CA7: Inevitable discovery supported seizure of $100k in a briefcase on a train despite unlawful search of briefcase

Defendant was stopped on a train in his compartment in a drug courier profile stop. He had $100,120 in a briefcase, and the government was seeking to forfeit it. Removing the briefcase from the train for a dog sniff was not contrary to Place and was reasonable under the circumstances. Inevitable discovery supported the seizure despite an illegal search of the briefcase. Seizure was based on a dog alert on the money. No drugs were found. Remanded for trial. United States v. Marrocco, 578 F.3d 627 (7th Cir. 2009):

Our conclusion that the officers were permitted to seize the briefcase and remove it from the train does not end our inquiry. After the officers removed the briefcase, and before they obtained a warrant or even probable cause to search it, Officer Romano opened the briefcase and observed its contents. There is no doubt that this warrantless search was constitutionally impermissible. We therefore must determine the constitutional significance of that unlawful search on our analysis.

Mr. Marrocco contends that, because of the unlawful search, the results of the dog-sniff test and the evidence of the briefcase’s contents, drug-tainted money, must be suppressed. He asserts that there is no way to determine whether the officers would have discovered the funds, or the connection between the funds and any illegal activity, in the absence of the unlawful conduct. The Government, however, maintains that the district court erred in suppressing the evidence of the results of the dog-sniff test. Although it admits that the officer’s visual inspection of the contents of the briefcase was improper, it contends that the challenged evidence should have been admitted under the inevitable discovery doctrine.

We agree with the Government that the officers inevitably would have discovered both the funds and the evidence that the funds were associated with narcotics. The first prong of the inevitable discovery test has been met because the officers could have obtained, based on the results of the dog-sniff test, an independent legal basis for searching the briefcase; namely, the results of the dog-sniff test would have supported the issuance of a warrant. See United States v. Washburn, 383 F.3d 638, 643 (7th Cir. 2004) (“[W]e have held that a positive alert by a trained drug dog gives rise to probable cause to search a vehicle.” (citations omitted)). Mr. Marrocco claims that we cannot rely on the results of the dog-sniff test because it is not clear that the officers would have ordered that test in the absence of the illegal search. We disagree. At the time the search took place, the officers already knew that the briefcase contained a large sum of money; Mr. Fallon had told them this much when he stated that the briefcase contained $50,000. The unlawful search of the briefcase yielded nothing more than a confirmation of Mr. Fallon’s earlier admission.

. . .

The fact that the results of the dog-sniff test would have supported a warrant is not sufficient, however; the Government must also show, under the second prong of our inevitable discovery inquiry, that the officers inevitably would have sought the warrant and conducted a lawful search. In this circuit, when the Government seeks “to use the doctrine of inevitable discovery to excuse its failure to have obtained a search warrant,” it must “prove that a warrant would certainly, and not merely probably, have been issued had it been applied for.” United States v. Tejada, 524 F.3d 809, 813 (7th Cir. 2008).

We are convinced that the Government has satisfied this burden. ….

. . .

Indeed, even if the inevitable discovery doctrine was waived or inapplicable, we would have to conclude that the results of the dog-sniff test were admissible. The illegality of Officer Romano’s opening of the briefcase with a knife had no effect on the subsequent discovery that the money was tainted by drugs. The officers already knew of the presence of the money. Opening the briefcase gave them no knowledge about whether the money was tainted. That knowledge was completely dependent on the dog-sniff test. Therefore, the causal connection between the illegality of Officer Romano’s search was so far attenuated from the crucial evidence as to make invocation of the suppression doctrine inappropriate. See United States v. Carter, No. 09-1608, 2009 U.S. App. LEXIS 15845, *16 (7th Cir. July 20, 2009); United States v. Ienco, 182 F. 3d 517, 526 (7th Cir. 1999); see also Brown v. Illinois, 422 U.S. 590, 609, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975) (Powell, J., concurring); United States v. Fazio, 914 F.2d 950, 957 (7th Cir. 1990).

Comment: Just ten days ago, once again, the American Chemical Society released a study (video here, press release here; Time article here) that 90% of the currency in the U.S. is contaminated with cocaine residue sufficient for a dog alert, so it means essentially nothing. [See these stories from 1994 and 1995.] Even Brazil is 80% and China up to 20%. See the Time story:

As anyone who’s seen the Johnny Depp movie Blow knows, bills are often contaminated when they are rolled up and used to snort cocaine. (According to the study, bills for $5, $10, $20 and $50 tended to have higher amounts of cocaine compared to $1 and $100 notes.) But, as the prevalence of drug-dusted dollars conveys, it isn’t just people snorting and selling cocaine who might have some residue in their wallets. Once a small amount of the substance is introduced, it can spread among bills as they intermix in cash registers, day to day transactions, and bank counting machines, meaning, if you live in a city, you’ve probably had a laced bill mingling with your money at some point. Yet, don’t worry, you’re not likely to face any legal trouble or fail any company drug tests as a result: the amounts of cocaine found on bills ranged from a minuscule .006 micrograms to 1,240 micrograms—an amount comparable in weight to about 50 grains of sand, according to the researchers.