Permissibility of Use of Evidence Seized Pursuant to Mail Fraud Statute For Prosecution of Tax Evasion

Author: LegalEase Solutions 

QUESTIONS PRESENTED

  1. Whether evidence seized pursuant to a search warrant that was specifically authorized under suspicion of criminal activity under the mail fraud statute can be used as evidence for a prosecution under the tax evasion statute without the authorization of an additional warrant to seize the evidence on suspicion of a tax-related crime?
  1. Whether the postal inspector had probable cause to justify the referral of and transfer of defendant’s records the IRS’ Criminal Tax Division, when there was nothing incriminating on the face of the records?

 SHORT ANSWERS

  1. No, unless the Tax Division authorized the warrant or there was probable cause to justify the Postal Inspector’s referral of the case to the Internal Revenue Service.
  2. If a plain view of documents did not establish probable cause for a tax crime, the postal inspector was not justified in referring the case to the IRS Criminal Division. Another option would be to challenge the postal inspector’s search warrant itself as being too broad such that suppression of the evidence seized by that warrant could not be used to establish probable cause that Defendant had committed a tax crime.

 STATEMENT OF FACTS

This Defendant was charged with Tax Evasion, a criminal tax offense found at 26 U.S.C. 7201.  The evidence used at his trial was obtained in September 2001 based on a search warrant specially covering mail fraud, 18 U.S.C. 1341, and conspiracy, 18 U.S.C. 371.  The search warrant was authorized by the United States Postal Inspection Service, and listed, inter alia, the seizure of the defendant’s business records and tax records in support of search warrant dealing with mail fraud and conspiracy to commit mail fraud. While searching the defendant’s place of business, officers obtained tax records and bank records. The defendant was never indicted on mail fraud or conspiracy.

Tax records were given to the IRS for investigation of possible tax evasion. Defendant was indicted for tax evasion in June 2005 under Section 7201.  No new search warrant was issued for tax-related crimes prior to the June 2005 indictment.  The defendant is being prosecuted in the Federal District Court in Virginia.

DISCUSSION

  1. THE REGULATIONS ARE NOT CLEAR ABOUT WHETHER THE TAX DIVISION IS REQUIRED TO OBTAIN ANOTHER WARRANT BEFORE IT COULD AUTHORIZE AN INDICTMENT FOR TAX EVASION USING EVIDENCE OBTAINED FROM THE MAIL FRAUD SEARCH WARRANT.

Federal regulations provide that the Tax Division has the following authority, per 28 CFR 0.70:

The following functions are assigned to and shall be conducted, handled, or supervised by, the Assistant Attorney General, Tax Division:

(a) Prosecution and defense in all courts, other than the Tax Court, of civil suits, and the handling of other matters, arising under the internal revenue laws, and litigation resulting from the taxing provisions of other Federal statutes (except civil forfeiture and civil penalty matters arising under laws relating to liquor, narcotics, gambling, and firearms assigned to the Criminal Division by § 0.55(d)).

(b) Criminal proceedings arising under the internal revenue laws, except the following: Proceedings pertaining to misconduct of Internal Revenue Service personnel, to taxes on liquor, narcotics, firearms, coin-operated gambling and amusement machines, and to wagering, forcible rescue of seized property (26 U.S.C. 7212(b)), corrupt or forcible interference with an officer or employee acting under the Internal Revenue laws (26 U.S.C. 7212(a)), unauthorized disclosure of information (26 U.S.C. 7213), and counterfeiting, mutilation, removal, or reuse of stamps (26 U.S.C. 7208)

 In carrying out its functions, the Tax Division follows specific policies regarding investigation and prosecution of tax crimes. See Criminal Tax Manual, Department of Justice-Tax Division. [Accessible on the department’s website at http://www.usdoj.gov/tax/readingroom/2001ctm/index.htm ].

