Frisby v. Schultz, 487 U.S. 474 (1988)

A town enacted an ordinance prohibiting picketing ‘‘before or about’’ any residence. Abortion foes who wished to picket on the public street outside the residences of abortion providers brought suit, contending that the ordinance was invalid on its face. Substantial precedent supported their position: all public sidewalks, streets, and parks are considered traditional public forums—presumptively open for peaceful marches and protests. The town, however, urged that the Court treat residential picketing differently. The initial question was the exact reach of the ordinance. Did it prohibit all picketing in residential areas? Or just ‘‘targeted’’ picketing—that is, directed to a particular residence? Because it preferred to avoid addressing substantial constitutional difficulties raised by the broader interpretation, the Court reviewed only the narrower ‘‘targeted picketing.’’ Place regulations may be upheld only if ‘‘narrowly tailored to serve a significant government interest’’ and must ‘‘leave open ample alternative channels of communication.’’ Here, other ‘‘channels’’ remained open: protesters could solicit door-to-door, by phone, or through the mails. Moreover, preserving residential privacy and the tranquility of the home justified the restriction on targeted residential picketing. In public spaces, one can often avert ones eyes or avoid the controversy. This becomes difficult when one is targeted at home. The Court’s holding effectively protects residential picketing, yet acknowledges the capacity of government to reduce the din outside a target’s home. Picketers have a right to cycle throughout residential neighborhoods, including in front of a ‘‘target’s’’ home, but the government may prohibit picketing focused on a specific residence. JOHN NOCKLEBY See also Public Forum Doctrines FRUIT OF THE POISONOUS TREE When the police seize evidence in violation of a defendant’s constitutional rights, the courts have historically applied an exclusionary evidence rule that prevents the prosecutor from using the evidence to convict the defendant (See Mapp v. Ohio, 367 U.S. 643 [1961]). They apply this rule to deter the police from violating citizen’s constitutional rights. A corollary to the exclusionary evidence rule is provided by the ‘‘fruit of the poisonous tree’’ doctrine (a/k/a the ‘‘derivative evidence’’ rule). The fruit of the poisonous tree doctrine provides that, not only is the prosecution prohibited from introducing evidence obtained ‘‘directly’’ from illegality (the poisonous tree), they are also prohibited from using evidence ‘‘derived’’ from the illegality (the fruit) (See Brown v. Illinois, 422 U.S. 590 [1975]).

Although the derivative evidence rule has been applied in a variety of contexts, it frequently arises in several contexts. One is when the police illegally interrogate a suspect and obtain a confession from which they are able to locate and seize other evidence (for example, a murder weapon). Because the confession was illegally obtained, it constitutes the ‘‘poisonous tree,’’ and the weapon constitutes derivative evidence because the police learned of its existence only because of the illegally obtained confession. A second context in which the derivative evidence rule applies is when the police illegally seize a defendant and obtain a confession as a result of the seizure. For example, suppose that the police illegally stop a motorist who they take to the police station for questioning. The initial seizure may be illegal if the police lacked adequate grounds to make the stop (the police generally must have a ‘‘reasonable suspicion’’ that the motorist was involved in criminal activity), and the decision to take the suspect to the police station may be illegal if the police lacked probable cause. As a result, both the decision to seize and the decision to transport the suspect to the police station constitute ‘‘poisonous trees.’’ If the suspect is then interrogated at the police station and confesses, the confession might be regarded as a ‘‘fruit’’ of the poisonous tree. A third context is when the police illegally stop a motorist (again, perhaps, without a reasonable suspicion of criminal activity) and then develop probable cause to search the motorist’s vehicle, which leads them to find contraband. The illegal search might be regarded as a ‘‘fruit’’ of the illegal stop.

Although the derivative evidence rule is an important part of modern criminal procedure, it is important to realize that it is not slavishly or routinely applied. If the police can show that the fruit of the illegal conduct would have ‘‘inevitably’’ been discovered, or that they have an ‘‘independent source’’ for the information, the courts will sometimes allow it into evidence.


References and Further Reading

  • Weaver, Russell L., et al. Principles of Criminal Procedure. Thomson/West, 2004, pp. 253–258.
  • Weaver, Russell L., et al. Criminal Procedure: Cases, Problems & Exercises. 2nd Ed. Thomson/West, 2001, pp. 662–671.

See also Exclusionary Rule; Probable Cause; Search (General Definition); Seizures


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