Williams v. State

RAKER, Judge. We granted certiorari to consider whether evidence seized from a motel room following an entry by police is admissible in evidence on the grounds that it was seized as a result of an independent source or that it inevitably would have been discovered. We shall hold that under the circumstances presented herein, the evidence was seized in violation of the Fourth Amendment and is inadmissible. I. Ellery Williams, petitioner, was indicted in the Circuit Court for Allegany County for conspiracy to distribute controlled dangerous substances, to wit, cocaine; distribution of controlled dangerous substances, to wit, cocaine; possession of controlled dangerous substances, to wit, cocaine and marijua ³⁹⁵ na; and maintaining a common nuisance.

The Circuit Court granted Williams’ motion to suppress evidence, and the State appealed, pursuant to Maryland Code (1957, 1998 Repl.Vol., 2001 Supp.) § 12-302(c)(3) of the Courts and Judicial Proceedings Article. 1 On March 21, 2001, Maryland State Police Trooper Jason Merritt, assigned to the Narcotics Unit, applied for a search and seizure warrant for rooms 106 and 107 at the Continental Motor Inn in Allegany County, Maryland. Tpr. Merritt had just arrested an individual, Clarence Berry, for distribution of controlled dangerous substances from a motor vehicle. Based on information from Berry that he was staying at the Continental Motor Inn, the trooper drafted the application for a search warrant.

While he was doing so, and until he could secure the search warrant, other officers went to the motel. At approximately 9:00 p.m. that night, while Tpr. Merritt was preparing the warrant application, police officers approached adjoining rooms 106 and 107 of the Continental Motor Inn and knocked on the doors. Williams asked who was at the door, and the police responded “maintenance.” Williams opened a curtain but did not open the door.

The officers heard Williams running away from the door; they kicked in the door of room 106 and entered, without a warrant. Williams ran into room 107, followed by the police. Upon entering the rooms, the officers smelled marijuana and observed a small amount of marijuana on the bed in room 107. They arrested Williams, and while searching him, they found cocaine in his pajamas.

Using a cell phone, the officers called Tpr. Merritt and conveyed to him the information they had ³⁹⁶ just learned; Merritt included the information in his statement of probable cause to support the application for the search and seizure warrant. The warrant was signed by a judge of the District Court of Maryland. The officers searched no further, until Tpr.

Merritt returned with the warrant. 2 ³⁹⁸ Williams filed a motion to suppress evidence seized by the police from his person and from rooms 106 and 107 at the Continental Motor Inn on the grounds that the seizure was unlawful. At the hearing, the State argued that exigent circumstances justified their entry into the rooms before the issuance of the warrant and that they had a right to secure or impound the premises until the police arrived with the warrant. The State also argued that if the initial entry into the rooms was deemed to be unlawful, the court should excise the tainted information in the warrant application and determine whether the remaining information established probable cause. The Circuit Court granted the motion to suppress, rejecting the State’s argument on the grounds that “the State has failed ³⁹⁹ to demonstrate that there was sufficient information for probable cause and even if so found, no exigent circumstances existed that would justify an ‘impoundment’ of the hotel rooms and its occupants without a warrant.” The State never argued independent source or inevitable discovery.

In an unreported opinion, the Court of Special Appeals reversed. Before that court, the State argued that exigent circumstances justified the warrantless entry of the motel rooms, and, in the alternative, that even if the entry were unlawful, the warrant provided an independent source for the evidence. The intermediate appellate court held that the Circuit Court was not clearly erroneous in finding that no exigent circumstances justified an “impoundment” of the motel rooms. The court noted that “an impoundment is unreasonable if the exigent circumstances are the result of actions undertaken by the investigating officers.” The court then turned to the question of whether the warrant, absent the tainted information, was supported by probable cause.

Disagreeing with the Circuit Court, the court held that after the tainted portion was excised, the affidavit supporting the search warrant contained probable cause to conclude that a search of the motel rooms would uncover evidence of crime. The court held that the inevitable discovery doctrine applied to the evidence that Williams sought to suppress and that the State was entitled to introduce that evidence at trial. We granted Williams’ petition for writ of certiorari and the State’s cross-petition, presenting the following questions: “Did the Court of Special Appeals err in holding that the independent source/inevitable discovery doctrine applies in a situation where the police illegally enter a residence, observe marijuana in plain view, seize cocaine from the occupant upon his arrest, and then obtain a search warrant relying, in part, on the information derived from the illegal entry? ⁴⁰⁰ “Was the entry and impoundment of the motel room pending receipt of the search warrant justified?” Williams v. State, 368 Md. 526 , 796 A.2d 695 (2002).

