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Third Circuit Underscores Importance of Police Policies and Procedures in Precedential Decision on the Inevitable Discovery Rule

On May 15, 2020, the Third Circuit considered whether physical evidence discovered during a vehicle search made after a defendant’s involuntary admission that he had drugs in his car should have been suppressed or whether it could be admitted pursuant to the inevitable discovery rule. In United States v. Bradley, No. 19-2003, 2020 U.S. App. LEXIS 15593 (3d Cir. May 15, 2020), the Third Circuit held that, to avail itself of the inevitable discovery rule, the government must prove that “the police, following their routine procedures, would have uncovered” the evidence, without relying on the involuntary statement. Id. at *11-*12. The Third Circuit determined although the testimony of the Pennsylvania State trooper who conducted the search was sufficient to establish that police procedures called for him to tow and inventory the defendant’s car for driving without a license, that inventory would only have revealed a closed backpack in the car’s trunk. Id. at *13-*14. To determine whether the backpack’s contents would have inevitably been discovered during an inventory search, evidence about troopers’ discretion to open closed containers during inventory searches was needed. As the government failed to provide evidence on this point at the suppression hearing, the Third Circuit remanded to the district court.

United States v. Bradley

In Bradley, the defendant was stopped by a Pennsylvania State trooper for allegedly speeding and weaving between lanes. The defendant quickly admitted to driving without a license, which the trooper downplayed, saying “‘my man, I got bigger things to worry about, it’s almost the end of my shift.’”  Id. at *4. The trooper then, using an “I’m-just-here-to-help tone of voice,” invited the defendant to his cruiser “to see if ‘I can cut you a break.’” Id. Suspecting that the defendant may have been engaged in criminal activity, the trooper summoned back up while continuing to question the defendant in his cruiser, eliciting information including the defendant’s recent drug arrest. Id. The trooper told the defendant “that he was going to give him a warning for speeding and that he would not cite him for weaving in his lane of traffic. Despite those statements, however, it seems that [the trooper] never intended to let [the defendant] go with just a warning.” Id. at *5. At the suppression hearing, the trooper testified that he would not have let the defendant drive away as he had a suspended license. Id.

Consistent with the trooper’s generalized suspicion of criminal activity, once a second trooper arrived, the defendant was pointedly questioned about whether his car contained “any guns, marijuana, large sums of U.S. currency, heroin, or cocaine.” Id. Eventually, “flanked by state troopers, [the defendant] admitted he had cocaine.” Id. Only then, according to dashcam footage – 15 minutes into questioning – did the trooper provide Miranda warnings. Id. at *6. Believing that he had probable cause to search the car, the trooper asked the defendant where the cocaine was and proceeded to retrieve it from the car’s trunk.

The defendant moved to suppress his statements to the trooper and the cocaine recovered from his backpack. At the suppression hearing, both the defendant and the trooper testified and dashcam footage was played. The district court ultimately found that the defendant’s admission regarding possession of cocaine was made during custodial interrogation, was therefore involuntary, and should be suppressed. The district court also suppressed the cocaine, holding that without the defendant’s inculpatory statement there was no probable cause to search the car. The district court rejected the government’s argument that the cocaine would have inevitably been discovered during an inventory search, which would have been required even without the confession because the defendant was not legally permitted to drive the car further without a license. The district court termed the likelihood of an inventory search occurring “speculative,” as there were alternatives to having the defendant’s car towed and impounded, especially in light of the trooper’s stated intention to “cut [the defendant] a break.”

On appeal, the government challenged only suppression of the physical evidence, not the defendant’s statements. The Third Circuit held that the government’s first argument – that the defendant’s pre-Miranda statements were voluntary and the search was the permissible fruits of – was forfeited as it was not been made to the district court. Id. at *9-*10.

Regarding the government’s inevitable discovery argument, the Third Circuit disagreed with the district court that an inventory search of the defendant’s car was speculative but held that the government had not established that an inventory search would have necessarily led to discovery of the cocaine, concealed in a closed backpack in the car’s trunk. The court began by reiterating the familiar principle that evidence unlawfully obtained by the police still may be admitted if the government can establish by a preponderance that the evidence would have otherwise been discovered by lawful means, such as a proper inventory search of an impounded vehicle. Id. at *11. The court then agreed with the government that an inventory search of the defendant’s car was not speculative because, even though the trooper “did not aver that protocol mandated that he tow and inventory [the defendant’s] vehicle as a result of his suspended license,” the trooper testified that he would have done so. Id. (internal quotation marks omitted). According to the court, the trooper’s testimony of what he would have done even without the defendant’s statements was sufficient to establish that an inventory search was likely. The court’s ruling also was bolstered by the fact that Pennsylvania law requires police to tow a car when the driver has a suspended license.

Although the court determined that an inventory search of the car, including the trunk, was likely to have happened had the defendant not admitted to possessing cocaine, it did not reach the same conclusion about a search of the backpack. After noting that it “seems probable that the police would have discovered the cocaine in an inventory search” because the backpack was in plain view in the car’s trunk, the court refused to hold, based on the available factual record, that discovery of the cocaine inside the backpack was inevitable. Under federal law, police have discretion to inventory a closed container “only where there is evidence of a policy or regulation sufficiently limiting the scope of that discretion.” Id. at *13. The court explained that this does not necessarily require a written policy or regulation, but “there must be criteria or routines that govern inventory searches.” Id. at *13 n.5. At the suppression hearing, the government provided no testimony or other evidence of the Pennsylvania State Police’s protocols regarding inventory searches of closed containers and so the court could not determine whether, consistent with those protocols, the backpack would have been opened and the cocaine discovered during an inventory search. Accordingly, the case was remanded to the district court to hear additional evidence on this point.

Practice Points:

  • Counsel should request and obtain the relevant department’s or organization’s policies and procedures regarding searches, as the scope of what would have “inevitably” been discovered turns on what officers would do in the ordinary course.
  • However, as Bradley made clear, courts are not constrained by written policies and regulations when determining what procedures govern officer’s conduct. Counsel should pay close attention to verbal descriptions of criteria and routines governing routine searches and ensure that the testifying government witness’s description does not contradict written materials or established legal rules.
  • Bradley emphasized the continued importance of dashcam recordings. The court placed significant weight on the trooper’s demeanor and tone of voice when evaluating the voluntariness of the defendant’s statements, which would not come through from live witness testimony.
  • In determining that the government forfeited its argument that the defendant’s pre-Miranda statements were voluntary and thus justified the trooper’s search, the Third Circuit held that a single citation to a case on that issue “without discussing how it applies to the facts of th[e] case, does not satisfy” the requirements for preservation of an issue for appeal. Id. at *9-*10.

Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.