United States v. Allen

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4100
MICHAEL WAYNE ALLEN, a/k/a
Anthony Washington,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
William L. Osteen, Sr., District Judge.
(CR-96-124)
Argued: May 8, 1998
Decided: September 28, 1998
Before ERVIN and MOTZ, Circuit Judges, and BEEZER,
Senior Circuit Judge of the United States Court of Appeals
for the Ninth Circuit, sitting by designation.
_________________________________________________________________
Reversed and remanded by published opinion. Judge Motz wrote the
opinion, in which Judge Ervin and Senior Judge Beezer joined.
_________________________________________________________________
COUNSEL
ARGUED: James Donald Cowan, Jr., SMITH, HELMS, MULLISS
& MOORE, L.L.P., Greensboro, North Carolina, for Appellant.
Michael Francis Joseph, Assistant United States Attorney, Greens-
boro, North Carolina, for Appellee. ON BRIEF: John J. Korzen,
SMITH, HELMS, MULLISS & MOORE, L.L.P., Greensboro, North
Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney,
Greensboro, North Carolina, for Appellee.
_________________________________________________________________
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Michael Wayne Allen, convicted of possession of crack cocaine
with intent to distribute, asserts that the district court erred in denying
his motion to suppress evidence on the basis of the inevitable discov-
ery doctrine. Because the doctrine does not apply here, we must
reverse and remand for further proceedings.
I.
Police arrested Allen at a Greensboro, North Carolina, bus terminal
on June 12, 1996, for possession of marijuana and crack cocaine. The
grand jury indicted him on a single count of possession of crack with
intent to distribute, in violation of 21 U.S.C.A.§§ 841(a)(1) and
(b)(1)(A) (West 1981 & Supp. 1998). Soon thereafter Allen moved to
suppress evidence obtained from a search of his duffel bag and state-
ments concerning the evidence made to the police after his arrest.
At the initial hearing on the motion to suppress, the government
presented the testimony of local police detectives Angela Tackett and
James Anders, and the testimony of Drug Enforcement Agent Cynthia
Wilcox. Tackett testified first. She told the court that she and other
officers of a cooperative drug interdiction task force were working at
the bus terminal on the day they arrested Allen. After Allen's bus
arrived, and after several passengers, including Allen, left the bus to
enter the terminal, Tackett and Anders boarded the bus to interview
passengers. As the driver announced that the bus was about to depart,
Allen re-boarded the bus. Tackett identified herself as a police officer
and asked if Allen had any bags with him. When he pointed to a black
knapsack on the overhead rack, Tackett took the bag down and asked
Allen if it was his. He responded, "Yes." Tackett testified that she
then asked Allen, "Do you have any other bags anywhere on the
bus?," to which Allen allegedly replied, "No."
2
Tackett further testified that she then asked Allen if she could
search the knapsack, and Allen consented. As she searched the knap-
sack, Tackett located a clear plastic bag with a substance later identi-
fied as marijuana. When Allen moved to leave the bus, Anders and
State Bureau of Investigation Agent Kaplan arrested Allen, hand-
cuffed him, escorted him to the parking lot, and administered
Miranda warnings.
Tackett and Kaplan continued questioning the other passengers,
and attempted to identify the owner of each of the bags inside the bus.
They identified all of the bags except one -- a large black duffel bag
located toward the rear of the bus, well away from Allen's seat.
Tackett asked each of the remaining passengers if he or she owned
the bag, and each said no. Tackett testified that she thereafter
searched the duffel, "treat[ing] it as an abandoned bag because
nobody claimed it."
Upon searching the duffel bag, Tackett found a package of crack
cocaine and a train ticket in the name of "Anthony Washington."
Tackett left the bus and spoke with the officer watching Allen, who
told her that Allen had given him "Anthony Washington" as his name.
(Allen was traveling under the alias of "Anthony Washington," but
was later identified by his fingerprints as Michael Wayne Allen.)
Tackett then asked Allen if the duffel bag was his, and he replied,
"No." At that point Allen also denied ownership of the black knap-
sack he originally admitted to owning. Allen was then taken to the
DEA office.
