                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

Nos. 03-3192, 03-3195
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                               v.

ANTOINE JOHNSON,
                                           Defendant-Appellant.

                        ____________
        Appeal from the United States District Court for the
            Northern District of Illinois, Eastern Division.
      Nos. 02 CR 826, 02 CR 1215—Robert W. Gettleman, Judge.
                        ____________
      ARGUED JUNE 15, 2004—DECIDED AUGUST 18, 2004
                        ____________



  Before POSNER, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
  POSNER, Circuit Judge. The defendant, convicted of drug
and counterfeiting offenses in separate proceedings later
consolidated, appeals only from the denial of his motion to
suppress evidence that he contends was seized in violation
of the Fourth Amendment. The appeal requires us to con-
sider the scope of the “independent source” and “inevitable
discovery” doctrines—doctrines that are so similar that
we’re not sure which one rules this case. The “independent
source” doctrine allows the government to use evidence that
2                                       Nos. 03-3192, 03-3195

it obtained both illegally and legally, as when evidence first
found in an illegal search is later rediscovered in a legal one.
Murray v. United States, 487 U.S. 533, 537 (1988). The
“inevitable discovery” doctrine allows the government to
use evidence that it obtained illegally but would have
obtained legally in any event. Id. at 539. The question in this
case is whether it matters if the evidence seized illegally
from the defendant had an alternative source in another
illegal search but one that the defendant could not have
challenged directly.
  Proliferation of legal categories is a chronic problem for
American law, as it deflects attention from practical to defi-
nitional concerns. The independent-source and inevitable-
discovery doctrines are easily collapsed into the familiar
rule of tort law that a person can’t complain about a vio-
lation of his rights if the same injury would have occurred
even if they had not been violated. To punish a person for
an act that does no harm is not required in order to deter
harmful acts. But this is in general, not in every case; the
defendant, Antoine Johnson, is arguing in effect for an
exception to the tort rule.
  Johnson and two others were sitting in his parked car
when two police officers approached. Without any grounds
for an arrest or even a Terry stop, the officers ordered the
three occupants to get out of the car. While one of the
officers searched under Johnson’s seat and found drugs
there, the other officer searched the two passengers and
found drugs and counterfeit money on their persons. The
officers then searched the trunk and found more counterfeit
money plus a color copier. Johnson contends that the
evidence seized in the trunk should not have been used
against him, since the police had no legal basis for seizing
him and searching under his seat. (Neither Johnson nor the
passengers consented to the searches.) The district court
Nos. 03-3192, 03-3195                                             3

disagreed, noting that irrespective of the drugs found under
Johnson’s seat, once drugs and counterfeit money were found
on the passengers the police had probable cause to search
the entire vehicle, as it was reasonable to suppose there
might be additional drugs or counterfeit money elsewhere
in it. See United States v. McGuire, 957 F.2d 310, 314 (7th Cir.
1992); United States v. Thornton, 197 F.3d 241, 249 (7th Cir.
1999); United States v. Sink, 586 F.2d 1041, 1047-48 (5th Cir.
1978); United States v. Parker, 72 F.3d 1444, 1450 (10th Cir. 1995).
And had they done so they would have found Johnson’s in-
criminating possessions in the trunk. The search of the
passengers was illegal, but normally A cannot challenge the
legality of the search of B even when the search produces
information used to convict A. Rakas v. Illinois, 439 U.S. 128,
132-33 (1978); United States v. Sanchez-Jaramillo, 637 F.2d
1094, 1100 (7th Cir. 1980). The district judge concluded that
the “injury” to Johnson—the use of the contraband found in
his trunk to convict him—was not caused by a violation of
his rights.
  This would be correct if Johnson were trying to prevent
the contraband seized from the passengers, as distinct from
the trunk of car, from being used against him. (We do not
know whether that evidence was used against them; only
one of the two passengers was prosecuted federally, and he
pleaded guilty before Johnson filed his motion to suppress.)
But all he is trying to do is prevent the use of evidence
seized from him—from the trunk of his car. And so the
question is not his “standing” to challenge the use against
him of evidence seized illegally from other people—no such
evidence, to repeat, was used against him. It is whether the
fact that an illegal search of other people would have turned
up the evidence illegally seized from him should allow the
government to use that evidence against him.
  An affirmative answer would have the paradoxical effect
that two illegal searches would make a legal search—in fact
4                                      Nos. 03-3192, 03-3195

