State of Iowa v. Michael Hillery ( 2021 )

IN THE SUPREME COURT OF IOWA
No. 19–0725
Submitted December 15, 2020—Filed March 19, 2021
STATE OF IOWA,
Appellant,
vs.
MICHAEL HILLERY,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Dubuque County, Monica L.
Zrinyi Wittig, Judge.
Defendant seeks further review of court of appeals decision reversing
a district court order granting his motion to suppress based on a promise
of leniency. DECISION OF COURT OF APPEALS AFFIRMED IN PART
AND VACATED IN PART; DISTRICT COURT SUPPRESSION RULING
REVERSED; CASE REMANDED WITH INSTRUCTIONS.
Waterman, J., delivered the opinion of the court, in which all justices
joined. Appel, J., filed a special concurrence.
Thomas J. Miller, Attorney General, Kevin Cmelik (argued),
Assistant Attorney General, Katie Krickbaum, Assistant Attorney General,
C.J. May, County Attorney, and Shea M. Chapin, Assistant County
Attorney, for appellant.
Martha J. Lucey (argued), State Appellate Defender, for appellee.
3/18/2021 3:13 PM 2
WATERMAN, Justice.
In this appeal, we must decide whether the district court erred by
granting a motion to suppress physical evidence and statements based on
a police officer’s alleged promise of leniency. The officer observed the
defendant make a possible drug buy and initiated a Terry stop on a public
sidewalk. After the officer told him he would not be arrested that day if he
cooperated but could be arrested later, the defendant handed over crack
cocaine and marijuana. The defendant’s subsequent cooperation fell short
and three months later, the officer charged him with possession. The
district court granted the defendant’s motion to suppress after ruling the
officer made an improper promise of leniency and the narcotics the
defendant handed over were “fruit of the poisonous tree.” We granted the
State’s application for discretionary review, and transferred the case to the
court of appeals, which reversed the suppression ruling. We then granted
the defendant’s application for further review.
On our review, we agree with the court of appeals that the officer
properly detained the defendant in a Terry stop, and the ensuing
discussion seeking a cooperation agreement did not cross the line to an
improper promise of leniency. The officer kept his promise not to arrest
the defendant that day, and fairly warned the defendant that he could be
arrested later for possession. We decline the State’s repetitive invitation
to abandon our common law evidentiary test for promises of leniency. For
the reasons elaborated below, we affirm the decision of the court of appeals
on the alleged promise of leniency, vacate its decision on the defendant’s
constitutional claims, reverse the district court’s suppression ruling, and
remand the case for a new suppression hearing on the constitutional
claims and the inevitable discovery doctrine.
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I. Background Facts and Proceedings.
On the afternoon of November 14, 2018, Investigator Chad Leitzen
of the Dubuque Drug Task Force drove past a house located at
1910 1/2 Ellis Street (Ellis house) where he saw Michael Hillery riding a
bicycle up to the front door. Leitzen circled back to the Ellis house about
three minutes later and saw Carl Watkins, known as “Country,” standing
next to Hillery, who promptly biked away.
Leitzen had been a police officer for sixteen years and had been
trained on drug interdiction. He testified that a sign of uncontrolled drug
buys is when numerous people make short-term visits—less than five to
ten minutes—to a specific address where they have “no known ties.”
Leitzen noted that he had never seen Hillery at the Ellis house before, that
Hillery made a three-minute stop, that the two men did not appear to be
close in age, and that nothing indicated that they had a relationship other
than as drug dealer–user. Leitzen knew that Hillery had drug convictions,
that officers were investigating the Ellis house after a heroin overdose, and
that Watkins reportedly sold crack cocaine. These facts led Leitzen to
believe that he had witnessed a narcotics transaction.
Leitzen followed Hillery, waiting to stop him until they were out of
Watkins’s view. Leitzen drove past Hillery, who was pushing his bike up
a hill. Leitzen parked and called out to him: “Mike, can you stop just a
minute so I can talk to you?” Hillery ignored him and continued walking.
