State v. Mastella L. Jackson , 369 Wis. 2d 673 ( 2016 )

2016 WI 56
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2238-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant,
v.
Mastella L. Jackson,
Defendant-Respondent-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 363 Wis. 2d 554, 866 N.W.2d 768)
(Ct. App. 2015 – Published)
PDC No.: 215 WI App 49
OPINION FILED: July 1, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 25, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Outagamie
JUDGE: Mark J. McGinnis
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J. and BRADLEY, A. W., J. dissent
(Opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-respondent-petitioner there were briefs
by Andrew R. Hinkel, assistant state public defender. Oral
argument by Andrew R. Hinkel.
For the plaintiff-appellant the cause was briefed by
Jeffrey J. Kassel, assistant attorney general, with whom on the
brief was Brad D. Schimel, attorney general. Oral argument by
Luke N. Berg, deputy solicitor general.
2016 WI 56
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2238-CR
(L.C. No. 2012CF147)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant,
FILED
v.
JUL 1, 2016
Mastella L. Jackson,
Diane M. Fremgen
Defendant-Respondent-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 DAVID T. PROSSER, J. This is a review of a published
decision of the court of appeals reversing an order by the
Outagamie County Circuit Court suppressing physical evidence as
"fruit of the poisonous tree."1
¶2 The case arises out of a 2012 stabbing death at a
hotel in the Town of Grand Chute, west of Appleton. Police
suspected that Mastella Jackson (Jackson), the victim's wife,
1
State v. Jackson, 2015 WI App 49, 363 Wis. 2d 554, 866
N.W.2d 768.
No. 2014AP2238-CR
might have been involved in the death, so they brought her to
the Grand Chute Police Department and interrogated her for more
than six hours without giving her a Miranda warning. Jackson
made incriminating statements during the interrogation. At the
end of the interrogation, Jackson agreed to go with detectives
to her residence, where officers were already conducting a
search pursuant to a search warrant. There, she revealed the
location of the knife used in the stabbing and the bloody
clothing she was wearing when she left the hotel.
¶3 After the State charged Jackson with first-degree
intentional homicide, she moved to suppress all evidence
obtained in violation of her constitutional rights. The circuit
court excluded not only Jackson's statements but also the
physical evidence obtained from her house, which the circuit
court deemed fruit of the poisonous tree. The court of appeals
reversed as to the physical evidence, concluding that the State
had demonstrated that the officers searching the house would
inevitably have discovered the knife and clothing during their
search.
¶4 In Nix v. Williams, 467 U.S. 431 (1984), the Supreme
Court of the United States approved an inevitable discovery
exception to the exclusionary rule. This court has not applied
the inevitable discovery exception since State v. Weber, 163
Wis. 2d 116, 471 N.W.2d 187 (1991). Since Weber, however, the
court of appeals has decided a series of inevitable discovery
cases. See State v. Avery, 2011 WI App 124, 337 Wis. 2d 351,
804 N.W.2d 216; State v. Lopez, 207 Wis. 2d 413, 559 N.W.2d 264
2
No. 2014AP2238-CR
(Ct. App. 1996); State v. Schwegler, 170 Wis. 2d 487, 490
N.W.2d 292 (Ct. App. 1992).
¶5 Jackson now urges us to reassess the inevitable
discovery doctrine. She argues that the State should not be
able to rely on the doctrine to defeat exclusion where the
police intentionally engaged in the misconduct that provides the
basis for exclusion.
¶6 Accordingly, we must determine whether the inevitable
discovery exception to the exclusionary rule applies only when
the State proves the absence of bad faith by the officers who
committed the constitutional violation. Like the Supreme Court
of the United States, we conclude that the exception does not
include such a requirement. Furthermore, because in this case
we reexamine inevitable discovery for the first time since our
decision in Weber, we also review the doctrine's analytical
framework. We then apply the doctrine to the facts in this case
and conclude that the State has proven by a preponderance of the
evidence that officers inevitably would have discovered the
physical evidence in dispute. Consequently, we affirm the
decision of the court of appeals and remand to the circuit court
for further proceedings consistent with this opinion.
I. FACTUAL BACKGROUND
A. Murder at the Hotel
¶7 At about 1:25 in the afternoon on February 21, 2012,
officers from the Grand Chute Police Department were dispatched
to the Road Star Inn located west of Appleton. The officers
were advised that a male had been found in Room 114 lying face
3
No. 2014AP2238-CR
down and covered in blood. When officers entered Room 114, they
observed a bloody phone receiver detached from the phone near
the door. Large blood smears covered the far wall, beyond the
beds. Below the smears, officers found Derrick Whitlow lying
prone against the wall. He had already been pronounced dead by
paramedics. Whitlow had experienced significant injuries. An
autopsy performed the next day showed that he suffered
approximately 25 stab wounds. An eight-inch knife sheath
bearing the word "Winchester" lay on the floor next to his body.
¶8 An employee on the hotel's cleaning staff told
officers that she was doing the laundry in Room 111 between 1:00
and 1:30 p.m. She saw a person wearing a gray hooded sweatshirt
knock on the door to Room 114. Because the sweatshirt's hood
covered the visitor's head and face, the cleaning employee could
not tell whether the person was male or female. After someone
inside Room 114 let the person in, the employee heard a male
voice screaming for help. The employee also heard sounds that
she thought were a person being hit. She went to her manager to
get help, and she subsequently saw the person in the sweatshirt
leaving the hotel.
¶9 Based on the cleaning employee's report, the hotel
manager entered Whitlow's room. He found Whitlow surrounded by
blood and immediately called 911. When the officers arrived,
the manager informed them that Whitlow had been staying at the
hotel for a few days and that Whitlow's ten-year-old son, S.J.,
was staying at the hotel with him. The manager also indicated
4
No. 2014AP2238-CR
to police that he understood Whitlow was having problems with
his wife.
¶10 A hotel guest staying in Room 115 provided additional
information to police about the afternoon's events. From his
room, he heard a female voice yelling. Thinking the voice was
that of the cleaning employee, he walked down the hallway to
investigate. After seeing the cleaning employee and realizing
that the yell came from someone else, he heard a loud scream
near Room 114, followed by a male voice yelling "help me, help
me." The guest then went to the manager's office to report the
incident. Aside from the guest's comment about hearing a female
voice yelling, neither the guest nor the manager nor the
cleaning employee identified the sex or race of the person in
the hooded sweatshirt.
B. Officers Contact Jackson and R.L.D.J.
¶11 Shortly after 2 p.m., detectives from the Grand Chute
Police Department began investigating the whereabouts of the
child alleged to be staying with Whitlow. Unsure whether they
might be dealing with a missing child case, the detectives
attempted to locate Jackson, whom they believed to be the
child's mother. They had received information indicating that
Jackson resided at an address on Fourth Street in Appleton and
that they might also find her at Harbor House.2 The detectives
2
Harbor House states its mission as "lead[ing] a community-
wide partnership in the prevention of domestic violence and
abuse, and to offer safety and support to diverse families in
crisis." History
of Harbor House, Harbor House, http://www.harborhouseonline.org/
(continued)
5
No. 2014AP2238-CR
first went to Harbor House; there, they learned that Jackson had
stayed overnight but left around 11 a.m.
¶12 Around 2:30 p.m., officers informed the detectives
that a secretary at a local elementary school had confirmed S.J.
was present at school but his older brother, 11-year-old
R.L.D.J., was absent. R.L.D.J.'s whereabouts remained
undetermined as the detectives proceeded from Harbor House to
the Fourth Street address. They arrived between 2:30 and 3:00
p.m. Outside the residence, the detectives met with an officer
from the Appleton Police Department who said he had not seen any
people coming or going from the house. Officers remained at the
Fourth Street location to observe the premises, and the
detectives left to investigate another address associated with
Jackson.
¶13 An officer arriving at the Fourth Street residence
around 3:55 p.m. noticed the door to the residence begin to
open. A man emerged from inside. The officer introduced
himself to the man, who was working on the door's lock and
identified himself as the building's landlord. He told the
officer that Jackson had asked him to change her locks and that
she was currently present in the house. Because the door
remained ajar as the landlord worked, the officer observed
Jackson and R.L.D.J. through the partially open door. Upon
history.html (last visited June 23, 2016). Harbor House's
shelter program provides a safe space and emergency
transportation for victims of domestic violence in the Appleton
area.
6
No. 2014AP2238-CR
seeing Jackson, the officer asked her to come to the door to
speak with him outside. The detectives, returning to the Fourth
Street residence shortly after 4 p.m., joined the officer at the
door. Jackson gave the detectives consent to search the
residence to determine whether there were other people inside,
and their search confirmed that R.L.D.J. was present and safe.
¶14 Following the search, the detectives spoke briefly
with Jackson outside before asking her to come with them to the
Grand Chute Police Department. The officers patted her down and
then drove her to the police department in the back seat of a
squad car. In a separate car, officers also brought R.L.D.J. to
the department. Jackson and R.L.D.J. left the residence with
officers around 4:30 in the afternoon.3
C. R.L.D.J.'s Interview
¶15 Officers began interviewing R.L.D.J. around 5:30 p.m.,
approximately an hour after he arrived at the department. An
initial interview with R.L.D.J. lasted between 60 and 90
minutes, after which he and S.J. ate dinner together at the
police station. A second interview ensued between 8 and 9 p.m.
following a 60- to 90-minute dinner break.
¶16 During the second interview, officers informed
R.L.D.J. about his father's death and pressed him for answers
regarding his mother's whereabouts during the afternoon.
R.L.D.J. emphatically denied repeated suggestions that he went
3
Separately, an officer brought S.J. from his school to the
police department between approximately 4:00 and 4:15 p.m.
7
No. 2014AP2238-CR
to the Road Star Inn that day. When R.L.D.J. asked whether his
mother would go to jail, officers told him that she would not.
Over and over, the officers asked R.L.D.J. to tell them the
truth and to "do the right thing" to help his father.
¶17 Eventually, R.L.D.J. began providing information about
the afternoon. He acknowledged that his mother left the
residence for 10 to 20 minutes at some point during the
afternoon while he played video games. According to R.L.D.J.,
his mother was angry with Whitlow because she discovered he had
thrown away family photographs and other mementos. Still
playing video games when his mother returned home, R.L.D.J.
heard the sound of a zipper and heard his mother take a shower
immediately upon her arrival. R.L.D.J. further indicated that
his mother wore different clothes after her shower than she had
worn earlier in the day. He also disclosed that Jackson
instructed him not to tell anyone that she had left the
residence that afternoon.
D. Jackson's Interrogation
¶18 Jackson waited alone for nearly two hours in a
separate room before detectives began questioning her at
6:24 p.m. One of the detectives opened the questioning by
telling Jackson that she was not under arrest, saying, "You
know, you're not under arrest or, you know, you're free to go,
you know." When Jackson asked for clarification, the detective
explained, "We just want to talk to you about some stuff that's
going on. We're investigating a couple things, OK, but like I
said you're not under arrest or anything like that. We just
8
No. 2014AP2238-CR
want to talk to you and get some information to help us out,
OK?"
¶19 The detectives began by questioning Jackson about the
hours leading up to Whitlow's death. Jackson explained that she
had taken R.L.D.J. to spend the night at Harbor House after
hearing noises outside their residence. She mentioned that she
had neither slept nor eaten much in recent days.
¶20 Gradually, the questioning transitioned to Jackson's
relationship with Whitlow. In response to the detectives'
questions about the effect that stress had recently had upon her
appetite and sleep, Jackson told them, "[M]y um husband, we've
just been havin issues, um in a sense . . . ." She claimed that
she had experienced psychological mistreatment at his hands.
When the detectives asked whether "anything . . . happened in
the last few days that has made this worse," she explained he
had been with her at the house until four days before his death
"cuz [she] was taking care of him" while his broken leg healed.4
After the two of them got into an argument, however, he asked
her to take him to the Appleton police station, and he
eventually rented a room at the Road Star Inn. Because of
Whitlow's broken leg, S.J. went to stay at the hotel to help his
father.
4
A few weeks before Whitlow's death, a vehicle operated by
Jackson struck Whitlow, who suffered a broken leg as a result.
Although officers from the Appleton Police Department were aware
of this previous incident on the day of Whitlow's death, the
affidavit in support of the search warrant for Jackson's
residence made no mention of it.
9
No. 2014AP2238-CR
¶21 Around 6:54 p.m., the conversation moved back to
Jackson's activities after leaving Harbor House. Jackson told
the detectives that she had gone to the hospital for a medical
appointment but decided not to go inside because she arrived
late and expected that the doctor would be unable to see her.
Although she indicated that after going to the hospital she
returned home and did not leave again, the detectives pressed
her for more information about her afternoon. As the detectives
asked whether she was "sure" that she had not left the house
again until officers arrived to speak with her, she responded,
No, I, I mean I, like, the question that [you're] all
asking to me, I'm like, I guess I'm still just
exhausted from not having sleep and haven't eaten and
I'm sitting here and I want a ciggy and that's the
last, that the thing that's really bothering me the
most like I really want a cigarette and my stomach is
starting to hurt, well it's been hurting but it's
getting worser, and I'm talking to y'all and it's
like, ahh, I just, I don't know, can I, can we do this
another time?
(Emphasis added.) Shortly thereafter, she left the room at 7:04
accompanied by the detectives for a cigarette break.
¶22 Jackson returned from the break at 7:12 p.m., and she
began conversing with the detectives again at 7:22 p.m. Video
of the interrogation shows her sitting in her chair, doubled
over in apparent pain while clutching her stomach as she waited
for the detectives to return. When the detectives entered the
room, they asked whether Jackson needed assistance for her
obvious pain and discomfort. Jackson's response generated the
following exchange:
10
No. 2014AP2238-CR
[Jackson]: Yeah, I'm be fine, I'm just ready to
go, I'm sleepy. Can I leave and we do this another
time[?]
