State v. Mastella L. Jackson

2016 WI 56

SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2238-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant,
v.
Mastella L. Jackson,
Defendant-Respondent-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 363 Wis. 2d 554, 866 N.W.2d 768)
(Ct. App. 2015 – Published)
PDC No.: 215 WI App 49

OPINION FILED: July 1, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 25, 2016

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Outagamie
JUDGE: Mark J. McGinnis

JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J. and BRADLEY, A. W., J. dissent
(Opinion filed).
NOT PARTICIPATING:

ATTORNEYS:
For the defendant-respondent-petitioner there were briefs
by Andrew R. Hinkel, assistant state public defender. Oral
argument by Andrew R. Hinkel.

For the plaintiff-appellant the cause was briefed by
Jeffrey J. Kassel, assistant attorney general, with whom on the
brief was Brad D. Schimel, attorney general. Oral argument by
Luke N. Berg, deputy solicitor general.
 2016 WI 56
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2238-CR
(L.C. No. 2012CF147)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Appellant,
FILED
v.
JUL 1, 2016
Mastella L. Jackson,
Diane M. Fremgen
Defendant-Respondent-Petitioner. Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 DAVID T. PROSSER, J. This is a review of a published
decision of the court of appeals reversing an order by the

Outagamie County Circuit Court suppressing physical evidence as

"fruit of the poisonous tree."1

¶2 The case arises out of a 2012 stabbing death at a

hotel in the Town of Grand Chute, west of Appleton. Police

suspected that Mastella Jackson (Jackson), the victim's wife,

1
State v. Jackson, 2015 WI App 49, 363 Wis. 2d 554, 866
N.W.2d 768.
 No. 2014AP2238-CR

might have been involved in the death, so they brought her to

the Grand Chute Police Department and interrogated her for more

than six hours without giving her a Miranda warning. Jackson

made incriminating statements during the interrogation. At the

end of the interrogation, Jackson agreed to go with detectives

to her residence, where officers were already conducting a

search pursuant to a search warrant. There, she revealed the

location of the knife used in the stabbing and the bloody

clothing she was wearing when she left the hotel.

¶3 After the State charged Jackson with first-degree

intentional homicide, she moved to suppress all evidence

obtained in violation of her constitutional rights. The circuit

court excluded not only Jackson's statements but also the

physical evidence obtained from her house, which the circuit

court deemed fruit of the poisonous tree. The court of appeals

reversed as to the physical evidence, concluding that the State

had demonstrated that the officers searching the house would

inevitably have discovered the knife and clothing during their
search.

¶4 In Nix v. Williams, 467 U.S. 431 (1984), the Supreme

Court of the United States approved an inevitable discovery

exception to the exclusionary rule. This court has not applied

the inevitable discovery exception since State v. Weber, 163

Wis. 2d 116, 471 N.W.2d 187 (1991). Since Weber, however, the

court of appeals has decided a series of inevitable discovery

cases. See State v. Avery, 2011 WI App 124, 337 Wis. 2d 351,
804 N.W.2d 216; State v. Lopez, 207 Wis. 2d 413, 559 N.W.2d 264

2
 No. 2014AP2238-CR

(Ct. App. 1996); State v. Schwegler, 170 Wis. 2d 487, 490

N.W.2d 292 (Ct. App. 1992).

¶5 Jackson now urges us to reassess the inevitable

discovery doctrine. She argues that the State should not be

able to rely on the doctrine to defeat exclusion where the

police intentionally engaged in the misconduct that provides the

basis for exclusion.

¶6 Accordingly, we must determine whether the inevitable

discovery exception to the exclusionary rule applies only when

the State proves the absence of bad faith by the officers who

committed the constitutional violation. Like the Supreme Court

of the United States, we conclude that the exception does not

include such a requirement. Furthermore, because in this case

we reexamine inevitable discovery for the first time since our

decision in Weber, we also review the doctrine's analytical

framework. We then apply the doctrine to the facts in this case

and conclude that the State has proven by a preponderance of the

evidence that officers inevitably would have discovered the
physical evidence in dispute. Consequently, we affirm the

decision of the court of appeals and remand to the circuit court

for further proceedings consistent with this opinion.

I. FACTUAL BACKGROUND

A. Murder at the Hotel

¶7 At about 1:25 in the afternoon on February 21, 2012,

officers from the Grand Chute Police Department were dispatched

to the Road Star Inn located west of Appleton. The officers
were advised that a male had been found in Room 114 lying face

3
 No. 2014AP2238-CR

down and covered in blood. When officers entered Room 114, they

observed a bloody phone receiver detached from the phone near

the door. Large blood smears covered the far wall, beyond the

beds. Below the smears, officers found Derrick Whitlow lying

prone against the wall. He had already been pronounced dead by

paramedics. Whitlow had experienced significant injuries. An

autopsy performed the next day showed that he suffered

approximately 25 stab wounds. An eight-inch knife sheath

bearing the word "Winchester" lay on the floor next to his body.

¶8 An employee on the hotel's cleaning staff told

officers that she was doing the laundry in Room 111 between 1:00

and 1:30 p.m. She saw a person wearing a gray hooded sweatshirt

knock on the door to Room 114. Because the sweatshirt's hood

covered the visitor's head and face, the cleaning employee could

not tell whether the person was male or female. After someone

inside Room 114 let the person in, the employee heard a male

voice screaming for help. The employee also heard sounds that

she thought were a person being hit. She went to her manager to
get help, and she subsequently saw the person in the sweatshirt

leaving the hotel.

¶9 Based on the cleaning employee's report, the hotel

manager entered Whitlow's room. He found Whitlow surrounded by

blood and immediately called 911. When the officers arrived,

the manager informed them that Whitlow had been staying at the

hotel for a few days and that Whitlow's ten-year-old son, S.J.,

was staying at the hotel with him. The manager also indicated

4
 No. 2014AP2238-CR

to police that he understood Whitlow was having problems with

his wife.

¶10 A hotel guest staying in Room 115 provided additional

information to police about the afternoon's events. From his

room, he heard a female voice yelling. Thinking the voice was

that of the cleaning employee, he walked down the hallway to

investigate. After seeing the cleaning employee and realizing

that the yell came from someone else, he heard a loud scream

near Room 114, followed by a male voice yelling "help me, help

me." The guest then went to the manager's office to report the

incident. Aside from the guest's comment about hearing a female

voice yelling, neither the guest nor the manager nor the

cleaning employee identified the sex or race of the person in

the hooded sweatshirt.

B. Officers Contact Jackson and R.L.D.J.

¶11 Shortly after 2 p.m., detectives from the Grand Chute

Police Department began investigating the whereabouts of the

child alleged to be staying with Whitlow. Unsure whether they
might be dealing with a missing child case, the detectives

attempted to locate Jackson, whom they believed to be the

child's mother. They had received information indicating that

Jackson resided at an address on Fourth Street in Appleton and

that they might also find her at Harbor House.2 The detectives

2
Harbor House states its mission as "lead[ing] a community-
wide partnership in the prevention of domestic violence and
abuse, and to offer safety and support to diverse families in
crisis." History
of Harbor House, Harbor House, http://www.harborhouseonline.org/
(continued)

5
 No. 2014AP2238-CR

first went to Harbor House; there, they learned that Jackson had

stayed overnight but left around 11 a.m.

¶12 Around 2:30 p.m., officers informed the detectives

that a secretary at a local elementary school had confirmed S.J.

was present at school but his older brother, 11-year-old

R.L.D.J., was absent. R.L.D.J.'s whereabouts remained

undetermined as the detectives proceeded from Harbor House to

the Fourth Street address. They arrived between 2:30 and 3:00

p.m. Outside the residence, the detectives met with an officer

from the Appleton Police Department who said he had not seen any

people coming or going from the house. Officers remained at the

Fourth Street location to observe the premises, and the

detectives left to investigate another address associated with

Jackson.

¶13 An officer arriving at the Fourth Street residence

around 3:55 p.m. noticed the door to the residence begin to

open. A man emerged from inside. The officer introduced

himself to the man, who was working on the door's lock and
identified himself as the building's landlord. He told the

officer that Jackson had asked him to change her locks and that

she was currently present in the house. Because the door

remained ajar as the landlord worked, the officer observed

Jackson and R.L.D.J. through the partially open door. Upon

history.html (last visited June 23, 2016). Harbor House's
shelter program provides a safe space and emergency
transportation for victims of domestic violence in the Appleton
area.

6
 No. 2014AP2238-CR

seeing Jackson, the officer asked her to come to the door to

speak with him outside. The detectives, returning to the Fourth

Street residence shortly after 4 p.m., joined the officer at the

door. Jackson gave the detectives consent to search the

residence to determine whether there were other people inside,

and their search confirmed that R.L.D.J. was present and safe.

¶14 Following the search, the detectives spoke briefly

with Jackson outside before asking her to come with them to the

Grand Chute Police Department. The officers patted her down and

then drove her to the police department in the back seat of a

squad car. In a separate car, officers also brought R.L.D.J. to

the department. Jackson and R.L.D.J. left the residence with

officers around 4:30 in the afternoon.3

C. R.L.D.J.'s Interview

¶15 Officers began interviewing R.L.D.J. around 5:30 p.m.,

approximately an hour after he arrived at the department. An

initial interview with R.L.D.J. lasted between 60 and 90

minutes, after which he and S.J. ate dinner together at the
police station. A second interview ensued between 8 and 9 p.m.

following a 60- to 90-minute dinner break.

¶16 During the second interview, officers informed

R.L.D.J. about his father's death and pressed him for answers

regarding his mother's whereabouts during the afternoon.

R.L.D.J. emphatically denied repeated suggestions that he went

3
Separately, an officer brought S.J. from his school to the
police department between approximately 4:00 and 4:15 p.m.

7
 No. 2014AP2238-CR

to the Road Star Inn that day. When R.L.D.J. asked whether his

mother would go to jail, officers told him that she would not.

Over and over, the officers asked R.L.D.J. to tell them the

truth and to "do the right thing" to help his father.

¶17 Eventually, R.L.D.J. began providing information about

the afternoon. He acknowledged that his mother left the

residence for 10 to 20 minutes at some point during the

afternoon while he played video games. According to R.L.D.J.,

his mother was angry with Whitlow because she discovered he had

thrown away family photographs and other mementos. Still

playing video games when his mother returned home, R.L.D.J.

heard the sound of a zipper and heard his mother take a shower

immediately upon her arrival. R.L.D.J. further indicated that

his mother wore different clothes after her shower than she had

worn earlier in the day. He also disclosed that Jackson

instructed him not to tell anyone that she had left the

residence that afternoon.

D. Jackson's Interrogation
¶18 Jackson waited alone for nearly two hours in a

separate room before detectives began questioning her at

6:24 p.m. One of the detectives opened the questioning by

telling Jackson that she was not under arrest, saying, "You

know, you're not under arrest or, you know, you're free to go,

you know." When Jackson asked for clarification, the detective

explained, "We just want to talk to you about some stuff that's

going on. We're investigating a couple things, OK, but like I
said you're not under arrest or anything like that. We just

8
 No. 2014AP2238-CR

want to talk to you and get some information to help us out,

OK?"

¶19 The detectives began by questioning Jackson about the

hours leading up to Whitlow's death. Jackson explained that she

had taken R.L.D.J. to spend the night at Harbor House after

hearing noises outside their residence. She mentioned that she

had neither slept nor eaten much in recent days.

¶20 Gradually, the questioning transitioned to Jackson's

relationship with Whitlow. In response to the detectives'

questions about the effect that stress had recently had upon her

appetite and sleep, Jackson told them, "[M]y um husband, we've

just been havin issues, um in a sense . . . ." She claimed that

she had experienced psychological mistreatment at his hands.

When the detectives asked whether "anything . . . happened in

the last few days that has made this worse," she explained he

had been with her at the house until four days before his death

"cuz [she] was taking care of him" while his broken leg healed.4

After the two of them got into an argument, however, he asked
her to take him to the Appleton police station, and he

eventually rented a room at the Road Star Inn. Because of

Whitlow's broken leg, S.J. went to stay at the hotel to help his

father.
4
A few weeks before Whitlow's death, a vehicle operated by
Jackson struck Whitlow, who suffered a broken leg as a result.
Although officers from the Appleton Police Department were aware
of this previous incident on the day of Whitlow's death, the
affidavit in support of the search warrant for Jackson's
residence made no mention of it.

9
 No. 2014AP2238-CR

¶21 Around 6:54 p.m., the conversation moved back to

Jackson's activities after leaving Harbor House. Jackson told

the detectives that she had gone to the hospital for a medical

appointment but decided not to go inside because she arrived

late and expected that the doctor would be unable to see her.

