United States v. Troy Alexander ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-2346
_____________
UNITED STATES OF AMERICA
v.
TROY ALEXANDER,
Appellant
__________
On Appeal from the United States District Court
For the District of Delaware
(D.C. No. 1-19-cr-034-001)
District Judge: Honorable Colm F. Connolly
_______________
Argued
June 29, 2022
Before: JORDAN, PORTER, and PHIPPS, Circuit Judges
(Filed: November 30, 2022)
_______________
Janet M. Bateman
Mary K. Healy [ARGUED]
Office of Federal Public Defender
800 N. King Street – Ste. 200
Wilmington, DE 19801
Counsel for Appellant
Carly A. Hudson [ARGUED]
Office of United States Attorney
1313 N. Market Street
P.O. Box 2046
Wilmington, DE 19899
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Troy Alexander appeals the denial of his motion to
suppress evidence against him in this drug trafficking case. As
a general principle, evidence unlawfully obtained cannot be
used in court. But the suppression of evidence under that
exclusionary rule has exceptions, and two of them are
implicated here. Namely, if the evidence in question would
inevitably have been discovered anyway, or if a late but lawful
search warrant was issued, suppression may not be warranted.
The purpose of the exclusionary rule is to deter police
misconduct that violates the Fourth Amendment. That
deterrence, however, comes at the cost of keeping relevant
evidence out of the fact-finding process, and that is a bad
2
bargain when the evidence would have come to light through
other, lawful means.
The police entered the homes of both Alexander and his
girlfriend, without search warrants. In law enforcement
parlance, the officers at each location conducted a “hit-and-
hold;” that is, they entered and secured the premises before
getting a warrant, a tactic sometimes used to respond to
emergency circumstances. Once inside, and having secured
the premises, the officers at Alexander’s home waited to
conduct a search until a warrant for that house was issued.
Those who entered Alexander’s girlfriend’s home likewise
secured the premises and were in the process of applying for a
warrant, which was all but certain to issue, when they received
what they understood as consent to a search. Because the
government has shown that the evidence from both locations
would have been discovered in any event, we need not consider
the lawfulness of the hit-and-holds or subsequent searches, and
we will affirm the District Court’s denial of the motion to
suppress.
I. BACKGROUND1
A. The Criminal Investigation
In October 2018, DEA agents met with a confidential
informant who told them that Alexander was involved in drug
trafficking and, more specifically, had access to multiple
kilograms of cocaine, had sold cocaine to him in the past, and
1
The following account is drawn from the record
created at the suppression hearing, including the District
Court’s findings of fact.
3
was known to possess firearms. The informant provided the
address of Alexander’s home in downtown Wilmington – 728
East Sixth Street (the “Residence”) – where Alexander lived
with his sister. He also informed the agents that Alexander’s
girlfriend lived in the same vicinity. Some of the details about
Alexander were corroborated by Paul Lawrence, an officer
with the Newark, Delaware, Police Department who was
assigned to work with the DEA.2
A task force created by the DEA then arranged for the
confidential informant to make a controlled purchase of
cocaine from Alexander on November 19, 2018.3 Before the
purchase, there were three phone calls between the informant
and Alexander. During the first call, which agents were able
to record, the informant asked to buy cocaine, and Alexander
said that he would be ready in an hour. Alexander told the
informant to meet him then on the 700 block of East 6th Street
in Wilmington. The second call was made by Alexander to the
informant, who answered it outside the presence of task force
officers, so it was not recorded. On the third call, the informant
2
Among other things, Officer Lawrence corroborated
the address of the Residence and Alexander’s phone number,
the latter of which was subsequently used to set up a controlled
drug buy with the confidential informant.
3
The task force “consisted of agents from the DEA,
agents from the U.S. Department of Homeland Security, and
Delaware police officers[.]” (App. at 414.) We variously refer
to the task force members as “officers,” “agents,” or
“members.”
4
called Alexander, but the officers were only able to record the
informant’s end of the conversation.4
On the day of the sale, the officers outfitted the
informant with an audio and video recording device and
provided him with $900 to exchange for the drugs. They then
set up a surveillance perimeter. Approximately twenty minutes
later, agents observed Alexander leave the house at 722 East
7th Street, one block from the Residence, and walk to meet the
informant. The officers later learned that this second house
was where Alexander’s girlfriend, Venus Nelson, lived, and
that Alexander used it as a stash house (the “Stash House”) for
his drug trafficking business.5 The task force officers on the
scene witnessed Alexander give the informant what later tested
to be almost 115 grams of cocaine in exchange for the $900.