Specifically, with respect to search warrants, the following directive is instructive:

Tax Division Directive No. 52 (January 2, 1986) — The Authority to Execute Title 26 or Tax-related Title 18 Search Warrants

http://www.usdoj.gov/tax/readingroom/2001ctm/03ctax.htm#52

Pursuant to the authority vested in me by Part 0, Sub-Part N of Title 28 of the Code of Federal Regulations, Section 0.70, delegation of authority with respect to approving the execution of Title 26, U.S.C., or tax-related Title 18, U.S.C., search warrants directed at offices, structures, premises, etc., owned, controlled or under the dominion of the subject or target of a criminal investigation, is hereby conferred upon:

  1. Any United States Attorney appointed under Section 541 of Title 28, U.S.C.,
  2. Any United States Attorney appointed under Section 546 of Title 28 U.S.C.,
  3. Any permanently appointed representative within the United States Attorney’s office assigned as First Assistant United States Attorney,
  4. Or to any permanently appointed representative within the United States Attorney’s office assigned as chief of criminal functions.

This delegation of authority is expressly restricted to these, and no other, individuals.

This delegation of authority does not affect the statutory authority and procedural guidelines relating to the use of search warrants in criminal investigations involving disinterested third parties as contained in 28 C.F.R. Sec. 59.1, et seq.

Any application for a warrant to search for evidence of a criminal tax offense not specifically delegated herein must be specifically approved in advance by the Tax Division pursuant to Section 6-4.130 of the United States Attorneys’ Manual.

Notwithstanding this delegation, the United States Attorney or his delegate has the discretion to seek Tax Division approval of any search warrant or to request the advice of the Tax Division regarding any search warrant.

The United States Attorney shall notify the Tax Division within ten working days, in writing, of the results of each executed search warrant and shall transmit to the Tax Division copies of the search warrant (and attachments and exhibits), inventory, and any other relevant papers.

[Id. Emphasis Supplied.]

Since this defendant was not charged under the mail fraud statute or the conspiracy statute, it is reasonable to infer that the records obtained from execution of the search warrant did not prove mail fraud or conspiracy to commit mail fraud.  Further, it is reasonable to infer that the warrant was not authorized by the Tax Division because the warrant only referred to the mail fraud and conspiracy statutes, specifically 18 U.S.C.  371, 1341.  As such, the records must have been provided directly to the Internal Revenue Service by the U.S. Postal Inspection Service for investigation of criminal offenses related to internal revenue laws.

When the Internal Revenue Service receives evidence from other agencies, the IRS’ Criminal Investigation Division (CID) conducts an administrative investigation.  The Criminal Tax Case Procedures Manual outlines this procedure at 6-4.110:

6-4.110 IRS Administrative Investigations

The IRS’ Criminal Investigation Division (CID) is responsible for investigating violations of the criminal provisions of the internal revenue laws, including cases falling within the General Enforcement Plea Program (see the Tax Resource Manual at 7) and related violations of the criminal provisions of 18 U.S.C. CID special agents are responsible for conducting administrative investigations (see the Tax Resource Manual at 1 and 2) of alleged criminal violations arising under the internal revenue laws.

Upon concluding an administrative investigation, a special agent recommending prosecution must prepare a special agent’s report (SAR) that details the investigation and the agent’s recommendations. After review within CID, the SAR, together with the exhibits, is reviewed by District Counsel. See the Tax Resource Manual at 3. When prosecution is deemed warranted, District Counsel prepares a criminal reference letter (CRL) and refers the matter (see the Tax Resource Manual at 4) either to the Tax Division or, in those circumstances when direct referral of certain classes of cases is authorized, to the United States Attorney. See USAM 6-4.243. The CRL discusses the nature of the crime(s) for which prosecution is recommended, the evidence relied upon to prove it, technical aspects and anticipated difficulties of prosecution, and the prosecution recommendations themselves. See 26 U.S.C. Sec. 6103(h). A referral of the matter to the Department of Justice allows the Internal Revenue Service to share a return or return information with the Department of Justice (see 26 U.S.C. Sec. 6103(h)), but places some limits on further IRS activity while the referral remains in effect. See Tax Resource Manual at 5 and 6. Where matters are referred to the Tax Division, a copy of the CRL will be forwarded simultaneously to the appropriate United States Attorney. Likewise, where matters are directly referred to the United States Attorney, a copy of the CRL will be forwarded simultaneously to the Tax Division.

http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title6/4mtax.htm#6-4.110

What is not clear from a reading of both Tax Directive No. 52 as well as Tax Case Procedure 6-4.110 is whether a search warrant, specifically related to a criminal tax offense, must be authorized after CID agent completed the administrative investigation.

