                 This opinion is subject to revision before final
                        publication in the Pacific Reporter

                                 2016 UT 46


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                        CHELSE MARIE BRIERLEY,
                              Petitioner,
                                       v.
                               LAYTON CITY,
                                Respondent.

                              No. 20150760
                         Filed October 21, 2016

              On Certiorari from the Court of Appeals

                      Second District, Layton
                 The Honorable David R. Hamilton
                          No. 135605273

                                 Attorneys:
  Russell S. Pietryga, Mark W. Brown, Salt Lake City, for petitioner
      Gary R. Crane, Marlesse D. Jones, Layton, for respondent

    JUSTICE PEARCE authored the opinion of the Court, in which
       CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
          JUSTICE DURHAM, and JUSTICE HIMONAS joined.

   JUSTICE PEARCE, opinion of the Court:
                           INTRODUCTION
   ¶1 Two Layton City police officers investigating a hit-and-run
accident entered a private residence with neither permission nor a
warrant. While there, they discovered evidence linking Chelse Marie
Brierley to the accident. Brierley moved to suppress that evidence,
arguing Layton City (City) had obtained it in violation of her Fourth
Amendment rights. The City argued that the officers were in the
process of obtaining a search warrant at the time they entered the
house and that the evidence should therefore be admitted under the
inevitable-discovery exception to the exclusionary rule. The district
court granted Brierley’s suppression motion, concluding that the
                       BRIERLEY v. LAYTON CITY
                         Opinion of the Court


City had failed to demonstrate that it would have inevitably
discovered the challenged evidence by lawful means.
    ¶2 The City sought interlocutory review by the Utah Court of
Appeals, which reversed the district court’s ruling. See Layton City v.
Brierley, 2015 UT App 207, 357 P.3d 1018, cert. granted, 363 P.3d 523
(Utah 2015). The court of appeals evaluated the City’s inevitable-
discovery argument using four factors enunciated in United States v.
Souza, 223 F.3d 1197 (10th Cir. 2000). The court of appeals held that
the officers would have inevitably discovered the evidence resulting
from the warrantless search if they had obtained a lawful warrant
and reversed the district court’s suppression order. Brierley, 2015 UT
App 207, ¶ 23.
    ¶3 We granted Brierley’s petition for a writ of certiorari. We
conclude that the City failed to meet its burden of proving that we
should apply the inevitable-discovery exception in this case. We
reverse the decision of the court of appeals, affirm the district court’s
order granting Brierley’s suppression motion, and remand for
further proceedings.
                          BACKGROUND 1
    ¶4 On September 30, 2013, two City police officers received a
report of a hit-and-run accident. Dispatch informed the officers that
a blonde woman driving a black SUV had been spotted leaving the
scene of the accident. Dispatch provided the officers with the SUV’s
license plate number and the home address of the registered owner.
   ¶5 When Sergeants Joseph and Dixon arrived at the address,
they saw a black SUV parked in an open garage and a blonde
woman standing nearby. As the officers approached the garage, the
woman stepped out to greet them. In response to questions, the
woman identified herself as the housekeeper, denied that she had
been driving the SUV, and told the officers that she thought that the
homeowner’s daughter—Brierley—had pulled the car into the
garage.
   ¶6 The housekeeper also told the officers that she was afraid the
SUV might be on fire. At least one officer, Joseph, accompanied the
housekeeper into the garage to check on the vehicle. Joseph smelled


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   1 We take the background facts primarily from the district court’s
factual findings, which are not challenged on appeal.

