dissenting.
Because I believe Texas Code of Criminal Procedure Article 38.28 does not bar the use in Texas of the United States Supreme Court’s inevitable discovery doctrine announced in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), I respectfully dissent.
Appellant was observed by Southlake Police Officer Hart on the morning of September 14, 1989 in a neighborhood that was having problems with burglaries. As Officer Hart approached appellant’s truck, appellant ducked. Hart proceeded up the street and parked. He then observed appellant getting out of his truck, walking up to a nearby house, knocking on the door and then putting his hand on the door knob. Appellant then went around to the back of the house out of Hart’s sight. A short time later, appellant returned to the front of the house, looked around, got into his truck, and drove off.
Hart then pulled appellant over a few blocks away. When he approached appellant to ask for proof of insurance and his driver’s license, Hart observed a prybar sticking out from under the driver’s seat as well as screw drivers and a pair of gloves on the floor in front of the front seat. Appellant stated he was in the area to give an estimate on a paint job at 1379 Flamingo and admitted he had no driver’s license. Hart ordered appellant to get out of the vehicle and noticed two small jewelry boxes on the seat next to where appellant had been sitting. Hart opened the boxes and found five rings, one of which had a name engraved on it which was not appellant’s. Appellant claimed he got the jewelry at a flea market the previous day in Roanoke.
Hart arrested appellant for driving without a license and read appellant his Miranda warnings. Hart summoned a wrecker to tow away the truck and inventoried the jewelry. Appellant was released from custody that afternoon.
Appellant was subsequently convicted by a jury of burglary of a habitation. The jury also found two enhancement paragraphs to be true. The jury assessed punishment at ninety years confinement in the Texas Department of Criminal Justice — Institutional Division. The Second Court of Appeals reversed appellant’s conviction and remanded the cause for a new trial.1 Daugherty v. State, 876 S.W.2d 522 (Tex.App.—Fort Worth 1994). This Court subsequently granted the State’s and the State Prosecuting Attorney’s petitions for discretionary review. Specifically, we granted the State Prosecuting Attorney’s petition for discretionary review to determine if the federal inevitable discovery doctrine is applicable under Texas law, that is, Texas Code of Criminal Procedure Article 38.23, the Texas statutory exclusionary rule. The court of appeals, relying on this Court’s plurality opinion in Garcia v. State, 829 S.W.2d 796 (Tex.Crim.App.1992), held there was no inevitable discovery doctrine exception to Article 38.23.
Texas Code of Criminal Procedure Article 38.23 provides:
(a) No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas, or of the Constitution or laws of the *282United States of America, shall be admitted in evidence against the accused on the trial of any criminal case ...
(b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.
To determine if the inevitable discovery doctrine exists in Texas, given Article 38.23, it is necessary to analyze both the federal and Texas Constitutions and Article 38.23.
I. The Inevitable Discovery Doctrine is Well-Established As an Exception to the Federal Exclusionary Rule.
“The right of the people to be secure in their persons, houses papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const., Amendment IV.
As a means to give effect to the Fourth Amendment’s prohibition of unreasonable searches and seizures, the Supreme Court developed the exclusionary rule. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Evidence obtained as a result of a warrantless search and seizure in violation of a defendant’s Fourth Amendment rights by federal authorities could not be admitted into evidence against him at trial. There is no federal statutory exclusionary rule comparable to Article 38.23. The exclusionary rule was made applicable to the states and to local entities in 1961. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
The Supreme Court has, for some time, recognized a so-called “good faith” exception to the exclusionary rule. The exclusionary rule does not bar admission of evidence obtained by police officers acting in reasonable reliance on a search warrant issued by a neutral magistrate but later found to be invalid for lack of probable cause. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See also Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987). The good faith exception to the exclusionary rule has also been found to apply to a warrantless search conducted in good faith pursuant to a statute found later to be unconstitutional. The good faith exception also was found to apply to a search and seizure incident to an arrest based on a computer error which erroneously indicated to the police officer there was an outstanding arrest warrant against the defendant. Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987); Arizona v. Evans, — U.S. -, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995). Evidence illegally obtained in violation of the Fourth Amendment may be used to impeach defendant should he testify. James v. Illinois, 493 U.S. 307, 110 S.Ct. 648, 107 L.Ed.2d 676 (1990).
