Monday, September 7, 2009

Evidence Obtained From Warrantless Canine Search Improperly Suppressed

In United States v. Marrocco, --- F.3d ----, No. 07-3101, 2009 WL 2581339 (7th Cir. Aug. 24, 2009), the Seventh Circuit reversed the district court's decision and held "that the district court improperly suppressed the evidence of the contents of the briefcase and the results of the dog-sniff test."  Chief Judge Easterbrook wrote a concurring opinion which began "I join the court's opinion without reservation but add a few words about an issue that, as the court notes (slip op. 10 n. 5), the litigants have overlooked." 

Judge Ripple wrote the court's opinion and summarized the facts as follows:
After discovering that Vincent Fallon had purchased a one-way train ticket in cash a short time before his trip, Amtrak police officer Eric Romano concluded that Mr. Fallon fit the profile of a typical drug courier. Shortly before Mr. Fallon's train was scheduled to depart, Officer Romano and Officer Sterling Terry approached Mr. Fallon in his compartment, where they asked him several questions. After Mr. Fallon admitted that he was carrying $50,000 in a locked briefcase, the officers seized the briefcase, which was found to contain $100,120.00 in cash (the “funds”). The Government subsequently instituted a forfeiture proceeding under 21 U.S.C. § 881(a)(6). During that proceeding, Mr. Fallon and Nicholas Marrocco (collectively the “claimants”) filed a motion to suppress the evidence of a dogsniff test that had indicated that the funds carried the odor of drugs. The district court granted the motion. It later determined that Mr. Marrocco was the lawful owner of the funds and ordered the funds returned to him. The Government subsequently filed this appeal. For the reasons set forth in this opinion, we reverse the decision of the district court and remand this case for further proceedings.
The court first rejected the defendants argument that the canine search was improper because the police did not properly schedule the search in advance. 
Our conclusion that the officers were permitted to seize the briefcase and remove it from the train does not end our inquiry. After the officers removed the briefcase, and before they obtained a warrant or even probable cause to search it, Officer Romano opened the briefcase and observed its contents. There is no doubt that this warrantless search was constitutionally impermissible. We therefore must determine the constitutional significance of that unlawful search on our analysis.
Mr. Marrocco contends that, because of the unlawful search, the results of the dog-sniff test and the evidence of the briefcase's contents, drug-tainted money, must be suppressed. He asserts that there is no way to determine whether the officers would have discovered the funds, or the connection between the funds and any illegal activity, in the absence of the unlawful conduct. The Government, however, maintains that the district court erred in suppressing the evidence of the results of the dog-sniff test. Although it admits that the officer's visual inspection of the contents of the briefcase was improper, it contends that the challenged evidence should have been admitted under the inevitable discovery doctrine.
We agree with the Government that the officers inevitably would have discovered both the funds and the evidence that the funds were associated with narcotics. The first prong of the inevitable discovery test has been met because the officers could have obtained, based on the results of the dog-sniff test, an independent legal basis for searching the briefcase; namely, the results of the dog-sniff test would have supported the issuance of a warrant.
The fact that the results of the dog-sniff test would have supported a warrant is not sufficient, however; the Government must also show, under the second prong of our inevitable discovery inquiry, that the officers inevitably would have sought the warrant and conducted a lawful search. In this circuit, when the Government seeks “to use the doctrine of inevitable discovery to excuse its failure to have obtained a search warrant,” it must “prove that a warrant would certainly, and not merely probably, have been issued had it been applied for.”
We are convinced that the Government has satisfied this burden. Our case law establishes that the inevitable discovery rule applies in cases, such as this one, where investigating officers undoubtedly would have followed routine, established steps resulting in the issuance of a warrant.
Indeed, even if the inevitable discovery doctrine was waived or inapplicable, we would have to conclude that the results of the dog-sniff test were admissible. The illegality of Officer Romano's opening of the briefcase with a knife had no effect on the subsequent discovery that the money was tainted by drugs. The officers already knew of the presence of the money. Opening the briefcase gave them no knowledge about whether the money was tainted. That knowledge was completely dependent on the dog-sniff test. Therefore, the causal connection between the illegality of Officer Romano's search was so far attenuated from the crucial evidence as to make invocation of the suppression doctrine inappropriate.
Thanks to Lisa McManus at Lexis Hub.


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