Although she indicated that after going to the hospital she

returned home and did not leave again, the detectives pressed

her for more information about her afternoon. As the detectives

asked whether she was "sure" that she had not left the house

again until officers arrived to speak with her, she responded,

No, I, I mean I, like, the question that [you're] all
asking to me, I'm like, I guess I'm still just
exhausted from not having sleep and haven't eaten and
I'm sitting here and I want a ciggy and that's the
last, that the thing that's really bothering me the
most like I really want a cigarette and my stomach is
starting to hurt, well it's been hurting but it's
getting worser, and I'm talking to y'all and it's
like, ahh, I just, I don't know, can I, can we do this
another time?
(Emphasis added.) Shortly thereafter, she left the room at 7:04

accompanied by the detectives for a cigarette break.

¶22 Jackson returned from the break at 7:12 p.m., and she

began conversing with the detectives again at 7:22 p.m. Video

of the interrogation shows her sitting in her chair, doubled

over in apparent pain while clutching her stomach as she waited

for the detectives to return. When the detectives entered the

room, they asked whether Jackson needed assistance for her

obvious pain and discomfort. Jackson's response generated the
following exchange:

10
 No. 2014AP2238-CR

[Jackson]: Yeah, I'm be fine, I'm just ready to
go, I'm sleepy. Can I leave and we do this another
time[?]

[Detective Brad Kuehl]: Give me just one second,
OK, just give me one second and I'll be right back
with you.

[Jackson]: OK[.]

(7:23 p.m.) ([Det. Kuehl] leaves the room)

[Jackson]: I'm still thirsty I want some water
but it's gonna hurt[.]

(7:23:51 p.m.) ([Det. Kuehl] re-enters the room)

[Det. Kuehl]: I just got a couple things I want
to ask you real quick and then we'll try and get you
on your way here, OK?

[Det. Kuehl]: Today when you were, when you left
the Harbor House, is there anything else you can
remember about anything else that you might have
done[?]

[Jackson]: My tummy, I can't do this right now,
my stomach hurts, nothing else was done.
(Emphasis added.) After the detectives discussed acquiring

medication for Jackson from her residence, another exchange

occurred:

[Det. Kuehl]: I know you're, I you're kind of
having some kind of stomach pains. We're gonna try
and get you some . . .

[Jackson]: Can I go home right now, please, I
don't want to talk[.]

[Detective Scott Callaway enters the room]

[Det. Callaway]: Do you know where your purse
[with the medication] is in the house[?]

[Jackson]: Yeah it's on my bed, can I go with
you, can I just go home or do I have to stay[?]

11
 No. 2014AP2238-CR

[Det. Callaway]: Let me just make a phone call
quick and I'll get right back to you[.]

[Jackson]: OK, OK.
(Emphasis added; ellipsis in original.) This exchange occurred

at 7:25 p.m.

¶23 The questioning continued for a few more minutes until

just after 7:30 p.m., when the detectives left the interrogation

room with Jackson. They took her back to her residence, where

she ingested prescription medication for her pain. On the way
back to the police department, they stopped at a Burger King to

pick up food for her. Just after 8:15 p.m., Jackson returned to

the interview room at the police department, and one of the

detectives resumed questioning at approximately 8:30 p.m.

¶24 Around 9:20 p.m., Jackson admitted being at the hotel

in the afternoon and began describing the details of her

interaction with Whitlow. She said that Whitlow "came at [her]"

when she entered the room. Although she admitted that a

confrontation occurred, she expressed an inability to recall the

exact nature of what had happened. When the detective asked

about a knife, she conceded that she "may have" had one with
her. Jackson requested and was allowed to take additional

medication around 9:37 p.m.

¶25 Over the succeeding hours, Jackson slowly gave the

detectives more incriminating information about the events at

the hotel. Shortly after 10 p.m., she described a physical

altercation with Whitlow and her efforts to get him off her.
She also confirmed that she took a shower and changed clothes

12
 No. 2014AP2238-CR

upon returning home. Throughout the 10 o'clock hour, a

detective insisted that she provide him with details about the

events at the hotel. At 11:09 p.m., she responded to a question

about a knife, saying,

I don't . . . will you just do me a favor and tell my
kids that I truly do love them and I'm sure they know
that, but just tell them again, I truly do love them
and I'm done. Cause I don't, I don't want to talk no
more, I don't want to say anything, cause I don't, I
just whatever's gonna happen, gonna happen and I don't
wanna see kids, I don't, I can't, cause I don't wanna
force myself to think about things.
(Emphasis added; ellipsis in original.) Jackson repeatedly

stated that she did not want to think about the events at the

hotel, that doing so would "torture" her. As she phrased it at

11:17 p.m., "[T]o know that I'm the reason he not

here. . . . No thank you, I'd rather not think about it."

¶26 At 11:20 p.m., a detective began reviewing medical

consent forms for R.L.D.J. and S.J. with Jackson and asked her

to sign them. At 11:45 p.m., detectives read her a search

warrant5 and explained that they would extract blood and

fingernail samples from her and that they would also take

pictures of bruising on her body. At 12:17 a.m., a detective

5
Officers obtained separate warrants to search Jackson's
home and to search her person.

13
 No. 2014AP2238-CR

told her she would be charged with first-degree reckless

homicide.6

¶27 Finally, at 12:39 a.m., a detective read a Miranda

warning advising Jackson of her constitutional rights. When

Jackson, thinking the detective had already advised her of her

rights, asked for clarification about the charge she faced, the

detective responded:

Can I, can I read this to you first because I
technically can't get into a lot of stuff without
until I advise you of these and you decide whether or
not you want to talk to me anymore, OK because I can't
violate your rights, do you know what I mean? So can
I read this to you and then you decide whether or not
you want to talk to me because I can't really get into
any in depth conversation with you until you either
tell me yes or no that you're willing to talk to me.
So let me read this to you and then you decide what
you want to answer and we'll go from there and then
anything I can answer for you I'll answer, presuming
you want to talk to me. Sound fair?
(Emphasis added.) The detective read a waiver-of-rights form to

her and then explained each of her rights in detail. To

conclude the explanation, the detective said, "So say you decide
to start talking to me but at some point you decide you don't

want to talk to me, you can just tell me you don't want to talk

to me anymore." Jackson's first response to hearing that

example was to begin asking, "So earlier, when you, when you

wouldn't let me leave . . . ," then the detective cut her off.

6
The detective misstated the expected charge at 12:17 a.m.
When giving Jackson the Miranda warning at 12:39 a.m., the
detective correctly told her that she faced a charge for
"[f]irst degree intentional homicide."

14
 No. 2014AP2238-CR

Ultimately, Jackson continued talking with the detectives at the

department until 2:01 a.m. on February 22.

E. Officers Obtain a Warrant and Search Jackson's Residence

¶28 Around 6 p.m., an officer began preparing a warrant to

search Jackson's residence. The affidavit that accompanied the

warrant included information from officers responding to the

hotel, from R.L.D.J.'s interview with officers, and, in a

concluding paragraph, from Jackson's interrogation. A judge

signed the warrant at 11:32 p.m.

¶29 Officers arrived at Jackson's residence after midnight

to conduct the search and began searching around 12:50 a.m. At

least six officers were present. Four officers began searching

the basement, while others searched upstairs. From the

beginning, officers planned to search the entire house, followed

by the garage. The officers later testified that, because of

the serious nature of the crime, they intended "to be very

thorough" and "to search everywhere and anywhere that [they]

could search looking for relevant items."
¶30 Officers further testified that they searched in a

systematic and "[e]xtremely thorough" manner, carefully sorting

through boxes, bags, and drawers in each room. They explained

that the search was "time consuming" and "took quite a while"

because "[t]here was a lot of stuff in the house," particularly

a bedroom closet filled with large garbage bags packed with

various items. Because the garage contained numerous boxes and

bins, the officers expected that searching the garage would
require a significant amount of time as well.

15
 No. 2014AP2238-CR

¶31 During the search, an officer in the basement received

information from the detectives interrogating Jackson that a

knife and bloody clothing might be in a garbage container in the

garage. The officer took a break from searching the basement

and went to the garage, where he searched a garbage container

inside the main door and another outside the door. Unable to

find anything of evidentiary value in those containers, the

officer went back inside "to finish the searching of the

basement to keep everything systematic and as thorough as

possible."

¶32 At approximately 2:15 a.m., detectives brought Jackson

from the police department to her residence. Before officers

finished their methodical search of the premises, Jackson showed

them a garbage can in the garage containing the knife and the

clothing she wore at the hotel.

II. PROCEDURAL HISTORY

¶33 On February 23, 2012, the State filed a criminal

complaint against Jackson in Outagamie County Circuit Court.
The complaint charged Jackson with one count of first-degree

intentional homicide, domestic abuse, contrary to Wis. Stat.

§§ 940.01(1)(a), 939.50(3)(a), and 968.075(1)(a), and one count

of misdemeanor bail jumping, contrary to Wis. Stat.

§§ 959.49(1)(a) and 939.51(3)(a).

¶34 Jackson filed a motion to suppress all statements that

she made to the officers and all physical evidence derived from

those statements. She argued that her statements were
involuntary and that law enforcement officers violated her

16
 No. 2014AP2238-CR

constitutional rights by taking her statements at the police

department without reading Miranda warnings to her. Because

officers procured the warrant to search her home based in part

on the statements obtained in violation of her constitutional

rights, she argued that any physical evidence at her residence——

particularly the knife and the clothing——was inadmissible fruit

of the poisonous tree.

¶35 At a series of hearings, the Outagamie County Circuit

Court7 developed an extensive record as it considered Jackson's

suppression motion. The court heard testimony about the

investigation from several officers and detectives, who provided

detailed accounts of Jackson's interrogation and the search of

her home. Jackson presented testimony from a toxicologist and a

psychologist, who testified about Jackson's state of mind during

the interrogation and the effects of medication she was taking

at the time. Additionally, the court reviewed video and a

transcript of Jackson's interrogation, as well as an audio

recording of the interview with R.L.D.J.
¶36 In a comprehensive ruling from the bench on June 16,

2014, the circuit court ordered suppression of most of Jackson's

statements, as well as suppression of the physical evidence

obtained from her residence in the early morning hours on

February 22, 2012. Specifically, the court found that Jackson

was in custody for Miranda purposes at 7:25 p.m. The court

7
Mark J. McGinnis, Judge.

17
 No. 2014AP2238-CR

leveled substantial criticism at the officers and detectives

carrying out the investigation:

There's been some variation of the officers'
testimony that at that point in time [during her
interrogation] Ms. Jackson was free to leave. I find
that incredible. I find it difficult to believe, and
I'm somewhat offended by officers who come into court,
raise their hand to testify, and try to suggest that
in a murder case where they put somebody in the back
seat of the squad car and they take them to the police
station and asking that they can leave and they're not
answering her questions on that issue, that she was
truly free to leave. It reduces their credibility in
my eyes in the overall grand scheme of
things. . . . [T]he officers' insistence on a theory
and trying to maintain the standard that said at that
point in time she could get up and walk out is just
incredible. . . .

. . . .

. . . I'll never forget how appalled I was and
how upsetting it was that this stuff happens in
today's world. . . . I've never seen a case, been
part of a case, or heard of a case that's worse than
this in terms of what the police officers did in that
interrogation room. . . . [T]his is just a clear
violation of somebody's rights over a long period of
time involving many different officers with lots of
opportunities to have one of them step up and say,
hey, this is not the way we need to do this.

. . . .

. . . [T]his is textbook interrogation of what
not to do if you want to be doing good police work and
get stuff admitted in during a hearing.

. . . [T]hese violations in my opinion were done
intentionally, they were done flagrantly, they were
done recklessly; and they were done without any
concerns involving Ms. Jackson's rights, her
constitutional rights, her statutory rights, and it
was done in an effort to get something out of her

18
 No. 2014AP2238-CR

before those rights were read, and that's exactly what
happened eventually.
¶37 Based on its finding that Jackson was in custody

beginning at 7:25 p.m., the court suppressed all statements that

Jackson made from that time until she received a Miranda warning

at 12:39 a.m. Relying on Missouri v. Seibert, 542 U.S. 600

(2004), the court further suppressed all statements Jackson made

after receiving the Miranda warnings, "includ[ing statements

made during] the time when she was taken back to her home and

pointed out to the officers where they would find both the

weapon and the clothing associated with this case." In

addition, the court concluded that Jackson's statements were

involuntary.

¶38 Although the court expressed additional "concern[]

about things that were done and said during th[e] interview"

with R.L.D.J., the court declined to suppress any of R.L.D.J.'s

statements. The court noted that "there was nothing that Ms.

Jackson [said] that was then used to get [R.L.D.J.] to talk."

