Inevitable Discovery, the Exclusionary Rule, and Miiitary Due Process

• Author: by John E. Fennelly
• Pages: 03

I. INTRODUCTION

The Supreme Court should modify the inevitable discovery doctrine it formulated m .Viz 2: William! The doctrine presently allows admission of illegally obtained evidence if the prosecution can demonstrate by a preponderance of the evidence that the evidence would haw been obtained by other lawful means. Under the present doctnne, admission of this evidence is permitted even if police misconduct 1s willful. The central theme of this article is that the doctnne as presently formulated IS flawed because It fails to address the constitutional questions that led courts initially to develop the exclusionary rule. This article WIU survey the development of the ex-clusionary rule in both state and federal courts. The survey will demonstrate that the courts initially approved the exclusionary rule because of constitutional mandates. The constitutional approach in the early phase sought to vindicate fundamental notions of due pro-cess of law, judicial rev~ew, and the rule of law. This angmai constitutional basis far the rule was supplanted, and in its stead, deter-rence of poke misconduct became the only recognized basis for the exclusionary rule. This shift led directly to the present formulation of inevitable discovery. The article will discuss the relationship between mevitable discovery and the constitutional issues previously mentioned

The article will demonstrate that constitutional values require that the doctrine be reexamined and refined. For the doctnne to be consistent with constitutional values, B good-faith requirement must be added to the inevitable discovery doctrine Deterrence of unlawful police conduct, while desirable, is not the basis for the exclusionary rule. The basis for exclusion is and was the Constitution--a constitution that demands adherence to the rule of law and requires that the government act lawfully. These values-and not deterrence-form the basis for exclusion.

*\laor Judge Adlocale General's Carps (USARI. Circuit Judge. Kineteenth Judicial Circuit, Florida. IndwduaJ Mobilization Aumnentee. Emled States Amy Tllal Judl-clan The author wrshes to thank Mr John C Lyneh Unlvenlfy of Virgnia School of Law, clasi of 1092, for his invaluable aisistance in the prepsrafion of this article This article ongnally u,m prepared m pafid fulfillment of the requirements for the Master of Judicial Studies deme at the UniienlLy of Sevada. Reno.

I467 US 431 (1884) 109

MILIMRY LAW REVIEW [Vol 131

The article w.111include an examination of how ,ne>itable discmery has evolved m military law and a discussion of the role of military due process as a basis for the exclusionary rule m military courts The discussion will demonstrate that the present debate in the United States Court of Military Appeals concerning the proper balance be-tween constitutional values and the demands of militark service represents the correct approach to the questions raised m this am de. The article concludes that because of the Stricter standards of military due process, a good-fanh requirement for inevitable discovery 1s necessary in mbtary law

11. THE ORIGINAL BASIS FOR EXCLUSION

The Supreme Court. in the 1914 case of Weeks 2- Cnzted States,* mandated exclusion of emdence obtained as a result of illegal search-es and seizures The facts of the case reveal that bath state and federal officers conducted illegal warrantless searches of Weeks' resi-dence and obtained evidence that later was used to convict him of federal lotter) violations Exclusmn of evidence resulting from illegal search and seizure was advanced on three grounds. First. all en-trusted with the enforcement of laws had the obligation to give ef-fect to limitations imposed by the fourth amendment and to ensure that illegal searches or SPIZUE "find no sanctmn in the judgment

of the courts ahich are charged at all times with the support of the Constitution and to which people of all conditions hare a right to appeal far the maintenance of such fundamental rights'

The opinion next shifted to what might be called a necessity rationale

If letters and private documents can rhus be seized and held and used in e\idence against a citizen accused of an offense the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value. and. $0 far as those thus placed are concerned, might as well be stricken from the Constitution a

The opmmon frtally shifted into what might be called a rule of law analysis In the coufi's i i e x admission of illegally obtained eridence would be ' to affirm by judicial decision a manifest neglect If not an open defiance of the prohibitions of the Constitutlon, intended for

'232 K S 383 (1814)

Vd at 392'Id at 383

19911 INEVITABLE DISCOVERY

the protection of the people against such unauthorized action."j As promulgated, the exclusionary rule rested on the imperatives of judicial integrity, necessity, and the rule of law.

Significantly, some state courts, construing state constitutional provisions similar to the fourth amendment, followed Weeks and exciuded evidence obtained through illegal police search and seizure.