On cross examination, and during examination by the district court,
Tackett acknowledged that neither her pre-search question regarding
bags other than the knapsack nor Allen's alleged response that he had
no bags other than the knapsack were reflected in the government's
affidavit submitted at Allen's initial detention hearing or in the offi-
cial government incident report, both of which DEA Agent Wilcox
had prepared. In response to a direct question from the district court,
Tackett testified that she did not make any written report of the inci-
dent; she explained, "I verbally gave my information to Agent Wil-
cox, and she wrote the report."
The affidavit prepared by Wilcox and submitted by the government
at the detention hearing held the day after Allen's arrest states:
3
[Allen] was observed to get off the bus, go inside the termi-
nal and then return to his seat on the bus. Detective Tackett,
accompanied by Detective Anders, identified herself as
police officer and asked where [Allen] was traveling from.
He stated he was coming from New York to Charlotte.
Detective Tackett than asked if [Allen] had any bags aboard
the bus and he said "Yes" and pointed above his head to a
black leather knapsack. Detective Tackett removed the
knapsack from the overhead area and asked if it was
[Allen's]. [Allen] replied "Yes". Detective Tackett requested
permission to search the bag and [Allen] answered in the
affirmative. Inside the bag Detective Tackett found a clear
plastic bag containing 198.8 grams (gross) of a green vege-
table matter, suspected marijuana. [Allen] then attempted to
leave the bus, struggled with officers briefly, and was
arrested and handcuffed by Detectives Anders and Kaplan.
Detective Tackett found on [Allen] a Greyhound Bus ticket
receipt showing travel from New York to Charlotte, NC for
June 12, 1996 in the name A. WASHINGTON.
Detectives Tackett and Kaplan finished speaking with pas-
sengers and found a black nylon duff[el] bag on the bus
which no one, including [Allen], claimed. Detective Tackett
searched the bag as an abandoned bag and found 211.1
grams (gross) of an off-white rock substance, which field
tested positive, by affiant, for crack cocaine.
Wilcox's incident report, which was dated June 17 (five days after the
arrest) and introduced as an exhibit at the suppression hearing, con-
tains a virtually identical account. Neither written version states that,
prior to searching the knapsack, Tackett asked Allen if he had any
bags other than the knapsack or that Allen denied having any other
bags.
During his testimony, Detective Anders stated that, prior to any
search, Tackett did ask Allen if he had any other bags on the bus and
Allen replied he did not. At one point, however, Anders testified that
Tackett asked about other bags after she searched the knapsack. Sub-
sequently, Anders disavowed this sequence.
4
DEA Agent Wilcox then took the stand. Wilcox was not at the bus
station during the arrest, but Allen was taken to her office from the
station. After being advised of his Miranda rights once again, Allen
agreed to speak with Wilcox. Allen told her that he was transporting
the crack to some people in Charlotte in exchange for a $2000 fee.
But because Wilcox would not promise him probation, Allen refused
to give the names or description of the people in Charlotte.
As to her incident report, Wilcox explained that Tackett had "clari-
fied with [Allen] that [the] backpack was the bag that he claimed was
his, and that that was the only bag he had." Wilcox further testified
that when Tackett saw the incident report, Tackett asked why Wilcox
had not included Tackett's question to Allen regarding any bags other
than the knapsack. Wilcox told Tackett that it was covered by the
statement in the report that "no one, including[Allen], claimed [the
duffel bag]."
Wilcox also testified, however, that when she debriefed Tackett on
the day of Allen's arrest she asked Tackett "to make some notes also,
which [Tackett] did," and that she wrote her report "from the notes
that [Tackett] gave [her]." Moreover, Wilcox acknowledged that her
report did not specifically recount Tackett's alleged conversation with
Allen regarding any bags other than the knapsack. Wilcox explained
that the events listed in her report did not necessarily reflect an exact
sequential order, but, because the report "is a synopsis . . . not meant
to be a total recreation in any way," the report listed the events in gen-
eral chronological order. Later, Wilcox conceded that, as far as she
was "aware," when Tackett asked Allen if he had any bags Allen
pointed to the knapsack and said, "Yes," but he did not say anything
else. She explained that, in her view, Allen's response "spoke for
itself: ``This is my bag.' When you're asked if you have any bags, if
you had more than one, you would say you had more than one, and
get them, if you have any bags." Following this answer the court
questioned Wilcox. Wilcox responded that, in her view, if a person
is asked if he has any bags, answers yes, and then points to one, the
police can assume his response means that one is his only bag and he
has disavowed ownership of any others.