II

Petitioner challenges the Court of Special Appeals’ holding that the evidence found in the search of the motel room and on his person pursuant to a search incident to his arrest was admissible. The State argues that the police properly went to the motel to secure the rooms during the time it took to secure a search warrant and that when they arrived at the motel, exigent circumstances justified their entry into the rooms. The State maintains that, based on the earlier drug transaction in the car between the confidential informant and Berry, a cohort of petitioner, the police had probable cause to believe that drugs would be found in the motel room. The State recounts that once the police arrived at the motel room door, they did not immediately enter but merely knocked on the door.

After they knocked on the door, petitioner saw the police and ran away. It is the State’s position that at this point, if not before, exigent circumstances existed, authorizing a warrantless entry into the rooms. If this Court were to reject the exigent circumstances argument and find the initial entry into the room unlawful, the State argues that the evidence was admissible pursuant to the independent source doctrine. The State argues that even if there is illegal police conduct, evidence seized pursuant to a subsequently issued valid warrant may be admissible if the warrant serves as an independent source for obtaining evidence.

As a fallback position, the State argues that the .evidence is admissible based on the inevitable discovery doctrine. Petitioner agrees with the Court of Special Appeals and the trial court that the warrantless, initial entry by the police into the motel rooms was illegal because there existed no exigent circumstances to justify the entry. Petitioner argues, however, that the Court of Special Appeals should be reversed for ⁴⁰¹ three reasons: First, the doctrine of inevitable discovery should not apply to the illegal seizure of primary evidence, as opposed to derivative evidence; second, the State did not establish that the warrant was untainted by the illegal entry into the rooms; and third, assuming arguendo that the doctrine of inevitable discovery is applicable, and further assuming arguendo that redaction of the illegally obtained information is appropriate, after excising the tainted information from the warrant, the warrant lacked probable cause.

III

Our review of the trial court’s grant of a motion to suppress evidence under the Fourth Amendment is based solely on the record of the suppression hearing. Wilkes v. State, 364 Md. 554, 569 , 774 A.2d 420, 429 (2001). The facts found by the trial court must be considered in the light most favorable to the party who prevailed on the motion, namely, Williams. Id. at 569 , 774 A.2d at 429; Jones v. State, 343 Md. 448, 458 , 682 A.2d 248, 253 (1996).

We defer to the fact finding of the suppression court and accept the facts as found by that court unless clearly erroneous. Wilkes, 364 Md. at 569, 774 A.2d at 429. In determining whether a constitutional right has been violated, we make an independent, de novo, constitutional appraisal by applying the law to the facts presented in a particular case. Id., 774 A.2d at 429; Cartnail v. State, 359 Md. 272, 283-84 , 753 A.2d 519, 525 (2000).

IV

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. 3 United States v. Arvizu, 534 U.S. 266, 273 , 122 S.Ct. 744, 750 , 151 ⁴⁰² L.Ed.2d 740 (2002). Searches of the home conducted without a warrant are presumptively unreasonable for “the Fourth Amendment has drawn a firm line at the entrance to the house,” Payton v. New York, 445 U.S. 573, 586, 590 , 100 S.Ct. 1371, 1380, 1382 , 63 L.Ed.2d 639 (1980), and are “prohibited by the Fourth Amendment, absent probable cause and exigent circumstances.” Welsh v. Wisconsin, 466 U.S. 740, 749 , 104 S.Ct. 2091, 2097 , 80 L.Ed.2d 732 (1984). In particular, “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States Dist. Court, 407 U.S. 297, 313 , 92 S.Ct. 2125, 2134 , 32 L.Ed.2d 752, 764 (1972).

A motel room can be protected by the Fourth Amendment as much as a home or an office. Hoffa v. United States, 385 U.S. 293, 301 , 87 S.Ct. 408, 413 , 17 L.Ed.2d 374 (1966); Stoner v. California, 376 U.S. 483, 490 , 84 S.Ct. 889, 893 , 11 L.Ed.2d 856 (1964); United States v. Jeffers, 342 U.S. 48, 51-52 , 72 S.Ct. 93, 95 , 96 L.Ed. 59 (1951); United States v. Richard, 994 F.2d 244, 247 (5th Cir.1993). The presumptive unreasonableness of a warrantless search of a home is subject to limited and narrow exceptions. Welsh, 466 U.S. at 749-50 , 104 S.Ct. at 2097-98 , 80 L.Ed.2d 732 (noting that “the Court has recognized only a few such emergency conditions”).

