United States of America v. Mark A. Elder

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3106
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
M ARK A. E LDER ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04-CR-20049—Michael P. McCuskey, Chief Judge.
____________
A RGUED S EPTEMBER 12, 2006—D ECIDED N OVEMBER 1, 2006
____________
Before P OSNER , E ASTERBROOK , and SYKES , Circuit Judges.
E ASTERBROOK , Circuit Judge. The only question pre-
sented in this appeal is whether the district court
should have suppressed evidence found in a shed that Mark
Elder used to make methamphetamine. Like the district
court, we conclude that the search and seizure were not
unreasonable under the fourth amendment.
A 911 call led to the dispatch of two officers to a farm
in Humbolt, Illinois. A caller had told the dispatcher
“I think we got meth out here” and added that “suspicious”
people were “flying like quails.” The caller hung up, and
when the dispatcher called the originating number no one
answered. One obvious possibility was that the caller had

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2 No. 05-3106
been injured. Officers saw lights and heard a TV within the
farm house, but no one answered knocks on the front or
rear doors. The door of a nearby outbuilding was open.
(Whether it was open was disputed in the district court; the
judge found that it was open and did not commit clear error
in doing so.)
Looking through the doorway, the officers saw what
appeared to be a laboratory. They entered in search of the
caller and did not find him. But what they saw from outside
(and both saw and smelled from inside) provided evidence
against Elder, the property’s owner. The caller turned out
to have been Elder’s father, who had not been abducted or
injured—though the officers could not have known that
without checking, because even if (as Elder maintains) they
knew or should have known that the proprietors of the
meth lab were fleeing during the 911 call, the officers could
not have known whether they took a hostage (or a life) in
the process, or whether some third party was refusing to
acknowledge his or her presence, and what danger that
person posed (or was in).
The entry into the outbuilding was reasonable, and a
warrant was not essential to make it so. The officers acted
sensibly in attempting to assure the caller’s safety. The fact
that drug dealers often use guns and knives to protect their
operations created a possibility that violence had been done,
or that someone was still there and lying in wait. So
considerations of safety—the caller’s and the
officers’—made a look-see prudent. See Brigham City v.
Stuart, 126 S. Ct. 1943 (2006); Maryland v. Buie, 494 U.S.
325 (1990). Everything else followed from there, and the
evidence was admissible against Elder. His argument that
police cannot take steps to protect a caller’s safety unless
they know the caller’s identity and “reliability” would
require them to act un-reasonably. Many 911 calls are brief,
and anonymous, precisely because the speaker is at risk

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No. 05-3106 3
and must conceal the call. These persons are more rather
than less in need of assistance.
Because a warrant was not required, we need not express
any view on the district court’s conclusion that the
inevitable-discovery doctrine independently defeats the
motion to suppress the evidence. The usual understanding
of that doctrine is that the exclusionary rule should not be
applied when all the steps required to obtain a valid
warrant have been taken before the premature search
occurs. See Murray v. United States, 487 U.S. 533 (1988);
Nix v. Williams, 467 U.S. 431 (1984). If probable cause
alone—without putting in train the process of applying for a
warrant—were enough to invoke the inevitable-discovery
doctrine, that would have the same effect limiting the
exclusionary rule to searches conducted without probable
cause.
Perhaps that would be a good development; the main
requirement of the fourth amendment, after all, is that
the search be reasonable. See United States v. Edwards,
415 U.S. 800, 807 (1974). The exclusionary rule comes at
such high cost to the administration of the criminal jus-
tice system that its application might sensibly be con-
fined to violations of the reasonableness requirement.
Cf. Hudson v. Michigan, 126 S. Ct. 2159 (2006). When a
warrant is sure to issue (if sought), the exclusionary “rem-
edy” is not a remedy, for no legitimate privacy interest has
been invaded without good justification, but is instead a
substantial punishment of the general public. (Unlike an
award of damages, exclusion does not punish the wrong-
doer.) Allowing the criminal to go free because of an
administrative gaffe that does not affect substantial rights
seems excessive. But whether to trim the exclusionary rule
in this fashion is a decision for the Supreme Court rather
than a court of appeals.
A FFIRMED

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4 No. 05-3106
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-1-06

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