Unbeknownst to the task force, the informant had placed the
recording device in his pocket during the sale, so no video was
captured. The device did, however, record the conversation,
and, during the exchange, Alexander told the informant that the
price of the cocaine was $2,300, so the informant still owed
him $1,400.
Nine days later, on November 28, the officers instructed
the informant to arrange another purchase of cocaine. He did
4
The record is devoid of any information about what
was said during the second and third calls.
5
The confidential informant had not previously
identified the Stash House by address, but as noted earlier, he
had informed the officers that Alexander’s girlfriend lived near
the Residence.
5
so, and, during a recorded phone call, Alexander explained that
he was in Philadelphia and would not return to Delaware until
7:00 that evening.6 Anticipating Alexander’s return, the task
force set up surveillance outside both the Residence and the
Stash House.
The officers on surveillance duty made several
observations between 6:30 and 8:30 that night. They first saw
Alexander arrive at the Residence, park his car on the side of
the road, and carry into the house a large, heavy, white bag.
About two minutes later, he emerged with a smaller white bag
that he appeared to struggle to carry. He took that bag to the
Stash House and entered using his own key. After a few
minutes, he returned to the Residence empty-handed. At that
point, following DEA instructions, the confidential informant
called Alexander to offer the money still owed on the first
transaction. Alexander responded that he would get it from the
informant the next day. He also told the informant that he
didn’t have “anything” for him but “might be ready
tomorrow.” (App. at 61, 417.) Alexander then went to the
Stash House again and came out carrying a large black trash
bag, which he brought back to the Residence.
6
According to the District Court, the task force believed
that Alexander’s trip to Philadelphia was significant for two
reasons. First, the informant had previously told agents that
Alexander procured his drugs from Philadelphia. Second, the
DEA and local police were generally aware that Philadelphia
was a “source city for drugs sold in northern Delaware.” (App.
at 415-16.)
6
Events took an unexpected turn about an hour later,
when a Kia Optima pulled up to the Residence and the
passenger went inside. The passenger left the Residence at
8:13 p.m., carrying what appeared to be the same black trash
bag that Alexander had brought from the Stash House. The
Kia drove off, and officers in unmarked cars followed. At 8:21,
when the Kia was far enough away to be out of sight of anyone
at the Residence, the officers attempted to effect a traffic stop.
It did not go as planned. “The Kia came to a momentary stop,
but then successfully fled the scene, smashing into several of
the officers’ vehicles in the process.” (App. at 418.)
B. The Warrant Application
Meanwhile, throughout the evening, officers at the
scene had been providing contemporaneous updates to Officer
Lawrence, who was at the DEA’s office in New Castle,
Delaware. He began drafting an affidavit in support of search
warrants for the Residence and the Stash House, based on
“Alexander’s movements [between the two], the monitored
calls with the [confidential informant], the … controlled drug
buy, and the task force officers’ general knowledge that
Philadelphia is a source of supply for drugs sold in
Wilmington[.]” (App. at 417.) At 8:20 p.m. – just after the
Kia had driven away from the Residence – he emailed a draft
affidavit to a federal prosecutor. That draft was later
supplemented to include a description of the car chase. The
affidavit also stated that “agents have already entered the
residence based on exigent circumstances and have detained its
occupants,” but no further details were provided. (App. at 63.)
7
C. The Hit-and-Holds
After the Kia escaped, things happened fast. The
officers watching the Residence saw Alexander leave it while
speaking on his cellphone and then drive off in his car. The
surveillance team believed he “may have been tipped off by the
Kia occupants,” so at around 8:30 p.m., they simultaneously
entered both the Residence and the Stash House, although they
still had no warrants. (App. at 419.) An agent on the scene,
Anthony Salvemini,7 later explained their thought process:
“We didn’t know where [Alexander] was. … [T]here had been
a car chase, so it was somewhat of an urgent scenario.” (App.
at 299.) The officers’ primary concern, he said, was preventing
the destruction of evidence in the houses. They thus “entered
both houses, performed protective sweeps, and handcuffed the
occupants to [en]sure the safety of law enforcement and
prevent the destruction of evidence while search warrants were
being obtained.” (App. at 419.)
