Wisconsin Supreme Court decides the inevitable discovery rule for the first time. Despite officer’s bad faith in obtaining a statement without proper Miranda warnings, the evidence is clear to the Supreme Court that the search would have occurred without statement. State v. Jackson, 2016 WI 56, 2016 Wisc. LEXIS 161 (July 1, 2016), rev’g 2015 WI App 49, 363 Wis.2d 554, 866 N.W.2d 768:
[*P48] Although the court of appeals has decided multiple inevitable discovery cases, see, e.g., Avery, 337 Wis. 2d 351; Lopez, 207 Wis. 2d 413; Schwegler, 170 Wis. 2d 487, this court has not conducted a comprehensive examination of the doctrine since the Supreme Court decided Nix. The present case affords us an opportunity to evaluate the conditions that must exist for the State to demonstrate that it inevitably would have discovered evidence despite the fact that officers actually obtained the evidence as a result of a constitutional violation. Accordingly, we begin our analysis by examining the development and purposes of the doctrine.
. . .
[*P65] Demonstrated historical facts proving active pursuit of an alternative line of investigation at the time of the constitutional violation certainly help the State to substantiate its claim that discovery of otherwise excludable evidence was inevitable. However, requiring proof in all cases of active pursuit at the time of the constitutional violation risks exclusion of evidence that the State might demonstrate that it inevitably would have discovered. For instance, a constitutional violation may occur so quickly after the commission of a crime that there has not been time to launch the kind of comprehensive investigation that would be normal operating procedure.
[*P66] Consequently, we think that the better approach is to follow the analysis applied by this court in Weber and by the court of appeals in Washington and in Kennedy: Has the prosecution met its burden of proving by a preponderance of the evidence that it inevitably would have discovered the evidence sought to be suppressed? Accordingly, the factors in Schwegler, Lopez, and Avery should be regarded as important indicia of inevitability rather than indispensable elements of proof.
c. Proof of the Absence of Bad Faith
[*P67] We also decline Jackson’s invitation to articulate a rule prohibiting application of the inevitable discovery exception when the State fails to prove the absence of bad faith on the part of officers who committed the constitutional violation. Although in Nix the Supreme Court expressly rejected the necessity for a good faith requirement, Nix, 467 U.S. at 445, Jackson contends that the Wisconsin Constitution provides greater protections than does the federal constitution in this context, see State v. Knapp, 2005 WI 127, ¶59, 285 Wis. 2d 86, 700 N.W.2d 899 (citing State v. Doe, 78 Wis. 2d 161, 171, 254 N.W.2d 210 (1977)).
[*P68] The Court’s decision in Nix rejecting proof of absence of bad faith as a necessary condition for inevitable discovery has provided an avenue for criticism of the doctrine. “Because one purpose of the exclusionary rule is to deter … shortcuts, there is much to be said for the proposition that the ‘inevitable discovery’ rule should be applied only when it is clear that ‘the police officers have not acted in bad faith to accelerate the discovery’ of the evidence in question.” 6 LaFave § 11.4(a), at 344-46 (quoting Brian S. Conneely & Edmond P. Murphy, Comment, Inevitable Discovery: The Hypothetical Independent Source Exception to the Exclusionary Rule, 5 Hofstra L. Rev. 137, 160 (1976)). In her brief, Jackson cites cases from other jurisdictions that have adopted rules precluding application of the exception when the prosecution fails to prove the absence of bad faith. See Smith v. State, 948 P.2d 473, 481 (Alaska 1997); Commonwealth v. Sbordone, 678 N.E.2d 1184, 1190 (Mass. 1997); State v. Holly, 833 N.W.2d 15, 33 (N.D. 2013).
[*P69] It gives us pause to consider the possibility that officers could intentionally violate constitutional rights as a “shortcut” to obtaining evidence when they know the State will be able to demonstrate inevitable discovery by other means. We are particularly mindful of this possibility as we decide a case in which the circuit court and court of appeals, respectively, rebuked officers for “flagrant” and “reprehensible” violations of Jackson’s rights—rebukes, we believe, that were warranted and appropriate.
