Petitioners Brief — Nix v. Williams

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No. 82-1851

In The att.

- Supreme Court of the United States

Ae October Term, 1983

Pe CRISPUS NIX, WARDEN OF

| | THE IOWA STATE PENITENTIARY,

Petitioner,

\ vs.

ROBERT ANTHONY WILLIAMS, a

Respondent. meek

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Attorney General of Iowa

*Brent R. Apre.

Deputy Attorney General

QUESTIONS PRESENTED

1. Whether the Court of Appeals exceeded its au-

thority in reaching out to an issue not presented to or liti-

gated in the state or federal trial courts in order to re-

verse a denial of habeas corpus by the District Court?

2. Whether the Court of Appeals violated the dis-

positional rule in Jackson v. Denno, 378 U.S. 368 (1964),

by mandating a third new trial rather than remanding

the case for a limited proceeding where reversal was based

on an issue of constitutional fact which arose only on ap-

peal and on which the State has not had a fair opportunity

to present evidence?

3. Whether the Court of Appeals correctly concluded,

on the record before it, that the State could not show lack

of bad faith on the part of police, when, as the Iowa Su-

preme Court unanimously observed, “the propriety of po-

lice conduct . . . has caused the closest possible division in

every appellate court which has considered the question?”

State v. Williams, 285 N. W. 2d 248, 260 (Iowa 1979) (A.

45).

4. Whether the inevitable discovery exception to the

exclusionary rule requires the State to show lack of sub-

jective bad faith on the part of police officers?

5. Whether the rule in Stone v. Powell, 428 U.S. 465

(1977) should be extended to a Sixth Amendment case

where highly probative and reliable physical evidence is

challenged in a habeas proceeding after a full and fair

opportunity to raise the issue on direct review in state

courts?

TABLE OF CONTENTS

Questions Presented set

Opinions Below 1

Jurisdiction al 1

Constitutional and Statutory Provisions Involved ....

gE 5 a TO ESA OE i

Oe SRE Sa OPS

Argument:

I. Where the record shows that highly probative

and reliable physical evidence discovered as a

result of illegal law enforcement action immi-

nently would have been discovered by lawful in-

dependent investigative activity already in prog-

ress, the evidence is admissible through the in-

evitable discovery exception to the exclusionary

rule without examination of the subjective state

of mind of police officers who engaged in the un-

lawful conduct. 9

A. As unanimously developed in the federal

circuits, the inevitable discovery exception

is consistent with this Court’s well-estab-

lished approach to the exclusionary rule and

has strong policy footing. 9

B. A showing of lack of bad faith on the part of

police officers is not required to invoke the

inevitable discovery exception to the exclu-

sionary rule. 17

II. Even if a showing of absence of bad faith is re-

quired before the inevitable discovery exception

to the exclusionary rule may be invoked, the

Court of Appeals erred in finding the state failed

to show lack of bad faith. 23

iii

TABLE OF CONTENTS—Continued

Pages

A. Petitioner met its burden in demonstrating

that police officers acted without bad faith. ..... 23

B. Since the question of bad faith has not been

litigated in either state or federal trial courts,

the Court of Appeals erred in concluding that

the State could not prove absence of bad

faith. ... a 32

III. The rule in Stone v. Powell should be extended

to inevitable discovery cases where highly pro-

bative and reliable evidence is challenged in a

habeas proceeding after a full and fair »ppor-

tunity to challenge the admissibility of the evi-

dence on direct review in state court. 000... 85

SAUER OA LOY SOM Be aT ar 40

TABLE OF AUTHORITIES

CasEs:

Baker v. McCollen, 443 U.S. 137 (1979) .cccccccmocmmenenennee 24

Brewer vy. Williams, 430 U.S. 387 (1977) 00... 2, 3, 8, 10,

15, 18, 23, 24, 26, 27, 28, 29, 36

Brown v. Illinois, 422 U.S. 490 (1975) occ 19, 33, 34

Brown v. United States, 411 U.S. 223 (1973) 00 34

Chiarella v. United States, 445 U.S. 222 (1980) .......... 34

Engle v. Issac, — U.S. —, 102 S. Ct. 1558 (1982)... = 35

Franks v. Delaware, 438 U.S. 154 (1978) ccc 20

Gov’t of Virgin Islands v. Gereau, 502 F. 2d 914

(3d Cir.), cert. denied 420 U.S. 909 (1975) 10, 22

Haring v. Prosise, 51 U.S. L. W. 4736 (U.S. June

13, 1983) (No. 81-2169) 23

Imbler v. Pachtman, 124 U.S. 409 (1976) 220. ~=— 80

Jackson v. Denno, 378 U.S. 368 (1964) 35

| all

Joh

TABLE OF AUTHORITIES—Continued

Pages

Kastigar v. United States, 406 U.S. 442 (1972) —_..20, 21

McGuire v. United States, 273 U.S. 95 (1927) 000. «=—-22

Mackey v. United States, 401 U.S. 667 (1970) ou... = 40

Martin v. State, 433 A. 2d 1025 (Del. 1980) 0 ; ae

Massachusetts v. Painten, 389 U.S. 560 (1968) Ss 221

Massiah v. United States, 377 U.S. 201 (1964) ___8, 28, 30

Michigan v. Mosley, 423 U.S. 96 (1975) 30

Michigan v. Tucker, 417 U.S. 433 (1974) _...._._._.22, 30

Miranda v. Arizona, 384 U.S. 436 (1966) ____.7, 8, 26, 29,

30, 31, 38

Nardone v. United States, 308 U.S. 338 (1939) _.....-—s«17

Papp v. Jago, 656 F. 2d 221 (6th Cir. 1981) _.._.10, 21

Procunier v. Navarette, 434 U.S. 555 (1977) 25

Rhode Island v. Innis, 446 U.S. 291 (1980) 000. 29

Rose v. Lundy, — U.S. —, 102 S. Ct. 1198 (1982)... = 35

Rose y. Mitchell, 443 U. S. 545 (1978) 38

Scheuer v. Rhodes, 416 U.S. 232 (1974) 25

Sibron v. New York, 392 U.S. 40 (1968) 18

Silverthorne Lumber Co. v. United States, 251

U.S. 385 (1920) 10, 13, 17

State v. Allies, 606 P.2d 1043 (Mont. 1979) ww. .—s«18

State v. Williams, 182 N. W. 2d 396 (Iowa 1970)... ss 3

State v. Williams, 285 N. W. 2d 248 (Iowa 1979) _4, 5, 31, 40

Stone v. Powell, 428 U.S. 465 (1976) 6, 8, 17, 22, 35,

36, 37, 38, 40

United States v. Allen, 436 A.2d 1303 (D.C.

App. 1981) 18

TABLE OF AUTHORITIES—Continued

Pages

United States v. Apker, 705 F. 2d 293 (Sth Cir. 1983) . 10

United States v. Bienvenue, 632 F.2d 910 (lst

Cir. 1980) 10, 14, 18

United States v. Brookins, 614 F.2d 1037 (5th Cir.

1980) 10, 11, 18, 21

United States v. Calandra, 414 U.S. 338 (1974) 10, 17, 22

United States v. Cole, 463 F.2d 163 (2d Cir.

1972) 18, 22

United States v. Crews, 445 U.S. 463 (1980)..14, 17, 19, 20

United States v. De Marce, 513 F.2d 755 (&th

Cir. 1975) 18, 21

United States v. Falley, 489 F. 2d 33 (2d Cir. 1973)... 14

United States v. Fisher, 700 F.2d 780 (2d Cir.

1983) 10

United States v. Griffin, 502 F.2d 959 (6th Cir.

1974) 13, 15, 16

United States v. Kandik, 633 F. 2d 1334 (9th Cir.

1980) 18, 21

United States ex rel. Owens v. Twomey, 508 F. 2d

858 (7th Cir. 1974) 10, 14

United States v. Paroutian, 299 F. 2d 486 (2d Cir.

1962) 13, 16

United States v. Romero, 692 F. 2d 699 (10th Cir.

1982) 10, 11,18

United States v. Roper, 681 F. 2d 1354 (11th Cir.

1982) 10

United States v. Schipani, 414 F.2d 1262 (2d

Cir. 1969) 22

United States v. Schmidt, 573 F.2d 1057 (9th

Cir.), cert. denied 439 U. 8S. 881 (1978) 10

TABLE OF AUTHORITIES—Continued

Pages

United States v. Seohlein, 423 F. 2d 1051 (4th Cir.

cert. denied 399 U.S. 913 (1970) 10

United States v. Villareal, 565 F. 2d 932 (5th Cir.

1978) 13

United States v. Wade, 388 U.S. 218 (1967) 35

United States v. Wilson, 671 F. 2d 1291 (11th Cir.

1982) 14

Wainwright v. Sykes, 433 U.S. 465 (1977) 35

Wayne v. United States, 318 F. 2d 205 (D.C. Cir.

1963), cert. denied 375 U.S. 860 (1963) 10, 22

White v. Finkbeiner, 687 F. 2d 855 (7th Cir. 1982),

petition for cert. filed sub nom Fairman v. White,

51 U.S.L.W. 3001 (U.S. June 18, 1982) (No. 81-

2340) 36, 38

Williams v. Nix, 700 F. 2d 1164 (8th Cir.

1983) 2, 5, 6, 9, 19, 34, 35, 36

Williams v. Nix, 528 F. Supp. 664 (S. D. Iowa

1981) 5, 39

Wong Sun v. United States, 371 U.S. 471

(1963) (attenuation) 10

Wood v. Strickland, 420 U.S. 308 (1974) 25

ConsTITUTIONAL PROVISIONS:

U.S. Constitution, Amendment IV 34, 35, 36, 37

U.S. Constitution, Amendment V 33, 36

U.S. Constitution, Amendment VI 1, 3, 33, 36

Statutory Provisions:

United States Code:

28 U.S.C. $2254 1

42 U.S.C. § 1983 7, 23, 24, 25

vii

TABLE OF AUTHORITIES—Continued

Pages

OrHeR AUTHORITIES:

Bator & Vorenberg, Interrogation and the Right

to Counsel: Basic Problems and Possible Legis-

lative Solutions, 66 Colum. L. Rev. 62 (1966)... 29

Kamisar, Forward: Brewer v. Williams—A Hard

Look At A Discomforting Record, 66 Geo. L. J.