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steam coming from the vehicle and saw that the front end was
damaged, but he concluded that there was no danger of combustion.
   ¶7 The officers further questioned the housekeeper, who related
that she had been inside the house when she heard a loud noise. As
she went to investigate, she saw Brierley come into the house
through the garage and go downstairs toward her bedroom. The
housekeeper told the officers that Brierley “looked like she was in a
bad way.” The housekeeper clarified that Brierley looked to be under
the influence of alcohol or drugs.
    ¶8 The housekeeper invited the officers to come inside the house
to speak with Brierley. The officers declined because, according to
Dixon’s testimony, they did not “feel that [they] had enough to
actually enter the residence at that time without any exigent
circumstances.” Joseph told the housekeeper that he needed to speak
with Brierley. The housekeeper went downstairs to see if she could
get Brierley to speak with the officers.
   ¶9 While the housekeeper was downstairs, Joseph entered the
backyard and banged on a window in an unsuccessful attempt to
make contact with Brierley. The officers then decided that they
needed legal advice on how to proceed. Dixon called a Layton City
Attorney and, apparently based on that conversation, the officers
decided that they needed to obtain a warrant.
    ¶10 The housekeeper testified that she returned from the
basement to the sound of the officers pounding on the front door.
She opened the door and told the officers that Brierley had told her
to tell them that Brierley was not at home. The officers then asked
the housekeeper if she could give them Brierley’s father’s phone
number so they could seek his permission to enter the home. The
housekeeper returned into the house to get the number and left the
front door open.
    ¶11 Dixon stepped through the open door and announced to the
housekeeper that no one would be allowed to leave. Dixon told the
housekeeper that she was welcome to let Brierley know that the
officers were in the process of obtaining a search warrant. The
housekeeper returned downstairs to speak with Brierley. Dixon
stayed inside.
   ¶12 While Dixon was speaking with the housekeeper, Joseph
walked to his motorcycle to retrieve his tablet to draft a search
warrant request. When Joseph returned to the front door, he saw
that Dixon had moved inside. Joseph joined Dixon in Brierley’s
home. Once inside, Joseph placed his tablet on a table and began

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drafting a warrant request. 2 While Joseph was typing the search
warrant application, Brierley came upstairs with the housekeeper.
Dixon asked Brierley to step outside to discuss the situation, and the
two went to the garage. While in the garage, Dixon obtained
evidence from Brierley, including incriminating statements, the
results of a blood-alcohol test, and information retrieved from a
driver license check.
   ¶13 The City charged Brierley with driving under the influence,
driving on a denied license, and leaving the scene of a property-
damage accident. Brierley moved to suppress all evidence
discovered after the officers entered the house, arguing that the
warrantless entry violated her Fourth Amendment rights. The City
argued that the inevitable-discovery exception to the exclusionary
rule applied because the officers were in the process of obtaining a
warrant when they entered the house.
   ¶14 The district court concluded that the inevitable-discovery
exception, which allows for the admission of illegally obtained
evidence if it would have inevitably been discovered absent the
police misconduct, did not apply in this case. The district court
ruled,
       Whether Sergeant Joseph’s warrant request would have
       actually been granted and whether the same evidence
       would have inevitably been discovered remains [too]
       speculative to justify application of the inevitable
       discovery doctrine. This Court concludes that to apply
       the inevitable discovery doctrine under the facts of this
       case would significantly weaken Fourth Amendment
       protections.
The district court also noted that application of the exception would
provide “no deterrent at all” to future warrantless entries. The
district court granted Brierley’s motion, ordering that “all evidence
obtained in this matter following the warrantless entry into
[Brierley’s] home” be suppressed.
   ¶15 The City sought interlocutory review of the district court’s
suppression order. The court of appeals granted the City’s petition.
See Layton City v. Brierley, 2015 UT App 207, ¶ 9, 357 P.3d 1018. On

_____________________________________________________________
   2The record does not reflect why the officers decided that they
should work on their warrant application inside the home.

