Tenth Circuit US v. Christy 12-2127

Decision here.

   K.Y. was a 16 year old girl who live in California, and Christy was some creepy older guy in New Mexico who she met online.  After exchanging sexually explicit emails and phone calls, Christy drove out to California to pick K.Y. up and bring her home with him.  Her parents reported her missing, and then they and the FBI figured out that Christy had helped her run away.  They let the cops in New Mexico know.

   A couple of deputies went to Christy's house to do a welfare check on K.Y.  While they were there, one of them went into the back yard and looked through a crack in the blinds.  He saw K.Y. inside, dressed in lingerie.  She was smiling and holding a rope.  The deputy contacted his sergeant to request permission to force entry into the house and to request backup.  Then he looked through the window again.  This time, K.Y. was topless and bound by the rope which she had been holding.  Also, there were camera flashes inside.

   When the next deputy got there, they forced their way into the house.  They found porn during a protective sweep.  Christy was given Miranda warnings, after which he admitted to picking K.Y. up in California, driving her to New Mexico, and having sex with her.  The deputies then obtained a search warrant, which led to the discovery of sex toys, used condoms, and child porn (including pictures of K.Y.).

   The district court ruled that the initial entry into Christy's house was unconstitutional and suppressed everything.  After the prosecution filed a motion to reconsider, the court reversed itself and ruled that the evidence would be admissible under the inevitable discovery doctrine because if the cops hadn't illegally searched Christy's house then they would have applied for a warrant and then searched it legally.

   Gotta say, that sorta blows my mind.  I mean, I get that it's clear that there was AMPLE evidence, and it would have been really easy to get a warrant.  I also understand the deputies' reasons for not doing so (although the district court apparently didn't see it that way).  But if we're going to say that there were no exigent circumstances, and that this search was illegal because there was no warrant, then it seems counterintuitive to say "but if the police had gotten a warrant then they would have found the evidence, so we're good with it."

   Creepy appealed the decision.  And it turns out that the Tenth Circuit is good with it, because probable cause in this case was so compelling.  The Court does point out that they aren't giving the police carte blanche to search without warrants and then say that they'd have found the evidence if they had got a warrant.  The question for the court to decide is not whether a warrant could have been issued if the illegal search had not been conducted, but whether a warrant would have been issued.  

   So that's one in our favor, and Creepy's conviction stands.  But I suspect that the inevitable discovery balance here is a particularly delicate one.  Let's not Gant this up.