                               In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
Nos. 15-1740, 15-2637
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,

                                 v.

WILLIAM RIVERA and JUAN DUENAS,
                                             Defendants-Appellants.
                    ____________________

        Appeals from the United States District Court for the
          Northern District of Illinois, Eastern Division.
           No. 13 CR 563 — Thomas M. Durkin, Judge.
                    ____________________

   ARGUED JANUARY 27, 2016— DECIDED MARCH 16, 2016
                    ____________________

   Before POSNER, KANNE, and HAMILTON, Circuit Judges.
   POSNER, Circuit Judge. The defendants pleaded guilty to
conspiring to possess and distribute cocaine, in violation of
federal law, 21 U.S.C. §§ 846, 841(a), and were sentenced to
60 months (Rivera) and 48 months (Duenas) in prison. But
they reserved the right to appeal from the district judge’s
denial of their motions to suppress evidence consisting of
drugs that federal agents had seized in searches of Duenas’s
garage and Rivera’s truck, which was in the garage. The
2                                       Nos. 15-1740, 15-2637


agents didn’t have search warrants, and the defendants con-
tend that the searches therefore violated the Fourth
Amendment. Contrary to popular impression, the Fourth
Amendment does not require a warrant to search or to ar-
rest—ever; its only reference to warrants is a condemnation
of general warrants. (The amendment reads in full: “The
right of the people to be secure in their persons, houses, pa-
pers, and effects, against unreasonable searches and sei-
zures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the per-
sons or things to be seized.”) The amendment has neverthe-
less been interpreted to require warrants in many cases—but
not, as we’ll see, in cases such as this.
    A confidential informant (with the help of another man,
whom we can ignore) arranged to purchase cocaine that was
being sold at Duenas’s garage. Trailed by federal agents at a
discreet distance, the informant drove to the garage, parked
outside, entered (the garage door, open when he arrived,
closed after he entered), and there discussed the transaction
with Duenas and Rivera. He then left, ostensibly to get the
money for the purchase of the cocaine from his car. Instead
he got back into the car (which was parked nearby), drove a
short distance, parked, and phoned one of the federal agents
to report that there indeed was cocaine in the garage, in Ri-
vera’s truck. Agents arrived shortly, arrested Duenas outside
the open garage and Rivera inside it, and then searched the
garage and found and seized two kilograms of cocaine from
Rivera’s truck. Between the confidential informant’s depar-
ture from the garage and the agents’ arrival, only about
three minutes had elapsed.
Nos. 15-1740, 15-2637                                         3


    The informant (of course not known to Duenas and Rive-
ra to be such) had entered the garage with the consent of
Duenas, the owner of the garage, and of Rivera, the owner of
the truck that contained the drugs to be sold to the inform-
ant. Although the informant had returned to his car and
driven a short distance off, Duenas and Rivera had re-
mained, the garage door was now open, and it is a fair infer-
ence that they were expecting the informant to return soon
with the money.
    Obviously they had consented to the informant’s return-
ing, and on this basis the district judge invoked the curious,
or at least curiously named, doctrine of “consent once re-
moved.” If an informant is invited to a place by someone
who has authority to invite him and who thus consents to
his presence, and the informant while on the premises dis-
covers probable cause to make an arrest or search and im-
mediately summons help from law enforcement officers, the
occupant of the place to which they are summoned is
deemed to have consented to their presence. See United
States v. Jachimko, 19 F.3d 296 (7th Cir. 1994), and cases cited
in it. On this basis the district judge rejected the defendants’
Fourth Amendment claim.
    At first glance the doctrine of “consent once removed” is
absurd. If one thing is certain it’s that Duenas and Rivera
would never have consented to the entry of federal drug
agents into Duenas’s garage, where the drugs to be bought
by the informant were stored. The doctrine thus cannot, de-
spite its name, be based on consent. This is well recognized.
See, e.g., John F. Decker & Kathryn A. Idzik, “Disguising A
New Exception to the Warrant Requirement: An Examina-
tion of the Consent-Once-Removed Doctrine and Its Hollow
4                                        Nos. 15-1740, 15-2637


