Murray v. United States

Delivered the opinion of the Court.

In Segura v. United States, 468 U. S. 796 (1984), we held that police officers’ illegal entry upon' private’ premises did not require suppression of evidence subsequently discovered at those premises when executing a search warrant’obtained on the basis of information wholly unconnected with the initial entry. In these consolidated cases we are faced with the question whether, again assuming evidence obtained pursuant to an independently obtained search warrant, the portion of such evidence that had been observed in plain view at the time of a prior illegal entry must be suppressed.

I

Both cases arise out of the conviction of petitioner Michael F. Murray, petitioner James D. Carter, and others for conspiracy to possess and distribute illegal drugs. Insofar as relevant for our purposes, the facts are as follows: Based on information received from informants, federal law enforcement agents had been surveilling petitioner Murray and several of his co-conspirators. At about 1:45 p.m. on April 6, 1983, they observed Murray drive a truck and Carter drive a green camper, into a warehouse in South Boston. When the petitioners drove the vehicles out about 20 minutes later, the surveilling agents saw within the warehouse two individuals and a tractor-trailer rig bearing a long, dark container. Murray and Carter later turned over the truck and camper to other drivers, who were in .turn followed and ultimately arrested, and the vehicles lawfully seized. Both vehicles were found to contain marijuana.

After receiving this information, several of the agents converged on the South Boston warehouse and forced entry. They found the warehouse unoccupied, but observed in plain view numerous burlap-wrapped bales that were later found to contain marijuana. They left without disturbing the bales, kept the warehouse under surveillance, and did not reenter it until they had a search warrant. In applying for the warrant, the agents did not mention the prior entry, and did not rely on any observations made during that entry. When the warrant was issued — at 10:40 p.m., approximately eight hours after the initial entry — the agents immediately reentered the warehouse and seized 270 bales of marijuana and notebooks listing customers for whom the bales were destined.

Before trial, petitioners moved to suppress the evidence found in the warehouse. The District Court denied the motion, rejecting petitioners’ arguments that the warrant was invalid because the agents did not inform the Magistrate about their prior warrantless entry, and that the warrant was tainted by that entry. United States v. Carter, No. 83-102-S (Mass., Dec. 23, 1983), App. to Pet. for Cert. 44a-45a. The First Circuit affirmed, assuming for purposes of its-decision that the first entry into the warehouse was unlawful. United States v. Moscatiello, 771 F. 2d 589 (1985). Murray and Carter then separately filed petitions for certiorari, which we granted, 480 U. S. 916 (1987), and have consolidated here.

II

The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawful search, Weeks v. United States, 232 U. S. 383 (1914), and of testimony concerning knowledge acquired during an unlawful search, Silverman v. United States, 365 U. S. 505 (1961). Beyond that, the exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes “so attentuated as to dissipate the taint,” Nardone v. United States, 308 U. S. 338, 341 (1939). See Wong Sun v. United States, 371 U. S. 471, 484-485 (1963).

Almost simultaneously with our development of the exclusionary rule, in the first quarter of this century, we also announced what has come to be known as the “independent source” doctrine. See Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392 (1920). That doctrine, which has been applied to evidence acquired not only through Fourth Amendment violations but also through Fifth and Sixth Amendment violations, has recently been described as follows:

“ET]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting- the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. . . . When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.” Nix v. Williams, 467 U. S. 431, 443 (1984)

The dispute here is over the scope of this doctrine. Petitioners contend that it applies only to evidence obtained for the first time during an independent lawful search. The Government argues that it applies also to evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality. We think the Government’s view has better support in both precedent and policy.

Our cases have used the concept of “independent source” in a more general and a more specific sense. The more general sense identifies all evidence acquired in a fashion untainted by the illegal evidence-gathering activity. Thus, where an unlawful entry has given investigators knowledge of facts x and y, but fact z has been learned by other means, fact z can be said to be admissible because derived from an “independent source.” This is how we used the term in Segura v. United States, 468 U. S. 796 (1984). In that case, agents unlawfully entered the defendant’s apartment and remained there until a search warrant was obtained. The admissibility of what they discovered while waiting in the apartment was not before us, id., at 802-803, n. 4, but we held that the evidence found for the first time during the execution of the valid and untainted search warrant was admissible because it was discovered pursuant to an “independent source,” id., at 813-814. See also United States v. Wade, 388 U. S. 218, 240-242 (1967); Costello v. United States, 365 U. S. 265, 280 (1961); Nardone v. United States, supra, at 341.