209 (1977) 20, 27

Note, Brewer v. Williams, 11 Creighton L. Rev.

997 (1970) 30

Note, Brewer v. Williams: The End to Post-

Charging Interrogation, 10 Sw. U. L. Rev. 331

SE ip nid oh 30

Note, Brewer v. Williams: Express Waiver Ex-

tended to Sixth Amendment Right to Counsel,

4 Ohio N. L. Rev. 833 (1977) 28

Note, Constitutional Law—Sizth Amendment Right

to Counsel—Waiver, 45 Tenn. L. Rev. 112 (1977) .... 30

Note, Interrogation and the Sixth Amendment,

53 Ind. L. Rev. 313 (1978) 30

Note, The Right to Counsel; An Alternative to

Miranda, 38 La. L. Rev. 239 (1977) 30

Note, The Right to Counsel and the Strict Waiver

Standard, 57 Neb. L. Rev. 543 (1978) 30

Oaks, Studying the Exclusionary Rule in Search

and Seizure, 37 U. Chi. L. Rev. 665 (1970) 004-17

OPINIONS BELOW

The opinion of the Court of Appeals (Pet. App. A,

pp. 1-18) and the orders denying rehearing and rehearing

en bane (Pet. App. B and C, pp. 19-27) are reported at

700 F. 2d 1164 (8th Cir. 1983). The opinion of the federal

district court (Pet. App. F., pp. 68-88) is reported at 528

F. Supp. 664 (S. D. Iowa 1981). The opinion of the Iowa

Supreme Court on direct review (Pet. App. E, pp. 28-67)

is reported at 285 N. W. 2d 248 (Iowa 1979).

, EE

JURISDICTION

The judgment of the Court of Appeals for the Eighth

Circuit was entered on January 10, 1983. Timely petitions

for rehearing and rehearing en bane were denied on

March 15, 1983, and this petition for certiorari was filed

within 90 days of that date. This Court granted certiorari

on May 31, 1983, Nix v. Williams, 51 U.S.L.W. 3851 (U.S.

May 31, 1983) (No. 82-1651). This Court’s jurisdiction is

invoked under 28 U.S.C. Section 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Constitution of the United States, Amendment Six

In all criminal prosecutions, the accused shall enjoy

the right... to have the Assistance of Counsel for

his defense.

United States Code, Title 28, Section 2254

(a) The Supreme Court, a Justice thereof, a circuit

judge or a district court shall entertain an application

for a writ of habeas corpus in behalf of a person in

custody pursuant to the judgment of a State court

only on the ground that he is in custody in violation

1 the Constitution or laws or treaties of the United

tates.

STATEMENT OF THE CASE

This Court is already familiar with the tragic char-

acter of this 15 year old proceeding since it has been here

before on certiorari. See Brewer v. Williams, 430 U.S.

387 (1977). For the second time, Williams’ conviction of

first degree murder has been set aside by federal courts

exercising habeas jurisdiction.

On Christmas Eve, 1968, ten year old Pamela Powers

disappeared from the Des Moines YMCA where she had

been watching a wrestling match with her family. Sus-

picion focused on Williams, an escaped mental patient re-

siding at the YMCA, who was seen leaving the building

with a large bundle wrapped in a blanket. A boy who

helped Williams open his car door testified that he viewed

the bundle and ‘‘saw two legs in it and they were skinny

and white.” 430 U.S. at 390.

Law enforcement officials began a massive search to

find Williams who eventually surrendered to police in

Davenport, Iowa, some 160 miles from Des Moines. While

transporting Williams back to Des Moines frora Daven-

port, Detective Cletus Leaming obtained information from

Williams about the whereabouts of the girl’s body. Fol-

lowing Williams’ directions, the police uncovered the body

of Pamela Powers. Medical examination of the corpse re-

vealed presence of acid phosphatase, a component of se-

men, in her body as well as pubic hairs on the victim’s

clothing “like” those of Williams. See Williams v. Niz, 700

F, 2d 1164, 1168 (8th Cir. 1983), cert. granted 51 U.S.L.W.

(U.S. May 31, 1983) (No. 82-1651) (Pet. App. 7-8).

Williams was tried and convicted of first degree mur-

der. At trial, the State introduced the articles of clothing,

evidence relating to the body’s discovery and condition,

and incriminating statements made to Detective Leaming

by the defendant. 430 U.S. at 394. The conviction was

affirmed in a five to four decision by the Iowa Supreme

Court. State v. Williams, 182 N. W. 2d 396 (Iowa 1970).

On collateral review, however, the United States District

Court for the Southern District of Iowa sustained Wil-

liams’ petition for a writ of habeas corpus, Williams v.

Brewer, 375 F. Supp. 170 (S. D. Iowa 1974), and a divided

panel of the United States Court of Appeals for the

Eighth Cireuit affirmed. 509 F.2d 227 (8th Cir. 1974).

This Court, in a five to four decision, affirmed the

grant of the writ. Brewer v. Williams, 430 U.S. 387 (1977).

The majority found that an agreement had been made be-

tween Williams’ attorney and unnamed Des Moines police

officers that the defendant would not be interrogated on

his way back to Des Moines. 430 U.S. at 391. The Court

further found that Detective Leaming, while avoiding di-

rectly questioning Williams, did nevertheless attempt to

elicit information from him by making statements about

the victim’s need for a decent Christian burial. 430 U.S.

at 399. The majority found Leaming’s action violated the

defendant’s right to counsel guaranteed by the Sixth and

Fourteenth Amendments and held that introduction of

evidence discovered as a result of the interrogation was

erroneous and required reversal. 430 U.S. at 406.

In an important footnote, however, the Court major-

ity noted that while communicative evidence from the de-

fendant could not be constitutionally admitted under any

circumstance, the physical evidence, the body and its con-

dition:

- might well be admissible on the theory that the body

would have been discovered in any event, even had

incriminating statements not been elicited "from Wil-

liams. ... In the event that a retrial is instituted, it

will be for the state courts in the first instance to de-

termine whether particular items of evidence may be

admitted.

430 U.S. at 441, n. 12.

The State retried Williams and sought to introduce

evidence about the body under the ‘‘inevitable discovery”

exception to the exclusionary rule alluded to in the above

footnote. A suppression hearing was held in state court at

which the defense contested the prosecution’s claim that

the body ‘‘would have been discovered in any event.’’ 430

U.S. at 441, n.12. The state trial court heard testimony

regarding the law enforcement search efforts in the area

where the body was eventually found. The trial court

held that the body would have been discovered anyway

and denied Williams’ motion to suppress. See State v.

Williams, 285 Ni W. 2d 248, 260-62 (1979) (Pet. App. 46-8).

With testimony about the body and its condition ad-

mitted, Williams was again convicted of first degree mur-

der. The Iowa Supreme Court sua sponte raised the ques-

tion of whether the State must show that police did not act

in bad faith for the purpose of hastening discovery of the

body before it could constitutionally invoke the inevitable

discovery exception. State v. Williams, 285 N. W. 2d 248,

260 (Iowa 1979) (Pet. App. 40-41). The Iowa Court

found such a requirement, but unanimously held that on

the record the State had plainly satisfied the test. The

Court stated:

The issue of the propriety of the police conduct in this

case, as noted earlier in this opinion, has caused the

closest possible division of views in every appellate

court which has considered the question. In light of

the legitimate disagreement among individuals well

versed in the law of criminal procedure who were

given the opportunity for calm deliberation, it can-

not be said that the actions of the police were taken

in bad faith.

State v. Williams, 285 N. W. 2d 248, 260 (lowa 1979) (Pet.

App. 45).

Williams then launched another assault on his con-

viction in federal district court. He raised seven other

questions not now before the Court. With respect to the

application of the inevitable discovery exception, Wil-

liams limited his challenge to reargument of the defense

position before the state trial court, namely, that the body

would not, in fact, have been ‘‘inevitably discovered’’ be-

cause of the lack of thoroughness in the police search and

the difficulty in observing a snow-covered body.

The District Court denied the writ, holding, inter alia,

that the inevitable discovery exception existed and was

properly invoked. Williams v. Niz, 528 F.Supp. 664,

(S. D. Iowa 1981) (Pet. App. 75-80). The District Court

opinion contained no finding on the lack-of-bad-faith is-

sue. On appeal, the Court of Appeals for the Eighth Cir-

cuit reversed. A three-judge panel held that ‘‘the State

did not satisfy its burden of proving by a preponderance

of evidence that the police did not act in bad faith in ob-

taining Williams’ statements that led them to the body.’’

Williams v. Nix, 700 F. 2d at 1173 (Pet. App. 17).

The State then sought rehearing both before the orig-

inal panel and en banc. On March 15, the original panel

denied rehearing. In a four page opinion, the court, while

noting ‘‘concessions’’ made by the state in oral argument,

also held that admission of the challenged physical evi-

dence ‘‘would impermissibly reduce. the deterrent effect

of the exclusionary rule.’’ Williams v. Nia, 700 F.2d at

1174 (Pet. App. 23).

On the same day, the Court of Appeals denied rehear-

ing en banc by a four to four vote. Judge Fagg, joined by

Judges Bright and Ross, filed a dissenting opinion noting

that the lack of bad faith issue ‘‘has not been placed in

issue or litigated in the state and federal trial courts.”

Williams v. Niz, 700 F.2d at 1164 (Pet. App. 20). He

noted that the State and the defense both viewed the in-

evitable discovery exception at trial as having ‘‘only one

prong, inevitable discovery of the body, and that was the

issue presented to the trial judge.’’ Jd. Only later did

the Iowa Supreme Court inject the second prong, good

faith, into the case. Rather than remand the case ‘‘to the

trial) court for a limited evidentiary hearing,” the Iowa

Supreme Court ‘‘ruled as a matter of law that Officer

Leaming acted in good faith.’’ Id. at 1176 (Pet. App. 21).

The dissent thus argued, at a minimum, that some kind of

limited remand should be considered. Jd.

This Court granted certiorari to review the ruling

and opinion of the Court of Appeals on May 31, 1983.

