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The Inevitable Discovery Exception to the Exclusionary Rule

By Edward M. Hendrie, J.D.


The Inevitable Discovery Exception to the Exclusionary Rule

Special Agent Hendrie, Drug Enforcement Administration, is a legal Instructor at the FBI Academy.

The inevitable discovery exception to the exclusionary rule allows into evidence illegally seized items that would have been discovered lawfully anyway.

This article presents an overview of the exclusionary rule and then discusses in detail the nevitable discovery exception to that rule. This exception allows evidence to be admitted, even though it was seized in violation of the Constitution. Most constitutional rights, by their terms, do not provide as a remedy the exclusion of evidence at trial. For example, the Fourth Amendment prohibits the government from conducting unreasonable searches or seizures but does not expressly provide for the exclusion of evidence if the government violates that prohibition. Prior to the adoption of the exclusionary rule, courts usually admitted items into evidence that were seized in violation of the Fourth Amendment.1

The Exclusionary Rule

In order for the rights listed in the Constitution to have substance, there must be enforceable remedies imposed on the government for violations of those rights. In 1914, the U.S. Supreme Court, in the landmark case of Weeks v. United States,2 introduced the exclusionary rule as a remedy for violations of the Fourth Amendment.3 The Weeks Court felt that the only effective way to enforce the Fourth Amendment right to be secure from unreasonable searches and seizures was to adopt a rule that evidence seized in violation of the Fourth Amendment could not be used by the government against a defendant at trial. The Weeks Court further stated that a court should not sanction illegal government conduct by admitting into evidence the fruits of that illegal conduct. Later, in Silverthorne Lumber v. United States,4 the Supreme Court not only prohibited introducing into evidence those items directly seized during an illegal government search but also any evidence indirectly derived from that search.

Originally, the exclusionary rule announced in Weeks did not apply to the states because at that time the Supreme Court limited the application of the Fourth Amendment to the Federal Government. Then, in 1949, the Supreme Court decided Wolf v. Colorado,5 wherein the Court applied the Fourth Amendment to the states through the Fourteenth Amendment due process clause. The Court considered the prohibition against unreasonable searches or seizures to be a right basic to a free society and implicit in the concept of ordered liberty. The Wolf Court, however, did not view the exclusionary rule as a necessary component of due process and refused to apply the exclusionary rule to the states as a remedy for a violation of the Fourth Amendment.6

In 1961, the Supreme Court decided Mapp v. Ohio,7 which in part overruled Wolf and applied the exclusionary rule to the states. The Mapp Court viewed other remedies, such as criminal sanctions, as being ineffective in ensuring compliance with the Fourth Amendment.8 Although the Mapp Court stated that the exclusionary rule was an essential part of both the Fourth and Fourteenth Amendments, subsequent Supreme Court decisions have abandoned that position. For example, in United States v. Leon 9 the Supreme Court stated that "[t]he Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands, and an examination of its commands and purposes makes clear that using fruits of a past unlawful search or seizure 'works no new Fourth Amendment wrong'"10 In United States v. Calandra,11 the Supreme Court stated:

The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim....Instead, the rule's prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable search and seizures: 'The rule is calculated to prevent, not to repair.'...In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.12

Although the exclusionary rule most often is applied to violations of the Fourth Amendment, it has been applied to other constitutional violations as well.13

The Supreme Court consistently has recognized that the inflexible application of the exclusionary rule would generate disrespect for the law and impede the administration of justice.14 With that in mind, and because the exclusionary rule is not considered a constitutionally required remedy, courts have carved out a number of exceptions and limitations to the rule, where to otherwise apply the rule would go beyond the limited goal of simply deterring illegal police conduct.15 For instance, most courts will not suppress evidence found during an illegal search when the evidence is also located through some independent lawful means.

In Segura v. United States,16 officers illegally entered the defendant's premises without a warrant. The Supreme Court ruled that the evidence seen in plain view during the illegal entry should not have been suppressed because it ultimately was seized later during the execution of a valid search warrant. The warrant was based on information independent of the information acquired during the illegal entry.

