FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
BILLINGS, District Judge.
On July 24, 1987, this Court held a hearing on defendant's motion to suppress. Defendant moves to suppress all evidence discovered during a search and seizure of defendant's dwelling on June 9 and 10, 1987, prior to issuance of a search warrant. The government opposes the motion. For the reasons outlined below, the motion is DENIED.
FINDINGS OF FACT
On June 10, 1987, defendant Richard Snaith II was arrested by members of the Vermont Drug Task Force (DTF) and charged with conspiracy to distribute and possess with the intent to distribute cocaine.
On May 8, 1987, Detective Marcoux purchased two ounces of cocaine from a Reginald Spooner in Hartland, Vermont. At that time Spooner identified defendant Snaith's residence as his supplier's house. Subsequently, on June 9, 1987, Marcoux arranged with Spooner to buy another four ounces of cocaine. To enact the deal Marcoux and Spooner drove to Hartland, Vermont, arriving between 2:00 and 2:30 p.m. DTF agents commenced a surveillance of defendant and his residence, as well as of Detective Marcoux and Spooner. Defendant was not home when Marcoux and Spooner arrived, but eventually after a series of phone calls and finally a meeting between Spooner and Snaith, Spooner announced that he could only bring Marcoux a sample before payment. The remainder of the four ounces of the cocaine would be left in defendant's garage, where Spooner would exchange the money for the drugs. During the afternoon, the DTF agents on surveillance observed defendant enter and leave his residence several times, including once to meet Spooner.
After Spooner met with Snaith and the deal was set, Marcoux was forced to arrest Spooner, as he had no authorization to provide the required amount of money. Snaith returned to his residence after the meeting, but shortly left again. Spooner was unable to contact anyone at the time, nor was there any evidence that any interested person observed the arrest. Agent Sullivan, fearing that there might be other conspirators in the house who might destroy the cocaine if Spooner did not show up to consummate the deal, ordered his officers to secure defendant's residence and garage, although he knew that defendant had driven away a while earlier.
At approximately 6:30 p.m. on June 9, 1987, the DTF agents entered the house and garage to secure the property, satisfied themselves that no one was present, and then awaited the issuance of a search warrant. Meanwhile, Detective Brent Curtis, who had entered and secured the garage, began to examine his surroundings. He concluded that the drugs Spooner was to pick up were probably hidden in some loose insulation in the ceiling or some boxes to the left of the door, so he moved toward the right rear of the garage, resolved to avoid disturbing that possible evidence. His resolution failed, however. Out of "idle curiosity" he noticed a tire on a shelf covered with plastic. He reached inside the plastic to the middle of the tire, picked out a Tupperware container, and removed the lid. Inside, he discovered a red bandana which concealed a plastic bag filled with a white powder, later identified as cocaine. After viewing the contents of the bag, he replaced the items as he had found them and informed Sullivan what he had done. Shortly thereafter, Agent Sullivan contacted Assistant U.S. Attorney Robert O'Neil, with whom he had been discussing the progress of the case and the warrant requirements throughout the day, to commence obtaining a search warrant. Later in the day Snaith returned home and was arrested. Agents remained in the house until the following afternoon when the search warrant was finally issued and various evidence, including the Tupperware from the garage, was seized.
The Fourth Amendment to the U.S. Constitution protects the right of the people to be secure from "unreasonable searches and seizures" and provides that warrants shall be issued only upon probable cause and only when stated with particularity. Neither party disputes that federal agents entered and remained in defendant's residence for approximately twenty hours until a search warrant was obtained. They disagree on the characterization and consequences of this action. The government maintains that its agents engaged in no unreasonable search or seizure and therefore all the evidence found in the house and garage is admissible. Defendant asserts that the government acted unconstitutionally and as a result all the evidence uncovered during the security check and execution of the search warrant should be suppressed. The issue before the Court can be
A. Constitutionality of Securing the Property
In United States v. Segura, 663 F.2d 411 (2d Cir.1981), aff'd, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), the Second Circuit faced a similar situation.