SUMMARY OF ARGUMENT

In this case, the Court of Appeals committed errors

of both procedure and substance. In setting aside Re-

spondent’s second conviction, the Court did not expressly

embrace an inevitable discovery exception to the exclusion-

ary rule, but found that if such an exeception existed, the

State must show absence of bad faith before it could be

invoked. The Court then concluded as a matter of law

that the Petitioner had failed to make the necessary show-

ing on the issue. This conclusion was reached notwith-

standing the fact that the issue was not litigated in either

the state or federal trial courts. Finally, the Court de-

clined to extend the doctrine of Stone v. Powell, 428 U.S.

465 (1976), to the case notwithstanding Respondent’s at-

tempt to relitigate admissibility of highly probative and

reliable, physical evidence in a habeas corpus proceeding.

Petitioner believes that the Court erred in finding

that a showing of absence of bad faith is required before

the State can invoke the inevitable discovery exception to

the exclusionary rule. This exception, which has been

adopted in one form or another by all the federal circuits,

has not generally been held to require absence of bad faith.

In independent source rule cases, no showing of absence

of bad faith is required since the inquiry is limited to

causation. Similarly, a showing of absence of bad faith

should not be required to invoke the inevitable discovery

exception, where the only issue is whether the challenged

evidence in fact would have been discovered by lawful

means.

Even if absence of bad faith is required, Petitioner

believes the Court of Appeals erred in its treatment of

the issue. Petitioner believes that any limitation on in-

evitable discovery based on the character of police con-

duct should apply only where knowing constitutional vio-

lations are so egregious that the spectacle of continued

criminal prosecution of the accused cannot be tolerated.

This standard is appropriate because allowing a collateral

mistake to poison even fruit that would have inevitably

been discovered by lawful means often amounts to im-

munity from prosecution notwithstanding the reliability

of the evidence in question.

In any case, Petitioner has made a showing of ab-

sence of bad faith even if more exacting judicial scrutiny

similar to that employed under 42 U.S.C. § 1983 is appro-

priate. The record of Respondent’s first trial shows that

Detective Leaming attempted to tailor his conduct to what

he thought were constitutional requirements. He read

Respondent Miranda rights, did not question him directly,

and freely volunteered his story about the so-called Chris-

tian burial speech in open court. While Leaming com-

mitted constitutional error, it does not appear to have

been in bad faith.

It is also clear that Leaming cannot reasonably be

charged with knowing that his conduct was unconstitu-

tional. The rule in Massiah v. United States, 377 U.S. 201

(1964), had not yet been extended to situations where the

accused actually knows he is talking to a police officer,

and the definition of interrogation under Miranda had not

been authoritatively explored. Indeed, the closeness of the

issue in this Court conclusively demonstrates that Leam-

ing could not have known his conduct was unconstitutional.

Brewer v. Williams, 430 U.S. 387 (1977).

The Court of Appeals disposition of the case reveals

further error. Examination of the transcript of the hear-

ing on Respondent’s motions to suppress in state court

shows that the absence of bad faith question was not liti-

gated at trial. The absence of appropriate pleadings by

Respondent and the lack of findings by the Federal Dis-

trict Court on the issue also confirms that the question was

not actually litigated in federal court. Under the circum-

stances, there is serious question as to whether the Court

of Appeals should have considered the issue at all, let

alone deny the State an opportunity to make an evidentiary

showing on the question.

Finally, the Court erred in not extending the doctrine

in Stone v. Powell, 428 U.S. 465 (1976), to the facts pre-

sented here. The entire rationale of Stone v. Powell ap-

plies with full force to this Sixth Amendment case where

the inevitable discovery exception is invoked to allow ad-

mission of highly probative and reliable physical evidence.

Police will be adequately deterred by the possibility of

losing convictions on direct appeal. The marginal deter-

rence value of relitigating the issue in habeas proceedings

is minimal. Under the circumstances, the interests in fi-

nality and repose, particularly where admission of evidence

enhances the integrity and reliability of the factfinding

process, overrides all other considerations.

———EE

ARGUMENT

I. Where the record shows that highly probative and re-

liable physical evidence discovered as a result of illegal

law enforcement action imminently would have been dis-

covered by lawful independent investigative activity al-

ready in progress, the evidence is admissible through the

inevitable discovery exception to the exclusionary rule

without examination of the subjective state of mind of

police officers who engaged in the unlawful conduct.

In reversing the rulings of the trial court, the Iowa

Supreme Court, and the Federal District Court in this

case, the Court of Appeals held that even conceding argu-

endo the existence of an inevitable discovery exception to

the exclusionary rule, the State must affirmatively demon-

strate the absence of bad faith on the part of the police

officers found to have engaged in illegal conduct.' In

Petitioner’s view, not only is the inevitable discovery doc-

trine a constitutionally permissible exception to the ex-

clusionary rule but, under the facts and circumstances pre-

sented here, it may be invoked without a showing of lack

of bad faith by police officers.

A. As unanimously developed in the federal circuits, the

inevitable discovery exception is consistent with this

Court’s well-established approach to the exclusionary rule

and has strong policy footing.

'Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Pet.

App. at 17).

This Court, notwithstanding a suggestive footnote in

Brewer v. Williams, 430 U.S. 387 (1977), has not yet had"

occasion to employ expressly an inevitable discovery ex-

ception to the exclusionary rule. All of the Courts of

Appeals, however, have addressed the issue, and all have

eventually embraced, in one form or another, an inevitable

discovery doctrine. Influenced by this Court’s express

adoption of “attenuation” and “independent source” ex-

ceptions to the exclusionary rule, see Wong Sun v. United

States, 371 U.S. 471, 487-88 (1963) (attenuation); Silver-

thorne Lumber Co. v. United States, 251 U.S. 385, 392

(1920) (independent source), these cases stand for the

proposition that where evidence would have been discov-

ered in any event by legitimate law enforcement activity,

the interest in presenting the trier of fact with reliable

evidence outweighs whatever deterrence might be accom-

plished by exclusion.’ This cautious approach to the ap-

plication of the exclusionary rule is consistent with this

Court’s general direction that the rule should be carefully

“restricted to those areas where its remedial objectives are

thought to be most efficaciously served.” United States

v. Calandra, 414 U.S. 338, 348 (1974).

2Brewer v. Williams, 430 U.S. 387, 406 n. 12 (1977).

3See Wayne v. United States, 318 F, 2d 205, 209 (D. C. Cir.),

cert denied, 375 U.S. 860 (1963); United States v. Bienvenue,

632 F.2d 910, 914 (1st Cir. 1980); United States v. Fisher, 700

F. 2d 780, 784 (2d Cir. 1983); Government of the Virgin Islands

v. Gereau, 502 F. 2d 914, 927-928 (3d Cir. 1974), cert. denied,

420 U. S. 909 (1975); United States v. Seohnlein, 423 F. 2d 1051,

1053 (4th Cir.), cert. denied, 399 U. S. 913 (1970); United States

v. Brookins, 614 F. 2d 1037, 1042, 1044 (5th Cir. 1980); Papp v.

Jago, 656 F.2d 221, 222 (6th Cir, 1981); United States ex rel.

Owens v. Twomey, 508 F.2d 858, 865-866 (7th Cir. 1974);

United States v. Apker, 705 F. 2d 293, 306-307 (8th Cir. 1983);

United States v. Schmidt, 573 F.2d 1057, 1065-1066 n. 9 (9th

Cir.), cert. denied, 439 U.S. 881 (1978); United States v. Ro-

mero, 692 F.2d 699, 704 (10th Cir. 1982); United States v.

Roper, 681 F. 2d 1354, 1358 (11th Cir. 1982).

DS sail aia

Close examination of the inevitable discovery cases

reveals that there are three separate and distinct factual

contexts in which the doctrine has been applied. The

cases may be divided into those involving “independent

inev.table discovery,” “a hypothetical independent source,”

and “dependent inevitable discovery.” This case presents

“independent inevitable discovery,” by far the strongest

factual context in which to repulse any invasion of the

factfinding process by costly extension of the exclusionary

rule.

When “independent inevitable discovery” is utilized,

lawfully obtained leads totally independent of collateral

illegal conduct are in fact being aggressively pursued by

law enforcement. In this narrow class of inevitable dis-

covery cases, courts are not asked to speculate about

whether police would have actually launched the legitimate

investigative efforts because the record shows that such

activity had in fact been initiated. In the “independent

inevitable discovery” context, separate and distinct lines

of police activity are racing toward discovery of evidence

related to the crime. If the legal techniques uncover the

evidence before the unlawful investigative efforts, the in-

dependent source rule applies. If, on the other hand, the

unlawful efforts reach the evidence first inevitable dis-

covery is applicable upon a showing by a preponderance

of evidence that law enforcement would have discovered

the underlying evidence in any event through lawful ef-

forts.‘

‘See e.g., United States v. Romero, 692 F.2d 699, 703-04

(10th Cir, 1982) (illegal Terry-type search occurs just prior to

independent determination of probable cause to arrest subject

and conduct search incident to arrest); United States v. Brook-

ins, 614 F,2d 1037, 1044-49 (5th Cir. 1980) (identification of

accomplice in crime imminent through lawful means notwith-

standing illegal interrogation).

* et

This case presents a solid example of “independent

inevitable discovery.” Two unrelated lines of investiga-

tion were being pursued simultaneously by Iowa law en-

forcement officials. The discovery of articles of clothing

at a rest area along Interstate 80 at Grinnell, 60 miles

from Des Moines, caused police to theorize that the body

may have been disposed of along Interstate 80 somewhere

between Grinnell and Des Moines. Transcript of Motions

to Suppress Evidence at 35-36 (Joint App. at 33) Detec-

tive Ruxlow, directing 200 volunteers in a thorough, pains-

taking search in central Iowa, was on the verge of law-

fully discovering the body of Pamela Powers. Tr. at 34

(Joint App. 31). The Ruxlow group had scoured the road-

sides and culverts approximately seven miles each side of

Interstate 80 for a distance of over forty miles, and had

reached a spot only two and a half miles from the culvert

where the girl’s body rested. Tr. at 35-43 (Joint App. 22-

36). While this lawful and exhaustive search was under-

way, Detective Leaming engaged in the now famous con-

versation with Williams which was later determined by

this Court to be unconstitutional. At a time when discov-

ery of Pamela Powers’ body by Ruxlow and his volunteers

was imminent, Williams agreed to lead officials to the

body. The legal search, which the trial court found would

have otherwise continued, was terminated.‘

Where two independent lines of inquiry are converg-

ing on the same evidence, the so-called inevitable discov-

ery exception represents a conventional variant of the

well-accepted independent source rule. In this context,

the inevitable discovery exception merely stands for the

common sense principle that vagaries of timing of discov-

ery will not defeat introduction of evidence that would

otherwise clearly be admissible under the independent

source rule announced in Silverthorne Lumber Co. v.