[*P70] Nevertheless, we conclude that Jackson has not demonstrated that the Wisconsin Constitution requires proof of the absence of bad faith as a necessary condition for the prosecution to establish inevitable discovery of otherwise excludable evidence. Because inevitable discovery is an exception to the exclusionary rule, it necessarily applies after some government misconduct has occurred that would otherwise justify the suppression of evidence as an appropriate remedy. See United States v. Alexander, 540 F.3d 494, 503-04 (6th Cir. 2008). In the exceptional case where the government meets its burden of proving inevitability, however, it will have demonstrated that suppression would place the State in a worse position than it would have been in absent the misconduct. Insisting on suppression of evidence obtained by intentional misconduct would redirect the exclusionary rule to a punitive purpose—punishing the State and the public for misconduct by some officers despite independent proof of inevitable discovery of the relevant evidence.
[*P71] We are not persuaded that allowing the State to prove inevitable discovery without proving the absence of bad faith will encourage officers to take unconstitutional shortcuts to accelerate the acquisition of evidence. An officer who intentionally commits a constitutional violation always risks losing valuable evidence, and “[a] police officer who is faced with the opportunity to obtain evidence illegally will rarely, if ever, be in a position to calculate whether the evidence sought would inevitably be discovered.” Nix, 467 U.S. at 445. Already, the exception applies only if the State proves that it inevitably would have discovered the disputed evidence without the misconduct. As the Supreme Court explained in Nix, “When … the evidence in question would inevitably have been discovered without reference to the police error or misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible.” Nix, 467 U.S. at 448. Conversely, “If the State finds itself in any situation where it must prove that the evidence inevitably would have been discovered by other legal, independent means, and it fails to do so, the doctrine is not applied and the evidence is suppressed.” State v. Garner, 417 S.E.2d 502, 511 (N.C. 1992).
[*P72] In declining to impose a good faith requirement in connection with inevitable discovery, we emphasize that the State has the burden of proof in satisfying this narrow exception to the exclusionary rule. As the Seventh Circuit observed,
Nix … speaks in terms of proof by preponderance of the evidence that the government would have discovered the challenged evidence through lawful means …. Inevitable discovery is not an exception to be invoked casually, and if it is to be prevented from swallowing the Fourth Amendment and the exclusionary rule, courts must take care to hold the government to its burden of proof.
United States v. Jones, 72 F.3d 1324, 1334 (7th Cir. 1995). Proof of inevitable discovery turns upon demonstrated historical facts, not conjecture.
[*P73] With these principles of the inevitable discovery exception in mind, we now consider its application in this case.
B. Officers Inevitably Would Have Discovered the Evidence in Jackson’s Residence
[*P74] On appeal, the State has not challenged the circuit court’s determination that the detectives intentionally violated Jackson’s constitutional rights during her interrogation and by subsequently bringing her to her home to locate physical evidence. The officers failed to provide timely Miranda warnings, failed to respond timely to her physical condition, and failed to respond to her expressed desire not to continue talking, thereby raising obvious concerns about the voluntariness of her admissions. Suppression of her statements to police was necessary and “inevitable” under the circumstances presented. Thus, resolution of this case requires us to determine whether the State has established by a preponderance of the evidence that Jackson’s knife and her bloody clothing would inevitably have been discovered by lawful means but for the police misconduct.
[*P75] After assessing the substantial evidence presented by the State regarding the search warrant and ensuing search, the demonstrated historical facts leave us reasonably certain that officers would inevitably have discovered the physical evidence in Jackson’s garage without any of the information unlawfully obtained from her.
. . .
[*P79] Based on the untainted portions of the affidavit, we conclude that the search warrant application provided probable cause to conduct a search of Jackson’s residence. A search warrant affidavit provides probable cause for a search when, under the totality of the circumstances, it sets forth “a substantial basis for concluding that there was a fair probability that a search of the specified premises would uncover evidence of wrongdoing.” State v. Romero, 2009 WI 32, ¶3, 317 Wis. 2d 12, 765 N.W.2d 756.
