Exception: Inevitable Discovery

  1. militarydefenselawyers288General rule. Illegally obtained evidence is admissible if it inevitably would have been discovered through independent, lawful means.
    See Mil. R. Evid. 311(b)(2).

    1. Nix v. Williams , 467 U.S. 431 (1984). Accused directed police to murder victim’s body after illegal interrogation. Body was admissible because it would have inevitably been discovered; a systematic search of the area where the body was found was being conducted by 200 volunteers.
    2. Rationale. The police should not benefit from illegality, but should also not be put in worse position.
  2. Examples:
    1. United States v. Kozak , 12 M.J. 389 (C.M.A. 1982). Illegal search of train station locker and seizure of hashish, which exceeded authority to wait for accused to open locker and then apprehend him, did not so taint apprehension of accused as to make subsequent seizure of drugs after accused opened locker inadmissible. Drugs would have been inevitably discovered.
    2. United States v. Carrubba , 19 M.J. 896 (A.C.M.R. 1985). Evidence found in trunk of accused’s car admissible despite invalid consent to search. Evidence inevitably would have been discovered as police had probable cause and were in process of getting search authorization.
    3. United States v. Kaliski , 37 M.J. 105 (C.M.A. 1993). Inevitable discovery doctrine should be applied to witness testimony only if prosecution establishes witness is testifying of her own free will, independent of illegal search or seizure. Testimony of accused’s partner in sodomy should have been suppressed where she testified against accused only after police witnessed sodomy during illegal search.
    4. Computers – Inevitable discovery is a commonly argued exception in otherwise unlawful computer searches. See United States v. Wallace, 66 M.J. 5 (C.A.A.F. 2008) (finding results of unlawful search admissible, but with only 3 judges finding inevitable discovery as the basis for admissibility);
      United States v. Osorio , 66 M.J. 632 (A.F. Ct. Crim. App. 2008) (finding forensic examiner’s search of computer unlawful because it went beyond the scope of the warrant and refusing to allow inevitable discovery exception based on facts of the case).
  3. Distinguish between “independent source” and “inevitable discovery.”
    1. Independent source deals with facts . Did police in fact find the evidence independently of the illegality?
    2. Inevitable discovery deals with hypotheticals. Would the police have found the evidence independently of the illegal means?

Independent source

United States v. Kaliski