CA9: Inevitable discovery doesn’t apply when it’s speculative

The good faith exception doesn’t apply where binding appellate precedence doesn’t specifically authorize the officer’s actions. And, as to inevitable discovery of defendant’s cell phone seizure, it was found speculative because he happened to be at the scene and they weren’t looking for the phone. (There’s also a government argument waiver finding.) United States v. Holmes, 2024 U.S. App. LEXIS 28741 (9th Cir. Nov. 13, 2024):

As far as we can tell, under our rule that binding appellate precedent must “specifically authorize” law enforcement’s conduct, we have not applied the good-faith exception where there are contrasting, potentially dispositive precedents. Instead, we have taken a narrow view of when precedent specifically authorizes an action. See Lara, 815 F.3d at 613 (“We decline to expand the [good-faith exception] to cases in which the appellate precedent, rather than being binding, is (at best) unclear.”). For instance, in Cano, notwithstanding precedent authorizing officials to conduct expansive searches at border crossings to locate contraband, we declined to apply the good-faith exception to border searches conducted for a different purpose—”proving [a] case against [a defendant] and finding evidence of future crimes.” 934 F.3d at 1022 (emphasis omitted). We reached this conclusion even though law enforcement subjectively “thought that their actions were reasonable” based on the existing border-search precedent. Id.; see also United States v. Lustig, 830 F.3d 1075, 1080 (9th Cir. 2016) (stating good-faith reliance on precedent must be objectively reasonable).

Because the binding appellate precedent that existed when Agent Steele conducted her investigation was contradictory and only plausibly supported her warrantless viewing of the images received from Facebook, we conclude that the good-faith exception does not apply. When it is ambiguous where an officer’s conduct falls on the continuum of what is lawful and what is not, our precedent requires that law enforcement comply with the warrant requirement. Cano, 934 F.3d at 1021.

. . .

The Government must prove that discovery of the evidence by lawful means was inevitable by a preponderance of the evidence. Nix, 467 U.S. at 444. This burden is not met when the Government relies on unsupported assumptions to fill in the gaps of an undeveloped record. And here, the Government’s attempt to characterize Agent Rose’s investigation as a “routine procedure” that inevitably would have led agents to find the illicit images on Holmes’s social media accounts and cellphone simply is not supported by the record. This purported “routine procedure” is also of a different character than other procedures that we have held demonstrate inevitability. See Nix, 467 U.S. at 449; Andrade, 784 F.2d at 1433; Hylton, 30 F.4th at 848. Agents exercise discretion in how they conduct their investigations. This is evident from the differences between Agent Rose’s and Agent Steele’s investigations and Agent Rose’s testimony that she did not fully investigate every child-pornography cybertip.

For all these reasons, we conclude that the good faith and inevitable-discovery exceptions to the warrant requirement do not apply. The district court’s denial of Holmes’s motion to suppress is reversed and the case is remanded for further proceedings.