Payton v. New York held that absent probable cause and exigent circumstances, warrantless arrests in the home are prohibited by the Fourth Amendment. 445 U.S. at 583-90 , 100 S.Ct. at 1378-82 , 63 L.Ed.2d 639 . Exigent circumstances exist when a substantial risk of harm to the law enforcement officials involved, to the law enforcement process itself, or to others would arise if the police were to delay until a warrant could be issued. See Michigan v. Tyler, 436 U.S. 499, 509 , 98 S.Ct. 1942, 1949-50 , 56 L.Ed.2d 486 (1978); Dunnuck v. State, 367 Md. 198, 205 , 786 A.2d 695, 699 (2001); Wengert v. State, 364 Md. 76, 85 , 771 A.2d 389, 394 (2001). The exception for exigent circumstances is a narrow one.

Tyler, 436 U.S. at 509 , 98 S.Ct. at 1950 , 56 L.Ed.2d 486 (ongoing fire); United States v. Santana, 427 U.S. 38, 42-43 , ⁴⁰³ 96 S.Ct. 2406, 2409-10 , 49 L.Ed.2d 300 (1976)(hot pursuit of a fleeing felon); Schmerber v. California, 384 U.S. 757, 770-71 , 86 S.Ct. 1826, 1835-36 , 16 L.Ed.2d 908 (1966)(imminent destruction of evidence); Dunnuck, 367 Md. at 206 , 786 A.2d at 699 (destruction of evidence); Carroll v. State, 335 Md. 723, 734 , 646 A.2d 376, 382 (1994)(suspected burglary). The Supreme Court has recognized that the potential destruction of evidence may constitute exigent circumstances. Illinois v. McArthur, 531 U.S. 326, 331-32 , 121 S.Ct. 946, 950 , 148 L.Ed.2d 838 (2001); Santana, 427 U.S. at 43 , 96 S.Ct. at 2410 , 49 L.Ed.2d 300 ; Schmerber, 384 U.S. at 770-71 , 86 S.Ct. at 1835-36 , 16 L.Ed.2d 908 ; see also United States v. Socey, 846 F.2d 1439, 1444 (D.C.Cir.1988), cert. denied, 488 U.S. 858 , 109 S.Ct. 152 , 102 L.Ed.2d 123 (1988); Stackhouse v. State, 298 Md. 203, 213-14 , 468 A.2d 333, 338-39 (1983). “[A]n entry in the absence of exigent circumstances is illegal.” Segura v. United States, 468 U.S. 796, 812 , 104 S.Ct. 3380, 3389 , 82 L.Ed.2d 599 (1984). A heavy burden falls on the government to demonstrate exigent circumstances that overcome the presumptive unreasonableness of warrantless home entries.

Welsh, 466 U.S. at 750 , 104 S.Ct. at 2098 , 80 L.Ed.2d 732 ; Stackhouse, 298 Md. at 217 , 468 A.2d at 341 . To determine the reasonableness of a warrantless search or seizure based on exigent circumstances, we consider the facts as they appeared to the officers at the time of the entry. Wengert, 364 Md. at 86 , 771 A.2d at 395 ; Socey, 846 F.2d at 1445 . Factors to be considered include the gravity of the underlying offense, the risk of danger to police and the community, the ready destructibility of the evidence, and the reasonable belief that contraband is about to be removed.

Minnesota v. Olson, 495 U.S. 91, 100-01 , 110 S.Ct. 1684, 1690 , 109 L.Ed.2d 85 (1990); United States v. Riley, 968 F.2d 422, 425 (5th Cir.1992). We determine exigency on a case by case basis. Carroll, 335 Md. at 737 , 646 A.2d at 383 . When the threatened emergency is the destruction of evidence, the government must show that the police, at the time of the entry, had a reasonable basis for concluding the ⁴⁰⁴ destruction of evidence was imminent.

See Stackhouse, 298 Md. at 214 , 468 A.2d at. 339; Socey, 846 F.2d at 1445 . The circumstances “must present a specific threat to known evidence.” Stackhouse, 298 Md. at 213 , 468 A.2d at 339 . The police must reasonably believe that there was an immediate, urgent and compelling need for police action. Schmerber, 384 U.S. at 770-71 , 86 S.Ct. at 1835-36 , 16 L.Ed.2d 908 ; McMillian v. State, 325 Md. 272, 282-83 , 600 A.2d 430, 435 (1992).

