No proof discovery was inevitable

Michelle Davis won in State v. Richard Jones, No. 103,046 (Kan. App. Oct. 28, 2011)(unpublished), obtaining reversal of a Geary County possession conviction. The state conceded that the search of Mr. Jones' pocket was unlawful, but argued that the evidence would have been inevitably discovered. The COA distinguished attenuation doctrine and the inevitable discovery exception and held that the record did not support a finding of inevitable discovery:

Preliminarily, we note the scant, insubstantial, and hypothetical evidence justifying the application of the inevitable discovery doctrine presented by the State at the hearing on the motion to suppress evidence. As summarized in the Factual and Procedural Background section, important evidence to analyze this question was lacking. Although it was conceded that upon the officers' initial entry into the residence Jones was promptly handcuffed, no evidence was presented regarding the length of time Jones was detained at the residence during the execution of the search warrant. Additionally, the time period during which Jones was transported from the residence and held at the detention center in keeping with the police department's policy to detain individuals until their identity is confirmed is also unknown. Although the district court relied on Lieutenant Life's hypothetical and generic testimony that the FBI comparative fingerprint analysis would have taken at least 1 hour, we are left to speculate how long it actually took in the present case.

The answers to these questions would have provided an evidentiary basis in which to determine whether Jones' continued detention was a lawful or unlawful means to the inevitable discovery of the cocaine. Suffice it to say, it is not an appellate court's role to speculate about such factual matters. It is the State's burden, however, to establish the evidentiary basis for the inevitable discovery doctrine in each particular case.

Because the COA held that the state failed to prove the exception, it held that the continued detention violated the Fourth Amendment and reversed. The inevitable discovery doctrine requires proof that evidence would have been discovered in the case at bar, not just most hypothetical cases.

[Update: the state did not file a PR and the mandate issued on December 1, 2011.]