Yet, in reading 28 CFR 0.70, the jurisdiction to prosecute a criminal tax offense is exclusively within the Tax Division. Tax Directive No. 52 strongly indicates that a search warrant should have been authorized in order to seize evidence of a criminal tax offense.  Given the Tax Division’s own policies, the absence of a tax-related warrant suggests that the evidence seized in this case resulted, de facto, from a warrantless search and seizure.  Thus, the evidence should be excluded in any prosecution for tax evasion unless it falls within the exceptions of the warrant requirement of the Fourth Amendment.

  1. CHALLENGING THE CONSITUTIONALITY OF THE ORIGINAL WARRANT PROVIDES AN ARGUMENT THAT THE POSTAL INSPECTOR DID NOT HAVE PROBABLE CAUSE

In this case, the government has relied on evidence seized during the execution of an unrelated search warrant as the basis for the Tax Evasion indictment.  As stated above, the federal regulations allow intra-department cooperation, and there is no regulation that addresses the issuance of a new warrant after the IRS Criminal Division receives evidence that of alleged criminal violations of the tax code.  See Criminal Tax Case Procedures Manual 6-4.110.

Nevertheless, the Fourth Amendment prohibits “unreasonable searches and seizures” and mandates that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.”  U.S. Const. amend. IV. If the search and seizure violated the defendant’s Fourth Amendment rights, he is entitled to have the evidence suppressed and held inadmissible per the exclusionary rule.

One option includes contesting the propriety of the original search warrant.  The warrant can be challenged as being too broad. “The Fourth Amendment requires that a warrant particularly describe both the place to be searched and the person or things to be seized.” United States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986).

As Spilotro explained, “the description must be specific enough to enable the person conducting the search reasonably to identify the things authorized to be seized.” Id.  This requirement ensures that the search is confined in scope to particularly described evidence relating to a specific crime for which there is probable cause. Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir. 1985).  These requirements prevent “general, exploratory rummaging in a person’s belongings.”  Coolidge v. New Hampshire, 403 U.S. 443, 467, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971).

The sufficiency of a search warrant and its supporting affidavit is reviewed de novo to determine whether a “substantial basis” exists for the magistrate judge’s decision.  United States v. Hodges, 705 F.2d 106, 108 (4th Cir. 1983). Yet, a determination of probable cause by a neutral and detached magistrate judge is entitled to substantial deference.  United States v. Ventresca, 380 U.S. 102, 109, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965). The Fourth Circuit has held that courts should not suppress evidence seized pursuant to a warrant because of “hypertechnical errors.” United States v. Jacob, 657 F.2d 49, 52 (4th Cir. 1981).

The warrant and accompanying affidavit should provide “readily ascertainable guidelines for the executing officers as to what items to seize.” United States v. George, 975 F.2d 72, 76 (2d Cir. 1992); United States v. Hoang Anh Thi Duong, 156 F. Supp. 2d 564, 572 (D. Va. 2001).  The “Fourth Amendment requires a nexus between the item to be seized and criminal behavior.” Hoang Anh Thi Duong at 572.

In Hoang Anh Thi Duong, Defendant Hoang Anh Thi Duong and her two daughters were charged with conspiracy and filing false federal corporate tax returns 18 U.S.C. 371 and 26 U.S.C. 7206(1). Hoang Anh Thi Duong at 566.  The three women ran a restaurant in Arlington, Virginia. Id. In January 1994, the FBI was investigating Hoang Anh Thi Duong’s son for an unrelated crime and confiscated trash from the defendants’ residence. Id. The inventory of the trash listed bank statements and restaurant records that were unrelated to the FBI investigation that the FBI placed in storage. Id. at 567.

In June 1995, Hoang Anh Thi Duong’s son was charged with conspiracy to commit robbery, and the FBI executed a search warrant on the defendant’s residence pursuant to the criminal investigation. Id. at 567.  The Court explained that the search warrant did not specify that it was related to investigation of the conspiracy and the attachment was a generic form that the magistrate edited to exclude reference to a controlled substance offense. Id. at 567-568.  The affidavit only included allegations relating to the criminal activities of the son, but it did not clarify that the residence belonged to Hoang Anh Thi Duong along with her son and daughters.  Id. at 567.

