Defendant was Sandra Bullock’s stalker arrested in her house. He lawyered up but the police kept questioning and got consent which was held involuntary by the trial court. The state appealed. They tried inevitable discovery, and that was rejected. Finally, the state argued that defendant’s failure to comply with a firearms relinquishment order justified the search, but that wasn’t even stated as a basis of the warrant. People v. Superior Court, 2017 Cal. App. LEXIS 114 (2d Dist. Feb. 14, 2017):
In the absence of exigent circumstances, if the police could have obtained but did not obtain a warrant to search a person’s residence, and entered the person’s residence illegally based on an invalid consent, does the fact that they could have obtained a warrant, or later obtained a warrant when they wanted to return to search the home again, excuse their failure to obtain a warrant before the initial entry? The answer is no.
Here, an unarmed alleged stalker was arrested inside the home of his victim and then questioned extensively despite his repeated invocation of his right to remain silent. The police, aware from a records search that he had eight firearms registered in his name, continued to question him until he disclosed his address and the location where the guns could be found, and signed a form consenting to the search of his home. It is undisputed in this proceeding that the suspect’s assent to the search was not a meaningful or valid consent.
The parties agree that the police had probable cause to obtain a search warrant before they entered the suspect’s home, and there is no dispute that officers had the opportunity to seek a warrant but elected not to do so. They searched the suspect’s home and seized numerous firearms and ammunition, including seven of the eight weapons listed in the firearms registration record. The following day, relying upon information gathered from the interrogation of the suspect and facts learned from their earlier search of his home, they obtained a search warrant for the suspect’s home, identifying two objects of the search: a gun safe they saw during their initial entry, and the eighth firearm known to be registered to the suspect but not located during the warrantless search the day before.
. . .
Moreover, the People did not present evidence that law enforcement was engaged in any lines of investigation that would ultimately have led them to the illegal firearms in Corbett’s home without the information gleaned through the “overreaching by the police” (Nix, supra, 467 U.S. at p. 447) in the interrogation and search. Instead, the evidence demonstrates that the police obtained all their information about where the firearms registered to Corbett could be found and what to seize from Corbett’s home from the violations of his Fourth and Fifth Amendment rights. Indeed, when the police sought a search warrant on June 10 they relied heavily on Corbett’s purported consent and the items seen during the initial, illegal search, and they made no effort to establish probable cause in the warrant application based on information gathered from sources other than Corbett’s statements to the police and the warrantless search of his home. Because the People did not present “historical facts capable of ready verification or impeachment” establishing that the evidence obtained in the June 9 search would inevitably have been discovered without reference to the police error or misconduct (id. at pp. 444, fn. 5, 448), they failed to meet their burden of showing by a preponderance of the evidence that the evidence obtained in the illegal search of Corbett’s home would inevitably have been discovered even if no violation of any constitutional provision had taken place. (Id. at p. 444.)
Finally, the Ninth Circuit Court of Appeals has held that the inevitable discovery doctrine does not apply when officers have probable cause to apply for a warrant but fail to do so. (United States v. Lundin (9th Cir. 2016) 817 F.3d 1151 (Lundin); United States v. Mejia (9th Cir. 1995) 69 F.3d 309, 320; United States v. Echegoyen (9th Cir. 1986) 799 F.2d 1271, 1280, fn. 7.) The Court of Appeals has explained, “This court has never applied the inevitable discovery exception so as to excuse the failure to obtain a search warrant where the police had probable cause but simply did not attempt to obtain a warrant. As we stated in Echegoyen, to ‘excuse the failure to obtain a warrant merely because the officers had probable cause and could have obtained a warrant would completely obviate the warrant requirement.’ 799 F.2d at 1280 n. 7; see also United States v. Johnson, 22 F.3d 674, 683 (6th Cir.1994) (‘to hold that simply because the police could have obtained a warrant, it was therefore inevitable that they would have done so would mean that there is inevitable discovery and no warrant requirement whenever there is probable cause’). If evidence were admitted notwithstanding the officers’ unexcused failure to obtain a warrant, simply because probable cause existed, then there would never be any reason for officers to seek a warrant. To apply the inevitable discovery doctrine whenever the police could have obtained a warrant but chose not to would in effect eliminate the warrant requirement. [¶] We are neither free nor willing to read the warrant requirement out of the Constitution. Accordingly, even if we assume that the detectives were in possession of competent evidence showing probable cause at the time of the search, the inevitable discovery doctrine would not justify introduction of the evidence seized without a warrant.” (Mejia, at p. 320.)
The trial court put the rule succinctly: “[T]he courts are saying … that when you have the choice, [to] go get a warrant or not, don’t rely on the fact that I could have gotten one as your reason for not getting one.” The court explained, “Yes, they could have gotten a warrant. But when they don’t, can they do that with no risk at all? Can they—can I protect the Fourth Amendment if I tell them don’t worry about it, if you’re confident you could have gotten a warrant, just go right ahead and do what you think is necessary and somebody, after the fact, will sort through all this and piece together probable cause and say, sure, it would have been nice to get a warrant, and you could [] have gotten one, but it was okay that you went through the door. [¶] I just—you know, I don’t think that’s Fourth Amendment law. And I hope it’s not Fourth Amendment law.”