would make two legal searches. For on the government’s
view, not only could the illegally seized evidence in the trunk
be used against the victim of the illegal seizure; equally the
evidence illegally seized from the two passengers could be
used against the two of them, since once the police officers
found the contraband in the trunk they would be entitled to
arrest and search the passengers, who could not challenge
the seizure from the trunk because it wasn’t their car. The
upshot is that when the victims of an illegal search are
linked in such a way that evidence seized from one will
provide grounds for a reasonable belief that the others also
have evidence, the government’s view would deprive the
exclusionary rule of any deterrent effect.
   This is a slight overstatement. The police were gambling
when they conducted their illegal searches of the three
occupants of Johnson’s car. Had there been no contraband
on Johnson’s person or in the car itself but only in the
pockets of the passsengers, the evidence seized from them
could not have been used against them, though it might on
the government’s view be usable against Johnson if there
were anything to link him to the activities of his two pas-
sengers. But in any case in which the police have a strong
hunch (though not enough to enable them to obtain a
warrant or to search without a warrant) that all the mem-
bers of a linked group have some contraband, the police
could, if the government is right, search all the members of
the group without fear that any contraband found on them
could not be used in evidence. Individual police officers
would still have to worry about being sued for damages; but
if damages were considered a completely adequate deterrent
to violations of the Fourth Amendment, the exclusionary rule
would have been abandoned long ago.
  Consider this instructive analogy from tort law: the two
defendants each start a fire, and the fires join and destroy
Nos. 03-3192, 03-3195                                         5

the plaintiff’s house; either fire, however, would have
destroyed his house. Each defendant could therefore argue
that he should not be liable for the damage because it would
have occurred even if he had not set his fire; but the law
rejects the argument and makes both defendants liable,
under the rubric of “concurrent causation.” And so in the
famous old case of Cook v. v. Minneapolis, St. Paul & Sault
Ste. Marie Ry., 74 N.W. 561, 564 (Wis. 1898), we read that “it
is no defense for a person against whom negligence which
causes damages is established, to prove that without fault
on his part the same damage would have resulted from the
negligent act of the other, but each is responsible for the
entire damage.” See also Anderson v. Minneapolis, St. Paul &
Sault Ste. Marie Ry., 179 N.W. 45, 49 (Minn. 1920); Collins v.
American Optometric Ass’n, 693 F.2d 636, 640 n. 4 (7th Cir.
1982); Housing 21, L.L.C. v. Atlantic Home Builders Co., 289
F.3d 1050, 1056-57 (8th Cir. 2002); Sanders v. American Body
Armor & Equipment, Inc., 652 So. 2d 883, 884-85 (Fla. App.
1995); Garrett v. Grant School Dist. No. 124, 487 N.E.2d 699,
706 (Ill. App. 1985); Hart v. Browne, 163 Cal. Rptr. 356, 363-
64 (App. 1980); W. Page Keeton et al., Prosser and Keeton on
the Law of Torts § 41, pp. 266-67 (5th ed. 1984). The tortfeasor
cannot avoid liability by pointing to an alternative unlawful
cause of the damage that he inflicted.
   The concurrent-causation case may seem to differ from
our case insofar as both fire makers violated the plaintiff’s
rights, whereas here the tortious search of Johnson’s passen-
gers did not violate Johnson’s rights. But actually the issue
is the same. A fundamental principle of tort law is that there
is no tort without an injury, e.g., Rozenfeld v. Medical Protec-
tive Co., 73 F.3d 154, 156 (7th Cir. 1996); Winskunas v.
Birnbaum, 23 F.3d 1264, 1267 (7th Cir. 1994), and so since
neither fire was a sine qua non of the plaintiff’s injury, it
could be argued that neither fire maker had committed a
tort. Tort law rejects this conclusion for the practical reason
6                                        Nos. 03-3192, 03-3195

