The government, then, would have to show that the decision to obtain the warrant wasn't prompted
by what the police saw during the illegal entry. Also, information unlawfully obtained mustn't have been
presented to the judge who issued the warrant. There-must be a "genuinely independent" source for
c. Inevitable Discovery. The exclusionary rule will not be applied if the government can
establish that "the evidence would have been obtained even if the unlawful search or seizure had not
been made." (MRE 311(e) 1.) In other words, would the evidence have been discovered lawfully,
without reference to the unlawful acts?
In one case, an informant told his commander that a quantity of drugs was stored in a locker at a
train station, and that it would be picked up at midnight. The commander authorized the CID agents to
go and observe the locker, and to apprehend the accused when he picked up the drugs. Instead, the
agents began a search of all of the lockers and found eleven plates of hashish in one of them. They
put back one plate, confiscated the rest, and then waited for the accused. Shortly after midnight, he
arrived and opened the locker. He was immediately apprehended. The court held that the
authorization from the commander was simply to OBSERVE, and not to search any of the lockers.
There was, therefore, an illegal, unauthorized search. The court concluded, however, that evidence
isn't admissible "where the normal course of police investigation would, in any case, even absent the
illicit conduct, have inevitably led to such evidence." The accused "would have been arrested when he
arrived at the train station and opened the locker. It was truly inevitable that the hashish would be
discovered at that time...the prosecution proved that the seizure of the hashish was inevitable through
the exercise of proper police procedures authorized by proper authority, despite the prior illegal search
of the accused's locker." U.S. v. Kozak, 12 MJ 389 (CMA, 1982).
For this exception to apply, however, the court explained that the government must show that when
the illegal search occurred, "the government agents possessed, or were actively pursuing, evidence or
leads that would have inevitably led to the discovery of the evidence and that the evidence would
inevitably have been discovered in a lawful manner had not the illegality occurred." In another case
which reached the Supreme Court, a 10-year-old girl disappeared on Christmas Eve. The police began
a massive search for the body, dividing the area into grids and using 200 volunteers. While the search
was in progress, the accused was illegally interrogated. He confessed and led the police to the body.
At this point, of course, the search ended. The Court did not apply the exclusionary rule, however since
it was inevitable that the body would have been discovered. Had the search not been called off when
the suspect took the police to the body, the police would have continued therewith, using the same grid
system. They were, in fact, already approaching the area where the body was found. The instructions
to those participating in the search were to look in all ditches, all culverts, all roads, all abandoned
buildings, and "any other place where a small child could be secreted." The body was found in a ditch
along the road. Nix v. Williams, 81 L.Ed.2d 377 (1984).