[Detective Brad Kuehl]: Give me just one second,
OK, just give me one second and I'll be right back
with you.
[Jackson]: OK[.]
(7:23 p.m.) ([Det. Kuehl] leaves the room)
[Jackson]: I'm still thirsty I want some water
but it's gonna hurt[.]
(7:23:51 p.m.) ([Det. Kuehl] re-enters the room)
[Det. Kuehl]: I just got a couple things I want
to ask you real quick and then we'll try and get you
on your way here, OK?
[Det. Kuehl]: Today when you were, when you left
the Harbor House, is there anything else you can
remember about anything else that you might have
done[?]
[Jackson]: My tummy, I can't do this right now,
my stomach hurts, nothing else was done.
(Emphasis added.) After the detectives discussed acquiring
medication for Jackson from her residence, another exchange
occurred:
[Det. Kuehl]: I know you're, I you're kind of
having some kind of stomach pains. We're gonna try
and get you some . . .
[Jackson]: Can I go home right now, please, I
don't want to talk[.]
[Detective Scott Callaway enters the room]
[Det. Callaway]: Do you know where your purse
[with the medication] is in the house[?]
[Jackson]: Yeah it's on my bed, can I go with
you, can I just go home or do I have to stay[?]
11
No. 2014AP2238-CR
[Det. Callaway]: Let me just make a phone call
quick and I'll get right back to you[.]
[Jackson]: OK, OK.
(Emphasis added; ellipsis in original.) This exchange occurred
at 7:25 p.m.
¶23 The questioning continued for a few more minutes until
just after 7:30 p.m., when the detectives left the interrogation
room with Jackson. They took her back to her residence, where
she ingested prescription medication for her pain. On the way
back to the police department, they stopped at a Burger King to
pick up food for her. Just after 8:15 p.m., Jackson returned to
the interview room at the police department, and one of the
detectives resumed questioning at approximately 8:30 p.m.
¶24 Around 9:20 p.m., Jackson admitted being at the hotel
in the afternoon and began describing the details of her
interaction with Whitlow. She said that Whitlow "came at [her]"
when she entered the room. Although she admitted that a
confrontation occurred, she expressed an inability to recall the
exact nature of what had happened. When the detective asked
about a knife, she conceded that she "may have" had one with
her. Jackson requested and was allowed to take additional
medication around 9:37 p.m.
¶25 Over the succeeding hours, Jackson slowly gave the
detectives more incriminating information about the events at
the hotel. Shortly after 10 p.m., she described a physical
altercation with Whitlow and her efforts to get him off her.
She also confirmed that she took a shower and changed clothes
12
No. 2014AP2238-CR
upon returning home. Throughout the 10 o'clock hour, a
detective insisted that she provide him with details about the
events at the hotel. At 11:09 p.m., she responded to a question
about a knife, saying,
I don't . . . will you just do me a favor and tell my
kids that I truly do love them and I'm sure they know
that, but just tell them again, I truly do love them
and I'm done. Cause I don't, I don't want to talk no
more, I don't want to say anything, cause I don't, I
just whatever's gonna happen, gonna happen and I don't
wanna see kids, I don't, I can't, cause I don't wanna
force myself to think about things.
(Emphasis added; ellipsis in original.) Jackson repeatedly
stated that she did not want to think about the events at the
hotel, that doing so would "torture" her. As she phrased it at
11:17 p.m., "[T]o know that I'm the reason he not
here. . . . No thank you, I'd rather not think about it."
¶26 At 11:20 p.m., a detective began reviewing medical
consent forms for R.L.D.J. and S.J. with Jackson and asked her
to sign them. At 11:45 p.m., detectives read her a search
warrant5 and explained that they would extract blood and
fingernail samples from her and that they would also take
pictures of bruising on her body. At 12:17 a.m., a detective
5
Officers obtained separate warrants to search Jackson's
home and to search her person.
13
No. 2014AP2238-CR
told her she would be charged with first-degree reckless
homicide.6
¶27 Finally, at 12:39 a.m., a detective read a Miranda
warning advising Jackson of her constitutional rights. When
Jackson, thinking the detective had already advised her of her
rights, asked for clarification about the charge she faced, the
detective responded:
Can I, can I read this to you first because I
technically can't get into a lot of stuff without
until I advise you of these and you decide whether or
not you want to talk to me anymore, OK because I can't
violate your rights, do you know what I mean? So can
I read this to you and then you decide whether or not
you want to talk to me because I can't really get into
any in depth conversation with you until you either
tell me yes or no that you're willing to talk to me.
So let me read this to you and then you decide what
you want to answer and we'll go from there and then
anything I can answer for you I'll answer, presuming
you want to talk to me. Sound fair?
(Emphasis added.) The detective read a waiver-of-rights form to
her and then explained each of her rights in detail. To
conclude the explanation, the detective said, "So say you decide
to start talking to me but at some point you decide you don't
want to talk to me, you can just tell me you don't want to talk
to me anymore." Jackson's first response to hearing that
example was to begin asking, "So earlier, when you, when you
wouldn't let me leave . . . ," then the detective cut her off.
6
The detective misstated the expected charge at 12:17 a.m.
When giving Jackson the Miranda warning at 12:39 a.m., the
detective correctly told her that she faced a charge for
"[f]irst degree intentional homicide."
14
No. 2014AP2238-CR
Ultimately, Jackson continued talking with the detectives at the
department until 2:01 a.m. on February 22.
E. Officers Obtain a Warrant and Search Jackson's Residence
¶28 Around 6 p.m., an officer began preparing a warrant to
search Jackson's residence. The affidavit that accompanied the
warrant included information from officers responding to the
hotel, from R.L.D.J.'s interview with officers, and, in a
concluding paragraph, from Jackson's interrogation. A judge
signed the warrant at 11:32 p.m.
¶29 Officers arrived at Jackson's residence after midnight
to conduct the search and began searching around 12:50 a.m. At
least six officers were present. Four officers began searching
the basement, while others searched upstairs. From the
beginning, officers planned to search the entire house, followed
by the garage. The officers later testified that, because of
the serious nature of the crime, they intended "to be very
thorough" and "to search everywhere and anywhere that [they]
could search looking for relevant items."
¶30 Officers further testified that they searched in a
systematic and "[e]xtremely thorough" manner, carefully sorting
through boxes, bags, and drawers in each room. They explained
that the search was "time consuming" and "took quite a while"
because "[t]here was a lot of stuff in the house," particularly
a bedroom closet filled with large garbage bags packed with
various items. Because the garage contained numerous boxes and
bins, the officers expected that searching the garage would
require a significant amount of time as well.
15
No. 2014AP2238-CR
¶31 During the search, an officer in the basement received
information from the detectives interrogating Jackson that a
knife and bloody clothing might be in a garbage container in the
garage. The officer took a break from searching the basement
and went to the garage, where he searched a garbage container
inside the main door and another outside the door. Unable to
find anything of evidentiary value in those containers, the
officer went back inside "to finish the searching of the
basement to keep everything systematic and as thorough as
possible."
¶32 At approximately 2:15 a.m., detectives brought Jackson
from the police department to her residence. Before officers
finished their methodical search of the premises, Jackson showed
them a garbage can in the garage containing the knife and the
clothing she wore at the hotel.
II. PROCEDURAL HISTORY
¶33 On February 23, 2012, the State filed a criminal
complaint against Jackson in Outagamie County Circuit Court.
The complaint charged Jackson with one count of first-degree
intentional homicide, domestic abuse, contrary to Wis. Stat.
§§ 940.01(1)(a), 939.50(3)(a), and 968.075(1)(a), and one count
of misdemeanor bail jumping, contrary to Wis. Stat.
§§ 959.49(1)(a) and 939.51(3)(a).
¶34 Jackson filed a motion to suppress all statements that
she made to the officers and all physical evidence derived from
those statements. She argued that her statements were
involuntary and that law enforcement officers violated her
16
No. 2014AP2238-CR
constitutional rights by taking her statements at the police
department without reading Miranda warnings to her. Because
officers procured the warrant to search her home based in part
on the statements obtained in violation of her constitutional
rights, she argued that any physical evidence at her residence——
particularly the knife and the clothing——was inadmissible fruit
of the poisonous tree.
¶35 At a series of hearings, the Outagamie County Circuit
Court7 developed an extensive record as it considered Jackson's
suppression motion. The court heard testimony about the
investigation from several officers and detectives, who provided
detailed accounts of Jackson's interrogation and the search of
her home. Jackson presented testimony from a toxicologist and a
psychologist, who testified about Jackson's state of mind during
the interrogation and the effects of medication she was taking
at the time. Additionally, the court reviewed video and a
transcript of Jackson's interrogation, as well as an audio
recording of the interview with R.L.D.J.
¶36 In a comprehensive ruling from the bench on June 16,
2014, the circuit court ordered suppression of most of Jackson's
statements, as well as suppression of the physical evidence
obtained from her residence in the early morning hours on
February 22, 2012. Specifically, the court found that Jackson
was in custody for Miranda purposes at 7:25 p.m. The court
7
Mark J. McGinnis, Judge.
17
No. 2014AP2238-CR
leveled substantial criticism at the officers and detectives
carrying out the investigation:
There's been some variation of the officers'
testimony that at that point in time [during her
interrogation] Ms. Jackson was free to leave. I find
that incredible. I find it difficult to believe, and
I'm somewhat offended by officers who come into court,
raise their hand to testify, and try to suggest that
in a murder case where they put somebody in the back
seat of the squad car and they take them to the police
station and asking that they can leave and they're not
answering her questions on that issue, that she was
truly free to leave. It reduces their credibility in
my eyes in the overall grand scheme of
things. . . . [T]he officers' insistence on a theory
and trying to maintain the standard that said at that
point in time she could get up and walk out is just
incredible. . . .
. . . .
. . . I'll never forget how appalled I was and
how upsetting it was that this stuff happens in
today's world. . . . I've never seen a case, been
part of a case, or heard of a case that's worse than
this in terms of what the police officers did in that
interrogation room. . . . [T]his is just a clear
violation of somebody's rights over a long period of
time involving many different officers with lots of
opportunities to have one of them step up and say,
hey, this is not the way we need to do this.
. . . .
. . . [T]his is textbook interrogation of what
not to do if you want to be doing good police work and
get stuff admitted in during a hearing.
. . . [T]hese violations in my opinion were done
intentionally, they were done flagrantly, they were
done recklessly; and they were done without any
concerns involving Ms. Jackson's rights, her
constitutional rights, her statutory rights, and it
was done in an effort to get something out of her
18
No. 2014AP2238-CR
before those rights were read, and that's exactly what
happened eventually.
¶37 Based on its finding that Jackson was in custody
beginning at 7:25 p.m., the court suppressed all statements that
Jackson made from that time until she received a Miranda warning
at 12:39 a.m. Relying on Missouri v. Seibert, 542 U.S. 600
(2004), the court further suppressed all statements Jackson made
after receiving the Miranda warnings, "includ[ing statements
made during] the time when she was taken back to her home and
pointed out to the officers where they would find both the
weapon and the clothing associated with this case." In
addition, the court concluded that Jackson's statements were
involuntary.
¶38 Although the court expressed additional "concern[]
about things that were done and said during th[e] interview"
with R.L.D.J., the court declined to suppress any of R.L.D.J.'s
statements. The court noted that "there was nothing that Ms.
Jackson [said] that was then used to get [R.L.D.J.] to talk."
¶39 However, the court did suppress the physical evidence
of the knife and the clothing as illegal fruit of the poisonous
tree. After striking Jackson's suppressed statements from the
search warrant affidavit, the court concluded that the evidence
from the hotel and R.L.D.J.'s statements did not create probable
cause for a court to issue the warrant. The court further
determined that "even if the warrant had probable cause," the
State had not proven that the officers conducting the search
inevitably would have discovered the knife and clothing that
19
No. 2014AP2238-CR
Jackson ultimately revealed. Emphasizing the deterrent purpose
of the exclusionary rule, the court reasoned that "when officers
are simply looking for evidence of the crime, it's not good
policy to . . . provide them the benefit of the doubt when they
violate somebody's constitutional rights."
¶40 On appeal, the State did not challenge suppression of
Jackson's statements but did seek reversal of the circuit
court's decision suppressing the physical evidence. The State
argued that the untainted portions of the search warrant
affidavit established probable cause to search Jackson's
residence and that the officers conducting the search inevitably
would have discovered the knife and clothing in Jackson's
garage.
¶41 The court of appeals agreed with the State and
reversed the circuit court's decision with respect to the knife
and clothing. State v. Jackson, 2015 WI App 49, 363
Wis. 2d 554, 866 N.W.2d 768. In its penetrating analysis, the
court of appeals first examined the search warrant affidavit and
excised all facts derived from Jackson's suppressed statements.
Id., ¶¶17-18. Based on the remaining evidence from the hotel
and from R.L.D.J., the court of appeals determined that the
affidavit still "provided a substantial basis to conclude there
was a fair probability a search of Jackson's residence would
uncover evidence of wrongdoing." Id., ¶¶19-20 (citing State v.
Romero, 2009 WI 32, ¶3, 317 Wis. 2d 12, 765 N.W.2d 756).
