This exception only applies where the government can clearly establish that the evidence would
have inevitably been discovered. U.S. v. Butner, 15 MJ 139 (CMA, 1983). An interesting case is U.S.
v. Carrubba, 19 MJ 896 (ACMR, 1985). The accused walked "in to the MP station" and requested that
someone take him to retrieve his car, which was off-post. The accused had been stopped by civilian
police off-post for driving while under the influence of alcohol, and was apparently still intoxicated. Two
military policemen agreed to take him to his car. During the ride, the accused said he had a shotgun
and marijuana in his car. One of the officers drove the car back on-post, accompanied by the accused.
Upon reaching the MP station, the accused removed a plastic bag containing marijuana from the glove
compartment. The MP told him to put the bag away, at which time the accused went to the trunk and
tried to open it. The MP opened the trunk for the accused, at which time the accused put the plastic
bag into a back pack. The accused then unfolded a towel in the trunk, to reveal a sawed-off shotgun.
He refolded the towel and shut the trunk. The MP repeated these facts to his partner and to the desk
sergeant. The accused was apprehended and MPI was notified. The MPI agent was advised that the
accused had said he had "dope and a sawed-off shotgun" in the car. The accused would not consent
to a search of the car, and told the MPI agent to go get a search warrant.
The MPI agent left to get the authorization. As the agent was departing, the accused asked one of
the MP what he (the MP) would have done. The MP said he would have cooperated. The accused
then consented to the search and the MPI agent was called back (before he ever got the authorization).
On appeal the court held that the consent was invalid, due to the accused's intoxication. The evidence
was still admissible, however, because the MPI agent "had sufficient probable cause to obtain a search
authorization and was actively pursuing such authorization that would have inevitably led to the
discovery of the evidence." Under this exception, then, "challenged evidence which is the product of
illegal government activity is admissible if the prosecution establishes...that the evidence at issue would
inevitably have been discovered by lawful means because of information already in the government's
possession or leads actively being pursued by the government." Here, the MPI agent was on his way
to get a search authorization when the accused consented. This consent "did no more than hasten the
inevitable discovery of the contraband." Had he not consented, the MPI agent would have gotten the
search authorization. Thus, even without the consent, the evidence would inevitably have been
discovered.
In U.S. v. Haye, 25 MJ 849 (AFCMR, 1988), the court stressed once again that this exception is to
be applied "carefully and narrowly." Without such restraint, the doctrine will support almost any
supposition or hunch a prosecutor can propose.
MP1021
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