DISCOVERY EXCEPTION, PRIMARY EVIDENCE, AND THE EMASCULATION OF THE FOURTH
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
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
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.
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.
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.
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
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
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.
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.
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
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
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