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).