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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 99-10360
v.
D.C. No.
FRANCIS JOSEPH REILLY, aka Ian
CR-98-00283-EHC
MacCormick, aka Steven James
OPINION
Conner,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, District Judge, Presiding

Argued and Submitted
June 15, 2000--San Francisco, California

Filed September 11, 2000

Before: Donald P. Lay,1 Dorothy W. Nelson and
Sidney R. Thomas, Circuit Judges.

Opinion by Judge Lay

held that the inevitable discovery doctrine exception to the
exclusionary rule does not apply when police officers fail to
exercise an actual opportunity to obtain a search warrant and
nothing outside that improper search supports the discovery of
the challenged evidence.

Appellant Francis Reilly was a suspect in numerous armed
bank robberies, and an armed carjacking. On a tip that Reilly
was staying in a motel with a woman named Doris Lange,
FBI agents set up surveillance on the motel. Through an open
window in one of the rooms, they saw a man matching Reil-
ly's description. When Lange exited the room, agents began
to question her; she was arrested. She broke away from the
agents and called out, "Run, Buddy!"

Hearing Lange's cry, an agent broke down the door of the
motel room, saw Reilly sitting on a couch and ordered him to
lay on the floor. Reilly complied and two more agents entered
the room, each of them pointing a loaded weapon at Reilly.
When Reilly began to move his hands toward his waistband,
an agent told him to reposition his arms. The agent asked him,
"Where is the gun?" Reilly told him and the gun was recov-
ered. Reilly had received no Miranda warnings.

Reilly was taken to a squad car, where agents asked him his
full name. He gave his first name, but before he gave his last
name he asked if he was allowed to see a lawyer. An agent
asked Reilly to roll up his sleeves to show his tattoos. In
response, Reilly admitted, "It's me. It's me. " He then gave his
full name and verbally consented to a search of his motel
room. The search commenced after Reilly had signed a writ-
ten consent form at the station. Police collected numerous
pieces of evidence in the search. Reilly was never given
Miranda warnings.

Before trial, Reilly moved to suppress the evidence seized
during the search, as well as the statements he made to police
during the course of his arrest. The district court denied the
motion. The court excused the officer's non-compliance with
the knock and announce requirement because of the exigent
circumstances; the court excused the failure to give Reilly
Miranda warnings under the public safety doctrine; and while
the court admitted that the officers should have stopped ques-
tioning Reilly when he asked for a lawyer, it found that the
evidence was admissible under the inevitable discovery doc-
trine.

Reilly was tried and convicted. He appealed.

[1] A federal statute provides that an officer may forcibly
enter a premises to execute a search warrant only after knock-
ing and announcing his or her authority and purpose. An offi-
cer's noncompliance with the knock and announce rule is
excused, however, if exigent circumstances exist.

[2] A no-knock entry is constitutionally permissible when
officers have a reasonable suspicion that knocking and
announcing their presence, under the circumstances, would be
dangerous or futile, or that it would inhibit the effective inves-
tigation of the crime.

[3] Reilly was wanted for numerous violent offenses that
involved the use of guns. The officers reasonably suspected
that dangerous weapons might be on the premises. Lange's
unexpected call could have tipped Reilly off to the officers'
presence and given him time to arm himself or to escape. Exi-
gent circumstances permitted the agents to forego the tradi-
tional knock and announce rule.

[4] An officer's questioning of a suspect before giving a
Miranda warning is acceptable if it relates to an objectively
reasonable need to protect the police or the public from imme-
diate danger associated with the weapon. [5] The public safety
exception was applicable here. The agent's question "Where
is the gun?" was not investigatory in nature and was suffi-
ciently limited in scope to allow the officers to quell the vola-
tile situation they faced. The danger and instability of the
situation excused the pre-Miranda questioning.

[6] Once an accused has requested an attorney, officers
must terminate all interrogation until counsel is made avail-
able, or the accused voluntarily reinitiates communication.
Continued questioning violates the accused's constitutional
rights, and any evidence secured as a result should be sup-
pressed. [7] The inevitable discovery doctrine permits the
admission of otherwise excluded evidence if the government
can prove that the evidence would have been obtained inevita-
bly and would have been admitted regardless of any over-
reaching by the police.

