‘Could've Got Warrant' Isn't Inevitable Discovery

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By Lance J. Rogers

Dec. 11 — Marijuana found during a warrantless home intrusion isn't admissible under the inevitable-discovery exception to the exclusionary rule unless the police were already in the process of seeking a warrant to search the residence, a divided Florida Supreme Court ruled Dec. 10.

In an opinion by Justice James E.C. Perry, the court rejected the state's argument that suppression wasn't required because there was ample probable cause to support a search warrant had the officers taken the opportunity to seek one.

“We cannot apply the inevitable discovery rule in every case where the police had probable cause to obtain a warrant but simply failed to get one,” the court said.

Coulda, Woulda, Shoulda

The police in this case searched the home of Miguel Rodriguez after getting a tip from a group of bail bondsmen that—while chasing down one of their clients—they noticed Rodriguez was growing marijuana at his house.

Although the trial court ruled that Rodriguez's consent to the police search was coerced, it denied the motion to suppress on the ground that the police had enough probable cause to secure a search warrant if they had decided to get one.

It noted that the lead detective testified that he would have sought a warrant if Rodriguez hadn't consented to the search and it surmised that a magistrate would have signed off on the warrant based on the bondsmen's observations.

The intermediate appeals court affirmed, but the Florida Supreme Court quashed the decision, saying that the inevitable discovery doctrine can't be invoked because there wasn't any evidence the police were actually pursuing a legal means to search Rodriguez's home.

“With no valid consent, and no pursuit of a search warrant, there are no legal means present that would have led to the evidence,” the court said.

Discouraging Misconduct

State and federal courts are divided on the question of whether the inevitable-discovery exception requires prosecutors to show that the police were taking steps that would have ineluctably led to the issuance of a search warrant.

The majority of courts addressing the issue appear to apply a broad scope for the inevitable discovery rule by not requiring the police to have initiated lawful means to acquire evidence prior to its seizure. Evidence is admissible under this interpretation so long as the state can establish that law enforcement agents, following routine procedures, would inevitably have uncovered the evidence.

A significant minority of jurisdictions, however, have taken the position that law enforcement agents must have been pursuing other lawful means of acquiring the evidence at the time they engaged in conduct that led to the unlawful seizure of the evidence. A contrary ruling, these courts say, would remove the incentive for police to secure a search warrant before the search takes place.

The Florida Supreme Court found the latter approach to be the most persuasive.

“Where the prosecution has made no showing that a search warrant was being actively pursued prior to the occurrence of the illegal conduct, application of the inevitable discovery rule would effectively nullify the requirement of a search warrant under the Fourth Amendment,” it said.

“If the prosecution were allowed to benefit in this way, police misconduct would be encouraged instead of deterred, and the rationale behind the exclusionary rule would be eviscerated,” it added.

During oral argument, Rodriguez's lawyer told the court that the warrant requirement “isn't a technicality to be weighed against claims of police efficiency.” The court apparently agreed, stating, “The constitutional guarantee to freedom from warrantless searches is not an inconvenience to be dismissed in favor of claims for police and prosecutorial efficiency.” 

Dissent: Little Deterrence

In a dissent joined by Justices Peggy A. Quince and Ricky L. Polston, Justice Charles T. Canady argued that the categorical rule adopted by the majority sweeps with too broad a brush because it was clear that the police would have secured a search warrant if they hadn't got consent.

“Only a flight of fancy could lead to a contrary conclusion,” Canady wrote.

Canady also argued that the police in this case weren't reckless or otherwise trying to take shortcuts around the warrant requirement. They thought they had consent, he said.

Shannon Hemmendinger, of the Miami-Dade Public Defender's Office, Miami, argued on behalf of Rodriguez. Jill Kramer, of the Florida Attorney General's Office, Miami, argued on behalf of the state.

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com