THE INEVITABLE DISCOVERY EXCEPTION, PRIMARY EVIDENCE, AND THE EMASCULATION OF THE FOURTH AMENDMENT
The exclusionary rule ordinarily bars the admission of evidence obtained by the government in violation of the Constitution. The rule extends beyond the direct products of illegal government conduct to evidence derived from illegal conduct, or "fruit of the poisonous tree.” Although the rule originally was established to deter official misconduct and preserve the integrity of the judicial system, the judicial integrity rationale has lost favor in recent years leading the courts to invoke the exclusionary rule primarily to deter illegal conduct. Recognizing the cost imposed on society by the exclusionary rule, the Supreme Court has developed exceptions that apply when the deterrent purpose would not be achieved.
One such exception, the inevitable discovery rule, admits illegally obtained evidence that the court finds ultimately would have been obtained by legal means. Recently, confusion has arisen as to the scope of this exception. The exception clearly applies to the fruit of the poisonous tree, or derivative evidence, but the courts are divided as to whether the exception also should apply to primary evidence. Although the Supreme Court has suggested that the exception is limited to derivative evidence, the Court has not clarified whether primary evidence ever is admissible under the inevitable discovery exception. This Note argues that permitting the prosecution to use the direct products of official misconduct at trial substantially weakens the protections afforded by the fourth amendment. Part I of this Note discusses the Supreme Court's adoption of the inevitable discovery exception. Part II discusses the distinction between primary and derivative evidence and the implications of applying the inevitable discovery exception to primary evidence. Part III argues that in light of the Supreme Court's refusal to apply the independent source exception to primary evidence, it is inconsistent with Supreme Court precedent to apply the inevitable discovery exception to primary evidence, and therefore primary evidence should not be admissible under the inevitable discovery exception.
I. THE SUPREME COURT'S ADOPTION OF THE INEVITABLE DISCOVERY RULE
In Nix v. Williams (Williams II) the Supreme Court adopted the inevitable discovery rule, forty years after it was first applied by lower courts as an exception to the exclusionary rule. Williams II arose from an earlier case, Brewer v. Williams (Williams I) in which the Court had affirmed a grant of habeas corpus relief to the defendant.
In William I, the defendant had been convicted for the murder of a ten-year-old girl. At trial, certain incriminating statements made by the defendant, and testimony concerning the condition and location of the victim's body, had been admitted into evidence over the defendant's objections. The Supreme Court affirmed the reversal of the defendant's conviction because the evidence admitted against him had been obtained in violation of his sixth amendment right to counsel. The Court held that, by subjecting the defendant to a manipulative "Christian burial speech," the police had deliberately elicited the defendant's incriminating statements which led them to the body. The State of Iowa retried the defendant. In the second trial, the defendant's incriminating statements were not admitted into evidence, but testimony relating to the condition and location of the body was admitted. The Supreme Court approved the second murder conviction in Williams II by adopting the inevitable discovery exception to the exclusionary rule. The Court held that illegally obtained evidence is admissible if the prosecution can show by a preponderance of the evidence that the information “ultimately or inevitably would have been discovered by lawful means."
Although the evidence admitted at trial concerning the location and condition of the victim's body was obtained in violation of the sixth amendment, at the time the police illegally interrogated the defendant approximately volunteers were searching for the body." The Court held that the evidence respecting the body was admissible because it inevitably would have been discovered by the search party.
The Court justified the inevitable discovery exception by stating that the exclusionary rule seeks to restore the police to the same position they would have been in absent the illegality. The Court reasoned that excluding evidence that inevitably would have been discovered puts the police in a worse position than they would have occupied. Admitting the evidence does not put them in a better position because they would have discovered the evidence even absent the illegal conduct. Thus, the admission of evidence under the inevitable discovery exception restores the "status quo ante."
Although in Williams II, the inevitable discovery rule was used to admit derivative evidence obtained in violation of the defendant's sixth amendment rights, lower courts have extended the holding to apply to fourth and fifth amendment violations.
II. PRIMARY V DERIVATIVE EVIDENCE
Primary evidence is evidence obtained directly from the illegal conduct. Derivative evidence is evidence derived from or come at by exploitation of the illegal activity.” For example, in Williams II, the defendant's incriminating statements were primary evidence and the body was derivative evidence. An illegal search may result in the police obtaining a confession, or discovering a witness who is willing to testify against the defendant, or uncovering facts that lead to another search. Any evidence discovered in the illegal search is primary evidence. The confession, the witness's testimony, or the evidence found in the second search is derivative evidence.
Although the Supreme Court has applied the inevitable discovery exception only to derivative evidence, some lower courts have extended the exception to primary evidence. Other courts have expressly refused to apply the inevitable discovery exception to primary evidence.
The inevitable discovery exception, even as applied to derivative evidence, has been criticized as colliding with the fundamental purpose of the exclusionary rule. Critics contend that the exception "encourage[s] police shortcuts whenever evidence can be more readily obtained by illegal than by legal means."' Moreover, there is concern that "'sophisticated argument' aided by hindsight can be used to show what the police would have done in a given situation, to the extent that illegally discovered evidence will be admitted based on imagined investigations, hypothetical search warrants, and unjustified assumptions about the likelihood that evidence would not have been removed, altered, or destroyed.”