¶39 However, the court did suppress the physical evidence
of the knife and the clothing as illegal fruit of the poisonous

tree. After striking Jackson's suppressed statements from the

search warrant affidavit, the court concluded that the evidence

from the hotel and R.L.D.J.'s statements did not create probable

cause for a court to issue the warrant. The court further

determined that "even if the warrant had probable cause," the

State had not proven that the officers conducting the search
inevitably would have discovered the knife and clothing that

19
 No. 2014AP2238-CR

Jackson ultimately revealed. Emphasizing the deterrent purpose

of the exclusionary rule, the court reasoned that "when officers

are simply looking for evidence of the crime, it's not good

policy to . . . provide them the benefit of the doubt when they

violate somebody's constitutional rights."

¶40 On appeal, the State did not challenge suppression of

Jackson's statements but did seek reversal of the circuit

court's decision suppressing the physical evidence. The State

argued that the untainted portions of the search warrant

affidavit established probable cause to search Jackson's

residence and that the officers conducting the search inevitably

would have discovered the knife and clothing in Jackson's

garage.

¶41 The court of appeals agreed with the State and

reversed the circuit court's decision with respect to the knife

and clothing. State v. Jackson, 2015 WI App 49, 363

Wis. 2d 554, 866 N.W.2d 768. In its penetrating analysis, the

court of appeals first examined the search warrant affidavit and
excised all facts derived from Jackson's suppressed statements.

Id., ¶¶17-18. Based on the remaining evidence from the hotel

and from R.L.D.J., the court of appeals determined that the

affidavit still "provided a substantial basis to conclude there

was a fair probability a search of Jackson's residence would

uncover evidence of wrongdoing." Id., ¶¶19-20 (citing State v.

Romero, 2009 WI 32, ¶3, 317 Wis. 2d 12, 765 N.W.2d 756).

¶42 Given that the officers conducted the search pursuant
to a valid warrant, the court of appeals next concluded that the

20
 No. 2014AP2238-CR

officers inevitably would have discovered the knife and

clothing. Id., ¶¶22, 43. Applying a framework set forth in its

previous cases, the court of appeals conducted a three-pronged

analysis for the inevitable discovery exception to the

exclusionary rule:

To establish that the evidence would have been
inevitably discovered, the State must demonstrate, by
a preponderance of the evidence, that: (1) there is a
reasonable probability the evidence in question would
have been discovered by lawful means but for the
police misconduct; (2) the leads making the discovery
inevitable were possessed by the government at the
time of the misconduct; and (3) prior to the unlawful
search the government also was actively pursuing some
alternative line of investigation.
Id., ¶23 (citing State v. Avery, 2011 WI App 124, ¶29, 337

Wis. 2d 351, 804 N.W.2d 216). The court concluded that the

State met the first prong because officers "intended to conduct

a thorough and methodical search of Jackson's house and garage

that would have entailed examining every container or

compartment that might have contained evidence of the crime."

Id., ¶¶25-32. Jackson did not dispute the State's argument that

it met the second prong——that it had leads making the discovery

inevitable——so the court deemed the point conceded. Id., ¶35.

Finally, the court concluded that by actually "conducting a

thorough and methodical search of [Jackson's] residence pursuant

to a valid warrant," the officers met the third prong's

requirement of active pursuit of another line of inquiry. Id.,

¶39.

21
 No. 2014AP2238-CR

¶43 Additionally, the court of appeals rejected Jackson's

argument that the inevitable discovery doctrine should not apply

in cases involving intentional constitutional violations. Id.,

¶¶43, 48. Jackson relied on this court's decision in State v.

Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899, suppressing

physical evidence obtained as a direct result of an intentional

Miranda violation. Jackson, 363 Wis. 2d 554, ¶43. The court of

appeals distinguished Knapp, observing that no evidence in that

case indicated that officers had alternative means to discover

the physical evidence. Id., ¶45. Suppression, moreover, would

place the State "in a worse position than it would have been in

absent the Miranda violation" because the officers would have

obtained a warrant even without the unconstitutional

interrogation. Id., ¶47.

¶44 Jackson filed a petition for review on June 18, 2015,

which this court granted on October 8, 2015.

III. STANDARD OF REVIEW

¶45 Application of constitutional principles in a
particular case presents a question of constitutional fact.

State v. Dearborn, 2010 WI 84, ¶13, 327 Wis. 2d 252, 786

N.W.2d 97 (citing State v. Pallone, 2000 WI 77, ¶26, 236

Wis. 2d 162, 613 N.W.2d 568). This court accepts the circuit

court's findings of fact unless they are clearly erroneous, but

application of constitutional principles to those facts is a

question of law that this court reviews de novo. Id. (citing

Pallone, 236 Wis. 2d 162, ¶27).
IV. DISCUSSION

22
 No. 2014AP2238-CR

¶46 Exclusion is a judicial remedy that can apply when the

government obtains evidence as a result of a constitutional

violation. See Dearborn, 327 Wis. 2d 252, ¶15 (citing State v.

Eason, 2001 WI 98, ¶¶39-45, 245 Wis. 2d 206, 629 N.W.2d 625).

"The exclusionary rule . . . may apply to deter violations of

the Fourth Amendment, Fifth Amendment, or Sixth Amendment."

State v. Scull, 2015 WI 22, ¶64, 361 Wis. 2d 288, 862 N.W.2d 562

(Ziegler, J., concurring) (footnotes omitted); id., ¶¶64-65

(citing examples under each Amendment from cases in the

Wisconsin and United States Supreme Courts). However, exclusion

is not an absolute, automatic remedy. Dearborn, 327

Wis. 2d 252, ¶35 (first citing Herring v. United States, 555

U.S. 135, 140-42 (2009); then citing Arizona v. Evans, 514 U.S.

1, 10-11 (1995)). Courts exclude evidence only when the

benefits of deterring police misconduct "outweigh the

substantial costs to the truth-seeking and law enforcement

objectives of the criminal justice system." Id., ¶38.

¶47 The Supreme Court approved the inevitable discovery
exception to the exclusionary rule in Nix v. Williams, 467 U.S.

431 (1984). Under the inevitable discovery doctrine, "evidence

obtained during a search which is tainted by some illegal act

may be admissible if the tainted evidence would have been

inevitably discovered by lawful means." State v. Lopez, 207

Wis. 2d 413, 427, 559 N.W.2d 264 (Ct. App. 1996) (citing State

v. Schwegler, 170 Wis. 2d 487, 499, 490 N.W.2d 292 (Ct. App.

1992)); see also 6 Wayne R. LaFave, Search and Seizure
§ 11.4(a), at 339 (5th ed. 2012) ("[T]he question is not whether

23
 No. 2014AP2238-CR

the police did in fact acquire certain evidence by reliance upon

an untainted source but instead whether evidence found because

of a Fourth Amendment violation would inevitably have been

discovered lawfully." (footnote omitted)).

¶48 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.

A. The Inevitable Discovery Doctrine

1. Nix v. Williams

¶49 Nix involved a suspect, Williams, who surrendered to
authorities in Davenport, Iowa, after allegedly abducting and

murdering a young girl in Des Moines. Nix, 467 U.S. at 434-35.

Two Des Moines detectives drove to Davenport to transport

Williams back to Des Moines. Id. at 435. Counsel was not

permitted to accompany Williams during his ride in the back seat

of the detectives' car, but the detectives informed Williams's

attorney that they would not question the suspect during the

drive. Id. Nonetheless, as they drove, one of the detectives
made comments encouraging Williams to reveal the location of the

24
 No. 2014AP2238-CR

victim's unrecovered remains. Id. at 435-36. The detective

insinuated that the little girl deserved a prompt "Christian

burial" before an approaching winter storm made it impossible

for searchers to find her body. Id. Eventually, the suspect

agreed to lead officers to the body, which they found "next to a

culvert in a ditch beside a gravel road"——"essentially within

[an] area to be searched" by a nearby search party independently

looking for the missing child. Id. at 436.

¶50 The Williams prosecution led to two trials, two

appeals to the Supreme Court of Iowa, two collateral attacks in

federal court, and two decisions from the Supreme Court of the

United States. See Brewer v. Williams, 430 U.S. 387 (1977);

Nix, 467 U.S. 431. After the second trial and appeal, the

Eighth Circuit determined that Iowa authorities had erred by

failing to suppress evidence of the little girl's body.8 The

Supreme Court reversed. In an opinion by Chief Justice Burger,

the Court discussed both the purpose of the exclusionary rule

and the independent source doctrine, which allows "admission of
evidence that has been discovered by means wholly independent of

any constitutional violation." Nix, 467 U.S. at 443.

¶51 The purpose of the exclusionary rule, the Court said,

is to prevent the prosecution from being "put in a better

position than it would have been in if no illegality had

transpired." Id. However, it does not follow that the

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

25
 No. 2014AP2238-CR

exclusionary rule should put the prosecution "in a worse

position simply because of some earlier police error or

misconduct." Id. The independent source doctrine allows

evidence "wholly independent of any constitutional violation" to

be admitted.

¶52 The inevitable discovery doctrine is not the same as

the independent source doctrine, the Court explained, but it is

"closely related" because evidence that inevitably will be

discovered is like evidence from an independent source. "There

is a functional similarity between these two doctrines in that

exclusion of evidence that would inevitably have been discovered

would also put the government in a worse position, because the

police would have obtained the evidence if no misconduct had

taken place." Id. at 443-44. Thus, the rationale of the

independent source doctrine "is wholly consistent with and

justifies . . . adoption of the ultimate or inevitable discovery

exception to the exclusionary rule." Id. at 444.

¶53 Emphasizing the deterrence rationale underlying the
exclusionary rule, the Court phrased its test for inevitable

discovery as follows: "If the prosecution can establish by a

preponderance of the evidence that the information ultimately or

inevitably would have been discovered by lawful means . . . then

the deterrence rationale has so little basis that the evidence

should be received." Id.

¶54 To support its use of a "preponderance of the

evidence" standard, the Court relied on its previous
determination that "the controlling burden of proof at

26
 No. 2014AP2238-CR

suppression hearings should impose no greater burden than proof

by a preponderance of the evidence." Id. at 444 n.5 (quoting

United States v. Matlock, 415 U.S. 164, 178 n.14 (1974)). The

Court added that it was "unwilling to impose added burdens on

the already difficult task of proving guilt in criminal cases by

enlarging the barriers to placing evidence of unquestioned truth

before juries." Id. In any case, proving that discovery of

evidence was truly inevitable "involves no speculative elements

but focuses on demonstrated historical facts capable of ready

verification or impeachment." Id. at 445 n.5 (emphasis added).

¶55 Further, the Court rejected any notion that the

government must prove the absence of bad faith by the police in

order to qualify for the inevitable discovery exception. Id. at

445. The Court emphasized the "enormous societal cost" that

flows from "plac[ing] courts in the position of withholding from

juries relevant and undoubted truth that would have been

available to police absent any unlawful activity." Id. Seeing

no merit in the argument that officers would deliberately
violate Sixth Amendment rights if the inevitable discovery

exception did not require proof of good faith, the Court

observed that an "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." Id. at 445-46. On the contrary, "[s]ignificant

disincentives" always discourage officers from engaging in

misconduct; officers might face not only suppression of
illegally obtained evidence but also "departmental discipline

27
 No. 2014AP2238-CR

and civil liability" when they violate suspects' constitutional

rights. Id. at 446.

2. Inevitable Discovery in Wisconsin

a. Wisconsin Cases After Nix

¶56 This court first applied the Nix exception in State v.

Weber, 163 Wis. 2d 116, 471 N.W.2d 187 (1991), where a defendant

argued that police officers conducted an unreasonable search

when they listened to a cassette tape containing the defendant's

confession that they obtained while taking inventory of his

car's contents. Weber, 163 Wis. 2d at 121. Conducting a short

inevitable discovery analysis, this court began by stating that,

under Nix, "if it can be shown by a preponderance of the

evidence that the tape would have inevitably been discovered

absent any constitutional violation, the tape may be admitted

into evidence." Id. at 140-41 (first citing Nix, 467 U.S. 431;

then citing State v. Kennedy, 134 Wis. 2d 308, 318, 396

N.W.2d 765 (Ct. App. 1986)). The court then briefly recounted

various pertinent facts and concluded that, even assuming the
officers conducted an illegal search by playing the tape, the

facts demonstrated that the police "would inevitably have

obtained a warrant to play the tape" and discover its contents.

Id. Quoting from Nix, the court also reasoned that suppressing

the evidence would place the prosecution in a worse position

than it would have been in absent an illegal search. Id. at

142.

¶57 Notably, in Weber this court did not conduct an
extensive evaluation of Nix or of the reasoning underlying the

28
 No. 2014AP2238-CR

Supreme Court's adoption of the inevitable discovery exception.

Since Weber, this court has periodically cited Nix, but we have

not expounded on the inevitable discovery exception and its

proper application in Wisconsin.

