                              District of Columbia
                               Court of Appeals
No. 15-CM-354

NYIA GORE,                                                     AUG 18 2016
                                        Appellant,

      v.
                                                            DVM-123-12

UNITED STATES,
                                        Appellee.


            On Appeal from the Superior Court of the District of Columbia
                                 Criminal Division

       BEFORE: WASHINGTON, Chief Judge; GLICKMAN, Associate Judge; and PRYOR,
Senior Judge.

                                  JUDGMENT

               This case was submitted to the court on the transcript of record and the
briefs filed, and without presentation of oral argument. On consideration whereof, and
for the reasons set forth in the opinion filed this date, it is now hereby

              ORDERED and ADJUDGED that the appellant’s conviction is vacated,
and the case is remanded for a new trial.

                                         For the Court:




Dated: August 18, 2016.

Opinion by Associate Judge Stephen Glickman.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 15-CM-354                    8/18/16

                              NYIA GORE, APPELLANT,

                                         V.

                             UNITED STATES, APPELLEE.

                           Appeal from the Superior Court
                            of the District of Columbia
                                  (DVM-123-12)

                           (Hon. Zoe E. Bush, Trial Judge)

(Submitted April 7, 2016                                 Decided August 18, 2016)

      Bryan P. MacAvoy for appellant.

       Channing D. Phillips, United States Attorney, Elizabeth Trosman, Elizabeth
H. Danello, and Matthew Evan Kahn, Assistant United States Attorneys, were on
the brief, for appellee.

      Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and PRYOR,
Senior Judge.


      GLICKMAN, Associate Judge:        Nyia Gore appeals her conviction after a

bench trial for the misdemeanor offense of malicious destruction of property. We

reverse and remand because the trial court erred in denying appellant’s motion to

suppress incriminating admissions and physical evidence that police obtained by
                                         2

entering and searching her home without a warrant. The Fourth Amendment

protects “[t]he right of the people to be secure in their . . . houses. . . against

unreasonable searches and seizures.”1 Recognizing that “the ‘physical entry of the

home is the chief evil against which the wording of the Fourth Amendment is

directed,’”2 the Supreme Court in Payton v. New York held that such intrusions are

per se unreasonable if the police do not have a search or arrest warrant, unless

exigent circumstances justify their failure to secure a warrant.    There was no

exigency in this case, and we reject the government’s argument that the

exclusionary rule should not be applied because the police inevitably would have

discovered the fruits of their unlawful entry by lawful means.



                                         I.



      On January 17, 2015, Metropolitan Police Officers Christian Tobe and

Taylor Collins responded to a call for assistance at a Motel 6 located at 6711

Georgia Avenue, Northwest. The caller, Dwayne Ward, met them in the motel

parking lot and requested their help in recovering his personal property from


      1
          U.S. Const. amend. IV.
      2
        Payton v. New York, 445 U.S. 573, 585 (1980) (quoting United States v.
United States District Court, 407 U.S. 297, 313 (1972)).
                                         3

appellant, who was residing in a room at the motel with her two children. Mr.

Ward told the officers that appellant had refused to let him back into the room to

retrieve his possessions. He showed the officers a text message from appellant

saying she had “trashed [his] shit.”



      The officers went to appellant’s room, knocked on her door, and identified

themselves as police officers. Appellant opened the door but did not come out.

The officers remained in the hallway and spoke to appellant across the threshold.

The ensuing exchange was recorded by a body camera worn by Officer Tobe. The

recording was introduced in evidence at trial.



      When appellant opened her door, Officer Tobe greeted her and started to

say, “So, uh, I hear you have, uh, some stuff –” when she interrupted him and

stated, “I don’t have anything. I trashed everything.” In response to the officers’

subsequent questions, appellant said Mr. Ward’s possessions were “not in this

building” but in a dumpster and she would not go “dumpster diving” to retrieve

them. Appellant became defensive and the colloquy between her and the police

grew increasingly heated. About two minutes into the encounter, the officers told

appellant she had committed a crime.         After some additional back-and-forth,

Officer Tobe bluntly told appellant they would arrest her unless they could recover
                                           4

Mr. Ward’s property. “Now,” he asked her, “does that change your tune any?”