The original use of the term, however, and its more important use for purposes of these cases, was more specific. It was originally applied in the exclusionary rule context, by Justice Holmes, with reference to that particular category of evidence acquired by an untainted search which is identical to the evidence unlawfully acquired — that is, in the example just given, to knowledge of facts x and y derived from an independent source:

“The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others.” Silverthorne Lumber, supra, at 392.

As the First Circuit has observed, “[i]n the classic independent source situation, information which is received through an illegal source is considered to be cleanly obtained when it arrives through an independent source.” United States v. Silvestri, 787 F. 2d 736, 739 (1986). We recently assumed this application of the independent source doctrine (in the Sixth Amendment context) in Nix v. Williams, supra. There incriminating statements obtained in violation of the defendant’s right to counsel had led the police to the victim’s body. The. body had not in fact been found through an independent source as well, and so the independent source doctrine was not itself applicable. We held, however, that evidence concerning the body was nonetheless admissible because a search had been under way which would have discovered the body, had it not been called off because of the discovery produced by the unlawfully obtained statements. Id., at 448-460. This “inevitable discovery” doctrine obviously assumes the validity of the independent source doctrine as applied to evidence initially acquired unlawfully. It would make no sense to admit the evidence because the independent search, had it not been aborted, would have found the body, but to exclude the evidence if the search had continued and had in fact found the. body. The inevitable discovery doctrine, with its distinct requirements, is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.

Petitioners’ asserted policy basis for excluding evidence which is initially discovered during an illegal search, but is subsequently acquired through an independent and lawful source, is that a contrary rule will remove all deterrence to, and indeed positively encourage, unlawful police searches. As petitioners, see the incentives, law enforcement officers will routinely enter without a warrant to make sure that what they expect to be on the premises is in fact there. If it is not, they will have spared themselves the time and trouble of getting a warrant; if it is, they, can get the warrant and use the evidence despite the unlawful entry. Brief for Petitioners 42. We see the incentives differently. An officer with probable cause sufficient to obtain a search warrant would be foolish to enter the premises first in an unlawful manner. By doing so, he would risk suppression of all evidence on the premises, both seen and unseen, since his action would add to the normal burden of convincing a magistrate that there is probable cause the much more onerous burden of convincing a trial court that no information gained from the illegal entry affected either the law enforcement officers’ decision to seek a warrant or the magistrate’s decision to grant it. See Part III, infra. Nor would the officer without sufficient probable cause to obtain a search warrant have any added incentive to conduct an unlawful entry, since whatever he finds cannot be used to establish probable cause before a magistrate.

It is possible to read petitioners’ briefs as asserting the more narrow position that the “independent source” doctrine does apply to independent acquisition of evidence previously derived indirectly from the unlawful search, but does not apply to what they call “primary evidence,” that is, evidence acquired during the course of the search itself. In addition to finding no support in our precedent, see Silverthorne Lumber, 251 U. S., at 392 (referring specifically to evidence seized during an unlawful search), this strange distinction would produce results bearing no relation to the policies of the exclusionary rule. It would mean, for example, that the government’s knowledge of the existence and condition of a dead body, knowledge lawfully acquired through independent sources, would have to be excluded if government agents had previously observed the body during an unlawful search of the defendant’s apartment; but not if they had observed a notation that the body was buried in a certain location, producing consequential discovery of the corpse.

III

To apply what we have said to the present cases: Knowledge that the marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry. But it was also acquired at the time of entry pursuant to the warrant, and if that later acquisition was not the result of the -earlier entry there is no reason why the independent source doctrine should not apply. Invoking the exclusionary rule would put the police (and society) not in the same position they would have occupied if no violation occurred, but in a worse one. See Nix v. Williams, 467 U. S., at 443.

We think this is also true with respect to the tangible evidence, the bales of marijuana. It would make no more sense to exclude that than it would to exclude tangible evidence found upon the corpse in Nix, if the search in that case had not been abandoned and had in fact come upon the body. The First Circuit has discerned a difference between tangible and intangible evidence that has been tainted, in that objects “once seized cannot be cleanly reseized without returning the objects to private control.” United States v. Silvestri, 787 F. 2d, at 739. It seems to us, however, that reseizure of tangible evidence already seized is no more impossible than rediscovery of intangible evidence already discovered. The independent source doctrine does not rest upon such metaphysical analysis, but upon the policy that, while the government should not profit from its illegal activity, neither should it be placed in a worse position than it would otherwise have occupied. So long as a later, lawful seizure is genuinely independent of an earlier, tainted one (which may well be difficult to establish where the seized goods are kept in the police’s possession) there is no reason why the independent source doctrine should not apply.

