REVIEW OF UNPRESERVED ISSUES -- DISCRETIONARY REVIEW -- CPL 450.90 -- INEVITABLE
COURT OF APPEALS MAY NOT REVIEW APPELLATE DIVISION'S DISCRETIONARY RULING;
APPELLATE DIVISION ERRED IN REJECTING APPLICATION OF INEVITABLE DISCOVERY
[SUMMARY] | [ISSUES & DISPOSITIONS]
| [AUTHORITIES CITED] | [COMMENTARY]
After a routine traffic stop of a van Defendant was driving, police requested
Defendant's consent to search the van. Securing Defendant's consent, the
police discovered a dead body in a steamer trunk in the rear of the van
and arrested Defendant for murder. Following his indictment, Defendant
moved to suppress his statements and all the physical evidence seized by
the police on the grounds that he did not voluntarily consent to the search
of the van. The People's responding memorandum argued that Defendant did
consent and that even if the consent was involuntary the evidence was admissible
under the inevitable discovery doctrine. The People argued that the van
would have been impounded and searched under standard police policy since
neither Defendant nor his two passengers possessed a valid driver's license.
The trial court denied Defendant's motion to suppress finding that Defendant's
consent was voluntary. The jury convicted Defendant.
On appeal, the Appellate Division affirmed the voluntariness of Defendant's
consent but found the consent invalid because the police lacked a founded
suspicion of criminal activity to request a search in the first place.
In addition, the Appellate Division rejected, as a matter of law, the applicability
of the inevitable discovery doctrine to the evidence discovered secondarily
as a result of the search of the van.
ISSUES & DISPOSITIONS
1. Whether the Appellate Division's finding that the consent was invalid
constitutes a use of its discretionary power to review issues not preserved
2. Whether the Court of Appeals has the power to review an Appellate
Division's finding on an issue not preserved for appeal.
3. Whether the Appellate Division erred in rejecting as a matter of
law the applicability of the inevitable discovery doctrine.
1. Yes. Because the necessity of a founded suspicion of criminal activity
was never expressly raised before the Supreme Court, such issue was not
preserved for appeal and thus the Appellate Division's finding on the issue
was pursuant to its discretionary powers. CPL
2. No. Pursuant to CPL
450.90(2)(a), the Court of Appeals does not have the power to review
an Appellate Division discretionary ruling.
3. Yes. The Appellate Division erred in rejecting the applicability
of the inevitable discovery doctrine as a matter of law because the People
established by a very high probability that the evidence would have been
inevitably discovered by lawful means.
Cases Cited by the Court
v. Williams, 467 U.S. 431 (1984).
v. Bertine, 479 U.S. 367 (1986).
United States v. Woody, 55 F.3d 1257 (7th Cir. 1995), cert. denied,
__ U.S. __, 116 S.Ct. 234, 133 L. Ed. 2d 163 (1995).
United States v. Perea, 986 F.2d 633 (2nd Cir. 1993).
Johnson, 83 N.Y.2d 831 (1994).
Hollman, 79 N.Y.2d 181 (1992).
People v. Giles, 73 N.Y.2d 666 (1989).
People v. Stith, 69 N.Y.2d 313 (1987).
People v. Gonzalez, 62 N.Y.2d 386 (1984).
People v. Cona, 49 N.Y.2d 26 (1979).
People v. Payton, 45 N.Y.2d 300 (1978), rev'd on other grounds,
U.S. 573 (1980), on remand, 51 N.Y.2d 169 (1980).
People v. De Bour, 40 N.Y.2d 210 (1976).
People v. Fitzpatrick, 32 N.Y.2d 499 (1973).
Other Sources Cited by the Court
People v. Burnidge, No. 81343, 1997 WL 561996 (Ill. 1997).
Commonwealth v. Rood, 686 A.2d 442 (Pa. 1996).
State v. Johnson, 939 S.W.2d 586 (Tex. 1996).
People v. Durgan, 667 N.E.2d 730 (Ill. App. Ct. 1996).
State v. Daugherty, 931 S.W.2d 268 (Tex. Crim. App. 1996).
People v. Temple, 36 Cal.App.4th 1219 (Cal. Ct. App. 1995).
Garcia v. State, 829 S.W.2d 796 (Tex. Crim. App. 1992).
State of the Law Before Turriago
For an issue to be preserved for appeal, it must be either raised at a
hearing or "decided by the hearing court upon appropriate protest." CPL
470.05. However, the Appellate Division may reverse the lower court's
ruling on unpreserved issues as a matter of discretion in the interest
of justice. See CPL
470.15; People v. Cona, 49 N.Y.2d 26, 33 (1979). The Court of
Appeals does not have the power to review a discretionary ruling by the
Appellate Division. See CPL
Prior to Turriago, the Court of Appeals recognized that evidence
usually excluded by the "fruits of the poisonous tree" rule may be admissible
under the inevitable discovery doctrine. See People v. Fitzpatrick,
32 N.Y.2d 499, 506 (1973) ("evidence obtained . . . from an unlawful search
. . . is not inadmissible . . . where the normal course of police investigation
would . . . have inevitably led to such evidence"). The purpose of the
inevitable discovery doctrine is to deny the government the use of improperly
obtained evidence while minimizing unjust benefit to the defendant. See,
People v. Turriago, 1997 N.Y. Int. 81, para. 18 (citations omitted).