The need must be “immediate and compelling” and not justified by “an inference about a future possibility.” Stackhouse, 298 Md. at 217 , 468 A.2d at 341 . Moreover, the scope of the search must be limited to the exigencies that justified it. Wengert, 364 Md. at 86 , 771 A.2d at 395 . This Court recently held that police officers may not justify a warrantless search based on exigent circumstances of their own making.

Dunnuck, 367 Md. at 217-18 , 786 A.2d at 705-06 . We emphasized that circumstances that will justify a warrantless entry “cannot be created or precipitated by police actions or conduct.” Id. at 206 , 786 A.2d at 699-700 . In Dunnuck , the police received an anonymous tip that marijuana plants could be seen through a window of a home. Id. at 209 , 786 A.2d at 701 .

They went to the home, saw marijuana plants through the window and then knocked on the front door of the house. No one answered the door. Instead of leaving and getting a search warrant, the officers waited near the house for someone to return. Id. at 209-10 , 786 A.2d at 701 .

An hour later, Dunnuck .returned home, and the officers knocked on the door, announcing themselves as the Drug Task Force. Id. at 210 , 786 A.2d at 702 . When they asked to be admitted, Dunnuck told them to “hold on a minute,” and shortly thereafter an officer called out that the marijuana plants were moving. Id. at 211 , 786 A.2d at 702 .

Fearing that the woman was destroying evidence, the officers began kicking on the door. The officers gained entry into the house. We held that, despite having probable cause to search the house, exigent circumstances did not exist to justify a warrant- ⁴⁰⁵ less entry. Id. at 213 , 786 A.2d at 703-04 .

We concluded that the police had no reasonable basis to believe that the marijuana plants were in danger of being destroyed. Id., 786 A.2d at 704 . Dunnuck had no knowledge of the investigation, and “[i]t was only when the police knocked on the door, announcing their presence and affiliation with the Drug Task Force and indicating that they ‘needed to come in,’ that the petitioner was placed on notice.” Id. at 214 , 786 A.2d at 704 . We noted: “[T]he precipitating cause for [the officers’ fear that the evidence would be destroyed] was the actions of the police themselves.

By knocking on the petitioner’s door and announcing that they were with the Drug Task force and ‘needed’ to come in, the police alerted the petitioner to their investigation.... [T]he police created the exigency that they rely upon to justify the warrantless entry into the ... house and to excuse their failure to obtain a search warrant.” Id. at 215 , 786 A.2d at 705 . Many courts have expressed similar concerns about police-created exigencies and have held that a warrantless entry may not be justified based on exigent circumstances that are the result of police actions. 4 Dunnuck, 367 Md. at 206-07 , 786 A.2d at 699-700 ; see also United States v. Aquino, 836 F.2d 1268, 1272 (10th Cir.1988); United States v. Webster, 750 F.2d 307, 327 (5th Cir.1984), cert. denied, 471 U.S. 1106 , 105 S.Ct. 2340 , 85 L.Ed.2d 855 (1985); United States v. Rosselli, 506 F.2d 627, 629-31 (7th Cir.1974); United States v. Curran, ⁴⁰⁶ 498 F.2d 30, 34 (9th Cir.1974); People v. Foskey, 175 Ill. App.3d 638 , 125 Ill.Dec. 82 , 529 N.E.2d 1158, 1161 (1988), aff'd, 136 Ill.2d 66 , 143 Ill.Dec. 257 , 554 N.E.2d 192 (1990); State v. Hutchins, 116 N.J. 457 , 561 A.2d 1142, 1148-49 (1989). “Whereas exigent circumstances are the exception to the warrant requirement, a manufactured exigency is the exception to the exception.” United States v. Howard, 106 F.3d 70, 78 (5th Cir.1997). With the above principles in mind, we turn to the State’s argument that exigent circumstances justified the warrantless entry into rooms 106 and 107.

The police officers needed a reasonable basis for concluding that the destruction of evidence was imminent. The test is what a reasonable police officer would have believed at the time of the warrant-less entry. McMillian, 325 Md. at 282 , 600 A.2d at 435 . The State argues that the threat of destruction of evidence was real and imminent because Williams’ cohort, Berry, had been arrested and Berry’s failure to return to the motel in a timely fashion would have alerted Williams to destroy the evidence.

