Lead Opinion
The defendants pleaded guilty to conspiring to possess and distribute cocaine, in violation of federal law, 21 U.S.C. §§ 846, 841(a), and were sentenced to 60 months (Rivera) and 48 months (Dueñas) in prison. But they reserved the right to appeal from the district judge’s denial of their motions to suppress evidence consisting of drugs that federal agents had seized in searches of Duenas’s garage and Rivera’s truck, which was in the garage. The agents didn’t have search warrants, and the defendants contend that the searches therefore violated the Fourth Amendment. Contrary to popular impression, the Fourth Amendment does not require a warrant to search or to arrest — ever; its only reference to warrants is a condemnation of general warrants. (The amendment reads in full: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”) The amendment has nevertheless been interpreted to require
A confidential informant (with the help of another man, whom we can ignore) arranged to purchase cocaine that was being sold at Duenas’s garage. Trailed by federal agents at a discreet distance, the informant drove to the garage, parked outside, entered (the garage door, open when he arrived, closed after he entered), and there discussed the transaction with Due-ñas and Rivera. He then left, ostensibly to get the money for the purchase of the cocaine from his car. Instead he 'got back into the car (which was parked nearby), drove a short distance, parked, and phoned one of the federal agents to report that there indeed was cocaine in the garage, in Rivera’s truck. Agents arrived shortly, arrested Dueñas outside the open garage and Rivera inside it, and then searched the garage and found and seized two kilograms of cocaine from Rivera’s truck. Between the confidential informant’s departure from the garage and the agents’ arrival, only about three minutes had elapsed.
The informant (of course not known to Dueñas and Rivera to be such) had entered the garage with the consent of Due-ñas, the owner of the garage, and of Rivera, the owner of the truck that contained the drugs to be sold to the informant. Although the informant had returned to his car and driven a short distance off, Dueñas and Rivera had remained, the garage door was now open, and it is a fair inference that they were expecting the informant to return soon with the money.
Obviously they had consented to the informant’s returning, and on -this basis the district judge invoked the curious, or at least curiously named, doctrine of “consent once removed.” If an informant is invited to a place by someone who has authority to invite him and who thus consents to his presence, and the informant while on the premises discovers probable cause, to make an arrest or search and immediately summons help from law enforcement officers,, the occupant of the place to which they are summoned is deemed to have consented to their presence. See United States v. Jachimko,
At first glance the doctrine of “consent once removed” is absurd. If one thing is certain it’s that .Dueñas and Rivera would never have consented to the entry of federal drug agents into Duenas’s garage, where the drugs to be bought by the informant were stored. The doctrine thus, cannot, despite its name, be based on consent. This is well recognized. See, e.g., John F. Decker & Kathryn A. Idzik, “Disguising A New Exception to the Warrant Requirement: An Examination of the Consent-Once-Removed Doctrine and Its Hollow Justifications,” 61 Drake L.Rev. 127, 160-68 (2012);- Ben Sobczak, “The Sixth Circuit’s Doctrine of Consent Once Removed: Contraband, Informants and Fourth Amendment Reasonableness,” 54 Wayne L. Rev. 889, 902-08 (2008). As Sobczak points out, citing Georgia v. Randolph,
But though misnamed, the doctrine has the following kernels of validity. First, an informant’s job, especially in cases such as this that come from the frequently violent world of drug trafficking, is often (though ■ not álways, even in the drug world, see, e.g., Richards v. Wisconsin,
But one doesn’t need the opaque label “consent once removed” to justify authorizing such a response to an emergency situation. The doctrine of “exigent circumstances” (where “exigent” means emergency) allows such a response in this case because the interval between the informant’s notifying the agents of the presence of the cocaine in the garage, and the agents’ arrival at the scene was so short. They could have gotten a search warrant had they delayed their arrival — but by then Rivera and Dueñas, worried by the failure of the buyer (not known to them to actually be an informant) to show up with the money,- might have removed the cocaine from the truck and hid it elsewhere.
The agents upon arrival in the garage could have phoned for warrants, meanwhile ordering Rivera and Dueñas to remain in the garage. ■ But the order would have been a seizure within the meaning of the- Fourth Amendment — without a warrant.