[8] The continued questioning of Reilly after he requested
counsel violated his constitutional rights. [9] The district court
committed clear error in applying the inevitable discovery
doctrine based on the agents' actual but unexercised opportu-
nity to secure a search warrant. [10] Nothing outside that
which occurred during the improper search supported the dis-
covery of the challenged evidence.

_________________________________________________________________

COUNSEL

Carmen L. Fischer, Phoenix, Arizona; Nancy L. Hinchcliffe,
Phoenix Arizona, for the defendant-appellant.

Linda C. Boone, Assistant United States Attorney, Appellate
Section, Phoenix, Arizona, for the plaintiff-appellee.

_________________________________________________________________

OPINION

LAY, Circuit Judge:

On April 8, 1999, a jury convicted Francis Joseph Reilly of
Armed Bank Robbery in violation of 18 U.S.C. SS 2113(a) &
(d) and Use of a Firearm During a Bank Robbery in violation
of 18 U.S.C. S 924(c)(1). On appeal, Reilly presents three
arguments: (1) federal officers failed to comply with the
knock and announce requirement under 18 U.S.C. S 3109; (2)
the failure to provide Reilly with a Miranda warning was not
excused by the public safety/officer safety exception, and his
statement along with the weapon seized should have been
suppressed; and (3) the inevitable discovery doctrine was
incorrectly applied, and the evidence seized as a result of the
improperly obtained consent to search should have been sup-
pressed. We affirm in part and reverse in part and remand for
a new trial.

I. Background

On May 8, 1998, FBI agents in Flagstaff, Arizona, received
a tip from federal agents in Pittsburgh, Pennsylvania, that
Reilly was staying with a woman named Doris Lange at the
New Earth Lodge in Sedona, Arizona. Reilly and Lange were
expected to meet up with another couple at the lodge. Reilly
was a suspect in twenty-seven bank robberies in twenty-three
cities in ten different states, including the April 9, 1998, rob-
bery of a Norwest Bank in Arizona. Officers also considered
him a strong suspect in the armed carjacking of a red Volk-
swagen Cabriolet in Chattanooga, Tennessee. Numerous pho-
tographs, as well as a teletype detailing Reilly's suspected
criminal activities, were faxed to the Arizona agents by an
agent in Pittsburgh, where Reilly had an outstanding federal
arrest warrant for armed bank robbery.

At approximately 5:00 p.m. on May 8, FBI Agents Kim
Kelly, Manuel Johnson, and Duncan Edwards set up surveil-
lance at the New Earth Lodge. The officers briefly interrupted
their surveillance of the units to speak with the desk clerk.
The clerk informed the agents that only three units were occu-
pied at the time. Unit 25 was checked out to one Ian MacCor-
mick, and Unit 23 was occupied by an Argentinian couple.
The third guest at the lodge was a long-term resident and was
soon eliminated as a suspect. The clerk did not recognize any
of the photos of Reilly presented by the agents. Agents also
spoke to the Argentinian couple, and they too could not iden-
tify Reilly from the pictures, although the officers noted that
the couple did not speak fluent English.

When they returned to Unit 25, a red Volkswagen Cabriolet
with an identical vehicle identification number to one previ-
ously reported stolen was parked outside. The agents resumed
surveillance outside an open window of the unit. The agents
could not see through every window in Unit 25; through an
open window, however, the agents observed a man reading
and they heard a female voice. The agents could not posi-
tively identify the man in Unit 25 as Reilly, but the height,
weight, facial shape and appearance of the man was similar
to that of Reilly.

A woman later identified as Doris Lange eventually
emerged from Unit 25, and Agent Kelly immediately began
questioning her. She claimed ownership of the Cabriolet and
was thereafter arrested. While being led to a police car by
Agent Edwards, however, Lange broke away and yelled,
"Run, Buddy!"2 Lange was apprehended by a Sedona police-
woman shortly thereafter. Agent Kelly later testified that, at
that time, he had no idea who "Buddy" was. He also testified
that anyone in the unit could easily have heard Lange's cries,
as "[i]t was very quiet around that residence." Agent Edwards
similarly testified.