The State concludes that the officers had a reasonable belief that the contraband would have been removed or destroyed prior to the time that it would have taken to secure a warrant. The State relies on the following facts to support its argument. After the first distribution of controlled dangerous substances, Berry returned to the motel within fifteen minutes. The police testified that they were aware that drug dealers sometimes made arrangements that if contact is not made with the accomplice within a designated period of time, evidence will be removed or destroyed.

In addition, the police suspected that Berry worked with another person when he came to town and knew that there were cellular phones in Berry’s car. Petitioner and the State’s reading of the law is not that different and the dispute between them, for the most part, is factual, not legal. Petitioner argues that the police had no reasonable basis to believe that anyone other than Berry ⁴⁰⁷ occupied the motel rooms, but even giving credence to the statement given by the informant regarding Berry’s customary practice of being accompanied by another person when he came to town, there was no reasonable basis for the police to believe that a companion would have removed or destroyed evidence. 5 In considering whether the State has established exigent circumstances, we keep in mind the Supreme Court’s explanation in Welsh v. Wisconsin: “[T]he police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests. Indeed, the Court has recognized only a few such emergency conditions and has actually applied only the ‘hot pursuit’ doctrine to arrests in the home.” 466 U.S. at 749-50 , 104 S.Ct. at 2097-98, 80 L.Ed.2d 732 (citations omitted).

In order to satisfy its heavy burden, the State must demonstrate “specific and articulable facts to justify the finding of exigent circumstances.” United States v. Shephard, 21 F.3d 933, 938 (9th Cir.1994). Moreover, this burden may not be satisfied “by leading a court to speculate about what may or might have been the circumstances.” United States v. Driver, 776 F.2d 807, 810 (9th Cir.1985). Courts have recognized that the arrest of a drug courier can itself create exigent circumstances if the supplier is likely to become suspicious when the courier does not return and the courier was expected to return with the proceeds of the drug transaction. See, e.g., Riley, 968 F.2d at 425-26 ; United States v. Lai, 944 F.2d 1434, 1443 (9th Cir. 1991)(citing United States v. Lindsey, 877 F.2d 777, 781 (9th Cir.1989)).

In Lai , a case relied upon by the State, the United States Court of Appeals for the Ninth Circuit found exigent circumstances sufficient to justify a warrantless entry primarily because the ⁴⁰⁸ evidence established that the person arrested was a drug courier for Lai who would have been expected to return with the money and that Lai might have had a police scanner to monitor arrests. 944 F.2d at 1443 . In addition, there was evidence in the record that Lai’s cohort was arrested in public a few blocks from Lai’s house, creating the possibility that an onlooker would inform Lai of the arrest. Id. We agree that upon consideration of all the facts in a given case, there may be sufficient exigency to justify a warrantless entry by police officers into a home.

In establishing exigency, however, it is not enough to show that probable cause exists to believe that contraband is contained within. In addition, as we have explained, the State must demonstrate that the destruction or removal of that evidence was imminent. The trial court rejected the State’s exigency argument. The Court of Special Appeals affirmed, holding that the trial court was not clearly erroneous.

We agree. On the basis of the evidence presented in the instant case, this Court is not convinced that the warrantless entry into the motel rooms was justified by exigent circumstances. The mere possibility or suspicion that a person might destroy evidence does not create an exigency. Nor is the generalized fear that some drug dealers may have pre-arranged agreements based on estimated return times sufficient to find exigent circumstances.

While reasonable fear of discovery of an investigation or of the presence of police officers may be sufficient, that fear may not be self-created. No evidence was presented to show that Williams was aware of Berry’s arrest or that he was aware that the police were planning to enter and search the motel room (at least not until the police-created circumstance). See Curran, 498 F.2d at 34 (stating that “[k]nowing that marijuana was present and knowing that [by approaching the front door] they would make their presence known to the occupants, the officers consciously established the condition which the government now points to as an exigent circumstance”). ⁴⁰⁹ The instant case is similar to United States v. Richard, 994 F.2d 244 (5th Cir.1993). In that case, federal customs agents investigating drug smuggling arrested one suspect who told police that another suspect could be found at a motel.

Agents proceeded to the motel and spoke with the motel clerks, confirming that two men were registered to the room and had made and received numerous telephone calls from the room. The agents knocked on the door and announced their presence. When they heard whispers, slamming drawers, and moving about from within, the agents kicked in the door. The United States Court of Appeals for the Fifth Circuit held that the district court did not clearly err in finding the agents deliberately created the exigency.