Appellant answered, “No it doesn’t.” Appellant asked whether Mr. Ward was in

the hallway, and when the officers indicated he was there, she shouted for him and

walked toward the doorway.          The officers then entered the room, without

appellant’s consent, and Officer Tobe handcuffed her. Within fifteen seconds of

being handcuffed, appellant finally admitted, “Okay, it’s – I’m sorry, but

everything is in the tub, and it’s – yes, it’s destroyed. I tore everything up, I ripped

everything up, and I’m sorry. He hurt me.”



      While Officer Collins remained with appellant, Officer Tobe escorted Mr.

Ward into the bathroom to retrieve a trash bag containing his property – a

backpack that had been “cut to pieces,” papers that had been ripped up, and a radio

that had been “smashed.” The officers then formally arrested appellant.



      Appellant moved to suppress the physical evidence seized from her

bathroom and her statements to the police as having been obtained in violation of

the Fourth and Fifth Amendments.          The motion hearing was incorporated in

appellant’s bench trial. Officer Tobe testified that in light of appellant’s statements

and text message, he believed when he and Officer Collins entered appellant’s

room that they had probable cause to arrest her for destroying or taking Mr. Ward’s
                                          5

property without right. Officer Tobe explained that “we came in the apartment to

continue questioning her” about what had happened to the property. In view of

appellant’s agitated state, he also “wanted to prevent her from getting out in the

hallway” and having a confrontation there with Mr. Ward. Officer Tobe further

testified that if appellant had not told them where Mr. Ward’s property was, “we

would have probably searched through the trash cans” and “had we not found [the

property] in the dumpsters . . . [w]e could have applied for a search warrant.”



      In support of her suppression motion, appellant argued that the officers

violated her Fourth Amendment rights when, in the absence of exigent

circumstances, they entered and searched her home without her consent and

without a warrant; and, further, that the officers lacked probable cause to justify

their entry. In opposition, the government argued that the officers had probable

cause to enter appellant’s home and arrest her based on her text message and her

initial statement to the police, and also to keep her from coming out of her

apartment in her agitated state. The government further argued that the police

inevitably would have recovered Mr. Ward’s property by lawful means had
                                            6

appellant not revealed its location to them because they would have applied for a

warrant to search her room “once they did not find the items in the dumpster.”3



      Appellant grounded her Fifth Amendment claim on the failure of the officers

to give her Miranda warnings before questioning her. The government countered

that appellant’s statements were spontaneous, voluntary, and not the product of

custodial interrogation.



      The trial court denied the motion essentially for the reasons that the

government advanced. It held that appellant’s Fifth Amendment rights were not

violated because her statements were spontaneous and not in response to custodial

interrogation. In addition, the court held, “once the Defendant’s says ‘I trashed

everything, everything is in the tub, I ripped it up,’ there’s probable cause to arrest

her, and the recovery of the items in the bathtub is therefore inevitable, regardless

of the fact that there was no consent and no warrant.” Thereafter, based on the

evidence summarized above,4 the court also denied appellant’s motion for

judgment of acquittal and found appellant guilty. It concluded that the government
      3
        The government also argued that the search of the bathroom was
permissible as a search incident to a lawful arrest. This argument is not pursued on
appeal.
      4
          Appellant did not present any evidence at trial.
                                          7

had proved beyond a reasonable doubt that appellant had damaged Mr. Ward’s

property, intentionally and without adequate provocation or excuse, and that the

property had some value.



                                          II.



      Appellant contends the trial court erred in not suppressing the evidence

seized from her room and her statements to police and, in any event, in finding the

government’s proof sufficient to convict her of malicious destruction of property.

