The Inevitable Discovery Exception to the Exclusionary Rule

• Jurisdiction: United States,Federal,Colorado
• Citation: Vol. 28 No. 5 Pg. 61
• Pages: 61
• Publication year: 1999

28 Colo.Law. 61 Colorado Lawyer 1999.

1999, June, Pg. 61. The Inevitable Discovery Exception to the Exclusionary Rule

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61

Vol. 28, No. 5, Pg. 61

The Colorado Lawyer
June 1999
Vol. 28, No. 6 [Page 61]

Specialty Law Columns
Criminal Law Newsletter
The Inevitable Discovery Exception to the Exclusionary Rule
by Matthew J. Karzen

Because motions to suppress evidence based on alleged police misconduct are so common, one of the most often considered rules of law in criminal proceedings is the exclusionary rule. The rule works, in short, to prohibit the government's direct or derivative use of evidence obtained as a result of police misconduct.1 The presence of police misconduct, however, rarely ends the inquiry, for there are a number of exceptions to the exclusionary rule that may allow the government to use challenged evidence notwithstanding the police misconduct. One of these exceptions is the doctrine of inevitable discovery. To resolve issues involving the exclusionary rule and its inevitable discovery exception, practitioners must be familiar with the contours and scope of both legal doctrines

The purpose of this article is to provide a practical overview of the inevitable discovery doctrine as developed by the U.S. Supreme Court and the Colorado appellate courts. The article discusses the rationale behind the doctrine, how it works in practice, and under what circumstances it does and does not apply. The article addresses seminal U.S. Supreme Court and Colorado cases involving the doctrine of inevitable discovery, and points out apparent conflicts arising from recent Colorado Supreme Court cases

The Exclusionary Rule

Understanding the Basics

To determine the applicability of the inevitable discovery exception in a given case, practitioners must first understand the reasons for the exclusionary rule, as well as its limits. Without this understanding, application of the inevitable discovery doctrine can develop into a careless application of formalistic tests

Both the U.S. and Colorado Constitutions protect against government violation of certain basic rights, including the right to be free from unreasonable searches and seizures.2 In order that these rights may be given effect, the U.S. Supreme Court, in Weeks v. U.S.,3 created a rule that prohibits the government from using evidence obtained in violation of these rights. Reversing a conviction achieved by the use of evidence seized from the defendant's home without a warrant, the Weeks Court recognized that the Fourth Amendment of the U.S. Constitution places on the government active "limitations and restraints."4 Reasoning that convictions obtained by illegal government conduct should find "no sanction in the judgments of the court," the Weeks Court held that courts are charged with the "maintenance" of "fundamental rights."5 This maintenance currently takes the form of excluding evidence tainted by the police misconduct.

Weeks, in its recognition that the police should not benefit from their illegal action, seemingly assumes that before the exclusionary rule is applicable, there must be a sufficient nexus between the police misconduct and the use or discovery of the challenged evidence. What was left unsaid in Weeks was raised explicitly for the first time six years later in Silverthorne Lumber Co. v. U.S.,6 which involved the illegal search and seizure of Silverthorne documents by federal agents.

In an opinion foreshadowing the "fruit of the poisonous tree" doctrine, the Court held that evidence illegally obtained was not only excluded from use before the court in trial, but that such evidence "shall not be used at all."7 In articulating this derivative application of the exclusionary rule, the Court recognized the limit of the rule to those situations where the discovery or use of the evidence involves some exploitation of the police misconduct:

Of course this does not mean that the facts obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed.8

In 1939, in Nardone v. U.S.,9 the Court reaffirmed the derivative use aspect of the exclusionary rule. The opinion is significant not only because of its use of the now famous "fruit of the poisonous tree" language, but also because it contains important guidance as to the purpose and limits of the exclusionary rule. It is particularly important in analyzing any exception to the exclusionary rule because it recognizes that the differing levels of nexus between the police misconduct and the use of the challenged evidence are critical. The Nardone opinion acknowledges the substantial "handicap" that attaches to any plea for the exclusion of relevant evidence, holding that any application of such a rule "must be justified by an over-riding public policy expressed in the Constitution or the law of the land."10

In the context of police misconduct in criminal prosecutions, that policy is the enforcement of basic constitutional liberties, and it sits in the scale opposite the desirability of presenting all relevant evidence to arrive at the truth. To achieve the proper balance between the exclusion of relevant evidence and enforcement of basic rights, Nardone mandates that the accused demonstrate the government's use of the challenged evidence is a "fruit" of the police misconduct, and that the government receive an opportunity to show it is attributable to some "independent" or untainted event or source.11 As the Court noted, well-crafted argument may establish some factual connection between the misconduct and the use of the evidence, but "good-sense" mandates further inquiry to determine the practical impact of this connection.12

In the line of cases developing the contours of the exclusionary rule, perhaps the most significant in the context of an inevitable discovery analysis is Wong Sun v. U.S.13 The Court in Wong Sun articulated the relevant inquiry as not merely "was there police misconduct?" but "is the use of the evidence dependent on exploitation of the misconduct?" The Court rejected a test that would exclude all evidence that did not come to light but for the police misconduct and stated the inquiry as follows:

[T]he more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which the instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.14

This language would prove to be the linchpin of the seminal U.S. Supreme Court case on the inevitable discovery doctrine.

What It Means

Several things are immediately clear from the cases defining the purpose and scope of the exclusionary rule. First, the exclusionary rule exists to deter illegal police misconduct by denying the government the benefits of such misconduct Second, the courts that created and defined the exclusionary rule understood its substantial cost to the pursuit of truth. The exclusion of relevant...