Upon hearing Lange's cry, Agent Kelly quickly approached
the front door of Unit 25 and kicked it in. He observed Reilly
sitting on the couch and ordered him to lay face-down on the
floor, which Reilly did. Agent Edwards and Agent Manuel
Johnson followed inside the unit, along with two United
States Marshals. Agent Johnson ordered Reilly to spread his
arms out on the ground, and Reilly complied with the instruc-
tion. Agent Kelly was armed with a shotgun, Agent Johnson
had a handgun, and Agent Edwards held a submachine gun.
All three had their weapons pointed at Reilly. The agents still
could not account for the couple Reilly and Lange were sup-
posed to meet at the lodge.

As Agent Johnson approached Reilly to handcuff him,
Reilly began to bring his arms to his front waistband, and the
agents told him to reposition his arms, which he did. Agent
Edwards later testified that his experience as a federal agent
taught him that the front waistband is a place people keep
weapons. Agent Johnson then asked Reilly, "Where is the
gun?" to which Reilly responded that it was in a black bag in
the bedroom. At this point, Reilly had received no Miranda
warning. Agent Kelly and a Sedona police officer immedi-
ately entered the bedroom, where the officer located a black
leather briefcase in which there was a large amount of money,
but no gun. Agent Kelly eventually found the gun in a black
bag on the night stand. The search was then temporarily sus-
pended.

Officers escorted Reilly to a waiting squad car, where
Agent Edwards asked him his name. Reilly gave his first
name as "Buddy," but before giving his last name, he asked
either "Well, aren't I allowed to see a lawyer? " or "You will
have to ask my lawyer." Later, Agent Edwards approached
the patrol car with an FBI flyer that described tattoos on the
suspect's arms. When Agent Edwards requested Reilly roll up
his sleeve, Reilly admitted, "It's me. It's me. " He then stated
his true name as being Francis Joseph Reilly. Agent Edwards
thereafter asked for and Reilly gave verbal consent to search
Unit 25; however, the search did not commence until Reilly
signed a written consent form at the station. During the
search, officers collected numerous pieces of evidence.3
Reilly was never Mirandized.
Prior to trial, Reilly moved to suppress the physical evi-
dence seized during the search, as well as statements made by
him during the course of the arrest. The district court denied
the motion. The court excused the officers' noncompliance
with the knock and announce requirement, explaining that it
was reasonable for the police to suspect that compliance was
dangerous under the circumstances. As for the failure to give
a Miranda warning before inquiring into the location of the
gun, the district court found that nothing in the record sug-
gests that the agents were attempting to gain evidence or elicit
an admission. Rather, the court felt the agents were simply
concerned with their own safety, and the failure to provide
Reilly with a Miranda warning was, therefore, excusable
under the public safety doctrine. Finally, the district court
admitted that the officers' questioning probably should have
terminated after Reilly asked for an attorney. The court none-
theless admitted the evidence under the inevitable discovery
doctrine, reasoning that the agents would have secured a
search warrant had Reilly refused consent. Reilly was tried
and convicted one and a half months later.

II. Discussion

A. Knock and Announce

[1] 18 U.S.C. S 3109 provides that an officer may forcibly
enter a premises to execute a search warrant only after knock-
ing and announcing his or her authority and purpose. Section
3109 codifies the knock and announce requirement necessi-
tated by the Fourth Amendment. See Wilson v. Arkansas, 514
U.S. 927, 929 (1995). An officer's noncompliance with the
knock and announce rule is excused, however, if exigent cir-
cumstances exist. See United States v. Hudson , 100 F.3d
1409, 1417 (9th Cir. 1996). The determination of exigent cir-
cumstances is a mixed question of law and fact that we review
de novo. See id.

