inevitable discovery exception in Colorado

2024I write separately to urge the Colorado Supreme Court to revisit two aspects of its inevitable discovery jurisprudence that I believe have drifted away from the United States Supreme Court’s articulation of the rule. ¶ 75 First, since the doctrine was first applied in this state, Colorado’s version of the inevitable discovery rule has required the prosecution to show that (1) “the police were pursuing an independent investigation at the time the illegality occurred,” and (2) there was “a reasonable probability that the evidence would have been discovered in the absence of police misconduct.” P

2012See People v. Breidenbach, 875 P.2d 879, 889 (Colo.1994) ("'Before evidence will be admitted under the inevitable discovery exception, the prosecutor must establish that the information ultimately or inevitably would have been discovered by lawful means." (citation omitted)).

2024The Inevitable Discovery Rule ¶ 61 “Under the inevitable discovery rule, evidence initially discovered in an unconstitutional manner may be received if that same evidence inevitably would have been obtained lawfully.” People v. Schoondermark, 759 P.2d 715, 718 (Colo. 1988).

2006People v. Schoondermark, supra. The Schoondermark test points out significant differences between the inevitable discovery doctrine and the independent source doctrine.

2024Recall that police asked the court for the second warrant in October 2021 — almost five months after the May 12, 2021, suppression ruling — knowing that d’Estree’s trial was in December 2021 and his speedy trial clock was ticking. ¶ 65 To admit evidence under the inevitable discovery doctrine “requires an affirmative showing of a reasonable probability that the evidence would inevitably be discovered through lawful means already initiated when the seizure was made.” Id. (emphasis added); see also Burola, 848 P.2d at 963 (“[I]f evidence is obtained by illegal conduct, the illegality can be cure

2012The inevitable discovery exception permits evidence "initially discovered in an unconstitutional manner to be [admitted], but only if the prosecution can establish that the information ultimately or inevitably would have been discovered by lawful means." Id. (citing People v. Burola, 848 P.2d 958, 962 (Colo.1993)). 152 The ability to obtain a lawful search warrant after an illegal search has occurred does not satisfy the inevitable discovery exception requirements.

2024“The ability to obtain a lawful search warrant after an illegal search has occurred does not satisfy the inevitable discovery exception requirements.” People v. Nelson, 2012 COA 37, ¶ 52 ; see also People v. Diaz, 53 P.3d 1171, 1176 (Colo. 2002).

2012See People v. Diaz, 53 P.3d 1171, 1176 (Colo.2002) ("Evidence is not admissible under the inevitable discovery exception based on speculation that the evidence would have been discovered anyway.

2024My concern in this case is with the second element of this test, which not only makes little semantic sense but also materially diverges from the standard set forth in Nix v. Williams, 467 U.S. 431 (1984). ¶ 76 Breidenbach’s “reasonable probability” approach tracked the Fifth Circuit Court of Appeals’ holding in United States v. Cherry, 759 F.2d 1196 (5th Cir. 1985), which applied pre-existing circuit precedent to define the scope of the inevitable discovery rule based 43 on its conclusion that the Nix court had made “no attempt . . . to define the contours of that exception.” Id. at 1204 .

2024See Nix, 467 U.S. at 443-44 (the independent source doctrine’s “rationale is wholly consistent with and justifies our adoption of the ultimate or inevitable discovery exception to the exclusionary rule”).

2015Id. (“To remand the case for a hearing under these circumstances would transform the inevitable discovery rule into a vehicle for upholding police conduct based upon an officer’s hindsight appraisal of what constitutionally proper course of conduct he ‘could’ have followed.”). ¶45        Indeed, more recent decisions of the Colorado Supreme Court tend to deny the prosecution a “‘second bite at the apple’” where it “failed to carry its evidentiary burden” at the suppression hearing.

