                                                            2016 WI 56

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2014AP2238-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Appellant,
                             v.
                        Mastella L. Jackson,
                                  Defendant-Respondent-Petitioner.

                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                         (Reported at 363 Wis. 2d 554, 866 N.W.2d 768)
                                   (Ct. App. 2015 – Published)
                                      PDC No.: 215 WI App 49

OPINION FILED:          July 1, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          January 25, 2016

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Outagamie
   JUDGE:               Mark J. McGinnis

JUSTICES:
   CONCURRED:
   DISSENTED:           ABRAHAMSON, J. and BRADLEY, A. W., J. dissent
                        (Opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-respondent-petitioner there were briefs
by   Andrew R. Hinkel, assistant state public defender.                    Oral
argument by Andrew R. Hinkel.




       For      the    plaintiff-appellant   the   cause   was   briefed     by
Jeffrey J. Kassel, assistant attorney general, with whom on the
brief was Brad D. Schimel, attorney general.               Oral argument by
Luke N. Berg, deputy solicitor general.
                                                                          2016 WI 56
                                                                    NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.   2014AP2238-CR
(L.C. No.   2012CF147)

STATE OF WISCONSIN                              :            IN SUPREME COURT

State of Wisconsin,

            Plaintiff-Appellant,
                                                                       FILED
      v.
                                                                    JUL 1, 2016
Mastella L. Jackson,
                                                                     Diane M. Fremgen
            Defendant-Respondent-Petitioner.                      Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.                   Affirmed.



      ¶1    DAVID T. PROSSER, J.          This is a review of a published
decision    of   the     court   of   appeals   reversing      an    order     by   the

Outagamie County Circuit Court suppressing physical evidence as

"fruit of the poisonous tree."1

      ¶2    The case arises out of a 2012 stabbing death at a

hotel in the Town of Grand Chute, west of Appleton.                             Police

suspected that Mastella Jackson (Jackson), the victim's wife,


      1
       State v. Jackson, 2015 WI App 49, 363 Wis. 2d 554, 866
N.W.2d 768.
                                                                   No.         2014AP2238-CR



might have been involved in the death, so they brought her to

the Grand Chute Police Department and interrogated her for more

than six hours without giving her a Miranda warning.                                 Jackson

made incriminating statements during the interrogation.                              At the

end of the interrogation, Jackson agreed to go with detectives

to   her    residence,          where    officers    were      already    conducting      a

search pursuant to a search warrant.                       There, she revealed the

location      of    the    knife    used     in   the     stabbing   and       the   bloody

clothing she was wearing when she left the hotel.

      ¶3      After       the    State     charged      Jackson   with     first-degree

intentional        homicide,       she     moved     to     suppress     all      evidence

obtained in violation of her constitutional rights.                        The circuit

court      excluded       not    only    Jackson's      statements       but     also   the

physical evidence obtained from her house, which the circuit

court deemed fruit of the poisonous tree.                       The court of appeals

reversed as to the physical evidence, concluding that the State

had demonstrated that the officers searching the house would

inevitably have discovered the knife and clothing during their
search.

      ¶4      In Nix v. Williams, 467 U.S. 431 (1984), the Supreme

Court    of   the     United      States    approved      an    inevitable       discovery

exception to the exclusionary rule.                     This court has not applied

the inevitable discovery exception since State v. Weber, 163

Wis. 2d 116, 471 N.W.2d 187 (1991).                     Since Weber, however, the

court of appeals has decided a series of inevitable discovery

cases.      See State v. Avery, 2011 WI App 124, 337 Wis. 2d 351,
804 N.W.2d 216; State v. Lopez, 207 Wis. 2d 413, 559 N.W.2d 264


                                              2
                                                                       No.         2014AP2238-CR



(Ct.   App.      1996);     State    v.   Schwegler,             170   Wis. 2d 487,         490

N.W.2d 292 (Ct. App. 1992).

       ¶5     Jackson     now     urges   us          to    reassess     the        inevitable

discovery doctrine.              She argues that the State should not be

able   to   rely    on    the     doctrine       to    defeat      exclusion        where   the

police intentionally engaged in the misconduct that provides the

basis for exclusion.

       ¶6     Accordingly, we must determine whether the inevitable

discovery exception to the exclusionary rule applies only when

the State proves the absence of bad faith by the officers who

committed the constitutional violation.                          Like the Supreme Court

of the United States, we conclude that the exception does not

include such a requirement.               Furthermore, because in this case

we reexamine inevitable discovery for the first time since our

decision    in     Weber,    we    also   review           the   doctrine's         analytical

framework.       We then apply the doctrine to the facts in this case

and conclude that the State has proven by a preponderance of the

evidence    that     officers       inevitably          would     have       discovered     the
physical    evidence        in    dispute.            Consequently,          we    affirm   the

decision of the court of appeals and remand to the circuit court

for further proceedings consistent with this opinion.

                             I.     FACTUAL BACKGROUND

                             A.    Murder at the Hotel

       ¶7     At about 1:25 in the afternoon on February 21, 2012,

officers from the Grand Chute Police Department were dispatched

to the Road Star Inn located west of Appleton.                                    The officers
were advised that a male had been found in Room 114 lying face


                                             3
                                                                No.      2014AP2238-CR



down and covered in blood.            When officers entered Room 114, they

observed a bloody phone receiver detached from the phone near

the door.     Large blood smears covered the far wall, beyond the

beds.     Below the smears, officers found Derrick Whitlow lying

prone against the wall.           He had already been pronounced dead by

paramedics.      Whitlow had experienced significant injuries.                       An

autopsy     performed      the    next      day    showed     that     he    suffered

approximately     25      stab   wounds.          An    eight-inch     knife      sheath

bearing the word "Winchester" lay on the floor next to his body.

    ¶8      An   employee        on   the       hotel's     cleaning     staff     told

officers that she was doing the laundry in Room 111 between 1:00

and 1:30 p.m.       She saw a person wearing a gray hooded sweatshirt

knock on the door to Room 114.                  Because the sweatshirt's hood

covered the visitor's head and face, the cleaning employee could

not tell whether the person was male or female.                        After someone

inside Room 114 let the person in, the employee heard a male

voice screaming for help.             The employee also heard sounds that

she thought were a person being hit.                   She went to her manager to
get help, and she subsequently saw the person in the sweatshirt

leaving the hotel.

    ¶9      Based    on    the   cleaning       employee's     report,      the    hotel

manager entered Whitlow's room.                 He found Whitlow surrounded by

blood and immediately called 911.                  When the officers arrived,

the manager informed them that Whitlow had been staying at the

hotel for a few days and that Whitlow's ten-year-old son, S.J.,

was staying at the hotel with him.                     The manager also indicated




                                            4
                                                                  No.         2014AP2238-CR



to police that he understood Whitlow was having problems with

his wife.

       ¶10      A hotel guest staying in Room 115 provided additional

information to police about the afternoon's events.                                From his

room, he heard a female voice yelling.                      Thinking the voice was

that of the cleaning employee, he walked down the hallway to

investigate.          After seeing the cleaning employee and realizing

that the yell came from someone else, he heard a loud scream

near Room 114, followed by a male voice yelling "help me, help

me."       The guest then went to the manager's office to report the

incident.        Aside from the guest's comment about hearing a female

voice      yelling,     neither    the     guest     nor    the   manager          nor   the

cleaning employee identified the sex or race of the person in

the hooded sweatshirt.

                 B.    Officers Contact Jackson and R.L.D.J.

       ¶11      Shortly after 2 p.m., detectives from the Grand Chute

Police      Department     began       investigating    the    whereabouts          of   the

child alleged to be staying with Whitlow.                      Unsure whether they
might      be   dealing    with    a    missing     child    case,      the   detectives

attempted       to    locate   Jackson,      whom    they     believed        to    be   the

child's mother.           They had received information indicating that

Jackson resided at an address on Fourth Street in Appleton and

that they might also find her at Harbor House.2                         The detectives

       2
       Harbor House states its mission as "lead[ing] a community-
wide partnership in the prevention of domestic violence and
abuse, and to offer safety and support to diverse families in
crisis."                                                  History
of Harbor House, Harbor House, http://www.harborhouseonline.org/
                                                      (continued)


                                            5
                                                                           No.         2014AP2238-CR



first went to Harbor House; there, they learned that Jackson had

stayed overnight but left around 11 a.m.

       ¶12       Around       2:30    p.m.,     officers        informed         the    detectives

that a secretary at a local elementary school had confirmed S.J.

was     present         at    school     but        his    older      brother,         11-year-old

R.L.D.J.,         was         absent.           R.L.D.J.'s          whereabouts           remained

undetermined as the detectives proceeded from Harbor House to

the Fourth Street address.                     They arrived between 2:30 and 3:00

p.m.     Outside the residence, the detectives met with an officer

from the Appleton Police Department who said he had not seen any

people coming or going from the house.                          Officers remained at the

Fourth       Street          location    to     observe         the      premises,        and    the

detectives left to investigate another address associated with

Jackson.

       ¶13       An   officer        arriving       at    the   Fourth     Street        residence

around 3:55 p.m. noticed the door to the residence begin to

open.        A    man     emerged       from    inside.            The   officer        introduced

himself to the man, who was working on the door's lock and
identified himself as the building's landlord.                                     He told the

officer that Jackson had asked him to change her locks and that

she    was    currently         present        in    the    house.        Because        the    door

remained         ajar    as     the    landlord          worked,    the    officer        observed

Jackson and R.L.D.J. through the partially open door.                                           Upon

history.html (last visited June 23, 2016).       Harbor House's
shelter   program   provides  a   safe   space  and    emergency
transportation for victims of domestic violence in the Appleton
area.




                                                    6
                                                               No.      2014AP2238-CR



seeing Jackson, the officer asked her to come to the door to

speak with him outside.          The detectives, returning to the Fourth

Street residence shortly after 4 p.m., joined the officer at the

door.      Jackson   gave       the    detectives     consent     to    search     the

residence to determine whether there were other people inside,

and their search confirmed that R.L.D.J. was present and safe.

     ¶14    Following     the    search,       the   detectives      spoke   briefly

with Jackson outside before asking her to come with them to the

Grand Chute Police Department.            The officers patted her down and

then drove her to the police department in the back seat of a

squad car.     In a separate car, officers also brought R.L.D.J. to

the department.         Jackson and R.L.D.J. left the residence with

officers around 4:30 in the afternoon.3

                          C.    R.L.D.J.'s Interview

     ¶15    Officers began interviewing R.L.D.J. around 5:30 p.m.,

approximately an hour after he arrived at the department.                          An

initial     interview    with     R.L.D.J.       lasted    between      60   and   90

minutes, after which he and S.J. ate dinner together at the
police station.      A second interview ensued between 8 and 9 p.m.

following a 60- to 90-minute dinner break.

     ¶16    During      the     second        interview,    officers         informed

R.L.D.J. about his father's death and pressed him for answers

regarding     his    mother's         whereabouts     during      the    afternoon.

R.L.D.J. emphatically denied repeated suggestions that he went

     3
       Separately, an officer brought S.J. from his school to the
police department between approximately 4:00 and 4:15 p.m.




                                          7
                                                                         No.         2014AP2238-CR



to the Road Star Inn that day.                        When R.L.D.J. asked whether his

mother would go to jail, officers told him that she would not.

Over and over, the officers asked R.L.D.J. to tell them the

truth and to "do the right thing" to help his father.

       ¶17    Eventually, R.L.D.J. began providing information about

the    afternoon.           He      acknowledged         that     his    mother        left     the

residence      for     10      to    20     minutes      at     some    point     during        the

afternoon while he played video games.                           According to R.L.D.J.,

his mother was angry with Whitlow because she discovered he had

thrown    away       family       photographs          and     other    mementos.             Still

playing      video    games         when    his    mother      returned        home,    R.L.D.J.

heard the sound of a zipper and heard his mother take a shower

immediately upon her arrival.                      R.L.D.J. further indicated that

his mother wore different clothes after her shower than she had

worn   earlier       in     the      day.         He   also     disclosed       that     Jackson

instructed      him       not     to    tell      anyone       that    she     had     left     the

residence that afternoon.

                            D.      Jackson's Interrogation
       ¶18    Jackson       waited         alone       for    nearly     two     hours     in    a

separate      room     before          detectives        began        questioning        her    at

6:24 p.m.        One      of     the    detectives           opened    the     questioning       by

telling Jackson that she was not under arrest, saying, "You

know, you're not under arrest or, you know, you're free to go,

you know."       When Jackson asked for clarification, the detective

explained, "We just want to talk to you about some stuff that's

going on.       We're investigating a couple things, OK, but like I
said you're not under arrest or anything like that.                                      We just


                                                  8
                                                             No.        2014AP2238-CR



want to talk to you and get some information to help us out,

OK?"

       ¶19   The detectives began by questioning Jackson about the

hours leading up to Whitlow's death.             Jackson explained that she

had taken R.L.D.J. to spend the night at Harbor House after

hearing noises outside their residence.             She mentioned that she

had neither slept nor eaten much in recent days.

       ¶20   Gradually, the questioning transitioned to Jackson's

relationship        with   Whitlow.    In    response   to    the       detectives'

questions about the effect that stress had recently had upon her

appetite and sleep, Jackson told them, "[M]y um husband, we've

just been havin issues, um in a sense . . . ."                She claimed that

she    had   experienced     psychological    mistreatment         at   his    hands.

When the detectives asked whether "anything . . . happened in

the last few days that has made this worse," she explained he

had been with her at the house until four days before his death

"cuz [she] was taking care of him" while his broken leg healed.4

After the two of them got into an argument, however, he asked
her    to    take    him   to   the   Appleton   police      station,         and   he

eventually rented a room at the Road Star Inn.                          Because of

Whitlow's broken leg, S.J. went to stay at the hotel to help his

father.
       4
       A few weeks before Whitlow's death, a vehicle operated by
Jackson struck Whitlow, who suffered a broken leg as a result.
Although officers from the Appleton Police Department were aware
of this previous incident on the day of Whitlow's death, the
affidavit in support of the search warrant for Jackson's
residence made no mention of it.




                                        9
                                                        No.    2014AP2238-CR



    ¶21    Around      6:54   p.m.,   the   conversation   moved   back    to

Jackson's activities after leaving Harbor House.              Jackson told

the detectives that she had gone to the hospital for a medical

appointment but decided not to go inside because she arrived

late and expected that the doctor would be unable to see her.

Although she indicated that after going to the hospital she

returned home and did not leave again, the detectives pressed

her for more information about her afternoon.           As the detectives

asked whether she was "sure" that she had not left the house

again until officers arrived to speak with her, she responded,

    No, I, I mean I, like, the question that [you're] all
    asking to me, I'm like, I guess I'm still just
    exhausted from not having sleep and haven't eaten and
    I'm sitting here and I want a ciggy and that's the
    last, that the thing that's really bothering me the
    most like I really want a cigarette and my stomach is
    starting to hurt, well it's been hurting but it's
    getting worser, and I'm talking to y'all and it's
    like, ahh, I just, I don't know, can I, can we do this
    another time?
(Emphasis added.)       Shortly thereafter, she left the room at 7:04

accompanied by the detectives for a cigarette break.

