United States v. Cooper

24 F.4th 1086

UNITED STATES of America, Plaintiff-Appellee,

v.Taurus COOPER, Defendant-Appellant.

No. 21-5209

United States Court of Appeals, Sixth Circuit.

Argued: October 20, 2021

Decided and Filed: February 3, 2022

ARGUED: Michael J. Stengel, MICHAEL J. STENGEL, P.C., Memphis, Tennessee, for Appellant. Naya Bedini, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee. ON BRIEF: Michael J. Stengel, MICHAEL J. STENGEL, P.C., Memphis, Tennessee, for Appellant. Naya Bedini, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee.

Before: BATCHELDER, LARSEN, and READLER, Circuit Judges.

OPINION

LARSEN, Circuit Judge.

Taurus Cooper pleaded guilty to possessing a firearm as a felon, 18 U.S.C. § 922(g), but reserved the right to appeal the denial of his motion to suppress the gun underlying the charge. On appeal, Cooper contends that the district court erred in applying the inevitable discovery exception to the exclusionary rule. Because the district court focused on the wrong legal test, we VACATE the district court's judgment and REMAND for further proceedings.

I.

Several law enforcement agencies executed a warrant for Cooper's arrest on suspicion of firearms and narcotics charges. Among them was the Shelby County Sheriff's Department Fugitive Apprehension Team, which had been called in to assist. At a pre-arrest meeting, the Team learned that Cooper was known to be a high-ranking gang member; and the Team was shown a Facebook photo of Cooper holding a Glock handgun with a fully loaded high-capacity magazine. Officers from the Team and other police agencies traveled to the home of Cooper's girlfriend, Angel Walton, where they expected to find Cooper.

When Officer Joshua Fox knocked on the door, Walton answered. Through the doorway, Fox saw Cooper sitting on the living room couch. Concerned about spooking Cooper into fleeing, Fox showed Walton a photograph of another individual (someone he knew was not at Walton's home) and asked if that person was there. Walton, as expected, said "no." Fox nonetheless asked whether he could come inside to look for the individual, and, according to Fox's later testimony, Walton agreed.¹ Fox proceeded to arrest Cooper while the rest of the officers—at least five more—rushed into the home and spread out to conduct a protective sweep. Aiming to discover any armed confederates who might ambush them, the officers swiftly checked each room of the house, "wherever a body c[ould] hide." Jeffrey Jensen, the officer checking the back bedroom, noticed a lump in the mattress, flipped it over, and discovered the Glock handgun depicted in Cooper's Facebook post.

As soon as Jensen called out his discovery, Fox retrieved rights-waiver and consent-to-search forms from his vehicle. He went over both with Walton. The first form listed Walton's Miranda rights and included spaces to fill in information about the recently found firearm; the second asked whether Walton consented to a search of her home. Walton placed her initials next to lines stating that she was consenting freely, that she had not been threatened or coerced, and that she had been treated fairly. With Walton's consent, officers conducted a more thorough search but recovered only a hat matching the one Cooper had been wearing in his Facebook photo.

Charged with possessing a firearm as a felon, 18 U.S.C. § 922(g), Cooper moved to suppress the gun seized during the sweep of Walton's house. The district court held an evidentiary hearing at which Fox, Jensen, and Walton testified. Their testimony focused primarily on the protective sweep and consent form, with little discussion of the situation before the sweep. The court denied Cooper's motion. Although the court concluded that the protective sweep was unlawful, the court determined that Walton's subsequent consent was voluntary, that her consent was sufficiently attenuated from the illegal sweep, and that officers inevitably would have discovered the gun in the lawful consent search. Cooper pleaded guilty, reserving the right to appeal the suppression ruling. He was sentenced to 77 months’ imprisonment.

II.

In reviewing the denial of a motion to suppress, we review legal questions de novo and the district court's factual findings for clear error. United States v. Abdalla , 972 F.3d 838, 844 (6th Cir. 2020). The government does not challenge the district court's holding that the protective sweep violated the Fourth Amendment. That means the gun, the primary fruit of an unlawful search, must be suppressed unless an exception to the exclusionary rule applies. Utah v. Strieff , 579 U.S. 232, 136 S. Ct. 2056, 2061, 195 L.Ed.2d 400 (2016). The only relevant exception is inevitable discovery. The case turns, therefore, on whether the district court properly applied that exception.

A.

