inevitable discovery doctrine in Virginia

2026Therefore, I would have affirmed the trial court’s judgment granting Williams’s motion to suppress.9 9 While the majority does not address the issue, I also would hold that Officer Chaplain would not have inevitably discovered the firearm. “[T]he doctrine of inevitable discovery” provides that “evidence obtained by unlawful means is nonetheless admissible ‘[i]f the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.’” Commonwealth v. Jones, 267 Va. 532, 536 (2004) (second alteration in original)

2024Under the inevitable discovery doctrine, “evidence obtained by unlawful means is admissible if that evidence or information ‘ultimately or inevitably would have been discovered by lawful means.’” Carlson v. Commonwealth, 69 Va. App. 749, 763 (2019) (quoting Commonwealth v. Jones, 267 Va. 532, 536 (2004)).

2026Hudspeth’s argument against the application of the inevitable discovery doctrine rests on distinguishing his case from Nix v. Williams, 467 U.S. 431 (1984), the seminal case adopting the inevitable discovery doctrine.

2026Therefore, I would have affirmed the trial court’s judgment granting Williams’s motion to suppress.9 9 While the majority does not address the issue, I also would hold that Officer Chaplain would not have inevitably discovered the firearm. “[T]he doctrine of inevitable discovery” provides that “evidence obtained by unlawful means is nonetheless admissible ‘[i]f the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.’” Commonwealth v. Jones, 267 Va. 532, 536 (2004) (second alteration in original)

2022As discussed below, Cherry is likewise the root cause of the majority’s misapplication of the inevitable-discovery standard here. - 25 - Va. App. 639, 656 (1986) (quoting United States v. Cherry, 759 F.2d 1196, 1204 (5th Cir. 1985)).

2017The inevitable discovery exception permits admission of the challenged evidence if the Commonwealth shows “‘(1) a reasonable probability that the evidence in question would have been discovered by lawful means but for the police -5- misconduct’” and “‘(2) that the leads making the discovery inevitable were possessed by the police at the time of the misconduct.’” Id. at 536 , 593 S.E.2d at 207 (quoting United States v. Cherry, 759 F.2d 1196, 1204 (5th Cir. 1985)).

2022As the dissent points out, in Walls v. Commonwealth, 2 Va. App. 639 (1986), Virginia adopted the Fifth Circuit’s three-prong test for the inevitable discovery doctrine.

2004The Court of Appeals opined in Walls that the requirement for an alternative line of investigation is necessary to ensure “that the inevitable discovery exception will be applied consistently with the overall purpose of the exclusionary rule, which is to deter police misconduct.” 2 Va. App. at 656 , 347 S.E.2d at 185 .

2022The inevitable-discovery doctrine “is in reality an extrapolation from the independent source doctrine.” Murray, 487 U.S. at 539 ; Nix, 467 U.S. at 443 (stating that the two doctrines are “closely related”); Wilkins v. Commonwealth, 37 Va. App. 465, 475 (2002) (describing the inevitable-discovery doctrine as “an off-shoot of the independent source doctrine”).

2020“The inevitable discovery rule is ‘an off-shoot of the independent source doctrine.’” Copeland v. Commonwealth, 42 Va. App. 424, 437 (2004) (quoting Wilkins v. Commonwealth, 37 Va. App. 465, 475 (2002)).

2026The inevitable discovery exception applies when evidence obtained by unlawful means would have “ultimately or inevitably been discovered by lawful means.” Knight v. Commonwealth, 71 Va. App. 771 , 787 (2020) (quoting Carlson, 69 Va. App. at 763 ).

2026See Knight v. Commonwealth, 71 Va. App. 771 , 787 (2020) (explaining that the inevitable discovery doctrine is an exception to the exclusionary rule that applies when evidence is “obtained by unlawful means” but “ultimately or inevitably would have been discovered by lawful means” (emphasis added) (quoting Carlson v. Commonwealth, 69 Va. App. 749, 763 (2019))). - 14 - Chaney, J., concurring in part and dissenting in part.

2020“The inevitable discovery rule is ‘an off-shoot of the independent source doctrine.’” Copeland v. Commonwealth, 42 Va. App. 424, 437 (2004) (quoting Wilkins v. Commonwealth, 37 Va. App. 465, 475 (2002)).