The inevitable discovery doctrine requires the prosecution to show a
"very high degree of probability that the evidence would have been obtained
independently of the tainted source." People v. Payton, 45 N.Y.2d
300, 313 (1978), rev'd on other grounds, 445
U.S. 573 (1980), on remand, 51 N.Y.2d 169 (1980). In making
this determination, courts distinguish between primary evidence and secondary
evidence. Primary evidence is evidence "obtained during or as immediate
consequence" of the illegal conduct. People v. Stith, 69 N.Y.2d
313, 318 (1987). Secondary evidence is evidence that is "obtained indirectly
as a result of leads or information gained from that primary evidence."
See Id. at 319. Only secondary evidence is admissible under the
inevitable discovery doctrine. Id. Primary evidence is excluded
even if it would have been discovered under proper police procedure. See
Id. at 318.
Effect of Turriago on Current Law
The Court of Appeals finds that the Appellate Division used its discretionary
power to raise the founded suspicion issue. The Court of Appeals bases
its opinion on the fact that the trial court merely alluded to the founded
suspicion issue in its discussion of voluntary consent. The issue was neither
expressly decided nor raised by either party.
The Court also notes that, unlike the Court of Appeals, the Appellate
Division has the discretionary power to examine an issue that was not preserved
470.05(2). See People v. Cona, 49 N.Y.2d 26 (1979). With few
exceptions, none of which are applicable to the instant case, when the
Appellate Division exercises its discretionary power to address a particular
issue of law not expressly preserved for appeal, the issue is beyond the
jurisdiction of the Court of Appeals. Thus, the Court of Appeals does not
have the power to review the Appellate Division's finding that the police
lacked the founded suspicion of criminal activity to have permitted them
to request a search.
The Court of Appeals finds that the Appellate Division erred in rejecting
the applicability of the inevitable discovery doctrine as a matter of law.
The trial court did not address the inevitable discovery doctrine because
it found that the search was valid. The Court of Appeals finds that if
the consent search had not been performed, the search could have legally
occurred under New York State Police procedures. See N.Y. Veh. &
Traf. Law § 511-b (McKinney 1996). Thus, a factual inquiry is required
to determine whether there would have been a high probability that the
evidence would be inevitably discovered. Upon remand, if the Supreme Court
finds that the doctrine is applicable, then the secondary evidence may
The reach of the inevitable discovery doctrine is unclear. As feared by
Judge Wachtler at the adoption of the doctrine, "'[t]he inevitable discovery
doctrine' is speculative at best, and there is absolutely nothing to prevent
the expansion of the doctrine far beyond [the object of the search in the
current fact pattern]." Fitzpatrick at 514 (Wachtler, J., concurring).
In 1973, the concern centered on whether the scope of the doctrine would
be coextensive with "the normal course of police investigation" and how
to define "normal course." Id. We face similar problems today with
the additional burden of defining "a very high degree of probability."
Payton at 313. Since the court has not given a clear definition
of this probability threshold, issues may arise in the future regarding
Survey of the Law in Other Jurisdictions
Following the Supreme Court decision in Nix
v. Williams, 467 U.S. 431 (1984), the state courts in California,
Pennsylvania, Illinois and Texas all recognize the inevitable discovery
doctrine. See, e.g., People v. Temple, 36 Cal.App.4th 1219 (Cal.
Ct. App. 1995); People v. Durgan, 667 N.E.2d 730 (Ill. App. Ct.
1996); Commonwealth v. Rood, 686 A.2d 442 (Pa. 1996); State v.
Johnson, 939 S.W.2d 586 (Tex. 1996).
In State v. Daugherty, 931 S.W.2d 268 (Tex. Crim. App. 1996),
the court held that the doctrine did not apply to the statutory exclusion
of improperly obtained evidence under Article 38.23(a) of the Texas Code
of Criminal Procedure. Unlike the inevitable discovery doctrine, under
Article 38.23 the inquiry regarding possible legal attainment of evidence
is never reached once the illegality and its causal connection to evidence
have been established. In such a situation, the evidence must be excluded.
Garcia v. State, 829 S.W.2d 796 (Tex. Crim. App. 1992).
In People v. Burnidge, No. 81343, 1997 WL 561996 (Ill. 1997),
the inevitable discovery doctrine was applied to a set of facts involving
the violation of the clergy testimonial privilege, instead of its traditional
application to improper police conduct.
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