AFOSI officers exceed the military search authorization which omitted defendant’s bags. They’d sought a search of the bags and it was within the confines of the affidavit. There was no bad faith, and they were actively investigating pursuing leads on defendant for falsifying records to take money from the government. Inevitable discovery is applied “to the narrow circumstances … in this case.” United States v. Eppes, 2018 CAAF LEXIS 202 (Apr. 10, 2018):
First, we believe the agents would have applied for and received authorization to search had they recognized the discrepancy omitting the bags. The agents conducted a search beyond the scope of the authorization, but within the confines of the affidavit. Since the military judge made no finding of bad faith, we assume the agents were unaware of the discrepancy between the warrant and the affidavit. Had the agents arrived at Appellant’s office and noticed the personal bags, read the authorization, noticed the discrepancy, and decided not to search the bags, they could have, and likely would have lawfully seized the bags, with probable cause to do so, and either called a military magistrate and asked for an oral search authorization or left and obtained a written authorization to search the bags. See California v. Acevedo, 500 U.S. 565, 575 (1991) (“Law enforcement officers may seize a container and hold it until they obtain a search warrant. Since the police, by hypothesis, have probable cause to seize the property, we can assume that a warrant will be routinely forthcoming in the overwhelming majority of cases.” (internal quotation marks omitted) (citations omitted)). Furthermore, it is reasonable to conclude the agents would have applied for authorization to search the bags where, as here, they had earlier requested, in the affidavit, to search any bags found. The probable cause that existed to search Appellant and his vehicle would still have supported any later request to search the bags had the illegality not occurred.
Second, the agents were actively pursuing leads that would have led them to the same evidence. On December 7 and 8, agents searched other bags belonging to Appellant and recovered blank prescription forms, receipts, travel orders on official letterhead, a laptop, a Blackberry, SIM cards, an iPad, medications, and documents. In mid-December, agents obtained Appellant’s travel records and vouchers and reviewed his financial, insurance, and medical records. This yielded evidence Appellant had committed both travel and medical prescription fraud and spurred an investigation into whether Appellant committed insurance fraud. On February 5, 2013, aside from the evidence contained in the personal bags at Appellant’s office, agents recovered jewelry invoices, pharmacy receipts, leave authorizations, bank statements, a permanent duty travel voucher, and documents evidencing fraud against the United States during searches of Appellant’s vehicle, his office, and his residence. Under the preponderance of the evidence standard, the Government has demonstrated agents were actively pursuing leads that support the conclusion that the bags at the Chapel 1 office would inevitably have been lawfully seized and searched and their contents discovered.
Next, we also see no valid policy reason for applying the exclusionary rule in this case. “[A]dmittedly drastic and socially costly,” the exclusionary rule should only be applied where “needed to deter police from violations of constitutional and statutory protections.” Nix, 467 U.S. at 442-43. The exclusionary “rule’s sole purpose … is to deter future Fourth Amendment violations.” Davis v. United States, 564 U.S. 229, 236-37 (2011). As such, its use is limited “to situations in which this purpose is thought most efficaciously served.” Id. at 237 (internal quotation marks omitted) (citation omitted). “For exclusion to be appropriate, the deterrence benefits of suppression must outweigh [the rule’s] heavy costs.” Id.
Finally, the inevitable discovery exception to the exclusionary rule unavoidably requires acceptance of certain reasonable assumptions. Reasonable minds might very well differ as to whether, in a particular case, these assumptions have exceeded the bounds of reasonableness. Nonetheless, the aim is to apply the doctrine in such a way as to not subvert the deterrence objective of the exclusionary rule. Here, where the Fourth Amendment violation was likely not the result of deliberate misconduct in need of deterrence, any marginal deterrent benefit to be gained is far outweighed by the heavy costs exclusion would have—namely placing the Government in a worse position than it would have been had the illegality not occurred. See, e.g., Sims, 553 F.3d at 581, 583-84 (noting likely scrivener’s error of omission on warrant of evidence listed in affidavit and that there was zero social benefit in excluding the evidence because “[t]he search would have been authorized, would have taken place, and would have been identical in scope, both as to places searched and things seized, to the search that the police did conduct”).
We therefore conclude the inevitable discovery doctrine applies to the narrow circumstances before us in this case.