2017Likewise, in Copeland v. Commonwealth, 42 Va. App. 424 , 592 S.E.2d 391 (2004), this Court applied the inevitable discovery doctrine where the record showed that probable cause existed to arrest the defendant for an independent drug possession charge and where a search incident to that arrest would have yielded the other drugs ultimately discovered in the defendant’s pocket during the unlawful search.

2006In Johnson v. Commonwealth, 45 Va. App. 113, 116 , 609 S.E.2d 58, 59 (2005), this Court declined to raise, sua sponte, the validity of an alternative holding of the trial court, specifically, the applicability of the inevitable discovery doctrine under the circumstances of that case.

2006In Johnson v. Commonwealth, 45 Va. App. 113, 116 , 609 S.E.2d 58, 59 (2005), this Court declined to raise, sua sponte, the validity of an alternative holding of the trial court, specifically, the applicability of the inevitable discovery doctrine under the circumstances of that case.

2023See Hasan, 276 Va. at 681 ; see also Baker v. Commonwealth, 57 Va. App. 181, 195-96 (2010) (applying the Supreme Court’s reasoning in Hasan to a case involving a motion to suppress evidence obtained from an unlawful search and thereby refusing to apply the inevitable discovery doctrine). - 15 - In contrast, the Commonwealth insists that, although Officer Astin found a bottle showing a prescription for Percocet, Officer Astin was unable to read the faded prescription label so as to confirm “that Nottingham was validly prescribed Percocet.” The record on appeal, however, suggests that Officer As

2016We agree with appellant. - 14 - An exception to the exclusionary rule, “‘the doctrine of inevitable discovery’ . . . provides that evidence obtained by unlawful means is nonetheless admissible ‘if the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.’” Baker v. Commonwealth, 57 Va. App. 181, 195 , 700 S.E.2d 160, 166-67 (2010) (quoting Nix v. Williams, 467 U.S. 431, 444 (1984)) (citation and some quotation marks omitted).

2022The inevitable-discovery doctrine “is in reality an extrapolation from the independent source doctrine.” Murray, 487 U.S. at 539 ; Nix, 467 U.S. at 443 (stating that the two doctrines are “closely related”); Wilkins v. Commonwealth, 37 Va. App. 465, 475 (2002) (describing the inevitable-discovery doctrine as “an off-shoot of the independent source doctrine”).

2022Because “it is the function of the [trial court] rather than the Court of Appeals to determine the facts,” Murray, 487 U.S. at 543 , we should remand this case to the trial court to conduct the inevitable-discovery analysis under the correct legal standards. - 32 -

2010Nix v. Williams, 467 U.S. 431, 443 (1984); Warlick v. Commonwealth, 215 Va. 263, 266 , 208 S.E.2d 746, 748 (1974); Keeter v. Commonwealth, 222 Va. 134 , 140 n.2, 278 S.E.2d 841 , 845 n.2 (1981).

2010Nix v. Williams, 467 U.S. 431, 443 (1984); Warlick v. Commonwealth, 215 Va. 263, 266 , 208 S.E.2d 746, 748 (1974); Keeter v. Commonwealth, 222 Va. 134 , 140 n.2, 278 S.E.2d 841 , 845 n.2 (1981).

2011The inevitable discovery rule is “an off-shoot of the independent source doctrine.” Copeland v. Commonwealth, 42 Va. App. 424, 436-37 , 592 S.E.2d 391, 397 (2004) (quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963); Wilkins v. Commonwealth, 37 Va. App. 465, 475 , 559 S.E.2d 395, 399 (2002)).

2010“One of the exceptions to the exclusionary rule is the doctrine of inevitable discovery,” which provides, “that evidence obtained by unlawful means is nonetheless admissible ‘if the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.’” Id. at 535-36 , 593 S.E.2d at 206 (quoting Nix v. Williams, 467 U.S. 431, 444 , 104 S.Ct. 2501, 2509 , 81 L.Ed.2d 377 (1984)).

2004See Trent v. Commonwealth, 35 Va.App. 248, 250 , 544 S.E.2d 379, 380 (2001).

2004See Trent v. Commonwealth, 35 Va.App. 248, 250 , 544 S.E.2d 379, 380 (2001).