The Inevitable Discovery Exception

What if illegally located evidence was not found during a subsequent legal search as it was in Segura but would have been discovered if an independent legal search had been conducted? Under the inevitable discovery exception to the exclusionary rule, courts generally will not suppress evidence that has been seized illegally if the government can establish that the evidence inevitably would have been discovered lawfully.17 The inevitable discovery exception is similar to the independent source exception. However, where the independent source exception requires that the evidence actually be obtained legally, the inevitable discovery exception requires only that the evidence hypothetically would have been seized through some legal means.

Although lower courts have long recognized the inevitable discovery exception, the U.S. Supreme Court first recognized the exception in the Court's 1984 Nix v. Williams18 decision. The defendant, Robert Williams, actually had two trials on the same charge reviewed by the Supreme Court. The first decision was Brewer v. Williams19 and the second was Nix v. Williams.

Brewer v. Williams

In the Brewer decision, the Supreme Court examined the following facts. On December 24, 1968, 10-year-old Pamela Powers accompanied her parents to the Des Moines, Iowa, YMCA to watch her brother compete in a wrestling match. Pamela went to the washroom and never returned. Robert Williams, a recently escaped mental hospital patient, was a resident of the YMCA. A 14-year-old boy helped Williams open his car door and saw him put a large bundle with two legs sticking out of one end into the car.20

Subsequently, a warrant was issued for Williams' arrest. Two days later, Williams surrendered himself to the Davenport police and was arraigned on the warrant. Williams' attorneys and the police agreed that the police would not interrogate Williams during the drive from Davenport to Des Moines. In addition, Williams' attorneys advised him not to talk to the police. During the trip to Des Moines one of the detectives gave Williams the now famous "Christian burial speech."

The detective stated: I want to give you something to think about while we're traveling down the road.... Number one, I want you to observe the weather conditions. It's raining. It's sleeting. It's freezing. Driving is very treacherous. Visibility is poor; it's going to be dark early this evening. They are predicting several inches of snow for tonight, and I feel that you yourself are the only person that knows where this little girl's body is. That you yourself have only been there once, and if you get a snow on top of it you yourself may be unable to find it. And, since we will be going right past the area on the way into Des Moines, I feel we could stop by and locate the body, that the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas Eve and murdered. And I feel we should stop and locate it on the way rather than waiting until morning and trying to come back out after a snow storm and possibly not be able to find it at all.21

After a brief exchange with Williams, the detective told him: "I do not want you to answer me. I don't want to discuss it any further. Just think about it as we're riding down the road."22 After traveling approximately 100 miles, Williams began talking and eventually led the detectives to the location of Pamela Powers' body. Williams later was convicted at trial of first-degree murder.

In Brewer, the Supreme Court ruled that the statements made by Williams should have been suppressed because they were taken in violation of Williams' Sixth Amendment right to counsel, which attaches at the inception of adver-sarial judicial proceedings against a defendant.23 After attachment of the right, a suspect may not be interrogated without a valid waiver or the presence of counsel. The Supreme Court ruled that the Christian burial speech was designed to elicit an incriminating response from Williams, therefore, it constituted interrogation. In addition, even though Williams had been warned no fewer than five times of both his right to remain silent and his right to counsel, the Court held that a valid waiver of counsel requires that the state prove not merely that the defendant comprehended that right but also that he intended to relinquish it.24

Nix v. Williams

With his conviction overturned, Williams was retried and convicted a second time; this time the prosecutor did not use Williams' statements. However, Williams contested his second conviction as well. He argued that the illegally obtained statement led police to Pamela Powers' body and that additional evidence found on the body was used to convict him. Williams claimed that evidence was derived from the statement and should have been suppressed as fruit of the poisonous tree.

The State of Iowa argued that the body inevitably would have been discovered, and therefore, the evidence was properly admitted at trial. The United States Court of Appeals for the Eighth Circuit ruled that, in order to have the benefit of the inevitable discovery exception, the state was required to prove by a preponderance of the evidence that the officers did not act in bad faith when eliciting the statements from the defendant. Because the state failed to meet that burden, the Court granted Williams' petition for a writ of habeas corpus and ordered that he be released unless the State of Iowa commenced a new trial within 60 days.25

The U.S. Supreme Court, in Nix v. Williams, reversed the decision of the Court of Appeals and ruled that the government was not required to prove a lack of bad faith by the officers in order to successfully invoke the inevitable discovery exception. The Court simply required that the prosecution establish by a preponderance of the evidence that the body inevitably would have been lawfully discovered.