1. The Stash House
Up to eight task force officers forcibly entered the Stash
House wearing ballistic vests and with guns drawn. Within a
few seconds, Ms. Nelson, Alexander’s girlfriend, appeared at
the top of the stairs. The officers instructed her to come down,
which she did, and they put her in handcuffs and told her to
remain in the living room. According to Agent Salvemini,
Nelson appeared “naturally surprised” but eventually “calmed
down.” (App. at 305, 419-20.)
7
Salvemini is an agent with the DHS who specializes in
drug investigations and works in partnership with the DEA.
8
Within five minutes of their entry, they had checked all
three floors of the Stash House, checking for other occupants.
Agent Salvemini then introduced himself to Nelson, who was
still in handcuffs. He told her that they “were in the process of
applying for a search warrant[.]” (App. at 420.) When he
asked about evidence of drug dealing, her response was only
that “there were some firearms upstairs that belonged to her,
but they were legal[.]” (App. at 420.)
While they were talking, an officer approached Agent
Salvemini and whispered that he had seen a large amount of
cocaine and drug paraphernalia in plain view in the basement.
Agent Salvemini then told Nelson that, although she had a right
to refuse, he did not think it would be a problem to get a
warrant, and “it would save everybody a lot of time” if she
consented to a search. (App. at 306, 420.) Nelson replied, “go
ahead and search the house.” (App. at 306, 420.) With that,
the search began, and no warrant application was submitted for
the Stash House. Officers recovered “powder and crack
cocaine, cutting agent, two scales, and a kilogram press with
molds.” (App. at 423.) They also seized “two handguns and
an extended magazine[.]” (App. at 423.)
2. The Residence
Simultaneous with the hit-and-hold at the Stash House,
another group of officers entered the Residence. There, they
encountered Alexander’s sister and another person, both of
whom they handcuffed. After a safety-sweep of the premises,
the officers waited inside the Residence for close to three
hours, until a magistrate judge signed a search warrant. During
the execution of that warrant, officers seized about $67,000 in
9
cash, two handguns, 285 rounds of ammunition, a digital scale,
a Rolex watch, two diamond chains, and documents that listed
the residence as Alexander’s address.
D. The Arrest
Rewinding to approximately 8:48 p.m. – not long after
the hit-and-holds were executed – Alexander approached the
Stash House on foot. Four officers were stationed in front, and
Alexander told them, “I heard you guys were looking for me.
I don’t want my sister or anyone else to get in trouble. All that
stuff in there is mine.” (App. at 287, 423-24.) Officers arrested
him and placed him in a DEA car, where Agent Salvemini read
him his Miranda rights.
At around 9:00 p.m., officers brought Alexander to a
DEA office where he was placed in a holding cell. Officer
Lawrence, who was told that Alexander had already been read
his Miranda rights, introduced himself as the primary case
agent. Alexander responded: “I don’t want my girl to get in
any trouble … anything in there is mine.” (App. at 425.) A
little later, Alexander asked to speak to Officer Lawrence
again, and he gave a recorded interview taking responsibility
for and describing the details of his drug-dealing operations.
Before he did that, Alexander was advised of his Miranda
rights for a second time, which he acknowledged. He was
released from custody that evening.
E. The Motion to Suppress
A few months later, a federal grand jury returned a four-
count indictment that charged Alexander with possession with
intent to distribute twenty-eight grams or more of cocaine base,
10
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); possession
with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C); possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A)(i); and possession of a firearm by a
prohibited person, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2).
Alexander eventually moved to suppress all the
evidence seized from the Stash House and the Residence. He
first argued that the searches violated the Fourth Amendment,
because no valid consent was given to search the Stash House,
and because the warrant for the Residence was based on mere
speculation and false statements.8 Later, in a supplemental
filing, Alexander also moved to suppress “all custodial
incriminating statements made by him to law enforcement” as
obtained in violation of the Fifth and Sixth Amendments.9
(App. at 73.)
8
In particular, Alexander claimed that Officer
Lawrence’s affidavit falsely asserted that the task force
possessed “numerous monitored and recorded telephone
conversations” between the informant and Alexander, when in
fact only one recording captured both sides of a conversation.