2000Under the inevitable discovery doctrine, “if the government can prove that the evidence [obtained by illegal means] would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury.” Timbers v. Commonwealth, 28 Va. App. 187, 199-200 , 503 S.E.2d 233, 239 (1998) (quoting Nix v. Williams, 467 U.S. 431, 447 (1984)).

2000Under the inevitable discovery doctrine, “if the government can prove that the evidence [obtained by illegal means] would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury.” Timbers v. Commonwealth, 28 Va. App. 187, 199-200 , 503 S.E.2d 233, 239 (1998) (quoting Nix v. Williams, 467 U.S. 431, 447 (1984)).

1986See, Taylor v. Alabama, 457 U.S. 687, 691 , 102 S.Ct. 2664, 2667 , 73 L.Ed.2d 314 (1982) (six hours between illegal arrest and confession); Brown, 422 U.S. at 604 , 95 S.Ct. at 2262 (two hours between arrest and confession); Taylor, 468 So.2d at 627 (one and a half hour between entry and consent). [9] In Keeter , the court applied the inevitable discovery exception "since the warrant ... was already being prepared and would have led to the discovery of the evidence ... even if the prior entry was unlawful." 222 Va. at 140 n. 2, 278 S.E.2d at 845 n. 2. (emphasis added).

1986See, Taylor v. Alabama, 457 U.S. 687, 691 , 102 S.Ct. 2664, 2667 , 73 L.Ed.2d 314 (1982) (six hours between illegal arrest and confession); Brown, 422 U.S. at 604 , 95 S.Ct. at 2262 (two hours between arrest and confession); Taylor, 468 So.2d at 627 (one and a half hour between entry and consent). [9] In Keeter , the court applied the inevitable discovery exception "since the warrant ... was already being prepared and would have led to the discovery of the evidence ... even if the prior entry was unlawful." 222 Va. at 140 n. 2, 278 S.E.2d at 845 n. 2. (emphasis added).

2023See Hasan, 276 Va. at 681 ; see also Baker v. Commonwealth, 57 Va. App. 181, 195-96 (2010) (applying the Supreme Court’s reasoning in Hasan to a case involving a motion to suppress evidence obtained from an unlawful search and thereby refusing to apply the inevitable discovery doctrine). - 15 - In contrast, the Commonwealth insists that, although Officer Astin found a bottle showing a prescription for Percocet, Officer Astin was unable to read the faded prescription label so as to confirm “that Nottingham was validly prescribed Percocet.” The record on appeal, however, suggests that Officer As

2010In fact, the Virginia Supreme Court specifically rejected an application of the inevitable discovery doctrine in a similar case, Hasan v. Commonwealth, 276 Va. 674 , 667 S.E.2d 568 (2008).

2026Id. at 765 (quoting Nix v. Williams, 467 U.S. 431 , 444 n.5 (1984)). - 15 - Commonwealth v. Peterson, 15 Va. App. 486, 487 (1992).

2026Although he acknowledges that Nix “involved facts similar to this case, [as] the suspect directed the police to a specific piece of evidence[,]” he contends that “[t]he 7 “Our review includes ‘evidence adduced both at the trial and the suppression hearing.’” Carlson, 69 Va. App. at 758 (quoting Greene v. Commonwealth, 17 Va. App. 606, 608 (1994)).

2023The inevitable discovery doctrine permits “the admission of evidence that would have been discovered even without the unconstitutional source.” Utah v. Strieff, 579 U.S. 232, 238 (2016).

2023The inevitable discovery doctrine permits “the admission of evidence that would have been discovered even without the unconstitutional source.” Utah v. Strieff, 579 U.S. 232, 238 (2016).

2023The Fifth Amendment public safety exception is a narrow exception to the Miranda rule that applies when the “need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.” Anderson v. Commonwealth, 279 Va. 85 , 91 (2010) (quoting New York v. Quarles, 467 U.S. 649, 657 (1984)).