1993In Briggs , we recognized that the inevitable discovery exception differs in one key respect from the independent source exception, “specifically, the evidence sought to be introduced at trial [under the inevitable discovery exception] has not actually been obtained from an independent source, but rather would have been discovered as a matter of course if independent investigations were allowed to proceed.” Briggs, 709 P.2d at 923 (quoting from Nix, 467 U.S. at 459 , 104 S.Ct. at 2517 (Brennan, J., dissenting)); see also People v. Quintero, 657 P.2d 948, 951 (Colo.1983) (holding that evidence

2024Recall that police asked the court for the second warrant in October 2021 — almost five months after the May 12, 2021, suppression ruling — knowing that d’Estree’s trial was in December 2021 and his speedy trial clock was ticking. ¶ 65 To admit evidence under the inevitable discovery doctrine “requires an affirmative showing of a reasonable probability that the evidence would inevitably be discovered through lawful means already initiated when the seizure was made.” Id. (emphasis added); see also Burola, 848 P.2d at 963 (“[I]f evidence is obtained by illegal conduct, the illegality can be cure

2018“The inevitable discovery exception does not invite speculation about possible series of events under which the evidence may have been discovered, but requires an affirmative showing of a reasonable probability that the evidence would inevitably be discovered through lawful means already initiated when the seizure was made.” People v. Syrie, 101 P.3d 219, 223 (Colo. 2004) (emphasis added).

2000While the two concepts are related, see Murray v. United States, 487 U.S. 533, 539 , 108 S.Ct. 2529 , 101 L.Ed.2d 472 (1988) ('The inevitable discovery doctrine, with its distinct requirements, is in reality an extrapolation from the independent source doctrine ...."), the circumstance presented in the case before us today is properly analyzed under the independent source rule. 3 .

2000While the two concepts are related, see Murray v. United States, 487 U.S. 533, 539 , 108 S.Ct. 2529 , 101 L.Ed.2d 472 (1988) ('The inevitable discovery doctrine, with its distinct requirements, is in reality an extrapolation from the independent source doctrine ...."), the circumstance presented in the case before us today is properly analyzed under the independent source rule. 3 .

2024My concern in this case is with the second element of this test, which not only makes little semantic sense but also materially diverges from the standard set forth in Nix v. Williams, 467 U.S. 431 (1984). ¶ 76 Breidenbach’s “reasonable probability” approach tracked the Fifth Circuit Court of Appeals’ holding in United States v. Cherry, 759 F.2d 1196 (5th Cir. 1985), which applied pre-existing circuit precedent to define the scope of the inevitable discovery rule based 43 on its conclusion that the Nix court had made “no attempt . . . to define the contours of that exception.” Id. at 1204 .

2024My concern in this case is with the second element of this test, which not only makes little semantic sense but also materially diverges from the standard set forth in Nix v. Williams, 467 U.S. 431 (1984). ¶ 76 Breidenbach’s “reasonable probability” approach tracked the Fifth Circuit Court of Appeals’ holding in United States v. Cherry, 759 F.2d 1196 (5th Cir. 1985), which applied pre-existing circuit precedent to define the scope of the inevitable discovery rule based 43 on its conclusion that the Nix court had made “no attempt . . . to define the contours of that exception.” Id. at 1204 .

1993United States v. Satterfield, 743 F.2d 827 (11th Cir.1984), cert. denied, 471 U.S. 1117 , 105 S.Ct. 2362 , 86 L.Ed.2d 262 (1985) suggested that: [I]f evidence is obtained by illegal conduct, the illegality can be cured only if the police possessed and were pursuing a lawful means of discovery at the time the illegality occurred.

1987Citing United States v. Satterfield, 743 F.2d 827 (11th Cir.1984), cert. denied, 471 U.S. 1117 , 105 S.Ct. 2362 , 86 L.Ed.2d 262 (1985), defendant argues that the inevitable discovery rule was inapplicable primarily because there was no ongoing search for the body prior to the tainted confession.

2025See People v. Osorio, 170 P.3d 796, 800 (Colo. App. 2007) (defendant must provide enough 11 detail “to explain why these actions were deficient [and] to place them in context”). ¶ 20 On appeal, Myers asserts that the district court erroneously applied the inevitable discovery exception to the warrant requirement and faults trial counsel for not arguing the proper standards.

2024See United States v. Zavala, 541 F.3d 562 , 579 n.7 (5th Cir. 2008) (acknowledging that the Fifth Circuit’s application of the “reasonable probability” test rather than a preponderance standard in the context of the inevitable discovery rule “is more favorable to the Government than the test in other circuits”); cf. Mile High Cab, Inc. v. Colo. Pub.

