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Sixth Circuit: District Court Confused ‘Attenuation Doctrine’ and ‘Inevitable Discovery Exception’ in Applying Exclusionary Rule

by Anthony W. Accurso

The U.S. Court of Appeals for the Sixth Circuit vacated the U.S. District Court for the District of Western Tennessee’s denial of a defendant’s suppression motion, ruling the court applied the standard for judging exceptions to the warrant requirement under the attenuation doctrine instead of the proper standard for inevitable discovery.

A team of deputies with the Shelby County Sherriff’s Department Fugitive Apprehension Team sought to arrest Taurus Cooper after observing him unlawfully possessing a firearm in a Facebook photo, despite him being a convicted felon.

The deputies traveled to the home of Angela Walton, Cooper’s girlfriend, and knocked on the door. Deputy Joshua Fox met Walton at the door. Fox saw Cooper through the open door sitting on a sofa, but not wanting to spook him into fleeing, Fox provided a photo of someone other than Cooper who Fox knew wasn’t present and asked if the “suspect” was inside the residence. After Walton confirmed the unknown person was not in the house, Fox asked Walton if he could enter to confirm that the so-called suspect was not present, and she consented.

Upon entering the house, Fox arrested Cooper, and at least five other deputies rushed inside to conduct a protective sweep to search any place where a person could be hiding to launch an attack. Jeffrey Jensen — the deputy checking the back bedroom — “noticed a lump in the mattress, flipped it over, and discovered the Glock handgun depicted in Cooper’s Facebook post.” Shortly afterwards, Fox spoke with Walton and asked her to sign a form consenting to the search of her home, and she did so. The deputies then conducted a more thorough search of the home but didn’t find any additional evidence.

Cooper was charged under 18 U.S.C. § 922(g) for unlawfully possessing a firearm as a felon, and he filed a pretrial motion to suppress the gun as the product of an unconstitutional search. The District Court denied his motion, explaining that although the protective sweep was unlawful, Walton’s subsequent consent was sufficiently attenuated from the sweep and that deputies would have inevitably discovered the gun during the lawful consent search. Cooper pleaded guilty but reserved his right to appeal the District Court’s suppression decision. He was sentenced to 77 months’ imprisonment. He timely appealed.

On appeal, the Government conceded that the protective sweep violated the Fourth Amendment, so the gun uncovered during that unlawful search must be suppressed unless a recognized exception to the exclusionary rule applies, the Court noted. Utah v. Strieff, 579 U.S. 232 (2016). It added that the only relevant exception with respect to these facts is inevitable discovery, so the case turns on whether the District Court applied it properly.

The Court explained that the inevitable discovery doctrine “allows for the admission of evidence that would have been discovered even without the unconstitutional source.” Id. The doctrine is rooted in the rationale of the exclusionary rule itself, i.e., deter unlawful conduct by law enforcement officers. See Nix v. Williams, 467 U.S. 431 (1984). But if the evidence in question would have undoubtedly been discovered without the aid of the unlawful conduct, “then the deterrence rationale has so little basis that the evidence should be received.” Id. That is, the inevitable discovery doctrine ensures that the exclusionary rule results in the police being in the same position they would have been absent the unlawful conduct, not worse off. Murray v. United States, 487 U.S. 533 (1988). The burden of proof is on the Government to show that the exception applies. Nix; United States v. Alexander, 540 F.3d 494 (6th Cir. 2008).

Two broad scenarios involving inevitable discovery are recognized, according to the Court. The first is where there’s “an independent untainted investigation” that would have undoubtedly found the same evidence. United States v. Kennedy, 61 F.3d 494 (6th Cir. 1995). The second involves “other compelling facts” that establish the evidence at issue would have inevitably been discovered without any reliance on the tainted search. Id. That is, if “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 will not be suppressed. United States v. Keszthelyi, 308 F.3d 557 (6th Cir. 2002). The Court stated that the first scenario is not applicable in this case, so the focus is on the second.