United States, 251 U.S. 385 (1920), and its progeny.

In a small minority of cases, the doctrine of inevitable

discovery has been criticized.6 Where the approach has

been questioned, however, it has been when the prosecu-

tion asks the court to either (1) engage in far reaching

speculation as to what kind of investigation law enforce-

ment officials might have launched in the future had the

illegality nut occurred, or (2) to reconstruct a single, con-

tinuous illegal course of conduct in a legal fashion. In

these cases, no independent investigative activity is liter-

ally on the verge of discovery of the challenged evidence.

The first group of occasionally criticized cases apply

what might be called a “hypothetical independent source”

approach to inevitable discovery. Again, no independent

inquiry has actually been undertaken which may sever

the linkage between the illegal conduct and the tainted

evidence in these cases. Instead, the court is forced to

(Continued from previous page)

s to the testimony of Detective Ruxlow, the Court noted

that he “impressed the Court as an intelligent and organized

man with experience in the area of searches.” /d. at 3 (Joint

App. at 85).

*See, e.g., United States v. Villareal, 565 F. 2d 932, 941-42

(5th Cir. 1978) (Wisdom, J., dissenting); United States v. Grif-

fin, 502 F.2d 959 (6th Cir. 1974); United States v. Paroutian,

299 F. 2d 486, 489 (2d Cir. 1962).

project how law enforcement would have behaved in the

future had the unlawful conduct not oceurred.’ While the

vast majority of “hypothetical independent source” cases

project routine police investigative techniques .n an un-

questionable fashion,’ the approach, if improperly handled,

can involve rather extreme speculation. In one unusual

case, it was assumed that law enforcement officers would

have painstakingly searched through thousands of con-

signment documents in the hands of almost a hundred im-

port brokers in the area of an alleged crime to uncover

the same evidence seized in an unlawful search.’

In the case at bar, however, the State has not

asked the courts to engage in undisciplined soothsaying.

There is no question as to what kind of law enforcement

investigation “might” have been launched in the future

had the underlying illegality not occurred. Indeed, it is

undisputed that a massive search for Pamela Powers in-

volving hundreds of persons was in fact initiated and was

progressing directly toward the area where Pamela Pow-

ers’ body was ultimately found. Criticism of the more ex-

7See United States v. Crews, 445 U. S. 463, 475 n. 22 (1980).

8See, e.g., United States v. Wilson, 671 F. 2d 1291, 1293-94

(11th Cir. 1982) (letter threatening President sent to the White

House would have inevitably been discovered and forwarded

to appropriate officials notwithstanding examination of out-

going mail); United States v. Bienvenue, 632 F.2d 910, 914

(1st Cir. 1980) (evidence of travel to Columbia by husband of

wife arrested in Florida for conspiracy to import cocaine that

was seized in unlawful search of home would have been dis-

covered through routine police procedures because officers

knew the husband had pee travelled to Columbia

through an unnamed travel agency in Manchester prior to il-

legal search); United States ex rel. Owens v. Twomey, 508

F.2d 858, 866 (7th Cir. 1974) (key witness whose name and

address were known to police prior to illegal search would

have been discovered anyway through routine procedures even

though she was actually found at a work address unlawfully

obtained from defendant). !

%United States v. Falley, 489 F.2d 33, 40 (2d Cir. 1973).

treme “hypothetical independent source” cases as unduly

speculative application of inevitable discovery has no force

here where independent investigative techniques were ac-

tually underway which the trial court found would have

discovered the challenged evidence had the illegal conduct

not occurred.’°

Resort to inevitable discovery theory also sometimes

occurs in an effort to engage in after the fact repair of

unlawful conduct. Since no actual or even hypothetical

independent avenue of discovery is present, these cases

may be labeled “dependent inevitable discovery.” Admis-

sion of the evidence concededly causally depends on con-

duct found to be illegal. The court, however, is asked to

undo the transaction and reconstruct it in a legal fashion.

For instance, in one case, the government sought to allow

admission of evidence discovered as a result of an unlaw-

ful warrantless search on the ground that agents planned

to obtain a warrant for which they had adequate probable

cause. Since the agents could have gotten a warrant, the

court was asked to treat the transaction as if they had in

fact obtained a warrant."

This case also presents a comparatively nonspeculative

“hypothetical independent source” alternate ground for ad-

mission of the evidence. Williams’ first attorney, McKnight,

had told him that he would ultimately have to lead po-

lice to the ag Williams, in his initial statements to Leam-

ing, told him that he would tell everything once he saw his

lawyer in Des Moines. This set of circumstances led Justice

Marshall to conclude that Leaming sought to avoid that result,

which could cloak the fact that Williams provided the informa-

tion about the girl’s whereabouts in attorney-client privilege.

See Brewer v. Williams, 430 U.S. at 408 (Marshall J., concur-

ring). It could thus be concluded that Williams would have

provided information with respect to the body to McKnight,

who would have told police. This alternative theory of in-

evitable discovery was recognized by the state trial court. See

Ruling on Motions to Suppress at 6 (Joint App. 87-88).

"United States v. Griffin, 502 F.2d 959 (6th Cir. 1974).

While the federal courts have been most receptive to

other applications of inevitable discovery, they have been

allergic to the constitutional salvage efforts in the depend-

ent inevitable discovery cases. If inevitable discovery

may be invoked to admit evidence illegally obtained on the

ground that a warrant could have in fact been obtained,

the requirement to present probable cause to a magistrate

first would be substantially eviscerated. Indeed, in strong

cases, a warrant simply would not be required.”

In the present case, however, no evisceration of con-

stitutional requirements will occur. Here, an independent

line of inquiry is converging on the evidence. Moreover,

all evidence that was obtained solely as a result of the

illegal activity-——namely, evidence showing that Williams in

fact led officers to the body and incriminating statements

made by Williams—has been suppressed. Thus, the de-

terrent function of the exclusionary rule has been fully

maintained in this ase."

In conclusion, the inevitable discovery exception to

the exclusionary rule as applied in this case is entirely

12As the Court emphasized in United States v. Griffin, “The

assertion by police . . . that the discovery was ‘inevitable’ be-

cause they planned to get a search warrant and had sent an

officer on such a mission, would as a practical matter be

beyond judicial review. Any other view would tend in actual

ractice to emasculate the search warrant requirement of the

ourth Amendment.” 502 F. 2d at 961; see also United States v.

Paroutian, 299 F. 2d 486, 488 (2d Cir. 1962).

Indeed, in this case, the state trial court judge rejected

an effort by the prosecution to introduce ev obtained

through a warrantless search of Williams’ room at the YMCA

on December 24, 1968. Although a warrant was obtained the

next day, Judge Denato refused to admit the evidence. Ac-

cording to the court, ‘the fact that probable cause was t

all along and would have been likewise adequate on 12-24-68

cannot held to validate the reentry with a search warrant

after the prior, warrantless search was conducted.” See Ruling

on Motions to Suppress at 9-10 (Joint App. at 90-91).

consistent with this Court’s precedents. Nardone v. United

States, 308 U.S. 338 (1939); Silverthorne Lumber Co. v.

United States, 251 U.S. 385 (1920). No extraordinary

speculation as to what might have occurred is required,

and no substantive requirement of criminal law is defeated

by the application here. Moreover, since substantial evi-

dence has already been suppressed, the deterrence pur-

poses of the exclusionary rule have been fully served. Un-

der the facts and circumstances presented here, inevitable

discovery is a sound doctrine that properly balances the

need to deter unlawful police conduct against the require-

ments of effective law enforcement.”

B. A showing of lack of bad faith on the part of police

officers is not required to invoke the inevitable discovery

exception to the exclusionary rule.

The vast majority of inevitable discovery cases con-

tain no discussion of the question of whether police offi-

Petitioner recognizes the view that the omer a rule

enables “the judiciary to avoid the taint of partnership in of-

ficial lawlessness” and assures the people “that the government

would not profit from its lawless behavior, thus minimizing the

risk of seriously undermining pegs trust in government.”

United States v. Calandra, 414 U.S. 338, 357-58 (1974) (Bren-

nan, J., dissenting). The Petitioner believes, however, that ex-

clusion of highly probative and reliable evidence that police

demonstrably would have discovered anyway through lawful

means fifteen years after a notorious crime would more seri-

ously undermine popular trust in government than would its

admission. See Oaks, Studying the Exclusionary Rule in Search

and Seizure, 37 U. Chi. L. Rev. 665, 737-38 (1970). While pres-

ervation of judicial integrity may have a limited role in deter-

mining whether the exclusionary rule should apply in a par-

ticular context, Stone v. Powell, 428 U.S. at 485, it has no ap-

eye under the facts here. Cf. United States v. Crews, 445

. $. 463 (1980) (exclusionary rule does not require suppres-

sion of identification notwithstanding actual use of illegally ob-

tained photograph).

cers acted with an absence of bad faith.'' Indeed, a num-

ber of cases utilize inevitable discovery in the context of

clearly illegal police conduct, at least raising the implica-

tion that the question is irrelevant.'® The Petitioner be-

lieves that where the body of a murder victim—highly

probative and reliable evidence relating to the guilt or

innocence of the accused—would have been imminently

discovered by legitimate law enforcement activity in-

dependent of illegal cenduct, the State should not be

required to demonstrate absence of bad faith. Under

these circumstances, the only question is the causal con-

'SThe footnote in Brewer v. Williams, which discusses in-

evitable discovery contains no mention of the issue, nor is ab-

sence of bad faith considered in Killough v. United States, 119

U.S. App. D. C. 10, 336 F. 2d 929 (1964), the case cited by this

Court in the note. 430 U. S. at 406 n. 12.

l6United States v. Romero, 692 F.2d 699, 703 (10th Cir.