We find merit only in appellant’s Fourth Amendment claim. Before addressing

that claim, we first dispose of appellant’s other contentions.



                           A. Sufficiency of the Evidence



      The essential elements of misdemeanor malicious destruction of property

under D.C. Code § 22-303 (2016 Supp.) are that: (1) the defendant damaged or

destroyed, or attempted to damage or destroy, property; (2) the property belonged

to another person5; (3) the property had some value; (4) the defendant acted


      5
        This element is satisfied even if the defendant is a co-owner of the
property. See Jackson v. United States, 819 A.2d 963, 966-67 (D.C. 2003).
                                          8

voluntarily and on purpose, and not by mistake or accident; (5) the defendant acted

with the intent to damage or destroy the property or despite knowing that his or her

conduct created a substantial risk of harm to the property; and (6) the defendant

acted without justification, excuse, or mitigating circumstances.6



      “A court must deem the proof of guilt sufficient if, ‘after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.’” 7

The evidence at trial included Mr. Ward’s testimony as to his ownership of the

backpack and its contents, their condition before and after he left them with

appellant, and their value; appellant’s admissions in her text message to Ward and

recorded statements to the police; and photographs depicting the damaged

condition of Ward’s possessions when they were recovered from appellant’s


      6
        See Criminal Jury Instructions for the District of Columbia, No. 5.400 (5th
ed. rev. 2015); see also Guzman v. United States, 821 A.2d 895, 898 (D.C. 2003)
(defining “malice”); Brown v. United States, 584 A.2d 537, 539 (D.C. 1990)
(holding that provocation is a proper defense to the charge of malicious destruction
of property).
      7
        Rivas v. United States, 783 A.2d 125, 134 (D.C. 2001) (en banc) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979); emphasis in the original). For this
purpose, we consider all the evidence admitted at trial, including the evidence
appellant claims should have been excluded, regardless of whether the court erred
in admitting it. See Lockhart v. Nelson, 488 U.S. 33, 40-41 (1988).
                                         9

bathroom. Appellant argues that Ward’s testimony was “untrustworthy,”8 but, in

actuality, it was amply corroborated in all material respects by the rest of the

government’s evidence; and, in any event, except in unusual circumstances not

present here, we cannot second-guess credibility determinations, which are

committed to the trier of fact.9 We unhesitatingly conclude that the government’s

proof surpassed the threshold of sufficiency and readily enabled a rational trier of

fact to find, beyond a reasonable doubt, that appellant maliciously destroyed

property of value belonging to Mr. Ward, in violation of D.C. Code § 22-303.



                     B. Appellant’s Statements to the Police



      Appellant argues that the trial court should have suppressed her statements

to Officers Tobe and Collins because the officers did not advise her of her Fifth

Amendment rights against self-incrimination before they subjected her to a



      8
        Appellant’s Br. at 26 (citing Ward’s testimony that he had not been
drinking beer before the police met him, which appellant considers dubious, and
his acknowledgment that his backpack and radio were well-worn even before
appellant destroyed them).
      9
         See, e.g., Turner v. United States, 116 A.3d 894, 927 (D.C. 2015) (“[A]
credibility determination, made after the judge had the opportunity to hear the . . .
witnesses’ live testimony and observe their demeanor, may be overturned only if
‘it is wholly unsupported by the evidence.’”).
                                         10

custodial interrogation, as required by Miranda v. Arizona.10 The government

responds that appellant’s initial incriminating admissions that she had “trashed”