Leitzen got out of his car and approached. He smelled a strong odor of
fresh marijuana coming from Hillery. No one else was present. Leitzen
again told him to stop; Hillery persisted in ignoring him. Because Leitzen
was in plain clothes, he showed Hillery his badge and identified himself as
Investigator Leitzen with the Drug Task Force. Hillery continued walking
and said he had done nothing wrong.
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Leitzen stepped in front of Hillery’s bicycle and this time told Hillery
he needed to give him what he had just bought. Hillery responded that he
had not bought anything and had gone to the house to drop off money he
owed a coworker. Leitzen replied that he was sure Hillery had bought
something and that Hillery needed to give it to him. As Leitzen later
testified,
I told [Hillery] that I was sure that he bought something, and
he needs to give it to me. Um, I also told him that I was not
looking to take him to jail that day. I said, I’m looking more
for your cooperation to try and get your help to get into that
place. Um, I said, That’s not to say that you’re not going to go
to jail someday for this, but I’m not looking to take you to jail
today for it. I just want your cooperation.
Hillery then reached into his front left pants pocket and pulled out his
hand, balled up in a fist. It was clear to Leitzen that Hillery had taken
something out of his pocket. Hillery held his hand out, but then hesitated
and repeated that he had not bought anything and had not done anything
wrong. Leitzen put his hand underneath Hillery’s balled up fist and told
Hillery that he needed to drop what he had. Hillery dropped a plastic bag
containing what Leitzen recognized as crack cocaine.
As soon as he dropped the bag, Hillery shoved his bike into Leitzen,
who dropped the crack cocaine and his radio. Hillery took off running.
Leitzen gave chase and caught him. As Leitzen later testified,
[A]s soon as I caught him, he -- he immediately said, I thought
you said I’m not going to jail today. And I said, I told you that
I need your cooperation, and you’re not going to go to jail today
if you start cooperating, but that better happen pretty quickly,
because there’s officers coming, and I could hear them
coming.
At that point, a man stepped out of an apartment and told Leitzen he had
called the police.
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Soon after, Officer Jay Murray arrived. By that time, Hillery had
told Leitzen he would cooperate. Leitzen asked Hillery to help him find the
bag of crack cocaine, and Hillery found it where Leitzen had dropped it.
Leitzen asked Hillery if he had marijuana in his pocket because he could
smell it. Hillery told him that he had a small amount in his pocket and
handed it over when Leitzen told him to do so. Hillery told Leitzen that
Watkins sold him the crack cocaine for $40 and the marijuana for $30.
Leitzen called Investigator Adam Williams to the scene, who had
been working on the overdose case involving the Ellis house. Williams
spoke with Hillery, who said he would be willing to cooperate with the Drug
Task Force, exchanged phone numbers with the officers, and shortly
thereafter, was allowed to leave the area with his bicycle. Both
investigators testified that they never promised Hillery that he would not
be charged with a crime later. Hillery’s promised cooperation proved
problematic.
Leitzen testified that Hillery was “difficult” to work with: at first, the
officers were unable to get ahold of him and once they did, he had
essentially lost all contact with the target at the Ellis house and lost the
phone number. When officers tried to make a recorded phone call for an
undercover buy, the phone number was incorrect and the call was
answered by a Hispanic male who did not match the target. Hillery tried
another time to perform an undercover purchase, but no one answered
when he knocked on the door of the target house. On February 15, 2019,
after learning that Hillery had been arrested on a different drug charge,
Leitzen charged him with one count of possession of a controlled
substance (crack cocaine) and one count of possession of a controlled
substance (marijuana) based on the November 14 incident. Hillery pled
not guilty.
