CLOUDY CRYSTAL BALL

Issues related to evidence and sentencing are probably the two most frequent topics for appeal in criminal cases.  We have mentioned both in previous posts.

An attack on evidence, in turn, can take several forms.  It can target its sufficiency (whether there was enough), it adequacy (whether it proved what it claimed to show), or its legality (whether it was lawfully obtained) for instance.

As to the latter, evidence must have been collected under a search warrant in order to have been lawfully obtained.  That, at least, is the default position everyone starts with.  There are exceptions.  One of those, quite useful to law enforcement, is called “inevitable discovery.”  It says that if a piece of evidence would inevitably be discovered by lawful means anyway, it will not be excluded because the particular search that found it was illegal.

This, it seems, might call on a court to look into a crystal ball and divine some alternate future where evidence of a crime would have inevitably manifested itself.  And it seems, as a result, like an easy argument for a prosecutor, with no more to do than imagine a plausible future where, as if by a twirl of a magic wand, it is certain the evidence will show up.

The Florida Supreme Court, however, just had occasion to remind the State that some standards apply to this quest.  For one thing, for some evidence to be inevitably discovered later, there must be an investigation already under way.  Otherwise, no search can be expected to take place at some future date.  There must also be a reasonable probability that this investigation would lead to the evidence in question without any police misconduct.

The first part – an existing investigation – is what recently doomed a Florida prosecutor.  When bail bondsmen tried to locate a fugitive, they happened on a majiruana growing room and called the police.  But law enforcement did not have an existing investigation ongoing into the home or the homeowner, and did not bother to try and obtain a warrant based on the bondsmen’s statement.  The prosecutor was left to try and save the day with inevitable discovery, but without an investigation under way, there could be no later search.  Without a later search, there could be no lawful discovery.  The pot was thrown out.

Nothing here is a boon to criminals.  It would have been quite easy for the police to do things the right way and obtain a warrant.  But when things are not quite right, appellate attorneys have a role in tipping the scale’s balance back toward the constitution.