CA10: Inevitable discovery doesn’t require SW actually be sought

Defendant was investigated after the disappearance of a 16 year old girl in California. Once into her email account, sexually explicit emails with defendant from New Mexico were found. Police came to his house and saw her braless through the front window, and defendant taking pictures of her. They entered and arrested, and he was indicted for interstate transportation for sex with a minor. The inevitable discovery doctrine supported the entry because they clearly had probable cause. They entered because they feared for her safety [why not exigent circumstances? Feared it wasn’t good enough?]. If a warrant had been sought, it would have been granted. There’s no requirement that the police actually be in the process of getting the warrant to enter under this rule. United States v. Christy, 739 F.3d 534 (10th Cir. 2014):

Thus, lest there be any doubt, we reaffirm the notion that inevitable discovery requires only that the lawful means of discovery be “independent of the constitutional violation,” Larsen, 127 F.3d at 987, and conclude that a second investigation is not required. In this case, and as discussed more fully below, Officer Carvo had sufficient probable cause to obtain a warrant based on the information he had before the BCSO deputies searched Mr. Christy’s residence. The warrant he would have inevitably obtained would thus have been independent of the constitutional violation.

2. The Souza Factors

Next, Mr. Christy argues that the district court misapplied the factors set forth in Souza in finding that the evidence would have been inevitably discovered. Aplt. Br. 21-26. In cases like this one, where the theory of inevitable discovery is that a warrant would have been obtained but for the illegal search, the district court must determine “how likely it is that a warrant would have been issued and that the evidence would have been found pursuant to the warrant.” Souza, 223 F.3d at 1204. In Souza, we adopted four factors from the Second Circuit to aid in this determination:

1) the extent to which the warrant process has been completed at the time those seeking the warrant learn of the search; 2) the strength of the showing of probable cause at the time the search occurred; 3) whether a warrant ultimately was obtained, albeit after the illegal entry; and 4) evidence that law enforcement agents ‘jumped the gun’ because they lacked confidence in their showing of probable cause and wanted to force the issue by creating a fait accompli.

Id. (quoting United States v. Cabassa, 62 F.3d 470, 473-74, 473 n.2 (2d. Cir. 1995) (internal quotation marks and citations omitted)). Factors (1) and (3) are of particular importance. Id. Ultimately, the court must examine each contingency that would need to have been resolved in favor of the government and apply the inevitable discovery doctrine “only when it has a high level of confidence” that the warrant would have been issued and the evidence obtained. Id. at 1205.