In the

United States Court of Appeals
               For the Seventh Circuit

No. 07-3101

U NITED S TATES OF A MERICA,
                                                  Plaintiff-Appellant,
                                  v.

N ICHOLAS P. M ARROCCO AND V INCENT J. F ALLON,

                                                              Appellees,
                                 and


F UNDS IN THE A MOUNT OF O NE H UNDRED
T HOUSAND O NE H UNDRED AND T WENTY
D OLLARS ($100,120.00),
                                                             Defendant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 1:03-cv-03644—Elaine E. Bucklo, Judge.



    A RGUED N OVEMBER 5, 2008—D ECIDED A UGUST 24, 2009




  Before E ASTERBROOK, Chief Judge, and R IPPLE and
R OVNER, Circuit Judges.
2                                              No. 07-3101

  R IPPLE, Circuit Judge. After discovering that Vincent
Fallon had purchased a one-way train ticket in cash a
short time before his trip, Amtrak police officer Eric
Romano concluded that Mr. Fallon fit the profile of a
typical drug courier. Shortly before Mr. Fallon’s train was
scheduled to depart, Officer Romano and Officer Sterling
Terry approached Mr. Fallon in his compartment, where
they asked him several questions. After Mr. Fallon ad-
mitted that he was carrying $50,000 in a locked briefcase,
the officers seized the briefcase, which was found to
contain $100,120.00 in cash (the “funds”). The Govern-
ment subsequently instituted a forfeiture proceeding
under 21 U.S.C. § 881(a)(6). During that proceeding,
Mr. Fallon and Nicholas Marrocco (collectively the “claim-
ants”) filed a motion to suppress the evidence of a dog-
sniff test that had indicated that the funds carried the
odor of drugs. The district court granted the motion. It
later determined that Mr. Marrocco was the lawful
owner of the funds and ordered the funds returned to
him. The Government subsequently filed this appeal. For
the reasons set forth in this opinion, we reverse the deci-
sion of the district court and remand this case for further
proceedings.


                             I
                    BACKGROUND
                            A.
  On December 6, 2002, Officer Romano performed a
search of Amtrak’s reservation computer to determine
whether any of the passengers scheduled to depart Chi-
No. 07-3101                                                 3

cago’s Union Station on that date had purchased their
tickets under suspicious circumstances. He discovered
that Mr. Fallon had paid $310.80 in cash for a one-way
ticket to Seattle less than 72 hours before his train’s sched-
uled departure. Officer Romano concluded that the
details of Mr. Fallon’s purchase fit a drug-courier profile.
Mr. Fallon arrived at the platform twenty minutes before
the train’s scheduled departure time. Upon learning of
Mr. Fallon’s arrival, Officer Romano and Officer Terry
approached Mr. Fallon’s compartment, identified them-
selves and showed Mr. Fallon their badges. At the offi-
cers’ request, Mr. Fallon gave the officers his identification
and ticket. He told them that he was traveling to Seattle to
visit a girlfriend. The officers asked Mr. Fallon whether he
was carrying any drugs, weapons or large sums of money.
They noticed that Mr. Fallon was sweating when he replied
that he was not carrying any of those items. When the
officers inquired about the backpack and briefcase in Mr.
Fallon’s compartment, Mr. Fallon stated that the bags were
his, that he had packed them himself and that no one had
given him anything to carry. Mr. Fallon allowed the
officers to search the backpack; they found nothing incrimi-
nating. Mr. Fallon denied the officers’ request to search the
briefcase. Officer Romano then took the briefcase from the
compartment and asked Mr. Fallon if he had a key to
the briefcase. Mr. Fallon said he did not, and he ex-
plained that he had used a knife to open it. He then told
Officer Romano that the briefcase contained $50,000.
  The officers then asked Mr. Romano to accompany them
to the Amtrak police office, and Mr. Fallon complied.
Officer Romano used a pocket knife to open the briefcase
4                                              No. 07-3101

and discovered that it contained bundles of money. He
then quickly shut the briefcase. Officer Terry then called
a police dispatcher and requested that a police dog (the
“canine unit”) be brought to the office to conduct a
sniff search of the briefcase. Later, the canine unit
arrived at the office and alerted to the briefcase,
indicating that it contained drugs or money con-
taminated with drugs. The currency was removed from
the briefcase, sealed into evidence bags and sent to a bank
to be counted. The bank determined that the funds
amounted to $100,120.00.