(App. at 101.) He also challenged the affidavit’s representation
that the officers possessed a video recording of the drug sale
when, in fact, the video portion of the recording only captured
the inside of the informant’s pocket.
9
For ease of reference, we refer to the original and
supplemental filings as a single motion to suppress.
11
The District Court held an evidentiary hearing on the
motion, at which Officer Lawrence testified to the warrant’s
veracity, stating that he had drafted the substance of the
affidavit prior to the officers’ warrantless entry and that he had
intended to file the same affidavit in support of warrants for
both the Stash House and the Residence. He also confirmed
that the affidavit was based on calls between the confidential
informant and Alexander, a recording of a controlled buy
between those two, and the officers’ surveillance of the Stash
House and the Residence.
The government also had DEA agent Antonio Tiberi
testify. He was standing outside the Stash House when
Alexander “walk[ed] hastily” toward it and claimed ownership
of “[a]ll that stuff in there.” (App. at 287.) The government
next called Agent Salvemini to the stand. He testified that both
houses were entered “[a]s close to simultaneous[ly] as
possible,” and he gave the specifics of the hit-and-hold at the
Stash House. (App. at 298.)
Defense counsel called two witnesses at the suppression
hearing: Nelson and Alexander. Nelson testified that
Alexander stayed with her in her home approximately four
days a week. According to Nelson, the officers conducted a
search of her home before asking her for consent, and, when
she eventually was asked for consent, she was not informed of
her right to refuse. On cross-examination, she testified about
her relationship with Alexander, agreeing that “if he needed
anything, [she] would be right there[.]” (App. at 336.)
Alexander testified about his dealings with the
government’s informant. He stated that the two of them never
discussed a drug transaction on the day Alexander was in
12
Philadelphia. He also claimed that the bag the officers saw him
carrying between the Residence and the Stash House contained
jewelry, not drugs. Finally, he testified he only admitted that
the evidence seized from the Stash House was his because an
officer told him Nelson was “going down for the stuff found in
the house[.]” (App. at 353.)
F. The District Court’s Denial of the Motion to
Suppress
At the conclusion of the hearing, the District Court
denied the motion to suppress. Among other things, the Court
found that, while Officer Lawrence’s affidavit may not have
been perfect, Alexander had overstated its inaccuracies. There
were, the Court said, “no misstatements … [and] no omissions”
in it. (App. at 379.)
In a subsequent written opinion, the District Court
elaborated on its earlier in-court rulings. It concluded that,
prior to the hit-and-holds, there was probable cause to believe
Alexander had cocaine and drug-dealing paraphernalia in the
Residence and the Stash House. It further found that “the
officers had reason to believe that Alexander and anyone in the
[R]esidence or Nelson’s home had been tipped off about the
officers’ failed attempt to stop the Kia and thus the officers had
reason to believe that any cocaine or related evidence of drug
dealing in the [R]esidence or Nelson’s home would be
imminently destroyed.” (App. at 430.) Thus, the Court said,
there were exigent circumstances justifying the officers to
enter without a warrant.
The Court determined that the search of the Residence
was valid because a warrant was properly issued. And, as for
13
the validity of the warrantless search of the Stash House, that
was upheld as being based on Nelson’s consent. The Court
observed that, “[a]lthough the task force had already entered
the house, detained Nelson, and performed a protective sweep,
there is no indication that those actions put undue pressure on
Nelson.” (App. at 433.) It credited Agent Salvemini’s
testimony over Nelson’s, ultimately holding that her consent
and the search were valid. It also rejected Alexander’s attempt
to suppress his incriminating statements on the basis of
supposed Fifth and Sixth Amendment violations.
Alexander ultimately pled guilty to Counts One, Two,
and Four of the indictment, and the parties stipulated to a
sentence of 132 months, which the Court entered. The plea
agreement expressly preserved Alexander’s right to appeal the
denial of the motion to suppress, which he timely did.
II. DISCUSSION10
On appeal, Alexander continues to challenge the
constitutionality of the warrantless entry into the Residence
and the Stash House and argues that the results of the
subsequent searches must be suppressed. While he vigorously
10
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have appellate jurisdiction pursuant to 28 U.S.C.
