ID: Unlawful warrantless search isn’t salvageable by inevitable discovery by later learning of probation search waiver

A unreasonable warrantless search is not cured by inevitable discovery because the officers later find out defendant was on probation and had a search waiver on file. State v. Maxim, 2019 Ida. LEXIS 216 (Dec. 4, 2019):

We hold that a Fourth Amendment waiver cannot salvage an otherwise unreasonable entry into a home under the Fourth Amendment if the police officers were unaware of the waiver at the time of the unconstitutional search. We are not alone in this common-sense approach. See Samson v. California, 547 U.S. 843, 856 n.5 (2006) (“Under California precedent … an officer would not act reasonably in conducting a suspicionless search absent knowledge that the person stopped for the search is a parolee.”); United States v. Job, 871 F.3d 852, 859 (9th Cir. 2017) (“Police officers must know about a probationer’s Fourth Amendment search waiver before they conduct a search in order for the waiver to serve as a justification for the search.”). The discovery of a Fourth Amendment waiver after the fact should not serve as a deus ex machina allowing the State to rewrite the story in the courtroom when the police’s actions were unconstitutional outside of it. See State v. Saldivar, 165 Idaho 388, 393, 446 P.3d 446, 451 (2019) (noting that a similar argument by the State dealing with a parolee “is essentially a post hoc justification for the conduct of the police, based on information the police did not know at the time.”)

Even if the officer’s actions were unreasonable, the drug evidence could still be admissible under the inevitable-discovery exception to the exclusionary rule. See Nix v. Williams, 467 U.S. 431, 440-41 (1984). The United States Supreme Court has defined the inevitable-discovery doctrine based on a weakened deterrence ground: “If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means … then the deterrence rationale has so little basis that the evidence should be received.” Id. at 444. “The premise is that law enforcement should be ‘in the same, not a worse, position that they would have been’ absent the misconduct.” State v. Downing, 163 Idaho 26, 31, 407 P.3d 1285, 1290 (2017).

. . .

Here, if we put the police in the same position they would be in without the police misconduct, the police are left with no other investigatory wheels in motion. As we have stated on prior occasions, “the inevitable discovery exception does not permit us to speculate on the course of action the investigation could have taken in the absence of [the Constitutional violation]-even if that alternate course likely would have yielded the evidence.” Downing, 163 Idaho at 32, 407 P.3d at 1291. A police investigation often takes branching paths. The inevitable-discovery doctrine presupposes parallel paths leading toward the inevitable discovery of evidence. If, because of illegal police action, one path arrives at the evidence before the other does, then the State will be permitted to prove that the existing alternative path would have yielded the evidence even if the existing alternative path was cut short due to the discovery of the evidence. However, the split in the investigation which creates these parallel paths must occur prior to or independent of the illegality, not because of it. The question is not what legal path the police would have inevitably taken which could have yielded the evidence. The question is what legal path the police actually took which would have inevitably yielded the evidence. We again stress the astute observation of our Court of Appeals: “The inevitable discovery doctrine ‘is not intended to swallow the exclusionary rule whole by substituting what the police should have done for what they really did.'” Id. (quoting State v. Holman, 109 Idaho 382, 392, 707 P.2d 493, 503 (Ct. App. 1985)) (internal quotation marks and alterations omitted).

The question becomes whether the State can prove that the evidence in question would have been inevitably discovered even if the police illegality is removed from the equation. The State did not meet this burden. …