In State v Height,' a pre-Weeks case, the Iowa Supreme Court fashioned an exclusionary remedy on state constitutional grounds. Height, charged with statutory rape, was wrammed forcibly byphysicians for venereal disease at the direction of the prosecution. The court held that the examination was bath self-incnmmating and an illegal search. The Iowa court, relying on the Iowa Constitution's due process clause, held that this illegally obtained evidence should be excluded. At that time, Iowa's Constitution contained no provision similar to the fourth or fifth amendment.

Subsequently, a 1919 Michigan case, Fbople v. Marzhausen,' relied an bath Height and Weeks in ardenng the exclusion of evidence. In Marrhowen officers entered the defendant's home without a search warrant and discovered contraband. The contraband was ordered returned to hmand the state appealed. The Michigan Supreme Court initially observed that the officers "had no search warrant of any kind. They entered the home of the defendant by command of no court They searched his premises by wtue of no process."8 The court went on to describe their actions as "an unauthonzed trespass and an invasion of the constitutional rights of the defendant ''E

The Michigan coul't, citing Weeks and the state constitution, approved the exclusion of illegally obtained evidence In the Michigan COUIt~S wew:

IRIights of the individual m his person and property should be held sacred and any attempt to fritter them away under the guise of enforcing drastic sumptuary iegsiation (no matter how beneficial to the people it may be clarmed to be) must meet wth the clear and earnest disapproval of the courts?o

,Id at 384691 N\1' 835 (Iowa 1902) '171 SW 517 IMich 1818) (Id at 65891dlo1d

YILIT.4RY LAW REVIEW [Val. 131

Yournan 1: CornmonwealthlL also involved a warranties search of a readence. Citing article 10 of the Kentucky Constitution, the court described the officers' conduct as a "flagrant violation."12 The court decried what it termed the officen' tendency "to disregard the law upon the assumption that the end sought to be accomplished will justify the means"L3 The court then turned to the questm of euciu-don The Kentucky court relying on Weeks and .Mamhozsen, embraced exclusion, citing a court's duty to "protect[ ] the citizen inthe civil rights guaranteed to him by the Const~cution."~~

Youman IS interesting because of Its reference to a deterrence rationale for exclusion The court expressed concern that by failing to exclude illegally obtained emdence. the courts would encourafle officers to vloiate the lawne

Flonda also approved the exclusionary rule in the 1922 ca~eof Am

L. Andrews:6 and they based their decision on due process of law Relying on both state and federal due process connderatmns. the coun held that the use of illegally obtained evidence ''strikes at the very foundation of the administratron of Justice, and where such practices prevail, make(s] law enforcement a mackery:'l' Judicial responsibility, in the court's view, involved a duty ' not [to] sanction law-breaking and constitutional violation m order to obtam testnony against another law breaker."l8

Illinois. relying on what might be called a rule of law basis. framed an exclusionary remedy m the 1023 case of People 1' B~00camp.L~

To

the Illinois court, It was "very clear that the defendant's constitutional nghts were ruthlessly and unlawfully violated."2o milure to exclude evidence abcamed ~n that manner would, m the lllinois court's view, reduce bath the state and federal constitutional guarantees to a "mere nullity" and "vam boastings''zl Exclusion was mandated by the courts obligation to support the Constitution casting upon Judges a positive obligation to inquire into the manner m which evidence was obtained.22

"224 SV 860 (K) I8201 'lid ~f 861"id"Id at 866'W"94 So 369 (Fls 1922)"Id at 332Isid'91138 Z E 728 (111 19231 l'ld %I 730#'Id at 731"Id at 732112

19911 INEVITABLE DISCOVERY

The court

did this based upon three separate rationales: due process, rule of law, and what arguably might be characterized as a deterrence basis. The Missouri court, citing Weeks, the Missouri Constitution, and the United States Constitution, advanced three separate arguments for exclusion. first, the court argued the only remedy was a "preventative one."z4 In the court's view, other than exclusion, "there is no remedy, no method by which the citizen can receive the protection of the Constitution."2s The second basis for exclusion was implicit in a failure to exclude illegally obtained evidence. "To admit the evidence is to approve his uniawfui act-is for the State to become a party to the violation of its awn Finally, the Missouri court argued that it is "far the courts, where their offices are invoked, to temper excess by enforcing the restraints which the law imposes for the...