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On March 12, Hillery’s counsel filed a motion to suppress, alleging
that his stop and detention violated his constitutional rights under the
Fourth and Fourteenth Amendments to the United States Constitution
and article I, section 8 of the Iowa Constitution. He also argued that he
was questioned without counsel, violating the Fifth and Sixth
Amendments to the United States Constitution and article I, section 10 of
the Iowa Constitution. Two days before the hearing on the motion, Hillery
filed an addendum in which he asked for suppression of “evidence and any
confession or statements” that he had made because they resulted from a
promise of leniency, in violation of the Fifth Amendment to the United
States Constitution and article I, sections 1 and 8 of the Iowa Constitution.
At the motion hearing, Leitzen and Williams testified. The State
argued that Leitzen had “reasonable suspicion to believe that a crime may
have occurred” and that Leitzen’s statement that Hillery would not be
arrested that day, but that he could be charged later, was not “harmful.”
Defense counsel argued that the stop was improper and that the promise
of leniency made Hillery’s actions involuntary such that the court should
suppress Hillery’s statements and the physical evidence.
The district court granted the motion to suppress, finding that the
evidence obtained after the officer promised leniency was fruit of the
poisonous tree and inadmissible. The State filed an application for
discretionary review as well as a motion to reconsider. We granted the
State’s application for discretionary review and motion for stay. The next
day, after it had lost jurisdiction, the district court denied the State’s
motion to reconsider, stating, there was “insufficient probable cause to
believe that criminal activity was afoot.” We transferred the case to the
court of appeals. On appeal, both sides briefed the constitutional claims
and inevitable discovery doctrine as well as the common law evidentiary
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test for promises of leniency. The court of appeals reversed the district
court’s suppression ruling, holding that Leitzen made no improper promise
of leniency. The court of appeals rejected Hillery’s constitutional claims
without reaching the inevitable discovery issue. We granted Hillery’s
application for further review.
II. Standard of Review.
“Our review of the district court’s ruling on promises of leniency
under the common law evidentiary test is for corrections of errors at law.”
State v. Howard, 825 N.W.2d 32, 39 (Iowa 2012). “We review
determinations of whether to suppress both evidence obtained and
statements made in violation of constitutional guarantees de novo.” State
v. Tyler, 867 N.W.2d 136, 152 (Iowa 2015).
III. Analysis.
We first address whether the common law evidentiary test applies
and hold that it does. We decline the State’s renewed invitation to abandon
that test. We conclude that the officers’ statements to Hillery did not cross
the line into an improper promise of leniency. We then explain why we
decline to decide the constitutional challenges or inevitable discovery
argument due to the inadequate record and remand the case for the
district court to conduct a new suppression hearing on those issues.
A. The Common Law Evidentiary Test Applies. The State argues
the common law test should not be applied for two reasons: (1) Hillery
failed to raise that ground for suppression in district court; and (2) we
should abandon the evidentiary rule in favor of the constitutional
voluntariness standard. Neither reason is persuasive.
First, we agree with the court of appeals that Hillery adequately
raised the common law issue in district court. Hillery’s addendum to his
motion to suppress argued the “evidence and statements . . . were obtained
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. . . after a promise of leniency” in violation of constitutional provisions.
But he also cited precedent to the district court applying our common law
evidentiary test, including State v. Howard, where we “directed district
courts to ‘first employ the evidentiary test to determine the admissibility
of confessions challenged on grounds of a promise of leniency.’ ” 825
N.W.2d at 39 (quoting State v. Madsen, 813 N.W.2d 714, 726 n.1 (Iowa
2012)). As we further explained in State v. Madsen, “[i]f application of the
evidentiary test requires suppression of the confession, the district court
need not also apply a totality-of-the-circumstances test.” 813 N.W.2d at
726 n.1. The prosecution was not blindsided when the district court
applied the evidentiary test in its suppression ruling, and that issue—
squarely decided by the district court—is preserved for appellate review.