¶42 Given that the officers conducted the search pursuant
to a valid warrant, the court of appeals next concluded that the
20
No. 2014AP2238-CR
officers inevitably would have discovered the knife and
clothing. Id., ¶¶22, 43. Applying a framework set forth in its
previous cases, the court of appeals conducted a three-pronged
analysis for the inevitable discovery exception to the
exclusionary rule:
To establish that the evidence would have been
inevitably discovered, the State must demonstrate, by
a preponderance of the evidence, that: (1) there is a
reasonable probability the evidence in question would
have been discovered by lawful means but for the
police misconduct; (2) the leads making the discovery
inevitable were possessed by the government at the
time of the misconduct; and (3) prior to the unlawful
search the government also was actively pursuing some
alternative line of investigation.
Id., ¶23 (citing State v. Avery, 2011 WI App 124, ¶29, 337
Wis. 2d 351, 804 N.W.2d 216). The court concluded that the
State met the first prong because officers "intended to conduct
a thorough and methodical search of Jackson's house and garage
that would have entailed examining every container or
compartment that might have contained evidence of the crime."
Id., ¶¶25-32. Jackson did not dispute the State's argument that
it met the second prong——that it had leads making the discovery
inevitable——so the court deemed the point conceded. Id., ¶35.
Finally, the court concluded that by actually "conducting a
thorough and methodical search of [Jackson's] residence pursuant
to a valid warrant," the officers met the third prong's
requirement of active pursuit of another line of inquiry. Id.,
¶39.
21
 No. 2014AP2238-CR
¶43 Additionally, the court of appeals rejected Jackson's
argument that the inevitable discovery doctrine should not apply
in cases involving intentional constitutional violations. Id.,
¶¶43, 48. Jackson relied on this court's decision in State v.
Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899, suppressing
physical evidence obtained as a direct result of an intentional
Miranda violation. Jackson, 363 Wis. 2d 554, ¶43. The court of
appeals distinguished Knapp, observing that no evidence in that
case indicated that officers had alternative means to discover
the physical evidence. Id., ¶45. Suppression, moreover, would
place the State "in a worse position than it would have been in
absent the Miranda violation" because the officers would have
obtained a warrant even without the unconstitutional
interrogation. Id., ¶47.
¶44 Jackson filed a petition for review on June 18, 2015,
which this court granted on October 8, 2015.
III. STANDARD OF REVIEW
¶45 Application of constitutional principles in a
particular case presents a question of constitutional fact.
State v. Dearborn, 2010 WI 84, ¶13, 327 Wis. 2d 252, 786
N.W.2d 97 (citing State v. Pallone, 2000 WI 77, ¶26, 236
Wis. 2d 162, 613 N.W.2d 568). This court accepts the circuit
court's findings of fact unless they are clearly erroneous, but
application of constitutional principles to those facts is a
question of law that this court reviews de novo. Id. (citing
Pallone, 236 Wis. 2d 162, ¶27).
IV. DISCUSSION
22
No. 2014AP2238-CR
¶46 Exclusion is a judicial remedy that can apply when the
government obtains evidence as a result of a constitutional
violation. See Dearborn, 327 Wis. 2d 252, ¶15 (citing State v.
Eason, 2001 WI 98, ¶¶39-45, 245 Wis. 2d 206, 629 N.W.2d 625).
"The exclusionary rule . . . may apply to deter violations of
the Fourth Amendment, Fifth Amendment, or Sixth Amendment."
State v. Scull, 2015 WI 22, ¶64, 361 Wis. 2d 288, 862 N.W.2d 562
(Ziegler, J., concurring) (footnotes omitted); id., ¶¶64-65
(citing examples under each Amendment from cases in the
Wisconsin and United States Supreme Courts). However, exclusion
is not an absolute, automatic remedy. Dearborn, 327
Wis. 2d 252, ¶35 (first citing Herring v. United States, 555
U.S. 135, 140-42 (2009); then citing Arizona v. Evans, 514 U.S.
1, 10-11 (1995)). Courts exclude evidence only when the
benefits of deterring police misconduct "outweigh the
substantial costs to the truth-seeking and law enforcement
objectives of the criminal justice system." Id., ¶38.
¶47 The Supreme Court approved the inevitable discovery
exception to the exclusionary rule in Nix v. Williams, 467 U.S.
431 (1984). Under the inevitable discovery doctrine, "evidence
obtained during a search which is tainted by some illegal act
may be admissible if the tainted evidence would have been
inevitably discovered by lawful means." State v. Lopez, 207
Wis. 2d 413, 427, 559 N.W.2d 264 (Ct. App. 1996) (citing State
v. Schwegler, 170 Wis. 2d 487, 499, 490 N.W.2d 292 (Ct. App.
1992)); see also 6 Wayne R. LaFave, Search and Seizure
§ 11.4(a), at 339 (5th ed. 2012) ("[T]he question is not whether
23
No. 2014AP2238-CR
the police did in fact acquire certain evidence by reliance upon
an untainted source but instead whether evidence found because
of a Fourth Amendment violation would inevitably have been
discovered lawfully." (footnote omitted)).
¶48 Although the court of appeals has decided multiple
inevitable discovery cases, see, e.g., Avery, 337 Wis. 2d 351;
Lopez, 207 Wis. 2d 413; Schwegler, 170 Wis. 2d 487, this court
has not conducted a comprehensive examination of the doctrine
since the Supreme Court decided Nix. The present case affords
us an opportunity to evaluate the conditions that must exist for
the State to demonstrate that it inevitably would have
discovered evidence despite the fact that officers actually
obtained the evidence as a result of a constitutional violation.
Accordingly, we begin our analysis by examining the development
and purposes of the doctrine.
A. The Inevitable Discovery Doctrine
1. Nix v. Williams
¶49 Nix involved a suspect, Williams, who surrendered to
authorities in Davenport, Iowa, after allegedly abducting and
murdering a young girl in Des Moines. Nix, 467 U.S. at 434-35.
Two Des Moines detectives drove to Davenport to transport
Williams back to Des Moines. Id. at 435. Counsel was not
permitted to accompany Williams during his ride in the back seat
of the detectives' car, but the detectives informed Williams's
attorney that they would not question the suspect during the
drive. Id. Nonetheless, as they drove, one of the detectives
made comments encouraging Williams to reveal the location of the
24
No. 2014AP2238-CR
victim's unrecovered remains. Id. at 435-36. The detective
insinuated that the little girl deserved a prompt "Christian
burial" before an approaching winter storm made it impossible
for searchers to find her body. Id. Eventually, the suspect
agreed to lead officers to the body, which they found "next to a
culvert in a ditch beside a gravel road"——"essentially within
[an] area to be searched" by a nearby search party independently
looking for the missing child. Id. at 436.
¶50 The Williams prosecution led to two trials, two
appeals to the Supreme Court of Iowa, two collateral attacks in
federal court, and two decisions from the Supreme Court of the
United States. See Brewer v. Williams, 430 U.S. 387 (1977);
Nix, 467 U.S. 431. After the second trial and appeal, the
Eighth Circuit determined that Iowa authorities had erred by
failing to suppress evidence of the little girl's body.8 The
Supreme Court reversed. In an opinion by Chief Justice Burger,
the Court discussed both the purpose of the exclusionary rule
and the independent source doctrine, which allows "admission of
evidence that has been discovered by means wholly independent of
any constitutional violation." Nix, 467 U.S. at 443.
¶51 The purpose of the exclusionary rule, the Court said,
is to prevent the prosecution from being "put in a better
position than it would have been in if no illegality had
transpired." Id. However, it does not follow that the
8
Will. v. Nix, 700 F.2d 1164 (8th Cir. 1983).
25
No. 2014AP2238-CR
exclusionary rule should put the prosecution "in a worse
position simply because of some earlier police error or
misconduct." Id. The independent source doctrine allows
evidence "wholly independent of any constitutional violation" to
be admitted.
¶52 The inevitable discovery doctrine is not the same as
the independent source doctrine, the Court explained, but it is
"closely related" because evidence that inevitably will be
discovered is like evidence from an independent source. "There
is a functional similarity between these two doctrines in that
exclusion of evidence that would inevitably have been discovered
would also put the government in a worse position, because the
police would have obtained the evidence if no misconduct had
taken place." Id. at 443-44. Thus, the rationale of the
independent source doctrine "is wholly consistent with and
justifies . . . adoption of the ultimate or inevitable discovery
exception to the exclusionary rule." Id. at 444.
¶53 Emphasizing the deterrence rationale underlying the
exclusionary rule, the Court phrased its test for inevitable
discovery as follows: "If the prosecution can establish by a
preponderance of the evidence that the information ultimately or
inevitably would have been discovered by lawful means . . . then
the deterrence rationale has so little basis that the evidence
should be received." Id.
¶54 To support its use of a "preponderance of the
evidence" standard, the Court relied on its previous
determination that "the controlling burden of proof at
26
No. 2014AP2238-CR
suppression hearings should impose no greater burden than proof
by a preponderance of the evidence." Id. at 444 n.5 (quoting
United States v. Matlock, 415 U.S. 164, 178 n.14 (1974)). The
Court added that it was "unwilling to impose added burdens on
the already difficult task of proving guilt in criminal cases by
enlarging the barriers to placing evidence of unquestioned truth
before juries." Id. In any case, proving that discovery of
evidence was truly inevitable "involves no speculative elements
but focuses on demonstrated historical facts capable of ready
verification or impeachment." Id. at 445 n.5 (emphasis added).
¶55 Further, the Court rejected any notion that the
government must prove the absence of bad faith by the police in
order to qualify for the inevitable discovery exception. Id. at
445. The Court emphasized the "enormous societal cost" that
flows from "plac[ing] courts in the position of withholding from
juries relevant and undoubted truth that would have been
available to police absent any unlawful activity." Id. Seeing
no merit in the argument that officers would deliberately
violate Sixth Amendment rights if the inevitable discovery
exception did not require proof of good faith, the Court
observed that an "officer who is faced with the opportunity to
obtain evidence illegally will rarely, if ever, be in a position
to calculate whether the evidence sought would inevitably be
discovered." Id. at 445-46. On the contrary, "[s]ignificant
disincentives" always discourage officers from engaging in
misconduct; officers might face not only suppression of
illegally obtained evidence but also "departmental discipline
27
No. 2014AP2238-CR
and civil liability" when they violate suspects' constitutional
rights. Id. at 446.
2. Inevitable Discovery in Wisconsin
a. Wisconsin Cases After Nix
¶56 This court first applied the Nix exception in State v.
Weber, 163 Wis. 2d 116, 471 N.W.2d 187 (1991), where a defendant
argued that police officers conducted an unreasonable search
when they listened to a cassette tape containing the defendant's
confession that they obtained while taking inventory of his
car's contents. Weber, 163 Wis. 2d at 121. Conducting a short
inevitable discovery analysis, this court began by stating that,
under Nix, "if it can be shown by a preponderance of the
evidence that the tape would have inevitably been discovered
absent any constitutional violation, the tape may be admitted
into evidence." Id. at 140-41 (first citing Nix, 467 U.S. 431;
then citing State v. Kennedy, 134 Wis. 2d 308, 318, 396
N.W.2d 765 (Ct. App. 1986)). The court then briefly recounted
various pertinent facts and concluded that, even assuming the
officers conducted an illegal search by playing the tape, the
facts demonstrated that the police "would inevitably have
obtained a warrant to play the tape" and discover its contents.
Id. Quoting from Nix, the court also reasoned that suppressing
the evidence would place the prosecution in a worse position
than it would have been in absent an illegal search. Id. at
142.
¶57 Notably, in Weber this court did not conduct an
extensive evaluation of Nix or of the reasoning underlying the
28
No. 2014AP2238-CR
Supreme Court's adoption of the inevitable discovery exception.
Since Weber, this court has periodically cited Nix, but we have
not expounded on the inevitable discovery exception and its
proper application in Wisconsin.
¶58 The court of appeals, however, has decided multiple
inevitable discovery cases since Nix. A few months after the
Supreme Court decided Nix, the court of appeals decided State v.
Washington, 120 Wis. 2d 654, 358 N.W.2d 304 (Ct. App. 1984). As
this court would later do in Weber, the Washington court used
the Nix Court's phrasing of the test for the exception, stated
relevant facts from the case, and then concluded that those
facts demonstrated sufficient inevitability of discovery for the
exception to apply. Washington, 120 Wis. 2d at 664-65
(determining that officers inevitably would have discovered
evidence in back seat of defendant's vehicle when officers
legally stopped the vehicle but illegally arrested defendant and
searched his person). Similarly, in Kennedy, the court of
appeals cited Washington when phrasing the doctrine as follows:
"[T]he fruits of an illegal search may be admitted if it can be
shown by a preponderance of the evidence that the tainted fruits
would have been inevitably discovered by lawful means."
Kennedy, 134 Wis. 2d at 317 (concluding that a vodka bottle
discovered in a vehicle would inevitably have been discovered
during an inventory search even though it was actually
discovered pursuant to a defective warrant). The court added:
"The defective search warrant does not compel exclusion of
evidence that would otherwise have been lawfully discovered and
29
No. 2014AP2238-CR
admissible in evidence. Individual rights are not controverted,
nor is the public served, by excluding such evidence." Id. at
318 (citing Washington, 120 Wis. 2d at 664-65). The opinion did
not cite Nix.
¶59 After this court applied Nix in Weber, the court of
appeals decided State v. Schwegler, 170 Wis. 2d 487, 490
N.W.2d 292 (Ct. App. 1992), which arose after a Waukesha County
humane officer inspected a licensed horse-breeding operation
when the owners were not present. Schwegler, 170 Wis. 2d at
492-93. A provision of the Waukesha County Code permitted
inspection of licensed premises "at any time" by county humane
officers. Id. at 492. The humane officer arrived at the
premises and found the door to the barn partially ajar. Id. at
493. She opened the door to conduct a routine inspection, as
she had before, and discovered evidence of abuse of the horses.
Id. The following day, she returned with law enforcement
officers, who seized the horses in the presence of the owners.