We note parenthetically that consent to enter need not be invalid just because the person giving it lacks relevant knowledge of the person to whom he’s giving it. In United States v. White,
But there was no newcomer" invited or even permitted to join the party in this case. Nor was the informant, having driven away from the garage before the agents entered, and anyway not having returned, in danger from Rivera or Dueñas such as would have justified his summoning law enforcement for aid and protection — he was well out of harm’s way. This case seems therefore not to fit either of the rationales that we’ve identified as justifying the “consent once removed” doctrine. But the district judge had a third ground, of which more later in this opinion, for denying the defendants’ suppression motion — “inevitable discovery.” See, e.g., Nix v. Williams, 467. U.S. 431, 444,
We can’t find a case that mentions “consent once removed” in which the decision in favor of the government could not have been supported on another ground: United States v. White, supra,
. Once the confidential informant alerted the agents to-the fact that there was cocaine in Duenas’s garage, they had probable cause to search the garage. They could have obtained a search warrant by relaying what the informant had told them to whatever-magistrate was available to rule on a warrant application. But there was no time. The agents had to move fast because Rivera and Dueñas might panic when-they realized that the (unknown to them) informant might not be returning, and remove the drugs from the garage. The certainty (just as in United States v. Pelletier,
Concern with the frequent dispropor-tionality of the Sanction of exclusion has led judges to create exceptions to the exclusionary rule, itself a rule of federal common law (that is, of judge-made law) rather than a part of the Fourth Amendment itself and so amenable to judge-made adjustment_ [T]he exception that is most pertinent to this ease goes by the name.of “inevitable discovery” and refuses to suppress evidence seized in an unconstitutional search if it is shown that the evidence would ultimately have been seized legally if the constitutional violation had not occurred. • In other words, just as careless or even willful behavior is not actionable as a tort unless it causes injury,*344 so there must be a causal relation between the violation of the Fourth Amendment and the invasion of the defendant’s interests for him to be entitled to the remedy of exclusion. In a case of inevitable discovery, the defendant would by definition have been no better off had the violation of his constitutional rights not occurred, because the evidence would in that event have been obtained lawfully and used lawfully against him.... There is an exception for errors deemed to go to the very heart of due process, but we know that a violation of the Fourth Amendment is not such an error, because the Supreme Court greatly restricts its use as the basis for a collateral attack on a state conviction.... [A] Fourth Amendment violation committed before any litigation began, though not a harmless trial error, no more automatically invalidates the conviction than a harmless trial error would.
In sum, the search and arrests in this case invaded no lawful interest, no protected right of privacy of the defendants; a pause to enable warrants to be obtained would have risked the disappearance of the contraband; and an attempt to obtain warrants before the informant phoned in the information that he’d found the contraband might well have been denied for lack of proof of probable cause, thus distinguishing this case from cases such as United States v. Camou,
Because “the officers] who conducted the search complied with then-binding precedent, the evidence obtained from the search should not be excluded[,] because the search was conducted with the objectively reasonable good-faith belief that it was lawful.” United States v. Gary,
The clincher is our recent decision in United States v. Witzlib, supra,
Similarly, had the agent in our case followed routine procedure — which as we said he would have done had he not been planning to rely on consent — a warrant would certainly have been issued on the basis of the informant’s knowledge: he had seen the cocaine stash in Rivera’s truck. So for Witzlib’s stash of explosives substitute our defendants’ cocaine stash and one sees that Witzlib governs this case. And Witzlib does not stand alone. For similar cases similarly decided see United States v. Pelletier, supra,
Affirmed
Concurrence Opinion
concurring in part and concurring in the judgments.
I join the portion of the majority’s opinion that jettisons the odd doctrine of “consent once removed” to justify some war-rantless entries and searches. I also agree that we should affirm the defendants’ convictions, though on a much narrower ground than my colleagues offer.
“Consent Once Removed”: To avoid seeking a warrant and to justify the war-rantless entry- and search, the agents, the prosecution, and the district, court relied primarily on the theory of consent once removed. Our precedents provided some support for that theory, at least as a general matter, but no prior case had stretched that doctrine as far as the agents stretched it here, to enter and search the private space (the garage) after the informant had left that space and was no longer in a danger zone.
By recognizing that the fictional notion of “consent once removed” should be abandoned, the majority opinion improves the Fourth Amendment law of this circuit. Most of the cases using the doctrine to avoid suppressing evidence should be understood as applications of inevitable discovery or exigent circumstances, allowing the police to protect an undercover agent or confidential informant who was in danger.
Inevitable Discovery: I am convinced that we should affirm the denial of defendants’ motions to suppress based on the “inevitable discovery” exception to the exclusionary rule, at least under our circuit’s precedents. '
The inevitable discovery exception does not apply merely because the police had probable cause to search and could have obtained a search warrant. To invoke the doctrine under our circuit precedent, “the government must show (1) ‘that it had, or would have obtained, an independent, legal justification for conducting a search that would have led to the discovery of the evidence’; and (2) ‘that it would have conducted a- lawful search absent the challenged conduct.’ ” United States v. Pelletier,
The first requirement was satisfied here. The agents had probable cause when their informant' left the defendants’ garage and signaled that he had seen the cocaine. The second requirement presents a much closer question in my view. ■ These agents had no plans to seek a search warrant and no interest in doing so. From the outset of the operation, they planned to claim consent once removed to justify a warrant-less entry after the informant gaye the signal.
To invoke the inevitable discovery exception, some other circuits require the government to show it was actively pursuing other, lawful grounds for obtaining the evidence. See, e.g., United States v. Cherry,
In United States v. Tejada,
Other Grounds: I am not persuaded, however, by the other grounds offered by my colleagues to affirm the denial of the motion to suppress. .The circumstances here were not exigent in that there was no threat of danger.to any person and no indication that the evidence was in danger of being destroyed. See Kentucky v. King,
The majority also excuses the agents’ failure to obtain a' search warrant as a “harmless error,” quoting at length from United States v. Stefonek,
Finally, the majority says the exclusionary rule should not apply here because the agents were relying reasonably on then-binding - circuit precedent. See Davis v. United States,
For these, reasons, I concur in the judgments.