At the conclusion of the hearing, the prosecutor argued that Allen
had denied having any bags other than the knapsack and this consti-
5
tuted abandonment of the duffel. Allen maintained that he had not
abandoned the duffel because he had not denied having any bags
other than the knapsack before the search. The court held its decision
in abeyance pending additional briefing by Allen on an issue not
raised on appeal. The court also requested that Wilcox produce the
notes Tackett had made during their conversation. The record before
us does not contain these notes, but the district court obviously placed
great importance on their existence and substance, repeatedly refer-
ring to the notes in its ultimate ruling on abandonment. No party chal-
lenges their authenticity or the district court's reliance on them.
The district court conducted another suppression hearing ten days
later. At the outset, the court noted it had previously informed the par-
ties that "it would be appropriate to hear evidence on inevitable dis-
covery." The district judge explained that this hearing was required
because "I reviewed the file and transcript of our proceedings [at the
initial suppression hearing] again, and [found that] there was, to say
the least, several different versions of what happened here. It is my
belief . . . that it would not be proper for me to find that everything
that is necessary to the legal discovery of the second bag [i.e., the
search of the duffel bag on the basis of abandonment] is in evidence
with a credible background to it."
The court then went on to make extensive findings as to the numer-
ous "conflicts in testimony that caus[ed it] difficulty." The court noted
that Wilcox's affidavit did not indicate that, prior to the search,
Tackett asked Allen if he had any bags other than the knapsack. Fur-
ther, the court found that Detectives Tackett and Anders had testified
to inconsistent versions of the events prior to Allen's search and
arrest. Finally, the court pointed out that although Tackett had testi-
fied she did not make any written report, but simply"verbally" gave
her report to Wilcox, actually Tackett did make, if not a report, a writ-
ten narrative.
Turning to Tackett's narrative, the court made the following find-
ings:
The notes or report, whichever you want to call it, of Detec-
tive Tackett, says that she removed the bag from the over-
head. And I asked him, "Is this yours? Is this one yours?"
6
And he replied, "Yes" "And I asked him if I could search it,"
and he replied "Yes." "As I was opening the bag" -- and she
goes on to say what happened from that point on. Detective
Anders grabbed [Allen]. [Allen] began to struggle. [Anders]
took [Allen] off the bus and arrested him. And Detective
Anders and Kaplan had him outside. Two of them went
back on the bus, including Detective Tackett. "I asked if the
bag then found belonged to anybody on the bus, and no one
claimed the bag."
That is the first indication, in this view[Tackett's written
notes], of any inquiry about the other bag on the bus.
According to these notes, Mr. Washington -- Mr. Allen was
off the bus at that time. And I see no way for him to have
heard that inquiry. These notes simply indicate a corollary
to the original affidavit filed in this case.
(Emphasis added). The court concluded that it
c[ould] not find . . . by even a preponderance of the evi-
dence that [Allen] was asked, at the time that his original
bag was found, and [at the time] he consented to the search
of that bag, . . . if there was any other baggage on the bus
that belonged to him. Being unable to make that finding, the
Court cannot find an abandonment by the defendant at that
time.
The district court then heard testimony on whether the cocaine in
the duffel inevitably would have been discovered despite the unlawful
search. Once again, Detective Tackett started off. The prosecutor
asked her these questions and received these answers:
Q: [I]f you thought that the bag could have been [Allen's]
bag, and you had no further information about whether
the bag was the defendant's bag or not, what would
you have done with that bag?
A: I could have had a K-9 dog run over it, smell it.
Q: And is that what you would have done?
7
A: Had he not made the statement to me that he had no
other bags, I would have run a dog over it.
Tackett also stated that if the dog had alerted she would have applied
for a search warrant to search the duffel.