Id.
¶60 The court of appeals concluded that the warrantless
initial search of the barn was illegal and rejected the State's
argument that, despite the illegal search, the inevitable
discovery doctrine defeated suppression of evidence from the
barn. Although the court cited the language from Kennedy quoted
above, it established a new test for inevitable discovery:
To [prove inevitable discovery], the prosecution must
demonstrate: (1) a reasonable probability that the
evidence in question would have been discovered by
lawful means but for the police misconduct; (2) that
30
No. 2014AP2238-CR
the leads making discovery inevitable were possessed
by the government at the time of the misconduct; and
(3) that prior to the unlawful search the government
also was actively pursuing some alternate line of
investigation.
Id. at 500 (citing United States v. Cherry, 759 F.2d 1196, 1204
(5th Cir. 1985)). The court provided no explanation why it
chose to apply the Fifth Circuit's test for inevitable
discovery. Neither the State nor the Schweglers cited Cherry's
three-pronged test in their briefs to the court of appeals. The
State primarily relied upon Nix but cited Weber and Kennedy as
well, and the Schweglers discussed both Nix and Kennedy. The
court of appeals has applied Schwegler's three-pronged analysis
in subsequent inevitable discovery cases. Avery, 337
Wis. 2d 351, ¶29; Lopez, 207 Wis. 2d at 427-28.
b. The Active Pursuit Requirement
¶61 Because our decision in Weber is this court's only
precedent applying the inevitable discovery exception, we
examine the Fifth Circuit test adopted by the court of appeals
in Schwegler before determining whether the exception applies
under the facts of this case. The three-pronged Cherry analysis
derived from the Fifth Circuit's pre-Nix precedent. Cherry, 759
F.2d at 1204. Reasoning that in Nix "no attempt was
made . . . to define the contours" of the exception, the Cherry
court turned to "previous circuit case law, to the extent it
[was] consistent with the principles enunciated" in Nix. Id.
Based on its own decision in United States v. Brookins, 614 F.2d
1037 (5th Cir. 1980), the Fifth Circuit in Cherry concluded that
using the "three-prong" framework would be "fully consistent
31
No. 2014AP2238-CR
with Nix." Id. (citing Brookins, 614 F.2d at 1042 n.2). In
United States v. Satterfield, 743 F.2d 827 (11th Cir. 1984), the
Eleventh Circuit——which had adopted the Fifth Circuit's Brookins
rule in United States v. Roper, 681 F.2d 1354, 1358 (11th Cir.
1982)——similarly concluded that "Nix is not inconsistent with
the rule in this circuit that the police must possess and be
actively pursuing the lawful avenue of discovery when the
illegality occurred." Satterfield, 743 F.2d at 847.
¶62 Requiring the prosecution to prove active pursuit of
an alternative line of investigation under the third prong of
the Cherry test may apply the inevitable discovery exception
more strictly than the Supreme Court required in Nix:
While some courts have taken the position that the
inevitable discovery doctrine applies only where "the
government was actively pursuing a substantial,
alternative line of investigation at the time of the
constitutional violation," such an absolute limitation
is unsound, as it "allows for the exclusion of
evidence that inevitably would have been discovered."
6 LaFave § 11.4(a), at 365-68 (footnote omitted) (first quoting
United States v. Conner, 127 F.3d 663, 667 (8th Cir. 1997); then
quoting United States v. Thomas, 524 F.3d 855, 862 (8th Cir.
2008) (Colloton, J., concurring)). A footnote in Professor
LaFave's treatise explains the circumstances under which
discovery might be inevitable despite the absence of active
pursuit prior to the misconduct: "Even if the police were not
actively pursuing an alternative line of investigation at the
time of police error or misconduct, for example, the government
may well be able to establish that the execution of routine
32
No. 2014AP2238-CR
police procedure or practice inevitably would have resulted in
discovery of disputed evidence." Id. § 11.4(a) n.164, at 368
(quoting Thomas, 524 F.3d at 862 (Colloton, J., concurring)).
¶63 To a degree, the Cherry court anticipated this
critique by acknowledging a case in which, despite the fact that
"the Brookins prerequisites were not met," the Fifth Circuit
"held that the inevitable discovery exception applied since the
alternate means for obtaining the evidence was an intervening
and independent event occurring subsequent to the misconduct."
Cherry, 759 F.2d at 1205 (citing United States v. Miller, 666
F.2d 991, 997 (5th Cir. 1982)). Indeed, the Fifth Circuit in
Cherry concluded its analysis of the inevitable discovery
exception by stating:
In certain circumstances . . . , such as when the
hypothetical independent source comes into being only
after the misconduct, the absence of a strong
deterrent interest may warrant the application of the
inevitable discovery exception without a showing of
active pursuit by the government in order to ensure
that the government is not unjustifiably disadvantaged
by the police misconduct.
Id. at 1206. Although the court of appeals in Schwegler applied
the three-pronged framework set forth in Cherry, it did not
acknowledge any exceptions to the active pursuit requirement.
¶64 Other jurisdictions apply alternative, fact-intensive
versions of the inevitable discovery exception that do not
require proof of active pursuit in all cases. See United States
v. Howard, 729 F.3d 655, 663 (7th Cir. 2013) ("The government
must demonstrate both (1) that 'it had, or would have obtained,
33
No. 2014AP2238-CR
an independent, legal justification for conducting a search that
would have led to discovery of the evidence' and (2) 'that it
would have conducted a lawful search absent the challenged
conduct.' (quoting United States v. Marrocco, 578 F.3d 627, 637-
38 (7th Cir. 2009)); United States v. Boatwright, 822 F.2d 862,
864-65 (9th Cir. 1987) (concluding that "[t]he doctrine is best
developed on a case by case basis" and that "[t]he existence of
two independent investigations at the time of discovery is
not . . . a necessary predicate to the inevitable discovery
exception," but adding that "[a]bsent some overriding
considerations . . . , the doctrine requires that the fact or
likelihood that makes the discovery inevitable arise from
circumstances other than those disclosed by the illegal search
itself"); United States v. Silvestri, 787 F.2d 736, 744 (1st
Cir. 1986) ("[T]here are three basic concerns which surface in
an inevitable discovery analysis: are the legal means truly
independent; are both the use of the legal means and the
discovery by that means truly inevitable; and does the
application of the inevitable discovery exception either provide
an incentive for police misconduct or significantly weaken
fourth amendment protection?").
¶65 Demonstrated historical facts proving active pursuit
of an alternative line of investigation at the time of the
constitutional violation certainly help the State to
substantiate its claim that discovery of otherwise excludable
evidence was inevitable. However, requiring proof in all cases
of active pursuit at the time of the constitutional violation
34
No. 2014AP2238-CR
risks exclusion of evidence that the State might demonstrate
that it inevitably would have discovered. For instance, a
constitutional violation may occur so quickly after the
commission of a crime that there has not been time to launch the
kind of comprehensive investigation that would be normal
operating procedure.
¶66 Consequently, we think that the better approach is to
follow the analysis applied by this court in Weber and by the
court of appeals in Washington and in Kennedy: Has the
prosecution met its burden of proving by a preponderance of the
evidence that it inevitably would have discovered the evidence
sought to be suppressed? Accordingly, the factors in Schwegler,
Lopez, and Avery should be regarded as important indicia of
inevitability rather than indispensable elements of proof.
c. Proof of the Absence of Bad Faith
¶67 We also decline Jackson's invitation to articulate a
rule prohibiting application of the inevitable discovery
exception when the State fails to prove the absence of bad faith
on the part of officers who committed the constitutional
violation. Although in Nix the Supreme Court expressly rejected
the necessity for a good faith requirement, Nix, 467 U.S. at
445, Jackson contends that the Wisconsin Constitution provides
greater protections than does the federal constitution in this
context, see State v. Knapp, 2005 WI 127, ¶59, 285 Wis. 2d 86,
700 N.W.2d 899 (citing State v. Doe, 78 Wis. 2d 161, 171, 254
N.W.2d 210 (1977)).
35
No. 2014AP2238-CR
¶68 The Court's decision in Nix rejecting proof of absence
of bad faith as a necessary condition for inevitable discovery
has provided an avenue for criticism of the doctrine. "Because
one purpose of the exclusionary rule is to
deter . . . shortcuts, there is much to be said for the
proposition that the 'inevitable discovery' rule should be
applied only when it is clear that 'the police officers have not
acted in bad faith to accelerate the discovery' of the evidence
in question." 6 LaFave § 11.4(a), at 344-46 (quoting Brian S.
Conneely & Edmond P. Murphy, Comment, Inevitable Discovery: The
Hypothetical Independent Source Exception to the Exclusionary
Rule, 5 Hofstra L. Rev. 137, 160 (1976)). In her brief, Jackson
cites cases from other jurisdictions that have adopted rules
precluding application of the exception when the prosecution
fails to prove the absence of bad faith. See Smith v. State,
948 P.2d 473, 481 (Alaska 1997); Commonwealth v. Sbordone, 678
N.E.2d 1184, 1190 (Mass. 1997); State v. Holly, 833 N.W.2d 15,
33 (N.D. 2013).
¶69 It gives us pause to consider the possibility that
officers could intentionally violate constitutional rights as a
"shortcut" to obtaining evidence when they know the State will
be able to demonstrate inevitable discovery by other means. We
are particularly mindful of this possibility as we decide a case
in which the circuit court and court of appeals, respectively,
rebuked officers for "flagrant" and "reprehensible" violations
of Jackson's rights——rebukes, we believe, that were warranted
and appropriate.
36
No. 2014AP2238-CR
¶70 Nevertheless, we conclude that Jackson has not
demonstrated that the Wisconsin Constitution requires proof of
the absence of bad faith as a necessary condition for the
prosecution to establish inevitable discovery of otherwise
excludable evidence. Because inevitable discovery is an
exception to the exclusionary rule, it necessarily applies after
some government misconduct has occurred that would otherwise
justify the suppression of evidence as an appropriate remedy.
See United States v. Alexander, 540 F.3d 494, 503-04 (6th Cir.
2008). In the exceptional case where the government meets its
burden of proving inevitability, however, it will have
demonstrated that suppression would place the State in a worse
position than it would have been in absent the misconduct.
Insisting on suppression of evidence obtained by intentional
misconduct would redirect the exclusionary rule to a punitive
purpose——punishing the State and the public for misconduct by
some officers despite independent proof of inevitable discovery
of the relevant evidence.
¶71 We are not persuaded that allowing the State to prove
inevitable discovery without proving the absence of bad faith
will encourage officers to take unconstitutional shortcuts to
accelerate the acquisition of evidence. An officer who
intentionally commits a constitutional violation always risks
losing valuable evidence, and "[a] police officer who is faced
with the opportunity to obtain evidence illegally will rarely,
37
No. 2014AP2238-CR
if ever, be in a position to calculate whether the evidence
sought would inevitably be discovered." Nix, 467 U.S. at 445.9
Already, the exception applies only if the State proves that it
inevitably would have discovered the disputed evidence without
the misconduct. As the Supreme Court explained in Nix,
"When . . . the evidence in question would inevitably have been
discovered without reference to the police error or misconduct,
there is no nexus sufficient to provide a taint and the evidence
is admissible." Nix, 467 U.S. at 448. Conversely, "If the
State finds itself in any situation where it must prove that the
evidence inevitably would have been discovered by other legal,
independent means, and it fails to do so, the doctrine is not
applied and the evidence is suppressed." State v. Garner, 417
S.E.2d 502, 511 (N.C. 1992).
¶72 In declining to impose a good faith requirement in
connection with inevitable discovery, we emphasize that the
State has the burden of proof in satisfying this narrow
exception to the exclusionary rule. As the Seventh Circuit
observed,
Nix . . . speaks in terms of proof by preponderance of
the evidence that the government would have discovered
the challenged evidence through lawful means . . . .
Inevitable discovery is not an exception to be invoked
casually, and if it is to be prevented from swallowing
9
Cf. Murray v. United States, 487 U.S. 533, 540 (1988)
("[T]he officer without sufficient probable cause to obtain a
search warrant [would not] have any added incentive to conduct
an unlawful entry, since whatever he finds cannot be used to
establish probable cause before a magistrate.").
38
No. 2014AP2238-CR
the Fourth Amendment and the exclusionary rule, courts
must take care to hold the government to its burden of
proof.
United States v. Jones, 72 F.3d 1324, 1334 (7th Cir. 1995).
Proof of inevitable discovery turns upon demonstrated historical
facts, not conjecture.
¶73 With these principles of the inevitable discovery
exception in mind, we now consider its application in this case.
B. Officers Inevitably Would Have Discovered the Evidence in
Jackson's Residence
¶74 On appeal, the State has not challenged the circuit
court's determination that the detectives intentionally violated
Jackson's constitutional rights during her interrogation and by
subsequently bringing her to her home to locate physical
evidence. The officers failed to provide timely Miranda
warnings, failed to respond timely to her physical condition,
and failed to respond to her expressed desire not to continue
talking, thereby raising obvious concerns about the
voluntariness of her admissions. Suppression of her statements
to police was necessary and "inevitable" under the circumstances
presented. Thus, resolution of this case requires us to
determine whether the State has established by a preponderance
of the evidence that Jackson's knife and her bloody clothing
would inevitably have been discovered by lawful means but for
the police misconduct.
¶75 After assessing the substantial evidence presented by
the State regarding the search warrant and ensuing search, the
demonstrated historical facts leave us reasonably certain that
39
No. 2014AP2238-CR
officers would inevitably have discovered the physical evidence
in Jackson's garage without any of the information unlawfully
obtained from her.
