The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Does the Inevitable Discovery Exception Include Imagined Revised Attempts to Get Warrants?
The Tenth Circuit says "yes," but I think the answer is "no."
Under the inevitable discovery exception to the exclusionary rule, evidence is admitted, even if it's the fruit of an unconstitutional search, if the government would have discovered the evidence through constitutional means if the unconstitutional search hadn't occurred. The basic idea is what lawyers call a "but for" causation principle: If the constitutional violation didn't cause the discovery of the evidence, the public shouldn't be worse off (made so by useful evidence being suppressed) just because a constitutional violation occurred.
Last week's decision by the Tenth Circuit in United States v. Streett considers whether the inevitable discovery exception applies when the government obtains a defective warrant—in this case, a warrant based on an affidavit that lacked probable cause. The government argued that inevitable discovery applies because they would have done better the second time if the magistrate judge had pointed out their error. If the magistrate judge had spotted the error in the warrant affidavit, the government argued, investigators would have corrected the mistake and submitted a proper affidavit. In that case, agents would have obtained a constitutional warrant and the search would have been constitutional. Given that investigators would have responded to the magistrate judge's pointing out the defect by submitting a proper application, the inevitable discovery exception should apply.
The Tenth Circuit agreed with the government's argument, rejecting the defendant's three arguments that the inevitable discovery exception did not apply in these circumstances:
Mr. Streett makes three primary arguments against the application of the inevitable discovery doctrine to cases of a defective warrant. He first contends that this ruling will defeat the probable cause requirement. This is unpersuasive because in deciding the applicability of the inevitable discovery doctrine, courts must still consider "the strength of the showing of probable cause at the time the search occurred." United States v. Souza, 223 F.3d 1197, 1204 (10th Cir. 2000) (quoting United States v. Cabassa, 62 F.3d 470, 473–74 (2d Cir. 1995)). Without a showing by the Government that the officer had probable cause at the time the warrant application was submitted, the Government could not show that an alternative properly obtained warrant inevitably would have been issued.
Mr. Streett next claims that this ruling will diminish officers' incentive to craft a proper warrant affidavit in the first place. We see nothing in our ruling that would give an officer incentive deliberately to file an inadequate initial affidavit in support of a search warrant. Stabile, 633 F.3d at 246. Officers will still be best served by including all material facts in initial warrant applications.
Finally, Mr. Streett argues that applying the inevitable discovery doctrine in defective warrant cases will require too much hypothetical reasoning, since courts will have to consider whether a proper warrant would have been issued after an improper warrant was denied. But hypothetical reasoning is required whenever the inevitable discovery doctrine is at issue. For example, in United States v. Christy, we determined that the officer there likely would have obtained a warrant in a hypothetical world since he had strong probable cause and was cross-designated to obtain state and federal search warrants—even though he had taken "no steps to obtain a warrant" when the search occurred. 739 F.3d at 543. This case involves no more hypothetical reasoning than Cristy.
In the Street case, the Tenth Circuit concludes, the government would have obtained a proper warrant if the magistrate judge had denied the initial warrant application. The government would have figured out the reason the affidavit was defective, and it could have easily corrected the defect:
In a hypothetical world where the warrant application was denied on [the ground that probable cause was lacking], though, Hartsock would have only had to add a single sentence to the Warrant Affidavit to render it proper. Rather than say "who lives in Bernalillo County," the affidavit would have established probable cause if it had simply added something to the effect of "who, according to the T-Mobile records, resides at 4260 Plume Rd. NW, Albuquerque, NM." That would have been an easy fix and Hartsock already had all the information to add that specificity. Since the Warrant Affidavit resulted in the issuance of the Search Warrant even though it ultimately failed to establish probable cause, it is likely that an even more detailed amended affidavit would have secured a warrant as well. Thus, we conclude that the third factor favors the Government because a proper warrant likely would have been obtained had the original application been denied.
I think this analysis is wrong, although for a reason the defendant apparently did not flag. It seems to me that Streett's reasoning conflicts with the Supreme Court's ruling in United States v. Leon (1984), on another exception to the exclusionary rule—the so-called "good faith exception." Here was the question in Leon, as stated in its opening paragraph:
This case presents the question whether the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. To resolve this question, we must consider once again the tension between the sometimes competing goals of, on the one hand, deterring official misconduct and removing inducements to unreasonable invasions of privacy and, on the other, establishing procedures under which criminal defendants are acquitted or convicted on the basis of all the evidence which exposes the truth.
Leon reasoned that if the government submits a defective warrant application, it's ordinarily the magistrate's error if the magistrate signs it and issues the warrant. After all, the government is just submitting the application; it's the court's order if the court signs on. On the other hand, if the error is egregious, then it's the government's fault for that and for relying on the obviously-defective warrant materials to search.
Under Leon's framework, the exclusionary rule applies if the government gets a warrant with major defects but not with only minor defects. The former is the government's fault, the latter isn't. And there's a specific rule for the scope of the exclusionary rule when affidavits lack probable cause: a defect in probable cause in the warrant application does not lead to suppression unless the affidavit is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable."
As I see it, the Tenth Circuit's analysis in Street conflicts with the reasoning of Leon. The holding in Streett matters only if Leon doesn't apply. That is, it matters only when the probable cause defect is egregious. And in those cases, Streett rests on a very different picture of officer culpability than Leon.
According to Leon, if the error is big, the government needs to be deterred and is at fault for executing a warrant. But Streett replaces that with a new picture. Instead of Leon's blaming the government for submitting and relying on an obviously defective warrant, Streett imagines the magistrate judge spotting the error, patiently explaining it to the government, and then the government correcting the error so that no constitutional violation occurred. Under that view, the culpable action by the police is effectively erased. Instead of officers being reckless about violating the Fourth Amendment, now they are careful stewards of the Fourth Amendment—if only the magistrate judge had tipped them off to their earlier inadvertent mistake.
To be clear, I am not saying that the ultimate outcome in Streett should be different. If the error was so easy to correct in Streett, then presumably the good faith exception of Leon should apply. The government argued that point in Streett, but the Tenth Circuit didn't reach the good-faith exception issue because they ruled for the government on inevitable discovery grounds. But I think Streett should have been decided as a good-faith exception case, not an inevitable discovery case. It may not matter to the outcome in Streett. But it will matter in the next case where Leon does not apply and Streett gives the government a way around the Supreme Court's framework in Leon.
By the way, I realize that some readers have strong views for or against the exclusionary rule. To some, the exclusionary rule is stupid. To others, the exceptions are stupid. That's a longstanding debate on which many will disagree. But I see this post as outside that. I'm just making a small-minded point about legal doctrine, for the handful of law nerds who are interested: Whatever you think of the exclusionary rule or its exceptions in general, I don't think a lower court should take the inevitable discovery exception that far in light of Leon.