Tackett acknowledged that she had never brought a dog on a bus
in the past. In response to examination by the court, she stated that
the policy of the interdiction task force was to identify all bags on a
bus. With regard to an unidentified bag, Tackett said, "[i]f we have
a bag no one claims, then it is considered an abandoned bag." Tackett
testified that she would not leave an unclaimed bag on the bus: "[i]f
we have an unclaimed bag, it is abandoned and we search it." Finally,
she conceded that she did not know the bus company's policy as to
unclaimed bags.
Local police detective Kenneth Kennedy testified that he was pres-
ent at the bus station that day, along with his drug detection dog. Ken-
nedy stated that his dog had successfully detected drugs over 160
times, and that the dog would have no problem detecting the cocaine
at issue here, even though packaged in plastic and located inside the
duffel bag. Kennedy recounted that on the day of Allen's arrest he
had used the dog to search the luggage compartments located in the
undercarriage of the bus. Once the search of the compartments turned
up negative, he returned the dog to the car and left shortly thereafter.
He acknowledged that no one asked him to take the dog on the bus,
and that typically he confined the dog's search to the undercarriage
of a bus, as he had that day.
Wilcox testified last. She stated that, in her experience, unclaimed
bags are searched as abandoned bags and then turned over to the bus
station rather than returned to the bus. Like Tackett, Wilcox did not
know what the policy of the bus company or the station would be as
to unclaimed bags.
The district court concluded that the cocaine in the duffel bag inev-
itably would have been lawfully discovered, and thus denied the
motion to suppress. The court reasoned as follows:
8
The Court will find that based upon the evidence in this
case, that first of all the officers asked all of the other pas-
sengers on the bus to identify their bags. All baggage was,
in fact, identified, except the one bag in the back, which no
one on the bus claimed. At that point, excluding the under-
standing that the officers may have had about what conver-
sation took place earlier, it seems that the baggage, to this
Court, would have been subject to the inevitable discovery.
. . . [S]ince there was nothing said [by Allen], the inevitable
discovery would have [ ] taken place because the officers
said they would not have left an unattended, unidentified
bag on the bus. They had the dog there for purposes of
assistance, if such assistance was needed, and the dog was
nearby and could have been called upon to assist. There
was ample evidence that this would have been discovered,
even though they may not have had, as this Court has held,
a consent to search the baggage or an abandonment of the
baggage before it was searched.
(Emphasis added).
II.
Allen asserts the Government failed to demonstrate that the evi-
dence of the cocaine inevitably would have been discovered, and that
to allow the inevitable discovery exception to apply here would "frus-
trate[ ] the purpose of the exclusionary rule." Brief of Appellant at 7.1
We review the legal conclusions involved in the district court's rul-
ing on a motion to suppress de novo. The factual findings are
reviewed for clear error. See United States v. McKinnon, 92 F.3d 244,
246 (4th Cir. 1996). Where mixed questions of law and fact are
involved, the ultimate conclusion is reviewed de novo, with the evi-
dence construed in the light most favorable to the party that prevailed
below. See United States v. Elie, 111 F.3d 1135, 1140 (4th Cir. 1997);
United States v. Han, 74 F.3d 537, 540 (4th Cir. 1996).
_________________________________________________________________
1 Allen does not assign any error to the detectives' consensual search
of his knapsack.
9
We note at the outset that the only issue before us is the propriety
of the district court's inevitable discovery holding. Another judge
might well have resolved the abandonment question differently. But,
as the Government acknowledged at oral argument, it made no claim
in its appellate brief that the district court erred in rejecting the aban-
donment argument.2 Nor, in view of the inconsistencies in the evi-
dence and the deference due an experienced trial judge's assessment
of the demeanor and credibility of the witnesses, can we conclude that
the findings made in support of the court's abandonment ruling con-
stituted clear error. Accordingly, we turn to the inevitable discovery
question.
The Supreme Court first adopted the inevitable discovery doctrine
in Nix v. Williams, 467 U.S. 431 (1984). The Court held that informa-
tion obtained by unlawful means is nonetheless admissible "[i]f the
prosecution can establish by a preponderance of the evidence that the
information ultimately or inevitably would have been discovered by
lawful means." Id. at 444 (emphasis added). In Nix, the police per-
suaded a criminal defendant to inform them where the body of a child
the defendant had murdered was located. Id. at 435-36. The interroga-
tion, which occurred after the defendant had been arraigned and had
retained counsel, violated the defendant's right to counsel. Id. at 437.
