Once the police have probable cause to search a defendant's bag, if they fail to obtain a warrant, does the inevitable discovery doctrine defeat a motion to suppress the contraband found therein when the police claim that had they sought a search warrant, it would have been granted and the contaband would have been discovered in the subsequent search?

In U.S. v. Allen, ___F.3d___ (97-4100, 4th Cir. September 28, 1998), the Fourth Circuit Court of Appeals reminded us that the answer is "No." The existence of probable cause for a warrant, in and of itself, and without any evidence that the police would have acted to obtain a warrant, does not trigger the inevitable discovery doctrine, any more than probable cause, in and of itself, renders a warrantless search valid. Citing numerous cases from other circuits, the Court reiterated that the before the inevitable discovery doctrine will apply, the government must present evidence: 1. that the police had probable cause to obtain a warrant prior to the search but failed to do so, and 2. that the police would have obtained the necessary warrant absent the illegal search.

If the plea agreement of a cooperating defendant provides that, pursuant to 1B1.8, information obtained from the defendant may not be used by the Court in determining the defendant's applicable guideline range, may the defendant speak freely with the U.S. Probation Officer about his relevant offense conduct? The answer is yes and no.

In U.S. v. Washington, ___F.3d___ (97-4235, 4th Cir. June 1, 1998), the defendant entered into a plea agreement which provided that information provided by the defendant could not be used by the Court in determining the defendant's applicable guideline range. After entering into the agreement, the defendant made statements to the probation officer indicating that the defendant's involvement in the conspiracy was more wide ranging than the government had believed. At sentencing, the defendant moved for a reduction in his offense level on the grounds that he was a minimal or minor participant. The district court denied the motion because of statements made by the defendant to the probation officer. In reversing, the Fourth Circuit reiterated its belief that a cooperating defendant must be confident that he will not be punished for his truthfulness.

Beware though. Even the Fourth Circuit's concern will not prevent the use of such information to deny a cooperating defendant's 5K1.1 motion for a downward departure. The Court's opinion in U.S. v. Maluto, 946 F.2d 1066 (4th Cir. 1991) was trumped by a 1992 amendment to 1B1.8. See 1B1.8(b)(5).

The Criminal Defense Bar learned some time ago that the Federal Sentencing Guidelines can be a cold and rigid place frought with danger. Amongst the most frightening beasts that roam this land is the one known as "Relevant Conduct," which often has little to do with the "offense conduct" for which the defendant is being sentenced.

We learned some time ago that pleading to a single count does little to save the defendant from the clutches of Relevant Conduct, and we later saw how even acquittal on a substantive count could do nothing to slay the beast.