§ 1291. We review “the District Court’s denial of a motion to
suppress for clear error as to the underlying factual findings
and exercise[] plenary review of the District Court’s
application of the law to those facts.” United States v. Perez,
280 F.3d 318, 336 (3d Cir. 2002). In the context of warrantless
searches, we review de novo the determination of probable
cause. Ornelas v. United States, 517 U.S. 690, 691 (1996).
14
contests the justification for the officers’ actions, as well as the
validity of Nelson’s consent to search the Stash House, we do
not need to reach those issues because we choose to affirm the
District Court on alternative bases. Watters v. Bd. of Sch. Dirs.,
975 F.3d 406, 412-13 (3d Cir. 2020). We do so because, even
if we were to agree with Alexander that the circumstances were
not truly exigent or that Nelson did not provide valid consent,
the independent source doctrine and the doctrine of inevitable
discovery nevertheless support admission of the evidence from
the searches of the Residence and the Stash House,
respectively.
As more fully described herein, the independent source
doctrine covers the evidence found in the Residence, because
the officers pursued and ultimately obtained a valid search
warrant based solely on information gathered prior to their
entry. And the search of the Stash House is similarly shielded
under the inevitable discovery doctrine, because the officers
were far enough along in the warrant application process that,
had they not received what they believed to be consent, a
warrant would have issued and the evidence would have been
found. The District Court’s denial of Alexander’s motion to
suppress was therefore correct.11
11
Alexander does not now advance any arguments
under the Fifth and Sixth Amendments. He instead asserts
more generally that any statements he made following the task
force officers’ search and seizure must be suppressed. As
discussed herein, to the extent he is making an argument under
the Fourth Amendment’s fruit-of-the-poisonous-tree doctrine,
which generally requires suppression of evidence that is
derived from an illegal search or seizure, it similarly fails. See
Utah v. Strieff, 579 U.S. 232, 237-38 (2016) (recognizing the
15
A. Evidence Obtained from the Residence, and
the Independent Source Doctrine
We first consider the evidence obtained at the
Residence. Our analysis addresses two questions; first,
whether there was a substantial basis to say there was probable
cause to support the warrant that was prepared before but
issued after the entry there, and second, whether the warrant
supported the subsequent search notwithstanding the
warrantless entry. The answer to both is yes. There was
probable cause to support a search, based on an objective
likelihood of criminal activity going on at the Residence. And
the later-issued warrant justified the warrantless entry because
the warrant was based only on information obtained before task
force members ever entered the home. It therefore established
a lawful, independent source for obtaining the evidence found
there. So, even if exigent circumstances did not justify
entering the Residence without a warrant (an issue we do not
address), the independent source doctrine allows denial of the
motion to suppress as to that evidence.
1. The Warrant to Search the Residence
was Supported by a Sufficient Showing of
Probable Cause
To obtain a search warrant, the government must
present probable cause that evidence of criminal activity will
be found in the place to be searched. See Smith v. Ohio, 494
U.S. 541, 542 (1990) (“[T]he Fourth Amendment … proscribes
independent source and inevitable discovery doctrines as
exceptions to that doctrine).
16
– except in certain well-defined circumstances – the search of
[a] property unless accomplished pursuant to judicial warrant
issued upon probable cause.”). That standard requires that
there be “a fair probability that contraband or evidence of a
crime will be found in a particular place.” Illinois v. Gates,
462 U.S. 213, 238 (1983). Probable cause “is a fluid concept
– turning on the assessment of probabilities in particular factual
contexts – not readily, or even usefully, reduced to a neat set
of legal rules.” Id. at 232. Determining whether probable
cause is met depends on “the basis and strength of an officer[’s]
… belief … that an article subject to seizure can be found at a
particular location – in short, whether criminal activity is
afoot.” United States v. Vasquez-Algarin, 821 F.3d 467, 476
(3d Cir. 2016).
Here, however, we are not being asked to judge a
probable cause showing in the first instance. Rather, we must
consider the propriety of the probable cause finding made by
the magistrate judge who issued the warrant. Accordingly, we
need not “determine whether probable cause actually existed,
but only whether there was a substantial basis for finding
probable cause.” United States v. Hodge, 246 F.3d 301, 305
(3d Cir. 2001) (internal quotation marks omitted) (quoting
United States v. Jones, 994 F.2d 1051, 1054 (3d Cir. 1993)).