The Court concluded that if the government could prove that the evi-
dence inevitably would have been discovered by legal means then
"the deterrence rationale [of the exclusionary rule] has so little basis
that the evidence should be received." Id. at 444.
_________________________________________________________________
2 In a supplemental letter, the government suggested that our holding
in Elie, 111 F.3d at 1135, might provide a basis for affirming the denial
of Allen's motion to suppress on abandonment grounds. Elie held that
the "fruit of the poisonous tree" doctrine does not apply to physical evi-
dence discovered as a result of a statement obtained from a defendant in
violation of his Miranda rights. Id. at 1141-42. Although here the district
court and counsel did discuss the Miranda warnings given to Allen, the
adequacy of those warnings played no part in the court's abandonment
holding. As previously noted in the text, the district court rejected the
government's abandonment argument because it "could not find by even
a preponderance of the evidence" that, prior to the search, Allen had
abandoned his baggage. Thus, Elie does not assist the government in this
case.
10
The police in Nix had established an extensive search for the child
that was only two-and-a-half miles away from the location of the
body when called off due to the defendant's statement. The govern-
ment introduced abundant evidence that the patrol team would have
found the body "within a short time" had the search continued. Id. at
437-38 (quoting the trial court). After explaining that "inevitable dis-
covery involves no speculative elements but focuses on demonstrated
historical facts capable of ready verification or impeachment," id. at
444 n.5., the Supreme Court reviewed this evidence. Agreeing with
the express findings of the trial court, the Supreme Court concluded
that the evidence demonstrated the body inevitably would have been
found and so the trial court had properly applied the doctrine. Id. at
448-50. Cf. United States v. Thomas, 955 F.2d 207, 209-11 (4th Cir.
1992) (inevitable discovery doctrine not applicable when government
"relied on a string of conjecture" in its attempt to prove evidence
inevitably would have been discovered absent the illegal search).
With these principles in mind, we address the applicability of the
inevitable discovery doctrine in the case at hand.
III.
The government argues that if Detective Tackett had not improp-
erly regarded the bag as abandoned and unlawfully searched it, the
agents nonetheless would have legally found the cocaine. To reach
this conclusion, the government employs the following line of reason-
ing: (a) if the drug dog had sniffed the duffel bag, the dog would have
alerted to the cocaine; (b) if Allen had not disclaimed ownership of
other bags, Detective Tackett would have called for the drug dog --
which was on the scene -- to sniff the duffel bag; and (c) if the dog
had alerted, the police would have had sufficient probable cause for
a search warrant, which they inevitably would have obtained and then
used to uncover the cocaine.
A.
Unlike Allen we have little trouble with the district court's finding
that, if the duffel bag had been subjected to a sniff test by the drug
dog, the dog would have alerted Detective Kennedy to the presence
of the cocaine and the dog's alert would have provided probable
11
cause for a search warrant. Detective Kennedy testified without con-
tradiction that his dog alerted on numerous prior occasions without
being tricked, and that the packaging at issue here would not pose a
problem for the dog. Courts have frequently upheld the use, and,
implicitly, the effectiveness of the use, of dogs to ferret out illegal
drugs. See, e.g., United States v. Place , 462 U.S. 696, 706-07 (1983);
United States v. Frost, 999 F.2d 737, 744 (3d Cir. 1993); United
States v. Seals, 987 F.2d 1102, 1106-07 (5th Cir. 1993); United States
v. Stone, 866 F.2d 359, 363-64 (10th Cir. 1989); United States v.
Alpert, 816 F.2d 958, 960 (4th Cir. 1987); United States v. Attardi,
796 F.2d 257, 259-60 (9th Cir. 1986). But see United States v. Florez,
871 F. Supp. 1411, 1419-22 (D.N.M. 1994) (questioning the reliabil-
ity of a dog alert as a means to establish probable cause). Indeed, in
a case decided by this court only a few years ago, a drug interdiction
team working at another North Carolina bus terminal detained another
passenger traveling from New York City to subject his luggage to a
dog sniff test. "The dog's positive ``alert' provided the basis on which
a search warrant was issued and the luggage opened." United States
v. McFarley, 991 F.2d 1188, 1189 (4th Cir. 1993).
