of evidence, Miranda rights, and the 4th and 5th Amendments to the Constitution.

Evidence has to be acquired by legal means. A warrant is required, except under certain circumstances, to seize evidence. So, what happens if there is an incident, whether accidental, or, perhaps, even set up, to create a situation where, by stealthy means, "evidence" is secured without a warrant, or a crime (certain circumstances) in which the evidence can be rightfully secured? On August 29, 2014, a Border Patrol Agent, claiming that a weapon had been pointed at him, fired five shots, from about 30 feet distant from John Foerster. Surprisingly, he missed hitting Foerster, indicating both poor marksmanship, and suggesting that the agent committed a crime, in violation of BPS policy. Foerster, Massey, and the third member of their group, Varner, had their five firearms taken from their 4-wheel "mule", without a warrant - a violation of the 4th Amendment. Then, without being read their Miranda rights, questioned by BPS, a local Sheriff's deputy, and an FBI agent. From the Affidavit for a Search Warrant, item 5.

B. During a post-shooting investigation, two of these armed individuals were identified as Kevin Lyndel MASSEY (aka KC Massey) and John Frederick FOERSTER, and both admitted to interviewing officers of the Cameron County Sheriffs Office (CCSO) and Special Agents of the Federal Bureau of Investigations (FBI) to possessing some of the firearms seized.

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From the Affidavit for a Criminal Complaint (arrest warrant):

5. FBI Special Agent Caryn Chasteen and Cameron County Sheriffs Office Investigator Padilla interviewed FOERSTER. During the interview FOERSTER admitted to possessing the ZASTAVA, Model: PAP M92PV, 7.62 x 39mm pistol, SN: MP2PV005143; adding that he did not own this firearm but borrowed it from Kevin MASSEY. 6. During the interview of MASSEY, by FBI Special Agent David Cordoba and HSI Special Agent Jeremy Bergeaux, MASSEY admitted to both the ownership of the ZASTAVA, Model: PAP M92PV, 7.62 x 39mm pistol, SN: MP2PV005143, and to lending this firearm to FOERSTER.

Now, in reviewing those documents, we find no claim that there was a search warrant to allow them to seize the firearms, or that Miranda rights were read to them before taking testimony. Because of the illegal seizure of the weapons, and the illegally obtained statements by Massey, Foerster, and Varner, the subsequent Search Warrant and Criminal Complaint (arrest warrant) were secured.  If the rights of Americans are as intended by the Founders, then the invalidity of the actions of August 29 leave no lawful justification (excuse) to obtain the subsequent warrants. If we are a nation of laws, and the "supreme Law of the Land" is the Constitution, then by what right does the federal government pretend that they can walk over the Bill of Rights, imposing hardship and expense on K. C. Massey? Massey's attorney, Louis S. Sorola, has the same question, so he has filed a Motion to Suppress Illegally Seized Evidence and Illegally Obtained Statements.  As he points out in the Motion,

The August 29, 2014 search and seizure was illegal and the evidence and statements should be suppressed along with any subsequent statements and evidence seized on October 20, 2014 as they are fruit of the poisonous tree.

The Honorable Andrew S. Hanen, United States District Court, Southern District of Texas, Brownsville Division will hear this Motion.  Judge Hanen recently ruled against the Obama Amnesty Plan, indicating a respect for both the Constitution and the fact that only Congress may legislate.