The Supreme Court and other federal courts have recognized another exception to the exclusionary rule — the inevitable discovery doctrine.
In Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), the Supreme Court, in a murder case, explained the rationale behind the exclusionary rule:
It is clear that the cases implementing the exclusionary rule “begin with the premise that the challenged evidence is in some sense the product of illegal government activity.” United States v. Crews, 445 U.S. 463, 471, 100 S.Ct. 1244, 1250 [63 L.Ed.2d 537] (1980). Of course, this does not end the inquiry. If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means — here the volunteers’ search — then the deterrence rationale has so little basis that the evidence should be received. Anything less would reject logic, experience and common sense.
The core rationale consistently advanced by this Court for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct has been that this admittedly drastic and socially costly course is needed to deter police from violations of constitutional and statutory protections. This Court has accepted *283the argument that the way to ensure such protections is to exclude evidence seized as a result of such violations notwithstanding the high cost of letting persons obviously guilty go unpunished for their crimes. On this rationale, the prosecution is not to be put in a better position than it would have been if no illegality had transpired.
Nix, 467 U.S. at 441-45, 104 S.Ct. at 2508-09.
“Exclusion of physical evidence that would inevitably be discovered adds nothing to either the integrity or fairness of a criminal trial.” Nix, 467 U.S. at 446, 104 S.Ct. at 2510.2,3
The Court demonstrates the absurdity of excluding evidence that would have been inevitably discovered by legal means merely because its initial discovery was by illicit methods. In effect, the prosecution would be left in a worse position had no police error or misconduct occurred should the exclusionary rule be interpreted to bar forever use of the evidence in question merely because its initial discovery was in violation of the exclusionary rule. By permitting the State to introduce evidence that would have been obtained inevitably by licit means — absent any police misconduct — the State and the defendant are placed in the same position as if no police misconduct had ever taken place: the State has gained no advantage and the defendant has suffered no prejudice.4
It is clear, under federal constitutional law, the inevitable discovery doctrine is well-established.
II. The Inevitable Discovery Doctrine Is Not Contrary to the Texas Constitution or to Article 38.28 and Should Be Recognized by This Court.
The Texas Constitution, Article I, Section 9 provides:
“The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.” Article I, Section 9 of the Texas Constitution is essentially identical to the Fourth Amendment to the United States Constitution.
This Court has generally followed United States Supreme Court Fourth Amendment jurisprudence in interpreting Article I, Section 9. We are free, however, to interpret Article I, Section 9 to find it offers greater protection against unreasonable searches and seizures than its federal counterpart. Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991). To date, however, a majority of this Court has declined to do so. In Autran v. State, 887 S.W.2d 31 (Tex.Crim.App.1994) (plurality opinion), four members of this Court did find, in a case concerning an inventory search of closed containers found in the trunk of a vehicle, Article I, Section 9 would require a warrant to search the containers whereas the Fourth Amendment generally *284permits warrantless inventory searches. Accordingly, I would hold that the inevitable discovery doctrine’s application to the present case is not barred by Article I, Section 9 of the Texas Constitution.
Article 38.23 (or rather, its predecessor, Art. 727a) originally was enacted seventy years ago, ten years after the Supreme Court’s holding in Weeks, supra, which created the federal exclusionary rule. Noting Weeks applied only to the federal government, it is reasonable to conclude the Legislature’s enactment of Article 38.23 was intended to extend to the citizens of Texas the same protection against unreasonable searches and seizures by state and local governmental entities that they had been given by the United States Supreme Court against Fourth Amendment violations committed by the federal government. The Legislature subsequently added Article 38.23(b) to incorporate a “good faith exception” so that evidence obtained by an officer acting in good faith reliance upon a warrant issued by a neutral magistrate based on probable cause would not be inadmissible due to the exclusionary rule as a result of a defect found in the warrant subsequent to its execution.
