Inevitable discovery doesn’t apply when it’s speculative

That is the title of John Wesley Hall's post on his excellent Fourth Amendment blog. He is posting about the Ninth Circuit's opinion in  United States v. Holmes, 2024 U.S. App. LEXIS 28741 (9th Cir. Nov. 13, 2024). Some of his quotes and analysis:

The good faith exception doesn’t apply where binding appellate precedence doesn’t specifically authorize the officer’s actions. And, as to inevitable discovery of defendant’s cell phone seizure, it was found speculative because he happened to be at the scene and they weren’t looking for the phone.

The Government must prove that discovery of the evidence by lawful means was inevitable by a preponderance of the evidence. Nix, 467 U.S. at 444. This burden is not met when the Government relies on unsupported assumptions to fill in the gaps of an undeveloped record. And here, the Government’s attempt to characterize Agent Rose’s investigation as a “routine procedure” that inevitably would have led agents to find the illicit images on Holmes’s social media accounts and cellphone simply is not supported by the record. This purported “routine procedure” is also of a different character than other procedures that we have held demonstrate inevitability. See Nix, 467 U.S. at 449; Andrade, 784 F.2d at 1433; Hylton, 30 F.4th at 848.

What is interesting is how this all started. Kik and Facebook each caught a suspicious image on the Appellant's account. They forwarded the hit and images to the FBI. The FBI agent viewed the images without a warrant. It appears the government conceded that it was error for the agent to first view the images without a warrant. Slip op. at 12.

Query, doesn't scenario happen a lot when an MCIO gets forwarded a "tip?" If the United States conceded a warrant was required before viewing the images in Holmes, is there an argument for a similar result when an MCIO does that?

As to the inevitable discovery, the court tells us (that in the Ninth),

The Government also argues that the inevitablediscovery exception applies. The inevitable-discovery exception excuses warrantless searches where the government proves “by a preponderance of the evidence” that unlawfully obtained evidence “would have been discovered inevitably [through] lawful means.” United States v. Andrade, 784 F.2d 1431, 1433 (9th Cir. 1986). 

Inevitability is the key. There can be “no speculative elements” in showing that law enforcement would have obtained the evidence lawfully absent its unlawful actions. Lang, 149 F.3d at 1047 (quoting Nix v. Williams, 467 U.S. 431, 444 n.5 (1984)). Rather, this inquiry must “focus[] on demonstrated historical facts capable of ready verification or impeachment.” Nix, 467 U.S. at 444 n.5. We have also explained that “the fact or likelihood that makes the discovery inevitable [must] arise from circumstances other than those disclosed by the illegal search itself.” United States v. Boatwright, 822 F.2d 862, 864 (9th Cir. 1987).

The Government must prove that discovery of the evidence by lawful means was inevitable by a preponderance of the evidence. Nix, 467 U.S. at 444. This burden is not met when the Government relies on unsupported assumptions to fill in the gaps of an undeveloped record. And here, the Government’s attempt to characterize Agent Rose’s investigation as a “routine procedure” that inevitably would have led agents to find the illicit images on Holmes’s social media accounts and cellphone simply is not supported by the record. 

There was a strong dissent. Overall an interesting analysis of good faith and inevitable discovery exceptions for suppression issues.