The Court did not think that a police officer would purposely engage in illegal conduct in the hope that the evidence would be admissible under the inevitable discovery doctrine, because an officer would rarely, if ever, be in a position to calculate whether the evidence sought inevitably would be discovered. Even if an officer were to foresee the lawful discovery of the evidence, he would have little to gain from taking any dubious shortcuts to obtain the evidence. The Court determined that the societal costs of a good faith requirement far outweighed any possible benefits.

The Nix Court viewed the exclusionary rule as a drastic and socially costly remedy because it often results in obviously guilty persons going unpunished for their crimes.26 The Court disapproved of suppressing evidence that inevitably would have been lawfully discovered because that would undermine the adversary system by putting the state in a worse position than it would have occupied if there had been no illegal police conduct.27 The inevitable discovery exception ensures that the remedy of the exclusionary rule is limited to putting the prosecution in the same position that it would have been in if there had been no illegal police conduct. The Nix Court found that, had the search not been called off because Williams had led the police to the body, the body inevitably would have been discovered by the search party within three to five hours anyway.

Under the inevitable discovery doctrine, it is not sufficient to allege that the evidence could have been found in a lawful fashion if some hypothetical events had occurred. It must be shown that the evidence inevitably would have been discovered.28 It is not necessary, however, to establish absolute certainty of discovery; it is only required that the government establish the inevitability of discovery by a preponderance of the evidence.29

Active Pursuit of an Independent Investigation

In order to successfully assert the inevitable discovery exception, some courts require that the prosecution demonstrate that the police were in the process of actively pursuing a lawful investigation that would have led inevitably to the discovery of the evidence at the time that the evidence was illegally obtained.30 Those courts are concerned that merely establishing what would have been the routine of the police, without establishing that alternative lawful investigative procedures were in fact actively being followed, would reduce the inevitable discovery doctrine to pure speculation.31

For example, in United States v. Wilson,32 the United States Court of Appeals for the Fifth Circuit found that evidence discovered in a hotel room waste basket pursuant to an illegal search should have been suppressed, even though the resident gave valid written consent to search the room after the evidence was seized. The court did not apply the inevitable discovery exception because the officers did not request consent until after the illegal search, and there was no indication that the police actively were pursuing a substantial alternative line of investigation at the time of the unlawful search.

Other courts, however, do not require that the police actively be pursuing a lawful line of investigation at the time of the illegal search in order to successfully assert the inevitable discovery doctrine.33 In United States v. Zapata,34 the United States Court of Appeals for the First Circuit refused to adopt the active pursuit requirement. The court held that unlawfully seized evidence will be admissible ". . . so long as 1) the lawful means of its discovery are independent and would necessarily have been employed, 2) discovery by that means is in fact inevitable, and 3) application of the doctrine in a particular case will not sully the prophylaxis of the Fourth Amendment."35 The court held that a large duffel bag containing 25 kilograms of cocaine found in the trunk of the suspect's car inevitably would have been discovered during an inventory of the vehicle conducted after its impoundment.36 The inventory of the vehicle was not being pursued actively by the police at the time of the initial illegal search. The court found that whether legal means of discovery are underway at the time of the illegal search is relevant to, but is not a requisite of, the inevitable discovery doctrine.37

In United States v. Silvestri,38 the United States Court of Appeals for the First Circuit held that evidence seized during an illegal search should not be suppressed when that evidence inevitably would have been found during the execution of a subsequently obtained valid search warrant, even though the police did not begin the process of obtaining the warrant until after the illegal search.

The court determined that requiring the police to be in the process of actively pursuing a contemporaneous and lawful alternative investigation, on the facts in that case, would put the prosecution in a worse position than it would have been had the police not conducted the illegal search.39 The court believed that active pursuit should not be required where a subsequent search warrant is actually issued, and it is based upon probable cause that existed prior to the illegal search. The court stated that requiring active pursuit would only be appropriate when a search warrant is the basis of the inevitable discovery argument and a subsequent warrant is not obtained.