Id. at 248 . The court found that the exigent circumstances did not arise until the agents knocked on the door and announced themselves. Id. at 249 . The court dismissed as pure speculation the government’s argument that the occupants of the rooms would have suspected problems when their arrested cohort did not return, stating: “No evidence was offered at the suppression hearing to suggest that the room’s occupants knew about [the] arrest, that they were aware they were being watched, or that .they were destroying evidence.” Id.

We agree with the Court of Special Appeals that the Circuit Court did not err in finding that exigent circumstances did not justify the warrantless entry into the motel rooms; therefore, that entry was unlawful. V. Our conclusion that the police entered unlawfully into the motel rooms does not end the inquiry. The State argues that the evidence is admissible based on the independent source doctrine or the inevitable discovery exception to the exclusionary rule. The Supreme Court has articulated three exceptions to the exclusionary rule: attenuation, independent source, and inevitable discovery.

See Nix v. Williams, 467 U.S. 431, 448 , 104 S.Ct. 2501, 2511 , 81 L.Ed.2d 377 (1984)(finding that evi ⁴¹⁰ dence the police inevitably would have discovered through legal means may be admitted regardless of the illegality involved); Nardone v. United States, 308 U.S. 338, 341 , 60 S.Ct. 266, 268 , 84 L.Ed. 307 (1939)(finding that attenuation can purge evidence of the taint of government illegality); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 , 40 S.Ct. 182, 183 , 64 L.Ed. 319 (1920)(fmding that illegally obtained evidence can be admitted if an independent source also led police to its discovery); Miles v. State, 365 Md. 488, 520-21 , 781 A.2d 787, 806 (2001), cert denied, 534 U.S. 1163 , 122 S.Ct. 1175 , 152 L.Ed.2d 118 (2002) (discussing attenuation, independent source and inevitable discovery). These exceptions aim to balance the interests of society in deterring unlawful police conduct with the interest of ensuring juries receive all probative evidence of a crime. Nix, 467 U.S. at 442-44 , 104 S.Ct. at 2508-09 , 81 L.Ed.2d 377 . There is a close kinship between inevitable discovery and independent source but although they are closely related, they are analytically distinct.

The distinction has been described in State v. Winkler, 552 N.W.2d 347 , 354 n. 4 (N.D. 1996) (quoting United States v. Markling, 7 F.3d 1309 , 1318 n. 1 (7th Cir.1993)) as follows: “ ‘The inevitable discovery doctrine applies where evidence is not actually discovered by lawful means, but inevitably would have been. Its focus is on what would have happened if the illegal search had not aborted the lawful method of discovery. The independent source doctrine, however, applies when the evidence actually has been discovered by lawful means. Its focus is on what actually happened — was the discovery tainted by the illegal search?’ ” The two doctrines differ in that “under the independent source doctrine, evidence that was in fact discovered lawfully, and not as a direct or indirect result of illegal activity, is admissible.” United States v. Herrold, 962 F.2d 1131, 1140 (3d Cir.1992).

Under the inevitable discovery doctrine, evidence is admissible that inevitably would have been discovered through lawful ⁴¹¹ means even though the means that led to its discovery were unlawful. Id. The independent source doctrine had it genesis in Silverthorne Lumber Co., where the Supreme Court held that the exclusionary rule applies not only to illegally seized evidence but also to other incriminating evidence derived from that primary evidence. 251 U.S. at 392 , 40 S.Ct. at 183 , 64 L.Ed. 319 . The Silverthorne Court noted, in dicta, that even if the government obtains knowledge of certain facts in an unlawful manner, as long as knowledge of those facts was derived from a lawful, independent source untainted by the initial illegality, they may be admissible.

Id., 40 S.Ct. at 183 , 64 L.Ed. 319 . The exclusionary rule does not apply when the State learns of the challenged evidence from an independent source. See Segura, 468 U.S. at 805 , 104 S.Ct. at 3385 , 82 L.Ed.2d 599 . The Court explained the underlying policy of the doctrine in Murray v. United States: “[W'lhile the government should not profit from its illegal activity, neither should it be placed in a worse position than it would otherwise have occupied.