    ¶22    Jackson returned from the break at 7:12 p.m., and she

began conversing with the detectives again at 7:22 p.m.              Video

of the interrogation shows her sitting in her chair, doubled

over in apparent pain while clutching her stomach as she waited

for the detectives to return.          When the detectives entered the

room,   they   asked    whether   Jackson    needed   assistance   for    her

obvious pain and discomfort.          Jackson's response generated the
following exchange:



                                      10
                                                        No.      2014AP2238-CR


         [Jackson]: Yeah, I'm be fine, I'm just ready to
    go, I'm sleepy.   Can I leave and we do this another
    time[?]

         [Detective Brad Kuehl]: Give me just one second,
    OK, just give me one second and I'll be right back
    with you.

            [Jackson]: OK[.]

            (7:23 p.m.) ([Det. Kuehl] leaves the room)

         [Jackson]: I'm still thirsty I want some water
    but it's gonna hurt[.]

            (7:23:51 p.m.) ([Det. Kuehl] re-enters the room)

         [Det. Kuehl]: I just got a couple things I want
    to ask you real quick and then we'll try and get you
    on your way here, OK?

         [Det. Kuehl]: Today when you were, when you left
    the Harbor House, is there anything else you can
    remember about anything else that you might have
    done[?]

         [Jackson]: My tummy, I can't do this right now,
    my stomach hurts, nothing else was done.
(Emphasis    added.)   After   the    detectives   discussed       acquiring

medication   for   Jackson   from    her   residence,   another     exchange

occurred:

         [Det. Kuehl]: I know you're, I you're kind of
    having some kind of stomach pains.  We're gonna try
    and get you some . . .

         [Jackson]: Can I go home right now, please, I
    don't want to talk[.]

            [Detective Scott Callaway enters the room]

         [Det. Callaway]: Do you know where               your   purse
    [with the medication] is in the house[?]

         [Jackson]: Yeah it's on my bed, can I go with
    you, can I just go home or do I have to stay[?]



                                     11
                                                                No.      2014AP2238-CR


            [Det. Callaway]: Let me just make a phone call
       quick and I'll get right back to you[.]

              [Jackson]: OK, OK.
(Emphasis added; ellipsis in original.)                This exchange occurred

at 7:25 p.m.

       ¶23    The questioning continued for a few more minutes until

just after 7:30 p.m., when the detectives left the interrogation

room with Jackson.          They took her back to her residence, where

she ingested prescription medication for her pain.                       On the way
back to the police department, they stopped at a Burger King to

pick up food for her.            Just after 8:15 p.m., Jackson returned to

the interview room at the police department, and one of the

detectives resumed questioning at approximately 8:30 p.m.

       ¶24    Around 9:20 p.m., Jackson admitted being at the hotel

in   the     afternoon     and    began   describing      the    details     of   her

interaction with Whitlow.           She said that Whitlow "came at [her]"

when   she    entered      the    room.    Although    she      admitted     that   a

confrontation occurred, she expressed an inability to recall the

exact nature of what had happened.                 When the detective asked

about a knife, she conceded that she "may have" had one with
her.       Jackson   requested      and   was   allowed    to     take    additional

medication around 9:37 p.m.

       ¶25    Over   the   succeeding     hours,   Jackson       slowly    gave   the

detectives more incriminating information about the events at

the hotel.       Shortly after 10 p.m., she described a physical

altercation with Whitlow and her efforts to get him off her.
She also confirmed that she took a shower and changed clothes



                                          12
                                                                      No.      2014AP2238-CR



upon       returning    home.         Throughout        the     10     o'clock     hour,     a

detective insisted that she provide him with details about the

events at the hotel.            At 11:09 p.m., she responded to a question

about a knife, saying,

       I don't . . . will you just do me a favor and tell my
       kids that I truly do love them and I'm sure they know
       that, but just tell them again, I truly do love them
       and I'm done. Cause I don't, I don't want to talk no
       more, I don't want to say anything, cause I don't, I
       just whatever's gonna happen, gonna happen and I don't
       wanna see kids, I don't, I can't, cause I don't wanna
       force myself to think about things.
(Emphasis      added;     ellipsis        in   original.)            Jackson     repeatedly

stated that she did not want to think about the events at the

hotel, that doing so would "torture" her.                       As she phrased it at

11:17       p.m.,      "[T]o     know       that      I'm      the     reason      he      not

here. . . .         No thank you, I'd rather not think about it."

       ¶26    At    11:20   p.m.,     a     detective        began    reviewing     medical

consent forms for R.L.D.J. and S.J. with Jackson and asked her

to sign them.           At 11:45 p.m., detectives read her a search

warrant5      and    explained        that     they     would        extract     blood     and

fingernail      samples        from   her      and    that    they     would     also    take

pictures of bruising on her body.                      At 12:17 a.m., a detective




       5
       Officers obtained separate warrants to search Jackson's
home and to search her person.




                                               13
                                                                No.     2014AP2238-CR



told       her    she   would   be    charged       with   first-degree    reckless

homicide.6

       ¶27       Finally, at 12:39 a.m., a detective read a Miranda

warning advising Jackson of her constitutional rights.                          When

Jackson, thinking the detective had already advised her of her

rights, asked for clarification about the charge she faced, the

detective responded:

       Can I, can I read this to you first because I
       technically can't get into a lot of stuff without
       until I advise you of these and you decide whether or
       not you want to talk to me anymore, OK because I can't
       violate your rights, do you know what I mean? So can
       I read this to you and then you decide whether or not
       you want to talk to me because I can't really get into
       any in depth conversation with you until you either
       tell me yes or no that you're willing to talk to me.
       So let me read this to you and then you decide what
       you want to answer and we'll go from there and then
       anything I can answer for you I'll answer, presuming
       you want to talk to me. Sound fair?
(Emphasis added.)          The detective read a waiver-of-rights form to

her    and       then   explained    each   of   her   rights    in   detail.     To

conclude the explanation, the detective said, "So say you decide
to start talking to me but at some point you decide you don't

want to talk to me, you can just tell me you don't want to talk

to    me    anymore."        Jackson's      first    response   to    hearing   that

example was to begin asking, "So earlier, when you, when you

wouldn't let me leave . . . ," then the detective cut her off.

       6
       The detective misstated the expected charge at 12:17 a.m.
When giving Jackson the Miranda warning at 12:39 a.m., the
detective correctly told her that she faced a charge for
"[f]irst degree intentional homicide."




                                            14
                                                              No.      2014AP2238-CR



Ultimately, Jackson continued talking with the detectives at the

department until 2:01 a.m. on February 22.

  E.     Officers Obtain a Warrant and Search Jackson's Residence

       ¶28     Around 6 p.m., an officer began preparing a warrant to

search Jackson's residence.              The    affidavit that accompanied the

warrant      included     information     from    officers    responding      to        the

hotel,    from     R.L.D.J.'s      interview      with   officers,     and,        in    a

concluding       paragraph,      from   Jackson's    interrogation.          A     judge

signed the warrant at 11:32 p.m.

       ¶29     Officers arrived at Jackson's residence after midnight

to conduct the search and began searching around 12:50 a.m.                              At

least six officers were present.                 Four officers began searching

the     basement,    while       others    searched      upstairs.          From        the

beginning, officers planned to search the entire house, followed

by the garage.          The officers later testified that, because of

the    serious    nature    of    the    crime,   they   intended     "to    be    very

thorough" and "to search everywhere and anywhere that [they]

could search looking for relevant items."
       ¶30     Officers    further      testified   that   they     searched       in     a

systematic and "[e]xtremely thorough" manner, carefully sorting

through boxes, bags, and drawers in each room.                      They explained

that the search was "time consuming" and "took quite a while"

because "[t]here was a lot of stuff in the house," particularly

a bedroom closet filled with large garbage bags packed with

various items.       Because the garage contained numerous boxes and

bins,    the    officers    expected      that    searching   the    garage        would
require a significant amount of time as well.


                                           15
                                                                        No.         2014AP2238-CR



       ¶31    During the search, an officer in the basement received

information        from    the     detectives      interrogating          Jackson         that     a

knife and bloody clothing might be in a garbage container in the

garage.      The officer took a break from searching the basement

and went to the garage, where he searched a garbage container

inside the main door and another outside the door.                                      Unable to

find    anything     of     evidentiary        value      in    those     containers,            the

officer      went    back    inside      "to       finish       the    searching          of    the

basement      to    keep    everything        systematic          and     as       thorough      as

possible."

       ¶32    At approximately 2:15 a.m., detectives brought Jackson

from the police department to her residence.                              Before officers

finished their methodical search of the premises, Jackson showed

them a garbage can in the garage containing the knife and the

clothing she wore at the hotel.

                              II.    PROCEDURAL HISTORY

       ¶33    On    February       23,   2012,      the     State       filed       a    criminal

complaint     against       Jackson      in   Outagamie         County        Circuit      Court.
The complaint charged Jackson with one count of first-degree

intentional        homicide,       domestic     abuse,         contrary       to    Wis.       Stat.

§§ 940.01(1)(a), 939.50(3)(a), and 968.075(1)(a), and one count

of     misdemeanor          bail     jumping,         contrary          to         Wis.        Stat.

§§ 959.49(1)(a) and 939.51(3)(a).

       ¶34    Jackson filed a motion to suppress all statements that

she made to the officers and all physical evidence derived from

those     statements.              She   argued      that        her     statements            were
involuntary        and    that     law   enforcement            officers       violated         her


                                              16
                                                                  No.    2014AP2238-CR



constitutional rights by taking her statements at the police

department without reading Miranda warnings to her.                             Because

officers procured the warrant to search her home based in part

on the statements obtained in violation of her constitutional

rights, she argued that any physical evidence at her residence——

particularly the knife and the clothing——was inadmissible fruit

of the poisonous tree.

      ¶35    At a series of hearings, the Outagamie County Circuit

Court7 developed an extensive record as it considered Jackson's

suppression     motion.           The   court    heard      testimony        about    the

investigation from several officers and detectives, who provided

detailed accounts of Jackson's interrogation and the search of

her home.     Jackson presented testimony from a toxicologist and a

psychologist, who testified about Jackson's state of mind during

the interrogation and the effects of medication she was taking

at   the    time.     Additionally,       the   court      reviewed     video      and    a

transcript     of    Jackson's      interrogation,         as    well   as    an     audio

recording of the interview with R.L.D.J.
      ¶36    In a comprehensive ruling from the bench on June 16,

2014, the circuit court ordered suppression of most of Jackson's

statements,     as   well    as    suppression        of   the   physical      evidence

obtained     from    her    residence     in    the    early     morning      hours      on

February 22, 2012.          Specifically, the court found that Jackson

was in custody for Miranda purposes at 7:25 p.m.                             The court


      7
          Mark J. McGinnis, Judge.




                                          17
                                                     No.         2014AP2238-CR



leveled   substantial   criticism   at   the   officers    and   detectives

carrying out the investigation:

         There's been some variation of the officers'
    testimony that at that point in time [during her
    interrogation] Ms. Jackson was free to leave. I find
    that incredible. I find it difficult to believe, and
    I'm somewhat offended by officers who come into court,
    raise their hand to testify, and try to suggest that
    in a murder case where they put somebody in the back
    seat of the squad car and they take them to the police
    station and asking that they can leave and they're not
    answering her questions on that issue, that she was
    truly free to leave. It reduces their credibility in
    my   eyes    in   the   overall    grand   scheme   of
    things. . . . [T]he officers' insistence on a theory
    and trying to maintain the standard that said at that
    point in time she could get up and walk out is just
    incredible. . . .

           . . . .

         . . . I'll never forget how appalled I was and
    how upsetting it was that this stuff happens in
    today's world. . . . I've never seen a case, been
    part of a case, or heard of a case that's worse than
    this in terms of what the police officers did in that
    interrogation room. . . . [T]his is just a clear
    violation of somebody's rights over a long period of
    time involving many different officers with lots of
    opportunities to have one of them step up and say,
    hey, this is not the way we need to do this.

           . . . .

         . . . [T]his is textbook interrogation of what
    not to do if you want to be doing good police work and
    get stuff admitted in during a hearing.

          . . . [T]hese violations in my opinion were done
    intentionally, they were done flagrantly, they were
    done recklessly; and they were done without any
    concerns   involving   Ms.   Jackson's   rights,   her
    constitutional rights, her statutory rights, and it
    was done in an effort to get something out of her




                                    18
                                                                  No.      2014AP2238-CR


    before those rights were read, and that's exactly what
    happened eventually.
    ¶37     Based     on     its   finding      that    Jackson     was    in    custody

beginning at 7:25 p.m., the court suppressed all statements that

Jackson made from that time until she received a Miranda warning

at 12:39 a.m.         Relying on Missouri v. Seibert, 542 U.S. 600

(2004), the court further suppressed all statements Jackson made

after    receiving     the    Miranda      warnings,      "includ[ing          statements

made during] the time when she was taken back to her home and

pointed   out   to    the     officers     where    they    would       find    both   the

weapon    and   the    clothing       associated        with   this       case."        In

addition,   the      court    concluded      that      Jackson's    statements         were

involuntary.

    ¶38     Although       the     court   expressed       additional          "concern[]

about things that were done and said during th[e] interview"

with R.L.D.J., the court declined to suppress any of R.L.D.J.'s

statements.       The court noted that "there was nothing that Ms.

Jackson [said] that was then used to get [R.L.D.J.] to talk."

    ¶39     However, the court did suppress the physical evidence
of the knife and the clothing as illegal fruit of the poisonous

tree.     After striking Jackson's suppressed statements from the

search warrant affidavit, the court concluded that the evidence

from the hotel and R.L.D.J.'s statements did not create probable

cause for a court to issue the warrant.                        The court further

determined that "even if the warrant had probable cause," the

State had not proven that the officers conducting the search
inevitably would have discovered the knife and clothing that



                                           19
                                                                   No.         2014AP2238-CR



Jackson ultimately revealed.               Emphasizing the deterrent purpose

of the exclusionary rule, the court reasoned that "when officers

are simply looking for evidence of the crime, it's not good

policy to . . . provide them the benefit of the doubt when they

violate somebody's constitutional rights."

      ¶40    On appeal, the State did not challenge suppression of

Jackson's     statements      but    did    seek    reversal         of       the    circuit

court's decision suppressing the physical evidence.                             The State

argued      that    the   untainted      portions        of    the      search       warrant

affidavit       established       probable       cause        to   search           Jackson's

residence and that the officers conducting the search inevitably

would    have      discovered     the    knife    and     clothing        in     Jackson's

garage.

      ¶41    The     court   of     appeals      agreed       with      the     State     and

reversed the circuit court's decision with respect to the knife

and     clothing.         State     v.   Jackson,        2015      WI     App       49,   363

Wis. 2d 554, 866 N.W.2d 768.               In its penetrating analysis, the

court of appeals first examined the search warrant affidavit and
excised all facts derived from Jackson's suppressed statements.

Id., ¶¶17-18.         Based on the remaining evidence from the hotel

and from R.L.D.J., the court of appeals determined that the

affidavit still "provided a substantial basis to conclude there

was a fair probability a search of Jackson's residence would

uncover evidence of wrongdoing."                 Id., ¶¶19-20 (citing State v.

