In the comments to our post about CAAF’s Weston opinion, there have been several negative reactions to the notion advanced by Chief Judge Effron’s concurrence that the inevitable discovery doctrine can apply based on the existence of probable cause even without a showing that law enforcement agents were actively attempting to obtain a search authorization. Remember that CAAF decided that very issue last term in United States v. Wallace, 66 M.J. 5 (C.A.A.F. 2008). Judge Stucky wrote for the majority, which found that the accused’s consent to seize his computer wasn’t voluntary. But the majority proceeded to uphold the seizure and subsequent search under the inevitable discovery doctrine even though the record contained no evidence that the OSI agents ever attempted to obtain a search warrant. In a concurrence, Judge Baker disagreed with the majority’s approach to inevitable discovery, but voted to uphold the seizure on the basis that consent had been voluntary. In her concurrence, Judge Ryan declined to take a position on inevitable discovery because she agreed with Judge Baker that the accused’s consent to seize his computer was voluntary.

My former colleague Vicki Belleau and I filed a cert petition, noting a deep split among the circuits over whether an “active pursuit” requirement exists to uphold a seizure under the inevitable discovery doctrine. Four circuit courts had adopted such a requirement while five (plus CAAF) had rejected it. See generally Eugene L. Shapiro, Active Pursuit, Inevitable Discovery, and the Federal Circuits: The Search for Manageable Limitations Upon an Expansive Doctrine, 39 GONZ. L. REV. 295, 296 (2003/2004). Despite this significant circuit split, the Supremes denied cert. Wallace v. United States, 128 S. Ct. 2943 (2008).

7 Responses to “A quick follow-up to Weston”

  1. Anonymous says:

    If the wife has given consent, like the case here, why would the agents be seeking a warrant?

  2. Anonymous says:

    The burden is on the Government to establish by a preponderance of the evidence that one of two things are in play. First, there could be some action already in progress that would result in the discovery of the evidence? This is referred to as a parallel investigation. In Nix v. Williams, 467 U.S. 431 (1984), it was the systematic ground search that would have found the child's body. A parallel investigation, however, is not required. The second option allows law enforcement to show that procedures routinely followed by that officer or agency under the same circumstances would result in the discovery. For example, in United States v. Kennedy, 61 F.3d 494, 498 (6th Cir. 1995), the court held that cocaine in a misrouted suitcase would have been discovered because the airline routinely conducts a search of misrouted luggage for identification of the suitcase's owner. What these two procedures have in common is the presentation of evidence that establishes by a preponderance of the evidence that the evidence would have been discovered. CAAF has added a third method of proving that the evidence would be discovered: the facts known by law enforcement establish probable cause. This is where CAAF breaks from the US Supreme Court and the Circuits. This expansive reading of inevitable discovery dilutes service members' Fourth Amendment rights and should be part of any cert petition.

  3. John O'Connor says:

    I agree with Anon 0901. Well said.

    If the rule is that there was probable cause, so you could have gotten a warrant if you tried, and that equals inevitable discovery, you've eliminated the warant requirement. You've also eliminated the exclusionary rule as a deterrent against not following the established rules. If you're required to get a warrant, then it's not good enough to ignore that requirement and go ahead because you have probable cause.

    IF you're going to have an exclusionary rule, and IF you're going to impose that in the court-martuial context, then this "inevitable discovery on steroids" is not a respectable doctrine.

  4. Phil Cave says:

    Agree, there is no longer any exclusionary rule so long as the prosecution can establish there was probable cause and they could have gotten a warrant if they'd bothered. Consider this in light of how many commander's would not approve a search authorization request and there you have it.
    This is where the military appellate cases have been headed. Military searches are not subject to the warrant requirement.
    Remember the military is a separate society subject to its own rules.

  5. Mike "No Man" Navarre says:

    Expanding on JO'C's creative use of capitalization post, if you search for similar cases regarding inevitable discovery cases in the US District courts, you will find one of two things when the government has made a similar argument, or at least I did in 1998, a former JA AUSA or a SAUSA that is a JA. As an intern we made this argument at the US Attorneys office in at least two cases. The AUSAs that made the argument were one or the other of the above.

  6. Anonymous says:

    Wallace is very different from Weston. Wallace is clearly in line with the majority of fed. circuit opinions in that Wallace involved not only testimony that agents would have sought a warrant had they thought there was some issue with consent, but perhaps most importantly, in Wallace the cops actually went and GOT A WARRANT when Wallace's counsel expressly revoked consent to search. Weston is a very different proposition – unless there are facts present in Weston that were not reported.

    A quick aside: I'm not entirely surprised the Supremes denied cert on the issue of "active pursuit" (those cases tend to turn on other facts, IMHO) but I will be surprised if the Supremes don't hit on a Weston type case (in which probable cause = no warrant required).

    By the way, I actually don't think C.J. Effron meant his concurrence to be a broad reinterpretation of the inevitable discovery doctrine, but if CAAF goes that way, they won't be alone. The 7th Circuit has some flat-out crazy inevitable discovery opinions.

  7. Anonymous says:

    I submit to you that no search authorization was planned or attempted because the CID agents (active duty Marine investigtators) HAD written voluntary consent from Mrs. Weston.