People v. Turriago, 1997 90 N.Y.2d 77 (May 13, 1997).

REVIEW OF UNPRESERVED ISSUES -- DISCRETIONARY REVIEW -- CPL 450.90 -- INEVITABLE DISCOVERY DOCTRINE

COURT OF APPEALS MAY NOT REVIEW APPELLATE DIVISION'S DISCRETIONARY RULING; APPELLATE DIVISION ERRED IN REJECTING APPLICATION OF INEVITABLE DISCOVERY DOCTRINE.

[SUMMARY] | [ISSUES & DISPOSITIONS] | [AUTHORITIES CITED] | [COMMENTARY]

SUMMARY

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

Issues

1. Whether the Appellate Division's finding that the consent was invalid constitutes a use of its discretionary power to review issues not preserved for appeal.

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.

Dispositions

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 470.05; CPL 470.15.

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.

AUTHORITIES CITED

Cases Cited by the Court

Other Sources Cited by the Court

RELATED SOURCES

COMMENTARY

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 450.90(2)(a).

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 under CPL 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 be admissible.

Unanswered Questions

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 this standard.

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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