Mr. Ward’s property, made before the officers entered her room, were not obtained

in violation of Miranda because they were not the product of custodial

interrogation. The government further contends that this court “does not need to

decide when the non-custodial discussion turned into a custodial one” because

“any error in the admission of appellant’s subsequent statements [i.e., after the

police entered her room] in which she similarly confessed to trashing the property

would be harmless beyond a reasonable doubt.”11




      10
          384 U.S. 436, 444 (1966) (holding that prior to engaging in custodial
interrogation, police must warn a suspect that “he has a right to remain silent, that
any statement he does make may be used as evidence against him, and that he has a
right to the presence of an attorney, either retained or appointed.”).
      11
         Appellee’s Br. at 11 n.7 (citing Lewis v. United States, 483 A.2d 1125,
1131-32 (D.C. 1984) (holding that admission of statements obtained in violation of
Miranda was harmless beyond a reasonable doubt where the substance of the
statements was introduced through other, untainted testimony)). As to appellant’s
statements after the police officers entered her room, the government adds that
“[e]ven assuming arguendo that appellant’s statement as to the location of the
property [in her bath tub] violated Miranda because a ‘custodial interrogation’ had
been taking place at that time, the Miranda violation would not justify suppression
of the [physical] evidence because the statement was nonetheless voluntary.” Id. at
16 n.10 (citing United States v. Patane, 542 U.S. 630, 634 (2004) (holding that the
Fifth Amendment did not require the suppression of the physical fruits of a
Miranda violation where the statement was voluntary)).
                                          11

      The Miranda warnings are meant to guard against the “danger of coercion

[that] results from the interaction of custody and official interrogation.”12 Thus,

“[t]he requirements of Miranda apply only if custodial interrogation has taken

place; there must be both ‘custody’ and ‘interrogation’ at the same time.”13



      We agree with the government that there was no Miranda violation when the

officers merely addressed appellant while they remained in the hall outside her

room. This part of the encounter was what has been called a “knock and talk”

interview.14 Suffice it to say that appellant was not in police custody during this




      12
         Maryland v. Shatzer, 559 U.S. 98, 112 (2010) (emphasis in original)
(quoting Illinois v. Perkins, 496 U.S. 292, 297 (1990)).
      13
           Jones v. United States, 779 A.2d 277, 280 (D.C. 2001) (en banc).
      14
          United States v. Hughes, 640 F.3d 428, 431 (1st Cir. 2011) (“A ‘knock
and talk’ interview, as the appellation implies, consists of knocking on a person’s
door, stating the purpose of the visit, and asking the person to agree to an
audience.”); see also Kentucky v. King, 563 U.S. 452, 469-70 (2011) (“When law
enforcement officers who are not armed with a warrant knock on a door, they do
no more than any private citizen might do. And whether the person who knocks on
the door and requests the opportunity to speak is a police officer or a private
citizen, the occupant has no obligation to open the door or to speak. . . . And even
if an occupant chooses to open the door and speak with the officers, the occupant
need not allow the officers to enter the premises and may refuse to answer any
questions at any time.”).
                                         12

interview (at least not until the officers entered her room and handcuffed her).15

“Custody,” for purposes of triggering the requirement of Miranda warnings, “is

present when there has been a ‘formal arrest or restraint on freedom of movement

of the degree associated with a formal arrest.’”16 The question is an objective one;

“the only relevant inquiry is how a reasonable man in the suspect’s position would

have understood his situation.’”17 Even if, as appellant claims, a reasonable person

in her situation would not have felt at liberty to terminate the doorway interview

and leave, she mistakes the relevant inquiry. For Miranda purposes, we ask not

whether a reasonable person would feel free to leave but whether a reasonable

person would feel she was under formal arrest or restrained to the degree

associated with a formal arrest.18 Appellant had not been taken from the security