The ultimate question, therefore, is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agents’ decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant. On this point the Court of Appeals said the following:

“[W]e can be absolutely certain that the warrantless entry in no way contributed in the slightest either to the issuance of a warrant or to the discovery of the evidence during the iawful search that occurred pursuant to the warrant.

“This is as clear a case as can be imagined where the discovery of the contraband in plain view was totally irrelevant to the later securing of a warrant and the successful search that ensued. As there was ho causal link whatever between the illegal entry and the discovery of the challenged evidence, we find no error in the court’s refusal to suppress.” United States v. Moscatiello, 771 F. 2d, at 603, 604.

Although these statements Can be read to provide emphatic support for the Government’s position, it is the function of the District Court rather than the Court of Appeals to determine the facts, and we do not think the Court of Appeals’ conclusions are supported by adequate findings. The District Court found that the agents did not reveal their warrantless entry to the Magistrate, App. to Pet. for Cert. 43a, and that they did not include in their application for a warrant any recitation of their observations in the warehouse, id., at 44a-45a. It did not, however, explicitly find that the agents would have sought a warrant if they had not earlier entered the warehouse. The Government concedes this in its brief. Brief for United States 17, n. 5. To be sure, the District Court did determine that the purpose of the warrantless entry was in part “to guard against the destruction of possibly critical evidence,” App. to Pet. for Cert. 42a, and one could perhaps infer from this that the agents who made the entry already planned to obtain that “critical evidence” through a warrant-authorized search. That inference is not, however, clear enough to justify the conclusion that the District Court’s findings amounted to a determination of independent source.

Accordingly, we vacate the judgment and remand these cases to the Court of Appeals with instructions that it remand to the District Court for determination whether the warrant-authorized search of the warehouse was an independent source of the challenged evidence in the sense we have described.

It is so ordered.

Justice Brennan and Justice Kennedy took no part in the consideration or decision of these cases.

The original petitions raised both the present Fourth Amendment claim and a Speedy Trial Act claim. We granted the petitions, vacated the judgment below, and remanded for reconsideration of the Speedy Trial Act issue in light of Henderson v. United States, 476 U. S. 321 (1986). Carter v. United States and Murray v. United States, 476 U. S. 1138 (1986). On remand, the Court of Appeals again rejected the Speedy Trial Act claim and did not reexamine its prior ruling on the Fourth Amendment question. 803 F. 2d 20 (1986). Petitioners again sought writs of certiorari, which we granted limited to the Fourth Amendment question.

Justice Marshall argues, in effect, that where the police cannot point to some historically verifiable fact demonstrating that the subsequent search pursuant to a warrant was wholly unaffected by the prior illegal search — v. g., that they had already sought the warrant before entering the premises —we should adopt a per se rule of inadmissibilty. See post, at 549. We do not believe that such a prophylatic exception to the independent source rule is necessary. To say that a district court must be satisfied that a warrant would have been sought without the illegal entry is not to give dispositive effect to police officers’ assurances on the point. Where the facts render those assurances implausible, the independent source doctrine will not apply.

We might note that there is no basis for pointing to the present cases as an example of a “search first, warrant later” mentality. The District Court found that the agents entered the warehouse “in an effort to apprehend any participants who might have remained inside and to guard against the destruction of possibly critical evidence.” United States v. Carter, No. 83-102-S (Mass., Dec. 23, 1983), App. to Pet. for Cert. 42a. While they may have misjudged the existence of sufficient exigent circumstances to justify the warrantless entry (the Court of Appeals did not reach that issue and neither do we), there is nothing to suggest that they went in merely to see if there was anything worth getting a warrant for.

Justice Marshall argues that “the relevant question [is] whether, even if the initial entry uncovered no evidence, the officers would return immediately with a warrant to conduct a second search.” Post, at 548, n. 2; see post, at 549-550, n. 4. We do not see how this is “relevant” at all. To determine whether the warrant was independent of the illegal entry, one must ask whether it would have been sought even if what actually happened had not occurred — not whether it would have been sought if something else had happened. That is to say, what counts is whether the actual illegal search had any effect in producing the warrant, not whether some hypothetical illegal search would have aborted the warrant. Only that much is needed to assure that what comes before the court is not the product of illegality: to go further than that would be to expand our existing exclusionary rule.