AuthorJacobi, Tonja

INTRODUCTION 3 I. THE VARIABLE STATE OF THE DOCTRINE 6 A. Nix and the Dictates 6 B. Lower Court Experimentation 15 1. Impeachable Historical Facts 15 2. Independent Active Pursuit 18 3. Deterrence and Prophylaxis 22 C. Lower Court Manipulation 24 l. Reasonable Probability Supplanting Inevitability 25 2. Disregarding the Evidentiary Burden 28 II. THE DOCTRINE IN ACTION: UNRAVELLING FOURTH AMENDMENT PROTECTIONS 32 A. Hypothetical Search Warrants 34 B. Interaction with Inventory Searches 43 1. Booking Searches 47 2. Automobile Searches 51 a. Automobile Searches Incident to Arrest 52 b. Automobile Inventory Searches 55 c. The Interaction with Inevitable Discovery 58 III. NECESSARY DOCTRINAL REFORM 64 A. Recurring Issues with the Status Quo 64 1. Post Hoc Officer Rationalization 64 2. Crime Severity 66 B. Reshaping the Doctrine 68 1. Curbing Manipulation 69 2. Clarifying Permissible Variation 70 3. Establishing a New Framework 71 CONCLUSION 74 INTRODUCTION

The inevitable discovery doctrine has flown under the radar of both the Supreme Court and scholars alike, evading scrutiny while serving as an unconstrained backstop for police misconduct. The Court has only addressed the doctrine head-on once, nearly forty years ago in Nix v. Williams, (1) when it formally recognized the doctrine and provided an open-ended framework to guide its application. This framework consisted of just two dictates--a command of inevitability, and a preponderance of the evidence burden-though the opinion was shrouded in other language that lower courts have looked to for guidance in implementing these minimalist dictates in the decades since. (2) Scholars, meanwhile, have tended to focus on the substantive boundaries of various exceptions to the warrant and probable cause requirement. (3) But in a criminal proceeding, what ultimately matters to defendants is not where their constitutional rights begin and end, but rather the more pragmatic question of whether or not evidence is actually admitted. (4) And inevitable discovery is critical to that latter issue.

Inevitable discovery is usually viewed as a minor addendum to the exclusionary rule, (5) yet it has evolved into a massive loophole. With Nix providing such loose and vague constraints, lower courts have developed their own tests to implement the doctrine. This has led to experimentation among doctrinal elements, such as whether and to what extent to assess impeachable historical facts, independent active pursuit, and deterrence considerations. (6) Some of this experimentation has constituted genuine judicial efforts to ensure that the doctrine remains faithful to its origins--ensuring that it only applies when the counterfactual discovery would truly have been inevitable. But without further Supreme Court guidance, some interpretations are so malleable as to constitute defiance of the Supreme Court, turning inevitable discovery into a far more permissive doctrine than that approved in Nix. (7) Despite the firmness of the two Nix dictates, (8) at least three federal circuit courts have adopted "reasonable probability" standards in lieu of the titular "inevitability" requirement, giving judges in those jurisdictions tremendous latitude when applying this exception. (9) Such blatant manipulation has unmoored the doctrine from its foundations.

This unmooring is not just problematic from the internal standpoint of inevitable discovery doctrine. The counterfactual speculation inherent in inevitable discovery lends itself to eroding basic Fourth Amendment principles. One of inevitable discovery's more alarming expansions is through the concept of "hypothetical search warrants." Many courts consider, when law enforcement has failed to obtain a warrant prior to searching and seizing, or even when law enforcement has obtained an invalid search warrant, that officers could nonetheless have obtained a hypothetical valid warrant. Often, this application hinges almost exclusively on a showing of probable cause, contrary to the constitutional requirement that both probable cause and a warrant be obtained prior to any search or seizure. (10) In this way, many circuits flip the requirement of ex ante review into an ex post presumption of constitutionality. (11)

Another mechanism through which inevitable discovery has been expanded to the point of approaching inevitable admission is by operating in conjunction with Fourth Amendment doctrines that serve as exceptions to the warrant and probable cause requirement. Foremost of these interactions is the tandem of inevitable discovery and inventory searches. The inventory search exception is another area of law that has received little scholarly attention, (12) likely because it appears mundane and bureaucratic: inventory searches permit logging a person's possessions as part of a standard process, such as booking an arrested person (13) or impounding a vehicle. (14) But the very ordinariness of this doctrine creates a massive loophole when combined with inevitable discovery. The automatic and pervasive nature of inventory searches occurring in response to most arrests means that discovery of evidence--whether on a person or within their car--follows just as automatically. Accordingly, the rules defining when a constitutional violation has occurred become redundant when the evidence would be inevitably discovered upon undertaking the inventory search.