¶76 Both the circuit court and the court of appeals in
this case evaluated the search warrant affidavit——excised of
information gained from the illegal interrogation of Jackson——to
determine whether it provided probable cause to justify a search
of Jackson's residence. This court has held that "where an
application for a warrant contains both tainted and untainted
evidence, the issued warrant is valid if the untainted evidence
is sufficient to support a finding of probable cause to issue
the warrant." State v. Carroll, 2010 WI 8, ¶44, 322
Wis. 2d 299, 778 N.W.2d 1 (first citing Murray v. United States,
487 U.S. 533, 542 (1988); then citing State v. O'Brien, 70
Wis. 2d 414, 424-25, 234 N.W.2d 362 (1975)); see also United
States v. Karo, 468 U.S. 705, 719 (1984) ("[I]f sufficient
untainted evidence was presented in the warrant affidavit to
establish probable cause, the warrant was nevertheless valid."
(citing Franks v. Delaware, 438 U.S. 154, 172 (1978)); State v.
St. Martin, 2011 WI 44, ¶30, 334 Wis. 2d 290, 800 N.W.2d 858.
¶77 Like the circuit court and court of appeals, we
consider untainted portions of the search warrant affidavit. A
single paragraph at the end of the affidavit summarizes
Jackson's incriminating statements indicating that she traveled
to the hotel that afternoon and got into a confrontation with
Whitlow while armed with a knife. We examine the remaining
portions of the affidavit, which is reproduced in the Appendix.
40
No. 2014AP2238-CR
¶78 The vast majority of factual information set forth in
the affidavit accompanying the search warrant application was
derived from untainted sources. In the underlying opinion in
this case, the court of appeals accurately and comprehensively
summarized the information set forth in the untainted portions
of the affidavit:
• At 1:25 p.m. on February 21, 2012, officers were
dispatched to the Road Star Inn in Grand Chute,
where they found Whitlow's body in Room 114.
Whitlow had suffered significant cut wounds to his
neck, throat, upper chest, and right arm and hand.
• There was substantial blood and blood spatter on the
wall, bed, and floor of the hotel room. Based on
his training and experience, detective Renkas
believed anyone who was in the room with Whitlow
when he was stabbed would likely have a significant
amount of blood on his or her clothing or shoes.
• An eight-inch Winchester brand knife sheath was
found next to Whitlow's body, but no knife was
recovered.
• [The hotel manager], who was working at the front
desk of the Road Star Inn on February 21, reported
that Whitlow had been staying in Room 114 since
February 17. [The manager] stated he knew Whitlow
had been having problems with his wife.
• [A] . . . Road Star Inn [cleaning] employee[]
reported that she was doing the laundry in Room 111
from approximately 1:00 to 1:30 p.m. on February 21,
when she saw a person wearing a gray hooded
sweatshirt knock on the door of Room 114. The
person's hood was pulled over his or her head. The
person was admitted into the room by someone inside,
and [the cleaning employee] then heard a male voice
screaming for help and heard what she thought was
someone being hit. [The cleaning employee] went to
the manager to get help and briefly saw the person
in the hooded sweatshirt leaving. Hotel staff then
entered the room, found Whitlow, and called police.
41
No. 2014AP2238-CR
• [A hotel guest], who was staying in Room 115 at the
Road Star Inn, reported he was in his room when he
heard a female voice yelling. He thought it was the
cleaning employee, so he left his room to see what
was happening. He then realized the yelling voice
could not be the cleaning employee because he saw
her in the hallway. When [the guest] was just past
Room 114, he heard a male voice yelling, "[H]elp me,
help me." [The guest] then went to get help.
• Eleven-year-old R.L.D.J. was interviewed by police
on the day of the stabbing and told them Whitlow was
his father and Jackson was his mother. R.L.D.J.
reported that his family had been living together at
their home until a few days earlier, when Whitlow
left to stay at the Road Star Inn. Police were
aware from previous contacts with Whitlow and
Jackson that they resided [on] . . . West Fourth
Street in Appleton.
• R.L.D.J. reported Whitlow had left the family home
because he and Jackson "had been having issues that
included 'adult conversations' that became loud."
• R.L.D.J. told police he stayed home from school with
Jackson on February 21, and in the early afternoon,
Jackson became angry because Whitlow had destroyed
some family pictures and keepsakes. Jackson then
left the house and was gone for about fifteen to
twenty minutes.
• When Jackson returned to the house, R.L.D.J. "heard
a zipper sound and then heard [her] go directly into
the bathroom" and take a shower. When Jackson got
out of the shower, "she was in different clothing
than . . . what she had been wearing earlier in the
day."
• Jackson told R.L.D.J. not to tell anyone she had
left the house that day.
Jackson, 363 Wis. 2d 554, ¶18 (eleventh, fifteenth, and
sixteenth alterations in original).
¶79 Based on the untainted portions of the affidavit, we
conclude that the search warrant application provided probable
42
No. 2014AP2238-CR
cause to conduct a search of Jackson's residence. A search
warrant affidavit provides probable cause for a search when,
under the totality of the circumstances, it sets forth "a
substantial basis for concluding that there was a fair
probability that a search of the specified premises would
uncover evidence of wrongdoing." State v. Romero, 2009 WI 32,
¶3, 317 Wis. 2d 12, 765 N.W.2d 756.
¶80 The affidavit in support of the search warrant for the
home on Fourth Street in Appleton sought
clothing, including but not limited to hooded
sweatshirts, any knives or knife sheaths, any weapons,
any firearms, . . . ; any materials, clothing, towels
or other items containing blood or bloody
substances . . . ; any materials or items that may
contain trace blood evidence; . . . a 2007 gray in
color, Chevrolet Malibu, registered to a Mastella L.
Jackson.
¶81 Jackson was an obvious suspect in Whitlow's murder.
Whitlow was staying in the hotel, not his home, because he was
having problems with his wife. Their son, R.L.D.J., said that
Jackson was very angry with her husband that day and left the
house in the afternoon about the time the homicide occurred.
When she returned she told R.L.D.J. not to tell anyone that she
had left the house.
¶82 A witness at the hotel said he heard a female voice
yelling near Room 114 where Whitlow's body was found, suggesting
that a woman had killed Whitlow.
¶83 Inside the room, police found the body and a room
covered with blood. The affiant disclosed that based on his
43
No. 2014AP2238-CR
training and experience, he believed any person who would have
been in the room with Whitlow at the time of his injuries would
likely have significant areas of blood or blood splatter on his
or her clothing or shoes. R.L.D.J. said his mother took a
shower immediately after she got home and that she was in
different clothing after the shower.
¶84 Officers found a knife sheath in the hotel room,
supporting evidence of a stabbing. If Jackson was the culpable
party, she might not have had time to dispose of the knife
because she hurried home to shower and get out of her clothes.
¶85 Aside from the statements derived from Jackson's
illegal interrogation, officers independently acquired all
information presented in the affidavit accompanying the warrant
application. Officers received information from the manager,
guest, and cleaning employee at the hotel immediately after
Whitlow's death and separate from the detectives' subsequent
interactions with Jackson. Moreover, the circuit court found
that "there was nothing that Ms. Jackson [said] that was then
used to get [R.L.D.J.] to talk," so his statements were also
separate from her interrogation. Although R.L.D.J. likely
provided the information most probative of Jackson's actions
after 8 p.m., officers possessed most information used in the
affidavit before Jackson was even in custody for Miranda
purposes at 7:25 p.m., and they had certainly begun conducting
independent investigation before that time.
¶86 Collectively, this information speaks to a fair
probability that officers would uncover bloody clothing and the
44
No. 2014AP2238-CR
knife upon searching Jackson's residence. Taken together,
information derived from various people at the hotel, from
R.L.D.J.'s interview, and from the affiant officer's experience
indicate that the affidavit excised of Jackson's statements
established a strong, independent legal justification for the
search of Jackson's residence.
¶87 Given that the officers began their search of
Jackson's residence pursuant to a valid warrant based on
probable cause, the State has presented considerable evidence to
show that the searching officers inevitably would have
discovered the knife and bloody clothing in the garage if
officers had not brought Jackson back to her residence. The
officers searching Jackson's residence began inside the house
and methodically searched all bags and other containers that
they encountered. Because the warrant allowed them to search
both indoors and in the garage, the officers intended to
carefully search the garage when they finished searching the
house. By searching every bag and container in the garage, the
officers eventually would have searched the garbage can
containing the knife and clothing.
¶88 The search of Jackson's residence compares favorably
to the search in Nix that the Supreme Court determined would
inevitably have uncovered the victim's body. Searchers in Nix
had specific instructions "to check all the roads, the ditches,
[and] any culverts" in their assigned zones. Nix, 467 U.S. at
448. An investigator leading the search effort had obtained a
map of the area where police eventually found the body, and the
45
No. 2014AP2238-CR
investigator would have developed a search grid on the map
calling for a search of the area ultimately identified by the
defendant. Id. at 449. When the suspect revealed the body's
location, officers found the remains in a culvert near a road in
the expected search area. Id.
¶89 In this case, officers involved in the search had a
systematic and orderly plan first to search Jackson's residence,
then to search the garage. Their testimony proves that they had
begun searching containers in a disciplined manner and that they
would have continued that meticulous approach when searching the
garage. Absent Jackson's arrival on the premises with the
detectives, the officers would have identified the incriminating
evidence within a matter of hours. Thus, the State has shown
that the officers legally searching Jackson's residence had
actively engaged in searching the premises before Jackson's
arrival, and those officers would have continued the search and
discovered the physical evidence without Jackson's involvement.
¶90 Jackson contends that this court's decision in Knapp
should control the outcome in this case. In Knapp, this court
held that physical evidence was inadmissible when "obtained as
the direct result of an intentional Miranda violation." Knapp,
285 Wis. 2d 86, ¶82. But the circumstances surrounding the
State's acquisition of the incriminating evidence distinguish
the two cases. While serving an arrest warrant on the defendant
in Knapp, the officer who obtained the evidence did so by asking
a question without reading the defendant his Miranda rights.
Id., ¶8. The State provided no other evidence demonstrating
46
No. 2014AP2238-CR
that it would inevitably have obtained the physical evidence by
legal means. Here, in contrast, the State has presented
testimony by multiple officers establishing an independent,
legal basis by which officers would have obtained the knife and
bloody clothing absent any involvement by Jackson.10
10
At oral argument, the Deputy Solicitor General, making
that office's first appearance before this court, emphasized the
importance of the proof of inevitability in this case:
If Jackson had dumped the knife and clothes in some
random garbage can, or if she had thrown it into the
river as she drove home, or she had buried it in her
backyard . . . , in any of those circumstances, the
State wouldn't be able to argue inevitable discovery
in this case. When the police officers initially
asked her, "Where's the knife," they did it in an
unconstitutional interrogation. They had no idea what
the answer was going to be. If it was, for instance,
in the [random] garbage can, or it's in the river,
then the evidence would be excluded, and the police
would have lost very valuable evidence that they might
have discovered some other way. If it comes in——the
only time it comes in——is when they inevitably would
have had it anyway, so they haven't gained anything.
But they have a lot that they can potentially lose, so
there's just no advantage to violating the
Constitution . . . and hoping to get something out of
the inevitable discovery doctrine because there's
little to gain through it.
By dismissing the distinction between this case and State
v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899, as only a
"supposed difference," the dissent undervalues the State's
burden of proving inevitability. Dissent, ¶131. The dissent
suggests that "[t]he State in Knapp might have been able to
argue that some chain of events or alternative line of
investigation demonstrated that law enforcement would have
inevitably discovered the physical evidence." Dissent, ¶126
n.30. But Knapp contains none of the concrete indicia of
inevitability present in this case. Knapp involved a single law
enforcement officer who illegally obtained physical evidence by
asking a question that violated Miranda. In contrast, this case
(continued)
47
No. 2014AP2238-CR
¶91 Finally, we note that permitting admission of the
knife and clothing does not leave Jackson without any recourse
for the officers' illegal interrogation in this case. The
detectives' decision to detain and question Jackson in the
manner seen here is unacceptable by any constitutional standard.
The circuit court properly excluded Jackson's statements to
deter law enforcement officers from imitating the detectives'
unjustifiable methods. At trial, Jackson will receive the
benefit of that exclusion because the State will be barred from
presenting the testimonial evidence obtained from her by illegal
means. Although proof of inevitable discovery saves the knife
and clothing from exclusion in this case, suppression of
Jackson's incriminating statements provides an entirely
appropriate remedy for the Miranda violations.
V. CONCLUSION
¶92 At its core, the exclusionary rule discourages law
enforcement officers from violating suspects' constitutional
rights by removing a key incentive——incriminating evidence——that
might otherwise encourage officers to engage in illegal conduct.
The rule seeks to deter misconduct, rather than to punish it
when it occurs. As a result, if the court were to insist upon
suppression even when the State presents evidence proving that
involves a search warrant affidavit with untainted information
demonstrating probable cause for a search, as well as officers
independently conducting a methodical search of the premises.
The exception turns upon evidence of inevitability, not merely a
theory.
48
No. 2014AP2238-CR
it inevitably would have discovered evidence, we would
improperly apply exclusion in a purely punitive manner. Here,
the State has demonstrated that, without any information
illegally obtained from Jackson, officers had probable cause to
search Jackson's residence, and they independently began a
systematic and methodical search of the premises that would have
revealed the physical evidence actually obtained by way of
Jackson's suppressed statements. Because the State has met its
burden of proof with regard to its independent search of the
premises, we conclude officers inevitably would have obtained
the knife and clothing in Jackson's garage. Therefore, we
affirm the decision of the court of appeals and remand to the
circuit court for further proceedings consistent with this
opinion.
By the Court.—The decision of the court of appeals is
affirmed.