Romero, 2009 WI 32, ¶3, 317 Wis. 2d 12, 765 N.W.2d 756).

      ¶42    Given that the officers conducted the search pursuant
to a valid warrant, the court of appeals next concluded that the


                                           20
                                                                  No.       2014AP2238-CR



officers      inevitably       would     have     discovered          the   knife      and

clothing.      Id., ¶¶22, 43.      Applying a framework set forth in its

previous cases, the court of appeals conducted a three-pronged

analysis      for     the     inevitable       discovery        exception        to    the

exclusionary rule:

       To establish that the evidence would have been
       inevitably discovered, the State must demonstrate, by
       a preponderance of the evidence, that: (1) there is a
       reasonable probability the evidence in question would
       have been discovered by lawful means but for the
       police misconduct; (2) the leads making the discovery
       inevitable were possessed by the government at the
       time of the misconduct; and (3) prior to the unlawful
       search the government also was actively pursuing some
       alternative line of investigation.
Id., ¶23 (citing State v. Avery, 2011 WI App 124, ¶29, 337

Wis. 2d 351,        804    N.W.2d 216).        The    court     concluded       that   the

State met the first prong because officers "intended to conduct

a thorough and methodical search of Jackson's house and garage

that       would    have     entailed      examining        every       container       or

compartment that might have contained evidence of the crime."

Id., ¶¶25-32.        Jackson did not dispute the State's argument that

it met the second prong——that it had leads making the discovery

inevitable——so the court deemed the point conceded.                          Id., ¶35.

Finally,      the   court    concluded     that      by   actually      "conducting      a

thorough and methodical search of [Jackson's] residence pursuant

to     a   valid    warrant,"    the      officers        met   the     third    prong's

requirement of active pursuit of another line of inquiry.                              Id.,

¶39.




                                          21
                                                                 No.         2014AP2238-CR



    ¶43      Additionally, the court of appeals rejected Jackson's

argument that the inevitable discovery doctrine should not apply

in cases involving intentional constitutional violations.                              Id.,

¶¶43, 48.     Jackson relied on this court's decision in State v.

Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899, suppressing

physical evidence obtained as a direct result of an intentional

Miranda violation.       Jackson, 363 Wis. 2d 554, ¶43.                 The court of

appeals distinguished Knapp, observing that no evidence in that

case indicated that officers had alternative means to discover

the physical evidence.          Id., ¶45.       Suppression, moreover, would

place the State "in a worse position than it would have been in

absent the Miranda violation" because the officers would have

obtained      a   warrant        even     without         the     unconstitutional

interrogation.       Id., ¶47.

    ¶44      Jackson filed a petition for review on June 18, 2015,

which this court granted on October 8, 2015.

                         III.     STANDARD OF REVIEW

    ¶45      Application    of         constitutional           principles        in     a
particular    case    presents     a    question     of    constitutional          fact.

State   v.   Dearborn,     2010    WI     84,   ¶13,      327    Wis. 2d 252,           786

N.W.2d 97    (citing     State    v.     Pallone,      2000      WI    77,     ¶26,     236

Wis. 2d 162, 613 N.W.2d 568).              This court accepts the circuit

court's findings of fact unless they are clearly erroneous, but

application of constitutional principles to those facts is a

question of law that this court reviews de novo.                         Id. (citing

Pallone, 236 Wis. 2d 162, ¶27).
                                 IV.    DISCUSSION


                                         22
                                                                      No.         2014AP2238-CR



       ¶46    Exclusion is a judicial remedy that can apply when the

government      obtains      evidence       as    a    result    of    a    constitutional

violation.          See Dearborn, 327 Wis. 2d 252, ¶15 (citing State v.

Eason, 2001 WI 98, ¶¶39-45, 245 Wis. 2d 206, 629 N.W.2d 625).

"The exclusionary rule . . . may apply to deter violations of

the   Fourth        Amendment,      Fifth    Amendment,         or    Sixth    Amendment."

State v. Scull, 2015 WI 22, ¶64, 361 Wis. 2d 288, 862 N.W.2d 562

(Ziegler,      J.,     concurring)         (footnotes      omitted);          id.,    ¶¶64-65

(citing       examples      under     each       Amendment      from        cases     in   the

Wisconsin and United States Supreme Courts).                          However, exclusion

is    not      an     absolute,      automatic          remedy.             Dearborn,       327

Wis. 2d 252, ¶35 (first citing Herring v. United States, 555

U.S. 135, 140-42 (2009); then citing Arizona v. Evans, 514 U.S.

1,    10-11    (1995)).           Courts     exclude      evidence         only     when    the

benefits       of      deterring          police       misconduct          "outweigh        the

substantial         costs   to     the    truth-seeking         and     law    enforcement

objectives of the criminal justice system."                      Id., ¶38.

       ¶47    The Supreme Court approved the inevitable                             discovery
exception to the exclusionary rule in Nix v. Williams, 467 U.S.

431 (1984).          Under the inevitable discovery doctrine, "evidence

obtained during a search which is tainted by some illegal act

may   be     admissible      if     the    tainted      evidence       would       have    been

inevitably discovered by lawful means."                          State v. Lopez, 207

Wis. 2d 413, 427, 559 N.W.2d 264 (Ct. App. 1996) (citing State

v. Schwegler, 170 Wis. 2d 487, 499, 490 N.W.2d 292 (Ct. App.

1992));       see    also    6    Wayne      R.       LaFave,    Search       and     Seizure
§ 11.4(a), at 339 (5th ed. 2012) ("[T]he question is not whether


                                             23
                                                                      No.        2014AP2238-CR



the police did in fact acquire certain evidence by reliance upon

an untainted source but instead whether evidence found because

of    a    Fourth       Amendment         violation    would    inevitably        have   been

discovered lawfully." (footnote omitted)).

          ¶48    Although      the    court    of     appeals   has    decided      multiple

inevitable discovery cases, see, e.g., Avery, 337 Wis. 2d 351;

Lopez, 207 Wis. 2d 413; Schwegler, 170 Wis. 2d 487, this court

has not conducted a comprehensive examination of the doctrine

since the Supreme Court decided Nix.                         The present case affords

us an opportunity to evaluate the conditions that must exist for

the       State       to     demonstrate      that     it     inevitably     would       have

discovered            evidence   despite       the    fact    that    officers      actually

obtained the evidence as a result of a constitutional violation.

Accordingly, we begin our analysis by examining the development

and purposes of the doctrine.

                        A.   The Inevitable Discovery Doctrine

                                     1.    Nix v. Williams

          ¶49    Nix involved a suspect, Williams, who surrendered to
authorities in Davenport, Iowa, after allegedly abducting and

murdering a young girl in Des Moines.                        Nix, 467 U.S. at 434-35.

Two       Des    Moines      detectives       drove     to   Davenport      to     transport

Williams back to Des Moines.                        Id. at 435.        Counsel was not

permitted to accompany Williams during his ride in the back seat

of the detectives' car, but the detectives informed Williams's

attorney that they would not question the suspect during the

drive.          Id.     Nonetheless, as they drove, one of the detectives
made comments encouraging Williams to reveal the location of the


                                                24
                                                                    No.       2014AP2238-CR



victim's unrecovered remains.               Id. at 435-36.                 The detective

insinuated that the little girl deserved a prompt "Christian

burial" before an approaching winter storm made it impossible

for searchers to find her body.                  Id.        Eventually, the suspect

agreed to lead officers to the body, which they found "next to a

culvert in a ditch beside a gravel road"——"essentially within

[an] area to be searched" by a nearby search party independently

looking for the missing child.             Id. at 436.

      ¶50    The    Williams       prosecution         led    to    two     trials,     two

appeals to the Supreme Court of Iowa, two collateral attacks in

federal court, and two decisions from the Supreme Court of the

United States.        See Brewer v. Williams, 430 U.S. 387 (1977);

Nix, 467 U.S. 431.             After the second trial and appeal, the

Eighth Circuit determined that Iowa authorities had erred by

failing to suppress evidence of the little girl's body.8                                The

Supreme Court reversed.            In an opinion by Chief Justice Burger,

the Court discussed both the purpose of the exclusionary rule

and the independent source doctrine, which allows "admission of
evidence that has been discovered by means wholly independent of

any constitutional violation."             Nix, 467 U.S. at 443.

      ¶51    The purpose of the exclusionary rule, the Court said,

is   to   prevent    the    prosecution         from    being      "put     in   a   better

position     than   it     would    have   been        in    if    no     illegality    had

transpired."        Id.       However,      it     does      not    follow       that   the


      8
          Williams v. Nix, 700 F.2d 1164 (8th Cir. 1983).




                                           25
                                                                     No.         2014AP2238-CR



exclusionary      rule     should    put     the       prosecution          "in     a     worse

position    simply       because     of     some       earlier       police       error       or

misconduct."        Id.      The     independent            source       doctrine       allows

evidence "wholly independent of any constitutional violation" to

be admitted.

    ¶52     The inevitable discovery doctrine is not the same as

the independent source doctrine, the Court explained, but it is

"closely    related"      because     evidence          that    inevitably          will      be

discovered is like evidence from an independent source.                                 "There

is a functional similarity between these two doctrines in that

exclusion of evidence that would inevitably have been discovered

would also put the government in a worse position, because the

police would have obtained the evidence if no misconduct had

taken   place."      Id.    at     443-44.           Thus,    the    rationale          of   the

independent      source    doctrine       "is        wholly    consistent          with      and

justifies . . . adoption of the ultimate or inevitable discovery

exception to the exclusionary rule."                   Id. at 444.

    ¶53     Emphasizing      the    deterrence             rationale       underlying        the
exclusionary rule, the Court phrased its test for inevitable

discovery as follows: "If the prosecution can establish by a

preponderance of the evidence that the information ultimately or

inevitably would have been discovered by lawful means . . . then

the deterrence rationale has so little basis that the evidence

should be received."        Id.

    ¶54     To    support     its     use       of     a     "preponderance          of      the

evidence"     standard,       the     Court           relied        on     its      previous
determination      that     "the      controlling             burden       of     proof      at


                                           26
                                                                     No.      2014AP2238-CR



suppression hearings should impose no greater burden than proof

by a preponderance of the evidence."                     Id. at 444 n.5 (quoting

United States v. Matlock, 415 U.S. 164, 178 n.14 (1974)).                                The

Court added that it was "unwilling to impose added burdens on

the already difficult task of proving guilt in criminal cases by

enlarging the barriers to placing evidence of unquestioned truth

before juries."            Id.    In any case, proving that discovery of

evidence was truly inevitable "involves no speculative elements

but focuses on demonstrated historical facts capable of ready

verification or impeachment."              Id. at 445 n.5 (emphasis added).

       ¶55    Further,      the    Court      rejected       any     notion     that     the

government must prove the absence of bad faith by the police in

order to qualify for the inevitable discovery exception.                              Id. at

445.      The Court emphasized the "enormous societal cost" that

flows from "plac[ing] courts in the position of withholding from

juries       relevant      and    undoubted      truth      that     would     have     been

available to police absent any unlawful activity."                           Id.      Seeing

no   merit     in    the    argument      that    officers         would     deliberately
violate      Sixth    Amendment      rights      if    the     inevitable       discovery

exception      did    not    require      proof    of       good    faith,     the     Court

observed that an "officer who is faced with the opportunity to

obtain evidence illegally will rarely, if ever, be in a position

to calculate whether the evidence sought would inevitably be

discovered."         Id. at 445-46.           On the contrary, "[s]ignificant

disincentives"          always    discourage       officers        from      engaging     in

misconduct;         officers      might    face       not     only     suppression        of
illegally obtained evidence but also "departmental discipline


                                           27
                                                                         No.    2014AP2238-CR



and civil liability" when they violate suspects' constitutional

rights.      Id. at 446.

                   2.   Inevitable Discovery in Wisconsin

                        a.        Wisconsin Cases After Nix

       ¶56   This court first applied the Nix exception in State v.

Weber, 163 Wis. 2d 116, 471 N.W.2d 187 (1991), where a defendant

argued    that    police      officers       conducted        an    unreasonable       search

when they listened to a cassette tape containing the defendant's

confession       that   they       obtained    while      taking         inventory   of   his

car's contents.         Weber, 163 Wis. 2d at 121.                   Conducting a short

inevitable discovery analysis, this court began by stating that,

under    Nix,     "if   it    can     be    shown   by    a    preponderance         of   the

evidence that the tape would have inevitably been discovered

absent any constitutional violation, the tape may be admitted

into evidence."         Id. at 140-41 (first citing Nix, 467 U.S. 431;

then     citing    State       v.    Kennedy,       134    Wis. 2d 308,          318,     396

N.W.2d 765 (Ct. App. 1986)).                  The court then briefly recounted

various pertinent facts and concluded that, even assuming the
officers conducted an illegal search by playing the tape, the

facts     demonstrated        that     the     police     "would          inevitably      have

obtained a warrant to play the tape" and discover its contents.

Id.     Quoting from Nix, the court also reasoned that suppressing

the evidence would place the prosecution in a worse position

than it would have been in absent an illegal search.                                 Id. at

142.

       ¶57   Notably,        in     Weber    this   court          did    not   conduct    an
extensive evaluation of Nix or of the reasoning underlying the


                                              28
                                                                        No.         2014AP2238-CR



Supreme Court's adoption of the inevitable discovery exception.

Since Weber, this court has periodically cited Nix, but we have

not    expounded        on    the    inevitable     discovery        exception           and    its

proper application in Wisconsin.

       ¶58    The court of appeals, however, has decided multiple

inevitable discovery cases since Nix.                        A few months after the

Supreme Court decided Nix, the court of appeals decided State v.

Washington, 120 Wis. 2d 654, 358 N.W.2d 304 (Ct. App. 1984).                                     As

this court would later do in Weber, the Washington court used

the Nix Court's phrasing of the test for the exception, stated

relevant facts from the case, and then concluded that those

facts demonstrated sufficient inevitability of discovery for the

exception         to     apply.         Washington,          120     Wis. 2d at            664-65

(determining           that   officers       inevitably       would      have          discovered

evidence      in       back   seat    of     defendant's      vehicle            when   officers

legally stopped the vehicle but illegally arrested defendant and

searched      his      person).        Similarly,       in   Kennedy,            the    court    of

appeals cited Washington when phrasing the doctrine as follows:
"[T]he fruits of an illegal search may be admitted if it can be

shown by a preponderance of the evidence that the tainted fruits

would    have          been    inevitably       discovered         by        lawful       means."

Kennedy,      134      Wis. 2d at      317    (concluding      that          a    vodka    bottle

discovered in a vehicle would inevitably have been discovered

during       an    inventory         search     even    though          it       was    actually

discovered pursuant to a defective warrant).                             The court added:

"The    defective         search     warrant     does    not       compel         exclusion     of
evidence that would otherwise have been lawfully discovered and


                                               29
                                                                      No.      2014AP2238-CR



admissible in evidence.               Individual rights are not controverted,

nor is the public served, by excluding such evidence."                                Id. at

318 (citing Washington, 120 Wis. 2d at 664-65).                         The opinion did

not cite Nix.