2024See United States v. Zavala, 541 F.3d 562 , 579 n.7 (5th Cir. 2008) (acknowledging that the Fifth Circuit’s application of the “reasonable probability” test rather than a preponderance standard in the context of the inevitable discovery rule “is more favorable to the Government than the test in other circuits”); cf. Mile High Cab, Inc. v. Colo. Pub.

2024See Garnett v. State, 308 A.3d 625 , 648 (Del. 2023) (“[O]ur holding that the inevitable-discovery exception is compatible with Article I, § 6 [of the Delaware Constitution] assumes that it will be applied only when it is clear that ‘the police have not acted in bad faith to accelerate the discovery of the evidence in question.’”) (citation omitted); State v. Holly, 2013 ND 94, ¶ 55 , 833 N.W.2d 15, 33 (“When a shortcut is taken that circumvents the requirements of the Fourth Amendment, the requirements of the inevitable-discovery doctrine have not been met.”); Smith v. State, 948 P.2d 473, 48

2024See Garnett v. State, 308 A.3d 625 , 648 (Del. 2023) (“[O]ur holding that the inevitable-discovery exception is compatible with Article I, § 6 [of the Delaware Constitution] assumes that it will be applied only when it is clear that ‘the police have not acted in bad faith to accelerate the discovery of the evidence in question.’”) (citation omitted); State v. Holly, 2013 ND 94, ¶ 55 , 833 N.W.2d 15, 33 (“When a shortcut is taken that circumvents the requirements of the Fourth Amendment, the requirements of the inevitable-discovery doctrine have not been met.”); Smith v. State, 948 P.2d 473, 48

2024See Garnett v. State, 308 A.3d 625 , 648 (Del. 2023) (“[O]ur holding that the inevitable-discovery exception is compatible with Article I, § 6 [of the Delaware Constitution] assumes that it will be applied only when it is clear that ‘the police have not acted in bad faith to accelerate the discovery of the evidence in question.’”) (citation omitted); State v. Holly, 2013 ND 94, ¶ 55 , 833 N.W.2d 15, 33 (“When a shortcut is taken that circumvents the requirements of the Fourth Amendment, the requirements of the inevitable-discovery doctrine have not been met.”); Smith v. State, 948 P.2d 473, 48

2024See Garnett v. State, 308 A.3d 625 , 648 (Del. 2023) (“[O]ur holding that the inevitable-discovery exception is compatible with Article I, § 6 [of the Delaware Constitution] assumes that it will be applied only when it is clear that ‘the police have not acted in bad faith to accelerate the discovery of the evidence in question.’”) (citation omitted); State v. Holly, 2013 ND 94, ¶ 55 , 833 N.W.2d 15, 33 (“When a shortcut is taken that circumvents the requirements of the Fourth Amendment, the requirements of the inevitable-discovery doctrine have not been met.”); Smith v. State, 948 P.2d 473, 48

2024See, e.g., United States v. Crespo-Rios, 645 F.3d 37, 42 (1st Cir. 2011) (holding that inevitable discovery should apply only where “application of the doctrine in a particular case will not sully the prophylaxis of the Fourth Amendment” (quoting United States v. Hughes, 640 F.3d 428, 440 (1st Cir. 2011))); United States v. Vasquez De Reyes, 149 F.3d 192, 195 (3d Cir. 1998) (holding that the inevitable discovery rule “permits the court to balance the public interest in providing a jury with all relevant and 48 probative evidence in a criminal proceeding against society’s interest in deterring

2024See, e.g., United States v. Crespo-Rios, 645 F.3d 37, 42 (1st Cir. 2011) (holding that inevitable discovery should apply only where “application of the doctrine in a particular case will not sully the prophylaxis of the Fourth Amendment” (quoting United States v. Hughes, 640 F.3d 428, 440 (1st Cir. 2011))); United States v. Vasquez De Reyes, 149 F.3d 192, 195 (3d Cir. 1998) (holding that the inevitable discovery rule “permits the court to balance the public interest in providing a jury with all relevant and 48 probative evidence in a criminal proceeding against society’s interest in deterring

2024See, e.g., United States v. Crespo-Rios, 645 F.3d 37, 42 (1st Cir. 2011) (holding that inevitable discovery should apply only where “application of the doctrine in a particular case will not sully the prophylaxis of the Fourth Amendment” (quoting United States v. Hughes, 640 F.3d 428, 440 (1st Cir. 2011))); United States v. Vasquez De Reyes, 149 F.3d 192, 195 (3d Cir. 1998) (holding that the inevitable discovery rule “permits the court to balance the public interest in providing a jury with all relevant and 48 probative evidence in a criminal proceeding against society’s interest in deterring