In the present case, the District Court agreed with the Government’s argument that the gun should not be suppressed because it would have inevitably been found during the subsequent consent search. To prove its point, the Government focused on whether Walton’s consent was voluntary and untainted by the unlawful protective sweep, and in deciding the motion to suppress, the District Court adopted that framework and applied the “attenuation” factors to determine whether a statement obtained via unlawful action is “sufficiently an act of free will to purge the primary taint.” Wong Sun v. United States, 371 U.S. 471 (1963).

However, the Court explained that the foregoing analysis misses the mark and is in error because the attenuation doctrine is distinct from the inevitable discovery exception, not a means of establishing the exception. See Brown v. Illinois, 422 U.S. 590 (1975). Although both “involve the causal relationship between the unconstitutional act and the discovery of evidence,” they test different aspects of the causal chain. Strieff. With inevitable discovery, the test necessarily entails some hypothesizing, i.e., “[V]iewing affairs as they existed at the instant before the unlawful search, what would have happened had the unlawful search never occurred[?]” Kennedy; see also Murray.

Whereas, the attenuation doctrine is akin to proximate cause, i.e., whether the causal link between the unlawful conduct and the evidence has “become so attenuated [weakened or lessened] as to dissipate the taint.” Nardone v. United States, 308 U.S. 338 (1939). Under the attenuation doctrine, evidence acquired as a result of unlawful conduct may still be admitted even though the evidence would never have been obtained but-for the unlawful conduct if the evidence is sufficiently attenuated from such conduct. Id.; see, e.g., United States v. Castillo, 238 F.3d 424 (6th Cir. 2000) (fleeing from arrest “in response to police misconduct” is an “intervening event” sufficient to purge the taint of the stop). That is not the case with inevitable discovery.     

Furthermore, the Court explained that the inevitable discovery exception and the attenuation doctrine serve different goals. The former seeks to restore law enforcement to the position it was in prior to the unlawful conduct, and it can save both direct and derivative (so-called fruit of the poisonous tree) evidence from exclusion. On the other hand, the latter “attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost.” United States v. Leon, 468 U.S. 897 (1984). And attenuation only focuses on derivative evidence, not direct, asking whether the initial illegality infects derivative evidence, obtained via subsequent lawful means, so thoroughly as to render it inadmissible, explained the Court. 

With the foregoing principles in mind, the Court stated that the primary question in the current case is “whether, had the illegal sweep never occurred, the homeowner would have consented to a search that would have unearthed the gun.” This is an inevitable discovery analysis because the gun was discovered in the initial search during the unlawful protective sweep, yet the Government argued and the District Court decided it erroneously using the attenuation framework by analyzing whether Walton’s consent was sufficiently attenuated from the unlawful protective sweep, the Court noted. The Court faulted the District Court for not examining the circumstances that existed immediately prior to the unlawful protective sweep to determine what would likely have occurred had the sweep never been carried out, as required in an inevitable discovery analysis. Thus, the Court held that the District Court applied the incorrect legal standard in denying Cooper’s motion to suppress.

Accordingly, the Court vacated the District Court’s judgment and remanded for further proceedings with the following instructions: “the court should focus on the following questions: If the illegal protective sweep had never happened, would officers have sought Walton’s consent to search? Would Walton have given her consent in such a hypothetical world? And would the ensuing consent search have led to the gun? The inevitable discovery exception applies only if the answer to all three questions is “yes.” See: United States v. Cooper, 24 F.4th 1086 (6th Cir. 2022). 

Editor’s note: Anyone with a particular interest in the inevitable discovery exception or the attenuation doctrine should read the Court’s full opinion, which discusses several applicable lines of cases and examines both exceptions to the exclusionary rule in greater detail and nuance than is possible in a CLN court opinion summary. Notably, as evidenced by the fact all parties involved in the foregoing case misunderstood, to varying degrees, the two exceptions, this is an area of the law that even experienced practitioners struggle with the subtle yet critical distinctions between the exceptions, so anyone who thinks he or she already has a firm understanding of the exclusionary rule and the recognized exceptions would, nevertheless, be well advised to review the Court’s opinion.

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