49
No. 2014AP2238-CR
APPENDIX
This Appendix reproduces the language of the Affidavit in
Support of Search Warrant submitted for the search of Jackson's
residence. All personal identifying information and all
information illegally obtained from Jackson has been redacted;
all alterations are marked accordingly.
AFFIDAVIT IN SUPPORT OF SEARCH WARRANT
WHEREAS, Detective Renkas of the Grand Chute Police
Department has this day complained to the said court upon oath
that on the 21st day of February, 2012, in said County in and
upon certain premises in the Town of Grand Chute in Outagamie
County, Wisconsin there is located a residence at [] W Fourth
Street in the City of Appleton, Outagamie County, Wisconsin and
more particularly described as follows:
A split level duplex residence located on the south
side of 4th Street, with the duplex unit of [] located
on the west end of the duplex facing 4th Street, with
black address numbers [] above the main front door,
gray vinyl siding with white trim, dark grayish/black
shingles with an attached two car garage
there are now located and concealed certain things, to-wit:
clothing, including but not limited to hooded
sweatshirts, any knives or knife sheaths, any weapons,
any firearms, any paper documents tending to establish
the identity of the parties residing at the location;
any materials, clothing, towels or other items
containing blood or bloody substances, cell phones;
any materials or items that may contain trace blood
evidence; any photographs at the home, any
gravemarkers or funeral materials; shoes at the home;
cell phone, car and/or house keys, cell phone records;
50
No. 2014AP2238-CR
any caller ID items; a 2007 gray in color, Chevrolet
Malibu, registered to a Mastella L. Jackson with WI
license place [], VIN []
which things were used in the commission of, or may constitute
the evidence of a crime, to-wit: Violation(s) of Homicide and
Reckless Injury contrary to §940 of the Wisconsin Statutes.
NOW, THEREFORE, in the name of the State of Wisconsin, you
are commanded forthwith to search said premises and persons on
said premises for said things, and if the same or any portion
thereof are found, to safely keep the property seized so long as
necessary for the purpose of being produced as evidence on any
trial or until further order of the court.
The facts tending to establish the ground for issuing a
search warrant are as follows:
Affiant states that he has been a police officer for the
past 5 years with the Grand Chute Police Department and in that
capacity has knowledge of the following:
Your affiant reports that on February 21, 2012, officers
were dispatched to the Roadstar Inn, located at 3623 W. College
Avenue, in the Town of Grand Chute, Outagamie County, Wisconsin,
at 1:25 pm for a medical call. Off. Jones reports dispatch
advised the individual was face down, covered in blood. Off.
Jones reports when he arrived at room 114 of the Roadstar Inn
the ambulance and fire departments were already there. Off.
Jones reports he was told by a paramedic the individual was
deceased. Off. Jones reports when he entered the room there was
a bloody phone receiver that was detached from the phone near
the door and walkway. Off. Jones reports he walked into the
51
No. 2014AP2238-CR
room and saw blood smeared against the far wall beyond the beds
and there was a black male laying prone against the wall.
Affiant reports that during the investigation, officers did
locate a WI ID card in the hotel room identifying the male party
as Derrick J. Whitlow, dob: [].
Affiant reports that he spoke with Jon Hagen, a deputy
coroner who was called to the scene to make an initial
assessment on Derrick Whitlow. Affiant reports that Hagen did
share with him some photos taken at the scene that included
photos of Derrick J. Whitlow and it was apparent that he had a
very large area of injury to his right hand that appeared to be
a very deep cut to the hand. Affiant also reports Jon Hagen
reported that there is a significant area of injury to Whitlow's
neck which includes a significant cut to his neck/throat area.
Affiant also reports that in the upper left arm area Whitlow has
a large laceration and large area of injury to his upper left
chest area. Affiant reports that he spoke with Off Schellinger
at the Roadstar who had been processing the scene and indicated
that a knife sheath was located next to Whitlow which was
approximately 8 inches in length with the writing 'Winchester'
located on it. Affiant reports that within the hotel room were
very significant areas of blood and blood splatter; that there
was significant blood and blood splatter on the wall, bed and
floor of the hotel room. Affiant reports that based upon his
training and experience any other party who would have been in
the room with Whitlow at the time of his injuries would likely
52
No. 2014AP2238-CR
also have significant areas of blood and/or blood splatter on
their clothing or shoes.
Affiant reports that Off. Jones reports that he spoke with
[the hotel manager], an employee who was working the front desk
of the Roadstar Inn on 2/21/12. [The manager] informed Off.
Jones that the black male who was staying in Room 114 was
Derrick Whitlow and that he had been saying at the Roadstar Inn
since the 17th of February, 2012 with his son, who is
approximately 10 years old. He said he knew that Derrick
Whitlow has been having problems with his wife.
Affiant reports that he spoke with [a cleaning employee]
who works at the Roadstar. [The cleaning employee] reports that
she was working on 2/21/12; that she was doing the laundry in Rm
111 from approximately 1:00 to 1:30 pm when she heard and saw
someone knock on Room 114, a party who was wearing a gray hooded
sweatshirt with the hood pulled over their head. [The cleaning
employee] reports that the person was ultimately let into Room
114 by someone in the room. [The cleaning employee] reports
that she then heard a male party screaming for help and she
heard what she thought was someone getting hit. [The cleaning
employee] reports that she then went to the manager to get help
and she did briefly see the person in the hooded sweatshirt
leaving. [She] reports that hotel staff then entered Room 114,
located an injured male party and called the police.
Affiant reports that he and Off. Jones reports that [a
hotel guest] stated he is staying in Room 115 at the Roadstar.
[The guest] stated that during the afternoon, he was in his room
53
No. 2014AP2238-CR
when he heard a female voice yelling. [The guest] stated that
he thought the female was the cleaning employee so he went to
see what was happening. [The guest] stated that he went down
the hallway and saw the cleaning employee so he then realized it
was someone else. [The guest] reports that he was just past
Room 114 when he heard a loud yell and then heard a male party
yelling "help me, help me." [The guest] stated that he then
went by the manager's office and then went outside and saw the
fire department arrive.
Affiant reports that Det. Meyer of the Appleton Police
Department did assist in the investigation and on 2/21/12 did
Det. Meyer did speak with R.L.D.J. (DOB []), who stated his
mother is Mastella Jackson and his father is Derrick Whitlow.
He said his family had all been living together at their home,
but his father left to stay at the Roadstar Inn a few days ago.
Det. Meyer reports that based upon his previous contacts with
Mastella Jackson and Derrick Whitlow in January of 2012, he knew
they were residing at [] W Fourth Street in the City of
Appleton, Outagamie County, Wisconsin. RLDJ said when his dad
went to stay at the hotel a few days earlier, his brother went
with him to the hotel to help him because he had a broken leg.
RLDJ reports that his dad had left because he and his mom had
been having issues that included 'adult conversations' that
became loud. RLDJ reports that on 2/21/12 he did stay home from
school and was with his mom. RLDJ reports that during the late
morning hours, he did ride with his mom to an appointment she
had for an MRI; he stated when they arrived at the medical
54
No. 2014AP2238-CR
location, his mom didn't leave the car and instead she stated
she had sore feet and wasn't going in. RLDJ reports they then
went back to their house. RLDJ reports that during the early
afternoon, his mother became angry because his father had
destroyed some pictures of her as a little child and other
family pictures as well as his grandmother's grave marker. RLDJ
stated that his mother left the residence and was gone for
approximately 15-20 minutes. When his mother returned, he said
he heard a zipper sound and then heard his mother go directly
into the bathroom and she took a shower. He said when she got
out of the shower, she was in different clothing than she what
she had been wearing earlier in the day. After coming out of
the shower, RLDJ said that his mom, Mastella told him not to
tell anyone that she had left the house that day. Det. Meyer
reports that when RLDJ was asked what his mom might have in the
house for protection, he stated that mom did have a gun, a
shorter gun you would hold in your hand and that he saw the gun
this morning when mom had it in the house.
Affiant reports that on 2/21/12, Off. Schira of the
Appleton Police Department did assist in making contact with
Mastella Jackson at her residence at [] W Fourth Street in the
City of Appleton, Outagamie County, Wisconsin. Affiant reports
that both RLDJ and Jackson were located at the home. Off.
Schira reports that located within the two car attached garage
of the home is a 2007 Chevrolet Malibu, 4 door, gray in color,
WI license place [], VIN[] registered to Mastella L. Jackson.
55
No. 2014AP2238-CR
Off. Schira also reports at the residence on the curb area is
located a garbage bin.
Affiant reports that on 2/21/12 officers did speak with
Mastella Jackson about where she had been earlier on that day.
Jackson did inform officers that she and Dwight Jackson [sic]
did have two children together and they had previously resided
together. Jackson did state that a few days earlier Whitlow had
left the residence and was staying at the Roadstar
Inn. . . . Affiant reports that on 2/21/12 he did observe a
vehicle in the garage at Mastella's residence.
Affiant further reports that the statements of [the hotel
manager, the hotel guest, the hotel cleaning employee], Jon
Hagen and RLDJ are presumed truthful and reliable as citizen
witnesses. . . . Affiant, Off. Jones, Off. Schellinger, Det.
Meyer and Det. Callaway are presumed truthful and reliable as
they are sworn law enforcement officers.
Wherefore, your affiant prays that a search warrant be
issued to enter said premises to search for the items identified
herein along with the items listed on the face sheet of the
search warrant.
Affiant - Det. Mike Renkas
56
No. 2014AP2238-CR.ssa
¶93 SHIRLEY S. ABRAHAMSON, J. (dissenting). Unlike the
majority opinion, I would suppress the physical evidence
obtained at Mastella Jackson's home following law enforcement
officers' deliberate violations of Jackson's Miranda rights.
¶94 The majority decides this Miranda case in the same
month as the fiftieth anniversary of Miranda v. Arizona, 384
U.S. 436 (June 13, 1966).1 Miranda is perhaps the best-known
criminal law decision of the United States Supreme Court.
¶95 The Miranda warnings are celebrated as a shield
against compelled self-incrimination and violations of criminal
suspects' constitutional rights. Miranda warnings stem from the
very constitution our law enforcement officers are sworn to
protect and defend.2
¶96 Moreover, Miranda warnings are "embedded in routine
police practice" and "have become part of our national culture."3
1
The American Bar Association used the fiftieth anniversary
of the Miranda decision as this year's Law Day (May 1) theme.
Minnesota Judge Kevin S. Burke wrote in celebration of Law
Day 2016 and the Miranda decision as follows: "Our criminal
justice system has faults, but the Miranda decision 50 years
later is the embodiment of what President Eisenhower hoped for
in creating Law Day: a democracy that chooses not force, but
the rule of law." Judge Kevin S. Burke, Choosing the rule of
law: a tribute to the Miranda decision, MinnPost (Apr. 29,
2016), https://www.minnpost.com/community-
voices/2016/04/choosing-rule-law-tribute-miranda-decision.
2
See Dickerson v. United States, 530 U.S. 428, 438 (2000)
("Miranda is a constitutional decision . . . .").
3
See Dickerson, 530 U.S. at 443.
1
No. 2014AP2238-CR.ssa
¶97 Even fictional TV law enforcement officers like
Dragnet's Detective Joe Friday and Law and Order's officers give
Miranda warnings. If you missed the warnings in the original
series you will hear them again and again in the reruns.4
¶98 The circuit court developed an extensive record about
Jackson's interrogation, including testimony and audio
recordings.5
¶99 Jackson was brought to the Grand Chute Police
Department shortly after 4:30 PM. She was alone in a room for
about two hours. Grand Chute Police officers began questioning
Jackson at about 6:30 PM, and the circuit court found Jackson
was in custody (i.e., not free to leave) at 7:25 PM.
Nevertheless, the interrogation continued for more than five
hours before officers advised Jackson of her Miranda rights.6
¶100 During the interrogation, Jackson was in pain and
needed her prescription medication. Several times during the
officers' questioning, she asked "to leave," "to go home," "not
to say anything," and "to talk at a different time."7 Despite
the fact that Jackson was told at the outset, "[Y]ou're not
4
See George C. Thomas III & Richard A. Leo, The Effects of
Miranda v. Arizona: "Embedded" in Our National Culture?, 29
Crime & Just. 203, 246 (2002) ("[I]t is because of these shows
and the mass media more generally——not the police, the legal
system, or Supreme Court doctrine——that Miranda has become so
much a part of our national culture.").
5
Majority op., ¶35.
6
Majority op., ¶2.
7
Majority op., ¶¶22, 25; see also ¶27.
2
No. 2014AP2238-CR.ssa
under arrest or, you know, you're free to go, you know,"8
Jackson's requests to leave and not to speak went unheeded, all
contrary to federal constitutional law.
¶101 The circuit court issued a comprehensive ruling
suppressing the statements made during the interrogation.9 The
circuit court concluded that the failure to read Jackson her
Miranda warnings was an intentional violation of Jackson's
constitutional rights. The circuit court strongly condemned the
officers and detectives for giving incredible testimony10 and
deliberately violating Jackson's rights.
¶102 The circuit court judge stated that when he considered
the interrogation he "became sick to my stomach
literally . . . . [T]his is textbook interrogation of what not
to do if you want to be doing good police work and get stuff
admitted in during a hearing."
¶103 The circuit court went on to denounce the officers'
conduct as follows:
I've never seen a case, been part of a case, or heard
of a case that's worse than this in terms of what the
police officers did in that interrogation room. . . .
[T]his is just a clear violation of somebody's rights
over a long period of time involving many different
officers with lots of opportunities to have one of
them step up and say, hey, this is not the way we need
to do this.
8
Majority op., ¶18.
9
Majority op., ¶36.
