concurring in part and dissenting in part.
Although I agree with the court’s discussion of the independent source exception *483(Part III.A), and most of its discussion of the inevitable discovery exception (Part III.B), I disagree with that portion of its opinion that would require the prosecution to prove inevitable discovery by clear and convincing evidence in this case.
The rationale for the clear and convincing standard was first expressed by Justice Brennan in dissent in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Imposition of the higher burden of proof is intended to “ensure that this hypothetical finding [contemplated by the inevitable discovery doctrine] 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.” Id. at 459, 104 S.Ct. at 2517 (Brennan, J., dissenting) (emphasis added).
Nix, and the decisions this court cites in support of a heightened proof standard, involved violation of constitutional rights. Nix, 467 U.S. at 436, 104 S.Ct. at 2505; State v. Lopez, 78 Hawai'i 433, 896 P.2d 889, 898, 907 (1995) (applying clear and convincing standard in part to “ensure that the added protection in the Hawaii Constitution is not vitiated by a ‘bad guess’ ”); Commonwealth v. O’Connor, 406 Mass. 112, 546 N.E.2d 336, 337, 340 (1989) (“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.”). Here, however, the exclusionary rule is being applied to a violation of statutory rights conferred by AS 12.25.150.1
In Zsupnik v. State, 789 P.2d 357 (Alaska 1990), this court held that the exclusionary rule applies to evidence procured in violationof AS 12.25.150. However, the court did so not because it determined the right secured by that statute was of a fundamental or constitutional nature; rather, it applied the exclusionary rule because “the refusal 'of a telephone call after the arrestee is in custody at a station involves an intentional act in a situátion where an officer can calmly reflect on his action before taking it.” Id. at 361. See also Copelin v. State, 659 P.2d 1206 (Alaska 1983), cert. denied, 469 U.S. 1017, 105 S.Ct. 430, 83 L.Ed.2d 357 (1984). The exclusionary rule thus deters violation of the statute. However, the right to a telephone call (especially one to a roommate) secured by AS 12.25.150 is not in and of itself of constitutional stature.
The rationale supporting the imposition of a clear and convincing standard of proof is absent where only statutory, non-fundamental rights have been violated. I would hold that where only non-constitutional rights are at stake, the* prosecution need prove inevitable discovery by only a preponderance of the evidence.
I also agree with Justice Matthews’s view, expressed in his dissent, that the inevitable discovery exception should not incorporate a “predictable investigatory procedures” element.
I also write separately to emphasize our rejection of one of Smith’s arguments on appeal.
In his opening brief in this court, Smith argued that the inevitable discovery doctrine should not apply because, had he not been unlawfully denied his telephone call, he “could have called friends or roommates to remove the evidence before police arrived.” In his reply brief, Smith argued that he had ample time to call his roommate, and that, even if police had been posted outside the house to prevent destruction of evidence, his roommate inside the house “could have disposed of evidence before police arrived with a warrant to enter.” This court’s prospective rejection of that argument is contained in a footnote. Maj. op. at 481 n. 7.
Several decisions have implicitly recognized that deliberate efforts to conceal or destroy evidence could prevent its inevitable discovery. United States v. Roberts, 852 F.2d 671, 676 (2d Cir.1988); State v. Miller, 300 Or. 203, 709 P.2d 225, 242-43 (1985). See *484also State v. Garner, 621 So.2d 1203, 1209 (La.App.1993) (ruling the evidence inevitably would have been found because the defendants “did not have a long time to plan disposal” of the evidence pending a search by warrant).
It bears emphasis that public policy bars any argument by Smith that, but for the violation of AS 12.25.150(b), he could have prevented discovery of the evidence by using the telephone to procure its concealment or destruction. This is especially true given the non-constitutional rights to which the exclusionary rule is applied in this case. The trial court, when deciding the inevitable discovery dispute on remand, may not condone an argument or admit evidence that Smith would have arranged to have his roommate destroy or conceal the contraband if such acts of Smith or his roommate would have constituted new crimes.2
Smith also argues that he was unable to telephone an attorney. Public policy precludes any argument or evidence that by telephoning an attorney Smith could have procured the concealment or destruction of evidence. Courts must reject speculation that an attorney would act criminally or unethically in response to such a telephonic request. Cf. Alaska Rule of Professional Conduct 1.2(d) (lawyer shall not assist client to engage in conduct the lawyer knows is criminal).
. Although Smith argues in his brief that his statement was obtained in violation of his Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the superior court and court of appeals held only that Smith’s statutory rights were violated. Smith v. State; Mem. Op. & J. No. 2641 at 2-6 (Alaska App., March 10, 1993). The court does not appear to hold otherwise.
. See AS 11.56.610 (tampering with physical evidence); AS 11.56.770 (hindering prosecution in the first degree); AS 11.71.040 (misconduct involving a controlled substance in the fourth degree); AS 11.71.050 (misconduct involving a controlled substance in the fifth degree); AS 11.16.110 (accountability for causing another to engage in proscribed conduct); AS 11.31.110 (soliciting criminal conduct by another).