The fact that there was an intervening independent source which was also a "but for" cause of the discovery does not by itself remove the taint of the illegal search, if the illegal search nevertheless formed the primary motivation or basis for the discovery of the evidence. United States v. Owen, 492 F.2d 1100 (C.A. 5th Cir. 1974); United States v. Castellana, 488 F.2d 65 (C.A.5th Cir. 1974); United States v. Resnick, 483 F.2d 354 (C.A.5th Cir. 1973); Gissendanner v. Wainwright, 482 F.2d 1293 (C.A.5th Cir. 1973); United States v. Miles, 468 F.2d 482 (C.A.3rd Cir. 1972); United States v. Brandon, 467 F.2d 1008 (C.A.9th Cir. 1972); Carpenter v. United States, 463 F.2d 397 (C.A.10th Cir. 1972); United States v. Kennedy, 457 F.2d 63 (C.A. 10th Cir. 1972); United States v. Cassell, 452 F.2d 533 (C.A.7th Cir. 1971); United States v. Fike, 449 F.2d 191 (C.A.5th Cir. 1971); United States v. Jackson, 448 F.2d 963 (C.A.9th Cir. 1971); United States v. Bacall, 443 F.2d 1050 (C.A.9th Cir. 1971); United States v. Edmons, 432 F.2d 577 (C.A. 2nd Cir. 1970); United States v. Seohnlein, 423 F.2d 1051 (C.A.4th Cir. 1970); Agius v. United States, 413 F.2d 915 (C.A.5th Cir. 1969); Swinney v. United States, 391 F.2d 190 (C.A.5th Cir. 1968); United States v. Ruffin, 389 F.2d 76 (C.A.7th Cir. 1968); United States v. Jackson, 387 F.2d 115 (C.A. 4th Cir. 1967); Green v. United States, 386 F.2d 953 (C.A.10th Cir. 1967); Hancock v. Nelson, 363 F.2d 249 (C.A.1st Cir. 1966); Leek v. State of Maryland, 353 F.2d 526 (C.A.4
We are unwilling to suppose that had there been no second stop the police would have failed to pursue such positive leads to their ultimate conclusion. Cf. Gissendanner v. Wainwright, 482 F.2d 1293, 1297 (5th Cir. 1973). We agree with the views of the Pennsylvania Supreme Court expressed in Commonwealth.
Two decisions of this circuit have applied the principles on which this exception rests but in a slightly different context. In Gissendanner v. Wainwright, 482 F.2d 1293 (5th Cir. 1973), an illegally obtained confession provided the identities of two accused rapists and accounted for their presence in a lineup identification. The lineup and subsequent convictions were valid, however, because the rapists' identities would probably have been discovered subsequently during ordinary investigations.
There are some decisions that purport to find a third exception to the tainted fruit of the poisonous tree doctrine: the inevitable discovery rule. That exception would allow indirect evidence to be introduced, notwithstanding its derivative connection to the excluded direct evidence resulting from unconstitutional conduct by law enforcement officers, if it were inevitable that such indirect evidence would have been discovered and acquired from an independent source in any event. United States v. Ceccolini, 542 F.2d 136, 140-41 (2d Cir. 1976), cert. granted 431 U.S. 903, 97 S.Ct. 1693, 52 L.Ed.2d 386 (1977); United States ex rel. Owens v. Twomey, 508 F.2d 858, 865-66 (7th Cir. 1974) (habeas corpus petition); Government of Virgin Islands v. Gereau, 502 F.2d 914, 927-28 (3d Cir. 1974), cert. denied, 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975); United States v. Falley, 489 F.2d 33, 40-41 (2d Cir. 1973); Gissendanner v. Wainwright, 482 F.2d 1293, 1297 (5th Cir. 1973) (habeas corpus petition); United States v. Cole, 463 F.2d 163, 171-74 (2d Cir. 1972), cert. denied, 409 U.S. 942, 93 S.Ct. 238, 34 L.Ed.2d 193 (1972); United States v. Seohnlein, 423 F.2d 1051, 1053 (4th Cir. 1970), cert. denied, 399 U.S. 913, 90 S.Ct. 2215, 26 L.Ed.2d 570 (1970); Wayne v. United States, 115 U.S.App.D.C. 234, 318 F.2d 205, 209 (1963), cert. denied, 375 U.S. 860, 84 S.Ct. 125, 11 L.Ed.2d 86 (1963); United States v. Kelly, 414 F. Supp. 1131, 1140 (W.D. Mo. 1976), rev'd on other grnds., expressly leaving the question undecided, 547 F.2d 82, 86 (8th Cir. 1977); United States v. Griffin, 413 F. Supp. 178, 183-85 (E.D.Mich. 1976); United States ex rel. Roberts v. Ternullo, 407 F. Supp. 1172, 1176-78 (E.D.N.Y. 1976) (habeas corpus petition).