10
Majority op., ¶36.
3
No. 2014AP2238-CR.ssa
¶104 Compounding the duplicity of the Miranda violation,
when the officers finally read Jackson her rights, the detective
assured Jackson that her rights would not be violated:
Can I, can I read [Miranda warnings] to you first
because I technically can't get into a lot of stuff
without until I advise you of these and you decide
whether or not you want to talk to me anymore, OK
because I can't violate your rights, do you know what
I mean? So can I read this to you and then you decide
whether or not you want to talk to me because I can't
really get into any in depth conversation with you
until you either tell me yes or no that you're willing
to talk to me. So let me read this to you and then
you decide what you want to answer and we'll go from
there and then anything I can answer for you I'll
answer, presuming you want to talk to me. Sound
11
fair?
¶105 After hearing the Miranda warnings Jackson asked: "So
earlier, when you, when you wouldn't let me leave . . . ." The
detective cut her off.
¶106 Contrary to what the detective told Jackson, Miranda
warnings are not a technicality——they are a constitutionally
required "shield that protects against compelled self-
incrimination."12 We have recognized that Miranda's shield
against compelled self-incrimination is "made of substance, not
tinsel," and "[a]ny shield that can be so easily . . . cast
aside by the very people we entrust to enforce the law fails to
serve its own purpose, and is in effect no shield at all."13
11
Majority op., ¶27 (emphasis added).
12
State v. Knapp, 2005 WI 127, ¶72, 285 Wis. 2d 86, 700
N.W.2d 899.
13
Knapp, 285 Wis. 2d 86, ¶72.
4
No. 2014AP2238-CR.ssa
¶107 The court of appeals branded "the officers' actions
during the interrogation of Jackson [as] reprehensible."14 The
majority opinion agrees that the circuit court's and court of
appeals' condemnation of the police conduct was "warranted and
appropriate."15
¶108 Our society asks law enforcement officers to perform
an extraordinarily difficult and dangerous job. We rely on them
to maintain public safety and defend the rule of law. And most
law enforcement officers perform admirably, placing themselves
in harm's way to protect the rest of us.
¶109 To enable them to do their important work, society
entrusts law enforcement officers with enormous power. The
power of law enforcement officers, however, like the power of
all government officials, is not unchecked.
¶110 Our court has forcefully declared: "Just as we will
not tolerate criminal suspects to lie to the police under the
guise of avoiding compelled self-incrimination, we will not
tolerate the police deliberately ignoring Miranda's rule as a
means of obtaining inculpatory physical evidence."16 Disregard
for the rule of law, especially by those sworn to protect and
defend it, breeds distrust, suspicion, and contempt in the
14
State v. Jackson, 2015 WI App 49, ¶48, 363 Wis. 2d 554,
866 N.W.2d 768.
15
See majority op., ¶69 ("[T]he circuit court and court of
appeals, respectively, rebuked officers for 'flagrant' and
'reprehensible' violations of Jackson's rights——rebukes, we
believe, that were warranted and appropriate.").
16
Knapp, 285 Wis. 2d 86, ¶72.
5
No. 2014AP2238-CR.ssa
community, and undermines the important and legitimate
activities of law enforcement.17
¶111 In the instant case, by intentionally flouting
Jackson's rights, law enforcement officers obtained
incriminating statements from Jackson and took a shortcut to
accelerate the discovery of incriminating physical evidence in
Jackson's home——bloody shoes, clothes, and a knife Jackson
allegedly used to kill her husband.18 Although police searched
Jackson's home for incriminating evidence pursuant to a warrant,
the warrant was based in part on statements made during
Jackson's unlawful interrogation, and the shoes, clothes, and
knife were found only after officers brought Jackson (in
custody) to her home at about 2:15 AM to point out the objects.
¶112 The incriminating statements Jackson made before and
after she was given Miranda warnings remain suppressed. The
suppression of Jackson's statements (including those statements
made when she was in her home) is not challenged by the State.
17
"When a public official behaves with such casual
disregard for his constitutional obligations and the rights of
the accused, it erodes the public's trust in our justice system,
and chips away at the foundational premises of the rule of law.
When such transgressions are acknowledged yet forgiven by the
courts, we endorse and invite their repetition." United States
v. Olsen, 737 F.3d 625, 632 (9th Cir. 2013) (Kozinski, C.J.,
joined by four judges, dissenting from denial of rehearing en
banc); see also Knapp, 285 Wis. 2d 86, ¶¶75, 79.
18
See ¶134, infra (quoting Professor LaFave's criticism of
a court's using the inevitable discovery doctrine under these
circumstances).
6
No. 2014AP2238-CR.ssa
Rather, the State challenges only the suppression of the
physical evidence seized at Jackson's home.
¶113 The majority opinion agrees with the court of appeals'
decision reversing the circuit court's suppression of the
incriminating physical evidence.
¶114 A court is clearly saddened and disappointed to
observe and write about intentional police misconduct violating
a constitutional right. A court's expression of commitment to
the Constitution rings hollow, however, if the court allows
Miranda's shield against compelled self-incrimination to be cast
aside without providing a remedy. True, Jackson's incriminating
statements remain suppressed, but the majority does not offer
either Jackson or the people of the State a remedy for the
intentional, unwarranted, and unconstitutional shortcut police
took in discovering the incriminating physical evidence. The
remedy I propose, suppression of the physical evidence, has
shortcomings, but suppression further deters intentional
violations of Miranda, fulfilling "one purpose of the
exclusionary rule[, which] is to deter such shortcuts . . . ."
See 6 Wayne R. LaFave, Search & Seizure § 11.4(a), at 344-45
(5th ed. 2012). Not granting a remedy for this shortcut is not
an acceptable option. See ¶¶136, 138-143, infra.
¶115 I conclude that to ensure that "those we entrust to
enforce the law [do not] intentionally subvert a suspect's
constitutional rights,"19 suppression of the physical evidence
19
Knapp, 285 Wis. 2d 86, ¶83.
7
No. 2014AP2238-CR.ssa
obtained at Jackson's home is necessary. In concluding that
suppression of the physical evidence is necessary, I adhere to
the reasoning in State v. Knapp, 2005 WI 127, 285 Wis. 2d 86,
700 N.W.2d 899, which held that physical evidence obtained as a
direct result of an intentional violation of Miranda is
inadmissible under Article I, Section 8 of the Wisconsin
Constitution.
¶116 In refusing to suppress the physical evidence obtained
at Jackson's home, the majority opinion applies the inevitable
discovery doctrine, an exception to the exclusionary rule.20 I
disagree with applying the inevitable discovery doctrine in the
instant case. I would hold, based on Knapp, that Article I,
Section 8 of the Wisconsin Constitution does not allow the State
to rely on the inevitable discovery doctrine in cases of
intentional police violations of Miranda.
¶117 I also have concerns about the majority opinion's
approach to the substantive aspects of the inevitable discovery
doctrine. I discuss these concerns in Part II of this dissent.
¶118 For the reasons set forth, I dissent and write
separately.
I
¶119 The physical evidence should be suppressed under
Article I, Section 8 of the Wisconsin Constitution, which
provides (in relevant part):
20
See majority op., ¶92.
8
No. 2014AP2238-CR.ssa
(1) No person . . . may be compelled in any criminal
case to be a witness against himself or herself.
¶120 The text of the relevant portion of the Fifth
Amendment to the United States Constitution is similar:
No person . . . shall be compelled in any criminal
case to be a witness against himself . . . .
¶121 Although the text of Article I, Section 8 and the
Fifth Amendment are similar, we need not interpret our Wisconsin
Constitution in lock-step with the interpretation of the United
States Constitution.21
¶122 In interpreting the Wisconsin Constitution, this court
should take the position espoused by Wisconsin Supreme Court
Justice Abram Smith in 1855:
In view of the obligations imposed upon me, or rather
voluntarily assumed by me, . . . in my present
position, I have felt bound to sustain that
fundamental law——the constitution of the state,
according to its true intent and meaning. That is the
great charter of our rights, to which the humblest may
at all times appeal, and to which the highest must at
all times submit.
Let us then look to that constitution, adopted by the
people of Wisconsin, and endeavor to ascertain its
true intent and meaning . . . .
21
See Knapp, 285 Wis. 2d 86, ¶¶59-62; see also Knapp, 285
Wis. 2d 86, ¶¶84-94 (Crooks, J., concurring); William J.
Brennan, Jr., State Constitutions and the Protection of
Individual Rights, 90 Harv. L. Rev. 489, 500 (1977) ("[W]hile
this results in a divergence of meaning between words which are
the same in both federal and state constitutions, the system of
federalism envisaged by the United States Constitution tolerates
such divergence where the result is greater protection of
individual rights under state law than under federal
law . . . .") (quoted source omitted).
9
No. 2014AP2238-CR.ssa
The people then made this constitution, and adopted it
as their primary law. The people of other states made
for themselves respectively, constitutions which are
construed by their own appropriate functionaries. Let
them construe theirs——let us construe, and stand by
ours.
Att'y Gen. ex rel. Bashford v. Barstow, 4 Wis. 567 (*567), 785
(*757-58) (1855) (emphasis in original).
¶123 I turn to Knapp, which interpreted Article I, Section
8 of the Wisconsin Constitution. The Knapp court broke from the
United States Supreme Court's interpretation of the Fifth
Amendment, holding that when "physical evidence is obtained as
the direct result of an intentional Miranda violation, we
conclude that [Article I, Section 8 of] our constitution
requires that the evidence must be suppressed."22
¶124 Let's begin with the facts in Knapp. The defendant,
Knapp, was a parolee who was seen with a woman who was later
murdered.23 Based on a parole violation, an officer went to the
defendant's house to apprehend him.24 When the officer arrived,
he told Knapp that he had to go to the police station, but never
read him the Miranda warnings.25 Before leaving Knapp's house,
the officer questioned him about what clothes he was wearing
when he was seen with the victim.26 After Knapp pointed out the
22
Knapp, 285 Wis. 2d 86, ¶2 (emphasis added).
23
Knapp, 285 Wis. 2d 86, ¶5.
24
Knapp, 285 Wis. 2d 86, ¶¶6-7.
25
Knapp, 285 Wis. 2d 86, ¶7.
26
Knapp, 285 Wis. 2d 86, ¶8.
10
No. 2014AP2238-CR.ssa
clothes, the officer seized them and took Knapp to the police
station.27 Police later discovered the victim's blood on the
sleeve of Knapp's sweatshirt.28
¶125 Knapp argued that the sweatshirt should be suppressed
based on the officer's intentional violation of Miranda. The
court agreed, relying on Article I, Section 8 of the Wisconsin
Constitution and the deliberate violations of Miranda at issue.
Although the court recognized that the exclusionary rule is not
absolute, the court concluded that the need to deter intentional
violations of individuals' constitutional rights and preserve
the integrity of the judicial system required the application of
the exclusionary rule when physical evidence is obtained as a
direct result of an intentional Miranda violation.29
¶126 Knapp differs from the instant case in that no search
warrant was issued in Knapp.30 The officer in Knapp was not
pursuing other means of searching the defendant's house at the
time the intentional violation of Miranda occurred.31 Thus, the
Knapp court described the location of the physical evidence as a
direct result of the Miranda violation. In contrasting the
27
Knapp, 285 Wis. 2d 86, ¶8.
28
Knapp, 285 Wis. 2d 86, ¶12.
29
See Knapp, 285 Wis. 2d 86, ¶¶74-75, 79, 83.
30
Jackson, 363 Wis. 2d 554, ¶45. Knapp does not involve
the inevitable discovery doctrine. The State in Knapp might
have been able to argue that some chain of events or alternative
line of investigation demonstrated that law enforcement would
have inevitably discovered the physical evidence.
31
See Knapp, 285 Wis. 2d 86, ¶¶7-9.
11
No. 2014AP2238-CR.ssa
instant case with Knapp, the court of appeals stated that "the
knife, clothes, and shoes [in the instant case] would have been
inevitably discovered by lawful means, notwithstanding the
police misconduct."32 The "lawful means" to which the court of
appeals refers is the search of Jackson's home pursuant to the
warrant.
¶127 Like the court of appeals, the majority opinion
concludes that the physical evidence inevitably would have been
discovered pursuant to the search warrant.33 Perhaps. But the
search warrant was based in part on Jackson's suppressed
statements obtained in violation of Miranda.
¶128 To validate the search warrant, the court of appeals
and majority opinion have to excise Jackson's suppressed
statements.34 Furthermore, although law enforcement had a search
warrant, the physical evidence was found only after the officers
took Jackson to her home and asked her to show them where she
discarded the clothes, shoes, and knife. On these facts, the
circuit court suppressed the physical evidence.
¶129 Whether locating the physical evidence in the instant
case fits the verbal formula in Knapp of a "direct" result of a
Miranda violation, locating the physical evidence is very much
related to and can be described as a direct outgrowth of
32
Jackson, 363 Wis. 2d 554, ¶45.
33
See majority op., ¶75.
34
See majority op., ¶¶75-76; Jackson, 363 Wis. 2d 554,
¶¶17-18.
12
No. 2014AP2238-CR.ssa
Jackson's illegal interrogation before and after the Miranda
warnings. By the time Jackson was taken to her home it was
about 2:15 AM, and Jackson had been in custody and subject to
questioning for more than seven hours. The circuit court
suppressed Jackson's statements, including statements she made
when the officers took her to her home and had her locate the
physical evidence.
¶130 In suppressing Jackson's statements, the circuit court
relied on Missouri v. Seibert, 542 U.S. 600 (2004),35 and
concluded that Jackson's statements were involuntary under the
circumstances.36 The direct causal connection between Jackson's
illegally obtained (and properly suppressed) statements and the
discovery of the physical evidence is clear and undeniable.
