Criminal Law - Exclusionary Rule - Inevitable Discovery Doctrine - Seventh Circuit Holds That the Inevitable Discovery Doctrine Does Not Apply to Evidence Seized in an Impermissible Search of a Third Party

Harvard Law Review, December 2004 | Go to article overview

Criminal Law - Exclusionary Rule - Inevitable Discovery Doctrine - Seventh Circuit Holds That the Inevitable Discovery Doctrine Does Not Apply to Evidence Seized in an Impermissible Search of a Third Party


CRIMINAL LAW--EXCLUSIONARY RULE--INEVITABLE DISCOVERY DOCTRINE--SEVENTH CIRCUIT HOLDS THAT THE INEVITABLE DISCOVERY DOCTRINE DOES NOT APPLY TO EVIDENCE SEIZED IN AN IMPERMISSIBLE SEARCH OF A THIRD PARTY.--United States v. Johnson, 380 F.3d 1013 (7th Cir. 2004).

The inevitable discovery doctrine creates an exception to the exclusionary rule for evidence that would have been obtained even if the defendant had not been impermissibly searched. (1) Recently, in United States v. Johnson, (2) the Seventh Circuit limited this exception, holding that if an impermissible search of a third party made the discovery of evidence against the defendant inevitable, the evidence is inadmissible. (3) This holding diverged from the First Circuit's holding in United States v. Scott (4) that courts should admit such evidence when doing so would not create undesirable incentives. (5) Neither of these rules best serves the deterrence policy that the Supreme Court has said underlies the exclusionary rule (6) and the inevitable discovery exception; (7) this policy would be better served by a rule providing for exceptions to the exclusionary rule when the officials involved could not have foreseen such exceptions. (8) Although more consistent with the Court's deterrence rationale, such a rule would conflict with the Court's prohibition on challenges to impermissible searches of third parties. (9) Johnson implicates inconsistent strands in the Supreme Court's exclusionary rule jurisprudence, thereby revealing the need for reform.

During the "wee hours" of August 22, 2002, Antoine Johnson, Antonio Cooper, and Tillman Batchelor were sitting in Johnson's parked car. (9) Two police officers suspected mischief, but lacked grounds for an arrest or a Terry stop. (10) Nevertheless, they ordered the three men out of the car. (11) One officer searched under Johnson's seat and found drugs; meanwhile, the other officer's searches of Cooper and Batchelor yielded drugs and counterfeit money. (12) The two officers then searched the trunk of the car, where they discovered more counterfeit money and a color photocopier. (13)

At his trial, Johnson moved to suppress the evidence found in the car. (14) The district court applied the inevitable discovery doctrine, reasoning that although the searches of Batchelor and Cooper were illegal, Johnson could not challenge them because a defendant cannot challenge evidence seized in violation of a third party's rights. (15) The court maintained that the contraband found on his companions provided probable cause to search the car. Upon discovering this contraband, the officers would have searched the entire car, had the first officer not already completed his search under the seat. (16) Thus, the court concluded, they inevitably would have discovered the evidence both under the seat and in the trunk. (17) The court denied Johnson's motion to suppress, (18) and he was convicted of drug and counterfeiting offenses. (19)

The Seventh Circuit reversed. (20) Writing for a unanimous three-judge panel, Judge Posner (21) argued via a reductio ad absurdum that the illegal search of Johnson's companions should not enable the government to use evidence illegally seized from Johnson against him. (22) Allowing the evidence would have "paradoxical" implications:

[T]wo illegal searches would make a legal search--in fact would make two

legal searches.... [N]ot only could the illegally seized evidence in the

trunk be used against the victim of the illegal seizure; equally the

evidence illegally seized from the two passengers could be used against

the two of them, since once the police officers found contraband in the

trunk they would be entitled to arrest and search the passengers, who

could not challenge the seizure from the trunk because it wasn't their

car. (23)

It followed that if the police suspected that all members of a linked group had contraband, but lacked probable cause to search, the police nevertheless could conduct searches with the expectation that any evidence they found would be admissible.

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