The Second Circuit found that the warrantless entry into defendants' apartment was unjustified. Segura, 663 F.2d at 414. The Court found that the DETF could not have had a reasonable belief that anyone was in the apartment or that evidence might be destroyed if they did not secure the premises immediately after Segura's arrest. They had maintained surveillance on the apartment and seen no movement for several hours. Also, Segura had been unable to contact anyone, nor could any resident of the apartment have seen his arrest.
The situation here is even more clearly unjustified. The DTF agents had observed Snaith leave the premises and had not recently seen any sign of another person around. They had no reason to believe that any evidence would be destroyed. Spooner's arrest had occurred some distance from the residence, and it was unlikely any occupants could have learned of the arrest and then destroyed the evidence, especially as the cocaine itself was supposed to be in the open garage. Therefore, the DTF could not have had a reasonable belief that third persons were inside and would destroy evidence; without that reasonable belief their entry was unjustified. Id.; U.S. v. Agapito, 620 F.2d 324, 336 (2d Cir.), cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40 (1980). As the entry was unjustified, the security check was an unreasonable search within the Fourth Amendment and an unconstitutional act.
Determining that the DTF's entry into Snaith's residence and garage was unconstitutional is not the end of our inquiry. Next, we must turn to the question of whether the evidence obtained from the residence and garage should be excluded.
B. Suppression of the Evidence
The Segura case was appealed to the U.S. Supreme Court. In its opinion the Supreme Court determined that even if the government's original entry was unconstitutional, the evidence later obtained pursuant to the search warrant was not excludable because "[h]ad the police never entered the apartment, but instead conducted a perimeter stakeout to prevent anyone from entering the apartment and destroying evidence, the contraband now challenged would have been discovered and seized precisely as it was here." Segura v. U.S., 468 U.S. 796, 814, 104 S.Ct. 3380, 3390, 82 L.Ed.2d 599 (1984). The Court based its conclusion on the fact that the police had an independent source for discovery of this evidence. They had sufficient information before entering the apartment that the seized evidence was inside. In other words, they did not discover the evidence solely because of their illegal entry. The evidence found in executing the search warrant was therefore not "fruit" of the "poisonous tree", the illegal seizure, but of an independent source. Id.
The Tupperware container in the garage is a different matter. Detective Curtis did both seize and search this item before the warrant was issued. Only another exception to the exclusionary rule can save this evidence from exclusion. That exception is the inevitable discovery rule: "When, as here, the evidence in question would inevitably have been discovered without reference to the police error or misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible." Nix v. Williams, 467 U.S. 431, 448, 104 S.Ct. 2501, 2511, 81 L.Ed.2d 377 (1984).
In Nix v. Williams the Supreme Court adopted the inevitable discovery rule, although the case involves the Sixth Amendment right to counsel, rather than the Fourth Amendment. While a search was progressing for a murder victim's body, a police officer who was transporting the defendant, the suspected murderer, obtained from him a confession, including the location of the body, in violation of the defendant's right to counsel. The Court refused to suppress the evidence of the body, however, because the government showed that even without the coerced confession they would have found the body soon. The police officer's misconduct did nothing to taint the integrity of the evidence as it would have been obtained lawfully anyway. Id. at 446, 104 S.Ct. at 2510. Further, the Court reasoned, to suppress the evidence would not place the parties in the same position they would have been in had the misconduct not occurred; suppression would put the State in a worse position, as it would be without evidence it would have lawfully obtained without the misconduct. Id. at 447, 104 S.Ct. at 2510. Therefore, the Court concluded, evidence that would inevitably have been discovered absent police misconduct is admissible even if police misconduct does occur.
That same rationale applies here. Detective Curtis clearly stepped over the line of reasonable police behavior. As we have established already, the entry itself was unjustified. To further trample on defendant's constitutional rights by poking through his personal belongings out of "idle curiosity" is outrageous behavior for a trained law enforcement officer. Unfortunately, we cannot offer defendant any remedy for this violation. We are constrained by the Supreme Court's holding in Nix v. Williams: if evidence would inevitably have been discovered without reliance on the police misconduct, that evidence is admissible. Further, the Second Circuit's holding in United States v. Pimentel, 810 F.2d 366 (2d Cir.1987),
Although the government presented no explicit testimony of the actual extent of their search of the garage, we do not doubt