So long as a later, lawful seizure is genuinely independent of an earlier, tainted one ... there is no reason why the independent source doctrine should not apply.” 487 U.S. 533, 542 , 108 S.Ct. 2529, 2535 , 101 L.Ed.2d 472 (1988); see also Nix, 467 U.S. at 443-44 , 104 S.Ct. at 2508-09 , 81 L.Ed.2d 377 . Under the independent source doctrine, the question is a concrete one of whether the government actually acquired evidence by reliance on an untainted, legal source. See Murray, 487 U.S. at 538-39, 541 , 108 S.Ct. at 2534, 2535 , 101 L.Ed.2d 472 ; see also 5 Wayne R. LaFave, Search and Seizure § 11.4(a), at 241 (3d ed.1996). ■ The State argues that the search warrant the officers obtained provided an independent legal source for the evidence seized. The State suggests that the trial court’s finding that “a second search and seizure occurred” after police obtained the warrant demonstrates that the evidence found in the initial illegal entry was “reseized” during a lawful search ⁴¹² when the warrant was executed.

Petitioner argues that the independent source doctrine is unavailable to the State because the State never offered any evidence to establish that any evidence was seized pursuant to the search warrant, or as to what, if anything, was seized during any alleged second search. Neither the trial court nor the Court of Special Appeals considered whether the evidence was admissible under the independent source doctrine. The State relies upon Segura v. United States, 468 U.S. 796 , 104 S.Ct. 3380 , 82 L.Ed.2d 599 (1984), and Murray v. United States, 487 U.S. 533 , 108 S.Ct. 2529 , 101 L.Ed.2d 472 (1988). In Segura , the Supreme Court held that although the police had unlawfully searched Segura’s apartment when they entered without a warrant, the drugs they seized in the subsequent search of the apartment pursuant to a search warrant need not be suppressed because “there was an independent source for the warrant under which that evidence was seized.” 6 468 U.S. at 813-14 , 104 S.Ct. at 3390, 82 L.Ed.2d 599 .

The police arrested Segura and remained within his apartment for nineteen hours. The police searched the apartment and seized the drugs only after officers returned and searched the next day with a valid search warrant. Because “[n]one of the information on which the warrant was secured was derived from or related in any way to the initial entry,” the Court said, the search warrant was “a ‘means sufficiently distinguishable’ to purge the evidence of any ‘taint’ arising from the entry.” Id. at 814 , 104 S.Ct. at 3390, 82 L.Ed.2d 599 (citing Wong Sun v. United States, 371 U.S. 471, 488 , 83 S.Ct. 407, 417 , 9 L.Ed.2d 441 (1963)). In Murray , the Supreme Court held that the independent source doctrine applies to evidence initially discovered unlawfully but subsequently lawfully obtained as a result of an independent source untainted by the initial illegality. 487 U.S. ⁴¹³ at 542, 108 S.Ct. at 2535 , 101 L.Ed.2d 472 .

Federal law enforcement agents entered an unoccupied warehouse, without a search warrant, where they “observed in plain view numerous burlap-wrapped bales that were later found to contain marijuana.” Id. at 535 , 108 S.Ct. at 2532 , 101 L.Ed.2d 472 . They left without disturbing the bales, kept the warehouse under surveillance and applied for a warrant. The warrant application did not contain any information the officers learned during that entry. When the warrant was issued eight hours later, the agents immediately reentered the warehouse and seized 270 bales of marijuana.

The Supreme Court was faced with a factual situation that the knowledge that the marijuana was in the warehouse was acquired at the time of the initial, illegal entry. The Court rejected the notion that “objects ‘once seized cannot be cleanly reseized without returning the objects to private control’ ” Id. at 541-42 , 108 S.Ct. at 2535 , 101 L.Ed.2d 472 . The Court-noted that it is possible to reseize evidence already seized illegally. The Court reasoned that if the evidence also was acquired at the time of entry pursuant to a warrant, and if the later acquisition was not the result of the earlier entry, there was no reason that the independent source doctrine should not apply.

Id. at 541 , 108 S.Ct. at 2535 , 101 L.Ed.2d 472 . The Court emphasized that the “ultimate question ... is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue.” Id. at 542 , 108 S.Ct. at 2536 , 101 L.Ed.2d 472 . The Court observed, however, that it “may well be difficult to establish [that a later, lawful seizure is genuinely independent of an earlier, tainted one] where the seized goods are kept in the police’s possession.” Id., 108 S.Ct. at 2535 , 101 L.Ed.2d 472 . A threshold question, apart from deciding whether the warrant was valid and provided a genuinely independent source for the evidence, is whether the State seized or “re-seized” any evidence pursuant to an independent source, i.e., the warrant.