[2] Exigent circumstances are "circumstances that would
cause a reasonable person to believe that entry was necessary
to prevent physical harm to the officers or other persons, the
destruction of relevant evidence, the escape of the suspect, or
some other consequence improperly frustrating legitimate law
enforcement efforts." Id. (quotation omitted). Thus, a "no-
knock" entry is constitutionally permissible when officers
"have a reasonable suspicion that knocking and announcing
their presence, under the particular circumstances, would be
dangerous or futile, or that it would inhibit the effective inves-
tigation of the crime . . . ." Richards v. Wisconsin, 520 U.S.
385, 394 (1997). See also United States v. Ramirez, 523 U.S.
65, 71 (1998). The requisite exigency must consist of more
than a generalized and nonspecific fear. See United States v.
Perez, 67 F.3d 1371, 1383 (9th Cir. 1995), rev'd in part on
other grounds, 116 F.3d 840 (1997) (en banc).

Reilly argues that exigent circumstances were not present
because the agents acted on nothing more than a generalized
fear. We disagree. In Perez, this court upheld officers' failure
to knock and announce before entering the residence of a sus-
pected drug dealer, stating that it was reasonable for the offi-
cers to believe themselves in a dangerous situation given the
suspect's violent criminal history and the likelihood that he
was armed. See id. at 1384. This court further explained that
it was likely the suspect heard a noisy scuffle occurring out-
side the residence between officers and a houseguest, and this
could have alerted him to the officers' presence and allowed
him to dispose of evidence or arm himself. See id. Hence, the
officers acted reasonably in foregoing the knock and
announce requirement.

[3] Similarly, Agents Kelly and Edwards were informed by
agents in Pittsburgh that Reilly was wanted for numerous vio-
lent offenses, all of which involved the use of guns. The offi-
cers reasonably suspected that dangerous weapons might be
on the premises. Furthermore, Lange's unexpected and vocal
reaction to being taken into custody could have tipped Reilly
off to the agents' presence and given him adequate time to
arm himself or attempt to escape. Thus, we hold exigent cir-
cumstances permitted the agents to forego the traditional
knock and announce rule.

The fact that the officers did not have specific information
that Reilly indeed had firearms or other weapons in his pos-
session is not determinative. This court in United States v.
Turner, 926 F.2d 883, 887 (9th Cir. 1991), excused an
instance of noncompliance with the knock and announce rule,
noting that "[the officers] may not have had specific informa-
tion that [the defendant] currently had weapons, but the facts
they did have made this highly likely." This is equally appli-
cable to the case at bar.

Moreover, we reject Reilly's contention that excusing the
agents' failure to knock and announce creates a blanket
exception in all cases where the pursued individual is sus-
pected of a crime involving a weapon. The Supreme Court
expressly forbade such all-encompassing exceptions to the
knock and announce requirement in Richards, 520 U.S. at
394, where it rejected the contention that police officers never
need to knock and announce before executing a search war-
rant in a felony drug investigation. The Court explained that
the Fourth Amendment does not permit a blanket exception
for an entire category of criminal activity. We do not dispute
the validity of this principle; however, we find it does not
apply here, as our holding is based on more than a simple
consideration of the modus operandi of Reilly's alleged
crimes. Reilly's propensity for violence and Lange's outburst
are also relevant factors in our analysis. We have reviewed
the specific circumstances surrounding the forcible entry into
Unit 25, and we hold that the whole of the evidence supports
the decision not to knock and announce.

B. Public Safety Exception

Upon entering the unit, the FBI agents, accompanied by
police officers, placed Reilly under arrest and ordered him
from his seat on the couch to the floor. Reilly was surrounded
by the officers, at least three of whom had their loaded weap-
ons trained on him, but he was not yet handcuffed and his
arms were spread out to each side. Reilly, while in this posi-
tion face-down on the floor, began to bring his hands down
to his front waistband. The agents saw this movement and
were uncomfortable with it, as weapons are frequently con-
cealed in the waistband. The agents had no idea whether
Reilly was armed, but they were well aware of Reilly's use of
weapons in past bank robberies. After ordering Reilly to repo-
sition his hands, Agent Johnson asked Reilly "Where is the
gun?" Reilly disclosed that the gun was in the bedroom in a
black bag. The gun was thereafter recovered and placed into
evidence.