Justifications,” 61 Drake L. Rev. 127, 160–68 (2012); Ben Sob-
czak, “The Sixth Circuit’s Doctrine of Consent Once Re-
moved: Contraband, Informants and Fourth Amendment
Reasonableness,” 54 Wayne L. Rev. 889, 902–08 (2008). As
Sobczak points out, citing Georgia v. Randolph, 547 U.S. 103
(2006), if you invite someone to a party at your house he
can’t, without your express or implied permission, bring
others with him; that is, one can’t without permission extend
an invitation that one has received to other persons, especial-
ly ones unknown to the host. It’s thus difficult to understand
what was intended by the statement in United States v.
Akinsanya, 53 F.3d 852, 856 (7th Cir. 1995), that “when
Akinsanya gave his consent to Gilani to enter his apartment,
he effectively gave consent to the agents with whom Gilani
was working.”
    But though misnamed, the doctrine has the following
kernels of validity. First, an informant’s job, especially in
cases such as this that come from the frequently violent
world of drug trafficking, is often (though not always, even
in the drug world, see, e.g., Richards v. Wisconsin, 520 U.S.
385, 393 (1997); United States v. Williams, 604 F.2d 1102, 1122–
23 (8th Cir. 1979)), risky, and likewise that of a lone under-
cover officer. The informant in our case may well have
feared that if he returned to the garage with the money for
the drugs, Rivera and Duenas would take the money but not
give him the drugs—and maybe would kill him to prevent
his retaliating against them for stealing his money. (He
would be likely to have fared no better with them had he re-
turned to the garage without any money—how would he
have explained that to them?) It was therefore reasonable for
him to arrange with the agents that when he was about to
return to the garage with the money he would call them and
Nos. 15-1740, 15-2637                                          5


they would enter the garage at his heels in order to protect
him. United States v. Jachimko, supra, and the cases cited in it,
rightly emphasize the lawful protective purpose of the mis-
named “consent once removed” doctrine. See, e.g., United
States v. Yoon, 398 F.3d 802, 809–10 (6th Cir. 2005). And in
this case obtaining a search warrant on the basis of what the
informant saw in the garage would not have been practica-
ble. The interval between the informant’s notifying the
agents that he had seen drugs in the garage and the agents’
swooping down on it and arresting its occupants was too
short—about one minute—for the agents to have been able
to obtain a warrant.
    But one doesn’t need the opaque label “consent once re-
moved” to justify authorizing such a response to an emer-
gency situation. The doctrine of “exigent circumstances”
(where “exigent” means emergency) allows such a response
in this case because the interval between the informant’s no-
tifying the agents of the presence of the cocaine in the garage
and the agents’ arrival at the scene was so short. They could
have gotten a search warrant had they delayed their arri-
val—but by then Rivera and Duenas, worried by the failure
of the buyer (not known to them to actually be an informant)
to show up with the money, might have removed the co-
caine from the truck and hid it elsewhere.
    The agents upon arrival in the garage could have phoned
for warrants, meanwhile ordering Rivera and Duenas to re-
main in the garage. But the order would have been a seizure
within the meaning of the Fourth Amendment—without a
warrant.
   We note parenthetically that consent to enter need not be
invalid just because the person giving it lacks relevant
6                                         Nos. 15-1740, 15-2637


knowledge of the person to whom he’s giving it. In United
States v. White, 660 F.2d 1178 (7th Cir. 1981), two undercover
agents obtained consent to enter the defendant’s apartment
by concealing their identities as police officers. That was “re-
al” consent, though uninformed. One of the agents left after
a while, ostensibly to get the money for a deal (like the in-
formant in our case)—and instead returned with other
agents. The court declined to consider their entry “a separate
intrusion” given that one agent had remained inside
throughout. Id. at 1183 n. 3. The defendant might have con-
sented to the entry of those other agents as well, had they
concealed their identity as police officers. And had the in-
formant in our case returned to the garage with a police of-
ficer disguised as a drug dealer, and the informant had told
Duenas and Rivera that the newcomer was an expert in as-
sessing the quality of a cocaine sample, they (Duenas and
Rivera) might have consented to his presence.
    But there was no newcomer invited or even permitted to
join the party in this case. Nor was the informant, having
driven away from the garage before the agents entered, and
anyway not having returned, in danger from Rivera or Du-
enas such as would have justified his summoning law en-
forcement for aid and protection—he was well out of harm’s
way. This case seems therefore not to fit either of the ration-
ales that we’ve identified as justifying the “consent once re-
moved” doctrine. But the district judge had a third ground,
of which more later in this opinion, for denying the defend-
ants’ suppression motion—“inevitable discovery.” See, e.g.,
Nix v. Williams, 467 U.S. 431, 444 (1984); United States v. Witz-
lib, 796 F.3d 799, 802–03 (7th Cir. 2015); United States v.
Tejada, 524 F.3d 809, 812–13 (7th Cir. 2008). If officers search
without a warrant, but it is certain they’d have obtained one
Nos. 15-1740, 15-2637                                         7