The Court commented on the “expansive breadth of the FBI search” in June 1995 and listed the following as seized during that search:

Thus, agents seized, inter alia, (i) documents relating to Cafe Dalat, including a file folder containing ledgers of Cafe Dalat sales from February 1994 through May 1995, and Phuoc-Lai bank account statements, insurance bills, and 1991–1995 deposit records; (ii) defendants’ personal records, including school records, bank and other financial records, warranties, and receipts; (iii) personal tax returns of defendants Tu Anh Phan and Danh Anh Phan and of their sister, Anh Minh Phan; (iv) home videotapes; (v) records relating to rental property owned by Anh Minh Phan and defendant Tu Phan; and (vi) family life insurance records. [Id. at 568.]

The Court remarked that very few of the documents seized related to the targeted robbery conspiracy.  Id.  At the suppression hearing, the FBI Agent in charged of the robbery investigation was asked whether any documents that proved to be evidence of the robbery conspiracy, and the FBI agent identified only one note that Hoang Anh Thi Duong’s son wrote to a co-conspirator, instructing him where to store the guns that they planned to steal. Id.

The FBI Agent testified further that although he determined that the records were unrelated to the criminal investigation, he contacted the IRS because he observed that the documents related to a number of assets that he opined “didn’t match up” with the tax records.  Id. at 569.   The FBI Agent referred the case to the IRS, and an IRS Special agent received and reviewed the documents that she obtained from the FBI.  Id.  Subsequently in 1997, the IRS Special Agent obtained authorization for a search warrant for tax-related offenses based on an affidavit that specifically relied upon the evidence taken during the 1994 trash confiscation and the 1995 search by the FBI. Id. at 570-571.  The IRS Special Agent testified further that each part of her investigation was related to a lead obtained through evidence seized by the FBI in 1995. Id. at 571.

The defendants’ moved to suppress the evidence from the 1995 search arguing that the FBI’s warrant was overbroad and, alternatively, argued that the FBI exceeded the scope of the search in the execution of the warrant.  Id.  The Court recognized that the warrant itself and its attachment lacked sufficient specificity.  Id.  However, after reviewing the FBI Agent’s affidavit in support of the warrant, the Court held that the affidavit narrowed the scope sufficiently to limit the search to the seizure of documents specifically related to the robbery conspiracy.  Id. at 572.

Even though the purpose of the search had been limited by the agent’s affidavit, the Court found that the scope of the search far exceeded the purpose of the warrant. Id.  The Court remarked that the FBI seized thousands of documents covering years of information in various unrelated categories, such as furniture receipts and personal medical history documents.  Id.   The Court held that there was no nexus between the records seized and the criminal behavior being investigated, and therefore, the evidence obtained from the 1995 should be suppressed.  Id.

The defendants further argued that the 1997 search conducted from the IRS Agent’s warrant was tainted because the IRS Agent’s affidavit was based on items seized during the illegal 1995 search. Id. at 573-574.  See also Wong Sun v. United States, 371 U.S. 471, 484; 83 S. Ct. 407; 9 L. Ed. 2d 441 (1963) (The “fruit of the poisonous tree” doctrine).  The Court observed that the fruits of the 1995 search gave rise to the investigation by the IRS, and consequently, to the 1997 warrant and search by the IRS.  Id. at 575.  The Court reasoned that it could not summarily conclude that the entire IRS investigation was irrevocably tainted.  Id.

The Court instructed:

Thus, it is not enough to show that unlawfully seized information “gives an impetus or direction toward what is to be focused on by the government.” Rather, the nexus must be so direct that the application of the exclusionary rule would have a real deterrent effect on the behavior of law enforcement officers, for “as with any remedial device, the application of the rule [should be] restricted to those [situations] where its remedial objectives are thought most efficaciously served.” United States v. Calandra, 414 U.S. 338, 348, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974). [Id. at 576; footnotes omitted.]

The Court explained that it must first identify the portions of the IRS Agent’s affidavit that were tainted by illegal search and exclude them from consideration.  Id. at 576.  The Court stated that secondly, it must determine whether the application for the 1997 search warrant contained sufficient untainted information to establish probable cause to justify the warrant. Id[1]. 

The Court reasoned that other evidence obtained in the course of the IRS Agent’s investigation could have supplied the probable cause to support the issuance of the 1997 search warrant.  Id. at 577.  Evidence that was not derived from the 1995 search included the corporate tax returns filed after the execution of the 1995 search warrant, bank records obtained through subpoenas, and real property records.  Id. at 578.  The Court concluded that because untainted information was sufficient to support the probable cause requirement for the warrant, the deterrent purpose of the exclusionary rule would not be served by suppressing the 1997 search.   Id.