The analysis of whether the independent source ⁴¹⁴ doctrine applies begins by assessing what evidence actually was seized under a warrant and then whether that warrant was genuinely independent of the initial illegality. In the instant case, the independent source doctrine is inapplicable because the State has failed to identify any eyidence that was seized pursuant to the search warrant. The State introduced the warrant application and the warrant itself but not the return. 7 The record is devoid of any evidence, testimonial or documentary, indicating that anything was seized pursuant to the search warrant. 8 In fact, the record indicates that the cocaine found in petitioner’s pajamas was seized during the initial, illegal entry and that the police ⁴¹⁵ saw the marijuana when they first entered room 107 but is silent as to when the marijuana on the bed was seized. With no information identifying evidence obtained through lawful means, the independent source doctrine is inapplicable.

There cannot be a genuinely independent source for the evidence found on Williams and on the bed during the initial illegal entry if there was no subsequent legal seizure. The facts before us reveal only evidence seized as a result of the initial unlawful entry. The State has not shown, by a preponderance of the evidence, that there was an independent source for the evidence entered against Williams.

VI

With the independent source doctrine inapplicable, we next consider whether the evidence is admissible under the inevitable discovery doctrine. Evidence obtained as a result of an illegal search is admissible where, absent the illegal conduct, the evidence inevitably would have been discovered through legal means. See Nix v. Williams, 467 U.S. 431, 447 , 104 S.Ct. 2501, 2511 , 81 L.Ed.2d 377 (1984). In Nix v. Williams, the United States Supreme Court first recognized the inevitable discovery doctrine.

The police in that case learned of the location of a young girl’s body in violation of a defendant’s Sixth Amendment right to counsel. Nix, 467 U.S. at 435-37 , 104 S.Ct. at 2505-06 , 81 L.Ed.2d 377 . At the same time, a search team was looking for the body, but they stopped searching when told of the location of the body. Id. at 448-50 , 104 S.Ct. at 2511-12, 81 L.Ed.2d 377 .

The government presented detailed testimony regarding the team’s search methods and what would have happened had searchers not been told the location of the body. Id., 104 S.Ct. at 2511-12, 81 L.Ed.2d 377 . The Court held that the State had shown, by a preponderance of the evidence, that the body inevitably would have been discovered through lawful means and was therefore admissible. Id. at 449-50 , 104 S.Ct. at 2512, 81 L.Ed.2d 377 . ⁴¹⁶ In Stokes v. State, 289 Md. 155, 162-63 , 423 A.2d 552, 556-58 (1980), we discussed the inevitable discovery doctrine.

In that case, armed with a search warrant, the police searched Stokes’ residence for controlled dangerous substances. Based on a statement made by Stokes, which was later determined to be involuntary, they discovered hidden narcotics. On appeal, the State argued that the drugs inevitably would have been discovered. We noted: “[W]e are not required here to definitively decide whether the [inevitable discovery] doctrine should be embraced and applied in this State.

Even though, generally speaking, the constitutional legitimacy of the doctrine of inevitable discovery as well as the basic requisites of this tenet are established, courts do not always agree on the manner of its application. In the matter before us, however, we need not venture beyond recognition of the existence of the inevitable discovery doctrine and its basic requirements ... for, in this case, the State has failed to meet even the most minimal requirements of that doctrine.” Id. at 164-65 , 423 A.2d at 557 (footnote omitted). 9 Emphasizing that speculation will not satisfy the demands of the inevitable discovery doctrine, we rejected the State’s unsupported assertion that a subsequent search would have uncovered the narcotics. An “unsupported assertion ... is no substitute for evidentiary proof.” Id. at 165 , 423 A.2d at 557-58 . The “government must establish that it has not benefitted ⁴¹⁷ by the illegal acts of its agents; a showing that it might not have so benefitted is insufficient.” Id. at 164 , 423 A.2d at 557 .

In Oken v. State, 327 Md. 628, 654-56 , 612 A.2d 258, 270-71 (1992), this Court applied the inevitable discovery doctrine. Oken appealed a denial of a motion to suppress the tennis shoes he was wearing when he was arrested, arguing the shoes were the fruit of an illegal arrest because the probable cause for the arrest was derived from an illegal search at a Maine motel. The trial court denied his motion to suppress because the evidence that led to his arrest inevitably would have been discovered when chambermaids cleaned his room. On appeal to this Court, Oken argued that the State had not met its burden of proving that the evidence seized from the motel room inevitably would have been discovered.

The State had offered testimony detailing the motel’s cleaning procedures that would have led to the discovery of evidence in Oken’s room and would have prompted the