Second, we have already considered and rejected the State’s
arguments for abandoning the evidentiary test. In Madsen, we concluded
that
the evidentiary rule has the advantage of clarity and is a better
deterrent against police misuse of threats and promises of
leniency to obtain confessions. Courts and commentators
have long recognized promises of leniency can induce false
confessions leading to wrongful convictions of the innocent.
Id. at 725. We elaborated that the “use of a per se exclusionary rule
eliminates the need for the court to attempt to read the mind of defendant
to determine if his confession, in fact, was induced by or made in reliance
upon the promise of leniency.” Id. at 726. For the same reasons, as well
as stare decisis, we again decline to abandon the test. See Book v.
Doublestar Dongfeng Tyre Co., 860 N.W.2d 576, 594 (Iowa 2015) (“Stare
decisis alone dictates continued adherence to our precedent absent a
compelling reason to change the law.”).
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B. The Officer Did Not Improperly Promise Leniency.
“Voluntary confessions are not merely a proper element in law
enforcement, they are an unmitigated good, essential to society’s
compelling interest in finding, convicting, and punishing those who violate
the law.” State v. Polk, 812 N.W.2d 670, 674 (Iowa 2012) (quoting State v.
Pearson, 804 N.W.2d 260, 266 (Iowa 2011)). But “promises of leniency
create the risk of a false confession leading to a wrongful conviction.” Id.Thus, “a ‘confession can never be received in evidence where the prisoner
has been influenced by any threat or promise.’ ” Id. (quoting State v.
McCoy, 692 N.W.2d 6, 27 (Iowa 2005)). This per se rule “deters police from
using a tactic that might induce the innocent to confess falsely.” Id.We agree with the court of appeals that Officer Leitzen did not make
Hillery an improper promise of leniency. Rather, after a proper Terry stop,
Leitzen urged Hillery to cooperate:
I told [Hillery] that I was sure that he bought something, and
he needs to give it to me. Um, I also told him that I was not
looking to take him to jail that day. I said, I’m looking more
for your cooperation to try and get your help to get into that
place. Um, I said, That’s not to say that you’re not going to go
to jail someday for this, but I’m not looking to take you to jail
today for it. I just want your cooperation.
Leitzen acted within his authority as a police officer by offering to refrain
from arresting Hillery “that day” while warning Hillery he could be charged
later. Leitzen kept his promise and did not arrest Hillery that day.
We have never held that such discussions, in the context of seeking
a suspect’s cooperation agreement, constitute an improper promise of
leniency requiring suppression of statements or physical evidence. The
court of appeals determined that “Officer Leitzen’s statement that he would
not take Hillery to jail that day and wanted Hillery’s cooperation to build a
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case against someone else was not language that was likely to induce
Hillery to make a false confession.” We agree.
As the State argued, “[A]n offer to enter into a long-term cooperation
agreement is not the type of ‘promise’ that warrants per se exclusion of
any statements that follow.” Cooperation agreements bind both the
defendant and the State, decreasing the risk of an unfair advantage. See
State v. Beres, 943 N.W.2d 575, 583 (Iowa 2020) (holding that the state’s
breach of a plea agreement was not excused by the nonoccurrence of the
defendant’s promised interview, because the state itself “refused to
cooperate in the scheduling or taking of an interview”); State v. Bergmann,
600 N.W.2d 311, 315 (Iowa 1999) (“[T]rial counsel failed to perform an
essential duty when he did not object to the prosecutor’s breach of the
cooperation agreement.”). When an officer offers the defendant the
opportunity to cooperate to avoid immediate arrest, the defendant has a
choice, albeit a difficult one. However, “the criminal process often requires
suspects and defendants to make difficult choices.” South Dakota v.
Neville, 459 U.S. 553, 564, 103 S. Ct. 916, 923 (1983).
Hillery’s case is distinguishable from those holding the officer
improperly promised leniency to obtain a confession. In State v. McCoy,
the defendant confessed after the detective told him at least twenty-five
times that “if he didn’t pull the trigger he would not be in any trouble.”