2022“It is well established that ‘[t]he inclusion of tainted evidence [in an affidavit] does not invalidate a search warrant.’” Williams v. Commonwealth, 26 Va. App. 612, 619 (1998) (quoting United States v. Wright, 991 F.2d 1182, 1186 (4th Cir. 1993)). “[S]uppression is not required ‘if, excluding the illegally obtained information, probable cause for the issuance of the warrant could still be found.’” Id. (quoting United States v. Apple, 915 F.2d 899, 910 (4th Cir. 1990)).4 4 There are alternative theories under which this case could be viewed and analyzed.

2022See Walls v. Commonwealth, 2 11 See United States v. Jackson, 596 F.3d 236, 241 (5th Cir. 2010); United States v. Thomas, 524 F.3d 855, 858 (8th Cir. 2008). 12 The Eighth Circuit case cited by the majority, United States v. Smith, 21 F.4th 510 (8th Cir. 2021), traces the “reasonable probability” standard to United States v. Conner, 127 F.3d 663, 667 (8th Cir. 1997).

2022“If evidence were admitted notwithstanding the officers’ unexcused failure to obtain a warrant, simply because probable cause existed, then there would never be any reason for officers to seek a warrant.” Id. at 842 (quoting United States v. Mejia, 69 F.3d 309, 320 (9th Cir. 1995)).

2022“Exclusion of evidence is a last resort rather than first impulse.” Id. (citing Hudson v. Michigan, 547 U.S. 586, 591 (2006)). -6- The inevitable discovery doctrine is an exception to the exclusionary rule and allows “evidence obtained by unlawful means [to be admitted] if that evidence or information ‘ultimately or inevitably would have been discovered by lawful means.’” Id. at 763 (quoting Commonwealth v. Jones, 267 Va. 532, 536 (2004)).

2022“Exclusion of evidence is a last resort rather than first impulse.” Id. (citing Hudson v. Michigan, 547 U.S. 586, 591 (2006)). -6- The inevitable discovery doctrine is an exception to the exclusionary rule and allows “evidence obtained by unlawful means [to be admitted] if that evidence or information ‘ultimately or inevitably would have been discovered by lawful means.’” Id. at 763 (quoting Commonwealth v. Jones, 267 Va. 532, 536 (2004)).

2022“It is well established that ‘[t]he inclusion of tainted evidence [in an affidavit] does not invalidate a search warrant.’” Williams v. Commonwealth, 26 Va. App. 612, 619 (1998) (quoting United States v. Wright, 991 F.2d 1182, 1186 (4th Cir. 1993)). “[S]uppression is not required ‘if, excluding the illegally obtained information, probable cause for the issuance of the warrant could still be found.’” Id. (quoting United States v. Apple, 915 F.2d 899, 910 (4th Cir. 1990)).4 4 There are alternative theories under which this case could be viewed and analyzed.

2022“It is well established that ‘[t]he inclusion of tainted evidence [in an affidavit] does not invalidate a search warrant.’” Williams v. Commonwealth, 26 Va. App. 612, 619 (1998) (quoting United States v. Wright, 991 F.2d 1182, 1186 (4th Cir. 1993)). “[S]uppression is not required ‘if, excluding the illegally obtained information, probable cause for the issuance of the warrant could still be found.’” Id. (quoting United States v. Apple, 915 F.2d 899, 910 (4th Cir. 1990)).4 4 There are alternative theories under which this case could be viewed and analyzed.

2022See Walls v. Commonwealth, 2 11 See United States v. Jackson, 596 F.3d 236, 241 (5th Cir. 2010); United States v. Thomas, 524 F.3d 855, 858 (8th Cir. 2008). 12 The Eighth Circuit case cited by the majority, United States v. Smith, 21 F.4th 510 (8th Cir. 2021), traces the “reasonable probability” standard to United States v. Conner, 127 F.3d 663, 667 (8th Cir. 1997).

2022See, e.g., United States v. Almeida, 434 F.3d 25, 29 (1st Cir. 2006) (noting that “the government must demonstrate, to a high degree of -7- probability, that the evidence would have been discovered”); United States v. Heath, 455 F.3d 52, 55 (2d Cir. 2006) (rejecting the “reasonable probability” framework and finding that “the inevitable discovery doctrine is available only where there is a high level of confidence that each of the contingencies required for the discovery of the disputed evidence would in fact have occurred”); United States v. Watkins, 10 F.4th 1179, 1182 (11th Cir. 2021) (find