Two police officers went to defendant’s home because the LPN on the car involved in a hit and run came back to that address. At the house, the housekeeper greeted them and said that defendant probably was driving the car. The officers announced that no one was leaving. The entry into the house was not justified by inevitable discovery because the state could not show that they were going to get a warrant or that a warrant would even find what they were looking for. The motion to suppress the entry into the home should have been granted. Brierley v. Layton City, 2016 UT 46, 2016 Utah LEXIS 126 (Oct. 21, 2016):
This respect for the home predates our federal constitution and hearkens back to our English common-law roots. In the words of William Pitt the Elder,
The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter,—but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.
William Pitt, the Elder, Earl of Chatham, Speech in the House of Lords (1763).
. . .
[*P32] Here, the City argued that if the officers had not entered the house, a warrant would have issued and the officers would have conducted a legal search. To succeed on this particular theory, the City first needed to demonstrate that the police would have sought and obtained a warrant. Parties have, at times, prevailed on this theory. For example, in United States v. Christy, an FBI agent had developed probable cause that the defendant was involved in the disappearance and sexual abuse of a sixteen-year-old girl. 739 F.3d 534, 537-38 (10th Cir. 2014). Before the agent could obtain a warrant to search the defendant’s residence, two sheriff’s deputies sent to check on the residence entered it without a warrant. Id. at 538. The reviewing appellate court concluded that the investigating officer “would have successfully obtained a warrant independent of the illegal search [by two other deputies].” Id. at 543. Similarly, in Souza, one agent was in the process of getting a warrant to search a package when another agent opened the seized package. United States v. Souza, 223 F.3d 1197, 1205-06 (10th Cir. 2000). The court concluded that “but for [one agent] opening the package, [a different agent] would have obtained a warrant and the evidence would have been discovered.” Id. at 1206.
[*P33] Unlike the prosecutors in Christy and Souza, the City did not argue that an officer other than those who violated the Fourth Amendment would have obtained a warrant. Instead, the City attempted to meet its burden with evidence that Joseph and Dixon intended to obtain a warrant to enter the Brierley residence and had taken significant steps toward that end. The City argued that, despite having reason to believe that the driver in the hit-and-run accident was inside the home, the officers declined to enter when the housekeeper initially invited them in because they recognized their obligation to procure a warrant before entering the home. They contacted a city attorney to discuss the situation. After that conversation, one of the officers retrieved his tablet from his motorcycle to fill out a warrant application. The City contends this demonstrates that the officers would have eventually obtained a warrant had they not entered the home illegally.
[*P34] We disagree. If, while the officers were outside the home, some third officer had appeared on the scene and burst into the home without a warrant, we could hypothesize that absent the third officer’s actions, Joseph and Dixon would have stayed outside while they completed and submitted their warrant application. But there was no third officer or anything else that could allow a court to conclude that the officers would have done anything differently than what they actually did. The City cannot meet its burden by speculating about what Joseph and Dixon might have done if they had not entered the home without a warrant because we know what they actually did. When presented with the question of whether they should wait to get a warrant before entering the home, they walked in without a warrant.
[*P35] “For courts confidently to predict what would have occurred, but did not actually occur, there must be persuasive evidence of events or circumstances apart from those resulting in illegal police activity that would have inevitably led to discovery.” State v. Topanotes, 2003 UT 30, ¶ 16, 76 P.3d 1159. Although we have not required parties advocating inevitable discovery to point to a wholly separate investigation, we do require that they forward evidence sufficient to support a conclusion that but for the illegal search something different would have happened and that the “something different” would have inevitably resulted in the discovery of the same evidence by lawful means. Here, the City presented no evidence of any other investigation, any routine procedure, or any other officers working on the matter. The City is left to argue that Joseph and Dixon would have obtained the warrant before entering if they had not done the exact opposite. In other words, the “something different” the City offers consists entirely of the discredited argument that the officers “would have done it right” if they “hadn’t done it wrong.” See id. ¶ 19 (citation omitted); see also State v. Tripp, 2010 UT 9, ¶ 59, 227 P.3d 1251 (affirming the court of appeals’ conclusion that blood draw evidence was not saved by the inevitable-discovery exception where police had “threatened to seek a warrant, [but] took no steps whatsoever to obtain one”).
[*P36] Although the City’s inevitable-discovery argument fails solely because the City cannot show that the officers would have sought and obtained a warrant, we are also not convinced a warrant would have ultimately revealed all of the same evidence the officers uncovered as a result of the warrantless entry. Nix requires a showing that the evidence subject to the suppression motion “would have been discovered by lawful means”—in this case, the hypothetical warrant. 467 U.S. at 444. As a practical matter, this requires an examination of the nature of the evidence and the likelihood that it would still be discovered after a warrant could be lawfully procured.