that tortious activity that produces harm would go unsanc-
tioned otherwise. The reason for denying liability when there
is no causal relation between the violation of a duty and the
harm of which the plaintiff is complaining is, as we noted
earlier, that punishing a person for an act that does no harm
is not needed to deter harmful acts. The reason fails when
there is harm that would not have occurred had there not
been unlawful acts.
   Similarly, if police conduct an illegal search that does no
harm because the same evidence would have been obtained
lawfully, there is no need to punish them; but this assumes
that the evidence would indeed have been obtained lawfully,
for only then is there no harmful illegality. Consistent with
this analysis, the canonical statements of the independent-
source and inevitable-discovery doctrines uniformly refer to a
“lawful” independent source and to “lawful” inevitable
discovery. Murray v. United States, supra, 487 U.S. at 542; Nix
v. Williams, 467 U.S. 431, 444 (1984); United States v. Gravens,
129 F.3d 974, 979-80 (7th Cir. 1997); United States v. Lee, 356
F.3d 831, 835 (8th Cir. 2003); United States v. Tueller, 349 F.3d
1239, 1244-46 (10th Cir. 2003); United States v. Akridge, 346
F.3d 618, 623-24 (6th Cir. 2003); United States v. Davis, 332
F.3d 1163, 1171 (9th Cir. 2003); United States v. Moore, 329
F.3d 399, 405 (5th Cir. 2003).
  These cases are not in conflict with the cases cited earlier
that bar a defendant from challenging evidence seized in
violation of someone else’s rights. See also United States v.
Payner, 447 U.S. 727 (1980). The evidence challenged here
was seized in violation of the defendant’s rights—it was
taken from underneath Johnson’s seat and from the trunk.
The government’s argument is that the violation is cancelled
by the fact that the evidence would have been discovered as
a consequence of the illegal search of the passengers, to which
he could not object. The fallacious character of the argument
Nos. 03-3192, 03-3195                                          7

is demonstrated by the fact that if the passengers tried to
exclude the evidence in their own cases, they would be met
by the identical argument: the evidence would have been
discovered in an illegal search (that of Johnson) to which
they cannot object. In the ordinary case in which a defendant
would like to get mileage from challenging the illegal search
of a third party, that party, at least, can challenge the search.
But the government’s position is that because there were
two illegal searches in this case no one can invoke the ex-
clusionary rule against the use of the evidence obtained by
the searches. In other words, the more illegal searches there
are, the narrower is the scope of application of the exclu-
sionary rule. We cannot see what sense that makes.
   Yet the only similar case that we have found, United States
v. Scott, 270 F.3d 30 (1st Cir. 2001), disagrees that the
evidence must be suppressed in such a case. The court in
Scott acknowledged both that “the Supreme Court and this
Circuit have invariably stated the doctrine of inevitable
discovery as requiring inevitable discovery by ‘legal’ or
‘lawful’ means,” id. at 43, and that “the application of the
inevitable discovery exception to this case would allow the
government to benefit at least somewhat from the unconsti-
tutional actions of the Natick police—and if here there were
two illegalities rather than one, that arguably strengthens
rather than weakens the need for suppression as a means of
deterrence.” Id. at 44. Despite these acknowledgments, the
court ruled that the illegality of the independent source
should be only a relevant and not a dispositive factor. The
ultimate question, the court held, should be whether the
application of the independent-source rule in the particular
circumstances of the case would give the police an incentive
in future such cases to commit similar illegal acts; and the
court decided that it would not. Id. at 45. The illegal inde-
pendent source had been a statement given by a suspect
who had not been read the Miranda warnings, and the court
8                                         Nos. 03-3192, 03-3195

emphasized that the question whether he was entitled to those
warnings was close and that the officer was trying to get
evidence against the person he was questioning and had no
thought that the questioning might provide an independent
source of the evidence that had been obtained from the
defendant illegally.
   The First Circuit’s analysis is at once complex and spongy,
as well as inconsistent with the logic of the independent-
source/inevitable-discovery doctrine. That doctrine (or if
one prefers pair of Siamese twin doctrines) merely recognizes
that if there is a lawful basis for the seizure of some evi-
dence, the fact that the seizure was also based on illegal acts
need not trigger punishment, because the acts did no harm
(no harm so far as obtaining the evidence was concerned—
there might be collateral damage, remediable by suits under 42
U.S.C. § 1983 or state tort law, to property or privacy inter-
ests of the defendant). There is a need for punishment when
the only basis for the seizure of the evidence is a series of
illegal acts. The assumption that the independent source
must be “lawful” is thus not merely an accidental dictum;
it is part of the essential logic of the rule and of its origins in
fundamental principles of tort law.
  The search of Johnson’s car led to a further search, of a
motel room that he had occupied, and of his home; and evi-
dence seized in those searches was also used against him.
The district judge did not consider whether there might be
a lawful independent source for that evidence; this is an
issue for consideration on remand.
  Because our decision creates an intercircuit conflict, it was
circulated to the full court in advance of publication, pur-
suant to 7th Cir. R. 40(e). No judge voted to hear the case en
banc.
                                    REVERSED AND REMANDED.
Nos. 03-3192, 03-3195                                      9

A true Copy:
       Teste:

                         _____________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit




                   USCA-02-C-0072—8-18-04