We also reject Allen's suggestion that the government's evidence
fails because its dog alert testimony must satisfy the requirements for
expert scientific testimony. See Brief of Appellant at 12 (citing Carr
v. State, 482 S.E.2d 314 (Ga. 1997)). In Carr, the Georgia Supreme
Court determined that a dog handler's testimony concerning the pres-
ence of flame accelerants at a suspected arson site was indistinguish-
able from other scientific tests and analyses. Thus, the court held the
handler's testimony subject to the same scientific verifiability require-
ments because the testimony amounted to expert opinion based on the
analysis of data. Id. at 317. In addition to the fact that Carr interpreted
Georgia law and so does not bind us, a critical difference exists
between the Carr scenario and the probable cause sniff at issue here.
In Carr, the evidence of the dog's alert was submitted as substantive
evidence of the presence of the accelerant. Id. at 316. In the present
case, the dog's alert -- assuming one would occur-- would serve not
as actual evidence of drugs, but simply to establish probable cause to
obtain a warrant to search for such substantive evidence.
B.
Our initial problem with the district court's inevitable discovery
reasoning lies in the lack of evidentiary support for the conclusion
12
that Tackett would have used the dog. We have no doubt that Tackett
could have used the dog, but whether she would have presents an
entirely different question. Tackett testified specifically that if she had
not conducted the illegal search and if she had thought the bag "could
have been Allen's," she would have used the drug dog to sniff the
bag. However, when Detective Kennedy (the dog's handler) testified,
he did not so much as suggest that his dog had ever been used to sniff
bags located inside the passenger compartment of a bus. Instead, he
stated that his usual duty involved sending his dog into the undercar-
riage of the bus, as he had done that day. Furthermore, nothing in the
record indicates that Tackett had ever previously called for a police
dog to sniff baggage inside a bus, and Tackett conceded as much.
Both Tackett and Wilcox testified that when a bag went unclaimed
the established task force policy was to treat the bag as abandoned
and search it, not to run a drug dog over it to establish probable cause
to search, or even to establish probable cause by some other means.
Indeed, the district court's inevitable discovery holding is flatly
inconsistent with the court's abandonment findings. In concluding
that the detectives inevitably would have discovered the cocaine
within the duffel bag, the district court necessarily credited Tackett's
testimony that if Allen "had not made the statement to [her] that he
had no other bags, [she] would have run a dog over [the duffel]." But
minutes before, when ruling on abandonment, the court concluded
that it could not find "any evidence that [Allen] was asked . . . if [he
had] any other baggage on the bus." Thus, the court explicitly found
no evidence of the event -- namely, Allen's alleged statement dis-
claiming ownership of any other bags -- the absence of which
Tackett said would have led her to "run the dog over" the duffel and
so lawfully discover its contents. Yet, indisputably, Tackett did not
"run the dog over" the duffel. She simply opened and searched it. It
is impossible to conclude that Tackett inevitably would have used a
drug dog if Allen had not disclaimed ownership of any other bags
when it is uncontroverted that, in fact, she did not call for a drug dog
even though the district court found no evidence that Allen disclaimed
ownership of other bags.
A finding of inevitable discovery necessarily rests on facts that did
not occur. However, by definition the occurrence of these facts must
have been likely, indeed "inevitable," absent the government's mis-
13
conduct. On the record here, particularly in view of the district court's
factual findings on the abandonment claim -- findings that the gov-
ernment has not challenged and that we have held are not clearly erro-
neous -- we cannot possibly conclude that the government inevitably
would have discovered the cocaine by employing a drug dog to estab-
lish probable cause.
C.
The above discussion disposes of the government's express argu-
ment regarding the inevitable discovery doctrine. However, it seems
to us that its contention implies an alternate theory that we should, in
fairness, address. That is, even without a dog alert the police arguably
had probable cause to obtain a search warrant and, absent the unlaw-
ful search, they inevitably would have discovered the cocaine through
this lawful means.