       ¶59     After this court applied Nix in Weber, the court of

appeals      decided      State       v.     Schwegler,       170     Wis. 2d 487,         490

N.W.2d 292 (Ct. App. 1992), which arose after a Waukesha County

humane    officer        inspected      a    licensed       horse-breeding         operation

when the owners were not present.                          Schwegler, 170 Wis. 2d at

492-93.        A    provision     of       the    Waukesha    County        Code   permitted

inspection of licensed premises "at any time" by county humane

officers.          Id.   at    492.        The    humane     officer    arrived       at   the

premises and found the door to the barn partially ajar.                               Id. at

493.     She opened the door to conduct a routine inspection, as

she had before, and discovered evidence of abuse of the horses.

Id.      The       following    day,       she    returned     with    law     enforcement

officers, who seized the horses in the presence of the owners.

Id.
       ¶60     The court of appeals concluded that the warrantless

initial search of the barn was illegal and rejected the State's

argument       that,     despite       the       illegal     search,    the        inevitable

discovery      doctrine       defeated       suppression       of   evidence        from   the

barn.     Although the court cited the language from Kennedy quoted

above, it established a new test for inevitable discovery:

       To [prove inevitable discovery], the prosecution must
       demonstrate: (1) a reasonable probability that the
       evidence in question would have been discovered by
       lawful means but for the police misconduct; (2) that


                                                 30
                                                                No.      2014AP2238-CR


       the leads making discovery inevitable were possessed
       by the government at the time of the misconduct; and
       (3) that prior to the unlawful search the government
       also was actively pursuing some alternate line of
       investigation.
Id. at 500 (citing United States v. Cherry, 759 F.2d 1196, 1204

(5th Cir. 1985)).           The court provided no explanation why it

chose    to     apply    the    Fifth    Circuit's       test     for     inevitable

discovery.       Neither the State nor the Schweglers cited Cherry's

three-pronged test in their briefs to the court of appeals.                        The

State primarily relied upon Nix but cited Weber and Kennedy as
well, and the Schweglers discussed both Nix and Kennedy.                           The

court of appeals has applied Schwegler's three-pronged analysis

in     subsequent       inevitable      discovery     cases.             Avery,    337

Wis. 2d 351, ¶29; Lopez, 207 Wis. 2d at 427-28.

                    b.     The Active Pursuit Requirement

       ¶61     Because our decision in Weber is this court's only

precedent       applying     the   inevitable       discovery         exception,   we

examine the Fifth Circuit test adopted by the court of appeals

in Schwegler before determining whether the exception applies

under the facts of this case.            The three-pronged Cherry analysis

derived from the Fifth Circuit's pre-Nix precedent.                      Cherry, 759

F.2d    at     1204.       Reasoning     that   in      Nix     "no     attempt    was

made . . . to define the contours" of the exception, the Cherry

court turned to "previous circuit case law, to the extent it

[was] consistent with the principles enunciated" in Nix.                           Id.

Based on its own decision in United States v. Brookins, 614 F.2d

1037 (5th Cir. 1980), the Fifth Circuit in Cherry concluded that
using    the    "three-prong"      framework    would    be     "fully    consistent


                                         31
                                                                No.       2014AP2238-CR



with Nix."     Id. (citing Brookins, 614 F.2d at 1042 n.2).                           In

United States v. Satterfield, 743 F.2d 827 (11th Cir. 1984), the

Eleventh Circuit——which had adopted the Fifth Circuit's Brookins

rule in United States v. Roper, 681 F.2d 1354, 1358 (11th Cir.

1982)——similarly concluded that "Nix is not inconsistent with

the rule in this circuit that the police must possess and be

actively    pursuing      the    lawful    avenue       of    discovery     when    the

illegality occurred."           Satterfield, 743 F.2d at 847.

    ¶62     Requiring the prosecution to prove active pursuit of

an alternative line of investigation under the third prong of

the Cherry test may apply the inevitable discovery exception

more strictly than the Supreme Court required in Nix:

    While some courts have taken the position that the
    inevitable discovery doctrine applies only where "the
    government   was  actively   pursuing  a   substantial,
    alternative line of investigation at the time of the
    constitutional violation," such an absolute limitation
    is unsound, as it "allows for the exclusion of
    evidence that inevitably would have been discovered."
6 LaFave § 11.4(a), at 365-68 (footnote omitted) (first quoting

United States v. Conner, 127 F.3d 663, 667 (8th Cir. 1997); then

quoting United States v. Thomas, 524 F.3d 855, 862 (8th Cir.

2008)   (Colloton,     J.,      concurring)).       A    footnote     in    Professor

LaFave's     treatise      explains       the   circumstances         under        which

discovery    might   be    inevitable      despite      the    absence     of   active

pursuit prior to the misconduct: "Even if the police were not

actively pursuing an alternative line of investigation at the

time of police error or misconduct, for example, the government
may well be able to establish that the execution of routine



                                          32
                                                           No.       2014AP2238-CR



police procedure or practice inevitably would have resulted in

discovery of disputed evidence."              Id. § 11.4(a) n.164, at 368

(quoting Thomas, 524 F.3d at 862 (Colloton, J., concurring)).

    ¶63     To   a     degree,   the    Cherry     court   anticipated        this

critique by acknowledging a case in which, despite the fact that

"the Brookins prerequisites were not met," the Fifth Circuit

"held that the inevitable discovery exception applied since the

alternate means for obtaining the evidence was an intervening

and independent event occurring subsequent to the misconduct."

Cherry, 759 F.2d at 1205 (citing United States v. Miller, 666

F.2d 991, 997 (5th Cir. 1982)).              Indeed, the Fifth Circuit in

Cherry     concluded    its   analysis       of   the   inevitable     discovery

exception by stating:

    In certain circumstances . . . , such as when the
    hypothetical independent source comes into being only
    after the misconduct, the absence of a strong
    deterrent interest may warrant the application of the
    inevitable discovery exception without a showing of
    active pursuit by the government in order to ensure
    that the government is not unjustifiably disadvantaged
    by the police misconduct.
Id. at 1206.     Although the court of appeals in Schwegler applied

the three-pronged framework set forth in                 Cherry, it did not

acknowledge any exceptions to the active pursuit requirement.

    ¶64     Other jurisdictions apply alternative, fact-intensive

versions    of   the    inevitable     discovery    exception    that    do   not

require proof of active pursuit in all cases.              See United States

v. Howard, 729 F.3d 655, 663 (7th Cir. 2013) ("The government
must demonstrate both (1) that 'it had, or would have obtained,




                                        33
                                                                              No.         2014AP2238-CR



an independent, legal justification for conducting a search that

would have led to discovery of the evidence' and (2) 'that it

would      have    conducted          a    lawful       search        absent        the    challenged

conduct.' (quoting United States v. Marrocco, 578 F.3d 627, 637-

38 (7th Cir. 2009)); United States v. Boatwright, 822 F.2d 862,

864-65 (9th Cir. 1987) (concluding that "[t]he doctrine is best

developed on a case by case basis" and that "[t]he existence of

two    independent           investigations             at    the     time     of     discovery         is

not . . . a        necessary          predicate          to     the    inevitable           discovery

exception,"            but     adding            that        "[a]bsent        some         overriding

considerations . . . , the doctrine requires that the fact or

likelihood        that        makes       the     discovery          inevitable           arise        from

circumstances other than those disclosed by the illegal search

itself"); United States v. Silvestri, 787 F.2d 736, 744 (1st

Cir. 1986) ("[T]here are three basic concerns which surface in

an    inevitable        discovery          analysis:          are    the     legal        means    truly

independent;           are    both        the    use     of    the     legal        means    and       the

discovery         by    that     means           truly        inevitable;           and     does       the
application of the inevitable discovery exception either provide

an    incentive         for    police           misconduct       or    significantly              weaken

fourth amendment protection?").

       ¶65    Demonstrated historical facts proving active pursuit

of    an   alternative         line        of    investigation         at     the     time        of   the

constitutional               violation           certainly           help      the         State        to

substantiate its claim that discovery of otherwise excludable

evidence was inevitable.                    However, requiring proof in all cases
of active pursuit at the time of the constitutional violation


                                                   34
                                                                          No.      2014AP2238-CR



risks exclusion of evidence that the State might demonstrate

that    it        inevitably      would     have       discovered.         For    instance,      a

constitutional                violation     may    occur        so      quickly    after       the

commission of a crime that there has not been time to launch the

kind     of        comprehensive          investigation          that     would     be     normal

operating procedure.

       ¶66        Consequently, we think that the better approach is to

follow the analysis applied by this court in Weber and by the

court        of     appeals       in   Washington         and     in     Kennedy:        Has   the

prosecution met its burden of proving by a preponderance of the

evidence that it inevitably would have discovered the evidence

sought to be suppressed?                  Accordingly, the factors in Schwegler,

Lopez, and           Avery      should be regarded as important indicia of

inevitability rather than indispensable elements of proof.

                         c.    Proof of the Absence of Bad Faith

       ¶67        We also decline Jackson's invitation to articulate a

rule     prohibiting             application       of      the       inevitable      discovery

exception when the State fails to prove the absence of bad faith
on     the        part    of     officers    who       committed        the     constitutional

violation.           Although in Nix the Supreme Court expressly rejected

the necessity for a good faith requirement, Nix, 467 U.S. at

445, Jackson contends that the Wisconsin Constitution provides

greater protections than does the federal constitution in this

context, see State v. Knapp, 2005 WI 127, ¶59, 285 Wis. 2d 86,

700 N.W.2d 899 (citing State v. Doe, 78 Wis. 2d 161, 171, 254

N.W.2d 210 (1977)).




                                                  35
                                                            No.        2014AP2238-CR



      ¶68   The Court's decision in Nix rejecting proof of absence

of bad faith as a necessary condition for inevitable discovery

has provided an avenue for criticism of the doctrine.                     "Because

one     purpose       of    the         exclusionary            rule      is      to

deter . . . shortcuts,      there       is   much    to    be     said    for     the

proposition    that   the   'inevitable       discovery'        rule     should   be

applied only when it is clear that 'the police officers have not

acted in bad faith to accelerate the discovery' of the evidence

in question."     6 LaFave § 11.4(a), at 344-46 (quoting Brian S.

Conneely & Edmond P. Murphy, Comment, Inevitable Discovery: The

Hypothetical Independent Source Exception to the Exclusionary

Rule, 5 Hofstra L. Rev. 137, 160 (1976)).             In her brief, Jackson

cites cases from other jurisdictions that have adopted rules

precluding    application   of    the    exception    when      the    prosecution

fails to prove the absence of bad faith.                  See Smith v. State,

948 P.2d 473, 481 (Alaska 1997); Commonwealth v. Sbordone, 678

N.E.2d 1184, 1190 (Mass. 1997); State v. Holly, 833 N.W.2d 15,

33 (N.D. 2013).
      ¶69   It gives us pause to consider the possibility that

officers could intentionally violate constitutional rights as a

"shortcut" to obtaining evidence when they know the State will

be able to demonstrate inevitable discovery by other means.                        We

are particularly mindful of this possibility as we decide a case

in which the circuit court and court of appeals, respectively,

rebuked officers for "flagrant" and "reprehensible" violations

of Jackson's rights——rebukes, we believe, that were warranted
and appropriate.


                                        36
                                                                          No.         2014AP2238-CR



       ¶70    Nevertheless,              we    conclude          that   Jackson         has        not

demonstrated that the Wisconsin Constitution requires proof of

the    absence         of    bad   faith      as     a    necessary     condition        for       the

prosecution            to    establish        inevitable         discovery       of     otherwise

excludable         evidence.             Because          inevitable     discovery           is    an

exception to the exclusionary rule, it necessarily applies after

some   government            misconduct       has        occurred   that    would       otherwise

justify the suppression of evidence as an appropriate remedy.

See United States v. Alexander, 540 F.3d 494, 503-04 (6th Cir.

2008).       In the exceptional case where the government meets its

burden       of        proving      inevitability,            however,       it       will        have

demonstrated that suppression would place the State in a worse

position      than          it   would   have      been     in   absent     the       misconduct.

Insisting         on    suppression       of    evidence         obtained       by    intentional

misconduct would redirect the exclusionary rule to a punitive

purpose——punishing the State and the public for misconduct by

some officers despite independent proof of inevitable discovery

of the relevant evidence.
       ¶71    We are not persuaded that allowing the State to prove

inevitable discovery without proving the absence of bad faith

will encourage officers to take unconstitutional shortcuts to

accelerate         the       acquisition        of        evidence.        An        officer       who

intentionally commits a constitutional violation always risks

losing valuable evidence, and "[a] police officer who is faced

with the opportunity to obtain evidence illegally will rarely,




                                                   37
                                                                No.    2014AP2238-CR



if ever, be in a position to calculate whether the evidence

sought would inevitably be discovered."                 Nix, 467 U.S. at 445.9

Already, the exception applies only if the State proves that it

inevitably would have discovered the disputed evidence without

the     misconduct.       As    the   Supreme        Court    explained      in     Nix,

"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."         Nix, 467 U.S. at 448.                Conversely, "If the

State finds itself in any situation where it must prove that the

evidence inevitably would have been discovered by other legal,

independent means, and it fails to do so, the doctrine is not

applied and the evidence is suppressed."                     State v. Garner, 417

S.E.2d 502, 511 (N.C. 1992).

      ¶72   In declining to impose a good faith requirement in

connection      with   inevitable     discovery,       we     emphasize   that       the

State     has   the    burden   of    proof     in     satisfying     this        narrow

exception to the exclusionary rule.                    As the Seventh Circuit
observed,

      Nix . . . speaks in terms of proof by preponderance of
      the evidence that the government would have discovered
      the challenged evidence through lawful means . . . .
      Inevitable discovery is not an exception to be invoked
      casually, and if it is to be prevented from swallowing

      9
       Cf. Murray v. United States, 487 U.S. 533, 540 (1988)
("[T]he officer without sufficient probable cause to obtain a
search warrant [would not] have any added incentive to conduct
an unlawful entry, since whatever he finds cannot be used to
establish probable cause before a magistrate.").




                                       38
                                                                      No.    2014AP2238-CR


       the Fourth Amendment and the exclusionary rule, courts
       must take care to hold the government to its burden of
       proof.
United States v. Jones, 72 F.3d 1324, 1334 (7th Cir. 1995).

Proof of inevitable discovery turns upon demonstrated historical

facts, not conjecture.

       ¶73   With    these     principles         of    the     inevitable       discovery

exception in mind, we now consider its application in this case.

  B.    Officers Inevitably Would Have Discovered the Evidence in

                               Jackson's Residence
       ¶74   On appeal, the State has not challenged the circuit

court's determination that the detectives intentionally violated

Jackson's constitutional rights during her interrogation and by

subsequently        bringing    her    to    her        home    to     locate    physical

evidence.       The     officers      failed       to     provide       timely     Miranda

warnings, failed to respond timely to her physical condition,

and failed to respond to her expressed desire not to continue

talking,      thereby        raising        obvious           concerns      about        the

voluntariness of her admissions.                  Suppression of her statements

to police was necessary and "inevitable" under the circumstances
presented.      Thus,     resolution         of    this        case    requires     us   to

determine whether the State has established by a preponderance

of the evidence that Jackson's knife and her bloody clothing

would inevitably have been discovered by lawful means but for

the police misconduct.