¶58 The court of appeals, however, has decided multiple

inevitable discovery cases since Nix. A few months after the

Supreme Court decided Nix, the court of appeals decided State v.

Washington, 120 Wis. 2d 654, 358 N.W.2d 304 (Ct. App. 1984). As

this court would later do in Weber, the Washington court used

the Nix Court's phrasing of the test for the exception, stated

relevant facts from the case, and then concluded that those

facts demonstrated sufficient inevitability of discovery for the

exception to apply. Washington, 120 Wis. 2d at 664-65

(determining that officers inevitably would have discovered

evidence in back seat of defendant's vehicle when officers

legally stopped the vehicle but illegally arrested defendant and

searched his person). Similarly, in Kennedy, the court of

appeals cited Washington when phrasing the doctrine as follows:
"[T]he fruits of an illegal search may be admitted if it can be

shown by a preponderance of the evidence that the tainted fruits

would have been inevitably discovered by lawful means."

Kennedy, 134 Wis. 2d at 317 (concluding that a vodka bottle

discovered in a vehicle would inevitably have been discovered

during an inventory search even though it was actually

discovered pursuant to a defective warrant). The court added:

"The defective search warrant does not compel exclusion of
evidence that would otherwise have been lawfully discovered and

29
 No. 2014AP2238-CR

admissible in evidence. Individual rights are not controverted,

nor is the public served, by excluding such evidence." Id. at

318 (citing Washington, 120 Wis. 2d at 664-65). The opinion did

not cite Nix.

¶59 After this court applied Nix in Weber, the court of

appeals decided State v. Schwegler, 170 Wis. 2d 487, 490

N.W.2d 292 (Ct. App. 1992), which arose after a Waukesha County

humane officer inspected a licensed horse-breeding operation

when the owners were not present. Schwegler, 170 Wis. 2d at

492-93. A provision of the Waukesha County Code permitted

inspection of licensed premises "at any time" by county humane

officers. Id. at 492. The humane officer arrived at the

premises and found the door to the barn partially ajar. Id. at

493. She opened the door to conduct a routine inspection, as

she had before, and discovered evidence of abuse of the horses.

Id. The following day, she returned with law enforcement

officers, who seized the horses in the presence of the owners.

Id.
¶60 The court of appeals concluded that the warrantless

initial search of the barn was illegal and rejected the State's

argument that, despite the illegal search, the inevitable

discovery doctrine defeated suppression of evidence from the

barn. Although the court cited the language from Kennedy quoted

above, it established a new test for inevitable discovery:

To [prove inevitable discovery], the prosecution must
demonstrate: (1) a reasonable probability that the
evidence in question would have been discovered by
lawful means but for the police misconduct; (2) that

30
 No. 2014AP2238-CR

the leads making discovery inevitable were possessed
by the government at the time of the misconduct; and
(3) that prior to the unlawful search the government
also was actively pursuing some alternate line of
investigation.
Id. at 500 (citing United States v. Cherry, 759 F.2d 1196, 1204

(5th Cir. 1985)). The court provided no explanation why it

chose to apply the Fifth Circuit's test for inevitable

discovery. Neither the State nor the Schweglers cited Cherry's

three-pronged test in their briefs to the court of appeals. The

State primarily relied upon Nix but cited Weber and Kennedy as
well, and the Schweglers discussed both Nix and Kennedy. The

court of appeals has applied Schwegler's three-pronged analysis

in subsequent inevitable discovery cases. Avery, 337

Wis. 2d 351, ¶29; Lopez, 207 Wis. 2d at 427-28.

b. The Active Pursuit Requirement

¶61 Because our decision in Weber is this court's only

precedent applying the inevitable discovery exception, we

examine the Fifth Circuit test adopted by the court of appeals

in Schwegler before determining whether the exception applies

under the facts of this case. The three-pronged Cherry analysis

derived from the Fifth Circuit's pre-Nix precedent. Cherry, 759

F.2d at 1204. Reasoning that in Nix "no attempt was

made . . . to define the contours" of the exception, the Cherry

court turned to "previous circuit case law, to the extent it

[was] consistent with the principles enunciated" in Nix. Id.

Based on its own decision in United States v. Brookins, 614 F.2d

1037 (5th Cir. 1980), the Fifth Circuit in Cherry concluded that
using the "three-prong" framework would be "fully consistent

31
 No. 2014AP2238-CR

with Nix." Id. (citing Brookins, 614 F.2d at 1042 n.2). In

United States v. Satterfield, 743 F.2d 827 (11th Cir. 1984), the

Eleventh Circuit——which had adopted the Fifth Circuit's Brookins

rule in United States v. Roper, 681 F.2d 1354, 1358 (11th Cir.

1982)——similarly concluded that "Nix is not inconsistent with

the rule in this circuit that the police must possess and be

actively pursuing the lawful avenue of discovery when the

illegality occurred." Satterfield, 743 F.2d at 847.

¶62 Requiring the prosecution to prove active pursuit of

an alternative line of investigation under the third prong of

the Cherry test may apply the inevitable discovery exception

more strictly than the Supreme Court required in Nix:

While some courts have taken the position that the
inevitable discovery doctrine applies only where "the
government was actively pursuing a substantial,
alternative line of investigation at the time of the
constitutional violation," such an absolute limitation
is unsound, as it "allows for the exclusion of
evidence that inevitably would have been discovered."
6 LaFave § 11.4(a), at 365-68 (footnote omitted) (first quoting

United States v. Conner, 127 F.3d 663, 667 (8th Cir. 1997); then

quoting United States v. Thomas, 524 F.3d 855, 862 (8th Cir.

2008) (Colloton, J., concurring)). A footnote in Professor

LaFave's treatise explains the circumstances under which

discovery might be inevitable despite the absence of active

pursuit prior to the misconduct: "Even if the police were not

actively pursuing an alternative line of investigation at the

time of police error or misconduct, for example, the government
may well be able to establish that the execution of routine

32
 No. 2014AP2238-CR

police procedure or practice inevitably would have resulted in

discovery of disputed evidence." Id. § 11.4(a) n.164, at 368

(quoting Thomas, 524 F.3d at 862 (Colloton, J., concurring)).

¶63 To a degree, the Cherry court anticipated this

critique by acknowledging a case in which, despite the fact that

"the Brookins prerequisites were not met," the Fifth Circuit

"held that the inevitable discovery exception applied since the

alternate means for obtaining the evidence was an intervening

and independent event occurring subsequent to the misconduct."

Cherry, 759 F.2d at 1205 (citing United States v. Miller, 666

F.2d 991, 997 (5th Cir. 1982)). Indeed, the Fifth Circuit in

Cherry concluded its analysis of the inevitable discovery

exception by stating:

In certain circumstances . . . , such as when the
hypothetical independent source comes into being only
after the misconduct, the absence of a strong
deterrent interest may warrant the application of the
inevitable discovery exception without a showing of
active pursuit by the government in order to ensure
that the government is not unjustifiably disadvantaged
by the police misconduct.
Id. at 1206. Although the court of appeals in Schwegler applied

the three-pronged framework set forth in Cherry, it did not

acknowledge any exceptions to the active pursuit requirement.

¶64 Other jurisdictions apply alternative, fact-intensive

versions of the inevitable discovery exception that do not

require proof of active pursuit in all cases. See United States

v. Howard, 729 F.3d 655, 663 (7th Cir. 2013) ("The government
must demonstrate both (1) that 'it had, or would have obtained,

33
 No. 2014AP2238-CR

an independent, legal justification for conducting a search that

would have led to discovery of the evidence' and (2) 'that it

would have conducted a lawful search absent the challenged

conduct.' (quoting United States v. Marrocco, 578 F.3d 627, 637-

38 (7th Cir. 2009)); United States v. Boatwright, 822 F.2d 862,

864-65 (9th Cir. 1987) (concluding that "[t]he doctrine is best

developed on a case by case basis" and that "[t]he existence of

two independent investigations at the time of discovery is

not . . . a necessary predicate to the inevitable discovery

exception," but adding that "[a]bsent some overriding

considerations . . . , the doctrine requires that the fact or

likelihood that makes the discovery inevitable arise from

circumstances other than those disclosed by the illegal search

itself"); United States v. Silvestri, 787 F.2d 736, 744 (1st

Cir. 1986) ("[T]here are three basic concerns which surface in

an inevitable discovery analysis: are the legal means truly

independent; are both the use of the legal means and the

discovery by that means truly inevitable; and does the
application of the inevitable discovery exception either provide

an incentive for police misconduct or significantly weaken

fourth amendment protection?").

¶65 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

34
 No. 2014AP2238-CR

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.

¶66 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

¶67 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)).

35
 No. 2014AP2238-CR

¶68 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).
¶69 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.

36
 No. 2014AP2238-CR

¶70 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.
¶71 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,

37
 No. 2014AP2238-CR

if ever, be in a position to calculate whether the evidence

sought would inevitably be discovered." Nix, 467 U.S. at 445.9

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).

¶72 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

9
Cf. Murray v. United States, 487 U.S. 533, 540 (1988)
("[T]he officer without sufficient probable cause to obtain a
search warrant [would not] have any added incentive to conduct
an unlawful entry, since whatever he finds cannot be used to
establish probable cause before a magistrate.").

38
 No. 2014AP2238-CR

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.

¶73 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
¶74 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.

¶75 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

39
 No. 2014AP2238-CR

officers would inevitably have discovered the physical evidence

in Jackson's garage without any of the information unlawfully

obtained from her.

¶76 Both the circuit court and the court of appeals in

this case evaluated the search warrant affidavit——excised of

information gained from the illegal interrogation of Jackson——to

determine whether it provided probable cause to justify a search

of Jackson's residence. This court has held that "where an

application for a warrant contains both tainted and untainted

evidence, the issued warrant is valid if the untainted evidence

is sufficient to support a finding of probable cause to issue

the warrant." State v. Carroll, 2010 WI 8, ¶44, 322

Wis. 2d 299, 778 N.W.2d 1 (first citing Murray v. United States,

487 U.S. 533, 542 (1988); then citing State v. O'Brien, 70

Wis. 2d 414, 424-25, 234 N.W.2d 362 (1975)); see also United

States v. Karo, 468 U.S. 705, 719 (1984) ("[I]f sufficient

untainted evidence was presented in the warrant affidavit to

establish probable cause, the warrant was nevertheless valid."
(citing Franks v. Delaware, 438 U.S. 154, 172 (1978)); State v.

St. Martin, 2011 WI 44, ¶30, 334 Wis. 2d 290, 800 N.W.2d 858.

¶77 Like the circuit court and court of appeals, we

consider untainted portions of the search warrant affidavit. A

single paragraph at the end of the affidavit summarizes

Jackson's incriminating statements indicating that she traveled

to the hotel that afternoon and got into a confrontation with

Whitlow while armed with a knife. We examine the remaining
portions of the affidavit, which is reproduced in the Appendix.

40
 No. 2014AP2238-CR

¶78 The vast majority of factual information set forth in

the affidavit accompanying the search warrant application was

derived from untainted sources. In the underlying opinion in

this case, the court of appeals accurately and comprehensively

summarized the information set forth in the untainted portions

of the affidavit:

• At 1:25 p.m. on February 21, 2012, officers were
dispatched to the Road Star Inn in Grand Chute,
where they found Whitlow's body in Room 114.
Whitlow had suffered significant cut wounds to his
neck, throat, upper chest, and right arm and hand.

• There was substantial blood and blood spatter on the
wall, bed, and floor of the hotel room. Based on
his training and experience, detective Renkas
believed anyone who was in the room with Whitlow
when he was stabbed would likely have a significant
amount of blood on his or her clothing or shoes.

• An eight-inch Winchester brand knife sheath was
found next to Whitlow's body, but no knife was
recovered.

• [The hotel manager], who was working at the front
desk of the Road Star Inn on February 21, reported
that Whitlow had been staying in Room 114 since
February 17. [The manager] stated he knew Whitlow
had been having problems with his wife.

• [A] . . . Road Star Inn [cleaning] employee[]
reported that she was doing the laundry in Room 111
from approximately 1:00 to 1:30 p.m. on February 21,
when she saw a person wearing a gray hooded
sweatshirt knock on the door of Room 114. The
person's hood was pulled over his or her head. The
person was admitted into the room by someone inside,
and [the cleaning employee] then heard a male voice
screaming for help and heard what she thought was
someone being hit. [The cleaning employee] went to
the manager to get help and briefly saw the person
in the hooded sweatshirt leaving. Hotel staff then
entered the room, found Whitlow, and called police.