In attempting to limit the inevitable discovery exception, courts have required such safeguards as proof of inevitable discovery by clear and convincing evidence, proof of the absence of bad faith of the police, and proof that at the time of the misconduct, the police possessed and actively were pursuing the leads that would have resulted in discovery. The Supreme Court, however, has since required proof of inevitable discovery by a mere preponderance of the evidence, and has rejected an absence of bad faith requirement. The third safeguard, that the police must have been engaged in an ongoing investigation at the time of the misconduct, remains a matter of controversy. Given that the Supreme Court has loosened the reins on the application of the inevitable discovery exception, extending the exception to primary evidence will seriously diminish fourth amendment rights.
The exclusionary rule is the primary safeguard of fourth amendment rights. Applying the inevitable discovery rule to primary evidence substantially weakens the deterrent effect of the exclusionary rule, and may render fourth amendment rights meaningless. If the police possess the means to acquire evidence legally, but the illegal route is faster and easier, they are not deterred from obtaining the evidence illegally because the prosecution can argue that the evidence is admissible under the inevitable discovery exception. Two examples illustrate the problem.
The clearest illustration occurs when evidence seized in a warrantless search is admitted because the police could have obtained a warrant. Some courts have admitted illegally obtained evidence on the basis that a warrant inevitably would have issued. Other courts, however, have refused to apply the inevitable discovery exception on these grounds.
They reason that admitting the evidence would emasculate the warrant requirement of the fourth amendment. If the police have probable cause sufficient to obtain a warrant, they can bypass the requirement of submitting an affidavit to a neutral magistrate and conduct a warrantless search and seizure. The evidence would be admissible upon a showing that a warrant inevitably would have issued. Moreover, when a warrant actually issues subsequent to the illegal search, the government's argument of inevitability is airtight, and the police receive the benefit of acquiring the evidence earlier than they legally could have and without complying with the warrant requirement of the fourth amendment.
Admitting primary evidence on the basis of an inevitable inventory search similarly undermines the deterrent effect of the exclusionary rule. Many courts recently have admitted evidence seized in an illegal search because the police inevitably would have discovered the evidence in an inventory search. An inventory search is a search conducted for administrative purposes rather than a criminal investigative purpose.
Because of the administrative purpose, inventory searches may be conducted without a warrant or probable cause, but they must be conducted in accordance with established inventory procedures, and the police cannot have discretion in deciding whether to conduct such searches. Police routinely conduct inventory searches of vehicles that have been impounded. It is also normal police practice to conduct an inventory search at the station-house of any container in the possession of an arrestee. The inevitability of an inventory search is irrefutable because, to be non-discretionary, police regulations must require the police to conduct the search. As a result, if the inevitable discovery rule is applied to primary evidence, whenever the police are required to conduct an inventory search, they need not conduct it at the station-house. They can conduct a search immediately upon arrest in violation of the constitutional limitations on the scope of a search incident to arrest. Moreover, the search need not be conducted in accordance with the legally required procedures that justify the inventory search.
Thus, the application of the inevitable discovery exception to primary evidence permits the exception to swallow the exclusionary rule and eviscerates the fourth amendment.
III. ADMISSIBILITY OF PRIMARY EVIDENCE UNDER THE INDEPENDENT SOURCE EXCEPTION
Supreme Court decisions suggest that the inevitable discovery exception should not apply to primary evidence. The Court has held that the closely related independent source exception cannot be invoked to admit primary evidence.
The independent source exception admits illegally obtained evidence if the same evidence was also discovered through an independent legal source. It is well established that the inevitable discovery exception is merely a "hypothetical independent source" exception. If any distinction is to be made between the two doctrines, the inevitable discovery exception should be more limited because it is based in many cases on speculation.
In Gilbert v. California, the Court held that the independent source exception cannot be used to admit primary evidence. In Gilbert, the defendant was identified in a police line-up in violation of his sixth amendment right to counsel. He was identified subsequently in court by the same witnesses who had identified him at the line-up. The Court held that it was constitutional error to admit the in-court identifications without first determining that they were not tainted by the illegal lineup. The Court remanded the case to afford the state an opportunity to establish that the derivative evidence - the in-court identifications - had an independent source. The primary evidence - the testimony that the witnesses had identified the defendant at the line-up - was excluded automatically. Because the line-up testimony was the direct product of the illegal conduct, or primary evidence, the state was not entitled to an opportunity to show that the testimony had an independent source. The Court concluded that "[o]nly a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused's constitutional right ...
Later, in Segura v. United States, the Court reiterated the distinction between primary and derivative evidence. In Segura, the police illegally entered the defendant's apartment while they waited for a search warrant to issue. During the illegal occupation of the premises, the officers observed certain incriminating items in plain view. In the search pursuant to the warrant, the agents seized both the plain view evidence and evidence that had not been discovered during the illegal entry. Although the evidence that had not been observed during the illegal entry was tainted by the illegality, it was held admissible under the independent source exception. The plain view evidence was not admitted and the Court stated in dictum that primary evidence is "plainly subject to exclusion."