      15
       We therefore find it unnecessary to decide whether appellant’s statements
were spontaneous or in response to police interrogation within the meaning of
Miranda.
      16
        In re I.J., 906 A.2d 249, 255 (D.C. 2005) (quoting California v. Beheler,
463 U.S. 1121, 1125 (1983)).
      17
           Id. at 256 (quoting Berkemer v. McCarty, 468 U.S. 420, 442 (1984)).
      18
         See id. at 256 (“If a reasonable person would have thought he was free to
leave, the Miranda inquiry is at an end. But if a reasonable person would not have
thought himself free to leave, additional analysis is required because . . . not every
seizure constitutes custody for purposes of Miranda. The ultimate inquiry is[,] was
there a formal arrest or restraint on freedom of movement of the degree associated
with a formal arrest.”) (internal punctuation and citations omitted).
                                          13

of her home or asked to leave it, nor had the officers (yet) intruded on that security;

she was not physically restrained in any way; the officers did not brandish their

weapons or otherwise engage in a show of force; and the officers did not tell

appellant she was being detained or try to limit her movements.19       On these facts

of record, we hold that a reasonable person in appellant’s position would not have

understood herself to be under formal arrest, or under a comparable restraint on her

freedom of movement, while the police stood in the hallway and questioned her

while she stayed inside her room.20



      Because this questioning was non-custodial, Miranda warnings were not

constitutionally required before the police entered the room and placed appellant in

handcuffs. That conclusion leaves in question the admissibility under Miranda of

appellant’s unwarned post-entry statements. However, we need not address the

government’s argument that any post-entry Miranda violation in eliciting those

statements was harmless error (an argument, we pause to note, that implicitly

      19
         Even when the officers told appellant she had committed a crime by
destroying Mr. Ward’s property, they made it plain that she was not under arrest.
      20
         See, e.g. Hughes, 640 F.3d at 435-37 (holding that defendant was not in
Miranda “custody” during “knock and talk” interview at his residence); United
States v. Titemore, 437 F.3d 251, 260 (2d Cir. 2006) (same, where state trooper
asked defendant to come out onto his porch to talk and questioned him there about
vandalism of neighbor’s home).
                                         14

concedes the Fifth Amendment violation21), for – as we now turn to discuss – the

Fourth Amendment violation in this case entitles appellant to a new trial at which

none of the evidence obtained by the police after their warrantless entry of her

home will be admissible.



                  C. The Warrantless Entry of Appellant’s Room



      Appellant also claims that the police officers’ unconsented entry and search

of her home violated her Fourth Amendment rights, both because the police lacked

probable cause to believe she had committed a crime, and because there was no

showing of exigent circumstances excusing the officers’ failure to apply for and

secure a warrant. Accordingly, she argues, the evidence obtained inside her home

should have been suppressed. The government, defending the trial court’s ruling,

responds that appellant’s admission to having “trashed” Mr. Ward’s property

furnished the requisite probable cause, and that the evidence found in the

warrantless intrusion was properly admitted under the “inevitable discovery”

exception to the exclusionary rule.22



      21
           See Tuckson v. United States, 77 A.3d 357, 366 (D.C. 2013).
      22
        The government does not argue on appeal that the warrantless entry and
search of appellant’s home was justified by exigent circumstances or that it was
                                                                  (continued…)
                                        15

      We do not doubt that Mr. Ward’s report to the police, combined with

appellant’s text message and her incriminating admission that she had destroyed

his property, provided probable cause to believe she had done so unlawfully, and

perhaps also that evidence of that offense likely would be found in her room. Even

so, in the absence of exigent circumstances, the existence of probable cause does

not privilege the police to enter someone’s home without a warrant, and we

conclude that the “inevitable discovery” doctrine does not apply to the direct and

immediate fruits of that Fourth Amendment violation. We therefore agree with

appellant that both the physical evidence and the incriminating admissions

obtained after Officers Tobe and Collins entered her room should have been

suppressed.



      “In terms that apply equally to seizures of property and to seizures of

persons, the Fourth Amendment has drawn a firm line at the entrance to the house.