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review, the court of appeals concluded that the City had established
the applicability of the inevitable-discovery exception to the
warrantless search. Id. ¶¶ 17–18. The court of appeals evaluated the
exception using four factors the Tenth Circuit Court of Appeals
enumerated in United States v. Souza, 223 F.3d 1197, 1204 (10th Cir.
2000). These factors examined (1) the steps the officers had taken
toward getting a warrant before entering; (2) the strength of the
probable cause showing; (3) whether officers eventually obtained a
warrant, albeit after the entry; and (4) whether officers “jumped the
gun” in an attempt to overcome a lack of probable cause. Brierley,
2015 UT App 207, ¶ 16 (citing Souza, 223 F.3d at 1204).
    ¶16 The court of appeals concluded that the first two factors
weighed in favor of the City; that the third factor weighed “against
the City, but not strongly”; and that testimony of the officers
suggested the fourth factor weighed in favor of the City. Id. ¶¶ 17–
20. “Taking these factors together,” the court of appeals concluded
that “the City met its burden to show by a preponderance that the
evidence would have been discovered by lawful means.” Id. ¶ 21.
Accordingly, the court of appeals reversed the district court’s
suppression order and remanded for further proceedings. Id. ¶ 23.
   ¶17 We granted Brierley’s petition for a writ of certiorari. We
reverse.
                      STANDARD OF REVIEW
    ¶18 On certiorari, we review the decision of the court of appeals,
not that of the district court, and we afford no deference to the court
of appeals’ decision. See State v. Strieff, 2015 UT 2, ¶ 12, 357 P.3d 532,
rev’d on other grounds, 136 S.Ct. 2056 (2016). “The correctness of the
court of appeals’ decision turns on whether that court accurately
reviewed the trial court’s decision under the appropriate standard of
review.” State v. Tripp, 2010 UT 9, ¶ 23, 227 P.3d 1251 (citation
omitted). “A trial court’s ruling on a motion to suppress is reviewed
for correctness, including its application of the law to the facts.” Id.
We review for correctness because the application of the
exclusionary rule presents a “law-like” mixed question that lends
itself to “consistent resolution by a uniform body of appellate
precedent.” Strieff, 2015 UT 2, ¶ 13 (citation omitted).
                              ANALYSIS
   ¶19 The Fourth Amendment to the United States Constitution
prohibits unreasonable searches of both persons and property. See
U.S. CONST. amend. IV; State v. Roberts, 2015 UT 24, ¶ 24, 345 P.3d
1226. “[P]hysical entry [into] the home is the chief evil against which

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the wording of the Fourth Amendment is directed.” 3 State v. Duran,
2007 UT 23, ¶ 6, 156 P.3d 795 (quoting United States v. U.S. Dist.
Court, 407 U.S. 297, 313 (1972)). “Accordingly, ‘searches and seizures
inside a home without a warrant are presumptively unreasonable,’
even when officers have probable cause to search.” Id. (quoting
Payton v. New York, 445 U.S. 573, 586 (1980)).
   ¶20 Courts have breathed life into the Fourth Amendment’s
protections by developing the exclusionary rule, which generally
requires suppression of evidence obtained in violation of
constitutional protections. See Mapp v. Ohio, 367 U.S. 643, 654–55
(1961). Nevertheless, evidence discovered as a result of an illegal
search or seizure may sometimes be admitted under various
exceptions to the exclusionary rule. “Three of these exceptions
[examine] the causal relationship between the unconstitutional act
and the discovery of evidence.” Utah v. Strieff, 136 S.Ct. 2056, 2061
(2016). These “three closely related but analytically distinct
exceptions” are (1) the independent-source exception, (2) the
inevitable-discovery exception, and (3) the attenuation exception.
United States v. Terzado-Madruga, 897 F.2d 1099, 1113 (11th Cir. 1990).
Brierley’s case involves the inevitable-discovery exception, which
permits the admission of evidence that would have inevitably been
lawfully discovered notwithstanding its actual discovery as the
result of an unconstitutional search or seizure. See State v. Topanotes,
2003 UT 30, ¶ 14, 76 P.3d 1159. 4