       ¶75   After assessing the substantial evidence presented by

the State regarding the search warrant and ensuing search, the
demonstrated historical facts leave us reasonably certain that


                                            39
                                                                       No.        2014AP2238-CR



officers would inevitably have discovered the physical evidence

in Jackson's garage without any of the information unlawfully

obtained from her.

       ¶76     Both the circuit court and the court of appeals in

this    case    evaluated        the    search     warrant      affidavit——excised           of

information gained from the illegal interrogation of Jackson——to

determine whether it provided probable cause to justify a search

of Jackson's residence.                 This court has held that "where an

application for a warrant contains both tainted and untainted

evidence, the issued warrant is valid if the untainted evidence

is sufficient to support a finding of probable cause to issue

the    warrant."         State         v.    Carroll,         2010     WI    8,    ¶44,     322

Wis. 2d 299, 778 N.W.2d 1 (first citing Murray v. United States,

487    U.S.    533,   542    (1988);        then     citing     State       v.   O'Brien,    70

Wis. 2d 414,      424-25,        234    N.W.2d 362       (1975));       see      also   United

States    v.    Karo,    468     U.S.       705,   719    (1984)       ("[I]f      sufficient

untainted evidence was presented in the warrant affidavit to

establish probable cause, the warrant was nevertheless valid."
(citing Franks v. Delaware, 438 U.S. 154, 172 (1978)); State v.

St. Martin, 2011 WI 44, ¶30, 334 Wis. 2d 290, 800 N.W.2d 858.

       ¶77     Like   the    circuit         court      and    court    of       appeals,   we

consider untainted portions of the search warrant affidavit.                                 A

single       paragraph      at    the       end    of    the    affidavit          summarizes

Jackson's incriminating statements indicating that she traveled

to the hotel that afternoon and got into a confrontation with

Whitlow while armed with a knife.                         We examine the remaining
portions of the affidavit, which is reproduced in the Appendix.


                                              40
                                              No.   2014AP2238-CR



    ¶78   The vast majority of factual information set forth in

the affidavit accompanying the search warrant application was

derived from untainted sources.    In the underlying opinion in

this case, the court of appeals accurately and comprehensively

summarized the information set forth in the untainted portions

of the affidavit:

    • At 1:25 p.m. on February 21, 2012, officers were
      dispatched to the Road Star Inn in Grand Chute,
      where they found Whitlow's body in Room 114.
      Whitlow had suffered significant cut wounds to his
      neck, throat, upper chest, and right arm and hand.

    • There was substantial blood and blood spatter on the
      wall, bed, and floor of the hotel room.     Based on
      his training and experience, detective Renkas
      believed anyone who was in the room with Whitlow
      when he was stabbed would likely have a significant
      amount of blood on his or her clothing or shoes.

    • An eight-inch Winchester brand knife sheath      was
      found next to Whitlow's body, but no knife       was
      recovered.

    • [The hotel manager], who was working at the front
      desk of the Road Star Inn on February 21, reported
      that Whitlow had been staying in Room 114 since
      February 17.   [The manager] stated he knew Whitlow
      had been having problems with his wife.

    • [A] . . . Road   Star   Inn   [cleaning]  employee[]
      reported that she was doing the laundry in Room 111
      from approximately 1:00 to 1:30 p.m. on February 21,
      when she saw a person wearing a gray hooded
      sweatshirt knock on the door of Room 114.        The
      person's hood was pulled over his or her head. The
      person was admitted into the room by someone inside,
      and [the cleaning employee] then heard a male voice
      screaming for help and heard what she thought was
      someone being hit. [The cleaning employee] went to
      the manager to get help and briefly saw the person
      in the hooded sweatshirt leaving. Hotel staff then
      entered the room, found Whitlow, and called police.


                              41
                                                   No.   2014AP2238-CR


    • [A hotel guest], who was staying in Room 115 at the
      Road Star Inn, reported he was in his room when he
      heard a female voice yelling. He thought it was the
      cleaning employee, so he left his room to see what
      was happening.   He then realized the yelling voice
      could not be the cleaning employee because he saw
      her in the hallway. When [the guest] was just past
      Room 114, he heard a male voice yelling, "[H]elp me,
      help me." [The guest] then went to get help.

    • Eleven-year-old R.L.D.J. was interviewed by police
      on the day of the stabbing and told them Whitlow was
      his father and Jackson was his mother.       R.L.D.J.
      reported that his family had been living together at
      their home until a few days earlier, when Whitlow
      left to stay at the Road Star Inn.       Police were
      aware from previous contacts with Whitlow and
      Jackson that they resided [on] . . . West Fourth
      Street in Appleton.

    • R.L.D.J. reported Whitlow had left the family home
      because he and Jackson "had been having issues that
      included 'adult conversations' that became loud."

    • R.L.D.J. told police he stayed home from school with
      Jackson on February 21, and in the early afternoon,
      Jackson became angry because Whitlow had destroyed
      some family pictures and keepsakes.     Jackson then
      left the house and was gone for about fifteen to
      twenty minutes.

    • When Jackson returned to the house, R.L.D.J. "heard
      a zipper sound and then heard [her] go directly into
      the bathroom" and take a shower.    When Jackson got
      out of the shower, "she was in different clothing
      than . . . what she had been wearing earlier in the
      day."

    • Jackson told R.L.D.J. not to tell anyone she had
      left the house that day.
Jackson,   363   Wis. 2d 554,   ¶18   (eleventh,     fifteenth,   and

sixteenth alterations in original).

    ¶79    Based on the untainted portions of the affidavit, we
conclude that the search warrant application provided probable



                                42
                                                              No.       2014AP2238-CR



cause to conduct a search of Jackson's residence.                           A search

warrant affidavit provides probable cause for a search when,

under   the    totality      of    the   circumstances,      it     sets    forth   "a

substantial      basis       for   concluding        that   there     was    a   fair

probability     that     a    search     of    the   specified      premises     would

uncover evidence of wrongdoing."                State v. Romero, 2009 WI 32,

¶3, 317 Wis. 2d 12, 765 N.W.2d 756.

    ¶80       The affidavit in support of the search warrant for the

home on Fourth Street in Appleton sought

    clothing,   including  but   not  limited   to  hooded
    sweatshirts, any knives or knife sheaths, any weapons,
    any firearms, . . . ; any materials, clothing, towels
    or   other    items   containing   blood   or   bloody
    substances . . . ; any materials or items that may
    contain trace blood evidence; . . . a 2007 gray in
    color, Chevrolet Malibu, registered to a Mastella L.
    Jackson.
    ¶81       Jackson was an obvious suspect in Whitlow's murder.

Whitlow was staying in the hotel, not his home, because he was

having problems with his wife.                 Their son, R.L.D.J., said that

Jackson was very angry with her husband that day and left the

house in the afternoon about the time the homicide occurred.

When she returned she told R.L.D.J. not to tell anyone that she

had left the house.

    ¶82       A witness at the hotel said he heard a female voice

yelling near Room 114 where Whitlow's body was found, suggesting

that a woman had killed Whitlow.

    ¶83       Inside the room, police found the body and a room
covered with blood.            The affiant disclosed that based on his




                                          43
                                                                         No.      2014AP2238-CR



training and experience, he believed any person who would have

been in the room with Whitlow at the time of his injuries would

likely have significant areas of blood or blood splatter on his

or her clothing or shoes.                     R.L.D.J. said his mother took a

shower    immediately          after    she      got    home      and    that    she     was   in

different clothing after the shower.

    ¶84     Officers       found       a    knife       sheath      in   the     hotel       room,

supporting evidence of a stabbing.                       If Jackson was the culpable

party, she might not have had time to dispose of the knife

because she hurried home to shower and get out of her clothes.

    ¶85     Aside        from    the       statements          derived     from        Jackson's

illegal     interrogation,             officers         independently           acquired       all

information presented in the affidavit accompanying the warrant

application.        Officers received information from the manager,

guest,    and    cleaning       employee         at    the    hotel      immediately        after

Whitlow's    death       and    separate         from    the      detectives'      subsequent

interactions with Jackson.                  Moreover, the circuit court found

that "there was nothing that Ms. Jackson [said] that was then
used to get [R.L.D.J.] to talk," so his statements were also

separate    from     her       interrogation.                Although     R.L.D.J.          likely

provided    the    information          most      probative        of    Jackson's       actions

after 8 p.m., officers possessed most information used in the

affidavit       before     Jackson         was    even       in    custody       for    Miranda

purposes at 7:25 p.m., and they had certainly begun conducting

independent investigation before that time.

    ¶86     Collectively,          this          information        speaks       to     a     fair
probability that officers would uncover bloody clothing and the


                                                 44
                                                                      No.         2014AP2238-CR



knife    upon    searching         Jackson's        residence.          Taken       together,

information      derived       from      various     people      at    the    hotel,        from

R.L.D.J.'s interview, and from the affiant officer's experience

indicate      that    the    affidavit        excised      of    Jackson's         statements

established a strong, independent legal justification for the

search of Jackson's residence.

       ¶87    Given     that       the    officers        began       their        search     of

Jackson's       residence         pursuant     to    a    valid       warrant       based    on

probable cause, the State has presented considerable evidence to

show     that     the       searching        officers      inevitably             would     have

discovered      the     knife      and    bloody     clothing      in       the    garage     if

officers had not brought Jackson back to her residence.                                      The

officers searching Jackson's residence began inside the house

and methodically searched all bags and other containers that

they encountered.            Because the warrant allowed them to search

both    indoors       and    in    the    garage,        the    officers      intended        to

carefully search the garage when they finished searching the

house.       By searching every bag and container in the garage, the
officers       eventually         would      have    searched         the     garbage        can

containing the knife and clothing.

       ¶88    The search of Jackson's residence compares favorably

to the search in Nix that the Supreme Court determined would

inevitably have uncovered the victim's body.                            Searchers in Nix

had specific instructions "to check all the roads, the ditches,

[and] any culverts" in their assigned zones.                           Nix, 467 U.S. at

448.     An investigator leading the search effort had obtained a
map of the area where police eventually found the body, and the


                                              45
                                                                     No.      2014AP2238-CR



investigator     would     have    developed         a    search     grid    on    the   map

calling for a search of the area ultimately identified by the

defendant.      Id. at 449.         When the suspect revealed the body's

location, officers found the remains in a culvert near a road in

the expected search area.           Id.

       ¶89    In this case, officers involved in the search had a

systematic and orderly plan first to search Jackson's residence,

then to search the garage.              Their testimony proves that they had

begun searching containers in a disciplined manner and that they

would have continued that meticulous approach when searching the

garage.       Absent    Jackson's       arrival      on     the     premises      with   the

detectives, the officers would have identified the incriminating

evidence within a matter of hours.                       Thus, the State has shown

that    the   officers     legally      searching         Jackson's        residence     had

actively      engaged    in    searching       the       premises    before       Jackson's

arrival, and those officers would have continued the search and

discovered the physical evidence without Jackson's involvement.

       ¶90    Jackson contends that this court's decision in Knapp
should control the outcome in this case.                      In Knapp, this court

held that physical evidence was inadmissible when "obtained as

the direct result of an intentional Miranda violation."                              Knapp,

285    Wis. 2d 86,      ¶82.      But    the    circumstances          surrounding       the

State's acquisition of the incriminating evidence distinguish

the two cases.       While serving an arrest warrant on the defendant

in Knapp, the officer who obtained the evidence did so by asking

a question without reading the defendant his                           Miranda rights.
Id., ¶8.       The State provided no other evidence demonstrating


                                          46
                                                          No.         2014AP2238-CR



that it would inevitably have obtained the physical evidence by

legal     means.    Here,     in   contrast,   the   State      has     presented

testimony     by   multiple   officers     establishing    an    independent,

legal basis by which officers would have obtained the knife and

bloody clothing absent any involvement by Jackson.10

     10
       At oral argument, the Deputy Solicitor General, making
that office's first appearance before this court, emphasized the
importance of the proof of inevitability in this case:

     If Jackson had dumped the knife and clothes in some
     random garbage can, or if she had thrown it into the
     river as she drove home, or she had buried it in her
     backyard . . . , in any of those circumstances, the
     State wouldn't be able to argue inevitable discovery
     in this case.     When the police officers initially
     asked her, "Where's the knife," they did it in an
     unconstitutional interrogation. They had no idea what
     the answer was going to be. If it was, for instance,
     in the [random] garbage can, or it's in the river,
     then the evidence would be excluded, and the police
     would have lost very valuable evidence that they might
     have discovered some other way.   If it comes in——the
     only time it comes in——is when they inevitably would
     have had it anyway, so they haven't gained anything.
     But they have a lot that they can potentially lose, so
     there's   just   no   advantage   to   violating   the
     Constitution . . . and hoping to get something out of
     the inevitable discovery doctrine because there's
     little to gain through it.

     By dismissing the distinction between this case and State
v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899, as only a
"supposed difference," the dissent undervalues the State's
burden of proving inevitability.    Dissent, ¶131.   The dissent
suggests that "[t]he State in Knapp might have been able to
argue that some chain of events or alternative line of
investigation demonstrated that law enforcement would have
inevitably discovered the physical evidence."      Dissent, ¶126
n.30.    But Knapp contains none of the concrete indicia of
inevitability present in this case. Knapp involved a single law
enforcement officer who illegally obtained physical evidence by
asking a question that violated Miranda. In contrast, this case
                                                      (continued)


                                      47
                                                                   No.           2014AP2238-CR



      ¶91    Finally,      we   note       that    permitting      admission         of   the

knife and clothing does not leave Jackson without any recourse

for   the   officers'      illegal         interrogation      in     this    case.        The

detectives'       decision      to    detain      and   question       Jackson       in   the

manner seen here is unacceptable by any constitutional standard.

The   circuit     court    properly         excluded     Jackson's       statements        to

deter law enforcement officers from imitating the detectives'

unjustifiable      methods.           At    trial,      Jackson    will      receive      the

benefit of that exclusion because the State will be barred from

presenting the testimonial evidence obtained from her by illegal

means.      Although proof of inevitable discovery saves the knife

and   clothing      from     exclusion        in     this    case,     suppression         of

Jackson's       incriminating             statements        provides        an      entirely

appropriate remedy for the Miranda violations.

                                     V.    CONCLUSION

      ¶92    At   its   core,        the   exclusionary       rule     discourages        law

enforcement       officers      from       violating     suspects'       constitutional

rights by removing a key incentive——incriminating evidence——that
might otherwise encourage officers to engage in illegal conduct.

The rule seeks to deter misconduct, rather than to punish it

when it occurs.         As a result, if the court were to insist upon

suppression even when the State presents evidence proving that


involves a search warrant affidavit with untainted information
demonstrating probable cause for a search, as well as officers
independently conducting a methodical search of the premises.
The exception turns upon evidence of inevitability, not merely a
theory.




                                             48
                                                                No.        2014AP2238-CR



it    inevitably        would     have    discovered        evidence,       we     would

improperly apply exclusion in a purely punitive manner.                            Here,

the   State      has    demonstrated       that,     without        any    information

illegally obtained from Jackson, officers had probable cause to

search     Jackson's      residence,      and    they      independently        began    a

systematic and methodical search of the premises that would have

revealed      the    physical     evidence      actually     obtained      by    way    of

Jackson's suppressed statements.                Because the State has met its

burden of proof with regard to its independent search of the

premises, we conclude officers inevitably would have obtained

the   knife    and     clothing    in    Jackson's      garage.       Therefore,        we

affirm the decision of the court of appeals and remand to the

circuit     court      for   further     proceedings        consistent      with    this

opinion.