(continued…)
consensual. In any event, even if these arguments were preserved, the warrantless
entry of appellant’s apartment was plainly not consensual, and we cannot deem it
justified by exigent circumstances. See Dorman v. United States, 435 F.2d 385,
391-93 (D.C. Cir. 1970) (en banc) (noting several factors – absent in this case –
establishing sufficient exigency to justify warrantless entry of a home, including
whether “a grave offense is involved, particularly one that is a crime of violence,”
a suspect is “reasonably believed to be armed,” and there is “a likelihood that the
suspect will escape if not swiftly apprehended”).
                                          16

Absent exigent circumstances, that threshold may not reasonably be crossed

without a warrant.”23 The police thus violated appellant’s Fourth Amendment

rights when, absent exigent circumstances, they made a nonconsensual entry into

her home without a warrant.        Both her ensuing admissions and the physical

evidence Officer Tobe discovered (Mr. Ward’s possessions) were subject to

exclusion as the direct and immediate fruits of that constitutional violation.24



      To avoid application of the exclusionary rule, the government argues only

that “even if appellant had not told the officers that Mr. Ward’s property was

located in her bathroom, they would have inevitably found the property via a

search warrant.”25 The only record support for this assertion is Officer Tobe’s

testimony that “we would have probably searched through the trash cans [for Mr.



      23
          Payton v. New York, 445 U.S. 573, 590 (1980) (holding that, in the
absence of exigent circumstances, the mere existence of probable cause does not
justify a nonconsensual entry by police into a home without an arrest or search
warrant).
      24
          See, e.g., Kirk v. Louisiana, 536 U.S. 635, 637-38 (2002) (physical
evidence recovered from defendant’s person and apartment following warrantless
entry is suppressible notwithstanding the existence of probable cause to arrest and
search); New York v. Harris, 495 U.S. 14, 20 (1990) (“[A] warrantless entry will
lead to the suppression of any evidence found, or statements taken, inside the
home.”).
      25
           Appellee’s Br. at 15.
                                          17

Ward’s property, and] had we not found it in the dumpsters . . . [w]e could have

applied for a search warrant.” But testimony that the police “could” have applied

for a warrant is insufficient to establish that lawful discovery of the evidence was

inevitable.



      The inevitable discovery doctrine shields illegally obtained evidence from

the exclusionary rule if the government can show, by a preponderance of the

evidence, that the evidence “ultimately or inevitably would have been discovered

by lawful means.”26 “Would” – not “could” or “might” – is the word the Supreme

Court used in Nix v. Williams and is, therefore, the “constitutional standard.”27 In

determining whether discovery was inevitable, the trial court cannot engage in

speculation, and must focus exclusively on “demonstrated historical facts capable

of ready verification or impeachment.”28 Accordingly, we have said that “the

lawful process which would have ended in the inevitable discovery must have



      26
         Hicks v. United States, 730 A.2d 657, 659 (D.C. 1999) (quoting Nix v.
Williams, 467 U.S. 431, 444 (1984)). The purpose of the inevitable discovery
doctrine “is to ensure that, while the government does not profit from its illegality,
‘the prosecution is not put in a worse position simply because of some earlier
police error or misconduct.’” Id. at 661 (quoting Nix v. Williams, 467 U.S. at 443).
      27
           Wayne R. LaFave, Search and Seizure § 11.4 (a), at 359-61 (5th ed. 2012).
      28
           Hicks, 730 A.2d at 659 (quoting Nix v. Williams, 467 U.S. at 444 n.5).
                                         18

commenced before the constitutionally invalid seizure, and there must be the

requisite actuality that the discovery would have ultimately been made by lawful

means.”29



      The requirements of the inevitable discovery doctrine were not met in this

case. At the time the police officers illegally entered appellant’s room, and even

when they seized Mr. Ward’s property from her bathroom, the “lawful process”