[4] Reilly moved to suppress the evidence of the gun
because Agent Johnson failed to give Reilly a Miranda warn-
ing before inquiring as to its whereabouts. The district court
rejected the motion based on the public safety exception as
articulated in New York v. Quarles, 467 U.S. 649 (1984).
Under Quarles, an officer's questioning of a suspect before
giving a Miranda warning is acceptable if it "relate[s] to an
objectively reasonable need to protect the police or the public
from any immediate danger associated with the weapon."
Quarles, 467 U.S. at 659 n.8. The officer's subjective motiva-
tion in posing the question is not part of the analysis. See
United States v. Brady, 819 F.2d 884, 888 n.3 (9th Cir. 1987).

The application of the public safety exception is a mixed
question of law and fact subject to de novo review. See id. at
886.

In United States v. Carrillo, 16 F.3d 1046 (9th Cir. 1994),
this court found no error when, before giving a Miranda
warning, an officer asked a suspect prior to frisking him
whether he had any drugs or needles on his person. This court
explained that the exception was properly applied because
there existed an objectively reasonable need for the officer to
protect himself from potential bodily harm. See id. at 1049.
Likewise, in Brady, this court applied the public safety excep-
tion to an officer's inquiry regarding the presence of a gun in
the suspect's car. The officer and suspect were in a rough
neighborhood at dusk, a crowd was gathering around them,
and the suspect's car stood with its door open and the keys in
the ignition. This court found that the officer's question, in
light of the circumstances, was not designed to elicit testimo-
nial evidence but rather was asked only to "neutralize this
danger." Brady, 819 F.2d at 888.

[5] Although Carrillo and Brady are factually distinguish-
able from the present situation, the circumstances of this case
show that the public safety exception is nonetheless applica-
ble. Agent Johnson's question "Where is the gun? " was not
investigatory in nature and was sufficiently limited in scope
to allow the officers to quell the volatile situation they faced.
Admittedly, the factual circumstances faced by the agents
were of a different character than those presented in Brady
and Carrillo; however, the danger and instability of the situa-
tion were just as valid, thereby excusing the pre-Miranda
questioning.

Agent Johnson's inquiry bears no indication of an attempt
to elicit testimonial evidence. In asking "Where is the gun?"
Agent Johnson sought only to protect himself and his fellow
officers. At the time of questioning, Unit 25 had not been
secured. The couch on which Reilly was seated had not been
searched, and a gun could have been hidden nearby. More-
over, Reilly was surrounded by officers with loaded weapons
pointed at him, he was not yet handcuffed and still had the
capacity to reach and grab any nearby objects. Factors such
as these are relevant when deciding whether to apply the pub-
lic safety doctrine. See United States v. Creech , 52 F. Supp.
2d 1221 (D. Kan. 1998), aff'd, No. 99-3205, 2000 WL
1014868 (10th Cir. July 24, 2000); United States v. Colon
Osorio, 877 F. Supp. 771, 776 (D.P.R. 1994). Further, Agent
Johnson asked the question only after Reilly started to bring
his hands to his waistband, a place where weapons are fre-
quently concealed. The officers had no idea whether Reilly
was armed or not, and this suspicious move reasonably caused
Agent Johnson to fear that Reilly might be reaching for a
weapon.

Agent Johnson did not ask his question in an attempt to link
Reilly to the bank robberies. His inquiry was narrow, asking
only a single question directed at determining the presence of
the gun. As was noted earlier, Reilly was a suspect in several
armed robberies and a violent armed carjacking. However, the
relationship between the alleged criminal activity and the sub-
ject matter of the inquiry does not necessitate a finding that
Johnson's question was investigatory and, thus, barred. See
Carrillo, 16 F.3d at 1049 (upholding officer's questioning of
suspected drug dealer regarding whether he had any drugs on
his person); United States v. Shea, 150 F.3d 44, 48 (1st Cir.
1998) (upholding questioning of suspected armed bank rob-
bery co-conspirator regarding whether he had any weapons);
Fleming v. Collins, 954 F.2d 1109, 1111, 1114 (5th Cir. 1992)
(en banc) (upholding questioning of suspected armed bank
robber regarding whether he had any weapons); United States
v. Edwards, 885 F.2d 377, 384 (7th Cir. 1989) (upholding
questioning of suspected drug dealer regarding existence of
weapons because "drug dealers are known to arm them-
selves"). While it is true that, unlike the situation in Carrillo,
the question posed to Reilly called for more than a simple
"yes" or "no" answer, Agent Johnson asked only the bare
minimum necessary to locate and contain a potential threat.
His question was not a subterfuge for collecting evidence, and
it was not investigatory.