41
 No. 2014AP2238-CR

• [A hotel guest], who was staying in Room 115 at the
Road Star Inn, reported he was in his room when he
heard a female voice yelling. He thought it was the
cleaning employee, so he left his room to see what
was happening. He then realized the yelling voice
could not be the cleaning employee because he saw
her in the hallway. When [the guest] was just past
Room 114, he heard a male voice yelling, "[H]elp me,
help me." [The guest] then went to get help.

• Eleven-year-old R.L.D.J. was interviewed by police
on the day of the stabbing and told them Whitlow was
his father and Jackson was his mother. R.L.D.J.
reported that his family had been living together at
their home until a few days earlier, when Whitlow
left to stay at the Road Star Inn. Police were
aware from previous contacts with Whitlow and
Jackson that they resided [on] . . . West Fourth
Street in Appleton.

• R.L.D.J. reported Whitlow had left the family home
because he and Jackson "had been having issues that
included 'adult conversations' that became loud."

• R.L.D.J. told police he stayed home from school with
Jackson on February 21, and in the early afternoon,
Jackson became angry because Whitlow had destroyed
some family pictures and keepsakes. Jackson then
left the house and was gone for about fifteen to
twenty minutes.

• When Jackson returned to the house, R.L.D.J. "heard
a zipper sound and then heard [her] go directly into
the bathroom" and take a shower. When Jackson got
out of the shower, "she was in different clothing
than . . . what she had been wearing earlier in the
day."

• Jackson told R.L.D.J. not to tell anyone she had
left the house that day.
Jackson, 363 Wis. 2d 554, ¶18 (eleventh, fifteenth, and

sixteenth alterations in original).

¶79 Based on the untainted portions of the affidavit, we
conclude that the search warrant application provided probable

42
 No. 2014AP2238-CR

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.

¶80 The affidavit in support of the search warrant for the

home on Fourth Street in Appleton sought

clothing, including but not limited to hooded
sweatshirts, any knives or knife sheaths, any weapons,
any firearms, . . . ; any materials, clothing, towels
or other items containing blood or bloody
substances . . . ; any materials or items that may
contain trace blood evidence; . . . a 2007 gray in
color, Chevrolet Malibu, registered to a Mastella L.
Jackson.
¶81 Jackson was an obvious suspect in Whitlow's murder.

Whitlow was staying in the hotel, not his home, because he was

having problems with his wife. Their son, R.L.D.J., said that

Jackson was very angry with her husband that day and left the

house in the afternoon about the time the homicide occurred.

When she returned she told R.L.D.J. not to tell anyone that she

had left the house.

¶82 A witness at the hotel said he heard a female voice

yelling near Room 114 where Whitlow's body was found, suggesting

that a woman had killed Whitlow.

¶83 Inside the room, police found the body and a room
covered with blood. The affiant disclosed that based on his

43
 No. 2014AP2238-CR

training and experience, he believed any person who would have

been in the room with Whitlow at the time of his injuries would

likely have significant areas of blood or blood splatter on his

or her clothing or shoes. R.L.D.J. said his mother took a

shower immediately after she got home and that she was in

different clothing after the shower.

¶84 Officers found a knife sheath in the hotel room,

supporting evidence of a stabbing. If Jackson was the culpable

party, she might not have had time to dispose of the knife

because she hurried home to shower and get out of her clothes.

¶85 Aside from the statements derived from Jackson's

illegal interrogation, officers independently acquired all

information presented in the affidavit accompanying the warrant

application. Officers received information from the manager,

guest, and cleaning employee at the hotel immediately after

Whitlow's death and separate from the detectives' subsequent

interactions with Jackson. Moreover, the circuit court found

that "there was nothing that Ms. Jackson [said] that was then
used to get [R.L.D.J.] to talk," so his statements were also

separate from her interrogation. Although R.L.D.J. likely

provided the information most probative of Jackson's actions

after 8 p.m., officers possessed most information used in the

affidavit before Jackson was even in custody for Miranda

purposes at 7:25 p.m., and they had certainly begun conducting

independent investigation before that time.

¶86 Collectively, this information speaks to a fair
probability that officers would uncover bloody clothing and the

44
 No. 2014AP2238-CR

knife upon searching Jackson's residence. Taken together,

information derived from various people at the hotel, from

R.L.D.J.'s interview, and from the affiant officer's experience

indicate that the affidavit excised of Jackson's statements

established a strong, independent legal justification for the

search of Jackson's residence.

¶87 Given that the officers began their search of

Jackson's residence pursuant to a valid warrant based on

probable cause, the State has presented considerable evidence to

show that the searching officers inevitably would have

discovered the knife and bloody clothing in the garage if

officers had not brought Jackson back to her residence. The

officers searching Jackson's residence began inside the house

and methodically searched all bags and other containers that

they encountered. Because the warrant allowed them to search

both indoors and in the garage, the officers intended to

carefully search the garage when they finished searching the

house. By searching every bag and container in the garage, the
officers eventually would have searched the garbage can

containing the knife and clothing.

¶88 The search of Jackson's residence compares favorably

to the search in Nix that the Supreme Court determined would

inevitably have uncovered the victim's body. Searchers in Nix

had specific instructions "to check all the roads, the ditches,

[and] any culverts" in their assigned zones. Nix, 467 U.S. at

448. An investigator leading the search effort had obtained a
map of the area where police eventually found the body, and the

45
 No. 2014AP2238-CR

investigator would have developed a search grid on the map

calling for a search of the area ultimately identified by the

defendant. Id. at 449. When the suspect revealed the body's

location, officers found the remains in a culvert near a road in

the expected search area. Id.

¶89 In this case, officers involved in the search had a

systematic and orderly plan first to search Jackson's residence,

then to search the garage. Their testimony proves that they had

begun searching containers in a disciplined manner and that they

would have continued that meticulous approach when searching the

garage. Absent Jackson's arrival on the premises with the

detectives, the officers would have identified the incriminating

evidence within a matter of hours. Thus, the State has shown

that the officers legally searching Jackson's residence had

actively engaged in searching the premises before Jackson's

arrival, and those officers would have continued the search and

discovered the physical evidence without Jackson's involvement.

¶90 Jackson contends that this court's decision in Knapp
should control the outcome in this case. In Knapp, this court

held that physical evidence was inadmissible when "obtained as

the direct result of an intentional Miranda violation." Knapp,

285 Wis. 2d 86, ¶82. But the circumstances surrounding the

State's acquisition of the incriminating evidence distinguish

the two cases. While serving an arrest warrant on the defendant

in Knapp, the officer who obtained the evidence did so by asking

a question without reading the defendant his Miranda rights.
Id., ¶8. The State provided no other evidence demonstrating

46
 No. 2014AP2238-CR

that it would inevitably have obtained the physical evidence by

legal means. Here, in contrast, the State has presented

testimony by multiple officers establishing an independent,

legal basis by which officers would have obtained the knife and

bloody clothing absent any involvement by Jackson.10

10
At oral argument, the Deputy Solicitor General, making
that office's first appearance before this court, emphasized the
importance of the proof of inevitability in this case:

If Jackson had dumped the knife and clothes in some
random garbage can, or if she had thrown it into the
river as she drove home, or she had buried it in her
backyard . . . , in any of those circumstances, the
State wouldn't be able to argue inevitable discovery
in this case. When the police officers initially
asked her, "Where's the knife," they did it in an
unconstitutional interrogation. They had no idea what
the answer was going to be. If it was, for instance,
in the [random] garbage can, or it's in the river,
then the evidence would be excluded, and the police
would have lost very valuable evidence that they might
have discovered some other way. If it comes in——the
only time it comes in——is when they inevitably would
have had it anyway, so they haven't gained anything.
But they have a lot that they can potentially lose, so
there's just no advantage to violating the
Constitution . . . and hoping to get something out of
the inevitable discovery doctrine because there's
little to gain through it.

By dismissing the distinction between this case and State
v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899, as only a
"supposed difference," the dissent undervalues the State's
burden of proving inevitability. Dissent, ¶131. The dissent
suggests that "[t]he State in Knapp might have been able to
argue that some chain of events or alternative line of
investigation demonstrated that law enforcement would have
inevitably discovered the physical evidence." Dissent, ¶126
n.30. But Knapp contains none of the concrete indicia of
inevitability present in this case. Knapp involved a single law
enforcement officer who illegally obtained physical evidence by
asking a question that violated Miranda. In contrast, this case
(continued)

47
 No. 2014AP2238-CR

¶91 Finally, we note that permitting admission of the

knife and clothing does not leave Jackson without any recourse

for the officers' illegal interrogation in this case. The

detectives' decision to detain and question Jackson in the

manner seen here is unacceptable by any constitutional standard.

The circuit court properly excluded Jackson's statements to

deter law enforcement officers from imitating the detectives'

unjustifiable methods. At trial, Jackson will receive the

benefit of that exclusion because the State will be barred from

presenting the testimonial evidence obtained from her by illegal

means. Although proof of inevitable discovery saves the knife

and clothing from exclusion in this case, suppression of

Jackson's incriminating statements provides an entirely

appropriate remedy for the Miranda violations.

V. CONCLUSION

¶92 At its core, the exclusionary rule discourages law

enforcement officers from violating suspects' constitutional

rights by removing a key incentive——incriminating evidence——that
might otherwise encourage officers to engage in illegal conduct.

The rule seeks to deter misconduct, rather than to punish it

when it occurs. As a result, if the court were to insist upon

suppression even when the State presents evidence proving that

involves a search warrant affidavit with untainted information
demonstrating probable cause for a search, as well as officers
independently conducting a methodical search of the premises.
The exception turns upon evidence of inevitability, not merely a
theory.

48
 No. 2014AP2238-CR

it inevitably would have discovered evidence, we would

improperly apply exclusion in a purely punitive manner. Here,

the State has demonstrated that, without any information

illegally obtained from Jackson, officers had probable cause to

search Jackson's residence, and they independently began a

systematic and methodical search of the premises that would have

revealed the physical evidence actually obtained by way of

Jackson's suppressed statements. Because the State has met its

burden of proof with regard to its independent search of the

premises, we conclude officers inevitably would have obtained

the knife and clothing in Jackson's garage. Therefore, we

affirm the decision of the court of appeals and remand to the

circuit court for further proceedings consistent with this

opinion.

By the Court.—The decision of the court of appeals is

affirmed.

49
 No. 2014AP2238-CR

APPENDIX

This Appendix reproduces the language of the Affidavit in

Support of Search Warrant submitted for the search of Jackson's

residence. All personal identifying information and all

information illegally obtained from Jackson has been redacted;

all alterations are marked accordingly.

AFFIDAVIT IN SUPPORT OF SEARCH WARRANT
WHEREAS, Detective Renkas of the Grand Chute Police

Department has this day complained to the said court upon oath

that on the 21st day of February, 2012, in said County in and

upon certain premises in the Town of Grand Chute in Outagamie

County, Wisconsin there is located a residence at [] W Fourth

Street in the City of Appleton, Outagamie County, Wisconsin and

more particularly described as follows:

A split level duplex residence located on the south
side of 4th Street, with the duplex unit of [] located
on the west end of the duplex facing 4th Street, with
black address numbers [] above the main front door,
gray vinyl siding with white trim, dark grayish/black
shingles with an attached two car garage
there are now located and concealed certain things, to-wit:

clothing, including but not limited to hooded
sweatshirts, any knives or knife sheaths, any weapons,
any firearms, any paper documents tending to establish
the identity of the parties residing at the location;
any materials, clothing, towels or other items
containing blood or bloody substances, cell phones;
any materials or items that may contain trace blood
evidence; any photographs at the home, any
gravemarkers or funeral materials; shoes at the home;
cell phone, car and/or house keys, cell phone records;

50
 No. 2014AP2238-CR

any caller ID items; a 2007 gray in color, Chevrolet
Malibu, registered to a Mastella L. Jackson with WI
license place [], VIN []
which things were used in the commission of, or may constitute

the evidence of a crime, to-wit: Violation(s) of Homicide and

Reckless Injury contrary to §940 of the Wisconsin Statutes.

NOW, THEREFORE, in the name of the State of Wisconsin, you

are commanded forthwith to search said premises and persons on

said premises for said things, and if the same or any portion

thereof are found, to safely keep the property seized so long as
necessary for the purpose of being produced as evidence on any

trial or until further order of the court.

The facts tending to establish the ground for issuing a

search warrant are as follows:

Affiant states that he has been a police officer for the

past 5 years with the Grand Chute Police Department and in that

capacity has knowledge of the following:

Your affiant reports that on February 21, 2012, officers

were dispatched to the Roadstar Inn, located at 3623 W. College

Avenue, in the Town of Grand Chute, Outagamie County, Wisconsin,
at 1:25 pm for a medical call. Off. Jones reports dispatch

advised the individual was face down, covered in blood. Off.

Jones reports when he arrived at room 114 of the Roadstar Inn

the ambulance and fire departments were already there. Off.