692 N.W.2d at 28. We reversed his conviction for first-degree murder and
required a new trial. Id. at 12, 31. In State v. Kase, we held the officer
crossed the line by telling the defendant “that if she told him what she
knew about Vaughn’s death and signed a consent to search her apartment
no criminal charges would be filed against her; otherwise, . . . she would
be charged with murder.” 344 N.W.2d 223, 226 (Iowa 1984). We reversed
her conviction for first-degree murder and required a new trial. Id. at 224,
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227. By contrast, Leitzen advised Hillery that he could “go to jail someday
for this.”
Leitzen’s disclaimer kept his statements to Hillery from crossing the
line into an improper promise of leniency. See State v. Whitsel, 339 N.W.2d
149, 153 (Iowa 1983) (holding no improper promise of leniency was made
when defendant confessed after the officers offered to report his
cooperation to the county attorney while expressly disclaiming any
guarantee that he would not be charged). Indeed, we have noted the
absence of such disclaimers when holding an officer improperly promised
leniency:
Detective Hull’s repeated references to getting help combined
with his overt suggestions that after such treatment Howard
could rejoin Jessica and A.E. conveyed the false impression
that if Howard admitted to sexually abusing A.E. he merely
would be sent to a treatment facility similar to that used to
treat drug and alcohol addiction in lieu of further punishment.
Significantly, Detective Hull did not counter this false
impression with any disclaimer that he could make no promises
or that charges would be up to the county attorney. We hold
his interrogation crossed the line into an impermissible
promise of leniency, rendering the confession that followed
inadmissible.
Howard, 825 N.W.2d at 41 (emphasis added).
A closer case is In re J.D.F., 553 N.W.2d 585 (Iowa 1996). There, the
officer confronted a juvenile reportedly seen earlier carrying a weapon. Id.
at 587. The juvenile initially denied having a weapon, but then revealed
its location after the officer told him if he did so the officer “would not take
him into custody at juvenile hall nor would he file charges against him.”
Id. The county attorney later filed charges against the juvenile, whom we
held was prejudiced by the officer’s promise of leniency. Id. at 589–90.
But unlike the officer in J.D.F., Leitzen accurately warned Hillery he could
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be charged later and merely promised, truthfully, that he would not take
him to jail that day.
We hold that the district court erred by ruling that Leitzen made an
improper promise of leniency. We therefore do not reach the State’s
alternative argument that physical evidence cannot be suppressed as a
remedy for an improper promise of leniency.
C. The Constitutional Claims and Inevitable Discovery Require
a New Suppression Hearing. The district court granted Hillery’s motion
to suppress based on its erroneous ruling on the evidentiary test without
deciding whether he was subjected to a custodial interrogation and
without applying the totality-of-the-circumstances test. See Madsen, 813
N.W.2d at 726 n.1 (“If the district court finds the evidentiary test does not
require exclusion, it should still employ the totality-of-the-circumstances
test to ensure the State has met its burden of establishing that defendant’s
confession was voluntary.”). Hillery argues that his action in taking the
crack cocaine from his pocket and dropping it into Leitzen’s hand was
tantamount to a confession coerced by the officer’s commands. The court
of appeals determined that his “incriminating statements were voluntarily
made” and that he “was not coerced or under duress” and found no
violation of his Miranda rights. We in turn agree with the State’s appellate
brief that we should remand the case for a new suppression hearing on
the constitutional claims.
The State argues that if Hillery had not handed over the drugs, he
would have been arrested, and the physical evidence inevitably would have
been discovered in the ensuing search incident to arrest. The inevitable
discovery issue was not decided in the suppression ruling under review.