1982) (agent testified that he knew object in suspect’s pants

was not weapon, but seized it anyway in direct vioiation of

Sibron v. New York, 392 U.S. 40, 65-66 (1968)); United States

v. Kandik, 633 F. 2d 1334, 1336 (9th Cir. 1980) (inevitable dis-

covery invoked notwithstanding use of information obtained

in plea bargaining session in clear violation of Fed. R. Crim. P.

11(e)(6)); United States v. Bienvenue, 632 F.2d 910, 914 (1st

Cir. 1980) (inevitable discovery applied where warrantless

search of defendant's apartment without oy circumstanc-

es); United States v. Brookins, 614 F.2d 1037, 1044-49 (5th

Cir. 1980) (accused, in custody for 72 hours without present-

ment to magistrate, told that law enforcement were “not inter-

ested in you” and comments would be “off the record”); Unit-

ed States v. De Marce, 513 F. 2d 755, 758 (8th Cir. 1975) (in-

evitable discovery invoked notwithstanding 80-hour delay in

presenting juvenile sus to magistrate after arrest); United

States v. Cole, 463 F. 2d 163, 174 (2d Cir. 1972) (inevitable dis-

cov7ry applied where unauthorized wiretap deserves

“sharpest condemnation”); see also United States v. Allen, 436

A. 2d 1303, 1309 (D. C. App. 1981) (inevitable discovery applies

notwithstanding clear violation of Dunaway); Martin v. State,

433 A. 2d 1025, 1031 (Del. 1980) (inevitable discovery applied

even though state concedes unconstitutionality of search);

State v. Allies, 606 P. 2d 1043, 1052-53 (Mont. 1979) (heavy co-

ercion including truth serum and “Mutt and Jeff’ approach to

interrogation, yet inevitable discovery applies).

nection between the body and the underlying constitu-

tional infraction can be severed through application of

the inevitable discovery doctrine.'’

This Court has not required a showing of absence of

bed faith in applying the independent source rule. In-

deed, as with the inevitable discovery cases, the independ-

ent source rule is often invoked where there are rather

clear constitutional violations that tend to negate the

proposition that police officers acted in good faith."* For

instance, in United States v. Crews, 445 U.S. 463 (1980),

the suspect was arrested without probable cause, osten-

sibly because he was a suspected truant, apparently in or-

Because the absence of bad faith issue was not subject to

evidentiary proceedings in state or federal trial courts and re-

ceived only perfunctory mention in briefs before the Court of

Appeals, see Joint Appendix at 181-87, counsel for the state

was surprised when the issue emerged from the bench at oral

argument. In the petition for rehearing, Petitioner urged con-

sideration of whether absence of bad faith is required notwith-

standing commentary of counsel at oral argument that the

Court construed as concessions on the issue. In denying re-

hearing, the Court of fg while noting “concessions” of

counsel, proceeded in the alternative to hold, on the merits,

that a showing of absence of bad faith is required in order to

invoke the inevitable oy exception to the exclusionary

rule. Williams v. Nix, 700 F.2d at 1174. Since the Court of

perems ruled on the issue in denying rehearing, the Petitioner

believes the issue is properly before the Court.

'8Respondent appears to rely heavily on Brown v. Illinois,

422 U.S. 590 (1975), for the proposition that a showing of ab-

sence of bad faith is re here. See Respondent's Opposi-

tion to Certiorari at 7-12. But Brown is not a case involving

inevitable discovery or its close legal relative, the independent

source rule. Rather, Brown involves the analytically distinct

attenuation exception to the exclusionary rule. Since there

is no real or hypothetical independent route to the discovery

of evidence in attenuation cases, “flagrancy” of police conduct

is a factor to be considered in determining whether the con-

nection between challenged evidence and illegality is suf-

ficiently remote to allow its admission. Brown has no lica-

tion re an independent source severs the “but ’ rela-

tionship between the underlying illegality and the challenged

der to obtain a photograph for use in an assault and rob-

bery investigation. 445 U.S. at 463. This Court, how-

ever, did not consider the bad faith issue in applying the

independent source rule to a subsequent in-court identifi-

eation of the suspect by the victim.’

Similarly, in cases where false information is con-

tained in affidavits filed in support of a search warrant,

the fact that the material may have been submitted in

bad faith is not dispositive. In Franks v. Delaware, 438

U.S. 154 (1978), this Court held that where sufficient con-

tent in a warrant affidavit supports probable cause after

false material is disregarded, the warrant is valid. 438

U.S. at 172. The tainted portions of the warrant do not

bleach the truthful material when independently consid-

ered. See also Kastigar v. United States, 406 U.S. 442,

460 (1972) (only inquiry in severing evidence from prose-

cutorial guarantee of immunity is causal in nature).

Any rule to the contrary would have serious conse-

quences for the administration of criminal justice. If a

showing of absence of bad faith were required every time

the independent source rule or inevitable discovery were

raised, criminal proceedings could turn on the elusive

state of mind of law enforcement officers rather than on

the guilt or innocence of the accused.” The courts would

continually be grappling with such questions as how much

constitutional law the officers knew or should have known

at the time of the alleged infraction. As has been observed

in a similar context, “Sending state and federal courts

The Court in Crews discusses motivation for the arrest in

a brief footnote that does not directly consider the good faith

issue. 445 U.S. at 468 n. 5.

20Leaming’s statements and actions have been subject to

nstaking scrutiny even in law review commentary. See

isar, Forward: Brewer v. Williams—A Hard Look at a Dis-

comforting Record, 66 Geo. L, J. 201 (1977).

into the minds of police officers would produce a grave

and fruitless misallocation of judicial resources.” Massa-

chusetts v. Painten, 389 U.S. 560, 565 (1968) (White, J.

dissenting) ; Unitea States v. Peltier, 422 U.S. 531, 560-61

(1975) (Brennan, J., dissenting). Certainly neither con-

stitutional nor prudential considerations require such an

awkward result.

Limiting the inquiry in inevitable discovery and in-

dependent source contexts to causation does not eviscerate

the exclusionary rule. The State is still required to show

what amounts to an “independent, legitimate source” for

disputed evidence, a requirement which this Court, in a

similar context, has characterized as “a substantial pro-

tection” against abuse, See Kastigar v. United States,

406 U.S. 441, 461 (1972) (use immunity). Any evidence

that has been obtained by illegal means which would not

inevitably or independently have been discovered is still

subject to its bite. Indeed, in this very case, the prosecution

has already been deprived by operation of the exclusion-

ary rule of evidence of the most probative character,

namely, incriminating statements by Williams to Leam-

ing, and the fact that Williams led police to the body.”

21For other inevitable discovery cases where evidence only

discoverable through illegal conduct is suppressed, see Papp

v. Jago, 656 F.2d 221 (6th Cir. 1981) (confession obtained in

violation of Miranda excluded, but body of victim introduced

as corpus delecti under inevitable discovery); United States v.

Kandik, a F. - 1334 Lao rg Ra — and counterfeit-

ing paraphernalia suppressed, though testimony about opera-

tion from = ae age admitted); United States v. Brookins,

614 F. 2d 1037 (5th Cir. 1980) (results of “consent search” and

incriminating statements obtained after 72 hour detention with-

out presentment to a magistrate suppressed, but name of as-

sociate in crime, obtained while accused aoeey restrained

admitted on ground that it would have been discovered any-

way); United States v. De Marce, 513 F.2d 755 (8th Cir. 1975)

(confession result of 80-hour detention without presentment to

(Continued on next page)

Exclusion of this important evidence amply satisfies the

legitimate appetite of the exclusionary rule. As this Court

recognized in Michigan v. Tucker, 417 U.S. 433 (1974),

deterrence is not significantly augmented once evidence

directly obtained as a result of unlawful conduct has been

suppressed. 417 U.S. at 448.

To allow police misconduct to taint the inevitable

fruit of legitimate law enforcement activity in the interest

of obtaining another ounce of dubious deterrence in the

name of an expanded exclusionary rule would be far too

Carthaginian on the prosecution. Suppression of evidence

relating to the body of Pamela Powers and its condition

would run afoul of this Court’s frequent admonition that

the exclusionary rule should be applied sparingly with due

regard for society’s interest in effective law enforcement.

See Stone v. Powell, 428 U.S. at 488-89; Michigan v.

Tucker, 417 U.S. at 446; United States v. Calandra, 414

U.S. at 348. Even a bad faith error by a police officer,

reprehensible as it may be, should not immunize a defend-

ant from prosecution for a heinous crime. This Court’s

observation that enforcement of criminal law is “not a

game to be checkmated by error,” McGuire v. United

(Continued from previous page)

magistrate suppressed, but .22 caliber gun admitted on in-

evitable discovery theory); Government of Virgin Island v.

Gereau, 502 F.2d 914 (3d Cir. 1974) (incriminating statement

Sn eet gr given by defendant pursuant to unlawful arrest

suppressed, Sut gun found in vicinity of massive search in

rogress admitted on inevitable discovery theory); United

tates v. Cole, 463 F. 2d 163 (2d Cir. 1972) and United States v.

Schipani, 414 F.2d 1262 (2d Cir. 1969) (evidence that resulted

only from illegal wiretap not suppressed, though other evi-

dence that would have been discovered admitted under in-

evitable sporemy) ; Wayne v. United States, 318 F. 2d 205 (D.C.

Cir. 1962) (medication, its container, and cash in search for

— allegedly killed by illegal abortion suppressed, but gun

nd in vicinity of massive search in progress admitted on

inevitable discovery theory).

States, 273 U.S. 95, 99 (1927), is applicable here regard-

less of the character of the unconstitutional conduct.”

II. Even if a showing of absence of bad faith is required

before the inevitable discovery exception to the exclusion-

ary rule may be invoked, the Court of Appeals erred in

finding the State failed to show lack of bad faith.

Conceding arguendo that the State must show an ab-

sence of bad faith before the inevitable discovery excep-

tion to the exclusionary rule may be invoked, the Peti-

tioner believes that the Court of Appeals committed error

when it held that the State failed to meet its burden on

the issue. In Petitioner’s view, the Court of Appeals ap-

plied an incorrect legal standard to undisputed facts in

this case. In the alternative, the Petitioner believes the

Court erred in finding the State could not show absence

of bad faith when the question has not been the subject

of an evidentiary hearing in state or federal court.