One court, on the other hand, has applied the inevitable discovery doctrine even though there was neither an independent line of investigation actively being pursued nor a valid search warrant subsequently obtained. In Martin v. Delaware,40 the Delaware Supreme Court applied the inevitable discovery doctrine to allow the admission of evidence that was seized pursuant to an illegal search of a hotel room. Although there was an ongoing murder investigation in another state at the time of the illegal search, the police were not actively seeking, and in fact, never obtained, a search warrant for the hotel room. A Delaware State Police detective testified that although a search warrant was never acquired, he would have obtained a warrant before searching the hotel room had the Cincinnati police not already searched the room without a warrant.

In Murray v. United States,41 the police made no effort to obtain a search warrant until after the illegal search. In applying the independent source exception, the U.S. Supreme Court was concerned with whether the illegal search prompted the police to obtain the warrant but expressly refused to adopt a rule requiring the government to prove that the police actively were seeking the warrant at the moment of the illegal search.42

Inevitable Discovery by Private Parties

Some courts not only do not require active pursuit of an alternative legal means of discovery at the moment of the illegal search, but they do not even require that it be law enforcement officials who are hypothesized to be the ones who inevitably would have discovered the evidence. For instance, in Tennessee v. Williams,43 the Tennessee Court of Criminal Appeals ruled that evidence relating to a body, to which the police were led by the defendant's illegally obtained confession, was properly admitted at trial, because the body inevitably would have been found by a local farmer as soon as it began emitting odors of decomposition. The farmer testified that he passed by the site where the body was found five or six times per week.

In addition, the United States Court of Appeals for the Eleventh Circuit, in United States v. Hernandez-Cano,44 held that the district court should not have excluded illegally seized evidence where the evidence inevitably would have been discovered by an airline employee. The airline employee was in the process of searching a bag believed to contain illegal drugs or explosives when a police officer, who was watching the search over the airline employee's shoulder, reached into the bag and seized a bundle that turned out to contain cocaine. The court ruled that the drugs inevitably would have been found by the airline employee. The court determined that to limit the application of the inevitable discovery exception to hypothesized police conduct would thwart the purpose of that exception, which is simply to avoid placing the government in a worse position than it would have been had there been no illegal search.

Inevitable Discovery of Primary Evidence

Some courts have limited the application of the inevitable discovery doctrine to allow only the introduction of evidence obtained indirectly from illegal police conduct.45 Those courts have excluded primary evidence obtained directly from illegal police conduct, regardless of whether it inevitably would have been seized lawfully later. For instance, in New York v. Stith,46 the Court of Appeals of New York reversed a lower court decision that had approved the introduction in evidence of a gun, which inevitably would have been found during a subsequent inventory search of a vehicle. The Stith court refused to apply the inevitable discovery exception to the gun because it was obtained directly from an illegal police search. The Stith court limited the application of the Nix decision to indirect evidence. In Nix, the body, which inevitably would have been found, was indirectly located through an illegal statement. The Stith court reasoned that to expand the inevitable discovery exception to include evidence obtained directly from an illegal search would encourage unlawful searches in the hopes of justifying them later.47

Most courts, however, do not find the distinction between direct and indirect evidence to be relevant when determining whether the inevitable discovery exception should apply.48 In fact, the U.S. Supreme Court, in Murray v. United States, found it "strange" to distinguish between primary and indirect evidence when deciding whether to apply the independent source exception.49 The Court found that such a distinction would produce results bearing no relation to the policies of the exclusionary rule.

CONCLUSION

The primary purpose of the exclusionary rule is to deter illegal police conduct by excluding from evidence the fruits of that conduct. The exclusionary rule puts the government in the same position it would have been had there been no illegal conduct in the first place. The inevitable discovery exception ensures that the exclusionary rule does not go beyond that limited goal of deterring illegal police conduct by allowing into evidence those items that the police would have discovered legally anyway.

 

                                             Endnotes
                                             
                                             
                                             1 See Weeks v. United States, 232 U.S. 383, 386 (1914). 
                                             
                                             
                                             2 232 U.S. 383 (1914).
                                             
                                             
                                             3 Prior to the Weeks decision, 27 states had passed on the applicability of the exclusionary rule,
                                             
                                             
                                             26 of those states refused to adopt the rule. See Wolf v. Colorado, 338 U.S. 25, 29 (1949). 
                                             
                                             
                                             4 251 U.S. 385 (1920). But see United States v. Havens, 446 U.S. 620, 624 (1980) which
                                             
                                             
                                             rejected the statement in Silverthorne Lumber that illegally seized evidence ". . . shall not be used
                                             