We answer that question by looking at the information
submitted to the magistrate judge in Officer Lawrence’s
affidavit. Id.Doing so, it is easy to conclude that a substantial basis
existed for the finding of probable cause. Alexander argues
that the failure of the informant to record video (as opposed to
just audio) of the controlled purchase, when considered along
with Alexander’s statement to the informant that he “did not
17
have ‘anything’” for the informant (App. at 61), shows that any
evidence of drug dealing is insufficiently linked to the
Residence, precluding a finding of probable cause. To the
contrary, however, there were ample reasons for the magistrate
judge’s determination that evidence of drug trafficking was
likely to be found in the Residence. Those reasons include the
informant’s statements about Alexander’s drug dealing, the
controlled purchase in the vicinity of the Residence,
Alexander’s return to the Residence from Philadelphia where
officers believed he had received new drug supplies, the very
fact that Alexander lived there and was seen going back and
forth between the Residence and the Stash House with heavy
bags in hand, and the Kia’s destructive flight from police after
its passenger left the Residence with one such bag. Those facts
provided more than adequate support for a finding of probable
cause. See United States v. Stearn, 597 F.3d 540, 558 (3d Cir.
2010) (“When the crime under investigation is drug
distribution, a magistrate may find probable cause to search the
target’s residence even without direct evidence that contraband
will be found there.”).
2. The Independent Source Doctrine
Applies
The more challenging question is whether the search
warrant can serve as an independent source for the evidence
discovered after the officers’ warrantless entry into the
Residence, so as to cleanse the entry of any potential
unconstitutionality. Although there are unanswered questions
about whether hit-and-hold procedures like the ones employed
here adequately respect our constitutional guardrails, the
independent source doctrine is sufficient, on this record, to
overcome the general rule that would require suppression of
18
the evidence obtained from the Residence if the entry or search
were illegal.
“[U]nder 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) (emphasis
omitted); see also Segura v. United States, 468 U.S. 796, 805
(1984) (“[T]he exclusionary rule has no application [where]
the Government learned of the evidence ‘from an independent
source.’” (second alteration in original) (quoting Wong Sun v.
United States, 371 U.S. 471, 487 (1963))). The basis for the
doctrine is “the well-established principle that evidence is not
to be excluded if the connection between the illegal police
conduct and the discovery and seizure of the evidence is so
attenuated as to dissipate the taint.” United States v. Perez, 280
F.3d 318, 338 (3d Cir. 2002) (internal quotation marks
omitted) (quoting Segura, 468 U.S. at 797). The Supreme
Court in Murray v. United States advised that, when a
potentially illegal entry is followed by an “independently
obtained search warrant,” the evidence obtained pursuant to
that warrant or “observed in plain view at the time of [the] prior
illegal entry” need not be suppressed. 487 U.S. 533, 535, 537
(1988). The Supreme Court made clear that a subsequent
search warrant is not independently obtained if law
enforcement decided to seek the warrant due to information
gathered from the initial, unlawful entry, or if information
obtained from the initial unlawful entry influenced the
magistrate judge’s decision to issue the warrant. Id.; see also
United States v. Stabile, 633 F.3d 219, 243-44 (3d Cir. 2011)
(citing Herrold, 962 F.2d at 1140).
19
Here, the search warrant was issued based on
information obtained before the officers entered the building,
and thus, under Murray, the independent source doctrine is
applicable. In Murray, officers illegally forced their way into
a warehouse, without a warrant, where they “observed in plain
view numerous burlap-wrapped bales that were later found to
contain marijuana.” Id. at 535. They left and later returned,
after receiving a search warrant. Id. at 535-36. The warrant
was based on information obtained prior to the illegal entry and
did not mention that entry. Id. at 536. The Court explained
that suppression is not appropriate for “evidence initially
discovered during, or as a consequence of, an unlawful search,
but later obtained independently from activities untainted by
the initial illegality.” Id. at 537, 541-42; accord United States
v. Huskisson, 926 F.3d 369, 374-76 (7th Cir. 2019) (collecting
cases and “agree[ing] with several other circuits that, to
determine whether the inclusion of tainted evidence in the
warrant application affected the magistrate’s decision to issue
a search warrant, we evaluate whether the warrant application
contained sufficient evidence of probable cause without the
references to tainted evidence, even when that tainted evidence
was recovered from an illegal entry into a home”).