A. The Petitioner met its burden in demonstrating that

police officers acted without bad faith.

After scouring this Court’s previous opinion in Brewer

v. Williams, the Court of Appeals concluded that the State

could not show that Detective Leaming acted with an ab-

sence of bad faith. The Court emphasized this Court’s

prior conclusions that Leaming’s conduct was undertaken

“deliberately,” “designedly,” and “purposely.” 430 U.S.

at 399.% This is no doubt true in a general sense given

2?The exclusionary rule, of course, is not the only avail-

able mechanism to deter bad faith conduct by police. An of-

ficer who engages in egregious constitutional violations is sub-

ect to internal police sanctions. In addition, an officer acting

n bad faith is subject to liability under 42 U.S. C. § 1983 even

if the plaintiff pleads guilty on the underlying criminal charge.

See Haring v. Prosise, 51 U.S. L. W. 4736 (U.S. June 13, 1983)

(No. 81-2169).

23Nix v. Williams, 700 F. 2d 1164, 1171 (8th Cir. 1983).

Leaming’s testimony in the first trial suppression hear-

ing.”

But the question here is not whether Leaming intended

his statement to elicit a response from the accused. Even

if a showing of absence of bad faith is required in order

to invoke the inevitable discovery exception to the exclu-

sionary rule, the fact that Leaming generally intended to

further the investigation is irrelevant.’ In Petitioner’s

view, any limitation on inevitable discovery based on char-

acter of police conduct, should apply only where constitu-

tional violations are so egregious that the spectacle of

continued prosecution of the accused simply cannot be

tolerated. Rochin v. California, 342 U.S. 165 (1952).

Application of this admittedly stringent standard in

this case to allow admission of the challenged evidence

would not require this Court to harken back to less cele-

brated days of American criminal justice. Rather, the

approach would simply recognize the blunt facts of this

ease: (1) the body has been discovered, (2) the body’s

physical condition demonstrates without peradvanture that

a brutal murder has occurred, (3) the underlying constitu-

tional infraction that led law enforcement officers to the

body is technical in nature, (4) law enforcement has al-

4See Brewer v. Williams, 430 U. S. at 399.

25In 42 U.S.C. § 1983 context, this Court has expressly

rejected the ae that intentional conduct that violates

constitutional rig ts is per se a showing of bad faith. See Baker

v. McCollen, 443 U.S. 137 (1979) (officials not liable for eight-

day incarceration of suspect’s brother resulting from misidenti-

fication). Baker, of course, involves mistake of fact, rather than

of law, but this is a distinction without a difference considering

the need to allow breathing room for public officials is equally

required in either context.

re gl

ready paid a stiff price for the unlawful police conduct

through traditional operations of the exclusionary rule,

and (5) since the body would have been discovered in any

event by lawful means, no insult to the integrity of the

criminal justice system occurs through admission of evi-

dence relating to the body.

Respondent looks to cases construing liability of pub-

lie officials under 42 U.S.C. § 1983 for guidance on the

issue of proper standard regarding any absence of bad

faith requirement that might somehow be grafted on to

the inevitable discovery doctrine. See Respondent’s Op-

position to Certiorari at 14. Even though these cases

generally do not directly implicate the strong public in-

terest in effective criminal prosecution, this Court has re-

peatedly expressed the concern that too harsh a review

of the actions of public officials could deter their willing-

ness to execute their responsibilities with decisiveness and

without undue timidity. Wood v. Strickland, 420 U.S.

308, 321 (1974); Scheuer v. Rhodes, 416 U.S. 232, 240

(1974). As a result, this Court has held in the section

1983 context that public officials do not act in bad faith

unless it can be shown that “the constitutional right al-

legedly infringed by them was clearly established at the

time of their challenged conduct, if they knew or should

have known of that right, and if they knew or should have

known that their conduct violated the constitutional norm.”

Procunier v. Navarette, 434 U.S. 555, 563 (1977) (em-

phasis supplied).

The policy concerns expressed in Scheuer v. Rhodes,

Wood v. Strickland and Procunier v. Navarette have force

in the law enforcement context where rapid action is often

critical to suecess. While it could be argued that some

mechanism is necessary to deter police from unlawful

conduct, law enforcement officers are surely entitled to

as much breathing room in the execution of their duties

as are school administrators or prison officials.

Even applying Respondent’s section 1983 test in a sub-

jective fashion to the present case, it seems clear that the

State has met whatever burden it might have had to show

absence of bad faith. Plainly, any suggestion that Leaming

actually knew his conduct was unconstitutional swims

against heavy current. If Leaming had enough sophisti-

cated legal knowledge actually to know in his own mind

what this highly divided court would decide ten years after

the fact, he surely would have also known that he was run-

ning a high risk of causing extremely important evidence

to be exclude: as “fruit of the poisonous tree” and that the

entire prosecution of Williams could be jeopardized. Leam-

ing would be an odd fellow indeed to have such a state of

mind.

The record of Respondent’s first trial, which Peti-

tioner asks this Court to judicially notice, clearly indi-

cates that Leaming had some sensitivity to the constitu-

tional rights of the accused. Before departing on the trip

from Davenport to Des Moines, Leaming read Williams

his Miranda rights, stating, “I want you to remember this

because we'll be visiting between here and Des Moines.”

Brewer v. Williams, 430 U.S. at 392. Apparently trying

to comply with the Miranda decision, Leaming was care-

ful not to directly ask Williams questions. As Leaming

told the accused, “I do not want you to answer me. I do

not want you to discuss it further.” See 430 U.S. at 393.

While Leaming may later have been judged by a narrow

majority in this Court to have crossed the constitutional

line, evidence adduced at Respondent’s first trial demon-

strates a desire on the part of Leaming to tailor his con-

duct to comply with what he thought were constitutional

requirements.”*

Leathing was also remarkably forthcoming at the sup-

pression hearing at the first trial with respect to what oc-

curred in the car between Davenport and Des Moines. De-

fense counsel did not have to pry testimony regarding the

Christian burial speech out of a reluctant witness. He

volunteered it in response to a general question. The

transcript of the hearing” reads:

Q. (By Williams’ sttorney) You didn’t ask Williams

any questions?

A. No sir, I told him some things.

Q. You told him some things?

6Petitioner has no desire to relitigate Brewer v. Williams.

However, the assertion by Respondent that Leaming himself

broke an a ment that he made with defense counsel, see

Respondent's Opposition to Certiorari at 2, is without founda-

tion in the record of either of Williams’ trials. As Professor

Kamisar notes, police overheard Williams’ attorney, McKnight,

tell Williams on the ne that he would not be questioned,

and should not reveal anything, until he arrived in Des Moines.

fe carte me f both the trial court and the federal district court

concluded that by their silence, the Des Moines police apees

to “go along” with McKnight on this matter. Professor i-

sar rightly concludes that ‘there is no indication in the record

that after McKnight concluded his phone conversation with

Williams anything was said by McKnight or by the Des Moines

police about not questioning Williams on the return trip. The

does not show an explicit agreement, or even Mc-

Knight directly instructed Chief Nichols or Captain Leaming

that Williams was not to be questioned on the return trip.”

When Kelly, Williams’ Davenport lawyer, ressed his view of

arrangements for travel, Leaming replied, ‘ isn’t quite the

way | understand it.” Kamisar, Foreward: Brewer v. Wil-

liams—A Hard Look at a Discomforting Record, 66 Geo. L. J.

209, 212-13 nn. 23-24 (1977), —, Brewer v. Williams, 430 U.S.

387 (1978), Joint App. at 38-41, 107.

See Brewer v. Williams, 430 U. S. 387 (1978), Joint App. at

62-3. The transcript is cited in Kamisar, Foreward: Brewer v.

Williams—A Hard Look at a Discomforting Record, 66 Geo. L. J.

209, 223 n. 65 (1977).

A. Yes, sir. Would you like to hear it?

Q. Yes.

A. All right. I said to Mr. Williams, I said, “Rev-

erend, ...” (Christian burial speech described).

Leaming’s willingness, even eagerness, to testify in court

with respect to the manner in which he was able to dis-

cover information about the whereabouts of the body of

Pamela Powers is not consistent with the theory that

Leaming “knew” he was acting unconstitutionally.

In addition, it cannot be maintained that Leaming rea-

sonably should have known that his conduct was clearly

unconstitutional. This Court’s decision in Brewer v. Wil-

liams rested on an extension of the right to counsel as

expressed in Massiah v. United States, 377 U.S. 201

(1964). But in Massiah, the accused was not aware that

a police agent had infiltrated his inner circle. Here, Wil-

liams knew full well he was talking to a police officer. Of

course, the majority in Williams ultimately ruled that the

fact that Massiah did not know that his interrogator was

a police officer was a distinction without a difference.”

But Leaming cannot reasonably be charged with knowing

in 1968 that this Court would apply Massiah to the facts

presented ten years later. Indeed, ten years later, four

members of the Court believed that such an extension was

unwarranted.”

28But see opinion of Justice Blackmun, who states ‘‘Massiah

was more aot to imposed upon . . . because he did not

know he was under interrogation by a | tebe agent.”

Brewer v. Williams, 430 U.S. at 440 n. 3 (Blackmun, J., dissent-

ing).

27The Court's failure to consider this distinction has been

subject to critical commerny. See Note, Brewer v. Williams:

Express Waiver Extended to Sixth Amendment Right to Coun-

sel, 4 Ohio N. L. Rev. 833, 836 (1977).

_ While the decision in Brewer v. Williams did not rest

on Miranda grounds, it cannot be maintained that Leam-

ing as a reasonable police officer should have known that

he was violating Miranda. Of course, Miranda had been

decided two years before the transaction in question. But

the Miranda opinion was narrowly focused on interroga-

tion of the accused in custodial circumstances. Commen-

tary following Miranda engaged in substantial specula-

tion as to what exactly the court meant by interroga-

tion.” As of the winter of 1968, no Supreme Court case

had addressed the question.*! Given the strength of the

Miranda minority and the general reluctance of the Court

to invoke Miranda in subsequent cases to overturn con-

See Bator & Vorenberg, Interrogation and the Right to

Counsel: Basic Problems and Possible Legislative Solutions,

66 Colum. L. Rev. 62, 67 (1966).

4!1The question of what is interrogation under Miranda was

finally explored by this Court in Rhode Island v. Innis, 446 U. S.