Jones reports he was told by a paramedic the individual was

deceased. Off. Jones reports when he entered the room there was

a bloody phone receiver that was detached from the phone near
the door and walkway. Off. Jones reports he walked into the

51
 No. 2014AP2238-CR

room and saw blood smeared against the far wall beyond the beds

and there was a black male laying prone against the wall.

Affiant reports that during the investigation, officers did

locate a WI ID card in the hotel room identifying the male party

as Derrick J. Whitlow, dob: [].

Affiant reports that he spoke with Jon Hagen, a deputy

coroner who was called to the scene to make an initial

assessment on Derrick Whitlow. Affiant reports that Hagen did

share with him some photos taken at the scene that included

photos of Derrick J. Whitlow and it was apparent that he had a

very large area of injury to his right hand that appeared to be

a very deep cut to the hand. Affiant also reports Jon Hagen

reported that there is a significant area of injury to Whitlow's

neck which includes a significant cut to his neck/throat area.

Affiant also reports that in the upper left arm area Whitlow has

a large laceration and large area of injury to his upper left

chest area. Affiant reports that he spoke with Off Schellinger

at the Roadstar who had been processing the scene and indicated
that a knife sheath was located next to Whitlow which was

approximately 8 inches in length with the writing 'Winchester'

located on it. Affiant reports that within the hotel room were

very significant areas of blood and blood splatter; that there

was significant blood and blood splatter on the wall, bed and

floor of the hotel room. Affiant reports that based upon his

training and experience any other party who would have been in

the room with Whitlow at the time of his injuries would likely

52
 No. 2014AP2238-CR

also have significant areas of blood and/or blood splatter on

their clothing or shoes.

Affiant reports that Off. Jones reports that he spoke with

[the hotel manager], an employee who was working the front desk

of the Roadstar Inn on 2/21/12. [The manager] informed Off.

Jones that the black male who was staying in Room 114 was

Derrick Whitlow and that he had been saying at the Roadstar Inn

since the 17th of February, 2012 with his son, who is

approximately 10 years old. He said he knew that Derrick

Whitlow has been having problems with his wife.

Affiant reports that he spoke with [a cleaning employee]

who works at the Roadstar. [The cleaning employee] reports that

she was working on 2/21/12; that she was doing the laundry in Rm

111 from approximately 1:00 to 1:30 pm when she heard and saw

someone knock on Room 114, a party who was wearing a gray hooded

sweatshirt with the hood pulled over their head. [The cleaning

employee] reports that the person was ultimately let into Room

114 by someone in the room. [The cleaning employee] reports
that she then heard a male party screaming for help and she

heard what she thought was someone getting hit. [The cleaning

employee] reports that she then went to the manager to get help

and she did briefly see the person in the hooded sweatshirt

leaving. [She] reports that hotel staff then entered Room 114,

located an injured male party and called the police.

Affiant reports that he and Off. Jones reports that [a

hotel guest] stated he is staying in Room 115 at the Roadstar.
[The guest] stated that during the afternoon, he was in his room

53
 No. 2014AP2238-CR

when he heard a female voice yelling. [The guest] stated that

he thought the female was the cleaning employee so he went to

see what was happening. [The guest] stated that he went down

the hallway and saw the cleaning employee so he then realized it

was someone else. [The guest] reports that he was just past

Room 114 when he heard a loud yell and then heard a male party

yelling "help me, help me." [The guest] stated that he then

went by the manager's office and then went outside and saw the

fire department arrive.

Affiant reports that Det. Meyer of the Appleton Police

Department did assist in the investigation and on 2/21/12 did

Det. Meyer did speak with R.L.D.J. (DOB []), who stated his

mother is Mastella Jackson and his father is Derrick Whitlow.

He said his family had all been living together at their home,

but his father left to stay at the Roadstar Inn a few days ago.

Det. Meyer reports that based upon his previous contacts with

Mastella Jackson and Derrick Whitlow in January of 2012, he knew

they were residing at [] W Fourth Street in the City of
Appleton, Outagamie County, Wisconsin. RLDJ said when his dad

went to stay at the hotel a few days earlier, his brother went

with him to the hotel to help him because he had a broken leg.

RLDJ reports that his dad had left because he and his mom had

been having issues that included 'adult conversations' that

became loud. RLDJ reports that on 2/21/12 he did stay home from

school and was with his mom. RLDJ reports that during the late

morning hours, he did ride with his mom to an appointment she
had for an MRI; he stated when they arrived at the medical

54
 No. 2014AP2238-CR

location, his mom didn't leave the car and instead she stated

she had sore feet and wasn't going in. RLDJ reports they then

went back to their house. RLDJ reports that during the early

afternoon, his mother became angry because his father had

destroyed some pictures of her as a little child and other

family pictures as well as his grandmother's grave marker. RLDJ

stated that his mother left the residence and was gone for

approximately 15-20 minutes. When his mother returned, he said

he heard a zipper sound and then heard his mother go directly

into the bathroom and she took a shower. He said when she got

out of the shower, she was in different clothing than she what

she had been wearing earlier in the day. After coming out of

the shower, RLDJ said that his mom, Mastella told him not to

tell anyone that she had left the house that day. Det. Meyer

reports that when RLDJ was asked what his mom might have in the

house for protection, he stated that mom did have a gun, a

shorter gun you would hold in your hand and that he saw the gun

this morning when mom had it in the house.
Affiant reports that on 2/21/12, Off. Schira of the

Appleton Police Department did assist in making contact with

Mastella Jackson at her residence at [] W Fourth Street in the

City of Appleton, Outagamie County, Wisconsin. Affiant reports

that both RLDJ and Jackson were located at the home. Off.

Schira reports that located within the two car attached garage

of the home is a 2007 Chevrolet Malibu, 4 door, gray in color,

WI license place [], VIN[] registered to Mastella L. Jackson.

55
 No. 2014AP2238-CR

Off. Schira also reports at the residence on the curb area is

located a garbage bin.

Affiant reports that on 2/21/12 officers did speak with

Mastella Jackson about where she had been earlier on that day.

Jackson did inform officers that she and Dwight Jackson [sic]

did have two children together and they had previously resided

together. Jackson did state that a few days earlier Whitlow had

left the residence and was staying at the Roadstar

Inn. . . . Affiant reports that on 2/21/12 he did observe a

vehicle in the garage at Mastella's residence.

Affiant further reports that the statements of [the hotel

manager, the hotel guest, the hotel cleaning employee], Jon

Hagen and RLDJ are presumed truthful and reliable as citizen

witnesses. . . . Affiant, Off. Jones, Off. Schellinger, Det.

Meyer and Det. Callaway are presumed truthful and reliable as

they are sworn law enforcement officers.

Wherefore, your affiant prays that a search warrant be

issued to enter said premises to search for the items identified
herein along with the items listed on the face sheet of the

search warrant.

Affiant - Det. Mike Renkas

56
 No. 2014AP2238-CR.ssa

¶93 SHIRLEY S. ABRAHAMSON, J. (dissenting). Unlike the

majority opinion, I would suppress the physical evidence

obtained at Mastella Jackson's home following law enforcement

officers' deliberate violations of Jackson's Miranda rights.

¶94 The majority decides this Miranda case in the same

month as the fiftieth anniversary of Miranda v. Arizona, 384

U.S. 436 (June 13, 1966).1 Miranda is perhaps the best-known

criminal law decision of the United States Supreme Court.

¶95 The Miranda warnings are celebrated as a shield

against compelled self-incrimination and violations of criminal

suspects' constitutional rights. Miranda warnings stem from the

very constitution our law enforcement officers are sworn to

protect and defend.2

¶96 Moreover, Miranda warnings are "embedded in routine

police practice" and "have become part of our national culture."3

1
The American Bar Association used the fiftieth anniversary
of the Miranda decision as this year's Law Day (May 1) theme.

Minnesota Judge Kevin S. Burke wrote in celebration of Law
Day 2016 and the Miranda decision as follows: "Our criminal
justice system has faults, but the Miranda decision 50 years
later is the embodiment of what President Eisenhower hoped for
in creating Law Day: a democracy that chooses not force, but
the rule of law." Judge Kevin S. Burke, Choosing the rule of
law: a tribute to the Miranda decision, MinnPost (Apr. 29,
2016), https://www.minnpost.com/community-
voices/2016/04/choosing-rule-law-tribute-miranda-decision.
2
See Dickerson v. United States, 530 U.S. 428, 438 (2000)
("Miranda is a constitutional decision . . . .").
3
See Dickerson, 530 U.S. at 443.

1
 No. 2014AP2238-CR.ssa

¶97 Even fictional TV law enforcement officers like

Dragnet's Detective Joe Friday and Law and Order's officers give

Miranda warnings. If you missed the warnings in the original

series you will hear them again and again in the reruns.4

¶98 The circuit court developed an extensive record about

Jackson's interrogation, including testimony and audio

recordings.5

¶99 Jackson was brought to the Grand Chute Police

Department shortly after 4:30 PM. She was alone in a room for

about two hours. Grand Chute Police officers began questioning

Jackson at about 6:30 PM, and the circuit court found Jackson

was in custody (i.e., not free to leave) at 7:25 PM.

Nevertheless, the interrogation continued for more than five

hours before officers advised Jackson of her Miranda rights.6

¶100 During the interrogation, Jackson was in pain and

needed her prescription medication. Several times during the

officers' questioning, she asked "to leave," "to go home," "not

to say anything," and "to talk at a different time."7 Despite
the fact that Jackson was told at the outset, "[Y]ou're not

4
See George C. Thomas III & Richard A. Leo, The Effects of
Miranda v. Arizona: "Embedded" in Our National Culture?, 29
Crime & Just. 203, 246 (2002) ("[I]t is because of these shows
and the mass media more generally——not the police, the legal
system, or Supreme Court doctrine——that Miranda has become so
much a part of our national culture.").
5
Majority op., ¶35.
6
Majority op., ¶2.
7
Majority op., ¶¶22, 25; see also ¶27.

2
 No. 2014AP2238-CR.ssa

under arrest or, you know, you're free to go, you know,"8

Jackson's requests to leave and not to speak went unheeded, all

contrary to federal constitutional law.

¶101 The circuit court issued a comprehensive ruling

suppressing the statements made during the interrogation.9 The

circuit court concluded that the failure to read Jackson her

Miranda warnings was an intentional violation of Jackson's

constitutional rights. The circuit court strongly condemned the

officers and detectives for giving incredible testimony10 and

deliberately violating Jackson's rights.

¶102 The circuit court judge stated that when he considered

the interrogation he "became sick to my stomach

literally . . . . [T]his is textbook interrogation of what not

to do if you want to be doing good police work and get stuff

admitted in during a hearing."

¶103 The circuit court went on to denounce the officers'

conduct as follows:

I've never seen a case, been part of a case, or heard
of a case that's worse than this in terms of what the
police officers did in that interrogation room. . . .
[T]his is just a clear violation of somebody's rights
over a long period of time involving many different
officers with lots of opportunities to have one of
them step up and say, hey, this is not the way we need
to do this.

8
Majority op., ¶18.
9
Majority op., ¶36.
10
Majority op., ¶36.

3
 No. 2014AP2238-CR.ssa

¶104 Compounding the duplicity of the Miranda violation,

when the officers finally read Jackson her rights, the detective

assured Jackson that her rights would not be violated:

Can I, can I read [Miranda warnings] to you first
because I technically can't get into a lot of stuff
without until I advise you of these and you decide
whether or not you want to talk to me anymore, OK
because I can't violate your rights, do you know what
I mean? So can I read this to you and then you decide
whether or not you want to talk to me because I can't
really get into any in depth conversation with you
until you either tell me yes or no that you're willing
to talk to me. So let me read this to you and then
you decide what you want to answer and we'll go from
there and then anything I can answer for you I'll
answer, presuming you want to talk to me. Sound
11
fair?
¶105 After hearing the Miranda warnings Jackson asked: "So

earlier, when you, when you wouldn't let me leave . . . ." The

detective cut her off.

¶106 Contrary to what the detective told Jackson, Miranda

warnings are not a technicality——they are a constitutionally

required "shield that protects against compelled self-

incrimination."12 We have recognized that Miranda's shield

against compelled self-incrimination is "made of substance, not
tinsel," and "[a]ny shield that can be so easily . . . cast

aside by the very people we entrust to enforce the law fails to

serve its own purpose, and is in effect no shield at all."13

11
Majority op., ¶27 (emphasis added).
12
State v. Knapp, 2005 WI 127, ¶72, 285 Wis. 2d 86, 700
N.W.2d 899.
13
Knapp, 285 Wis. 2d 86, ¶72.