_____________________________________________________________
   3 This respect for the home predates our federal constitution and
hearkens back to our English common-law roots. In the words of
William Pitt the Elder,
      The poorest man may in his cottage bid defiance to all
      the forces of the Crown. It may be frail, its roof may
      shake; the wind may blow through it; the storms may
      enter, the rain may enter,—but the King of England
      cannot enter; all his forces dare not cross the threshold
      of the ruined tenement.
William Pitt, the Elder, Earl of Chatham, Speech in the House of
Lords (1763).
   4 It bears emphasizing that the parties have argued only about
inevitable discovery. We are not asked to opine on whether any
other exception might apply.

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    ¶21 The United States Supreme Court formally recognized the
inevitable-discovery exception in Nix v. Williams, 467 U.S. 431 (1984).
In Nix, a police detective questioned the defendant in violation of his
right to counsel. In response to the questioning, the defendant led
police to the body of his deceased victim. Id. at 435–36. Despite the
constitutional violation, the Court concluded that evidence
regarding the body should not be suppressed because at the time of
the illegal questioning “search parties were approaching the actual
location of the body” and would have inevitably located it without
reliance on the defendant’s statements. Id. at 448–50. The Court held
that when “the evidence in question would inevitably have been
discovered without reference to the police error or misconduct, there
is no nexus sufficient to provide a taint and the evidence is
admissible.” Id. at 448.
    ¶22 The Supreme Court reasoned that the competing public
interests of “deterring unlawful police conduct and . . . having juries
receive all probative evidence of a crime are properly balanced by
putting the police in the same, not a worse, position [than] they would
have been in if no police error or misconduct had occurred.” Id. at
443 (emphasis added). When evidence would have inevitably been
discovered regardless of any police misconduct, it follows that the
“police would have obtained that evidence if no misconduct had
taken place.” Id. at 444. The inevitable-discovery exception is
therefore necessary to “ensure[] that the prosecution is not put in a
worse position simply because of some earlier police error or
misconduct.” Id. at 443.
    ¶23 Since Nix, this court has analyzed the inevitable-discovery
exception on a handful of occasions, finding in each instance that the
State had not demonstrated that the evidence would have inevitably
been discovered. In State v. Topanotes, 2003 UT 30, 76 P.3d 1159, we
concluded that the exception did not apply where an officer illegally
detained a woman, conducted a warrants check on her during the
illegal detention, and then arrested and searched her after the check
revealed an outstanding arrest warrant. See id. ¶¶ 19–21. In State v.
Worwood, we rejected the State’s argument that an officer would
have conducted field sobriety tests at the scene of his initial
encounter with a suspected drunk driver if the officer had not
instead chosen to illegally transport the suspect to the officer’s
nearby house to administer the tests. 2007 UT 47, ¶¶ 5, 48–49, 164
P.3d 397. And in State v. Tripp, we affirmed a court of appeals ruling
that a warrantless blood draw was inadmissible despite the State’s
argument that had the officer not acted without a warrant, he