That standard is met here. The officers’ decision to seek
a warrant was, as in Murray, not prompted by anything
witnessed during their warrantless entry. Murray, 487 U.S. at
542. And the information obtained during that warrantless
entry was not included in the affidavit, which was premised
solely on lawfully obtained, pre-search evidence. Id.Alexander’s only rebuttal to the force of that reasoning is to
repeat his earlier argument that “law enforcement lacked
probable cause to believe contraband would be found in [his]
residence.” (Reply Br. at 15.) But, as already discussed, the
20
search warrant was supported by probable cause and was valid.
Because the independent source doctrine controls, Alexander
is not entitled to have the evidence obtained from the
Residence suppressed.
B. Evidence Obtained from the Stash House, and
the Inevitable Discovery Doctrine
Analysis of the government’s actions at the Stash House
is more complicated because the officers never actually applied
for a warrant and instead conducted a full search of the
property after getting what they took to be consent from
Nelson. Even so, the doctrine of inevitable discovery applies
to bar exclusion of the evidence seized there. It is undisputed
that the investigating officers had substantially progressed in
their application for a warrant to search the Stash House. That
application, had it been completed, was sufficient to
demonstrate probable cause.
1. Probable Cause Existed to Search the
Stash House
Alexander disputes that there was probable cause to
believe evidence of drug dealing was in the Stash House.12 He
12
In the District Court, the government contested
Alexander’s standing to challenge the search of the Stash
House. The Court effectively rejected that argument, finding
that Alexander stayed overnight at the Stash House at least four
times a week, had a key to the Stash House, and could enter it
at will. See Rakas v. Illinois, 439 U.S. 128, 143-44 (1978)
(holding that Fourth Amendment protections turn on the
legitimate expectation of privacy). Nevertheless, the Court
21
contends that the informant did not direct the task force officers
there and that their surveillance did not sufficiently show any
illegality at that location. Again, the record weighs against
him.
Officer Lawrence’s affidavit showed the following:
Alexander exited the Stash House immediately before selling
cocaine to the informant; Alexander traveled to Philadelphia,
which is where the informant said Alexander procured drugs;
Alexander told the informant he “might be ready” the next day
(App. at 61); Alexander carried heavy bags in multiple trips
between the Stash House and the Residence; a visitor left the
Residence with a bag that appeared to originate from the Stash
House; and that visitor entered the Kia and evaded the police
in a car chase shortly thereafter. Those facts are enough to
support the conclusion that there was probable cause to believe
the Stash House contained evidence of illegal drug trafficking.
See Stearn, 597 F.3d at 556-58 (holding that the magistrate
judge properly credited an informant’s tip in granting a search
warrant because the tip was circumstantially corroborated by
surveillance observations of the property in question showing
invited the government to provide further briefing on the issue,
which the government did not do, nor has it pursued the issue
on appeal. We take the government’s silence as a concession
that Alexander has standing. See United States v. Stearn, 597
F.3d 540, 551 n.11 (3d Cir. 2010) (“Fourth Amendment
‘standing’ is one element of a Fourth Amendment claim, and
does not implicate federal jurisdiction. Consequently,
‘standing’ can be conceded by the government, and it is also
subject to the ordinary rule that an argument not raised in the
district court is waived on appeal.” (internal citation omitted)).
22
that it was the “focal point of [certain co-conspirators’]
movements among properties”).
2. The Inevitable Discovery Doctrine
Applies
The question then becomes whether a search warrant
would have inevitably issued if the warrant application had
been submitted. We conclude that, because there was probable
cause to search the Stash House, and because an affidavit was
fully drafted and ready to submit at the time of the hit-and-
hold, a search warrant was surely forthcoming and discovery
of the evidence inside the home was inevitable. In so holding,
we emphasize that there was probable cause for a warrant and
that the government had taken nearly all of the steps necessary
to acquire a warrant when it received what it perceived to be
Nelson’s consent.
The key question under the inevitable discovery
doctrine is whether “the Government has shown by a
preponderance of the evidence that routine police procedures
inevitably would have led to the discovered” evidence. Stabile,
633 F.3d at 245. Our focus is on “historical facts capable of
ready verification, and not speculation.” Id. at 246 (quoting
United States v. Vasquez De Reyes, 149 F.3d 192, 195 (3d Cir.