4
 No. 2014AP2238-CR.ssa

¶107 The court of appeals branded "the officers' actions

during the interrogation of Jackson [as] reprehensible."14 The

majority opinion agrees that the circuit court's and court of

appeals' condemnation of the police conduct was "warranted and

appropriate."15

¶108 Our society asks law enforcement officers to perform

an extraordinarily difficult and dangerous job. We rely on them

to maintain public safety and defend the rule of law. And most

law enforcement officers perform admirably, placing themselves

in harm's way to protect the rest of us.

¶109 To enable them to do their important work, society

entrusts law enforcement officers with enormous power. The

power of law enforcement officers, however, like the power of

all government officials, is not unchecked.

¶110 Our court has forcefully declared: "Just as we will

not tolerate criminal suspects to lie to the police under the

guise of avoiding compelled self-incrimination, we will not

tolerate the police deliberately ignoring Miranda's rule as a
means of obtaining inculpatory physical evidence."16 Disregard

for the rule of law, especially by those sworn to protect and

defend it, breeds distrust, suspicion, and contempt in the

14
State v. Jackson, 2015 WI App 49, ¶48, 363 Wis. 2d 554,
866 N.W.2d 768.
15
See majority op., ¶69 ("[T]he 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.").
16
Knapp, 285 Wis. 2d 86, ¶72.

5
 No. 2014AP2238-CR.ssa

community, and undermines the important and legitimate

activities of law enforcement.17

¶111 In the instant case, by intentionally flouting

Jackson's rights, law enforcement officers obtained

incriminating statements from Jackson and took a shortcut to

accelerate the discovery of incriminating physical evidence in

Jackson's home——bloody shoes, clothes, and a knife Jackson

allegedly used to kill her husband.18 Although police searched

Jackson's home for incriminating evidence pursuant to a warrant,

the warrant was based in part on statements made during

Jackson's unlawful interrogation, and the shoes, clothes, and

knife were found only after officers brought Jackson (in

custody) to her home at about 2:15 AM to point out the objects.

¶112 The incriminating statements Jackson made before and

after she was given Miranda warnings remain suppressed. The

suppression of Jackson's statements (including those statements

made when she was in her home) is not challenged by the State.

17
"When a public official behaves with such casual
disregard for his constitutional obligations and the rights of
the accused, it erodes the public's trust in our justice system,
and chips away at the foundational premises of the rule of law.
When such transgressions are acknowledged yet forgiven by the
courts, we endorse and invite their repetition." United States
v. Olsen, 737 F.3d 625, 632 (9th Cir. 2013) (Kozinski, C.J.,
joined by four judges, dissenting from denial of rehearing en
banc); see also Knapp, 285 Wis. 2d 86, ¶¶75, 79.
18
See ¶134, infra (quoting Professor LaFave's criticism of
a court's using the inevitable discovery doctrine under these
circumstances).

6
 No. 2014AP2238-CR.ssa

Rather, the State challenges only the suppression of the

physical evidence seized at Jackson's home.

¶113 The majority opinion agrees with the court of appeals'

decision reversing the circuit court's suppression of the

incriminating physical evidence.

¶114 A court is clearly saddened and disappointed to

observe and write about intentional police misconduct violating

a constitutional right. A court's expression of commitment to

the Constitution rings hollow, however, if the court allows

Miranda's shield against compelled self-incrimination to be cast

aside without providing a remedy. True, Jackson's incriminating

statements remain suppressed, but the majority does not offer

either Jackson or the people of the State a remedy for the

intentional, unwarranted, and unconstitutional shortcut police

took in discovering the incriminating physical evidence. The

remedy I propose, suppression of the physical evidence, has

shortcomings, but suppression further deters intentional

violations of Miranda, fulfilling "one purpose of the
exclusionary rule[, which] is to deter such shortcuts . . . ."

See 6 Wayne R. LaFave, Search & Seizure § 11.4(a), at 344-45

(5th ed. 2012). Not granting a remedy for this shortcut is not

an acceptable option. See ¶¶136, 138-143, infra.

¶115 I conclude that to ensure that "those we entrust to

enforce the law [do not] intentionally subvert a suspect's

constitutional rights,"19 suppression of the physical evidence

19
Knapp, 285 Wis. 2d 86, ¶83.

7
 No. 2014AP2238-CR.ssa

obtained at Jackson's home is necessary. In concluding that

suppression of the physical evidence is necessary, I adhere to

the reasoning in State v. Knapp, 2005 WI 127, 285 Wis. 2d 86,

700 N.W.2d 899, which held that physical evidence obtained as a

direct result of an intentional violation of Miranda is

inadmissible under Article I, Section 8 of the Wisconsin

Constitution.

¶116 In refusing to suppress the physical evidence obtained

at Jackson's home, the majority opinion applies the inevitable

discovery doctrine, an exception to the exclusionary rule.20 I

disagree with applying the inevitable discovery doctrine in the

instant case. I would hold, based on Knapp, that Article I,

Section 8 of the Wisconsin Constitution does not allow the State

to rely on the inevitable discovery doctrine in cases of

intentional police violations of Miranda.

¶117 I also have concerns about the majority opinion's

approach to the substantive aspects of the inevitable discovery

doctrine. I discuss these concerns in Part II of this dissent.
¶118 For the reasons set forth, I dissent and write

separately.

I

¶119 The physical evidence should be suppressed under

Article I, Section 8 of the Wisconsin Constitution, which

provides (in relevant part):

20
See majority op., ¶92.

8
 No. 2014AP2238-CR.ssa

(1) No person . . . may be compelled in any criminal
case to be a witness against himself or herself.
¶120 The text of the relevant portion of the Fifth

Amendment to the United States Constitution is similar:

No person . . . shall be compelled in any criminal
case to be a witness against himself . . . .
¶121 Although the text of Article I, Section 8 and the

Fifth Amendment are similar, we need not interpret our Wisconsin

Constitution in lock-step with the interpretation of the United

States Constitution.21

¶122 In interpreting the Wisconsin Constitution, this court

should take the position espoused by Wisconsin Supreme Court

Justice Abram Smith in 1855:

In view of the obligations imposed upon me, or rather
voluntarily assumed by me, . . . in my present
position, I have felt bound to sustain that
fundamental law——the constitution of the state,
according to its true intent and meaning. That is the
great charter of our rights, to which the humblest may
at all times appeal, and to which the highest must at
all times submit.

Let us then look to that constitution, adopted by the
people of Wisconsin, and endeavor to ascertain its
true intent and meaning . . . .

21
See Knapp, 285 Wis. 2d 86, ¶¶59-62; see also Knapp, 285
Wis. 2d 86, ¶¶84-94 (Crooks, J., concurring); William J.
Brennan, Jr., State Constitutions and the Protection of
Individual Rights, 90 Harv. L. Rev. 489, 500 (1977) ("[W]hile
this results in a divergence of meaning between words which are
the same in both federal and state constitutions, the system of
federalism envisaged by the United States Constitution tolerates
such divergence where the result is greater protection of
individual rights under state law than under federal
law . . . .") (quoted source omitted).

9
 No. 2014AP2238-CR.ssa

The people then made this constitution, and adopted it
as their primary law. The people of other states made
for themselves respectively, constitutions which are
construed by their own appropriate functionaries. Let
them construe theirs——let us construe, and stand by
ours.
Att'y Gen. ex rel. Bashford v. Barstow, 4 Wis. 567 (*567), 785

(*757-58) (1855) (emphasis in original).

¶123 I turn to Knapp, which interpreted Article I, Section

8 of the Wisconsin Constitution. The Knapp court broke from the

United States Supreme Court's interpretation of the Fifth

Amendment, holding that when "physical evidence is obtained as

the direct result of an intentional Miranda violation, we

conclude that [Article I, Section 8 of] our constitution

requires that the evidence must be suppressed."22

¶124 Let's begin with the facts in Knapp. The defendant,

Knapp, was a parolee who was seen with a woman who was later

murdered.23 Based on a parole violation, an officer went to the

defendant's house to apprehend him.24 When the officer arrived,

he told Knapp that he had to go to the police station, but never

read him the Miranda warnings.25 Before leaving Knapp's house,

the officer questioned him about what clothes he was wearing

when he was seen with the victim.26 After Knapp pointed out the

22
Knapp, 285 Wis. 2d 86, ¶2 (emphasis added).
23
Knapp, 285 Wis. 2d 86, ¶5.
24
Knapp, 285 Wis. 2d 86, ¶¶6-7.
25
Knapp, 285 Wis. 2d 86, ¶7.
26
Knapp, 285 Wis. 2d 86, ¶8.

10
 No. 2014AP2238-CR.ssa

clothes, the officer seized them and took Knapp to the police

station.27 Police later discovered the victim's blood on the

sleeve of Knapp's sweatshirt.28

¶125 Knapp argued that the sweatshirt should be suppressed

based on the officer's intentional violation of Miranda. The

court agreed, relying on Article I, Section 8 of the Wisconsin

Constitution and the deliberate violations of Miranda at issue.

Although the court recognized that the exclusionary rule is not

absolute, the court concluded that the need to deter intentional

violations of individuals' constitutional rights and preserve

the integrity of the judicial system required the application of

the exclusionary rule when physical evidence is obtained as a

direct result of an intentional Miranda violation.29

¶126 Knapp differs from the instant case in that no search

warrant was issued in Knapp.30 The officer in Knapp was not

pursuing other means of searching the defendant's house at the

time the intentional violation of Miranda occurred.31 Thus, the

Knapp court described the location of the physical evidence as a
direct result of the Miranda violation. In contrasting the

27
Knapp, 285 Wis. 2d 86, ¶8.
28
Knapp, 285 Wis. 2d 86, ¶12.
29
See Knapp, 285 Wis. 2d 86, ¶¶74-75, 79, 83.
30
Jackson, 363 Wis. 2d 554, ¶45. Knapp does not involve
the inevitable discovery doctrine. The State in Knapp might
have been able to argue that some chain of events or alternative
line of investigation demonstrated that law enforcement would
have inevitably discovered the physical evidence.
31
See Knapp, 285 Wis. 2d 86, ¶¶7-9.

11
 No. 2014AP2238-CR.ssa

instant case with Knapp, the court of appeals stated that "the

knife, clothes, and shoes [in the instant case] would have been

inevitably discovered by lawful means, notwithstanding the

police misconduct."32 The "lawful means" to which the court of

appeals refers is the search of Jackson's home pursuant to the

warrant.

¶127 Like the court of appeals, the majority opinion

concludes that the physical evidence inevitably would have been

discovered pursuant to the search warrant.33 Perhaps. But the

search warrant was based in part on Jackson's suppressed

statements obtained in violation of Miranda.

¶128 To validate the search warrant, the court of appeals

and majority opinion have to excise Jackson's suppressed

statements.34 Furthermore, although law enforcement had a search

warrant, the physical evidence was found only after the officers

took Jackson to her home and asked her to show them where she

discarded the clothes, shoes, and knife. On these facts, the

circuit court suppressed the physical evidence.
¶129 Whether locating the physical evidence in the instant

case fits the verbal formula in Knapp of a "direct" result of a

Miranda violation, locating the physical evidence is very much

related to and can be described as a direct outgrowth of

32
Jackson, 363 Wis. 2d 554, ¶45.
33
See majority op., ¶75.
34
See majority op., ¶¶75-76; Jackson, 363 Wis. 2d 554,
¶¶17-18.

12
 No. 2014AP2238-CR.ssa

Jackson's illegal interrogation before and after the Miranda

warnings. By the time Jackson was taken to her home it was

about 2:15 AM, and Jackson had been in custody and subject to

questioning for more than seven hours. The circuit court

suppressed Jackson's statements, including statements she made

when the officers took her to her home and had her locate the

physical evidence.

¶130 In suppressing Jackson's statements, the circuit court

relied on Missouri v. Seibert, 542 U.S. 600 (2004),35 and

concluded that Jackson's statements were involuntary under the

circumstances.36 The direct causal connection between Jackson's

illegally obtained (and properly suppressed) statements and the

discovery of the physical evidence is clear and undeniable.

¶131 I do not view any supposed difference between Knapp

and the instant case as sufficient to depart from the reasoning

and holding of Knapp. Relying on the rhetorical distinction

between evidence obtained as a "direct" (versus "indirect?")

35
In Missouri v. Seibert, 542 U.S. 600 (2004), the United
States Supreme Court addressed whether suppression of evidence
is necessary for statements made after Miranda warnings are
given if, before the officers gave the suspect Miranda warnings,
an unconstitutional interrogation had taken place. The court
held that such statements must be suppressed despite "the
midstream recitation of warnings after interrogation and
unwarned confession" in order to effectively comply with
Miranda. Seibert, 542 U.S. at 604.
36
The State did not challenge these aspects of the circuit
court's decision. Indeed the State accepted for purposes of its
brief that "Jackson's statements to the police were obtained in
violation of Miranda and were involuntary, [and] that the police
improperly relied on information obtained from Jackson to locate
[the physical evidence]." Brief of Plaintiff-Appellant at 11.