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inevitably “would have taken the necessary steps to secure a
warrant.” 2010 UT 9, ¶ 59, 227 P.3d 1251.
   ¶24 Our cases involving the inevitable-discovery exception have
developed some guidelines for its application. We have rejected the
proposition that the exception “can be satisfied only by an ‘entirely
independent, alternate, intervening, appreciably attenuated
investigation aside from the tainted investigation.’” State v. James,
2000 UT 80, ¶ 15, 13 P.3d 576 (emphasis added) (citation omitted).
However, independence remains a “crucial element” of the
exception. Topanotes, 2003 UT 30, ¶ 16. While there must not
necessarily be an entirely independent investigation, “there must be
some ‘independent basis for discovery,’” id. (alteration in original)
(quoting United States v. Boatwright, 822 F.2d 862, 865 (9th Cir. 1987)),
and “the investigation that inevitably would have led to the evidence
[must] be independent of the constitutional violation,” id. (quoting
United States v. Larsen, 127 F.3d 984, 987 (10th Cir. 1997)).
Furthermore, “the fact or likelihood that makes the discovery
inevitable [must] arise from circumstances other than those disclosed
by the illegal search itself.” Topanotes, 2003 UT 30, ¶16 (alteration in
original) (quoting Boatwright, 822 F.2d at 864–65).
    ¶25 In addition, we have declined to adopt a formal test “to
elaborate upon or elucidate the Nix standard, by adopting more
specific requirements.” James, 2000 UT 80, ¶ 16. Thus, “the
appropriate standard governing the inevitable discovery exception”
remains what Nix enunciated: “whether ‘the prosecution can
establish by a preponderance of the evidence that the information
ultimately would have been discovered by lawful means.’” Id.
(quoting Nix v. Williams, 467 U.S. 431, 444 (1984)); see also State v.
Tripp, 2010 UT 9, ¶ 56, 227 P.3d 1251 (“The inevitable discovery
doctrine admits unlawfully obtained evidence if the police would
have, in spite of the illegality, discovered the evidence by some other
legal means.”).
   ¶26 The City argues that evidence discovered after the
warrantless entry into Brierley’s home falls within the inevitable-
discovery exception because the officers would have obtained the
same evidence had they obtained a warrant. The possibility that a
police officer would have obtained a warrant if he had not chosen to
act without one is quite different than the circumstances—an
ongoing, independent search—that led the United States Supreme
Court to adopt the inevitable-discovery exception in Nix. In fact, this
court has characterized arguments similar to the City’s as “[i]f we
hadn’t done it wrong, we would have done it right.” Topanotes, 2003
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UT 30, ¶ 19 (alteration in original) (quoting United States v. Thomas,
955 F.2d 207, 210 (4th Cir. 1992)); see also Tripp, 2010 UT 9, ¶ 59. Such
arguments, we have observed, are “far from compelling.” Topanotes,
2003 UT 30, ¶ 19.
    ¶27 Other courts have, nevertheless, extended the inevitable–
discovery exception to situations where government agents have
acted without a warrant but the government argues that officers
would have procured such a warrant absent the police illegality. In
some instances, courts have found that such a showing can satisfy
the inevitable-discovery exception. See, e.g., United States v. Souza, 223
F.3d 1197, 1206 (10th Cir. 2000) (applying the exception after
concluding that “but for [one agent] opening the package, [a
different agent] would have obtained a warrant and the evidence
would have been discovered”). In other instances, courts have
viewed such arguments skeptically. See, e.g., United States v. Griffin,
502 F.2d 959, 961 (6th Cir. 1974) (per curiam) (“[P]olice who believe
they have probable cause to search cannot enter a home without a
warrant merely because they plan subsequently to get one. . . . Any
other view would tend in actual practice to emasculate the search
warrant requirement of the Fourth Amendment.”).
    ¶28 The disparate results reflect the tension between two
competing—and compelling—policies. The inevitable-discovery
exception promotes the “interest of society in deterring unlawful
police conduct and the public interest in having juries receive all
probative evidence of a crime.” Nix v. Williams, 467 U.S. 431, 443
(1984); supra, ¶ 22. The United States Supreme Court has opined that
these policies are properly balanced when the police are placed “in
the same, not a worse, position [than] they would have been in if no
police error or misconduct had occurred.” Id. But it becomes difficult
to strike the precise balance in cases where the police have probable
cause to seek a warrant but act without one. In that class of cases, a
rule that would “excuse the failure to obtain a warrant merely
because the officers had probable cause and could have inevitably
obtained a warrant would completely obviate the warrant
requirement of the fourth amendment.” United States v. Echegoyen,
799 F.2d 1271, 1280 n.7 (9th Cir. 1986).
   ¶29 Courts have responded to this tension by attempting to
ensure that the exception is available only when the government can
forward evidence that the police actually would have lawfully
discovered the same evidence had they obtained a warrant, not just
that they had probable cause to obtain the warrant. See, e.g., Souza,
223 F.3d at 1204 (“The key issue in these cases, one of probability, is