The majority, relying on our plurality opinion in Garcia v. State, 829 S.W.2d 796 (Tex.Crim.App.1992), holds, in effect, that because Article 38.23’s plain language does not mention the inevitable discovery doctrine, then, by definition, its use in Texas is precluded. I do not agree. The majority does not offer any legislative history or other evidence of legislative intent in support of its position that Article 38.23 was intended to be anything more or less than its federal, judge-made equivalent. Indeed, carried to its logical conclusion, the majority’s holding would preclude, as violative of Article 38.23, such exceptions to the exclusionary rule as the emergency or exigent circumstances doctrine and the attenuation of taint doctrine, thereby casting doubt on our holdings in Johnson v. State, 871 S.W.2d 744 (Tex.Crim.App.1994) and Bass v. State, 732 S.W.2d 632 (Tex.Crim.App.1987). In other words, this Court would be barred from interpreting Article 38.23 so as to take into account evolving Supreme Court jurisprudence with respect to the federal exclusionary rule. I submit the Legislature did not intend this.5
I would agree that if this Court found the inevitable discovery doctrine to be invalid under Article I, Section 9, then its use would also be precluded under Article 38.23. The majority does not hold this, however. I also understand the majority’s point that the exclusionary rule bars admission of evidence obtained in violation of state or federal law, but there are exceptions which do allow admission of such evidence •even though it was obtained in violation of the ¡aw. Yet the majority, in my opinion, ignores the most significant aspect of the inevitable discovery doctrine: while the evidence may have been initially obtained illegally, it is admissible only if the State can show, by a preponderance of the evidence, that it would have been inevitably obtained by legal means. It is this significant aspect, in my opinion, of the inevitable discovery doctrine that does not preclude its incorporation under Article 38.23.6
I respectfully dissent.
. The court of appeals found the trial court erred in admitting evidence of the jewelry and other items seized from appellant, holding the search in question could not be justified as a valid search incident to an arrest since the search preceded the arrest. Furthermore, the court of appeals found the trial court erred in relying on the inevitable discovery doctrine to justify the search in question, citing Garcia, supra.
. In Nix, the police obtained information as to the location of the victim's body from the defendant as the result of questioning found to be in violation of his Sixth Amendment right to counsel. The Supreme Court found evidence of the body, articles and photos of clothing and the results of the autopsy were admissible at the defendant’s retrial under the inevitable discovery doctrine. (The Iowa Supreme Court found by a preponderance of the evidence that the body would have been discovered within a short time in essentially the same condition as it was actually found absent the information illegally obtained from the defendant.)
. The Court notes that the "vast majority” of all courts, both state and federal, recognize an inevitable discovery exception to the exclusionary rule. Nix, 467 U.S. at 440, footnote 2, 104 S.Ct. at 2507, footnote 2. I must respectfully disagree with the majority that the inevitable discovery doctrine’s entire foundation is one sentence in Nix.
.We also note the Supreme Court has held evidence found pursuant to execution of a valid search warrant is admissible provided the information used to obtain the warrant is wholly unconnected to information uncovered during an earlier, invalid search, i.e., the "independent source" doctrine. Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984); Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) (citing Nix, supra, 487 U.S. at 540, 108 S.Ct. at 2535). The independent source doctrine is similar to the inevitable discovery doctrine. Nix, 467 U.S. at 443-45, 104 S.Ct. at 2509.
. The concurring opinion notes that had the Legislature intended to incorporate the inevitable discovery doctrine into Article 38.23, it has had at least two opportunities since Garcia to do so. First, Garcia is a plurality opinion with a limited precedential value; hence, legislative action would be premature, and the Legislature’s failure to act has little significance. Second, should we find Article 38.23 not to preclude the inevitable discovery doctrine, the Legislature certainly could amend Article 38.23 so as to negate our finding.
. If the search of the jewelry boxes had occurred after the arrest, it would have been valid as a search incident to a concededly valid arrest. This application of the inevitable discovery doctrine would allow admission into evidence of the results of the search which occurred prior to the arrest because it would have been inevitably discovered pursuant to a legal, post-arrest search.