had they applied for it, their omission is deemed harmless,
and so is ignored.
    We can’t find a case that mentions “consent once re-
moved” in which the decision in favor of the government
could not have been supported on another ground: United
States v. White, supra, 660 F.2d at 1183 n. 3 (exigent circum-
stances); United States v. Janik, 723 F.2d 537, 547–48 (7th Cir.
1983) (actual consent to entry); United States v. Diaz, 814 F.2d
454, 457–58 (7th Cir. 1987) (inevitable discovery); United
States v. Akinsanya, supra, 53 F.3d at 855–56 (same); United
States v. Paul, 808 F.2d 645, 647–48 (7th Cir. 1986) (same). In
light of these decisions we are inclined to think that the term
“consent once removed” is not only opaque, but expendable.
    Once the confidential informant alerted the agents to the
fact that there was cocaine in Duenas’s garage, they had
probable cause to search the garage. They could have ob-
tained a search warrant by relaying what the informant had
told them to whatever magistrate was available to rule on a
warrant application. But there was no time. The agents had
to move fast because Rivera and Duenas might panic when
they realized that the (unknown to them) informant might
not be returning, and remove the drugs from the garage. The
certainty (just as in United States v. Pelletier, 700 F.3d 1109,
1117 (7th Cir. 2012) and many other cases) that the agents
could have gotten a warrant to conduct a search that would
have revealed the drugs should alleviate concern with the
warrantless search and arrests in this case. And if further
justification is required (it isn’t), there is the doctrine of
harmless error, which usually refers to procedural errors in a
trial but is applicable as well to searches and arrests. As ex-
8                                            Nos. 15-1740, 15-2637


plained in United States v. Stefonek, 179 F.3d 1030, 1035–36
(7th Cir. 1999) (citations omitted),
    Concern with the frequent disproportionality of the sanc-
    tion of exclusion has led judges to create exceptions to the
    exclusionary rule, itself a rule of federal common law (that
    is, of judge-made law) rather than a part of the Fourth
    Amendment itself and so amenable to judge-made adjust-
    ment. … [T]he exception that is most pertinent to this case
    goes by the name of ”inevitable discovery” and refuses to
    suppress evidence seized in an unconstitutional search if it
    is shown that the evidence would ultimately have been
    seized legally if the constitutional violation had not oc-
    curred. In other words, just as careless or even willful be-
    havior is not actionable as a tort unless it causes injury, so
    there must be a causal relation between the violation of the
    Fourth Amendment and the invasion of the defendant’s in-
    terests for him to be entitled to the remedy of exclusion. In
    a case of inevitable discovery, the defendant would by def-
    inition have been no better off had the violation of his con-
    stitutional rights not occurred, because the evidence would
    in that event have been obtained lawfully and used lawful-
    ly against him … . There is an exception for errors deemed
    to go to the very heart of due process, but we know that a
    violation of the Fourth Amendment is not such an error,
    because the Supreme Court greatly restricts its use as the
    basis for a collateral attack on a state conviction. … [A]
    Fourth Amendment violation committed before any litiga-
    tion began, though not a harmless trial error, no more au-
    tomatically invalidates the conviction than a harmless trial
    error would.
    In sum, the search and arrests in this case invaded no
lawful interest, no protected right of privacy of the defend-
ants; a pause to enable warrants to be obtained would have
risked the disappearance of the contraband; and an attempt
Nos. 15-1740, 15-2637                                         9


