I didn’t say anything about “vacated” in that post. Whether a case was vacated is irrelevant to the point Scalia didn’t endorse, approve or adopt as the test the language you are obsessing over of: “W]e can be absolutely certain that the warrantless entry in no way contributed in the slightest either to the issuance of a warrant.... "This is as clear a case as can be imagined where the discovery of the contraband in plain view was totally irrelevant to the later securing of a warrant.”
Scalia never adopted or endorsed that language as the test! There’s no off ramp for your error here. None!
Scalia, however, said in regards to those remarks: “Although these statements can be read to provide emphatic support for the Government's position, it is the function of the District Court rather than the Court of Appeals to determine the facts, and we do not think the Court of Appeals' conclusions are supported by adequate findings.”
Hardly language approvingly adopting that language as the test!
The very language you are citing draws a rebuke by Scalia because it constituted as “fact finding” by the appellate court. He doesn’t adopt or endorse the very language you are obsessing over but instead characterizes that language as “fact finding” and rebukes the appellate court for it.
Again, you’ve erroneously misidentified what is the test. As a result, your error still doesn’t constitute as a rebuttal to my post I made two posts of mine ago.
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What are you even arguing here, ND?
Inevitable Discovery or Independent Source?
If you're making an Inevitable Discovery argument, then you might have a point on your interpretation of
Murray...but I've only been citing
Murray as part of an Independent Source argument, and if you view it in that context, the 1st Circuit's decision in
Moscatiello is completely in line with Scalia's opinion in
Murray. Let's try to stay focused here. They key issue here isn't whether the decision to seek the warrant was prompted by what was discovered during the illegal entry - that's Inevitable Discovery. Instead, the issue is "
if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant" - that's the Independent Source question on which the case in
Murray turned. That bolded and underlined quotation is the key to everything. Everything else is superfluous as it pertains to this debate.
My argument is that as far as the Independent Source question goes,
Moscatiello and
Murray are completely in line. Scalia himself says this (
Murray, 543):
"The District Court found that the agents did not reveal their warrantless entry to the Magistrate, App. to Pet. for Cert. 43a, and that they did not include in their application for a warrant any recitation of their observations in the warehouse, id. at 44a-45a."
That's the key to the whole
Murray decision. The agents didn't include any information about the warrantless entry in their warrant application. Because the Magistrate had no knowledge of the illegal entry, and therefore no knowledge of what they observed during the illegal entry, then the illegal entry couldn't have affected his decision to issue the warrant. That's exactly why the 1st Circuit was "absolutely certain that the warrantless entry in no way contributed in the slightest...to the issuance of a warrant". There's not a hair's breadth of difference between
Moscatiello and
Murray on that fact and that's the only fact that is relevant to the present case.
Because the agents included the information about the illegal search in their warrant application in
Huskission, and the fact that during the illegal search they found suspected drugs and field tested them positive, then the Magistrate's hands were tied. He really had no decision but to issue the warrant. Why? Because even if he didn't, the agents would still have had to re-enter the premises and seize the drugs. The second they discovered the illegal drugs, then they automatically became forfeit and the property of the United States. The Magistrate knew this. And so did the agents. That's why they tied his hands by doing the field test and putting all of this information into the warrant application.
And you're saying that didn't affect his decision to issue the warrant? Give me a break.