The upshot of these interactions is that an overly permissive inevitable discovery doctrine threatens to undermine other areas of criminal procedure where the Court has carefully crafted limits on law enforcement. (15) An overly myopic focus on the substance of specific criminal procedure exceptions has led scholars and the Court alike to miss the forest for the trees. (16)

This Article examines how the inevitable discovery doctrine operates today, focusing on its application over the last fifteen years at the U.S. Courts of Appeals. (17) We focus on the federal level, as the doctrinal inconsistency there is proof enough that it is time for the Supreme Court to intervene, (18) but we note that state court inevitable discovery tests merit further attention and also underscore the need for reform. (19) We chart a path for how the Court can do so. (20)

This Article proceeds in three Parts. Part I describes the doctrine's history and lays the foundation for our analysis by surveying how inevitable discovery operates among the federal circuits today. Part II examines how the doctrine's routine application frequently undermines other areas of Fourth Amendment law, particularly the warrant requirement and search incident to arrest doctrine. It shows how the notion of hypothetical warrants and the inventory search exception escalate the constitutional hollowing effect of inevitable discovery. Part III concludes by contemplating what future Supreme Court intervention could and should look like based on our analysis.


    The operationalization of inevitable discovery is more complicated than many realize. Section A overviews the backdrop of Nix and the doctrine's historical development. The subsequent Sections then explore how lower courts have implemented Nix's dictates in the years since. We divide Sections B and C using a taxonomy of "experimentation" versus "manipulation" to describe the various circuits' approaches, demonstrating how we can rigorously differentiate between legitimate and illegitimate attempts to operationalize Nix's dictates.

    1. Nix and the Dictates

      Inevitable discovery is a corollary to the independent source exception to the exclusionary rule. (21) Whereas the latter governs evidence that was in fact lawfully discovered independent of a constitutional violation, the former governs evidence that would have been lawfully discovered if the violation had never occurred. The independent source doctrine requires less speculation to implement, as no counterfactual analysis is required. (22) Likely because of its more straightforward application, independent source arose as one of the earliest exceptions to the exclusionary rule, posited by Justice Holmes in Silverthorne Lumber Co. v. United States in 1920. (23) Over the following decades, courts adopted and developed the independent source doctrine, paving the way for the counterfactual application inherent in inevitable discovery. (24)

      Scholars point to a 1943 decision by Judge Learned Hand as the first clear application of inevitable discovery. (25) In Somer v. United States, two policemen with the "Alcohol Tax Unit" unlawfully entered defendant's home, and his wife shared that defendant was delivering "stuff" but would soon return. (26) The officers waited outside and twenty minutes later, Somer returned with two jugs of alcohol that police immediately seized. (27) In a three paragraph opinion, the Second Circuit considered whether the unlawful search of the home and the ensuing conversation with Somer's wife necessarily led to police discovering the alcohol at issue. (28) Judge Hand wrote that if further inquiry on remand could show that the evidence would have been obtained "quite independently" of the unlawful search, the seizure of the alcohol could be admitted as lawful. (29) Though not yet bearing its name, inevitable discovery was born.

      The doctrine expanded in the decades following Somer, albeit without the imprimatur of the Supreme Court's blessing. (30) Indeed, the Court refrained from recognizing the doctrine despite numerous opportunities to do so. (31) In a 1973 dissent of a denial of certiorari, Justice White wrote that "it is a significant constitutional question whether the 'independent source' exception to inadmissibility of fruits encompasses a hypothetical as well as an actual independent source." (32) By the time the Supreme Court eventually gave the doctrine a formal framework and meaningful guidelines for implementation in 1984, (33) inevitable discovery had already been widely...

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