Smith v. State

I agree that we should adopt as a matter of state law the inevitable discovery exception. Further, I think the prosecution should have the burden of proving inevitable discovery by clear and convincing proof, and the exception should not be available in cases where the police have intentionally or knowingly violated a suspect’s rights.

My concern is with the additional test imposed by today’s opinion, namely that the evidence must have been discoverable by “predictable investigatory procedures.” In many cases, this test may be merely surplus-age. When the prosecution can show that evidence…