      By   the      Court.—The    decision      of   the    court     of   appeals      is

affirmed.




                                          49
                                                        No.     2014AP2238-CR




                                 APPENDIX

    This Appendix reproduces the language of the Affidavit in

Support of Search Warrant submitted for the search of Jackson's

residence.      All   personal    identifying       information       and   all

information illegally obtained from Jackson has been redacted;

all alterations are marked accordingly.



               AFFIDAVIT IN SUPPORT OF SEARCH WARRANT
    WHEREAS,    Detective   Renkas       of   the   Grand     Chute     Police

Department has this day complained to the said court upon oath

that on the 21st day of February, 2012, in said County in and

upon certain premises in the Town of Grand Chute in Outagamie

County, Wisconsin there is located a residence at [] W Fourth

Street in the City of Appleton, Outagamie County, Wisconsin and

more particularly described as follows:

    A split level duplex residence located on the south
    side of 4th Street, with the duplex unit of [] located
    on the west end of the duplex facing 4th Street, with
    black address numbers [] above the main front door,
    gray vinyl siding with white trim, dark grayish/black
    shingles with an attached two car garage
there are now located and concealed certain things, to-wit:

    clothing,   including   but   not    limited to    hooded
    sweatshirts, any knives or knife sheaths, any weapons,
    any firearms, any paper documents tending to establish
    the identity of the parties residing at the location;
    any materials, clothing, towels or other items
    containing blood or bloody substances, cell phones;
    any materials or items that may contain trace blood
    evidence;    any   photographs    at    the  home,    any
    gravemarkers or funeral materials; shoes at the home;
    cell phone, car and/or house keys, cell phone records;


                                    50
                                                No.   2014AP2238-CR


    any caller ID items; a 2007 gray in color, Chevrolet
    Malibu, registered to a Mastella L. Jackson with WI
    license place [], VIN []
which things were used in the commission of, or may constitute

the evidence of a crime, to-wit: Violation(s) of Homicide and

Reckless Injury contrary to §940 of the Wisconsin Statutes.

    NOW, THEREFORE, in the name of the State of Wisconsin, you

are commanded forthwith to search said premises and persons on

said premises for said things, and if the same or any portion

thereof are found, to safely keep the property seized so long as
necessary for the purpose of being produced as evidence on any

trial or until further order of the court.

    The facts tending to establish the ground for issuing a

search warrant are as follows:

    Affiant states that he has been a police officer for the

past 5 years with the Grand Chute Police Department and in that

capacity has knowledge of the following:

    Your affiant reports that on February 21, 2012, officers

were dispatched to the Roadstar Inn, located at 3623 W. College

Avenue, in the Town of Grand Chute, Outagamie County, Wisconsin,
at 1:25 pm for a medical call.        Off. Jones reports dispatch

advised the individual was face down, covered in blood.       Off.

Jones reports when he arrived at room 114 of the Roadstar Inn

the ambulance and fire departments were already there.        Off.

Jones reports he was told by a paramedic the individual was

deceased.   Off. Jones reports when he entered the room there was

a bloody phone receiver that was detached from the phone near
the door and walkway.    Off. Jones reports he walked into the


                                 51
                                                                  No.      2014AP2238-CR



room and saw blood smeared against the far wall beyond the beds

and    there   was    a    black    male    laying    prone      against    the   wall.

Affiant     reports       that   during     the    investigation,        officers   did

locate a WI ID card in the hotel room identifying the male party

as Derrick J. Whitlow, dob: [].

       Affiant reports that he spoke with Jon Hagen, a deputy

coroner     who     was    called      to   the    scene    to    make     an   initial

assessment on Derrick Whitlow.                   Affiant reports that Hagen did

share with him some photos taken at the scene that included

photos of Derrick J. Whitlow and it was apparent that he had a

very large area of injury to his right hand that appeared to be

a very deep cut to the hand.                 Affiant also reports Jon Hagen

reported that there is a significant area of injury to Whitlow's

neck which includes a significant cut to his neck/throat area.

Affiant also reports that in the upper left arm area Whitlow has

a large laceration and large area of injury to his upper left

chest area.       Affiant reports that he spoke with Off Schellinger

at the Roadstar who had been processing the scene and indicated
that    a   knife    sheath      was   located     next    to    Whitlow    which   was

approximately 8 inches in length with the writing 'Winchester'

located on it.        Affiant reports that within the hotel room were

very significant areas of blood and blood splatter; that there

was significant blood and blood splatter on the wall, bed and

floor of the hotel room.               Affiant reports that based upon his

training and experience any other party who would have been in

the room with Whitlow at the time of his injuries would likely




                                            52
                                                                No.     2014AP2238-CR



also have significant areas of blood and/or blood splatter on

their clothing or shoes.

    Affiant reports that Off. Jones reports that he spoke with

[the hotel manager], an employee who was working the front desk

of the Roadstar Inn on 2/21/12.                    [The manager] informed Off.

Jones   that    the    black    male    who    was   staying    in    Room   114   was

Derrick Whitlow and that he had been saying at the Roadstar Inn

since   the    17th     of     February,      2012    with     his    son,   who   is

approximately     10    years    old.         He   said   he   knew   that   Derrick

Whitlow has been having problems with his wife.

    Affiant reports that he spoke with [a cleaning employee]

who works at the Roadstar.             [The cleaning employee] reports that

she was working on 2/21/12; that she was doing the laundry in Rm

111 from approximately 1:00 to 1:30 pm when she heard and saw

someone knock on Room 114, a party who was wearing a gray hooded

sweatshirt with the hood pulled over their head.                      [The cleaning

employee] reports that the person was ultimately let into Room

114 by someone in the room.                [The cleaning employee] reports
that she then heard a male party screaming for help and she

heard what she thought was someone getting hit.                       [The cleaning

employee] reports that she then went to the manager to get help

and she did briefly see the person in the hooded sweatshirt

leaving.      [She] reports that hotel staff then entered Room 114,

located an injured male party and called the police.

    Affiant reports that he and Off. Jones reports that [a

hotel guest] stated he is staying in Room 115 at the Roadstar.
[The guest] stated that during the afternoon, he was in his room


                                         53
                                                                    No.     2014AP2238-CR



when he heard a female voice yelling.                    [The guest] stated that

he thought the female was the cleaning employee so he went to

see what was happening.            [The guest] stated that he went down

the hallway and saw the cleaning employee so he then realized it

was someone else.          [The guest] reports that he was just past

Room 114 when he heard a loud yell and then heard a male party

yelling "help me, help me."                 [The guest] stated that he then

went by the manager's office and then went outside and saw the

fire department arrive.

       Affiant   reports    that       Det.      Meyer   of   the     Appleton   Police

Department did assist in the investigation and on 2/21/12 did

Det. Meyer did speak with R.L.D.J. (DOB []), who stated his

mother is Mastella Jackson and his father is Derrick Whitlow.

He said his family had all been living together at their home,

but his father left to stay at the Roadstar Inn a few days ago.

Det. Meyer reports that based upon his previous contacts with

Mastella Jackson and Derrick Whitlow in January of 2012, he knew

they   were   residing     at     []    W     Fourth     Street     in    the   City   of
Appleton, Outagamie County, Wisconsin.                    RLDJ said when his dad

went to stay at the hotel a few days earlier, his brother went

with him to the hotel to help him because he had a broken leg.

RLDJ reports that his dad had left because he and his mom had

been   having    issues    that    included         'adult    conversations'        that

became loud.     RLDJ reports that on 2/21/12 he did stay home from

school and was with his mom.                RLDJ reports that during the late

morning hours, he did ride with his mom to an appointment she
had for an MRI; he stated when they arrived at the medical


                                            54
                                                                     No.      2014AP2238-CR



location, his mom didn't leave the car and instead she stated

she had sore feet and wasn't going in.                       RLDJ reports they then

went back to their house.              RLDJ reports that during the early

afternoon,      his    mother    became        angry       because    his     father      had

destroyed    some     pictures    of     her      as   a   little     child      and     other

family pictures as well as his grandmother's grave marker.                               RLDJ

stated   that    his    mother    left      the    residence     and       was    gone    for

approximately 15-20 minutes.              When his mother returned, he said

he heard a zipper sound and then heard his mother go directly

into the bathroom and she took a shower.                       He said when she got

out of the shower, she was in different clothing than she what

she had been wearing earlier in the day.                       After coming out of

the shower, RLDJ said that his mom, Mastella told him not to

tell anyone that she had left the house that day.                                Det. Meyer

reports that when RLDJ was asked what his mom might have in the

house for protection, he stated that mom did have a gun, a

shorter gun you would hold in your hand and that he saw the gun

this morning when mom had it in the house.
    Affiant       reports       that   on      2/21/12,       Off.     Schira       of    the

Appleton Police Department did assist in making contact with

Mastella Jackson at her residence at [] W Fourth Street in the

City of Appleton, Outagamie County, Wisconsin.                         Affiant reports

that both RLDJ and Jackson were located at the home.                                     Off.

Schira reports that located within the two car attached garage

of the home is a 2007 Chevrolet Malibu, 4 door, gray in color,

WI license place [], VIN[] registered to Mastella L. Jackson.




                                            55
                                                              No.         2014AP2238-CR



Off. Schira also reports at the residence on the curb area is

located a garbage bin.

       Affiant reports that on 2/21/12 officers did speak with

Mastella Jackson about where she had been earlier on that day.

Jackson did inform officers that she and Dwight Jackson [sic]

did have two children together and they had previously resided

together.     Jackson did state that a few days earlier Whitlow had

left    the    residence      and     was      staying       at     the      Roadstar

Inn. . . .    Affiant reports that on 2/21/12 he did observe a

vehicle in the garage at Mastella's residence.

       Affiant further reports that the statements of [the hotel

manager,    the   hotel    guest,    the    hotel    cleaning       employee],      Jon

Hagen and RLDJ are presumed truthful and reliable as citizen

witnesses. . . .     Affiant,       Off.    Jones,    Off.   Schellinger,         Det.

Meyer and Det. Callaway are presumed truthful and reliable as

they are sworn law enforcement officers.

       Wherefore,   your    affiant    prays    that     a   search       warrant   be

issued to enter said premises to search for the items identified
herein along with the items listed on the face sheet of the

search warrant.

                                                    Affiant - Det. Mike Renkas




                                       56
                                                              No.   2014AP2238-CR.ssa


       ¶93     SHIRLEY S. ABRAHAMSON, J.              (dissenting).       Unlike the

majority       opinion,     I    would     suppress     the   physical         evidence

obtained at Mastella Jackson's home following law enforcement

officers' deliberate violations of Jackson's Miranda rights.

       ¶94     The majority decides this Miranda case in the same

month as the fiftieth anniversary of Miranda v. Arizona, 384

U.S. 436 (June 13, 1966).1                Miranda is perhaps the best-known

criminal law decision of the United States Supreme Court.

       ¶95     The   Miranda     warnings       are   celebrated     as    a     shield

against compelled self-incrimination and violations of criminal

suspects' constitutional rights.                Miranda warnings stem from the

very       constitution    our   law     enforcement    officers    are    sworn     to

protect and defend.2

       ¶96     Moreover,    Miranda      warnings are "embedded in routine

police practice" and "have become part of our national culture."3




       1
       The American Bar Association used the fiftieth anniversary
of the Miranda decision as this year's Law Day (May 1) theme.

     Minnesota Judge Kevin S. Burke wrote in celebration of Law
Day 2016 and the Miranda decision as follows:      "Our criminal
justice system has faults, but the Miranda decision 50 years
later is the embodiment of what President Eisenhower hoped for
in creating Law Day:    a democracy that chooses not force, but
the rule of law."    Judge Kevin S. Burke, Choosing the rule of
law: a tribute to the Miranda decision, MinnPost (Apr. 29,
2016),                        https://www.minnpost.com/community-
voices/2016/04/choosing-rule-law-tribute-miranda-decision.
       2
       See Dickerson v. United States, 530 U.S. 428, 438 (2000)
("Miranda is a constitutional decision . . . .").
       3
           See Dickerson, 530 U.S. at 443.


                                            1
                                                                  No.    2014AP2238-CR.ssa


      ¶97    Even    fictional       TV      law      enforcement        officers       like

Dragnet's Detective Joe Friday and Law and Order's officers give

Miranda warnings.           If you missed the warnings in the original

series you will hear them again and again in the reruns.4

      ¶98    The circuit court developed an extensive record about

Jackson's      interrogation,          including             testimony         and     audio

recordings.5

      ¶99    Jackson       was     brought       to     the    Grand     Chute       Police

Department shortly after 4:30 PM.                     She was alone in a room for

about two hours.           Grand Chute Police officers began questioning

Jackson at about 6:30 PM, and the circuit court found Jackson

was   in    custody        (i.e.,    not     free       to    leave)     at     7:25     PM.

Nevertheless,       the    interrogation         continued      for     more    than    five

hours before officers advised Jackson of her Miranda rights.6

      ¶100 During         the    interrogation,        Jackson     was    in     pain    and

needed her prescription medication.                     Several times during the

officers' questioning, she asked "to leave," "to go home," "not

to say anything," and "to talk at a different time."7                                Despite
the fact that Jackson was told at the outset, "[Y]ou're not


      4
       See George C. Thomas III & Richard                     A. Leo, The Effects of
Miranda v. Arizona:    "Embedded" in Our                       National Culture?, 29
Crime & Just. 203, 246 (2002) ("[I]t is                       because of these shows
and the mass media more generally——not                        the police, the legal
system, or Supreme Court doctrine——that                       Miranda has become so
much a part of our national culture.").
      5
          Majority op., ¶35.
      6
          Majority op., ¶2.
      7
          Majority op., ¶¶22, 25; see also ¶27.


                                             2
                                                             No.     2014AP2238-CR.ssa


under      arrest   or,   you    know,   you're    free    to    go,    you   know,"8

Jackson's requests to leave and not to speak went unheeded, all

contrary to federal constitutional law.

      ¶101 The      circuit      court    issued    a     comprehensive        ruling

suppressing the statements made during the interrogation.9                        The

circuit court concluded that the failure to read Jackson her

Miranda      warnings     was   an   intentional     violation         of   Jackson's

constitutional rights.           The circuit court strongly condemned the

officers and detectives for              giving incredible testimony10 and

deliberately violating Jackson's rights.

      ¶102 The circuit court judge stated that when he considered

the        interrogation        he   "became       sick         to     my     stomach

literally . . . . [T]his is textbook interrogation of what not

to do if you want to be doing good police work and get stuff

admitted in during a hearing."

      ¶103 The circuit court went on to denounce the officers'

conduct as follows:

      I've never seen a case, been part of a case, or heard
      of a case that's worse than this in terms of what the
      police officers did in that interrogation room. . . .
      [T]his is just a clear violation of somebody's rights
      over a long period of time involving many different
      officers with lots of opportunities to have one of
      them step up and say, hey, this is not the way we need
      to do this.