      29
           Id. at 659 (emphasis in original) (internal punctuation and citations
omitted). See also, e.g., Blair v. United States, 114 A.3d 960, 969 (D.C. 2015);
McFerguson v. United States, 770 A.2d 66, 75 (D.C. 2001); United States v.
Redrick, 48 F. Supp. 3d 91, 107 (D.D.C. 2014) (inevitable discovery doctrine
satisfied where “the officers were actively pursuing independent lawful means of
searching the apartment [applying for a warrant] before the illegal [warrantless]
search occurred”). The inevitable discovery doctrine also has been applied “where
the circumstances are such that, pursuant to some standardized procedures or
established routine a certain evidence-revealing event would definitely have
occurred later.” LaFave, § 11.4 (a), at 363-65. This was the situation in Hicks
itself, in fact. In that case, police stopped a car matching a lookout description on
the reasonable suspicion that its occupants had committed a recent robbery. The
officers searched the car and found a sawed-off shotgun. Because the search was
conducted without probable cause, it was unlawful. This court held the shotgun
admissible at trial under the inevitable discovery doctrine, even though the process
that inevitably would have resulted in the lawful discovery of the shotgun – a
show-up procedure in which the victim of the robbery identified one of the
vehicle’s occupants as his assailant (providing grounds for a lawful search of the
vehicle incident to arrest) – had not commenced until after the unlawful search.
This did not preclude reliance on the inevitable discovery doctrine, the court
reasoned, since there was no doubt that the police were going to arrange the show-
up regardless of the unlawful discovery of the shotgun. 730 A.2d at 662. See also
Pinkney v. United States, 851 A.2d 479, 495 (D.C. 2004).
                                          19

that supposedly would have ended in the inevitable discovery of that property there

– the putative application for a search warrant for the room – had not begun.

Indeed, it was never begun; we have only Officer Tobe’s statement that he “could”

have applied for a warrant in the event a hypothetical search of nearby dumpsters

(which itself had not been commenced and was hardly certain to have been

performed) was unproductive. Of course, whenever police officers disregard the

warrant requirement, they “could” have applied for a warrant instead. But in this

case, there is no solid evidence that the officers would have done so. “It is, at best,

speculative rather than based on ‘demonstrated historical facts capable of ready

verification’” that the officers would have applied for, let alone obtained, a warrant

to search appellant’s abode.30 Thus, the “requisite actuality that the discovery

would have ultimately been made by lawful means”31 is entirely lacking here.32


      30
           United States v. Holmes, 505 F.3d 1288, 1294 (D.C. Cir. 2007).
      31
           Hicks, 730 A.2d at 659 (internal quotation marks omitted).
      32
         Even if we were to posit that the officers would have applied for and
obtained a search warrant had they not entered appellant’s home without one, “the
argument that ‘“if we hadn’t done it wrong, we would have done it right”’ is far
from compelling.” LaFave § 11.4(a), at 347 (quoting State v. Topanotes, 76 P.3d
1159, 1164 (Utah 2003) (quoting United States v. Thomas, 955 F.2d 207, 210 (4th
Cir. 1992))). “The assertion by police (after an illegal entry and after finding
evidence of crime) that the discovery was ‘inevitable’ because they planned to get
a search warrant . . . , would as a practical matter be beyond judicial review. Any
other view would tend in actual practice to emasculate the search warrant
requirement of the Fourth Amendment.” United States v. Griffin, 502 F.2d 959,
                                                                       (continued…)
                                          20

      We therefore conclude that all the evidence obtained by the police following

their unconstitutional entry into appellant’s home – including appellant’s

statements in the room, the video recording of activity in the room made by Officer

Tobe’s body camera, and Mr. Ward’s property – should have been suppressed and

was admitted at appellant’s trial in error. The government does not contend that

this constitutional error was harmless.



                                          III.



      For the foregoing reasons, we vacate appellant’s conviction and remand for

a new trial.




(continued…)
961 (6th Cir. 1974). Here, of course, there is not even an assertion that the officers
“planned” to get a warrant; there is only Officer Tobe’s statement that he “could”
have applied for one. An officer always can apply for a warrant. His failure to do
so when he should is a reason to apply the exclusionary rule, not a reason to
withhold its application.
