In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3106

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARK A. ELDER,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 04-CR-20049—Michael P. McCuskey, Chief Judge.

____________

ARGUED SEPTEMBER 12, 2006—DECIDED NOVEMBER 1, 2006

____________

Before POSNER,EASTERBROOK, and SYKES, Circuit Judges.

EASTERBROOK, Circuit Judge. The only question presented 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
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
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 justice system that its application might sensibly be confined 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 “remedy” 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 wrongdoer.) 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.

AFFIRMED
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