      8
           Majority op., ¶18.
      9
           Majority op., ¶36.
      10
           Majority op., ¶36.


                                          3
                                                                 No.   2014AP2238-CR.ssa


     ¶104 Compounding the duplicity of the                       Miranda    violation,

when the officers finally read Jackson her rights, the detective

assured Jackson that her rights would not be violated:

     Can I, can I read [Miranda warnings] to you first
     because I technically can't get into a lot of stuff
     without until I advise you of these and you decide
     whether or not you want to talk to me anymore, OK
     because I can't violate your rights, do you know what
     I mean? So can I read this to you and then you decide
     whether or not you want to talk to me because I can't
     really get into any in depth conversation with you
     until you either tell me yes or no that you're willing
     to talk to me.   So let me read this to you and then
     you decide what you want to answer and we'll go from
     there and then anything I can answer for you I'll
     answer, presuming you want to talk to me.        Sound
           11
     fair?
     ¶105 After hearing the Miranda warnings Jackson asked:                         "So

earlier, when you, when you wouldn't let me leave . . . ."                          The

detective cut her off.

     ¶106 Contrary to what the detective told Jackson, Miranda

warnings    are   not   a    technicality——they         are      a    constitutionally

required     "shield        that      protects     against           compelled    self-

incrimination."12           We    have    recognized    that         Miranda's   shield

against compelled self-incrimination is "made of substance, not
tinsel,"    and   "[a]ny         shield   that   can   be   so       easily . . . cast

aside by the very people we entrust to enforce the law fails to

serve its own purpose, and is in effect no shield at all."13

     11
          Majority op., ¶27 (emphasis added).
     12
       State v. Knapp, 2005 WI 127, ¶72, 285 Wis. 2d 86, 700
N.W.2d 899.
     13
          Knapp, 285 Wis. 2d 86, ¶72.


                                            4
                                                           No.    2014AP2238-CR.ssa


     ¶107 The court of appeals branded "the officers' actions

during the interrogation of Jackson [as] reprehensible."14                     The

majority opinion agrees that the circuit court's and court of

appeals' condemnation of the police conduct was "warranted and

appropriate."15

     ¶108 Our society asks law enforcement officers to perform

an extraordinarily difficult and dangerous job.                  We rely on them

to maintain public safety and defend the rule of law.                    And most

law enforcement officers perform admirably, placing themselves

in harm's way to protect the rest of us.

     ¶109 To enable them to do their important work, society

entrusts       law   enforcement   officers   with   enormous      power.      The

power of law enforcement officers, however, like the power of

all government officials, is not unchecked.

     ¶110 Our court has forcefully declared:                "Just as we will

not tolerate criminal suspects to lie to the police under the

guise     of   avoiding    compelled   self-incrimination,         we   will   not

tolerate the police deliberately ignoring Miranda's rule as a
means of obtaining inculpatory physical evidence."16                    Disregard

for the rule of law, especially by those sworn to protect and

defend     it,   breeds    distrust,   suspicion,    and    contempt      in   the

     14
       State v. Jackson, 2015 WI App 49, ¶48, 363 Wis. 2d 554,
866 N.W.2d 768.
     15
       See majority op., ¶69 ("[T]he circuit court and court of
appeals, respectively, rebuked officers for 'flagrant' and
'reprehensible' violations of Jackson's rights——rebukes, we
believe, that were warranted and appropriate.").
     16
          Knapp, 285 Wis. 2d 86, ¶72.


                                       5
                                                                 No.   2014AP2238-CR.ssa


community,        and     undermines        the    important          and     legitimate

activities of law enforcement.17

      ¶111 In      the      instant      case,     by    intentionally             flouting

Jackson's         rights,      law       enforcement         officers              obtained

incriminating statements from Jackson and took a shortcut to

accelerate the discovery of incriminating physical evidence in

Jackson's     home——bloody         shoes,    clothes,      and    a    knife        Jackson

allegedly used to kill her husband.18                   Although police searched

Jackson's home for incriminating evidence pursuant to a warrant,

the     warrant    was    based     in    part     on   statements          made    during

Jackson's unlawful interrogation, and the shoes, clothes, and

knife      were   found     only    after       officers   brought          Jackson    (in

custody) to her home at about 2:15 AM to point out the objects.

      ¶112 The incriminating statements Jackson made before and

after she was given Miranda warnings remain suppressed.                                 The

suppression of Jackson's statements (including those statements

made when she was in her home) is not challenged by the State.




      17
       "When a public official behaves with such casual
disregard for his constitutional obligations and the rights of
the accused, it erodes the public's trust in our justice system,
and chips away at the foundational premises of the rule of law.
When such transgressions are acknowledged yet forgiven by the
courts, we endorse and invite their repetition." United States
v. Olsen, 737 F.3d 625, 632 (9th Cir. 2013) (Kozinski, C.J.,
joined by four judges, dissenting from denial of rehearing en
banc); see also Knapp, 285 Wis. 2d 86, ¶¶75, 79.
      18
       See ¶134, infra (quoting Professor LaFave's criticism of
a court's using the inevitable discovery doctrine under these
circumstances).


                                            6
                                                                       No.    2014AP2238-CR.ssa


Rather,        the    State      challenges          only   the   suppression          of   the

physical evidence seized at Jackson's home.

      ¶113 The majority opinion agrees with the court of appeals'

decision        reversing        the     circuit       court's     suppression         of   the

incriminating physical evidence.

      ¶114 A         court      is     clearly       saddened     and    disappointed        to

observe and write about intentional police misconduct violating

a constitutional right.                 A court's expression of commitment to

the   Constitution           rings     hollow,       however,     if    the    court    allows

Miranda's shield against compelled self-incrimination to be cast

aside without providing a remedy.                      True, Jackson's incriminating

statements remain suppressed, but the majority does not offer

either Jackson or the people of the State a remedy for the

intentional, unwarranted, and unconstitutional shortcut police

took in discovering the incriminating physical evidence.                                    The

remedy     I    propose,        suppression      of     the   physical        evidence,     has

shortcomings,             but    suppression          further        deters      intentional

violations           of     Miranda,        fulfilling        "one      purpose        of   the
exclusionary rule[, which] is to deter such shortcuts . . . ."

See 6 Wayne R. LaFave, Search & Seizure § 11.4(a), at 344-45

(5th ed. 2012).             Not granting a remedy for this shortcut is not

an acceptable option.                See ¶¶136, 138-143, infra.

      ¶115 I conclude that to ensure that "those we entrust to

enforce        the    law    [do     not]    intentionally        subvert       a   suspect's

constitutional rights,"19 suppression of the physical evidence


      19
           Knapp, 285 Wis. 2d 86, ¶83.


                                                 7
                                                                    No.    2014AP2238-CR.ssa


obtained at Jackson's home is necessary.                            In concluding that

suppression of the physical evidence is necessary, I adhere to

the reasoning in State v. Knapp, 2005 WI 127, 285 Wis. 2d 86,

700 N.W.2d 899, which held that physical evidence obtained as a

direct      result    of     an   intentional        violation            of    Miranda      is

inadmissible        under    Article     I,      Section     8      of     the       Wisconsin

Constitution.

      ¶116 In refusing to suppress the physical evidence obtained

at Jackson's home, the majority opinion applies the inevitable

discovery doctrine, an exception to the exclusionary rule.20                                  I

disagree with applying the inevitable discovery doctrine in the

instant case.         I would hold, based on Knapp, that Article I,

Section 8 of the Wisconsin Constitution does not allow the State

to   rely    on    the     inevitable    discovery         doctrine            in    cases   of

intentional police violations of Miranda.

      ¶117 I      also     have   concerns       about    the       majority         opinion's

approach to the substantive aspects of the inevitable discovery

doctrine.        I discuss these concerns in Part II of this dissent.
      ¶118 For       the    reasons     set      forth,    I        dissent         and   write

separately.

                                             I

      ¶119 The       physical     evidence        should       be     suppressed          under

Article     I,    Section     8   of   the       Wisconsin       Constitution,            which

provides (in relevant part):




      20
           See majority op., ¶92.


                                             8
                                                    No.   2014AP2238-CR.ssa

      (1) No person . . . may be compelled in any criminal
           case to be a witness against himself or herself.
     ¶120 The   text     of   the   relevant   portion    of   the   Fifth

Amendment to the United States Constitution is similar:

     No person . . . shall be compelled in any             criminal
     case to be a witness against himself . . . .
     ¶121 Although the text of Article I, Section 8 and                the

Fifth Amendment are similar, we need not interpret our Wisconsin

Constitution in lock-step with the interpretation of the United

States Constitution.21

     ¶122 In interpreting the Wisconsin Constitution, this court

should take the position espoused by Wisconsin Supreme Court

Justice Abram Smith in 1855:

     In view of the obligations imposed upon me, or rather
     voluntarily   assumed   by   me, . . . in     my   present
     position,   I   have   felt   bound   to    sustain   that
     fundamental   law——the   constitution    of   the   state,
     according to its true intent and meaning. That is the
     great charter of our rights, to which the humblest may
     at all times appeal, and to which the highest must at
     all times submit.

     Let us then look to that constitution, adopted by the
     people of Wisconsin, and endeavor to ascertain its
     true intent and meaning . . . .



     21
       See Knapp, 285 Wis. 2d 86, ¶¶59-62; see also Knapp, 285
Wis. 2d 86, ¶¶84-94 (Crooks, J., concurring); William J.
Brennan, Jr., State Constitutions and the Protection of
Individual Rights, 90 Harv. L. Rev. 489, 500 (1977) ("[W]hile
this results in a divergence of meaning between words which are
the same in both federal and state constitutions, the system of
federalism envisaged by the United States Constitution tolerates
such divergence where the result is greater protection of
individual   rights   under   state  law  than   under   federal
law . . . .") (quoted source omitted).


                                     9
                                                           No.   2014AP2238-CR.ssa

      The people then made this constitution, and adopted it
      as their primary law. The people of other states made
      for themselves respectively, constitutions which are
      construed by their own appropriate functionaries. Let
      them construe theirs——let us construe, and stand by
      ours.
Att'y Gen. ex rel. Bashford v. Barstow, 4 Wis. 567 (*567),                     785

(*757-58) (1855) (emphasis in original).

      ¶123 I turn to Knapp, which interpreted Article I, Section

8 of the Wisconsin Constitution.            The Knapp court broke from the

United     States   Supreme    Court's      interpretation       of    the   Fifth

Amendment, holding that when "physical evidence is obtained as

the   direct    result   of    an    intentional     Miranda      violation,    we

conclude     that   [Article    I,    Section    8   of]    our       constitution

requires that the evidence must be suppressed."22

      ¶124 Let's begin with the facts in Knapp.                  The defendant,

Knapp, was a parolee who was seen with a woman who was later

murdered.23     Based on a parole violation, an officer went to the

defendant's house to apprehend him.24           When the officer arrived,

he told Knapp that he had to go to the police station, but never

read him the Miranda warnings.25            Before leaving Knapp's house,

the officer questioned him about what clothes he was wearing

when he was seen with the victim.26           After Knapp pointed out the


      22
           Knapp, 285 Wis. 2d 86, ¶2 (emphasis added).
      23
           Knapp, 285 Wis. 2d 86, ¶5.
      24
           Knapp, 285 Wis. 2d 86, ¶¶6-7.
      25
           Knapp, 285 Wis. 2d 86, ¶7.
      26
           Knapp, 285 Wis. 2d 86, ¶8.


                                       10
                                                      No.   2014AP2238-CR.ssa


clothes, the officer seized them and took Knapp to the police

station.27       Police later discovered the victim's blood on the

sleeve of Knapp's sweatshirt.28

       ¶125 Knapp argued that the sweatshirt should be suppressed

based on the officer's intentional violation of Miranda.                 The

court agreed, relying on Article I, Section 8 of the Wisconsin

Constitution and the deliberate violations of Miranda at issue.

Although the court recognized that the exclusionary rule is not

absolute, the court concluded that the need to deter intentional

violations of individuals' constitutional rights and preserve

the integrity of the judicial system required the application of

the exclusionary rule when physical evidence is obtained as a

direct result of an intentional Miranda violation.29

       ¶126 Knapp differs from the instant case in that no search

warrant was issued in Knapp.30             The officer in Knapp was not

pursuing other means of searching the defendant's house at the

time the intentional violation of Miranda occurred.31            Thus, the

Knapp court described the location of the physical evidence as a
direct result of the        Miranda   violation.     In contrasting the

       27
            Knapp, 285 Wis. 2d 86, ¶8.
       28
            Knapp, 285 Wis. 2d 86, ¶12.
       29
            See Knapp, 285 Wis. 2d 86, ¶¶74-75, 79, 83.
       30
          Jackson, 363 Wis. 2d 554, ¶45.    Knapp does not involve
the    inevitable discovery doctrine.    The State in Knapp might
have    been able to argue that some chain of events or alternative
line    of investigation demonstrated that law enforcement would
have   inevitably discovered the physical evidence.
       31
            See Knapp, 285 Wis. 2d 86, ¶¶7-9.


                                      11
                                                                         No.   2014AP2238-CR.ssa


instant case with Knapp, the court of appeals stated that "the

knife, clothes, and shoes [in the instant case] would have been

inevitably       discovered      by     lawful          means,       notwithstanding        the

police misconduct."32          The "lawful means" to which the court of

appeals refers is the search of Jackson's home pursuant to the

warrant.

      ¶127 Like        the    court    of        appeals,          the    majority     opinion

concludes that the physical evidence inevitably would have been

discovered pursuant to the search warrant.33                             Perhaps.      But the

search     warrant      was    based       in        part    on     Jackson's      suppressed

statements obtained in violation of Miranda.

      ¶128 To validate the search warrant, the court of appeals

and   majority       opinion        have    to        excise       Jackson's       suppressed

statements.34      Furthermore, although law enforcement had a search

warrant, the physical evidence was found only after the officers

took Jackson to her home and asked her to show them where she

discarded the clothes, shoes, and knife.                             On these facts, the

circuit court suppressed the physical evidence.
      ¶129 Whether locating the physical evidence in the instant

case fits the verbal formula in Knapp of a "direct" result of a

Miranda violation, locating the physical evidence is very much

related     to   and    can    be     described         as     a    direct      outgrowth    of


      32
           Jackson, 363 Wis. 2d 554, ¶45.
      33
           See majority op., ¶75.
      34
       See       majority     op.,     ¶¶75-76;             Jackson,      363    Wis. 2d 554,
¶¶17-18.


                                                12
                                                                  No.   2014AP2238-CR.ssa


Jackson's      illegal    interrogation           before    and   after    the   Miranda

warnings.       By the time Jackson was taken to her home it was

about 2:15 AM, and Jackson had been in custody and subject to

questioning      for     more    than    seven      hours.        The   circuit   court

suppressed Jackson's statements, including statements she made

when the officers took her to her home and had her locate the

physical evidence.

     ¶130 In suppressing Jackson's statements, the circuit court

relied    on    Missouri        v.   Seibert,      542     U.S.   600     (2004),35   and

concluded that Jackson's statements were involuntary under the

circumstances.36         The direct causal connection between Jackson's

illegally obtained (and properly suppressed) statements and the

discovery of the physical evidence is clear and undeniable.