                                             
                                             at all." The Havens Court allowed the use of illegally seized evidence for impeachment of a
                                             
                                             
                                             defendant.
                                             
                                             
                                             5 338 U.S. 25 (1949).
                                             
                                             
                                             6 The period between the Weeks decision in 1914 and the Wolf decision in 1949 saw 47 states
                                             
                                             
                                             review the applicability of the exclusionary rule. 16 states adopted the rule, and 31 states rejected
                                             
                                             
                                             the rule. See Wolf, 338 U.S. at 29.
                                             
                                             
                                             7 367 U.S. 643 (1961).
                                             
                                             
                                             8 Id. at 651-52.
                                             
                                             
                                             9 468 U.S. 897 (1984).
                                             
                                             
                                             10 Id. at 906, quoting United States v. Calandra, 414 U.S. 338, 354 (1974).
                                             
                                             
                                             11 414 U.S. 338 (1974).
                                             
                                             
                                             12 Id. at 347-48, quoting Elkins v. United States, 364 U.S. 206, 217 (1960).
                                             
                                             
                                             13 See, e.g., Massiah v. United States, 377 U.S. 201 (1964) (A post indictment statement
                                             
                                             
                                             deliberately elicited from a defendant by a government informant is inadmissible because it is a
                                             
                                             
                                             violation of the defendant's Sixth Amendment right to counsel, even though the Sixth
                                             
                                             
                                             Amendment does not expressly provide exclusion of evidence as a remedy for a violation).
                                             
                                             
                                             14 Leon, 468 U.S. at 907-08.
                                             
                                             
                                             15 See Rakas v. Illinois, 439 U.S. 128 (1978) (If the police did not violate the defendant's
                                             
                                             
                                             personal constitutional rights, he would lack standing to object to the admission of the resulting
                                             
                                             
                                             illegally obtained evidence.); United States v. Leon, 468 U.S. 897 (1984)       (If evidence is
                                             
                                             
                                             seized under the authority of an invalid warrant, it will not be suppressed if a reasonable officer
                                             
                                             
                                             acting in good faith would have relied on the warrant.); Wong Sun v. United States, 371 U.S. 471
                                             
                                             
                                             (1963) (If the evidence is so attenuated from the illegal conduct of the police that it cannot be
                                             
                                             
                                             said that it was obtained from the exploitation by the police of that illegal conduct, then the
                                             
                                             
                                             evidence will not be suppressed.); United States v. Calandra, 414 U.S. 338 (1974) (The
                                             
                                             
                                             exclusionary rule is inapplicable at grand jury hearings.); I.N.S. v. Lopez-Mendoza, 468 U.S.
                                             
                                             
                                             1032 (1984) (The exclusionary rule is inapplicable at civil deportation hearings.); United States
                                             
                                             
                                             v. Janis, 428 U.S. 433 (1976) (The exclusionary rule is inapplicable at civil tax hearings.); United
                                             
                                             
                                             States v. McCrory, 930 F.2d 63, 69 (D.C. Cir. 1991), cert. denied, 502 U.S. 1037 (1992)
                                             
                                             
                                             (Evidence seized in violation of the Fourth Amendment may be used at sentencing). 
                                             
                                             
                                             16 468 U.S. 796 (1984). See also Murray v. United States, 487 U.S. 533 (1988).
                                             
                                             
                                             17 See generally Martin J. McMahon, Annotation, What circumstances fall within "inevitable
                                             
                                             
                                             discovery" exception to rule precluding admission, in criminal case, of evidence obtained in
                                             
                                             
                                             violation of Federal Constitution, 81 ALR FED. 331 (1987 & Supp. 1995).
                                             
                                             
                                             18 467 U.S. 431 (1984).
                                             
                                             
                                             19 430 U.S. 387 (1977).
                                             