The justification for the inevitable discovery exception is based on the rationale of the independent source exception. Both the independent source exception and the inevitable discovery exception seek to put the police in the position they would have occupied if the illegal conduct had not occurred. Admittedly, excluding primary evidence from the scope of the inevitable discovery exception would put the police in a worse position. The exclusion of independently discovered, primary evidence, however, also puts the police in a worse position. Since the Supreme Court has not invoked the status quo ante rationale to admit primary evidence under the independent source exception, it is consistent with the Court's precedent to refuse to extend the inevitable discovery exception to primary evidence. It is illogical to admit primary evidence under either of these exceptions because the status quo ante rationale is based on deterrence, and there is no deterrent if the evidence is not excluded. Moreover, it is necessary to put the police in a worse position to deter illegal searches and seizures, given the potential for using the inevitable discovery exception to obviate the warrant requirement of the fourth amendment, limitations on searches incident to arrest, and inventory search procedures.
Due to the relationship between the independent source and inevitable discovery exceptions, it should not be permissible to admit primary evidence under the inevitable discovery exception when it would be impermissible to admit the same evidence under the independent source exception.
The inevitable discovery rule already is overboard. Applying it to primary evidence completely undermines the deterrent effect of the exclusionary rule. Although the Supreme Court has not specifically limited the inevitable discovery exception to derivative evidence, the Court has limited the closely related independent source exception to derivative evidence. It is illogical to extend the "hypothetical independent source" exception to evidence that would be inadmissible under the independent source exception. The Supreme Court should clarify that the inevitable discovery exception does not apply to the direct products of illegal conduct.
The Supreme Court first adopted the exclusionary rule in 1886 in Boyd v. United States, a case involving self-incrimination. The rule applies to violations of the fourth amendment, Weeks v. United States (1914), fifth amendment, Murphy v. Waterfront Community, (1964), and sixth amendment. Nix v. Williams, (1984).
The exclusionary rule also has been applied to statutory violations Nardone v. United States, (1939) (excluding evidence obtained in violation of wiretapping statute).
Although for many years the exclusionary rule only applied in federal court proceedings, the Court has extended the exclusionary rule, through the fourteenth amendment, to prohibit the introduction of unlawfully obtained evidence in state courts. See Mapp v. Ohio, (1961).
Although the Court has held that the exclusionary rule is constitutionally required, recently the Court has indicated otherwise. United States v. Leon, (1984) (the rule is a" 'judicially created remedy ... rather than a personal constitutional right of the party aggrieved' "quoting United States v. Calandra, (1974). But also in Leon, Brennan, J. dissenting arguing that exclusionary rule is constitutionally required. If the exclusionary rule is not constitutionally required, then it cannot be imposed on state courts via the fourteenth amendment. Because the Court has not expressly overruled Mapp, confusion exists whether the rule is required.
There is a strong argument that, unlike fourth amendment violations in which the constitutional violation is the unreasonable search and not the admission of the evidence, a sixth amendment violation occurs when the evidence is admitted at trial. United States v. Brown, (1983)
Exceptions to the Exclusionary Rule
The Court announced the first exception to the exclusionary rule in Silverthorne Lumber Co. v. United States. The "independent source" exception allows the admission of illegally discovered evidence if it was also discovered by an independent legal source. The independent legal source for the evidence removes the taint from the poisonous fruit by providing a "clean path" to the evidence.
The Court established a second exception, "attenuation," in Nardone v. United States. Although "sophisticated argument" could prove a causal relationship between illegal conduct and challenged evidence, the Court stated that "such connection may have become so attenuated as to dissipate the taint." In effect, the attenuation exception places a limit on the fruit of the poisonous tree doctrine. In Wong Sun v. United States, the Court further clarified the attenuation doctrine stating that the question to be answered as to derivative evidence is "'whether, granting establishment of the primary illegality, the evidence to which 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.'"
Recently, the Court recognized a third exception, the inevitable discovery rule, Nix v. Williams. This rule admits illegally obtained evidence that inevitably would have been discovered by legal means. In essence, it is a "hypothetical independent source" exception. The term "hypothetical independent source" more accurately describes the exception than does the common appellation "inevitable discovery." The court, however, used the latter in light of its "overwhelming use" by other courts and commentators.
Finally, the Court has recognized a "good faith" exception to the exclusionary rule, United States v. Leon. This exception allows the admission of evidence obtained in a search pursuant to an invalid warrant if the police were objectively reasonable in relying on the validity of the warrant. The good faith exception is the only exception that clearly applies to primary evidence.
The good faith exception recently has been extended to admit evidence obtained under objectively reasonable reliance on an unconstitutional statute. In addition to the four exceptions, the scope of the exclusionary rule has been limited "to those areas where its remedial objectives are thought most efficaciously served." On this reasoning, the Court has held that the exclusionary rule does not apply in grand jury proceedings, in civil proceedings, for impeachment purposes in criminal trials, or to challenge a state conviction in a federal habeas corpus proceeding, when the state provided "an opportunity for full and fair litigation of a Fourth Amendment claim."