The Court noted that the U.S. Supreme Court had recognized an “independent source” exception to the exclusionary rule, which “allows admission of evidence that has been discovered by means wholly independent of any constitutional violation.” Id. at  574 n 18; Nix v. Williams, 467 U.S. 431, 443, 81 L. Ed. 2d 377, 104 S. Ct. 2501 (1984).  The “independent source” exception requires that the warrant justifying a later search must be unrelated to the prior illegality. Murray v US, 487 U.S. 533; 108 S.Ct. 2529; 101 LEd2d 472 (1988).

Under the facts of the instant case, the search warrant specifically lists the items to be seized with some generalities, but overall, the district court will likely hold that the specificity requirement exists on the face of the warrant.  As such, there may be a plausible argument that the search exceeded the scope of the warrant’s purpose for obtaining evidence unrelated to mail fraud and conspiracy to commit mail fraud.  None of the evidence seized gave rise to an indictment of mail fraud suggesting that most of the records were unrelated to the search.   The “exceeding scope of the warrant” analysis requires close scrutiny of the 2001 affidavit, (which has not been reviewed by LegalEase), and comparison with the actual items seized in the 2001 search.  Since there was no new application for a search warrant or new search warrant by the IRS, this case may have a stronger argument regarding a tainted IRS investigation than the Hoang Anh Thi Duong case.

Yet, as that case instructs, the district court will examine whether the taint from the 2001 investigation was attenuated or dissipated by information obtained through an independent source.  The government must establish that independent source information is unrelated to the 2001 search.  See Murray, 487 U.S. at 533 (“So long as a later, lawful seizure is genuinely independent of an earlier, tainted one (which may well be difficult to establish where the seized goods are kept in the police’s possession) there is no reason why the independent source doctrine should not apply.”)[2]

One doctrine that the government may raise as a defense to the claim that the 2001 search exceeded its search is the “permeated with fraud” doctrine.  A number of courts have found that warrants permitting seizure of all records are appropriate where the business is “permeated with fraud.” United States v. Bentley, 825 F.2d 1104, 1110 (7th Cir. 1987); United States v. Kail, 804 F.2d 441, 445 (8th Cir. 1986); United States v. Sawyer, 799 F.2d 1494, 1508 (11th Cir. 1987).  For example, in United States v. Brien, 617 F.2d 299, 308 (1st Cir. 1980), the court found that the facts warranted a “strong belief that [defendant’s] operation was, solely and entirely, a scheme to defraud.” Under those circumstances, the court held that a valid warrant could issue authorizing the seizure of all materials the magistrate judge had probable cause to believe were evidence of that scheme. Id. at 307.

This case can be factually distinguished from the other “permeated with fraud” exception cases.  Even though unrelated documents had been seized during the search, evidence from the search led to an indictment of the defendant or defendants in each case based on the original purpose of the warrant. See, e.g. Kail, 804 F2d at 443-444 (mail fraud charges stemmed from mail fraud warrant executed by postal inspector).  Unlike those cases, no mail fraud charges stemmed from the mail fraud search warrant in this case.

Alternatively, the government may rely on the “plain view” exception.  Horton v. California, 496 U.S. 128, 137, 110 L. Ed. 2d 112, 110 S. Ct. 2301 (1990).  Under this doctrine, officers may seize an object without a warrant if (1) the object is actually in plain view; (2) the officers are lawfully located in a place from which the object can be plainly seen; (3) the object’s incriminating character is immediately apparent; and (4) the officers have a lawful right of access to the object. Id. at 136-37.

In order for the incriminating character of an object to be immediately apparent, police must have probable cause to believe that the object in question is contraband or evidence of a crime. Arizona v. Hicks, 480 U.S. 321, 326; 94 L. Ed. 2d 347; 107 S. Ct. 1149 (1987).  (We now hold that probable cause is required [to invoke the plain view doctrine].”). To have probable cause, police need not “know” or have an “unduly high degree of certainty” that the object in question is contraband or evidence of a crime. Texas v. Brown, 460 U.S. 730, 741, 75 L. Ed. 2d 502, 103 S. Ct. 1535 (1983).  Rather, they need only believe, under the circumstances and based on their experience, that there is a probability that the object is contraband or evidence of a crime. Hicks, 480 U.S. at 328.

