Whether the attenuation doctrine applies when law enforcement officials deliberately discuss illegally seized evidence with a third party in order to induce their cooperation

Questions Presented : Circuit Split Despite virtually identical circumstances between this Second Circuit case and A that of Cordero-Rosario, a First Circuit case, the result is two opposing outcomes. It ¥ is in the interest of fairness that this Court should rule on this matter in order to give the circuits guidance to avoid diametrically opposed rulings in cases involving virtually identical circumstances. Attenuation Factors _ Temporal Proximity: The Appeals Court cited "The long delay between the search and the discovery of the CD" as a "Significant gap". However the proper measure of time should be between Agent Mullen's and Det. Nagle's discussion of seized evidence with Condon -despite being aware that said evidence was the subject of an upcoming Suppression ‘ Hearing and her mention of (and later production of) the CD. Intervening Circumstances: The Appeals Court cited "Condon's unanticipated production of the CD" as the intervening circumstance. This is directly conflicting with Agent . t Mullen's credited testimony that he sought Condon -in part because she might 4 provide “other potential victims, potential witnesses" which is exactly what she did , by providing the CD. This is further contested by credited testimony that Condon _ provided the CD at "the end" of a 1 hour and 45 minute long interview and only after Agent Mullen brought up and discussed seized evidence. Flagrant Misconduct of the Official(s): With regards to the original search the Appeals Court said it "cannot say that the officer's misconduct was insignificant" but this overlooks Agent Mullen's continued misconduct when he chose to discuss evidence I. that he knew was the subject of an upcoming suppression hearing with a person that he believed could provide information on “other potential victims, potential witnesses" in order to induce the cooperation of that person. A Finucan Factors . In Finucan two factors are articulated to provide guidance on this very issue; , (1) Absent the illegal search, would investigators have known the identity of all third parties or what to ask, and (2) Whether those third parties would have come forward on their own. : First Factor: Agent Mullen testified "well, he has a child", a fact revealed during the interrogation, "we should speak to that child's mother", because "she'd be able to shed some light on... other potential victims". Agent Mullen asked Condon "Who is Tiffany Carrol?", the answer he already knew based on the interrogation and his previous investigation of her and her daughter. Second Factor: Condon possessed the CD for 13 years, 2% of which Asmodeo was being prosecuted for charges similar to those of his later conviction, 1% of which Asmodeo had been incarcerated on federal charges, she stil] did not seek out law enforcement, ? i and she only mentioned/provided the CD after agents first sought her out and then © chose to discuss evidence that was illegally seized with her. Purpose of Condon's Interview ' ‘The Appeals Court "credited Nagle's and Mullen's testimony that they interviewed Condon not to find evidence of Asmodeo's illegal activity" but ignored other credited testimony by Mullen when he was asked (in substance) "absent the suppression hearing would you have interviewed Condon anyway?", to which he replied “absolutely"..."We knew she had a child in common with Mr. Asmodeo, but like part of any other case, when ‘Il. we -I'm investigating a person I look at the people closest to them". Agent Mullen knew Asmodeo had a son from the interrogation, saw the mother of that son as someone who could potentially provide him with “other potential victims", "like part of any other case" he would have sought her out, the police report may have been how he found A her, but that was something he would have simply found by other means anyway, as it is unlikely he would simply have. thrown his hands up in defeat because there was no W easily available means to locate her. q TIi. :