CA3: “[T]he Government must do more than establish the possibility that the evidence would have been discovered”; search of suitcase before dog alert invalid

Warrantless search of suitcase in a car where the car was searched by consent was invalid. The dog sniffed the bag after the heroin was found. The fact they might have done it lawfully another way doesn’t make this search legal. United States v. Carrion-Soto, 493 Fed. Appx. 340 (3d Cir. 2012):

Here, at the instant before Drummond unlawfully opened Carrion-Soto’s suitcase, the officers had obtained Guzman’s consent to search the car but they had not yet found the cocaine or used Treez [the dog] to detect the presence of any narcotics. Although the District Court concluded that “the discovery of the heroin was inevitable based on the search of the rest of the car that was already underway,” (App. at A269), that conclusion is not based on the record and is little more than speculation based on the court’s view of what would have followed based on “best practices” or the court’s concept of reasonably thorough police work. Even though the suppression hearing lasted three days, the Government never asked any of the officers to testify about the procedures they would have followed had they found the cocaine before opening the suitcase.

It is certainly possible that, upon finding the cocaine, they would have opened the suitcase on the roadside or, alternatively, impounded the car and opened the suitcase pursuant to an inventory search. See Bansal, 663 F.3d at 664 (“After taking custody of property, officers may make a warrantless inventory search so long as the search is conducted pursuant to standardized procedures.”) (citing South Dakota v. Opperman, 428 U.S. 364, 369 (1976)). However, the Government must do more than establish the possibility that the evidence would have been discovered. Rather, the record must support a finding that the police had relevant procedures in place, that those procedures would have been followed, and that that would have inevitably led to the discovery of the evidence in question. See Vasquez de Reyes, 149 F.3d at 195. This record is simply not sufficient to allow the District Court to find by a preponderance of the evidence that either course of action referenced above would have been followed. That is especially true because nothing on this record even suggests that the car was impounded or that the driver was detained longer than may have been needed to issue a traffic citation for speeding.

Nor is there sufficient evidence to establish that, had Drummond not opened the suitcase, the heroin would have inevitably been discovered through lawful means by the officers’ use of Treez. Although Brown testified about the procedures he normally followed when using Treez to detect narcotics, it is undisputed that the Government did not establish that those procedures would have been followed here. Rather, Brown’s use of Treez in this case departed from any standard procedures. Despite the fact that Brown and Treez arrived on the scene well before Drummond opened the suitcase, it was only after the heroin had already been found that Brown retrieved Treez to sniff the suitcase.