dissenting.
In Brewer v. Williams, 430 U. S. 387 (1977), we held that the respondent’s state conviction for first-degree murder had to be set aside because it was based in part on statements obtained from the respondent in violation of his right to the assistance of counsel guaranteed by the Sixth and Fourteenth Amendments. At the same time, we noted that, “[wjhile neither Williams’ incriminating statements themselves nor any testimony describing his having led the police to the victim’s body can constitutionally be admitted into evidence, evidence of where the body was found and of its condition might well be admissible on the theory that the body would have been discovered in any event.” Id., at 407, n. 12.
To the extent that today’s decision adopts this “inevitable discovery” exception to the exclusionary rule, it simply acknowledges a doctrine that is akin to the “independent source” exception first recognized by the Court in Silver-thorne Lumber Co. v. United States, 251 U. S. 385, 392 (1920). See United States v. Wade, 388 U. S. 218, 242 (1967); *459Wong Sun v. United States, 371 U. S. 471, 487 (1963). In particular, the Court concludes that unconstitutionally obtained evidence may be admitted, at trial if it inevitably would have been discovered in the same condition by an independent line of investigation that was already being pursued when the constitutional violation occurred. As has every Federal Court of Appeals previously addressing this issue, see ante, at 440-441, n. 2, I agree that in these circumstances the “inevitable discovery” exception to the exclusionary rule is consistent with the requirements of the Constitution.
In its zealous efforts to emasculate the exclusionary rule, however, the Court loses sight of the crucial difference between the “inevitable discovery” doctrine and the “independent source” exception from which it is derived. When properly applied, the “independent source” exception allows the prosecution to use evidence only if it was, in fact, obtained by fully lawful means. It therefore does no violence to the constitutional protections that the exclusionary rule is meant to enforce. The “inevitable discovery” exception is likewise compatible with the Constitution, though it differs in one key respect from its next of kin: specifically, the evidence sought to be introduced at trial has not actually been obtained from an independent source, but rather would have been discovered as a matter of course if independent investigations were allowed to proceed.
In my view, this distinction should require that the government satisfy a heightened burden of proof before it is allowed to use such evidence. The inevitable discovery exception necessarily implicates a hypothetical finding that differs in kind from the factual finding that precedes application of the independent source rule. To ensure that this hypothetical finding is narrowly confined to circumstances that are functionally equivalent to an independent source, and to protect fully the fundamental rights served by the exclusionary rule, I would require clear and convincing evidence before concluding that the government had met its burden of proof on this issue. See Wade, supra, at 240. Increasing the burden of *460proof serves to impress the factfinder with the importance of the decision and thereby reduces the risk that illegally obtained evidence will be admitted. Cf. Addington v. Texas, 441 U. S. 418, 427 (1979); Santosky v. Kramer, 455 U. S. 745, 764 (1982) (“Raising the standard of proof would have both practical and symbolic consequences"). Because the lower courts did not impose such a requirement, I would remand this case for application of this heightened burden of proof by the lower courts in the first instance. I am therefore unable to join either the Court’s opinion or its judgment.