Issues (composed by On Point from the PFR)
- Does the inevitable discovery doctrine require the State to show that information gained through police misconduct did not prompt or influence the purportedly lawful investigation?
- Does the inevitable discovery doctrine require the State to show that it was actively pursuing an alternative line of investigation prior to the illegal conduct?
- Does the Wisconsin Constitution bar use of the inevitable discovery doctrine to allow admission of evidence obtained through an intentional violation of constitutional rights?
This is an important case that will clarify the inevitable discovery doctrine, which allows use of evidence seized during a search that has been tainted by some illegal act. As explained in more detail in our prior post on the case, the illegal act in this case was the interrogation of Jackson for six hours before giving her Miranda warnings. Police used information gained from that interrogation to get a search warrant for her home. Police also took Jackson to her home while the warrant was being executed, and while there she told police where to find incriminating evidence.
The circuit court suppressed her statements after finding that police intentionally violated her rights and that her statements were involuntary. It also suppressed the physical evidence found at the home because the warrant lacked probable cause once the information from Jackson’s illegally obtained statements was excised and because the evidence was the fruit of Jackson’s tainted statement directing police to the evidence. The State appealed. It conceded on appeal that Jackson’s statements were properly suppressed, and even the court of appeals found the police behavior in this case “reprehensible.” 363 Wis. 2d 554, ¶48. Nonetheless, the court of appeals held that the untainted information in support of the warrant established probable cause and that the physical evidence would have been inevitably discovered.
It is the inevitable discovery issue that is the subject of review. To prove inevitable discovery, the state must show: 1) a reasonable probability the evidence would have been discovered lawfully but for the police misconduct; 2) the police possessed leads making discovery of the evidence inevitable at the time of the misconduct; and 3) prior to the misconduct, the police were actively pursuing an alternative line of investigation. State v. Avery, 2011 WI App 124, ¶29, 337 Wis. 2d 351, 804 N.W.2d 216. Jackson criticizes the court of appeals’ handling of the first and third element.
Jackson argues the State didn’t prove the first element because the coerced confession prompted the search; thus, it can’t be said the evidence would have been uncovered “but for” the illegality because without the illegality there would have been no search. See United States v. Brown, 64 F.3d 1083, 1085 (7th Cir. 1995) (“what makes a discovery ‘inevitable’ is not probable cause alone … but probable cause plus a chain of events that would have led to a warrant (or another justification) independent of the [illegality]”). As to the third element, Jackson argues the State didn’t establish when it decided to seek the warrant (which wasn’t obtained till after the illegal interrogation) and thus didn’t show it was actively pursuing the alternate line of investigation (the search warrant) before the illegal interrogation. The court of appeals’ rejection of these arguments guts the inevitable discovery doctrine by ignoring causal links between the unlawful and lawful parts of the investigation and allowing the State to hide their unlawful acts behind their lawful acts. We’ll see if the supreme court takes a more stringent view of the doctrine than the court of appeals did.
Finally, Jackson’s third claim builds ingeniously on State v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899, which held that the state constitution requires suppression of physical evidence obtained as the result of intentional Miranda violations. The court of appeals dodged Knapp by saying it didn’t discuss or apply the inevitable discovery doctrine. The supreme court will now decide whether that is a valid distinction. Perhaps the prospect that the inevitable discovery doctrine could allow the use of evidence gleaned from the kind of flagrant illegality that occurred here will at least lead the justices to agree with Jackson on her first two claims and result in a decision that adopts the stringent tests she advocates.