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                          Opinion of the Court


how likely it is that a warrant would have been issued and that the
evidence would have been found pursuant to the warrant.”).
   ¶30 Here, the court of appeals followed this approach and
viewed the case in light of the four factors Souza discussed. Souza
evaluated inevitability by examining
       [1] the extent to which the warrant process has been
       completed at the time those seeking the warrant learn
       of the search; [2] the strength of the showing of
       probable cause at the time the search occurred;
       [3] whether the warrant ultimately was obtained, albeit
       after the illegal entry; and [4] evidence that law
       enforcement agents “jumped the gun” because they
       lacked confidence in their showing of probable cause
       and wanted to force the issue by creating a fait
       accompli.
Layton City v. Brierley, 2015 UT App 207, ¶ 16, 357 P.3d 1018
(alterations in original) (quoting Souza, 223 F.3d at 1204). The court of
appeals concluded that, “[t]aking these factors together,” the City
had established inevitability by a preponderance of the evidence. Id.
¶ 21.
    ¶31 We decline to adopt the Souza factors as a test to evaluate
claims that police would have inevitably discovered evidence by
lawfully obtaining a warrant. 5 Instead, we resort to Nix’s
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   5  We acknowledge that the court of appeals expressly stated that
it was not adopting Souza as a formal test. See Layton City v. Brierley,
2015 UT App 207, ¶ 16, 357 P.3d 1018 (“Although we do not formally
adopt this test, we find it useful to our analysis in this case.”).
However, we know that in practice, identified factors have a way of
evolving into formal tests through their repeated application. See,
e.g., State v. Lucero, 2014 UT 15, ¶ 32, 328 P.3d 841 (explaining that the
probative value of evidence must be balanced against its prejudicial
effect under rule 403 of the Utah Rules of Evidence and not merely
under “the limited list of considerations outlined in [State v.]
Shickles,” 760 P.2d 291 (Utah 1988)). As a hedge against that result,
we expressly disclaim the use of the Souza factors as a test. We
consider this caution particularly necessary in this instance as the
Souza factors, if they are weighed and balanced against each other,
possess the potential to allow a strong showing of probable cause to
swallow the other factors and distract a reviewing court from
                                                          (continued . . .)
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requirement that the prosecution “establish by a preponderance of
the evidence that the information ultimately would have been
discovered by lawful means.” State v. James, 2000 UT 80, ¶ 16, 13 P.3d
576 (quoting Nix, 467 U.S. at 444). In this case, then, the City must
show that Joseph and Dixon would have sought and obtained a
warrant and that the same evidence would have been discovered
after receiving that warrant. Evaluating the City’s inevitable-
discovery argument under the appropriate Nix standard, we reverse
the decision of the court of appeals. We agree with the district court
that the City’s arguments rely too heavily on speculation.
   ¶32 Here, the City argued that if the officers had not entered the
house, a warrant would have issued and the officers would have
conducted a legal search. To succeed on this particular theory, the
City first needed to demonstrate that the police would have sought
and obtained a warrant. 6 Parties have, at times, prevailed on this
theory. For example, in United States v. Christy, an FBI agent had
developed probable cause that the defendant was involved in the
disappearance and sexual abuse of a sixteen-year-old girl. 739 F.3d
534, 537–38 (10th Cir. 2014). Before the agent could obtain a warrant
to search the defendant’s residence, two sheriff’s deputies sent to