¶131 I do not view any supposed difference between Knapp
and the instant case as sufficient to depart from the reasoning
and holding of Knapp. Relying on the rhetorical distinction
between evidence obtained as a "direct" (versus "indirect?")
35
In Missouri v. Seibert, 542 U.S. 600 (2004), the United
States Supreme Court addressed whether suppression of evidence
is necessary for statements made after Miranda warnings are
given if, before the officers gave the suspect Miranda warnings,
an unconstitutional interrogation had taken place. The court
held that such statements must be suppressed despite "the
midstream recitation of warnings after interrogation and
unwarned confession" in order to effectively comply with
Miranda. Seibert, 542 U.S. at 604.
36
The State did not challenge these aspects of the circuit
court's decision. Indeed the State accepted for purposes of its
brief that "Jackson's statements to the police were obtained in
violation of Miranda and were involuntary, [and] that the police
improperly relied on information obtained from Jackson to locate
[the physical evidence]." Brief of Plaintiff-Appellant at 11.
13
No. 2014AP2238-CR.ssa
result of a violation of Miranda distorts the facts of the
instant case and the policy underlying Miranda and Knapp. The
majority opinion's decision allowing the use of the inevitable
discovery doctrine to avoid suppression of evidence that was
concededly obtained as a direct outgrowth of a coercive,
deliberate, illegal interrogation allows the inevitable
discovery doctrine to swallow Miranda, the exclusionary rule,
and Knapp.
¶132 Moreover, I disagree with the majority opinion's
holding that good faith by law enforcement is not a prerequisite
for relying on the inevitable discovery doctrine. I view good
faith in the instant case as an essential element for the
application of the inevitable discovery doctrine.
¶133 In disregarding the law enforcement officers' bad
faith, the majority opinion relies on Nix v. Williams, 467
U.S. 431 (1984), the famous (or "infamous"37) Christian Burial
Case. In Nix, the United States Supreme Court concluded that
requiring "that the prosecution . . . prove the absence of bad
faith would . . . withhold[] from juries relevant and undoubted
truth that would have been available to police absent any
unlawful police activity" and would "put the police in a worse
position that they would have been in if no unlawful conduct had
transpired."38
37
See Knapp, 285 Wis. 2d 86, ¶30.
38
Nix v. Williams, 467 U.S. 431, 445 (1984); see also
majority op., ¶¶71-72.
14
No. 2014AP2238-CR.ssa
¶134 Nix has spawned significant criticism. For example,
Professor Wayne LaFave's treatise on criminal law (referenced by
the majority opinion) states:
Because one purpose of the exclusionary rule is to
deter . . . shortcuts, there is much to be said for
the proposition that the "inevitable discovery" rule
should be applied only when it is clear that "the
police officers have not acted in bad faith to
accelerate the discovery" of the evidence in question.
6 Wayne R. LaFave, Search & Seizure, § 11.4(a) at 344-46 (5th
ed. 2012) (quoting Brian S. Conneely & Edmond P. Murphy,
Comment, Inevitable Discovery: The Hypothetical Independent
Source Exception to the Exclusionary Rule, 5 Hofstra L. Rev.
15
No. 2014AP2238-CR.ssa
137, 160 (1976)).39 Professor LaFave does not consider
compelling the argument that "'if we hadn't done it wrong, we
would have done it right . . . .'" 6 LaFave, Search & Seizure,
§ 11.4(a), at 347 (quoted source omitted).
¶135 The majority asserts that the uncertainty law
enforcement officers face over the applicability of the
inevitable discovery doctrine when they intentionally violate an
individual's rights justifies application of the inevitable
39
For criticism of and proposed limitations on the
inevitable discovery doctrine, see also, e.g., Eugene L.
Shapiro, Active Pursuit, Inevitable Discovery, and the Federal
Circuits: The Search for Manageable Limitations Upon an
Expansive Doctrine, 39 Gonz. L. Rev. 295 (2003-04) (noting the
expansiveness of the inevitable discovery doctrine and
describing a significant split among the federal circuits
concerning whether the inevitable discovery doctrine requires a
separate and independent investigation be ongoing at the time of
the constitutional illegality); William C. Heffernan, Foreword:
The Fourth Amendment Exclusionary Rule as a Constitutional
Remedy, 88 Geo. L.J. 799, 856-57 (2000) (exploring alternatives
to the exclusionary rule and arguing that the inevitable
discovery doctrine should require (1) an independent
investigation be underway when a tainted chain of events is
unfolding; and (2) a demonstration by the State by clear and
convincing evidence that the independent investigation would
produce the same information discovered were it not for the
illegality); George C. Thomas III & Barry S. Pollack, Balancing
the Fourth Amendment Scales: The Bad-Faith "Exception" to
Exclusionary Rule Limitations, 45 Hastings L.J. 21, 57 (1993)
(noting the "inherently speculative nature" of the inevitable
discovery doctrine and suggesting there is less reason to engage
in that speculation where evidence was obtained through a bad
faith violation of a defendant's rights); John E. Fennelly,
Refinement of the Inevitable Discovery Exception: The Need for
a Good Faith Requirement, 17 Wm. Mitchell L. Rev. 1085, 1100-06
(1991) (arguing that the courts should not favor intentional
police lawbreaking by affording the misconduct the same
treatment given honest mistakes).
16
No. 2014AP2238-CR.ssa
discovery doctrine.40 No empirical evidence supports this bare
assertion. We are in an era recognizing the importance of
evidence-based decision making, but all the majority musters is
conjecture.
¶136 The majority also emphasizes the "societal costs" of
applying the exclusionary rule in instances in which evidence
inevitably would have been discovered by lawful means.41 To be
sure, there are such costs; however, other proposed remedies for
law enforcement misconduct present other problems.42 But not
granting a remedy in the instant case is not an acceptable
option. Nowhere in the majority's calculus is the cost to
judicial integrity and deterrence of allowing the use of
evidence obtained by flagrant and reprehensible police
wrongdoing.
¶137 In Knapp, two key factors led this court to conclude
that Article I, Section 8 required the suppression of evidence
obtained as a direct result of a violation of Miranda. First,
failing to suppress such evidence would "'minimize the
seriousness of the police misconduct producing the evidentiary
fruits, breed contempt for the law, and encourage the type of
conduct that Miranda was designed to prevent, especially where
40
Majority op., ¶71 (quoting Nix, 467 U.S. at 445)
(alteration in original).
41
Majority op., ¶¶46, 55.
42
See generally Heffernan, supra note 39, at 818-19, 848-
51, 854-58 (discussing the exclusionary rule's limitations and
advantages as a remedy and exploring alternative remedies for
constitutional violations).
17
No. 2014AP2238-CR.ssa
the police conduct is intentional, as it was here.'"43 Second,
allowing the State to benefit from ill-gotten gains undermines
the integrity of the judicial system.44
¶138 I agree with those who have written that "the need to
deter is greater when the illegal activity of the police is
deliberate. Society needs to make clear to the enforcers of our
laws that when they deliberately violate constitutional
principles a penalty must be paid."45
¶139 Thus, three states, Alaska, Massachusetts, and North
Dakota, each relying on a state law or constitution, have
narrowed the inevitable discovery doctrine to cases in which
police do not knowingly or intentionally violate a suspect's
rights. See, e.g., Commonwealth v. Mattier, 50 N.E.3d 157, 167
(Mass. 2016) (citing Commonwealth v. Sbordone, 678 N.E.2d 1184,
1190 (Mass. 1997)); State v. Holly, 833 N.W.2d 15, 33 (N.D.
2013) (citing State v. Phelps, 297 N.W.2d 769, 775 (N.D. 1980));
Smith v. State, 948 P.2d 473, 481 (Alaska 1997); see also United
States v. Madrid, 152 F.3d 1034, 1041 (8th Cir. 1998) (declaring
that courts are not required to apply the inevitable discovery
doctrine "without regard to the severity of the police
misconduct"); but see State v. Garner, 417 S.E.2d 502, 510-11
(N.C. 1992) (rejecting this view).
43
Knapp, 285 Wis. 2d 86, ¶75 (quoted source omitted).
44
Knapp, 285 Wis. 2d 86, ¶79.
45
Steven P. Grossman, The Doctrine of Inevitable Discovery:
A Plea for Reasonable Limitations, 92 Dick. L. Rev. 313, 356
(1988) (emphasis added).
18
No. 2014AP2238-CR.ssa
¶140 As the Massachusetts Supreme Judicial Court put it:
We think the severity of the constitutional violation
is critical in deciding whether to admit evidence that
it is shown would inevitably have been
discovered. . . . Bad faith of the police, shown by
such activities as conducting an unlawful search in
order to accelerate discovery of the evidence, will be
relevant in assessing the severity of any
constitutional violation.
Commonwealth v. O'Connor, 546 N.E.2d 336, 340 (Mass. 1989)
(internal citations omitted).
¶141 The concerns raised by these cases and commentators
are echoed by our own decision in Knapp, and are as salient in
the instant case as they were in Knapp. The circuit court, the
court of appeals, the majority opinion, and I all agree that the
violations of Jackson's rights in the instant case were
intentional, deliberate, unjustifiable, and profoundly
troubling. I am troubled that the majority opinion, despite its
recognition of law enforcement's wrongdoing, minimizes the
seriousness of the wrongdoing and in effect may encourage future
violations by allowing law enforcement to fall back on the
inevitable discovery doctrine even in unfortunate cases like
this one.
¶142 Justice Louis Brandeis got it right in Olmstead v.
United States, 277 U.S. 438, 468 (1928) (Brandeis, J.,
dissenting):
Crime is contagious. If the government becomes a
lawbreaker, it breeds contempt for law; it invites
every man to become a law unto himself; it invites
anarchy. To declare that in the administration of the
criminal law the ends justifies the means——to declare
that the government may commit crimes in order to
secure the conviction of a private criminal——would
19
No. 2014AP2238-CR.ssa
bring terrible retribution. Against that pernicious
doctrine this court should resolutely set its face.
¶143 Accordingly, I would adhere to our reasoning in Knapp,
not the United States Supreme Court's reasoning in Nix, and hold
that under Article I, Section 8 of the Wisconsin Constitution,
the State may not rely on the inevitable discovery doctrine in
cases in which law enforcement officers acted in bad faith by
deliberately failing to give Miranda warnings.
II
¶144 I have reservations about the majority opinion's
discussion of the substantive aspects of the inevitable
discovery doctrine. The majority opinion reformulates the
three-prong analysis of the inevitable discovery doctrine
applied by the court of appeals. Reformulating the analysis of
the inevitable discovery doctrine was not an issue raised or
discussed by the parties. Instead of the normal progression of
issues being narrowed or limited on appeal, the majority opinion
expands the issues.
¶145 True, as the majority opinion points out, some
exceptions to the court of appeals' formulation of the
inevitable discovery doctrine may be necessary, but the court of
appeals' three-prong analysis (unlike the majority's free-
flowing inevitability analysis) provides important guidance to
circuit courts and the court of appeals.46
¶146 Additionally, given the focus of the inevitable
discovery doctrine on whether evidence inevitably would have
46
See majority op., ¶¶62-66.
20
No. 2014AP2238-CR.ssa
been discovered by lawful means, I question the majority
opinion's reliance on the "preponderance of the evidence" burden
of proof.47 "Proof by a preponderance of the evidence would
require a mere showing that [an occurrence] is more likely than
not . . . ."48
¶147 An inevitability is defined as something that is "sure
to happen."49 There is an obvious tension in requiring proof
that an event is "more likely than not to happen" when the fact
to be proved is that the event is "sure to happen."50
¶148 I would follow the practice of other courts and hold
the State to the heightened "clear and convincing evidence"
burden of proof in inevitable discovery cases. Increasing the
burden of proof has both practical and symbolic significance,
47
See majority op., ¶66.
48
In re Commitment of West, 2011 WI 83, ¶80, 336
Wis. 2d 578, 800 N.W.2d 929.
49
Merriam-Webster's Learner's Dictionary, Inevitable
(2008).
50
See United States v. Heath, 455 F.3d 52, 59 n.6 (2d Cir.
2006) (describing the "semantic puzzle" of "using the
preponderance of the evidence standard to prove inevitability"
and concluding that it was sufficient to "note the difference
between proving by a preponderance that something would have
happened and proving by a preponderance of the evidence that
something would inevitably have happened.") (quoted source
omitted; 6 Wayne R. LaFave, Search and Seizure, § 11.4(a) at
359-61 (5th ed. 2012) ("A 'majority of the courts that have
utilized the exception have tended to define the necessary
probability in terms of 'would,' which is the constitutional
standard . . . .' 'It is not enough to show the evidence 'might'
or 'could' have been otherwise obtained.'") (internal citations,
footnotes, and quotation marks omitted).
21
No. 2014AP2238-CR.ssa
impressing upon the factfinder the importance of the decision
and reducing the chance that hypothetical findings of
inevitability will swallow the exclusionary rule. See, e.g.,
State v. Rodrigues, 286 P.3d 809, 823 (Haw. 2012) (quoting State
v. Lopez, 896 P.2d 889, 907 (Haw. 1995)); State v. Smith, 54
A.3d 772, 786-87 (N.J. 2012) (citing State v. Sugar, 495
A.2d 90, 104 (N.J. 1985)); Smith v. State, 948 P.2d 473, 479
(Alaska 1997); see also Nix, 467 U.S. at 459 (Brennan, J.,
dissenting) (asserting that proof of the inevitability of
discovering evidence by lawful means should be shown by clear
and convincing evidence).
¶149 For the reasons set forth, I dissent and write
separately.
¶150 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
22
No. 2014AP2238-CR.ssa
1