The district court’s subsequent ruling (denying the State’s motion to
reconsider) would foreclose the State’s inevitable discovery argument
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based on the district court’s belated and erroneous conclusion that there
was no probable cause to arrest Hillery. That ruling is a nullity, because
it was filed the day after we granted discretionary review and thereby
divested the district court of jurisdiction. See State v. Mallett, 677 N.W.2d
775, 776–77 (Iowa 2004) (vacating district court ruling filed after the notice
of appeal divested jurisdiction). Because the issue likely will arise on
remand, however, we reiterate that under our precedent, the smell of
marijuana on Hillery’s person alone supports a probable cause finding.
“[A] trained officer’s detection of a sufficiently distinctive odor [of
marijuana], by itself or when accompanied by other facts, may establish
probable cause.” State v. Watts, 801 N.W.2d 845, 854 (Iowa 2011)
(emphasis added). And here, other facts supported probable cause: Officer
Leitzen knew Hillery had narcotics convictions and saw him make a
possible drug buy in a three-minute encounter with a suspected drug
dealer at a house connected to a recent drug overdose.
We agree with the court of appeals that this encounter began as a
proper Terry stop. “Our decisions have universally held that the purpose
of a Terry stop is to investigate crime.” State v. Tyler, 830 N.W.2d 288,
293 (Iowa 2013). Miranda warnings were not required at the outset. See
Maryland v. Shatzer, 559 U.S. 98, 113, 130 S. Ct. 1213, 1224 (2010)
(“[T]he temporary and relatively nonthreatening detention involved in a
traffic stop or Terry stop does not constitute Miranda custody.” (citation
omitted)). The parties dispute whether the subsequent interactions led to
a custodial interrogation requiring a Miranda warning or an involuntary
confession under the totality-of-the-circumstances test. And the parties
dispute whether Hillery would have been arrested that day if he had not
turned over the drugs and agreed to cooperate. The State concedes he was
not arrested that day. Officer Leitzen did not testify whether he would
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have arrested and searched Hillery had he failed to hand over the crack
cocaine. In our view, an evidentiary record should be developed on the
inevitable discovery issue that may support the admissibility of the
physical evidence regardless of whether Hillery’s street-side confession
was involuntary or violated Miranda.
Courts suppress evidence obtained in violation of constitutional
rights to deter police misconduct. Nix v. Williams, 467 U.S. 431, 442–43,
104 S. Ct. 2501, 2508 (1984). Yet,
[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. at 444, 104 S. Ct. at 2509; see also State v. Seager, 571 N.W.2d 204,
211 (Iowa 1997) (“Similarly, if the evidence ‘ultimately or inevitably would
have been discovered by lawful means,’ the exclusionary rule serves no
purpose and does not apply.” (quoting Nix, 467 U.S. at 444, 104 S. Ct. at
2509)); J.D.F., 553 N.W.2d at 591 (applying inevitable discovery doctrine
to allow evidence of weapon disclosed by juvenile to support his
delinquency adjudication).
IV. Disposition.
For these reasons, we affirm the decision of the court of appeals
holding there was no improper promise of leniency. We reverse the district
court’s suppression ruling. We vacate the court of appeals decision
rejecting Hillery’s constitutional challenges. We remand the case for the
district court to conduct a new suppression hearing on Hillery’s
constitutional claims and the inevitable discovery issue.
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DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT SUPPRESSION RULING
REVERSED; CASE REMANDED WITH INSTRUCTIONS.
All justices concur. Appel, J., files a special concurrence.
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#19–0725, State v. Hillery
APPEL, Justice (concurring specially).
I agree with the majority’s disposition of the question of whether the
officer improperly promised Michael Hillery leniency. Officer Leitzen
testified without contradiction that he told Hillery that “I was not looking
to take him to jail that day” but that he also told Hillery “[t]hat’s not to say
that you’re not going to go to jail someday for this, but I’m not looking to
take you to jail today for it. I just want your cooperation.” There is nothing
in the record to suggest these statements were false or some kind of clever
trick.
