CA2: Deliberate constitutional violation presumptively requires exclusion; inevitable discovery argument rank speculation

The government agents here, with the complicity of an ADA, made a conscious tactical choice to violate the constitution to be able to arrest defendant and question him without his lawyer being around. Inevitable discovery is a mixed question of law and fact reviewed de novo, and the government fails in its burden of proof. Inevitable discovery here was completely speculative. United States v. Stokes, 733 F.3d 438 (2d Cir. 2013):

In this case, such an assessment reveals that law enforcement personnel made a deliberate decision to violate constitutional requirements. We assume that the officers had probable cause to arrest Stokes for participation in the murder of Porter. While such probable cause would have permitted them to arrest Stokes without a warrant had they encountered him in a public place, it has long been established that an entry into protected premises in order to search for or arrest a suspect requires an arrest or search warrant. Payton v. New York, 445 U.S. 573, 587-88, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). There is little doubt that a warrant could have been obtained. Nevertheless, Assistant District Attorney Chase made a deliberate strategic choice to have the officers attempt to arrest Stokes without a warrant, in order to question Stokes outside of the presence of counsel. Detective Perrotta testified that he was familiar with this rule and knew that he needed a warrant or consent to enter Stokes’s room. Despite this knowledge, however, rather than waiting for Stokes to leave the motel room, or seeking consent to enter, or attempting a ruse in an effort to lure Stokes out of the room, he deliberately entered the motel room without a warrant or consent. That deliberate, tactical choice to violate Stokes’s constitutional rights was “sufficiently deliberate that exclusion [could] meaningfully deter it,” Herring, 555 U.S. at 144. We have no doubt that the exclusion of evidence is presumptively appropriate in such a clear case of illegal police action.

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The exclusionary rule is not without exceptions, however. One such exception — the inevitable discovery doctrine — provides that the fruits of an illegal search or seizure are nevertheless admissible at trial “if the government can prove that the evidence would have been obtained inevitably without the constitutional violation.” United States v. Heath, 455 F.3d 52, 55 (2d Cir. 2006) (internal quotation marks omitted). The government bears the burden of proving inevitable discovery by a preponderance of the evidence. Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984); United States v. Cabassa, 62 F.3d 470, 472-73 (2d Cir. 1995). We have made clear, however, that “proof of inevitable discovery ‘involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment,'” United States v. Eng, 971 F.2d 854, 859 (2d Cir. 1992), quoting Nix, 467 U.S. at 444 n.5 (emphasis in Eng). The focus on demonstrated historical facts keeps speculation to a minimum, by requiring the “district court to determine, viewing affairs as they existed at the instant before the unlawful search occurred, what would have happened had the unlawful search never occurred.” Id. at 861 (emphasis in original). Evidence should not be admitted, therefore, unless a court “can find, with a high level of confidence, that each of the contingencies necessary to the legal discovery of the contested evidence would be resolved in the government’s favor.” Heath, 455 F.3d at 60; see also id. (“Under the inevitable discovery exception, unlawfully seized evidence is admissible if there is no doubt that the police would have lawfully discovered the evidence later.”), quoting United States v. Romero, 692 F.2d 699, 704 (10th Cir. 1982) (emphasis in Heath); United States v. Roberts, 852 F.2d 671, 676 (2d Cir. 1988) (holding that the issuance of a subpoena may not “inevitably result[] in the discovery of … suppressed documents” because several contingencies may not have been resolved in the government’s favor).

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The district court’s inevitable discovery analysis was erroneous in several respects, and we hold that the government has failed to prove by a preponderance of the evidence that the guns and ammunition would inevitably have been discovered. First, the district court, “focus[ing] on demonstrated historical facts,” Nix, 467 U.S. at 444 n.5, must determine, with a “high level of confidence, that each of the contingencies necessary to the legal discovery of the contested evidence would be resolved in the government’s favor,” Heath, 455 F.3d at 60 (emphasis added). Here, the district court, finding that there was only one real contingency in this case, failed to account for all of the demonstrated historical facts in the record, and in doing so, failed adequately to consider other plausible contingencies that might not have resulted in the guns’ discovery.