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focusing on the probability that officers would actually have
uncovered the same evidence legally.
   6 At least one jurisdiction has adopted a bright-line rule requiring
the prosecution to demonstrate that officers have taken concrete
steps to obtain a warrant before it will apply the inevitable-discovery
exception. See Rodriguez v. State, 187 So. 3d 841, 849 (Fla. 2015) (“We
conclude that permitting warrantless searches without the
prosecution demonstrating that the police were in pursuit of a
warrant is not a proper application of the inevitable discovery
rule.”). We decline to adopt such a bright-line rule because we can
envision instances where the state might demonstrate that evidence
would have been lawfully discovered without a warrant. For
example, some courts have concluded that evidence would have
been discovered by lawful means when the government proved that
a routine inventory search would have uncovered the evidence. See,
e.g. United States v. Johnson, 777 F.3d 1270, 1277 (11th Cir. 2015);
United States v. Pritchett, 749 F.3d 417, 437 (6th Cir. 2014). But because
the City argues only that officers would have inevitably entered
Brierley’s home with a warrant, we confine our analysis to whether
the City proved that contention.

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check on the residence entered it without a warrant. Id. at 538. The
reviewing appellate court concluded that the investigating officer
“would have successfully obtained a warrant independent of the
illegal search [by two other deputies].” Id. at 543. Similarly, in Souza,
one agent was in the process of getting a warrant to search a package
when another agent opened the seized package. United States v.
Souza, 223 F.3d 1197, 1205–06 (10th Cir. 2000). The court concluded
that “but for [one agent] opening the package, [a different agent]
would have obtained a warrant and the evidence would have been
discovered.” Id. at 1206.
    ¶33 Unlike the prosecutors in Christy and Souza, the City did not
argue that an officer other than those who violated the Fourth
Amendment would have obtained a warrant. Instead, the City
attempted to meet its burden with evidence that Joseph and Dixon
intended to obtain a warrant to enter the Brierley residence and had
taken significant steps toward that end. The City argued that, despite
having reason to believe that the driver in the hit-and-run accident
was inside the home, the officers declined to enter when the
housekeeper initially invited them in because they recognized their
obligation to procure a warrant before entering the home. They
contacted a city attorney to discuss the situation. After that
conversation, one of the officers retrieved his tablet from his
motorcycle to fill out a warrant application. The City contends this
demonstrates that the officers would have eventually obtained a
warrant had they not entered the home illegally.
    ¶34 We disagree. If, while the officers were outside the home,
some third officer had appeared on the scene and burst into the
home without a warrant, we could hypothesize that absent the third
officer’s actions, Joseph and Dixon would have stayed outside while
they completed and submitted their warrant application. But there
was no third officer or anything else that could allow a court to
conclude that the officers would have done anything differently than
what they actually did. The City cannot meet its burden by
speculating about what Joseph and Dixon might have done if they
had not entered the home without a warrant because we know what
they actually did. When presented with the question of whether they
should wait to get a warrant before entering the home, they walked
in without a warrant.
    ¶35 “For courts confidently to predict what would have
occurred, but did not actually occur, there must be persuasive
evidence of events or circumstances apart from those resulting in
illegal police activity that would have inevitably led to discovery.”
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State v. Topanotes, 2003 UT 30, ¶ 16, 76 P.3d 1159. Although we have
not required parties advocating inevitable discovery to point to a
wholly separate investigation, we do require that they forward
evidence sufficient to support a conclusion that but for the illegal
search something different would have happened and that the
“something different” would have inevitably resulted in the
discovery of the same evidence by lawful means. Here, the City
presented no evidence of any other investigation, any routine
procedure, or any other officers working on the matter. The City is
left to argue that Joseph and Dixon would have obtained the warrant
before entering if they had not done the exact opposite. In other
words, the “something different” the City offers consists entirely of
the discredited argument that the officers “would have done it right”
if they “hadn’t done it wrong.” See id. ¶ 19 (citation omitted); see also
State v. Tripp, 2010 UT 9, ¶ 59, 227 P.3d 1251 (affirming the court of
appeals’ conclusion that blood draw evidence was not saved by the
inevitable-discovery exception where police had “threatened to seek
a warrant, [but] took no steps whatsoever to obtain one”).
    ¶36 Although the City’s inevitable-discovery argument fails
solely because the City cannot show that the officers would have
sought and obtained a warrant, we are also not convinced a warrant
would have ultimately revealed all of the same evidence the officers
uncovered as a result of the warrantless entry. Nix requires a
showing that the evidence subject to the suppression motion “would
have been discovered by lawful means”—in this case, the
hypothetical warrant. 467 U.S. at 444. As a practical matter, this
requires an examination of the nature of the evidence and the
likelihood that it would still be discovered after a warrant could be
lawfully procured.
    ¶37 When police have lawfully secured an inanimate object,
such as a package, we can in most instances conclude with some
certainty that its contents would not have changed in the time it
would have taken police to obtain a warrant. See, e.g., Souza, 223 F.3d
at 1206 (“[T]he package was secured by the officers and there was no
chance that it would not still be there when the warrant actually was
issued.”). When the evidence has not been secured and faces the
possibility of human tampering, or any other mechanism of change,
we may be less certain that the evidence would not have changed in
the time it would have taken to secure a warrant.
   ¶38 And when the evidence turns on an individual’s reaction to
an illegal search, we can be even less certain that the police would
have obtained identical evidence after obtaining a warrant. As we