2024See, e.g., United States v. Crespo-Rios, 645 F.3d 37, 42 (1st Cir. 2011) (holding that inevitable discovery should apply only where “application of the doctrine in a particular case will not sully the prophylaxis of the Fourth Amendment” (quoting United States v. Hughes, 640 F.3d 428, 440 (1st Cir. 2011))); United States v. Vasquez De Reyes, 149 F.3d 192, 195 (3d Cir. 1998) (holding that the inevitable discovery rule “permits the court to balance the public interest in providing a jury with all relevant and 48 probative evidence in a criminal proceeding against society’s interest in deterring

2024See Nix, 467 U.S. at 442-43 ; see also Casillas v. People, 2018 CO 78M, ¶¶ 21-22, 36 . ¶ 67 We recognize that the exclusionary rule’s deterrence rationale is not served when the challenged evidence would “ultimately or inevitably” be discovered by lawful means.

2024See Garnett v. State, 308 A.3d 625 , 648 (Del. 2023) (“[O]ur holding that the inevitable-discovery exception is compatible with Article I, § 6 [of the Delaware Constitution] assumes that it will be applied only when it is clear that ‘the police have not acted in bad faith to accelerate the discovery of the evidence in question.’”) (citation omitted); State v. Holly, 2013 ND 94, ¶ 55 , 833 N.W.2d 15, 33 (“When a shortcut is taken that circumvents the requirements of the Fourth Amendment, the requirements of the inevitable-discovery doctrine have not been met.”); Smith v. State, 948 P.2d 473, 48

2024See Garnett v. State, 308 A.3d 625 , 648 (Del. 2023) (“[O]ur holding that the inevitable-discovery exception is compatible with Article I, § 6 [of the Delaware Constitution] assumes that it will be applied only when it is clear that ‘the police have not acted in bad faith to accelerate the discovery of the evidence in question.’”) (citation omitted); State v. Holly, 2013 ND 94, ¶ 55 , 833 N.W.2d 15, 33 (“When a shortcut is taken that circumvents the requirements of the Fourth Amendment, the requirements of the inevitable-discovery doctrine have not been met.”); Smith v. State, 948 P.2d 473, 48

2024See People v. Thompson, 2021 CO 15, ¶ 22 (“When, as here, the People assert the applicability of the independent source doctrine, they bear the burden of proving by a preponderance of the evidence the doctrine’s applicability.”).

2024See, e.g., United States v. Crespo-Rios, 645 F.3d 37, 42 (1st Cir. 2011) (holding that inevitable discovery should apply only where “application of the doctrine in a particular case will not sully the prophylaxis of the Fourth Amendment” (quoting United States v. Hughes, 640 F.3d 428, 440 (1st Cir. 2011))); United States v. Vasquez De Reyes, 149 F.3d 192, 195 (3d Cir. 1998) (holding that the inevitable discovery rule “permits the court to balance the public interest in providing a jury with all relevant and 48 probative evidence in a criminal proceeding against society’s interest in deterring

2024See, e.g., United States v. Crespo-Rios, 645 F.3d 37, 42 (1st Cir. 2011) (holding that inevitable discovery should apply only where “application of the doctrine in a particular case will not sully the prophylaxis of the Fourth Amendment” (quoting United States v. Hughes, 640 F.3d 428, 440 (1st Cir. 2011))); United States v. Vasquez De Reyes, 149 F.3d 192, 195 (3d Cir. 1998) (holding that the inevitable discovery rule “permits the court to balance the public interest in providing a jury with all relevant and 48 probative evidence in a criminal proceeding against society’s interest in deterring

2024See, e.g., United States v. Christy, 739 F.3d 534, 540-41 (10th Cir. 2014). 35 or years later — focusing on the word “inevitable” in such a manner ignores the requirements of the rule and undermines its purpose, and the exclusionary rule more broadly.11 While police here initiated a lawful means to obtain the PIN code — via the brute force attack that the second warrant authorized — that means was abandoned in favor of a shortcut (using the illegally obtained PIN code), thus violating a key requirement of the inevitable discovery rule under Colorado precedent.