291 (1980). In that case, the accused was suspected of armed

robbery in which the assailant had brandished a sawed off

shotgun. When passing a school with handicapped students

while transporting the accused to the station, one officer re-

marked to another, “God forbid one of them might find a

weapon with shells and they might hurt themselves.” 446 U. S.

at 294-95. The suspect then interrupted and volunteered to

show officers the location of the gun. This Court held that the

conversation between officers was not “reasonably likely” to

elicit an incriminating response and thus was not interrogation

under Miranda. 446 U. S. at 303.

The similarities between Innis and Brewer are obvious.

Justice Stevens found that Innis’s “invocation of his right to

counsel makes the two cases indistinguishable.” 446 U.S. at

310 n.7. And, as Justice Marshall noted, “One can scarcely

imagine a cong appeal to the conscience of a suspect—any

assertion that if a weapon is not found an

innocent n will be hurt or killed.” 446 U.S. at 405. The

fine line Innis and Brewer conclusively demonstrates

that Leaming cannot be charged with knowledge that his ac-

tions viol Miranda strictures.

victions, ** any belief that Miranda might not apply to the

facts of this case cannot be characterized as unreason-

able.*

While the above consideration of Miranda and Mas-

siah barely explores the rich complexity of the legal issues

involved, even this brief discussion represents a far more

sophisticated analysis than can reasonably be expected of

law enforcement officers in their day-to-day activity.”

The Court has generally avoided reversals of criminal

convictions based on strict interpretation of Miranda. See

Michigan v. Tucker, 417 U.S. 433 (1974); Michigan v. Mosley,

423 U. S. 96 (1975).

3S$As One Commentator has said with respect to the ques-

tions of whether interrogation occurred and whether Williams

waived his right to counsel, ‘The majority’s resolution . . . can

be disputed indefinitely, depending upon one’s own view of

the facts in the record.” Note, Brewer v. Williams, 11 Creighton

L. Rev. 997, 1029-30 (1970). Similarly, it has been said that “The

Court . . . found itself thrust into the maze of defining ‘inter-

rogation’ . . . .”” Note, The Right to Counsel and the Strict

Waiver Standard, 57 Neb. L. Rev. 543, 548 (1978). See also

Note, The Right to Counsel: An Alternative to Miranda, 38 La.

L. Rev. 239, 239-40 (1977), where it is observed, “One of the

most difficult and controversial areas of American criminal

procedure today is the subject of pre-trial police interrogation

of an accused . . .”; Note, Constitutional Law-Sixth Amend-

ment Right to Counsel-Waiver, 45 Tenn. L. Rev. 112, 113 (1977),

“The case demonstrates in an intriguing factual context the

complex relationship between the right to counsel, incrimi-

nating statements, or confessions made in the absence of coun-

sel, and the concept of waiver of fundamental rights;” Note,

Brewer v. Williams: The End to Post-Charging Interrogation,

10 Sw. U. L. Rev. 331, 331 n.3 (1978), noting that Hr

Miranda, ‘considerable confusion has arisen regarding the

scope of the decision;” Note, Interrogation and the Sixth

Amendment, 53 Ind L. Rev. 313, 313, (1978) (noting many cases

upholding admissions without presence of an attorney).

“This Court has recognized the situational roles prt

by law enforcement officers. In /mbler v. Pachtman, 424 U. S.

(1976), the Court observed, ‘frequently acting under ser-

ious constraints of time and even information, a prosecutor

ee, makes many decisions that could engender colorable

claims of constitutional deprivation.” /d. at 425.

While police can be reasonably expected to know the basics

of constitutional law, they should not be charged with the

knowledge of trained lawyers when courts engage in post

hoe judgment on whether they acted in bad faith. Thus,

while a police officer who executes a warrantless search

without any colorable justification acts so unreasonably

that bad faith may be inferred, a far different situation

exists where an officer obtains a warrant from a magi-

strate that is later found invalid through refined analysis

of difficult questions of constitutional law. Similarly,

while an officer who physically batters a handcuffed sus-

pect acts so unreasonably that bad faith may be inferred,

a failure to give or repeat Miranda warnings at precisely

the right time can be a simple error in judgment.

Here, under the facts presented in this case, it can-

not be said that Detective Leaming reasonably should have

known that his conduct would ten years later be found un-

constitutional by a narrow majority of this Court. As

the unanimous opinion of the Supreme Court of Iowa

noted :

The issue of the propriety of the police conduct in

this case .. . has caused the closest possible division

of views in every appellate court which has consid-

ered the question. In light of the legitimate disagree-

ment among individuals well versed in the law of

criminal procedure who were given the opportunity

for calm deliberation, it cannot be said that the ac-

tions of the police were taken in bad faith.’

In conclusion, the unlawful law enforcement activity

in this case is far from being so egregious that prosecu-

ticn of the accused should not be tolerated. Even apply-

ing Respondent’s less stringent section 1983 test, there

is no basis for concluding that those who engaged in the

58State v. Williams, 285 N. W. 2d at 260-61.

> ' r ine

- a hs . ke” 2 it ce) OR Oe

unlawful conduct knew or should have known that the

questioned activity was unconstitutional. As a result,

Petitioner has met its burden of showing absence of bad

faith.

B. Since the question of absence of bad faith has not been

the subject of an evidentiary hearing in either state or

federal trial courts, the Court of Appeals erred in conclud-

ing that the State could not prove absence of bad faith.

Even assuming that the inevitable discovery excep-

tion requires a finding of absence of bad faith on the part

of police officers, and even further assuming that absence

of bad faith cannot be conclusively established by Peti-

tioner at this stage of the proceeding, the Court of Appeals’

decision remains infected with reversible error. Because

the absence of bad faith issue has not been the subject of

an evidentiary hearing in either state or federal trial

courts, the Court had no basis for concluding that the Pe-

titioner, as a matter of law, could not prove absence of

bad faith.

The question of absence of bad faith was not raised

in the state court suppression hearing at Williams’ second

trial. See Transcript of Motions to Suppress Evidence,

pp. 3-90; (Joint App. 1-82), Ruling on Motions to Suppress

Evidence, pp. 1-12 (Joint App. 82-93). The entire focus

of the hearing was on whether the body of Pamela Powers

actually would have been discovered by searchers, and if

so, whether her physical condition would have been pre-

served. The Iowa Supreme Court injected the absence of

bad faith issue into this case when it announced a “two

pronged” inevitable discovery test.

In.the habeas proceeding in the Federal District Court,

Respondent did not properly raise the absence of bad faith

issue. His pleadings did not mention it directly or in-

directly. While Respondent’s Memorandum in Support

of Petition cites Brown v. Illinois, 422 U.S. 590 (1975),

the discussion of this “attenuation” case makes no refer-

ence at all to the Iowa Supreme Court’s application of

the absence of bad faith prong.’ In citing Brown, Re-

spondent appears only to be arguing that no inevitable

discovery exception exists and that the case should be

tested along the “attenuation” standards of Brown, a legal

analysis not adopted by the Iowa court. While the State

put on no evidence on the absence of bad faith issue in

“The discussion of Brown is contained in a section of

Respondent's Memo entitled “The ‘Inevitable Discovery’ Test

i lied by the State Courts was Constitutionally Impermis-

sible.” This section amounted to a facial challenge to the

two-pronged test developed by the lowa Supreme Court. The

argument was that '' — exception as developed the lowa

Supreme Court would be ‘wholly inconsistent with the deci-

sions of the United States Supreme Court concerning the Fifth

and Sixth Amendment and the ‘fruit of the poisonous’ tree

doctrine.” Memorandum in Support of Petition at 21. Con-

tinuing the attack, the Respondent states that ‘contrary to the

lowa Supreme Court's characterization of this hypothetical test

as an ‘extension of the independent source exception to the

rule of exclusion,’ 285 N. W. 2d at 526 n. 3, the adoption of this

theory “‘mark[s] a sharp break with Silverthorne, Nardone, and

Wong Sun.” Memorandum at 22. The discussion continues

that “the problem with the ‘inevitable discovery’ test applied

by the trial court is . . . that it emasculates the exclusionary

rule.” Memorandum at 23 (emphasis added).

by, | apparently demolished inevitable discovery on its

face, the Respondent then purports to apply “the constitu-

tionally appropriate fruit-of-the-poisonous tree standards to

the instant case.” Memorandum at 24. It is “[i]n this regard”

that Brown v. Illinois, 422 U.S. 590 (1975), is “especially in-

structive.” Memorandum at 25.

In concluding the section, the Respondent notes that

“Since the ‘inevitable discovery’ doctrine snghed by the state

courts was constitutionally impermissible, their findings that

the body and the evidence derived therefrom would have been

discovered even in the absence of the flagrant Fifth and Sixth

Amendment violations in this case are constitutionally irrele-

vant.” Memorandum at 26.

See generally Joint App. 173-177.

the District Court (or in state court), this fact was not

discussed in Respondent’s Post Trial Memorandum. See

Pet. Reply App. at 13-44. The Federal District Court made

no findings on the alleged issue, and the Respondent did

not move to enlarge findings of fact pursuant to Fed. R.

Civ. P. 52b. Respondent’s position on this procedural

issue, see Respondent’s Opposition to Certiorari at 6-7,

thus amounts to the paradox that the absence of bad faith

issue was actually litigated, even though the main partici-

pants did not realize it. Under these circumstances, the

general rule that questions not litigated below will not be

considered on appeal is fully applicable.’’

Even assuming Respondent’s elliptical reference to

Brown v. Illinois can be interpreted as preserving the is-

sue for appeal, the procedural posture of the absence of bad

faith question simply does not allow definitive adjudica-

tion of the issue against Petitioner under any circum-

stances. If this Court believes there is any legal doubt

on the absence of bad faith question, the Petitioner is at

least entitled to one evidentiary opportunity on the ques-

57See, e.g., Brown v. United States, 411 U.S. 223, 229, 230

n. 4 (1973) (new arguments with respect to standing and con-

structive possession in Fourth Amendment context not con-

sidered); Chiarella v. United States, 445 U. S, 222, 235-37 (1980)

(refusal to affirm securities law conviction on theory of liability

not presented to jury). It is true that before the Court of

a ge in this case, Petitioner did not originally expressly

claim that the absence of bad faith issue was gy te before

the Court. Williams v. Nix, 700 F.2d at 1175. Petitioner force-

fully presented this argument in his petition for rehearing and

rehearing en banc after the original panel issued its decion.

