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SCOW makes it easier for the state to satisfy the “inevitable discovery” exception to the exclusionary rule

State v. Mastella L. Jackson, 2016 WI 56, 7/1/16, affirming a published decision of the court of appeals, 2015 WI App 49, 363 Wis. 2d 553, 866 N.W.2d 768; case activity (including briefs)

Despite the “flagrant” and “reprehensible” violations of Jackson’s Fifth Amendment rights by police, the supreme court holds that physical evidence seized based in part on information obtained from those violations should not be suppressed because the evidence would have been inevitably discovered. In the course of this ruling, the court alters Wisconsin’s long-established inevitable discovery standard and refuses to rule out using the doctrine in cases where the police intentionally violate a suspect’s rights.

As described in the court’s opinion (¶¶7-32) and in our posts on the court of appeals decision and the grant of Jackson’s petition for review, police interrogated Jackson about the stabbing death of her husband for more than six hours before advising her of her Miranda rights. They also continued to interrogate her even though she said several times that she didn’t want to talk anymore. Further, the police failed to respond promptly to her complaints about being in physical distress. Using information Jackson gave them during the illegal interrogation as well as information garnered from other aspects of their investigation, police secured a search warrant for her home. While the warrant was being executed, officers took Jackson to the home and asked her to show them where she had disposed of a knife and clothing.

The circuit court—which concluded the police “flagrantly” violated Jackson’s rights (¶36)—suppressed Jackson’s statements and the evidence found during the search of her home. (¶¶36-39). The state appealed, conceding her statements were inadmissible but arguing it should be able to use the physical evidence under the inevitable discovery doctrine. (¶40). The court of appeals agreed with the state; the supreme court does, too. And in voicing its agreement, the supreme court eases the state’s burden of proving discovery of the evidence was inevitable and relegates the bad faith of the police to an irrelevancy.

The end of the the three-element standard

Though the inevitable discovery doctrine was adopted in Wisconsin in State v. Weber, 163 Wis. 2d 116, 471 N.W.2d 187 (1991), its specific requirements have been developed in court of appeals decisions. Under the test heretofore developed, the state must prove three things: (1) a reasonable probability that the evidence would have been discovered by lawful means but for the police misconduct; (2) that the leads making discovery inevitable were possessed by the state at the time of the misconduct; and (3) that prior to the unlawful search the state also was actively pursuing some alternate line of investigation. (¶60, citing State v. Schwegler, 170 Wis. 2d 487, 500, 490 N.W.2d 292 (Ct. App. 1992)). Based on its reading of Nix v. Williams, 467 U.S. 431 (1984), which established the doctrine, and case law from other jurisdictions that have adopted varying standards for the doctrine (¶¶49-54, 61-64), the supreme court holds that this test—and in particular element three, the “active pursuit” requirement—is too strict, and that a more amorphous (and thus easier to satisfy) test is in order, one that reduces the previously essential elements to relevant “factors,” proof of which is no longer strictly necessary:

¶65    Demonstrated historical facts proving active pursuit of an alternative line of investigation at the time of the constitutional violation certainly help the State to substantiate its claim that discovery of otherwise excludable evidence was inevitable. However, requiring proof in all cases of active pursuit at the time of the constitutional violation risks exclusion of evidence that the State might demonstrate that it inevitably would have discovered. For instance, a constitutional violation may occur so quickly after the commission of a crime that there has not been time to launch the kind of comprehensive investigation that would be normal operating procedure.

¶66     Consequently, we think that the better approach is to follow the analysis applied by this court in Weber and by the court of appeals in [State v.] Washington[, 120 Wis. 2d 654, 358 N.W.2d 304 (Ct. App. 1984)] and in [State v.] Kennedy[, 134 Wis. 2d 308, 396 N.W.2d 765 (Ct. App. 1986)]: Has the prosecution met its burden of proving by a preponderance of the evidence that it inevitably would have discovered the evidence sought to be suppressed? Accordingly, the factors in Schwegler, [State v.] Lopez, [207 Wis. 2d 413, 559 N.W.2d 264 (Ct. App. 1996)] and [State v.] Avery[, 2011 WI App 124, 337 Wis. 2d 351, 804 N.W.2d 216,] should be regarded as important indicia of inevitability rather than indispensable elements of proof.

