A Common Sense Understanding of Inevitable Discovery: Why Nix v. Williams Does Not Require Active Pursuit in the Application of the Inevitable Discovery Doctrine

Abstract

Suppose that an officer has the requisite probable cause necessary to obtain a search warrant to seize evidence, but seizes the evidence that a search warrant would have rendered before obtaining the warrant. Should the evidence that was seized be admissible under the theory of inevitable discovery? This question's answer ultimately depends on the jurisdiction’s position on “active pursuit.” The idea of active pursuit was born out of the facts of Nix v. Williams, and has caused a divide amongst the various circuits of the United States Court of Appeals. Some have required it while others have expressly held it unnecessary.

This article is the first to draw upon the Court’s dicta from Hudson v. Michigan to advance the argument that active pursuit should not be required and that the inevitable discovery doctrine should be analyzed through a “but-for” causal analysis. But-for causation is required in order to exclude evidence, and if police misconduct is not a but-for cause of the discovery of evidence the evidence should be admitted regardless of whether there was active pursuit. This article is also the first to break down the three different approaches taken at the circuit court level to resolve this issue, and then explain why the but-for causal analysis best effectuates the Court’s holding from Nix v. Williams as well as the Court’s recent exclusionary rule jurisprudence.

Keywords: Inevitable Discovery, Active Pursuit, Hudson v. Michigan