See generally, 700 F, 2d at 1175 (Fagg, J., dissenting from denial

of rehearing en banc).

The absence of bad faith issue was fleetingly mentioned

in the briefs before the Court of Is, but was not sub-

stantially explored 4 either party. Brief for Appellant at

Bap i at 182), Brief for Appellee, pp. 21-22 (Joint App.

tion in light of Respondent’s procedural default in state

and federal trial courts. See Williams v. Niz, 700 F. 2d

1164, 1175-76 (8th Cir. 1983) (Fagg, J., dissenting from

denial of rehearing en banc).

Appellate restraint seems particularly appropriate in

a habeas corpus proceeding where interests in finality and

repose and comity between state and federal systems are

unusually strong. There is, in Petitioner’s view, serious

doubt as to whether the question adjudicated by the Court

of Appeals can be raised at all in a habeas attack. Cf.

Stone v. Powell, 428 U.S. 465 (1976). See discussion un-

der Part III, infra. Plainly, the aggressive posture of the

Court of Appeals cuts roughly across the grain of this

Court’s recent cases urging an exceedingly cautious ap-

proach to exercise of federal habeas jurisdiction. Engle

v. Issac, — U.S. —, 102 S. Ct. 1558 (1982) ; Rose v. Lundy,

— U.S. —, 102 8. Ct. 1198 (1982); Wainwright v. Sykes,

433 U.S. 465 (1977). Under these circumstances, the State

should not be forced to initiate a full blown trial fifteen

years later, absent crucial evidence, where a limited hear-

ing may be sufficient to resolve any residual doubts that

may exist with respect to admissibility of the challenged

evidence. See United States v. Wade, 388 U.S. 218, 242

(1967) ; Jackson v. Denno, 378 U.S. 391-96 (1964). -

ITI. The rule in Stone v. Powell should be extended to in-

evitable discovery cases where highly probative and re-

liable evidence is challenged in a habeas proceeding after

a full and fair opportunity to challenge the admissibility

of the evidence on direct review in state court.

This case also squafely raises the important question

of the applicability of the rule of Stone v. Powell, 428 U.S.

465 (1977), to non-Fourth Amendment cases involving ad-

missibility of highly probative and reliable physical evi-

dence. The Court of Appeals dismissed the argument,

noting erroneously that this Court “necessarily rejected”

extension of Stone in Brewer v. Williams. Williams v.

Niza, 700 F. 2d at 1170 n. 8 (Pet. App. 11). The issue, how-

ever, was expressly left open when this case was previously

before the Court. Brewer v. Williams, 430 U.S. at 414

(Powell, J., concurring). One other case is presently be-

fore the Court which raises the issue of extension of Stone

to non-Fourth Amendment cases. White v. Finkbeiner,

687 F. 2d 885 (7th Cir. 1982), petition for cert. filed sub.

nom, Fairman v. White, 51 U.S.L.W. 3001 (U.S. June 18,

1982) (No. 81-2340).

The entire rationale of Stone v. Powell applies with

full force to this Sixth Amendment case where the inevi-

table discovery exception is invoked to allow admission

of highly probative and reliable physical evidence. Police

will be adequately deterred by the possibility of losing

convictions on direct appeal. The marginal deterrence

value of relitigating the issue on collateral attack is mini-

mal. And the interest in promoting finality in criminal

judgments will be promoted. See Stone v. Powell, 428

U.S. at 492-94.

The reason Stone v. Powell has not been generally

applied outside the Fourth Amendment is not because

Fifth and Sixth Amendment violations should be categori-

cally excluded from its reach because of some abstract

reason or because the Fifth and Sixth Amendments are

more highly placed in the constitutional hierarchy. Rather,

Fifth and Sixth Amendment violations are generally not

linked with highly probative and reliable physical evidence

that nearly universally characterizes Fourth Amendment

search and seizure cases. The Petitioner believes the

focus of the analysis in applying Stone should be on the

nature of evidence gathered, not the type of constitutional

violation which occurred.

The issue presented here is thus not whether Stone

v. Powell applies to all cases where the right to counsel

has been infringed. There may be occasions, for instance,

where impairment of the right to counsel not involving

admission of highly reliable evidence so undermines the

fundamental fairness of the criminal proceeding that

federal courts should not lightly relinquish their habeas

jurisdiction. Here, however, the issue may even be nar-

rowed to whether Stone v. Powell should be extended to

non-Fourth Amendment claims where highly probative and

reliable physical evidence has been obtained, or would

have inevitably been obtained, through investigative

means independent of the unlawful conduct.

Analytically, consideration of whether probative and

reliable physical evidence is admissible under the inevi-

tuble discovery exception to the exclusionary rule is not

much different from a challenge to the admissibility of

evidence on Fourth Amendment grounds. In the Fourth

Amendment context, the state court generally holds « sup-

pression hearing, taking evidence and hearing argument

on the question of whether a warrant is supported by

probable cause or, in the alternative, whether a warrant-

less search is justified under the facts and circumstances

presented. This inquiry is not qualitatively different

from that which occurs when inevitable discovery is in-

voked. In the inevitable discovery setting, the state court

takes evidence and hears argument on the question of

whether law enforcement officials in fact would have in-

evitably discovered evidence through independent means

that would be otherwise considered “fruit of the poison-

ous tree.” Neither inquiry implicates the integrity of the

, ‘ oe ey

> 4 wer: roy oie nen elt eS

factfinding process. Neither inquiry involves an adjudi-

cation of fundamental rights.

The case is distinguishable from those concerning

the suppression of confessions allegedly obtained in vio-

lation of Miranda v. Arizona, 384 U.S. 436 (1966), to

which Stone v. Powell might also be extended.** Unlike

here where physical evidence is at issue, introduction of

communicative evidence obtained from the accused in

violation of Miranda may, depending on the context, af-

fect the fairness and accuracy of the criminal process.

And, also unlike this case, litigants in Miranda cases

might conceivably transform their challenge from a com-

paratively narrow attack on whether Miranda strictures

were followed into a more broadly based assault on the

voluntariness of their confession, thereby reopening the

door to the federal courthouse. White v. Finkbeiner, su-

pra, 687 F. 2d at 892-93,

Nothing in Rose v. Mitchell, 443 U.S. 545 (1978), is

to the contrary. In this case, the Court refused to extend

Stone v. Powell to claims of discrimination in the se-

lection of a grand jury. The Court doubted that a full

and fair hearing of the claim would be available in state

courts since the appointing trial court would initially de-

cide the merits of the claim. 443 U.S. at 561. Further,

the Court noted a constitutionally protected right was at.

stake, not a judicially created remedy. 443 U.S. at 562.

Finally, the Court noted that, unlike in Stone, ‘‘the de-

terrent effect of federal review is likely to be great, since

state officials ... may be expected to take note of a fed-

eral court’s determination that their procedures are un-

‘See White v. Finkbeiner, 687 F.2d 855 (7th Cir. 1982),

petition for cert. filed sub nom. Fairman v. White, 51 U.S, L. W.

3001 (U. S. June 18, 1982) (No. 81-2340).

constitutional and must be changed.’’ 443 U.S. at 563.

None of those distinguishing features are present in the

case at bar.

The Respondent had a full and fair opportunity to

litigate the admissibility of Pamela Powers’ body in state

court. In the District Court, Respondent urged that pre-

viously overlooked photographs and recent deposition tes-

timony of the investigative officer contradicted the state

court’s findings. See Williams v. Nix, 528 F. Supp. at 670-

71. But, as the District Court noted, ‘‘this newly dis-

covered evidence neither adds much to nor subtracts much

from the suppression hearing.’’ 528 F. Supp. at 671 n. 6.

Notwithstanding this evidence, according to the District

Court:

... Pamela Powers’ body would soon have been found

by the searchers in essentially the same condition it

was in at the time of the actual discovery, even if pe-

titioner had not made any statements and had not led

police to the body. The body was right next to the

end of a culvert located beneath a road. Much of the

body was covered with snow, but her face and part

of her brightly colored striped shirt were not touched

by snow and were completely exposed to the view of

any person looking at the end of a culvert. The

searchers were going into the ditches to look into all

culverts, and they would have searched along the

road where the culvert and body were located.

528 F. Supp. at 671.

Respondent also attacked the impartiality of the trial

court in the form of an affidavit submitted by Respond-

ent’s trial counsel stating that the Judge told him in in-

formal conversation the chances of reversal on the issue

of inevitable discovery were about 50-50 and that if he

were prosecuting, he would have put on more evidence

for the State. See Crawford Affidavit, Joint App. at 172.

Even taking these self serving allegations at face value,

they do not show that Respondent did not have a full and

fair opportunity to litigate the issue. In Iowa, findings

of fact on constitutional questions in criminal cases are re-

viewed de novo by the Supreme Court. See State v. Wil-

liams, 285 N. W. 2d at 260-262. The court’s reported ob-

servations thus do not suggest any bias or partiality, and

the issue was not raised on direct appeal.

Extension of Stone v. Powell to the present case

would vindicate the policies of repose and finality in the

criminal law. As Justice Harlan noted: “If law, criminal

or otherwise, is worth having and enforcing,-:t must at

some time provide a definite answer to the questions liti-

gants present or else it never provides an answer at all.

Mackey v. United States, 401 U.S. 667, 691 (1970). This

ease already comes close to the ‘‘or else’’ feared by Jus-

tice Harlan. It is respectfully submitted that the interest

in finality and repose on the issue of admissibility of evi-

dence which in fact enhances the integrity and reliability

of the factfinding process overrides all other considera-

tions.

r CONCLUSION

For the above mentioned reasons, it is respectfully

submitted that the decision of the Court of Appeals in

this case must be Reversed.

Respectfully ‘submitted, 1d

Tomas J. MILLER

Attorney General of Iowa

Brent R. Aprei

Deputy Attorney General

Hoover State Office Building

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.