to obtain warrants before the informant phoned in the in-
formation that he’d found the contraband might well have
been denied for lack of proof of probable cause, thus distin-
guishing this case from cases such as United States v. Camou,
773 F.3d 932, 943 (9th Cir. 2014), in which “police had proba-
ble cause but simply did not attempt to obtain a warrant.”
The important point is that had time permitted, the agents
would without question have obtained a warrant. See United
States v. Pelletier, supra, 700 F.3d at 1117.
    Because “the officer[s] who conducted the search com-
plied with then-binding precedent, the evidence obtained
from the search should not be excluded[,] because the search
was conducted with the objectively reasonable good-faith
belief that it was lawful.” United States v. Gary, 790 F.3d 704,
705 (7th Cir. 2015). (The binding precedent—actually prece-
dents—in this case are the “consent once removed” cases—
with which the agents faithfully complied.)
     The clincher is our recent decision in United States v.
Witzlib, supra, 796 F.3d at 802, which presented a parallel is-
sue to this case, though it involved contraband explosives
rather than contraband drugs. We offered “an alternative
justification, besides consent and exigency, for the initial
search (which happens also to have been the search that
turned up by far the most important evidence of Witzlib’s
guilt). Had the police sought a search warrant from the mo-
ment they finished talking to the uncle and aunt, it’s a cer-
tainty that it would have been issued—such was the proba-
ble cause created by what they told the police. So whether
they got a warrant or not there was no way that Witzlib’s
fireworks stash was going to remain undiscovered by the
authorities” (citations omitted).
10                                        Nos. 15-1740, 15-2637


     Similarly, had the agent in our case followed routine
procedure—which as we said he would have done had he
not been planning to rely on consent—a warrant would cer-
tainly have been issued on the basis of the informant’s
knowledge: he had seen the cocaine stash in Rivera’s truck.
So for Witzlib’s stash of explosives substitute our defend-
ants’ cocaine stash and one sees that Witzlib governs this
case. And Witzlib does not stand alone. For similar cases sim-
ilarly decided see United States v. Pelletier, supra, 700 F.3d at
1117; United States v. Marrocco, 578 F.3d 627, 639–40 n. 21 (7th
Cir. 2009); United States v. Are, 590 F.3d 499, 507 (7th Cir.
2009). If ever a warrantless search and seizure were warrant-
ed, it was in this case. It would be a miscarriage of justice to
allow the defendants to go scot-free in so open and shut a
case of criminal drug trafficking as this case is.
                                                      AFFIRMED
Nos. 15-1740, 15-2637                                       11

     HAMILTON, Circuit Judge, concurring in part and concur-
ring in the judgments. I join the portion of the majority’s
opinion that jettisons the odd doctrine of “consent once re-
moved” to justify some warrantless entries and searches. I
also agree that we should affirm the defendants’ convictions,
though on a much narrower ground than my colleagues of-
fer.
    “Consent Once Removed”: To avoid seeking a warrant and
to justify the warrantless entry and search, the agents, the
prosecution, and the district court relied primarily on the
theory of consent once removed. Our precedents provided
some support for that theory, at least as a general matter, but
no prior case had stretched that doctrine as far as the agents
stretched it here, to enter and search the private space (the
garage) after the informant had left that space and was no
longer in a danger zone.
   By recognizing that the fictional notion of “consent once
removed” should be abandoned, the majority opinion im-
proves the Fourth Amendment law of this circuit. Most of
the cases using the doctrine to avoid suppressing evidence
should be understood as applications of inevitable discovery
or exigent circumstances, allowing the police to protect an
undercover agent or confidential informant who was in dan-
ger.
    Inevitable Discovery: I am convinced that we should affirm
the denial of defendants’ motions to suppress based on the
“inevitable discovery” exception to the exclusionary rule, at
least under our circuit’s precedents.
   The inevitable discovery exception does not apply merely
because the police had probable cause to search and could
12                                        Nos. 15-1740, 15-2637