Our decision is not altered by the fact that at least three
officers had their weapons drawn at the time of questioning.
The officer in Brady drew his gun before posing his question,
as did the officer in Fleming. It is a difficult exercise at best
to predict a criminal suspect's next move, and it is both naive
and dangerous to assume that a suspect will not act out des-
perately despite the fact that he faces the barrel of a gun. The
officers' actions must be analyzed according to demands of
the moment rather than hindsight analysis. To refuse to apply
the public safety exception simply because an officer wields
his weapon defensively is to both overestimate the compli-
ance of some suspects and deny the doctrine its full and
intended application.

"The Quarles exception rests on the ease with which police
officers can and will distinguish almost instinctively between
questions necessary to secure their own safety or the safety of
the public and questions designed solely to elicit testimonial
evidence from a suspect." Brady, 819 F.2d at 887-88 (quota-
tion omitted). Given the circumstances of this case, the ques-
tion "Where is the gun?" falls more cleanly into the former
category of questions. There was an objectively reasonable
need on the part of the officers to protect themselves given the
volatility of the situation with which they were faced. Thus,
the testimonial and physical evidence gained as a result of
Reilly's response should not be suppressed.

C. Inevitable Discovery

[6] Once an accused in custody has requested the assistance
of an attorney, officers must terminate all interrogation until
counsel is made available or the accused voluntarily reiniti-
ates communication. See Minnick v. Mississippi , 498 U.S.
146, 153 (1990); Edwards v. Arizona, 451 U.S. 477, 484-85
(1981). Continued questioning after the accused has requested
counsel violates the accused's constitutional rights, and any
evidence secured as a result of the unlawful questioning
should be suppressed as the fruit of the illegal activity, other-
wise known as the "fruit of the poisonous tree. " Wong Sun v.
United States, 371 U.S. 471, 484-85, 488 (1963). See also Nix
v. Williams, 467 U.S. 431, 441 -42 (1984); United States v.
Ramirez-Sandoval, 872 F.2d 1392, 1395 (9th Cir. 1989).

[7] The inevitable discovery doctrine acts as an exception
to the exclusionary rule, however, and permits the admission
of otherwise excluded evidence "if the government can prove
that the evidence would have been obtained inevitably and,
therefore, would have been admitted regardless of any over-
reaching by the police . . . ." Nix, 467 U.S. at 447. The gov-
ernment must make this showing by a preponderance of the
evidence. See id. at 444. We review the district court's appli-
cation of the inevitable discovery doctrine for clear error
because, although it is a mixed question of law and fact, it is
essentially a factual inquiry. See United States v. Lang, 149
F.3d 1044, 1047 (9th Cir. 1998).

[8] In its rejection of Reilly's motion to suppress, the dis-
trict court rightfully admitted that it "really[did] not under-
stand how it was then that an officer could believe that he
could ask [Reilly] for an oral [consent to ] search" after Reilly
had arguably requested the presence of an attorney. Nonethe-
less, the district court admitted the evidence collected pursu-
ant to Reilly's consent to search, stating:

       I think that it is clear here that the FBI, following
       routine procedures, if he had declined the oral con-
       sent, or the written consent, would have gone and
       gotten a search warrant. The facility was such that it
       could have been secured, individuals kept out, and
       that whatever was there would have been discovered.

We agree that the continued questioning of Reilly after he
requested counsel violated Reilly's constitutional rights. We
refuse to apply the inevitable discovery doctrine, however, to
excuse the officers' misconduct.

