Inevitable Discovery in Washington State and the Unreasonable "reasonableness" Requirement

Publication year1999


Inevitable Discovery in Washington State and the Unreasonable "Reasonableness" Requirement

David Seaver(fn*)


In a Seattle middle school, a young student went to her principal's office to report the sale of drugs on campus.(fn1) The student told the principal that she was not feeling well due to smoking marijuana. The principal called for a police officer to investigate. When the officer arrived, the student explained that she bought the marijuana from a classmate. The classmate was found, and admitted that he and another classmate were selling drugs on campus. The other suspected seller was found soon after. Before placing the second suspect under formal arrest, the officer searched his pockets, finding a baggie containing twenty bindles of cocaine powder. In addition to any charges that developed from an investigation of sales of marijuana on campus,(fn2) the suspect was additionally charged with the crime of possession of cocaine with the intent to deliver.

Under a traditional application of the exclusionary rule,(fn3) the baggie of marijuana would be suppressed as the product of an unreasonable search. Because the officer had not yet arrested the suspect, but merely detained him, the officer had no authority to extract nonthreat-ening objects from the suspect's pockets. Without the cocaine evidence, of course, the trial court would likely dismiss the possession with intent to deliver charge.

Is the above outcome the only one possible? Under the U.S. Supreme Court's inevitable discovery exception to the exclusionary rule, the evidence could still be admitted. The prosecutor would need to show that, prior to the search of the suspect, probable cause existed to arrest him, that the officer was well aware of it, and that the officer had already determined that he was going to arrest the suspect. The prosecutor would also need to establish that the officer would have ultimately searched the suspect after placing him under formal arrest, and that the search would have produced the same evidence. If the prosecutor can show, by a preponderance of the evidence, that such a course of events would have inevitably occurred, then the evidence, which would otherwise be suppressed, will be admitted.

Inevitable discovery is a newcomer to Washington, having only been applied since 1995.(fn4) The history of the inevitable discovery doctrine in Washington, however, can be traced back to an important dissent written by Justice James Dolliver of the Washington Supreme Court in 1982,(fn5) as well as to the United States Supreme Court decision of Nix v. Williams(fn6) in 1984. Beginning with an examination of Dolli-ver's dissent and the U.S. Supreme Court's holding in Nix, this Comment will analyze the gradual acceptance of inevitable discovery by the Washington courts. While the Washington Supreme Court has adopted the federal version of the exception, Division One of the Washington Court of Appeals has expanded its reach while adding another element. Division One (and all other courts that follow its rule) requires that the prosecution establish that the investigating officer did not act unreasonably when discovering the evidence, even though the discovery was made during an illegal search. The Washington Supreme Court has yet to address Division One's addition, denying review in every case.(fn7)

This Comment will examine the substantial differences between Division One's current version of inevitable discovery and that adopted by the U.S. Supreme Court in Nix, which is still the only version affirmatively accepted by the Washington Supreme Court. Having distinguished the differences, this Comment ultimately suggests an amalgamation of the most desirable parts of each version of the inevitable discovery exception. The author proposes that the "reasonableness" element demanded by Division One is duplicative and unnecessarily burdensome on the prosecution. The version proposed by this Comment recognizes the potential benefits to the search for truth and to the societal interest in effective enforcement of its laws to be realized in inevitable discovery. To counter concerns that the exclusionary rule will be destroyed without the "reasonableness" requirement, the proposed version requires a sufficient quantum of proven facts to prevent careless application of the inevitable discovery doctrine.

II. State v. Broadnax-Inevitable Discovery in Dissent

The discussion of inevitable discovery in Washington courts began in an impassioned 1982 dissent. In State v. Broadnax,(fn8) the Supreme Court of Washington reversed the conviction of Steven Thompson for possession of heroin on the grounds that he had been improperly detained and searched during the execution of a search warrant of a residence, resulting in the impermissible collection of contraband from Thompson's person. Officers obtained the search warrant upon an affidavit of a narcotics detective of the Seattle Police Department.(fn9) The detective did not name any individuals in his affidavit, but stated that he had received information that drugs had been offered for sale at the location by a man named "Clifford" within the past twenty-four hours.(fn10) Following entry into the home to conduct the search, Seattle Police officers detained Thompson, along with the occupant of the home, Clifton Broadnax.(fn11) The two men were told to put their hands on their heads, and neither was frisked.(fn12) A short time later, the detective who had sworn out the affidavit entered the residence.(fn13) Apparently due to the mistaken presumption that Thompson had already been arrested, the detective performed a cursory search of Thompson's person, and when he felt a small object in Thompson's shirt pocket, he extracted it.(fn14) The object turned out to be a balloon containing a small amount of heroin.(fn15) Soon after, other officers reported that a quantity of controlled substances were found in plain view in a bedroom.(fn16) Thompson was arrested,(fn17) although his conviction resulted solely from the heroin found in his pocket.(fn18)

The Supreme Court of Washington held that no reasonable suspicion existed to justify even a limited "patdown" search of Thompson for weapons.(fn19) Even assuming, for the sake of argument, that a cursory search had been permissible, the detective exceeded the scope of that search when he extracted the balloon from Thompson's pocket, because the officer had determined that the object he felt was not a weapon.(fn20) Finally, the court held that neither the tactile "discovery" of the still-unknown object inside Thompson's pocket(fn21) nor the discovery of other controlled substances in the bedroom substantiated probable cause for Thompson's arrest.(fn22) Because the prosecution could offer no justification for the discovery of the heroin in Thompson's pocket, that evidence should have been suppressed by the trial court due to the violation of Thompson's federal(fn23) and state(fn24) constitutional rights to be free from unreasonable searches and seizures.(fn25)

Justice James Dolliver, in his dissenting opinion, did not dispute the court's conclusion that the detective performed an unconstitutional search of Thompson, resulting in the discovery of evidence tainted by illegality. Dolliver contended, however, that probable cause to arrest Thompson was established when the controlled substances were found in the bedroom.(fn26) Referring to the undisputed testimony that the discovery of contraband in the bedroom occurred "5 or 10 seconds" after the detective discovered the heroin in Thompson's shirt pocket,(fn27) Justice Dolliver suggested that the court should adopt the inevitable discovery rule and apply it to this case.(fn28) Under the version of the doctrine described by Dolliver, the prosecution could avoid suppression of tainted evidence if it proved that "(1) The police did not act unreasonably or to accelerate the discovery of evidence in question; (2) proper and predictable investigatory procedures would have been utilized; and (3) those procedures would have inevitably resulted in the discovery of the evidence in question."(fn29)

Beyond a description of the elements of the inevitable discovery doctrine itself, Dolliver did not elaborate on the practical implications of its adoption. He did not indicate what level of proof would be the State's burden. Nor did Justice Dolliver feel a need to distinguish, as other courts had,(fn30) between the doctrine's applicability to primary evidence (that evidence recovered during the commission of an unreasonable search or seizure) versus derivative evidence (by-product evidence that resulted from, but was not found during, the unreasonable search or seizure).(fn31) Regarding the frequency and circumstances of using the inevitable discovery exception, Dolliver simply noted that "[i]n carving out the 'inevitable discovery' exception to the taint doctrine, courts must use a surgeon's scalpel and not a meat axe."(fn32)

Dolliver applied the rule of inevitable discovery he had described to the facts of the present case, holding that the detective did not act unreasonably given the circumstances. The detective knew that the house had been suspected of drug trafficking, and he had first seen Thompson inside with his hands on top of his head after other officers had explored much of the house.(fn33) It would not have...

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