The police knew that they had found marijuana in Allen's knap-
sack, that he had traveled from New York (a known drug distribution
point), and that other passengers had disclaimed ownership of the
duffel.3 This evidence might have supplied probable cause for a war-
rant -- if the police had sought a warrant. But even if this evidence
does constitute probable cause it does not automatically trigger the
inevitable discovery doctrine. The existence of probable cause for a
warrant, in and of itself and without any evidence that the police
would have acted to obtain a warrant, does not trigger the inevitable
discovery doctrine any more than probable cause, in and of itself, ren-
ders a warrantless search valid. The inevitable discovery doctrine
applies to alleviate "formalistic" and "pointless" applications of the
_________________________________________________________________
3 We note, however, that the testimony of another passenger, Todd
Anderson, is irrelevant in this context. Although Anderson testified at
trial that he remembered Allen having the duffel bag because he lent
Allen a razor in the men's room at an earlier stop, and recollected that
Allen experienced difficulty putting the duffel bag in the overhead rack,
Anderson did not relate this information to the police until after Tackett
had improperly searched the duffel bag. In applying the inevitable dis-
covery exception a court must "view[ ] affairs as they existed at the
instant before the unlawful search." United States v. Eng, 971 F.2d 854,
861 (2d Cir. 1992).
14
exclusionary rule, Nix, 467 U.S. at 445, but it does not and cannot
eliminate Fourth Amendment protections.
The inevitable discovery doctrine may apply where additional rou-
tine or factually established investigative steps would inevitably lead
to discovery of the evidence without undertaking any search. Nix and
our recent decision in United States v. Melgar , 139 F.3d 1005 (4th
Cir. 1998), exemplify this situation. See Nix , 467 U.S. at 444-50;
Melgar, 139 F.3d at 1016 n.3 (although defendant revealed his illegal
alien status during government interrogation that violated his right to
counsel, government inevitably would have discovered defendant's
status by running a routine computer check on his false identification
card, which had been lawfully obtained prior to interrogation); see
also United States v. Gravens, 129 F.3d 974, 979-80 (7th Cir. 1997)
(federal agent, who retrieved Firearms Transaction Record using evi-
dence tainted by illegal seizure of gun, inevitably would have discov-
ered the record by going to store's location and manually reviewing
store files on the basis of pre-existing evidence), cert. denied, 118
S. Ct. 1333 (1998).
The doctrine also may apply where the facts indicate another
search inevitably would have occurred and would inevitably have
uncovered the evidence, and that search falls within an exception to
the warrant requirement. See, e.g., United States v. George, 971 F.2d
1113, 1121-22 (4th Cir. 1992) (inventory search); see also United
States v. Cotnam, 88 F.3d 487, 496 (7th Cir. 1996) (search incident
to arrest).
The doctrine may even apply where the subsequent search that
inevitably would have uncovered the disputed evidence required a
warrant and the police had probable cause to obtain this warrant prior
to the unlawful search but failed to do so, if the government produces
evidence that the police would have obtained the necessary warrant
absent the illegal search. Such evidence might include proof that,
based on independent evidence available at the time of the illegal
search, the police obtained and executed a valid warrant subsequent
to that unlawful search, see, e.g., United States v. Whitehorn, 813
F.2d 646, 648-50 (4th Cir. 1987); or took steps to obtain a warrant
prior to the unlawful search, see e.g. United States v. Ford, 22 F.3d
15
374, 377-79 (1st Cir. 1994); United States v. Lamas, 930 F.2d 1099,
1103 (5th Cir. 1991).
But when evidence could not have been discovered without a sub-
sequent search, and no exception to the warrant requirement applies,
and no warrant has been obtained, and nothing demonstrates that the
police would have obtained a warrant absent the illegal search, the
inevitable discovery doctrine has no place. In those circumstances
absolutely nothing suggests, let alone proves by a preponderance of
the evidence, that the illegally obtained evidence inevitably would
have been discovered. The inevitable discovery doctrine cannot res-
cue evidence obtained via an unlawful search simply because proba-
ble cause existed to obtain a warrant when the government presents
no evidence that the police would have obtained a warrant. Any other
rule would emasculate the Fourth Amendment.
For example, in United States v. Mejia, 69 F.3d 309, 319 (9th Cir.
1995), the government argued that even if the court found that the
defendant had not consented to a search of his home, the police inevi-
tably would have discovered counterfeit currency found there because
other evidence obtained "gave them probable cause to search . . . [and
thus] a warrant would have issued if the detectives had sought one."
