Eugene L. Shapiro, Active Pursuit, Inevitable Discovery, and the Federal Circuits: The Search for Manageable Limitations Upon an Expansive Doctrine, 39 Gonz. L. Rev. 295 (2004).[PDF] [Westlaw] [LexisNexis]
It is no surprise that serious discussion of the inevitable discovery doctrine so frequently turns to its potential limitations. The exception to the exclusionary rule, permitting the introduction of evidence acquired through constitutional illegality on the grounds that it would have been discovered in any event, calls for judicial hypothesizing by its own terms. The comparative lateness of the Supreme Court’s adoption of the inevitable discovery exception in 1984 in Nix v. Williams itself seemed to be a testament to the thorny nature of the issues of conjecture which it presented – if, indeed, the exclusionary remedy for constitutional violations was to be taken seriously.
Nix definitively addressed some issues of doctrinal limitation, but significant questions remained and have been discussed within the federal circuits over the years. Near unanimity has emerged on the potentially limiting issue of whether the inevitable discovery doctrine is applicable to “primary” evidence (evidence discovered during the course of the illegality) as well as “derivative” evidence subsequently obtained. But a very significant split among the circuits still exists concerning the question of whether a separate and independent investigation must be ongoing at the time of the constitutional illegality in order for the inevitable discovery doctrine to be applicable. This has been termed the issue of “active pursuit.”
This article will explore the differences among the circuits on this question. Before doing so it will address the other potential doctrinal limitations which have been considered by the courts. Criticism of an active pursuit requirement among the circuits that have rejected it will then be discussed, and the application of such a requirement by other courts of appeals will be examined. Surprisingly, this will reveal that while it is frequently characterized as a simple, uniform doctrine, the active pursuit requirement has significant variations when articulated and applied among those courts. Finally, this article will attempt to provide some perspective on the issue in light of this reality…. Read More