have obtained a search warrant. To invoke the doctrine un-
der our circuit precedent, “the government must show (1)
‘that it had, or would have obtained, an independent, legal
justification for conducting a search that would have led to
the discovery of the evidence’; and (2) ‘that it would have
conducted a lawful search absent the challenged conduct.’”
United States v. Pelletier, 700 F.3d 1109, 1116 (7th Cir. 2012),
quoting United States v. Marrocco, 578 F.3d 627, 637–38 (7th
Cir. 2009); see generally Nix v. Williams, 467 U.S. 431, 442–44
(1984) (murder victim’s body inevitably would have been
discovered by search already under way when police ob-
tained information by violating suspect’s right to counsel).
   The first requirement was satisfied here. The agents had
probable cause when their informant left the defendants’
garage and signaled that he had seen the cocaine. The sec-
ond requirement presents a much closer question in my
view. These agents had no plans to seek a search warrant
and no interest in doing so. From the outset of the operation,
they planned to claim consent once removed to justify a war-
rantless entry after the informant gave the signal.
    To invoke the inevitable discovery exception, some other
circuits require the government to show it was actively pur-
suing other, lawful grounds for obtaining the evidence. See,
e.g., United States v. Cherry, 759 F.2d 1196, 1205–06 (5th Cir.
1985) (government would need to show it was actively pur-
suing a substantial, alternative line of investigation at time of
constitutional violation); United States v. Conner, 127 F.3d 663,
667 (8th Cir. 1997) (same); United States v. Virden, 488 F.3d
1317, 1323 (11th Cir. 2007) (same); United States v. Camou, 773
F.3d 932, 943 (9th Cir. 2014) (exception does not apply “to
excuse failure to obtain search warrant where police had
Nos. 15-1740, 15-2637                                      13

probable cause but simply did not attempt to obtain a war-
rant”); see generally The Exclusionary Rule, 44 Geo. L.J. Ann.
Rev. Crim. Proc. 249, 265 n.670 (2015).
    In United States v. Tejada, 524 F.3d 809, 812–13 (7th Cir.
2008), however, we explained why we have rejected the ac-
tive pursuit requirement. We have opted instead to allow the
government to invoke the inevitable discovery exception if it
can “prove that a warrant would certainly, and not merely
probably, have been issued had it been applied for.” Id. at
813. The government has satisfied that standard in this case.
After the informant saw the cocaine in the defendants’ gar-
age and signaled that information to the agents, any magis-
trate judge would have issued immediately a warrant to
search the garage. And as the majority points out, even if the
agents had waited to obtain a warrant, the defendants were
not going anywhere. The agents had ample authority to de-
tain them (i.e., to seize them) while they waited for the war-
rant. See Illinois v. McArthur, 531 U.S. 326 (2001).
    Other Grounds: I am not persuaded, however, by the other
grounds offered by my colleagues to affirm the denial of the
motion to suppress. The circumstances here were not exigent
in that there was no threat of danger to any person and no
indication that the evidence was in danger of being de-
stroyed. See Kentucky v. King, 563 U.S. 452, 459–62 (2011)
(summarizing exigent circumstances exception); Brigham
City v. Stuart, 547 U.S. 398, 403 (2006). At worst, if the de-
fendants had become nervous about the informant’s failure
to return as quickly as expected, they might have hidden the
cocaine again. I find it hard to believe, though, that capable
federal agents would not have found two kilograms of co-
caine in a space as small as a garage.
14                                       Nos. 15-1740, 15-2637

    The majority also excuses the agents’ failure to obtain a
search warrant as a “harmless error,” quoting at length from
United States v. Stefonek, 179 F.3d 1030, 1035–36 (7th Cir.
1999). The full scope of the Stefonek opinion is not entirely
clear, but I do not read it as providing a new distinct and in-
dependent ground for avoiding the exclusionary rule.
    Finally, the majority says the exclusionary rule should
not apply here because the agents were relying reasonably
on then-binding circuit precedent. See Davis v. United States,
564 U.S. 229 (2011); United States v. Gary, 790 F.3d 704, 705
(7th Cir. 2015). The warrantless search was not justified in
this case by our prior “consent once removed” cases. In fact,
the government did not try to make a Davis argument to ex-
cuse the warrantless search. In all of our prior cases using
the theory, at least one undercover officer or informant who
had been admitted to the premises was still present or at
least still in a danger zone. That was not true here. The Davis
exception for good faith reliance on controlling precedent
does not reach so far as to excuse mistaken efforts to extend
controlling precedents.
     For these reasons, I concur in the judgments.