13
 No. 2014AP2238-CR.ssa

result of a violation of Miranda distorts the facts of the

instant case and the policy underlying Miranda and Knapp. The

majority opinion's decision allowing the use of the inevitable

discovery doctrine to avoid suppression of evidence that was

concededly obtained as a direct outgrowth of a coercive,

deliberate, illegal interrogation allows the inevitable

discovery doctrine to swallow Miranda, the exclusionary rule,

and Knapp.

¶132 Moreover, I disagree with the majority opinion's

holding that good faith by law enforcement is not a prerequisite

for relying on the inevitable discovery doctrine. I view good

faith in the instant case as an essential element for the

application of the inevitable discovery doctrine.

¶133 In disregarding the law enforcement officers' bad

faith, the majority opinion relies on Nix v. Williams, 467

U.S. 431 (1984), the famous (or "infamous"37) Christian Burial

Case. In Nix, the United States Supreme Court concluded that

requiring "that the prosecution . . . prove the absence of bad
faith would . . . withhold[] from juries relevant and undoubted

truth that would have been available to police absent any

unlawful police activity" and would "put the police in a worse

position that they would have been in if no unlawful conduct had

transpired."38

37
See Knapp, 285 Wis. 2d 86, ¶30.
38
Nix v. Williams, 467 U.S. 431, 445 (1984); see also
majority op., ¶¶71-72.

14
 No. 2014AP2238-CR.ssa

¶134 Nix has spawned significant criticism. For example,

Professor Wayne LaFave's treatise on criminal law (referenced by

the majority opinion) states:

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 Wayne R. LaFave, Search & Seizure, § 11.4(a) at 344-46 (5th

ed. 2012) (quoting Brian S. Conneely & Edmond P. Murphy,

Comment, Inevitable Discovery: The Hypothetical Independent

Source Exception to the Exclusionary Rule, 5 Hofstra L. Rev.

15
 No. 2014AP2238-CR.ssa

137, 160 (1976)).39 Professor LaFave does not consider

compelling the argument that "'if we hadn't done it wrong, we

would have done it right . . . .'" 6 LaFave, Search & Seizure,

§ 11.4(a), at 347 (quoted source omitted).

¶135 The majority asserts that the uncertainty law

enforcement officers face over the applicability of the

inevitable discovery doctrine when they intentionally violate an

individual's rights justifies application of the inevitable

39
For criticism of and proposed limitations on the
inevitable discovery doctrine, see also, e.g., Eugene L.
Shapiro, Active Pursuit, Inevitable Discovery, and the Federal
Circuits: The Search for Manageable Limitations Upon an
Expansive Doctrine, 39 Gonz. L. Rev. 295 (2003-04) (noting the
expansiveness of the inevitable discovery doctrine and
describing a significant split among the federal circuits
concerning whether the inevitable discovery doctrine requires a
separate and independent investigation be ongoing at the time of
the constitutional illegality); William C. Heffernan, Foreword:
The Fourth Amendment Exclusionary Rule as a Constitutional
Remedy, 88 Geo. L.J. 799, 856-57 (2000) (exploring alternatives
to the exclusionary rule and arguing that the inevitable
discovery doctrine should require (1) an independent
investigation be underway when a tainted chain of events is
unfolding; and (2) a demonstration by the State by clear and
convincing evidence that the independent investigation would
produce the same information discovered were it not for the
illegality); George C. Thomas III & Barry S. Pollack, Balancing
the Fourth Amendment Scales: The Bad-Faith "Exception" to
Exclusionary Rule Limitations, 45 Hastings L.J. 21, 57 (1993)
(noting the "inherently speculative nature" of the inevitable
discovery doctrine and suggesting there is less reason to engage
in that speculation where evidence was obtained through a bad
faith violation of a defendant's rights); John E. Fennelly,
Refinement of the Inevitable Discovery Exception: The Need for
a Good Faith Requirement, 17 Wm. Mitchell L. Rev. 1085, 1100-06
(1991) (arguing that the courts should not favor intentional
police lawbreaking by affording the misconduct the same
treatment given honest mistakes).

16
 No. 2014AP2238-CR.ssa

discovery doctrine.40 No empirical evidence supports this bare

assertion. We are in an era recognizing the importance of

evidence-based decision making, but all the majority musters is

conjecture.

¶136 The majority also emphasizes the "societal costs" of

applying the exclusionary rule in instances in which evidence

inevitably would have been discovered by lawful means.41 To be

sure, there are such costs; however, other proposed remedies for

law enforcement misconduct present other problems.42 But not

granting a remedy in the instant case is not an acceptable

option. Nowhere in the majority's calculus is the cost to

judicial integrity and deterrence of allowing the use of

evidence obtained by flagrant and reprehensible police

wrongdoing.

¶137 In Knapp, two key factors led this court to conclude

that Article I, Section 8 required the suppression of evidence

obtained as a direct result of a violation of Miranda. First,

failing to suppress such evidence would "'minimize the
seriousness of the police misconduct producing the evidentiary

fruits, breed contempt for the law, and encourage the type of

conduct that Miranda was designed to prevent, especially where

40
Majority op., ¶71 (quoting Nix, 467 U.S. at 445)
(alteration in original).
41
Majority op., ¶¶46, 55.
42
See generally Heffernan, supra note 39, at 818-19, 848-
51, 854-58 (discussing the exclusionary rule's limitations and
advantages as a remedy and exploring alternative remedies for
constitutional violations).

17
 No. 2014AP2238-CR.ssa

the police conduct is intentional, as it was here.'"43 Second,

allowing the State to benefit from ill-gotten gains undermines

the integrity of the judicial system.44

¶138 I agree with those who have written that "the need to

deter is greater when the illegal activity of the police is

deliberate. Society needs to make clear to the enforcers of our

laws that when they deliberately violate constitutional

principles a penalty must be paid."45

¶139 Thus, three states, Alaska, Massachusetts, and North

Dakota, each relying on a state law or constitution, have

narrowed the inevitable discovery doctrine to cases in which

police do not knowingly or intentionally violate a suspect's

rights. See, e.g., Commonwealth v. Mattier, 50 N.E.3d 157, 167

(Mass. 2016) (citing Commonwealth v. Sbordone, 678 N.E.2d 1184,

1190 (Mass. 1997)); State v. Holly, 833 N.W.2d 15, 33 (N.D.

2013) (citing State v. Phelps, 297 N.W.2d 769, 775 (N.D. 1980));

Smith v. State, 948 P.2d 473, 481 (Alaska 1997); see also United

States v. Madrid, 152 F.3d 1034, 1041 (8th Cir. 1998) (declaring
that courts are not required to apply the inevitable discovery

doctrine "without regard to the severity of the police

misconduct"); but see State v. Garner, 417 S.E.2d 502, 510-11

(N.C. 1992) (rejecting this view).

43
Knapp, 285 Wis. 2d 86, ¶75 (quoted source omitted).
44
Knapp, 285 Wis. 2d 86, ¶79.
45
Steven P. Grossman, The Doctrine of Inevitable Discovery:
A Plea for Reasonable Limitations, 92 Dick. L. Rev. 313, 356
(1988) (emphasis added).

18
 No. 2014AP2238-CR.ssa

¶140 As the Massachusetts Supreme Judicial Court put it:

We think the severity of the constitutional violation
is critical in deciding whether to admit evidence that
it is shown would inevitably have been
discovered. . . . Bad faith of the police, shown by
such activities as conducting an unlawful search in
order to accelerate discovery of the evidence, will be
relevant in assessing the severity of any
constitutional violation.
Commonwealth v. O'Connor, 546 N.E.2d 336, 340 (Mass. 1989)

(internal citations omitted).

¶141 The concerns raised by these cases and commentators
are echoed by our own decision in Knapp, and are as salient in

the instant case as they were in Knapp. The circuit court, the

court of appeals, the majority opinion, and I all agree that the

violations of Jackson's rights in the instant case were

intentional, deliberate, unjustifiable, and profoundly

troubling. I am troubled that the majority opinion, despite its

recognition of law enforcement's wrongdoing, minimizes the

seriousness of the wrongdoing and in effect may encourage future

violations by allowing law enforcement to fall back on the

inevitable discovery doctrine even in unfortunate cases like

this one.

¶142 Justice Louis Brandeis got it right in Olmstead v.

United States, 277 U.S. 438, 468 (1928) (Brandeis, J.,

dissenting):

Crime is contagious. If the government becomes a
lawbreaker, it breeds contempt for law; it invites
every man to become a law unto himself; it invites
anarchy. To declare that in the administration of the
criminal law the ends justifies the means——to declare
that the government may commit crimes in order to
secure the conviction of a private criminal——would
19
 No. 2014AP2238-CR.ssa

bring terrible retribution. Against that pernicious
doctrine this court should resolutely set its face.
¶143 Accordingly, I would adhere to our reasoning in Knapp,

not the United States Supreme Court's reasoning in Nix, and hold

that under Article I, Section 8 of the Wisconsin Constitution,

the State may not rely on the inevitable discovery doctrine in

cases in which law enforcement officers acted in bad faith by

deliberately failing to give Miranda warnings.

II

¶144 I have reservations about the majority opinion's

discussion of the substantive aspects of the inevitable

discovery doctrine. The majority opinion reformulates the

three-prong analysis of the inevitable discovery doctrine

applied by the court of appeals. Reformulating the analysis of

the inevitable discovery doctrine was not an issue raised or

discussed by the parties. Instead of the normal progression of

issues being narrowed or limited on appeal, the majority opinion

expands the issues.

¶145 True, as the majority opinion points out, some

exceptions to the court of appeals' formulation of the

inevitable discovery doctrine may be necessary, but the court of

appeals' three-prong analysis (unlike the majority's free-

flowing inevitability analysis) provides important guidance to

circuit courts and the court of appeals.46

¶146 Additionally, given the focus of the inevitable

discovery doctrine on whether evidence inevitably would have

46
See majority op., ¶¶62-66.

20
 No. 2014AP2238-CR.ssa

been discovered by lawful means, I question the majority

opinion's reliance on the "preponderance of the evidence" burden

of proof.47 "Proof by a preponderance of the evidence would

require a mere showing that [an occurrence] is more likely than

not . . . ."48

¶147 An inevitability is defined as something that is "sure

to happen."49 There is an obvious tension in requiring proof

that an event is "more likely than not to happen" when the fact

to be proved is that the event is "sure to happen."50

¶148 I would follow the practice of other courts and hold

the State to the heightened "clear and convincing evidence"

burden of proof in inevitable discovery cases. Increasing the

burden of proof has both practical and symbolic significance,

47
See majority op., ¶66.
48
In re Commitment of West, 2011 WI 83, ¶80, 336
Wis. 2d 578, 800 N.W.2d 929.
49
Merriam-Webster's Learner's Dictionary, Inevitable
(2008).
50
See United States v. Heath, 455 F.3d 52, 59 n.6 (2d Cir.
2006) (describing the "semantic puzzle" of "using the
preponderance of the evidence standard to prove inevitability"
and concluding that it was sufficient to "note the difference
between proving by a preponderance that something would have
happened and proving by a preponderance of the evidence that
something would inevitably have happened.") (quoted source
omitted; 6 Wayne R. LaFave, Search and Seizure, § 11.4(a) at
359-61 (5th ed. 2012) ("A 'majority of the courts that have
utilized the exception have tended to define the necessary
probability in terms of 'would,' which is the constitutional
standard . . . .' 'It is not enough to show the evidence 'might'
or 'could' have been otherwise obtained.'") (internal citations,
footnotes, and quotation marks omitted).

21
 No. 2014AP2238-CR.ssa

impressing upon the factfinder the importance of the decision

and reducing the chance that hypothetical findings of

inevitability will swallow the exclusionary rule. See, e.g.,

State v. Rodrigues, 286 P.3d 809, 823 (Haw. 2012) (quoting State

v. Lopez, 896 P.2d 889, 907 (Haw. 1995)); State v. Smith, 54

A.3d 772, 786-87 (N.J. 2012) (citing State v. Sugar, 495

A.2d 90, 104 (N.J. 1985)); Smith v. State, 948 P.2d 473, 479

(Alaska 1997); see also Nix, 467 U.S. at 459 (Brennan, J.,

dissenting) (asserting that proof of the inevitability of

discovering evidence by lawful means should be shown by clear

and convincing evidence).

¶149 For the reasons set forth, I dissent and write

separately.

¶150 I am authorized to state that Justice ANN WALSH

BRADLEY joins this opinion.

22
 No. 2014AP2238-CR.ssa

1