1998). Decisions from our sister circuits have looked to two
factors that we agree are most salient here: the likelihood of a
warrant issuing, and how far into the application process the
government was when its pursuit of a warrant was cut off. See,
e.g., United States v. Hughes, 640 F.3d 428, 440 (1st Cir. 2011)
(“The troopers had support staff on stand-by, ready to apply for
a warrant, and the warrant issued the next day. That was
sufficient for the inevitable discovery doctrine to take
23
hold[.]”); United States v. Are, 590 F.3d 499, 507 (7th Cir.
2009) (“[I]t is reasonable to conclude that the officers would
have sought a warrant to search the bedroom and, once they
had, it is virtually certain that a warrant would have been
issued.”); United States v. Lamas, 930 F.2d 1099, 1103 (5th
Cir. 1991) (finding it relevant that, “at the time of the
warrantless search, the officers had begun actively to pursue a
warrant”).
In this case, Officer Lawrence drafted a single affidavit
in support of warrants to search both the Residence and the
Stash House. Although the affidavit was only submitted in
pursuit of a warrant for the Residence, that submission resulted
in a warrant being issued and executed within three hours of
the Stash House search. On this record, then, it appears
inevitable that, if the officers had chosen to wait for a warrant,
one would have issued and the result here would have been the
same. Cf. Nix v. Williams, 467 U.S. 431, 444 (1984) (“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.”).
Inevitability is a high threshold, but the government has
crossed that threshold here: it consistently pursued a lawful
means of searching the Stash House and made significant
progress toward that end. Indeed, ordering suppression in this
case would not further any deterrence justification. See
Stabile, 633 F.3d at 246 (“[T]he very fact that the Government
attempted to secure state and federal search warrants at every
step of the search indicates that there would be little deterrence
benefit in punishing the Government.”).
24
Our holding here should not be read to categorically
condone hit-and-hold procedures justified after the fact by an
in-progress warrant application. Rather, we are guided by the
specific facts of this case. If, for example, the task force had
less vigorously pursued a search warrant for the Stash House,
or if we had doubts as to whether their decision to halt that
process was based on something other than a genuine belief
that Nelson had consented to a search, our holding today might
be different. Cf. United States v. Heath, 455 F.3d 52, 60 (2d
Cir. 2006) (“[W]e conclude that illegally-obtained evidence
will be admissible under the inevitable discovery exception to
the exclusionary rule only where a court can find, with a high
level of confidence, that each of the contingencies necessary to
the legal discovery of the contested evidence would be
resolved in the government’s favor.”). In short, the inevitable
discovery doctrine is not an open invitation for the government
to conduct and then justify warrantless searches. It is instead a
narrow doctrine that the government cannot prospectively plan
on accessing.13
13
That the doctrine is applicable on this record, though,
can be seen by comparison with the decision United States v.
Lamas, 930 F.2d 1099 (5th Cir. 1991). There, the police
entered a home based on their perception of exigent
circumstances to secure the scene until a warrant could issue.
Id. at 1100-01. It was a hit-and-hold, in practicality if not in
name. See id. at 1101-03 (“[T]he officers initially entered [the
defendant’s] house solely for the purpose of securing it until a
warrant could be obtained.”). Although an affidavit had not
yet been drafted, one of the officers left the scene to work on
getting a warrant. Id. at 1101, 1103. After the officer’s
departure, the other officers got what they took to be consent
from the homeowner to conduct a search. That perceived
25
III. CONCLUSION
Because a warrant for the Residence was independently
and lawfully obtained, the evidence found there is not subject
to suppression. Similarly, evidence from the Stash House
would have been inevitably obtained regardless of whether
Nelson actually gave consent, and regardless of the officers’
warrantless entry, so the evidence found there will also not be
suppressed. We will therefore affirm the District Court’s
denial of Alexander’s motion to suppress.
consent cut short the warrant process. Id. at 1101-03.
Nevertheless, the government was able to demonstrate that
probable cause would have supported a warrant, and the court
was persuaded “that the officers – absent [the defendant’s]
consent – would have discovered the damning evidence
pursuant to a search warrant.” Id. at 1104; see also United
States v. Cunningham, 413 F.3d 1199, 1204-05 (10th Cir.
2005) (applying the inevitable discovery doctrine where police
“had focused their investigation on [two homes], and had
drafted an affidavit to support a search warrant for one of these
homes,” but stopped pursuing a warrant for the other home
based on supposed consent).
26