                                             
                                             20 Id. at 390.
                                             
                                             
                                             21 Id. at 392-93.
                                             
                                             
                                             22 Id. at 393.
                                             
                                             
                                             23 Massiah v. United States, 377 U.S. 201 (1964).
                                             
                                             
                                             24 Brewer, 430 U.S. at 404.
                                             
                                             
                                             25 Williams v. Nix, 700 F.2d 1164 (8th Cir. 1983), rev'd, 467 U.S. 431 (1984). 
                                             
                                             
                                             26 Nix, 467 U.S. at 442, 443.
                                             
                                             
                                             27 Id. at 447.
                                             
                                             
                                             28 Tennessee v. Carpenter, 773 S.W. 2d 1,6-7 (Tenn. Crim. App. 1989).
                                             
                                             
                                             29 Nix, 467 U.S. at 444. See also Florida v. Ruiz, 502 So. 2d 87 (Fla. Dist. Ct. App. 1987), citing
                                             
                                             
                                             United States v. Brookins, 614 F.2d 1037, 1042 (5th Cir. 1980) (both Ruiz and Brookins applied
                                             
                                             
                                             a "reasonable probability" standard).
                                             
                                             
                                             30 See, e.g., United States v. Hernandez-Cano, 808 F.2d 779, 784 (11th Cir. 1987), cert. denied,
                                             
                                             
                                             482 U.S. 918 (1987); United States v. Cherry, 759 F.2d 1196, 1204-06 (5th Cir.1985), cert.
                                             
                                             
                                             denied, 479 U.S. 1056 (1987); Nebraska v. Evans, 389 N.W. 2d 777, 781-84 (1986).
                                             
                                             
                                             31 Id; see also Illinois v. Campbell, 514 N.E. 2d 241, 245-46 (Ill. App. Ct. 1987).
                                             
                                             
                                             32 36 F.2d 1298, 1304-05 (5th Cir. 1994).
                                             
                                             
                                             33 See, e.g., United States v. Thomas, 955 F.2d 207, 210 (4th Cir. 1992); United States v.
                                             
                                             
                                             Boatwright, 822 F.2d 862 (9th Cir. 1987).
                                             
                                             
                                             34 18 F.2d 971 (1st Cir. 1994).
                                             
                                             
                                             35 Id. at 978.
                                             
                                             
                                             36 In order for an inventory search to be valid, it must be conducted in accordance with
                                             
                                             
                                             standardized agency procedures and any discretion exercised by an officer must be according to
                                             
                                             
                                             standard agency criteria based on something other than suspicion of criminal activity. See
                                             
                                             
                                             Colorado v. Bertine, 479 U.S. 367, 375-76 (1987). See also United States v. Woody, 55 F.3d
                                             
                                             
                                             1257, 1270 (7th Cir. 1995) (Evidence seized during search of glove compartment inevitably
                                             
                                             
                                             would have been discovered during subsequent inventory search of vehicle after impoundment).
                                             
                                             
                                             37 Zapata, 18 F.3d at 978 n.6.
                                             
                                             
                                             38 787 F.2d 736 (1st Cir. 1986).
                                             
                                             
                                             39 Id. at 742.
                                             
                                             
                                             40 433 A. 2d 1025 (Del. 1981), cert. denied, 454 U.S. 1151 (1982).
                                             
                                             
                                             41 487 U.S. 533 (1988).
                                             
                                             
                                             42 Id at 540 n.2.
                                             
                                             
                                             43 784 S.W.2d 660, 663-64 (Tenn. Crim. App. 1989).
                                             
                                             
                                             44 808 F.2d 779, 782-84 (11th Cir. 1987), cert. denied, 482 U.S. 918 (1987).
                                             
                                             
                                             45 See, e.g., United States v. $639,558.00, 955 F.2d 712, 718-21 (D.C. Cir. 1992).
                                             
                                             
                                             46 506 N.E.2d 911, 914 (1987).
                                             
                                             
                                             47 Id. at 914, citing Oregon v. Crossen, 536 P.2d 1263, 1264 (Or. Ct. App. 1975).
                                             
                                             
                                             48 See, e.g., United States v. Zapata, 18 F.3d 971, 979 n.7 (1st Cir. 1994) (". . . no fewer than
                                             
                                             
                                             seven other circuits have approved application of the inevitable discovery rule in primary
                                             
                                             
                                             evidence cases . . ."); Colorado v. Burola, 848 P.2d 958 (Colo. 1993); Massachusetts v.
                                             
                                             
                                             O'Conner, 546 N.E.2d 336, 339 (Mass. 1989).
                                             
                                             
                                             49 487 U.S. 533, 541 (1988).


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Dave Freeman can be reached at dfreeman@ccp.edu