The court held the inevitable discovery doctrine could not apply in
these circumstances. "We reject the contention that [the inevitable
discovery] doctrine applies where the police had probable cause to
conduct a search but simply failed to obtain a warrant. . . . If evidence
were admitted notwithstanding the officers' unexcused failure to
obtain a warrant, simply because probable cause existed, then there
would never be any reason for officers to seek a warrant." Id. at 320.
Similarly, in United States v. Johnson, 22 F.3d 674 (6th Cir. 1994),
the Sixth Circuit concluded that, although the police had probable
cause to obtain a search warrant for the defendant's apartment (based
on the statement of a girl just freed from the apartment), the inevitable
discovery exception did not justify their warrantless search (errone-
ously based on asserted exigency of the circumstances). The court
reasoned that "to hold that simply because the police could have
obtained a warrant[ ] it was therefore inevitable that they would have
done so would mean that there is inevitable discovery and no warrant
requirement whenever there is probable cause." Id. at 683. See also
16
United States v. Brown, 64 F.3d 1083, 1085 (7th Cir. 1995) (dicta)
("what makes a discovery ``inevitable' is not probable cause alone . . .
but probable cause plus a chain of events that would have led to a
warrant (or another justification) independent of the search"); United
States v. Cabassa, 62 F.3d 470, 472-74 (2d Cir. 1995) (reversing
denial of suppression motion because inevitable discovery doctrine
did not apply when at the time of the unlawful search the process of
obtaining a warrant had just begun, a warrant was never obtained, and
probable cause showing was not overwhelming); United States v.
Cherry, 759 F.2d 1196, 1206 (5th Cir. 1985) (reversing denial of
motion to suppress because inevitable discovery doctrine did not
apply where agents "could have obtained a warrant but made no effort
to do so"); 5 Wayne R. Lafave, Search and Seizure: A Treatise on the
Fourth Amendment § 11.4, at 244 (3d ed. 1996) (care should be taken
when applying the inevitable discovery doctrine to be certain that the
warrant requirement is not bypassed); 1 John Wesley Hall, Jr., Search
and Seizure § 7:16, at 376-77 (2d ed. 1991) ("The inevitable discov-
ery doctrine will not justify a search . . . simply because the police
could have gotten a search warrant.").
D.
In this case, the government does not contend that further investi-
gation would have uncovered the cocaine without the need for a
search. The government does not contend that an exception to the
warrant requirement permitted a warrantless search. Indeed, the gov-
ernment does not even contend that it had probable cause at the time
the illegal search of the duffel bag occurred and simply failed to use
that probable cause to obtain a warrant. Rather, it offers an even more
attenuated argument. The government claims that at the time of the
unlawful search it had the means -- by taking routine steps (i.e.,
obtaining the services of the drug dog) -- to establish probable cause
for a search warrant. As outlined above, however, the testimony and
factual findings made by the district court conclusively undercut the
claim that such steps were "routine" for these officers.
Moreover, even assuming that the evidence established probable
cause, with or without the drug dog alert, nothing indicates that the
officers ever contemplated obtaining a search warrant. In fact, both
Detective Tackett and Agent Wilcox conceded that the task force's
17
normal routine involved opening and searching unclaimed bags with-
out obtaining a warrant. Thus, not only does the government's case
lack concrete evidence that the officers would have obtained a war-
rant, the testimony of record affirmatively supports the conclusion
that they would not have done so. To permit the presence of evidence
establishing probable cause to whitewash the unlawful search would
eviscerate the warrant requirement. As Judge Posner has noted, "a
warrant is a condition precedent to a lawful search or seizure, other
than in exceptional circumstances of which superfluity is not one."
United States v. Cardona-Rivera, 904 F.2d 1149, 1155 (7th Cir.
1990).
IV.
For the foregoing reasons, the district court erred in denying
Allen's motion to suppress. Because the improperly seized evidence,
as in Thomas, 955 F.2d at 211, "comprised most of the government's
case," we must overturn Allen's conviction. The case is remanded for
further proceedings consistent with this opinion.
REVERSED AND REMANDED
18