                                   13
                       BRIERLEY v. LAYTON CITY
                         Opinion of the Court


recognized in Topanotes, “[c]ases that rely upon individual behavior
as a crucial link in the inevitable-discovery chain, particularly when
that behavior is heavily influenced by the illegality that did occur,
rarely sustain an inevitable discovery theory.” 2003 UT 30, ¶ 20. In
Topanotes, we found “the assumption that Topanotes would have
waited for the police to check for warrants and arrest her with heroin
in her possession even if she had not been unlawfully detained” to
be “most unrealistic.” Id. Other courts have made similar
observations. For example, the Third Circuit Court of Appeals has
noted,
       While we know of no articulation of the inevitable
       discovery doctrine that restricts its application to
       physical evidence, and we are not prepared in this case
       to enunciate such a condition, it is patent why cases
       have generally, if not always, been so limited. A
       tangible object is hard evidence, and absent its removal
       will remain where left until discovered. In contrast, a
       statement not yet made is, by its very nature,
       evanescent and ephemeral. Should the conditions
       under which it was made change, even but a little,
       there could be no assurance the statement would be the
       same.
United States v. Vasquez De Reyes, 149 F.3d 192, 195–96 (3d Cir. 1998).
    ¶39 The City has offered nothing more than a bare assertion that
Brierley’s testimony and blood-alcohol test would have been the
same had they awaited a warrant. We cannot say with confidence
that Brierley’s actions were not influenced by her knowledge that
police had entered her home. Nor can we say that her actions and
reactions would have been the same had the officers taken the time
to obtain a warrant. But we can say with confidence that the City has
not met its burden of demonstrating that the evidence would have
been the same had the officers waited for a warrant.
    ¶40 The City has not established that the evidence against
Brierley would have inevitably been discovered had the officers
obtained a warrant because it has not established that the officers
would have sought and obtained a warrant absent the unlawful
entry and that such a warrant would have revealed the same
evidence against Brierley. Therefore, we reverse the court of appeals’
ruling and reinstate the district court’s order suppressing the
evidence.


                                   14
                        Cite as: 2016 UT 46
                       Opinion of the Court

                          CONCLUSION
    ¶41 The prosecution, in some instances, can meet the burden of
establishing the inevitable-discovery exception by demonstrating
that officers would have sought and obtained a warrant. Here, the
record supports the district court’s determination that the City’s
evidence was too speculative to establish inevitable discovery, and
the court of appeals erred by concluding that the exception applies.
We therefore reverse the court of appeals, reinstate the district
court’s suppression order, and remand this matter for further
proceedings.




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