"Of course a witness' identity may be derived solely or principally from illegally obtained evidence and warrant a court in disallowing his testimony. . . . But the taint of the unlawful search may be removed if there are independently sufficient `leads' by which the government may discover the identity." Gissendanner v. Wainwright (5th Cir. 1973) 482 F.2d 1293, 1297. "Certainly, before any consequences so destructive of society's right to be protected from violent crimes is to be set in motion, there would have to be a respectable showing that (i) it was solely through such invalid source that identity was ascertained and (ii) there was no likelihood that it would have subsequently been discovered through other police efforts." United States v. Nagelberg (2d Cir. 1970) 434 F.2d 585, 587 (cert.
However, the fact that the search gave investigators a lead on a possible suspect does not make a subsequent identification of that suspect, given by a witness who had no knowledge of the illegal search and was not shown any of the evidence produced by it, subsequently inadmissible. Those decisions also accord with a decision from the Fifth Circuit holding that the convictions of two defendants were not illegal when their identity was first learned through a confession given without proper Miranda warnings. Gissendanner v. Wainwright, 482 F.2d 1293 (1973). We also find it important that both Carter's name and address were provided to Burke by Mark Alvarado. That was all the information that Burke needed in order to run the CLEAR search that, ultimately, produced the photo used in the bank teller's identification.
In general, the government's conduct here, even if assumed to be an intrusion into the privileged relationship, was not as egregious as that in Valencia. In Gissendanner v. Wainwright, 482 F.2d 1293 (5th Cir. 1973), we addressed defendants' claim that their identification in a line-up was tainted because their identities were obtained initially through the coerced confession of their co-defendant. We held that the rule of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), which excludes evidence that is the fruit of an illegal search or seizure, was not applicable. First, we noted that the illegally obtained confession was not introduced into evidence.
394 U.S. at 171-74, 89 S.Ct. at 965-67. Although Alderman and most other "standing" cases have involved Fourth Amendment violations, the principle has also been applied where, as in this case, one codefendant or coconspirator seeks to suppress evidence incriminating him that was obtained from a coparticipant in crime without proper compliance with the procedural requirements of Miranda or otherwise in violation of that party's Fifth or Sixth Amendment rights. E. g., Gissendanner v.Wainwright, 5 Cir., 1973, 482 F.2d 1293, 1296-97; United States v. Pruitt, 9 Cir., 1972, 464 F.2d 494, 495; United States v. Schennault, 7 Cir., 1970, 429 F.2d 852, 855; United States v. Bruton, 8 Cir., 1969, 416 F.2d 310, 312-13, cert. denied, 1970, 397 U.S. 1014, 90 S.Ct. 1248, 25 L.Ed.2d 428. Similarly, at trial, a defendant can neither assert the Fifth Amendment right against self-incrimination on behalf of a witness, nor, if the witness himself asserts his privilege, take advantage of an error of the court in overruling it. See, e.g., United States v. Colyer, 5 Cir., 1978, 571 F.2d 941, 945; Hall v. United States, 5 Cir., 1969, 413 F.2d 45, 48; United States v. Skolek, 10 Cir., 1973, 474 F.2d 582, 584-85; Bowman v. United States, 9 Cir., 1965, 350 F.2d 913, 915-16, cert. denied, 1966, 383 U.S. 950, 86 S.Ct. 1209, 16 L.Ed.2d 212.
Thus, what we must initially decide is whether the errors alleged by appellants could have rendered their trial fundamentally unfair. See Gissendanner v. Wainwright, 482 F.2d 1293, 1300 (5th Cir. 1973) (appendix to opinion); Young v. Alabama, 443 F.2d 854, 855 (5th Cir. 1971), cert. denied, 405 U.S. 976, 92 S.Ct. 1202, 31 L.Ed.2d 251 (1972); Scalf v. Bennett, 408 F.2d 325, 327 (8th Cir.), cert. denied, 396 U.S. 887, 90 S.Ct. 175, 24 L.Ed.2d 161 (1969). Although these cases involve petitions by state prisoners under § 2254, rather than federal prisoners under § 2255, the standard for reviewing trial errors is the same.
Parker v. Estelle, 498 F.2d 625, 629 (5th Cir. 1974). See also Gissendanner v. Wainwright, 482 F.2d 1293 (5th Cir. 1973), citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and Williams v. United States, 382 F.2d 48 (5th Cir. 1967).Williams v. United States, 382 F.2d 48 (5th Cir. 1967).