                            B.
  The officers retained the briefcase and the funds; the
Government subsequently filed a complaint, alleging
that the funds were subject to forfeiture under the Con-
trolled Substances Act. 21 U.S.C. § 881(a)(6). During the
events that followed, Mr. Fallon indicated that the brief-
case and its contents belonged to Mr. Marrocco; the
claimants asserted that Mr. Marrocco had given the
briefcase and the funds to Mr. Fallon and had instructed
him to place the funds in a safe deposit box for
Mr. Marrocco’s later use.
  The claimants moved to suppress the seizure of the
funds. The district court granted the motion on March 21,
2005 (the “March 2005 ruling”) and simultaneously set a
No. 07-3101                                                 5

status hearing for April 1, 2005.1 It concluded that, al-
though reasonable suspicion justified the temporary
detention of the briefcase, Officer Romano’s physical
search of the briefcase was improper. The Government
moved for reconsideration, arguing, among other things,
that the suppression of the contents of the briefcase was
improper under either the inevitable discovery doctrine
or the independent source doctrine. On September 21,
2006, the district court denied the Government’s motion
for reconsideration (the “September 2006 ruling”), but
did not determine ownership of the briefcase.2
  On April 24, 2007, the claimants filed a motion to deter-
mine ownership of the funds. The district court held that
the evidence that the dog alerted to the briefcase was
not admissible against either of the claimants and con-
cluded that, absent the evidence of the dog alert, the
Government had failed to demonstrate a substantial
connection between the seized funds and illegal narcotics
activity. The court concluded—based on Mr. Marrocco’s
deposition testimony, his answers to interrogatories and
the presumption that the possessor of property that is
seized is entitled to its return—that Mr. Marrocco was
the lawful owner of the funds. Accordingly, on July 5, 2007,
the court ordered the funds returned to Mr. Marrocco.



1
 At this time, the court did not enter judgment pursuant to
Rule 58 of the Federal Rules of Civil Procedure (“Rule 58”).
2
   Again, the court did not enter a Rule 58 judgment. However,
it did state that any pending motions were “terminated as
moot,” and it declared the case “terminated.” R.86.
6                                                     No. 07-3101

The Government filed this appeal within sixty days of
that ruling.


                                II
                         DISCUSSION
  The Government challenges the district court’s order
requiring the funds to be returned to Mr. Marrocco.3



3
  The district court had jurisdiction over the civil forfeiture
action under 28 U.S.C. § 1355, which provides that “[t]he
district courts shall have original jurisdiction . . . of any action
or proceeding for the recovery or enforcement of any . . .
forfeiture . . . .”
   The parties dispute whether this court has jurisdiction over
the present appeal. Mr. Marrocco argues that the district
court’s ruling on the motion to suppress became final on
August 22, 2005, 150 days after the March 2005 ruling. See Fed.
R. Civ. P. 58(c) (indicating that judgment in a civil proceeding
is deemed entered either when the judgment is set out in a
separate document or 150 days after the judgment is entered
in the civil docket). He submits that the September 2006 ruling
on the Government’s motion for reconsideration merged with
the court’s March 2005 ruling and became a single, final,
appealable order. Mr. Marrocco submits that, because the
Government did not appeal within sixty days of that final order,
the Government’s appeal is untimely. See Fed. R. App. P.
4(a)(1)(B) (“When the United States or its officer or agency is
a party, the notice of appeal may be filed by any party within
60 days after the judgment or order appealed from is entered.”).
                                                   (continued...)
No. 07-3101                                                         7




3
  (...continued)
  We do not believe that the March 2005 ruling and the Septem-
ber 2006 ruling constituted final, appealable judgments. In
neither of those rulings did the court set out the relief to
which the parties were entitled; thus, even though the court
stated that the case was “terminated” in September 2006, there
was no effectual judgment entered at that time. See Horn v.
Transcon Lines, Inc., 

, 591 (7th Cir. 1990) (“A docu-
ment saying that judgment is entered, but not saying who is
entitled to what from whom, is ineffectual.”); see also Reytblatt v.
Denton, 