It is true that the government can meet its burden by show-
ing that the evidence would have been uncovered by officers
in carrying out routine procedures. See Ramirez-Sandoval,
872 F.2d at 1399. For example, in United States v. Martinez-
Gallegos, 807 F.2d 868 (9th Cir. 1987) (per curiam), the
defendant was incarcerated following a traffic violation after
he failed to produce proof of insurance, registration or identi-
fication of any kind. When asked if he was a United States
citizen, the defendant responded that he was not. INS agents
were notified, and without giving the defendant a Miranda
warning, the agents asked him for his name and background
information, which he gave them. The agents then consulted
his "A" file and determined that the defendant had been
deported two times. The defendant sought to suppress the
contents of his "A" file as the illegal fruit of his statements to
the agents. The court denied the motion on the basis that, had
the defendant refused to answer their questions, the next and
only step available to the agents was to consult the "A" file.
See id. at 870. Thus, the evidence contained within would
have been inevitably discovered. Similarly, in United States
v. Andrade, 784 F.2d 1431 (9th Cir. 1986), this court excused
the illegal search of the defendant's garment bag because the
defendant's processing at the DEA's holding facility was
inevitable, and as a matter of routine procedure, all his
belongings, including the garment bag, would have been
searched. Thus, the discovery of the drugs in the bag was
inevitable.

[9] This reasoning does not extend, however, to the federal
agents' unexplained failure to secure a search warrant. As this
court noted in United States v. Echegoyen, 799 F.2d 1271,
1280 n.7 (9th Cir. 1986), "to excuse the failure to obtain a
warrant merely because the officers had probable cause and
could have inevitably obtained a warrant would completely
obviate the warrant requirement of the fourth amendment."
This contention has been echoed with approval in United
States v. Boatwright, 822 F.2d 862 (9th Cir. 1987), and
United States v. Mejia, 69 F.3d 309 (9th Cir. 1995). As this
court explained in Mejia, it "has never applied the inevitable
discovery exception so as to excuse the failure to obtain a
search warrant where the police had probable cause but sim-
ply did not attempt to obtain a warrant." 69 F.3d at 320.
Hence, the district court committed clear error in applying the
inevitable discovery doctrine based on the agents' actual but
unexercised opportunity to secure a search warrant.

[10] The inevitable discovery doctrine applies only when
the fact that makes discovery inevitable is born of circum-
stances other than those brought to light by the illegal search
itself. See Boatwright, 822 F.2d at 864-65. In the case at bar,
nothing outside that which occurred during the improper
search supports the discovery of the challenged evidence.
Thus, we reverse the district court's application of the doc-
trine to these facts.

III. Conclusion

Because sufficiently exigent circumstances existed to
excuse the officers' failure to knock and announce, we affirm
the district court on this issue. Similarly, because we find the
officers had an objectively reasonable suspicion that their
safety was threatened, we affirm the district court's applica-
tion of the public safety exception and the admissibility of
Reilly's statement and his weapon into evidence. We find
clear error, however, in the district court's application of the
inevitable discovery doctrine to the agents' failure to secure
a search warrant; thus, we reverse on this issue and remand
to the district court for a new trial consistent with this opinion.

Judgment REVERSED and REMANDED for a new trial.
_______________________________________________________________

FOOTNOTES

1 The Honorable Donald P. Lay, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
2 The record is unclear a to whether Lange exclaimed "Run, Buddy!",
"Run, Buddy, Run!", or "Buddy, Run!"3 Reilly's brief lists all the physical evidence collected against him as a
result of the allegedly illegal search. It includes: a wallet and the personalitems inside it; a British Columbia drivers license in the name of Ian
McCormick; a business card from Armored Mini Storage; a Canadian
government card in the name of Ian MacCormick with a photograph;
employee identification in the name of Ian MacCormick with a photo-
graph; $680; a .380 semi-automatic pistol; a black money bag similar to
a blue bag used in a previous bank robbery; shirt ties; a photograph of the
interior of the closet in Unit 25 depicting white short sleeved men's dress
shirts; a manila envelope containing 200 one dollar bills in $25 bundles;
two receipts for cash rent payments at the lodge; the black briefcase found
in the closet; and a lease agreement dated 4/8/98 in the name of Ian Mac-
Cormick.