The majority remands the case to the district court to allow the
development of a hypothetical “woulda, coulda, shoulda” scenario to
speculate on what Officer Leitzen might have done had events taken a
different turn. The majority notes that the district court did not consider
this issue. As we are not ordinarily first responders on questions of
constitutional dimension, I do not object to remand of the case to consider
the issue. I want to make clear, however, that by remanding the case for
consideration of the inevitable discovery exception we do not necessarily
endorse the position of any party or the application of the inevitable
discovery exception to this case.
The inevitable discovery exception was first embraced by the United
States Supreme Court in an Iowa case, Nix v. Williams. 467 U.S. 431, 104
S. Ct. 2501 (1984). In Nix, a detective convinced Williams to lead police to
the body of a murder victim in a culvert along the interstate in violation of
his Sixth Amendment right to counsel. Id. at 436, 104 S. Ct. at 2505. The
state argued, however, that an organized and systematic police search for
the body was in progress along the interstate, that searchers were
examining culverts, and that they were approaching the body’s location
3/18/2021 3:13 PM 17
when Williams led police to the body. Id. at 435, 104 S. Ct. at 2504. In
short, there was an active and independent source which would have,
based upon “historical facts,” inevitably led to discovery of the body. Id.at 443–44, 448–50, 104 S. Ct. at 2508–09, 2511–12.
The inevitable discovery exception is a variant of the independent
source doctrine. See id. at 443–44, 444 n.5, 104 S. Ct at 2508–09, 2509
n.5. The difference is one of timing. In independent source doctrine cases,
the evidence actually was discovered from an independent source. Id. In
cases involving the inevitable discovery exception there is a difference,
namely, although the independent source was proceeding toward
discovery of the evidence, the evidence was actually discovered as a result
of the illegal conduct. Id. at 444, 104 S. Ct. at 2509.
There is some dispute in the caselaw regarding the proper scope of
the inevitable discovery doctrine. Some cases emphasize that the state
has the burden of showing that the evidence would have been uncovered
in any event from an independent source. United States v. Young, 573
F.3d 711, 722 (9th Cir. 2009) (rejecting inevitable discovery exception
where state failed to identify a source independent of police misconduct).
It has also been held that the state cannot maintain that because there
was probable cause, a warrant could have been obtained. United States v.
Echegoyen, 799 F.2d 1271, 1280 n.7 (9th Cir. 1986).
Further, some courts demand that the state show “historical facts”
that demonstrate the independent source was being actively pursued at
the time of the illegal discovery. Nix, 467 U.S. at 444 n.5, 104 S. Ct. at2509 n.5. For example, in United States v. Eng, the Second Circuit noted
that the state must show “demonstrated historical facts” not mere
hypothetical investigation, to support application of the doctrine. 971 F.2d
854, 861–64 (2d Cir. 1992) (quoting Nix, 467 U.S. at 444 n.5, 104 S. Ct.
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2509 at n.5). Similarly, in United States v. Brookins, the court noted that
the state must show that the means that “made discovery inevitable . . .
were being actively pursued by the police prior to the occurrence of the
illegal police conduct.” 614 F.2d 1037, 1042 n.2 (5th Cir. 1980). See
generally Tom N. McInnis, Nix v. Williams and the Inevitable Discovery
Exception: Creation of a Legal Safety Net, 28 St. Louis U. Pub. L. Rev. 397(2009); 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 (2003–2004); Sarah DeLoach, Comment,
Keeping the Faith with the Independent Source Foundations of Inevitable
Discovery: Why Courts Should Follow Justice Breyer’s Active and
Independent Pursuit Approach From Hudson v. Michigan, 83 Miss. L.J.
1179 (2014); Lauren Young Epstein, Note, Limits of the Inevitable Discovery
Doctrine in United States v. Young: The Intersection of Private Security
Guards, Hotel Guests and the Fourth Amendment, 40 Golden Gate U. L.
Rev. 331 (2010).
Whether these requirements or any other requirements apply and
whether the state has met its burden on the record developed in this case
are matters for the district court to consider on remand.