Have to prove "inevitable" at hearing

Michelle Davis won in State v. Stowell, No. 96,091 (Kan. May 16, 2008), reversing a Reno County drug conviction. In a short decision, the KSC finds that the COA correctly refused to apply the inevitable discovery rule to cure an otherwise clear illegal search and seizure:

We need not decide if the majority's conclusion about Stowell's imminent bonding out was speculative. Nor do we need to otherwise reconcile the different Court of Appeals' outcomes in Smith and Stowell. Resolution of the instant case is more fundamental. More particularly, the State has the burden of showing by a preponderance of the evidence that the discovery of the methamphetamine was inevitable. See Ingram, 279 Kan. 745, Syl. ¶ 1. But a detailed review of the record reveals that the State did not present any evidence that Stowell would have been booked into jail or present any evidence of jail procedures. Accordingly, it did not establish that Stowell's possessions would have been searched and the key-ring pouch of methamphetamine inevitably discovered as part of the jail's inventory search procedure.

This case points out that (1) inevitable discovery is a matter that must be presented to the district court at the suppression hearing and should not be an appellate fall-back position and (2) inevitable discovery should mean "inevitable" not just "possible." Without evidence that shows that a certain procedure must occur (either by policy or strong habit-type evidence), discovery is not inevitable. So, if you are dealing with this kind of issue at a suppression hearing, be sure to ask whether there is a policy. If there is delve into it (i.e. get copy and put it in). If there is not, examine about whether there have ever been exceptions to the "inevitable" procedure. It may make or break the case.