"[T]he inevitable discovery doctrine allows for the admission of evidence that would have been discovered even without the unconstitutional source." Id. The doctrine flows from the deterrence goals underpinning the exclusionary rule itself: If the same evidence surely would have been found without the illegality, "then the deterrence rationale has so little basis that the evidence should be received." Nix v. Williams , 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). In short, this exception ensures that the exclusionary rule puts police in the same position they would have been in without the illegality, not a worse one. Murray v. United States , 487 U.S. 533, 541, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). The government bears the burden of showing that the exception applies. Nix , 467 U.S. at 444, 104 S.Ct. 2501 ; United States v. Alexander , 540 F.3d 494, 502 (6th Cir. 2008).

Our cases recognize two scenarios in which inevitable discovery operates. First, the doctrine applies when there is "an independent, untainted investigation" that was bound to uncover the same evidence. United States v. Kennedy , 61 F.3d 494, 499 (6th Cir. 1995). Nix , for example, involved two parallel, independent efforts to locate a victim's corpse: an interrogation by detectives and a volunteer grid search. 467 U.S. at 435–37, 104 S.Ct. 2501. No one argues that this first category applies here, where the same group of officers conducted a single investigation, so we focus on the second. Inevitable discovery also applies when "other compelling facts" demonstrate that discovery was inevitable. Kennedy , 61 F.3d at 499. A few paradigmatic examples of "other compelling facts" demonstrate what we mean. The doctrine applies when the evidence would have been discovered pursuant to a "routine procedure," such as an airline's standard policy of opening lost luggage. Id. at 500. And it has repeatedly been employed when, after seizing evidence during an illegal search, police obtain and execute a search warrant based on probable cause developed before the illegal search. E.g. , United States v. Bowden , 240 F. App'x 56, 61 (6th Cir. 2007) ; United States v. Keszthelyi , 308 F.3d 557, 573–75 (6th Cir. 2002). As long as the "evidence discovered during [the] illegal search would have been discovered during a later legal search[,] and the second search inevitably would have occurred in the absence of the first," then the evidence may be admitted. Keszthelyi , 308 F.3d at 574.

The government argues, and the district court agreed, that Cooper's gun should not be suppressed because it inevitably would have been found in the ensuing consent search. In attempting to prove that claim, the government focuses exclusively on whether Walton's consent was voluntary and untainted by the illegal sweep. The district court largely adopted that same framework, invoking the "attenuation" factors used to assess whether a statement acquired as a product of illegality is "sufficiently an act of free will to purge the primary taint."

Brown v. Illinois , 422 U.S. 590, 602, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (quoting Wong Sun v. United States , 371 U.S. 471, 486, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ). But the attenuation doctrine laid out in Brown and Wong Sun is distinct from the inevitable discovery exception. Before addressing how the inevitable discovery rule applies here, some housekeeping is in order.

Start with the basics. The exclusionary rule prohibits introduction of evidence directly acquired by an unlawful search or seizure, as well as "derivative evidence, both tangible and testimonial, that is the product of the primary evidence." Murray , 487 U.S. at 536–37, 108 S.Ct. 2529. In assessing whether illegally seized evidence should be suppressed, but-for causation is a necessary, but not sufficient condition. Hudson v. Michigan , 547 U.S. 586, 592, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) ; United States v. Elmore , 18 F.4th 193, 202 (6th Cir. 2021). Both inevitable discovery and attenuation "involve the causal relationship between the unconstitutional act and the discovery of evidence." Strieff , 136 S. Ct. at 2061. But importantly, the two doctrines test different aspects of the causal chain.

Under the inevitable discovery doctrine, if the evidence would have been lawfully discovered without the unconstitutional source, then it should be admitted. Id. That test necessarily involves some hypothesizing. We must ask: "[V]iewing affairs as they existed at the instant before the unlawful search, what would have happened had the unlawful search never occurred[?]" Kennedy , 61 F.3d at 498 (quoting United States v. Eng , 971 F.2d 854, 861 (2d Cir. 1992) ); see also Murray , 487 U.S. at 542 n.3, 108 S.Ct. 2529 ("To determine whether the warrant was independent of the illegal entry, one must ask whether it would have been sought even if what actually happened had not occurred ....").

The attenuation doctrine, by contrast, tests something akin to proximate cause: whether the causal link has "become so attenuated as to dissipate the taint." Nardone v. United States , 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939). A finding of attenuation does not...