CA6 explains inevitable discovery and how it was confused here with attenuation

The district court erred by analyzing the search as attenuation when it should have been inevitable discovery, and that’s on the lawyers for not having filed adequate briefs. The court gives a thorough and helpful explanation of both and how they might work together or not. United States v. Cooper, 2022 U.S. App. LEXIS 3111 (6th Cir. Feb. 3, 2022). As for the conclusion:

With these principles in mind, we turn back to this case. The district court largely engaged in an attenuation analysis focused on whether Walton’s subsequent consent was sufficiently attenuated from the illegal protective sweep. That was the wrong legal test. The district court’s finding of attenuation shows merely that the causal link was too remote to justify suppression of any evidence found during the consent search. Strieff, 136 S. Ct. at 2061. But there was no such evidence. The gun was seized during the initial unlawful search, so inevitable discovery, not attenuation, is the right tool for the job. When the district court did briefly use that tool, the court did not, as it should have, examine the circumstances as they existed just before the protective sweep to determine what would have happened had the protective sweep never occurred.

In fairness, the district court bears little blame for the mistake. In response to the suppression motion, the government offered an inevitable discovery argument consisting of a few conclusory sentences, and the parties offered even less on the topic during the suppression hearing, which was largely focused on the legality of the protective sweep. The record likewise contains scant evidence of the state of affairs just before the protective sweep, facts surely relevant to properly applying inevitable discovery. But the district court nonetheless focused on the wrong legal standard, which warrants a remand so the district court can apply the correct test in the first instance. On remand the court should focus on the following questions: If the illegal protective sweep had never happened, would officers have sought Walton’s consent to search?

Would Walton have given her consent in such a hypothetical world? And would the ensuing consent search have led to the gun? The inevitable discovery exception applies only if the answer to all three questions is “yes.”

We VACATE the district court’s judgment and REMAND for further proceedings.