     ¶131 I do not view any supposed difference between Knapp

and the instant case as sufficient to depart from the reasoning

and holding of Knapp.                Relying on the rhetorical distinction

between   evidence       obtained       as   a    "direct"    (versus      "indirect?")

     35
       In Missouri v. Seibert, 542 U.S. 600 (2004), the United
States Supreme Court addressed whether suppression of evidence
is necessary for statements made after Miranda warnings are
given if, before the officers gave the suspect Miranda warnings,
an unconstitutional interrogation had taken place.     The court
held that such statements must be suppressed despite "the
midstream recitation of warnings after interrogation and
unwarned confession" in order to effectively comply with
Miranda. Seibert, 542 U.S. at 604.
     36
       The State did not challenge these aspects of the circuit
court's decision. Indeed the State accepted for purposes of its
brief that "Jackson's statements to the police were obtained in
violation of Miranda and were involuntary, [and] that the police
improperly relied on information obtained from Jackson to locate
[the physical evidence]." Brief of Plaintiff-Appellant at 11.


                                             13
                                                                            No.    2014AP2238-CR.ssa


result    of     a    violation          of    Miranda         distorts      the   facts     of   the

instant case and the policy underlying Miranda and Knapp.                                         The

majority opinion's decision allowing the use of the inevitable

discovery doctrine to avoid suppression of evidence that was

concededly       obtained           as     a    direct         outgrowth      of     a    coercive,

deliberate,           illegal        interrogation                allows       the       inevitable

discovery doctrine to swallow Miranda, the exclusionary rule,

and Knapp.

     ¶132 Moreover,             I        disagree         with    the       majority      opinion's

holding that good faith by law enforcement is not a prerequisite

for relying on the inevitable discovery doctrine.                                     I view good

faith     in   the     instant       case           as    an   essential      element       for   the

application of the inevitable discovery doctrine.

     ¶133 In          disregarding             the       law   enforcement         officers'      bad

faith,    the        majority       opinion          relies      on   Nix    v.    Williams,       467

U.S. 431 (1984), the famous (or "infamous"37) Christian Burial

Case.     In Nix, the United States Supreme Court concluded that

requiring "that the prosecution . . . prove the absence of bad
faith would . . . withhold[] from juries relevant and undoubted

truth     that       would   have         been       available        to    police       absent   any

unlawful police activity" and would "put the police in a worse

position that they would have been in if no unlawful conduct had

transpired."38


     37
          See Knapp, 285 Wis. 2d 86, ¶30.
     38
       Nix v. Williams,                       467    U.S. 431,        445    (1984);       see    also
majority op., ¶¶71-72.


                                                     14
                                                          No.   2014AP2238-CR.ssa


      ¶134 Nix has spawned significant criticism.                  For example,

Professor Wayne LaFave's treatise on criminal law (referenced by

the majority opinion) states:

      Because one purpose of the exclusionary rule is to
      deter . . . shortcuts, there is much to be said for
      the proposition that the "inevitable discovery" rule
      should be applied only when it is clear that "the
      police officers have not acted in bad faith to
      accelerate the discovery" of the evidence in question.
6 Wayne R. LaFave, Search & Seizure, § 11.4(a) at 344-46 (5th

ed.   2012)    (quoting    Brian   S.    Conneely     &   Edmond    P.   Murphy,

Comment,      Inevitable   Discovery:        The   Hypothetical     Independent

Source Exception to the Exclusionary Rule, 5 Hofstra L. Rev.




                                        15
                                                           No.    2014AP2238-CR.ssa


137,    160   (1976)).39        Professor      LaFave   does       not     consider

compelling the argument that "'if we hadn't done it wrong, we

would have done it right . . . .'"             6 LaFave, Search & Seizure,

§ 11.4(a), at 347 (quoted source omitted).

       ¶135 The     majority     asserts      that   the        uncertainty     law

enforcement       officers     face   over    the    applicability         of   the

inevitable discovery doctrine when they intentionally violate an

individual's      rights     justifies    application      of    the     inevitable



       39
       For criticism of and proposed limitations on the
inevitable discovery doctrine, see also, e.g., Eugene L.
Shapiro, Active Pursuit, Inevitable Discovery, and the Federal
Circuits:     The Search for Manageable Limitations Upon an
Expansive Doctrine, 39 Gonz. L. Rev. 295 (2003-04) (noting the
expansiveness    of  the   inevitable   discovery    doctrine   and
describing a significant split among the federal circuits
concerning whether the inevitable discovery doctrine requires a
separate and independent investigation be ongoing at the time of
the constitutional illegality); William C. Heffernan, Foreword:
The Fourth Amendment Exclusionary Rule as a Constitutional
Remedy, 88 Geo. L.J. 799, 856-57 (2000) (exploring alternatives
to the exclusionary rule and arguing that the inevitable
discovery   doctrine    should   require   (1)    an    independent
investigation be underway when a tainted chain of events is
unfolding; and (2) a demonstration by the State by clear and
convincing evidence that the independent investigation would
produce the same information discovered were it not for the
illegality); George C. Thomas III & Barry S. Pollack, Balancing
the Fourth Amendment Scales:       The Bad-Faith "Exception" to
Exclusionary Rule Limitations, 45 Hastings L.J. 21, 57 (1993)
(noting the "inherently speculative nature" of the inevitable
discovery doctrine and suggesting there is less reason to engage
in that speculation where evidence was obtained through a bad
faith violation of a defendant's rights); John E. Fennelly,
Refinement of the Inevitable Discovery Exception: The Need for
a Good Faith Requirement, 17 Wm. Mitchell L. Rev. 1085, 1100-06
(1991) (arguing that the courts should not favor intentional
police lawbreaking by affording the misconduct the same
treatment given honest mistakes).


                                         16
                                                                      No.    2014AP2238-CR.ssa


discovery doctrine.40             No empirical evidence supports this bare

assertion.        We   are      in    an     era    recognizing       the       importance      of

evidence-based decision making, but all the majority musters is

conjecture.

     ¶136 The majority also emphasizes the "societal costs" of

applying the exclusionary rule in instances in which evidence

inevitably would have been discovered by lawful means.41                                    To be

sure, there are such costs; however, other proposed remedies for

law enforcement misconduct present other problems.42                                   But not

granting    a    remedy     in       the    instant     case    is    not       an   acceptable

option.      Nowhere       in    the       majority's     calculus         is    the   cost     to

judicial     integrity          and    deterrence        of    allowing          the    use    of

evidence        obtained        by     flagrant         and     reprehensible               police

wrongdoing.

     ¶137 In Knapp, two key factors led this court to conclude

that Article I, Section 8 required the suppression of evidence

obtained as a direct result of a violation of Miranda.                                      First,

failing     to     suppress           such     evidence        would        "'minimize        the
seriousness of the police misconduct producing the evidentiary

fruits, breed contempt for the law, and encourage the type of

conduct that Miranda was designed to prevent, especially where

     40
       Majority op., ¶71                     (quoting    Nix,        467     U.S.      at     445)
(alteration in original).
     41
          Majority op., ¶¶46, 55.
     42
       See generally Heffernan, supra note 39, at 818-19, 848-
51, 854-58 (discussing the exclusionary rule's limitations and
advantages as a remedy and exploring alternative remedies for
constitutional violations).


                                               17
                                                                 No.    2014AP2238-CR.ssa


the police conduct is intentional, as it was here.'"43                            Second,

allowing the State to benefit from ill-gotten gains undermines

the integrity of the judicial system.44

       ¶138 I agree with those who have written that "the need to

deter is greater when the illegal activity of the police is

deliberate.          Society needs to make clear to the enforcers of our

laws        that     when   they      deliberately          violate     constitutional

principles a penalty must be paid."45

       ¶139 Thus, three states, Alaska, Massachusetts, and North

Dakota,       each    relying    on   a    state      law   or   constitution,      have

narrowed the inevitable discovery doctrine to cases in which

police do not knowingly or intentionally violate a suspect's

rights.       See, e.g., Commonwealth v. Mattier, 50 N.E.3d 157, 167

(Mass. 2016) (citing Commonwealth v. Sbordone, 678 N.E.2d 1184,

1190 (Mass. 1997));             State v. Holly, 833 N.W.2d 15, 33 (N.D.

2013) (citing State v. Phelps, 297 N.W.2d 769, 775 (N.D. 1980));

Smith v. State, 948 P.2d 473, 481 (Alaska 1997); see also United

States v. Madrid, 152 F.3d 1034, 1041 (8th Cir. 1998) (declaring
that courts are not required to apply the inevitable discovery

doctrine       "without     regard        to    the    severity        of   the   police

misconduct"); but see State v. Garner, 417 S.E.2d 502, 510-11

(N.C. 1992) (rejecting this view).

       43
            Knapp, 285 Wis. 2d 86, ¶75 (quoted source omitted).
       44
            Knapp, 285 Wis. 2d 86, ¶79.
       45
       Steven P. Grossman, The Doctrine of Inevitable Discovery:
A Plea for Reasonable Limitations, 92 Dick. L. Rev. 313, 356
(1988) (emphasis added).


                                               18
                                                                 No.    2014AP2238-CR.ssa


    ¶140 As the Massachusetts Supreme Judicial Court put it:

    We think the severity of the constitutional violation
    is critical in deciding whether to admit evidence that
    it    is    shown     would   inevitably    have   been
    discovered. . . .    Bad faith of the police, shown by
    such activities as conducting an unlawful search in
    order to accelerate discovery of the evidence, will be
    relevant   in     assessing   the   severity    of  any
    constitutional violation.
Commonwealth       v.    O'Connor,     546      N.E.2d 336,      340     (Mass.     1989)

(internal citations omitted).

    ¶141 The concerns raised by these cases and commentators
are echoed by our own decision in Knapp, and are as salient in

the instant case as they were in Knapp.                    The circuit court, the

court of appeals, the majority opinion, and I all agree that the

violations     of       Jackson's     rights     in      the    instant     case       were

intentional,        deliberate,           unjustifiable,          and       profoundly

troubling.     I am troubled that the majority opinion, despite its

recognition    of       law    enforcement's        wrongdoing,         minimizes       the

seriousness of the wrongdoing and in effect may encourage future

violations    by    allowing     law    enforcement        to    fall    back     on   the

inevitable    discovery        doctrine      even   in    unfortunate       cases      like

this one.

    ¶142 Justice Louis Brandeis got it right in Olmstead v.

United   States,         277   U.S.    438,      468     (1928)        (Brandeis,      J.,

dissenting):

    Crime is contagious.    If the government becomes a
    lawbreaker, it breeds contempt for law; it invites
    every man to become a law unto himself; it invites
    anarchy. To declare that in the administration of the
    criminal law the ends justifies the means——to declare
    that the government may commit crimes in order to
    secure the conviction of a private criminal——would
                                           19
                                                                   No.    2014AP2238-CR.ssa

     bring terrible retribution.    Against that pernicious
     doctrine this court should resolutely set its face.
     ¶143 Accordingly, I would adhere to our reasoning in Knapp,

not the United States Supreme Court's reasoning in Nix, and hold

that under Article I, Section 8 of the Wisconsin Constitution,

the State may not rely on the inevitable discovery doctrine in

cases in which law enforcement officers acted in bad faith by

deliberately failing to give Miranda warnings.

                                             II

     ¶144 I    have        reservations       about     the        majority     opinion's

discussion     of   the      substantive            aspects    of        the   inevitable

discovery    doctrine.           The    majority       opinion       reformulates       the

three-prong     analysis         of    the    inevitable        discovery        doctrine

applied by the court of appeals.                   Reformulating the analysis of

the inevitable discovery doctrine was not an issue raised or

discussed by the parties.              Instead of the normal progression of

issues being narrowed or limited on appeal, the majority opinion

expands the issues.

     ¶145 True,       as     the      majority       opinion       points      out,    some

exceptions     to   the      court      of        appeals'     formulation        of    the

inevitable discovery doctrine may be necessary, but the court of

appeals'     three-prong         analysis     (unlike        the     majority's        free-

flowing inevitability analysis) provides important guidance to

circuit courts and the court of appeals.46

     ¶146 Additionally,            given      the     focus     of       the   inevitable

discovery    doctrine       on   whether      evidence       inevitably        would    have

     46
          See majority op., ¶¶62-66.


                                             20
                                                                No.   2014AP2238-CR.ssa


been    discovered      by    lawful     means,    I    question       the    majority

opinion's reliance on the "preponderance of the evidence" burden

of proof.47          "Proof by a preponderance of the evidence would

require a mere showing that [an occurrence] is more likely than

not . . . ."48

       ¶147 An inevitability is defined as something that is "sure

to happen."49         There is an obvious tension in requiring proof

that an event is "more likely than not to happen" when the fact

to be proved is that the event is "sure to happen."50

       ¶148 I would follow the practice of other courts and hold

the    State    to    the   heightened    "clear   and        convincing     evidence"

burden of proof in inevitable discovery cases.                        Increasing the

burden of proof has both practical and symbolic significance,


       47
            See majority op., ¶66.
       48
       In re Commitment of                 West,       2011    WI     83,    ¶80,   336
Wis. 2d 578, 800 N.W.2d 929.
       49
            Merriam-Webster's      Learner's           Dictionary,           Inevitable
(2008).
       50
        See United States v. Heath, 455 F.3d 52, 59 n.6 (2d Cir.
2006)   (describing   the  "semantic   puzzle"  of   "using  the
preponderance of the evidence standard to prove inevitability"
and   concluding that it was sufficient to "note the difference
between proving by a preponderance that something would have
happened and proving by a preponderance of the evidence that
something would inevitably have happened.") (quoted source
omitted; 6 Wayne R. LaFave, Search and Seizure, § 11.4(a) at
359-61 (5th ed. 2012) ("A 'majority of the courts that have
utilized the exception have tended to define the necessary
probability in terms of 'would,' which is the constitutional
standard . . . .' 'It is not enough to show the evidence 'might'
or 'could' have been otherwise obtained.'") (internal citations,
footnotes, and quotation marks omitted).


                                          21
                                                                   No.    2014AP2238-CR.ssa


impressing upon the factfinder the importance of the decision

and   reducing        the    chance        that       hypothetical            findings     of

inevitability will swallow the exclusionary rule.                               See, e.g.,

State v. Rodrigues, 286 P.3d 809, 823 (Haw. 2012) (quoting State

v. Lopez, 896 P.2d 889, 907 (Haw. 1995)); State v. Smith, 54

A.3d 772,      786-87      (N.J.    2012)       (citing      State       v.    Sugar,     495

A.2d 90, 104 (N.J. 1985)); Smith v. State, 948 P.2d 473, 479

(Alaska   1997);      see   also    Nix,        467   U.S.   at    459    (Brennan,       J.,

dissenting)      (asserting        that     proof       of   the     inevitability         of

discovering evidence by lawful means should be shown by clear

and convincing evidence).

      ¶149 For       the    reasons       set    forth,      I     dissent      and     write

separately.

      ¶150 I    am    authorized      to        state    that      Justice      ANN     WALSH

BRADLEY joins this opinion.




                                            22
    No.   2014AP2238-CR.ssa




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