A dissent by Justice Abrahamson (joined by Justice Bradley) criticizes the majority’s reformulation of the standard because that was not an issue raised or discussed by the parties and because the test developed by the court of appeals provided “importance guidance” to the lower courts who have to decide the issue in the first instance. (¶¶144-45). The dissent also criticizes the majority’s insistence that the state’s need only show by a preponderance of the evidence, rather than clear and convincing evidence, that the evidence would have inevitably been discovered: “An inevitability is defined as something that is ‘sure to happen.’ There is an obvious tension in requiring proof that an event is ‘more likely than not to happen’ when the fact to be proved is that the event is ‘sure to happen.’” (¶147 (footnotes omitted)).

Bad faith? Good faith? Who cares!

The supreme court rejects Jackson’s argument that as a matter of state constitutional law the inevitable discovery doctrine should be unavailable to the state when the police intentionally violate a defendant’s rights, as the circuit court found the police did in her case. Jackson grounds her request on State v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899, which held that when a deliberate violation of a suspect’s Miranda rights directly results in the seizure of physical evidence, that physical evidence must be suppressed. “Just as we will not tolerate criminal suspects to lie to the police under the guise of avoiding compelled self-incrimination, we will not tolerate the police deliberately ignoring Miranda‘s rule as a means of obtaining inculpatory physical evidence.” Id., ¶72. The court acknowledges the “flagrant” and “reprehensible” violations of Jackson’s rights (¶69), but, looking again to Nix (¶¶55, 67-68), it says:

¶70     Nevertheless, we conclude that Jackson has not demonstrated that the Wisconsin Constitution requires proof of the absence of bad faith as a necessary condition for the prosecution to establish inevitable discovery of otherwise excludable evidence. Because inevitable discovery is an exception to the exclusionary rule, it necessarily applies after some government misconduct has occurred that would otherwise justify the suppression of evidence as an appropriate remedy. …. In the exceptional case where the government meets its burden of proving inevitability, however, it will have demonstrated that suppression would place the State in a worse position than it would have been in absent the misconduct. Insisting on suppression of evidence obtained by intentional misconduct would redirect the exclusionary rule to a punitive purpose—punishing the State and the public for misconduct by some officers despite independent proof of inevitable discovery of the relevant evidence.

¶71     We are not persuaded that allowing the State to prove inevitable discovery without proving the absence of bad faith will encourage officers to take unconstitutional shortcuts to accelerate the acquisition of evidence. An officer who intentionally commits a constitutional violation always risks losing valuable evidence, and “[a] police officer who is faced with the opportunity to obtain evidence illegally will rarely, if ever, be in a position to calculate whether the evidence sought would inevitably be discovered.” Nix, 467 U.S. at 445. ….

While the majority all but ignores Knapp, relegating it primarily to a footnote in which the facts of that case and this one are distinguished (¶90 n. 10), the dissent would hold that the evidence seized in this case should be suppressed under Knapp, as “[t]he direct causal connection between Jackson’s illegally obtained (and properly suppressed) statements and the discovery of physical evidence is clear and undeniable.” (¶130). The upshot is that while Knapp is not overruled, it is effectively re-written as a case in which the state could not prove inevitable discovery.

Applying its newly reformulated standard, and ignoring the police misconduct (even though it’s “unacceptable by any constitutional standard” (¶91)), the majority concludes the state proved it would have inevitable discovered the physical evidence (the knife and clothing) and therefore that evidence is admissible against her. (¶¶74-91).

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