CA10: Inevitable discovery applies despite lack of PC in first SW

Even though the initial search warrant was issued without probable cause, inevitable discovery can still apply. United States v. Streett, 2023 U.S. App. LEXIS 26423 (10th Cir. Oct. 5, 2023):

Having concluded that the inevitable discovery doctrine can apply in cases where a warrant was improperly issued, the question now is whether the Search Warrant at issue here would inevitably have been granted had it been initially denied for lack of an adequate showing of probable cause, and thus whether the evidence would inevitably have been discovered. We conclude that it would have.

We consider four factors to determine how likely it is that a proper warrant inevitably would have been granted: (1) “the extent to which the warrant process has been completed at the time those seeking the warrant learn of the search,” (2) “the strength of the showing of probable cause at the time the search occurred,” (3) “whether a warrant ultimately was obtained, albeit after the illegal entry,” and (4) “evidence that law enforcement agents ‘jumped the gun’ because they lacked confidence in their showing of probable cause and wanted to force the issue by creating a fait accompli.” Souza, 223 F.3d at 1204 (quoting Cabassa, 62 F.3d at 473 n.2). This requires courts “to examine each of the contingencies involved that would have had to have been resolved favorably to the government in order for the evidence to have been discovered legally and to assess the probability of the contingencies having occurred.” Id. at 1205. To meet this burden, the Government must provide “demonstrated historical facts capable of ready verification.” United States v. Shrum, 908 F.3d 1219, 1235 (10th Cir. 2018).

The first factor—i.e., the extent of the warrant process—clearly favors the Government. …

Second, the strength of probable cause also favors the Government. …

The third factor—whether a warrant was ultimately obtained—is admittedly an awkward fit for these facts. …

Fourth, as for evidence that the officers jumped the gun “due to their lack of confidence about probable cause” … this factor also favors the Government. …

These two cases [cited by defendant] concern various plausible contingencies which would likely cause a presumed future state of affairs to diverge drastically from the actual state of affairs, and which would prevent the contraband from ever being discovered. But here, the actual world where the warrant was improper and the presumed future world where the search would have been proper differs by just one easy-to-add sentence in the Warrant Affidavit. And there is no reason to think that this small fix would have led to a significant delay in either the issuance or execution of the search warrant—especially since the warrant was approved telephonically. These facts do not lend themselves to the much greater contingencies like those that were in play in Owens or Neugin. Rather, the world of the defective affidavit and the hypothetical world of the proper affidavit overlap almost entirely. Thus, the district court did not err in concluding that the discovery of the evidence here was inevitable.