“Could Have” Gotten a Warrant Is Not Inevitable Discovery

Police testimony that they “could have” gotten a warrant before performing a search is too speculative to invoke an inevitable discovery exception to the exclusionary rule

Gore v. United States, 2016 BL 267572, D.C., No. 15-CM-354, 8/18/16.

   The D.C. Circuit joined the Second and Eighth circuits finding that “could have” gotten a warrant before executing a search is too speculative to be “inevitable” because there is indication of whether lawful procedures were already in the works during the illegal search. The court ruled, finding that the constitutional standard to be used is “would’ve,” not “could’ve” or “might’ve.” If officers “could’ve” gotten a warrant, then it lacks the necessary certainty to trigger the exception to the exclusionary rule that would have allowed them to perform the search.

   The First, Second, Third, Fourth, Sixth, Ninth, and Tenth circuits apply a softer standard, only requiring that the government to show that if the police were following routine standards, then they could have used lawfully secured the evidence.

http://www.bloomberglaw.com/public/document/Gore_v_United_States_No_15CM354_2016_BL_267572_DC_Aug_18_2016_Cou.