Relying on the above, the defendant can very well argue that evidence seized during the search conducted under the warrant issued for mail fraud could not be treated as “evidence of a crime”, since the incriminating nature could not be determined on the face of the tax records seized by the Postal Inspector at the time of the search.

In United States v. Wells, 98 F.3d 808, 810 (4th Cir. 1996), the court stated the following: “Ordinarily, government agents may seize only items that are particularly described” in a warrant issued upon probable cause. U.S. Const. amend. IV. In Wells, the parties did not dispute that the warrant permitting the search of Wells’ apartment failed to specify firearms among the items to be seized as evidence of bank fraud.  The Government had argued that the seizure was proper under the “plain view” doctrine. Id. at 809.

The court reasoned that:

Three predicate showings are required in order to justify a warrantless seizure under the plain view doctrine. First, “the seizing officer [must] be lawfully present at the place from which the evidence can be plainly viewed. Second, the officer must have a lawful right of access to the object itself. And [third], the object’s incriminating character must . . . be immediately apparent.” United States v. Legg, 18 F.3d 240, 242 (4th Cir.) (third alteration in original) (citations and internal quotation marks omitted), cert. denied , 129 L. Ed. 2d 876, 114 S. Ct. 2761 (1994). [Id. at 810. ].

The defendant could argue that the IRS could not justify a warrantless seizure under this doctrine because the incriminating character of the records were not immediately apparent.  Hence, the postal inspector was not justified handing these records over to the IRS officials.

The Supreme Court of United States in Coolidge v. New Hampshire, 403 U.S. 443, 467, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971) (U.S. 1971) held:

Plain view alone is never enough to justify the warrantless seizure of evidence. No amount of probable cause can justify a warrantless search or seizure absent “exigent circumstances.” Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, the Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure. [Id. at 468].

CONCLUSION

The Defendant can file a motion to suppress the evidence obtained under the 2001 search warrant issued to investigate mail fraud. The Tax Division, in order to prosecute the defendant under a tax related criminal offense, did not obtain this evidence using the procedures detailed in its own policies.  Therefore, any evidence obtained by any other means other than what has been set forth in the directive has to be necessarily suppressed, unless the government can adequately establish an exception to the warrant requirement.

First, the independent source doctrine will be difficult for the government to establish without purging the taint of the original 2001 search since the government possessed that evidence and expressly relied upon that evidence for the 2005 tax evasion indictment.  Similarly, applying  the doctrine of “inevitable discovery” to the case on hand does not hold water, since the government cannot establish by a preponderance of evidence that the information seized without a tax-related search warrant, ultimately or inevitably would have been discovered by lawful means.

Second, the “plain view” doctrine should not apply since the records obtained in the search did not have an immediately apparent incriminating character. At the time of the 2001 search, the government had no probable cause to believe that the Defendant had committed a crime under tax laws at the time during investigation of mail fraud. Therefore, the government is not justified in using the evidence obtained under the search warrant for mail fraud in a case where the government intends to prosecute the defendant for tax evasion.

[1]   The court stated:

[T]he proper application of the exclusionary rule to derivative evidence, according to the Supreme Court, requires the trial court to ask “whether, granting establishment of the primary illegality, the evidence to which the instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun, 371 U.S. at 487–88. This inquiry, in turn, requires the trial court to consider, among other factors, (i) the temporal proximity between the illegal action and the acquisition of the evidence, (ii) “the presence of intervening circumstances,” and, particularly, (iii) “the purpose and flagrancy of the official misconduct.” Brown v. Illinois, 422 U.S. 590, 603, 45 L. Ed. 2d 416, 95 S. Ct. 2254–04 (1975); United States v. Seidman, 156 F.3d 542, 549 (4th Cir. 1998). [Id. at 574-575].

[2] Another concept, related to the independent source doctrine, is the inevitable discovery exception.  In United States v. Rodriquez, 750 F. Supp. 1272, 1277 (D.N.C. 1990), the court held:

“The inevitable discovery exception to the exclusionary rule is grounded in reasonableness. It merely reflects the underlying purpose of the exclusionary rule: the deterrence of illegal police conduct in the search for evidence. Therefore, “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. Anything less would reject logic, experience, and common sense.” [Id at 1277, quoting Nix, 467 U.S. at 444.]