, 1044 (7th Cir. 1987) (“[The final judgment
in a case] must set forth the relief to which the prevailing party
is entitled or the fact that the plaintiff has been denied all
relief.”). Indeed, despite the district court’s statements, it
appears that the district court contemplated further pro-
ceedings would take place. At the time the court granted the
claimants’ motion to suppress the funds, it simultaneously set
a status hearing for April 1, 2005. Furthermore, it recognized
on July 5, 2007, that the claimants’ motion to determine owner-
ship of the funds was a proceeding in the “forfeiture action
brought by the government.” R.109 at 1. The March 2005 ruling
and the September 2006 ruling properly are viewed as interme-
diate evidentiary rulings in a larger ongoing case; such rulings
are not final judgments. See In re the Search of 949 Erie St., Racine,
Wisc., 

, 540 (7th Cir. 1987) (noting that an order
denying the suppression of evidence ordinarily is not
appealable, but stating that a motion for the return of seized
property may be immediately appealable “because such a
motion may represent the entirety of the case below” (emphasis
added)). The district court did not enter a final, appeal-
able judgment until July 5, 2007, when it determined that
                                                      (continued...)
8                                                      No. 07-3101

It submits that the district court erroneously held that
the evidence of the dog’s alert to the briefcase was
not adm issible against Mr. Marrocco.4 All



3
  (...continued)
Mr. Marrocco was entitled to the funds and entered a separate
judgment in the forfeiture action. R.110.
4
  As the Government correctly notes, Mr. Marrocco does not
have standing to claim that the officers impermissibly detained
Mr. Fallon. See United States v. Torres, 

, 229-30 (7th
Cir. 1994) (“ ‘It has long been the rule that a defendant can
urge the suppression of evidence obtained in violation of the
Fourth Amendment only if that defendant demonstrates that
his Fourth Amendment rights were violated by the challenged
search or seizure.’ ” (quoting United States v. Padilla, 

,
81 (1993))). However, Mr. Marrocco may establish that he has
standing to challenge the search and detention of the briefcase,
provided he can show that he held a legitimate expectation
of privacy in the briefcase. 

. We con-
clude that Mr. Marrocco has satisfied that burden.
   “A reasonable expectation of privacy is present when (1) the
defendant exhibits an actual or subjective expectation of
privacy, and (2) the expectation is one that society is prepared to
recognize as reasonable.” United States v. Amaral-Estrada, 

, 827 (7th Cir. 2007). As the owner of the briefcase,
Mr. Marrocco had an objectively reasonable expectation of
privacy in the briefcase and its contents. See United States v.
Basinski, 

, 835, 838 (7th Cir. 2000) (concluding
that the defendant retained a privacy interest in the locked
briefcase he entrusted to a friend, 

and noting that
“ ‘[f]ew places outside one’s home justify a greater expectation
                                                     (continued...)
No. 07-3101                                                          9



4
   (...continued)
of privacy than does the briefcase,’ ” 

(quoting United
States v. Freire, 

, 1519 (11th Cir. 1983))); United States
v. Powell, 

, 1195 (7th Cir. 1991) (“Ownership creates,
in other words, an expectation of privacy that society is pre-
pared to recognize as ‘reasonable.’ ” (citation and quotation
marks omitted)). That Mr. Marrocco subjectively held this
expectation is evidenced by the fact that he locked the briefcase,
preventing others from opening it and examining its contents.
Cf. 

(holding that the defendant
had no privacy interest in the car, which he denied owning,
when he expected that others would enter the vehicle and take
items from or leave items in the vehicle).
  Mr. Marrocco’s ownership interest was not diminished by
the fact that he entrusted the briefcase to the care of another.
See 

, 838 (noting that the defendant
“demonstrate[d] a strong desire to preserve both his
possessory and privacy interests” in his locked briefcase when
he entrusted it to a friend and instructed him to hide it, and
concluding that the defendant retained a legitimate privacy
interest in the briefcase). Thus, even though Mr. Marrocco did
not physically control the briefcase, he retained his ownership
interest and his attendant expectation of privacy in the case
and its contents. This privacy interest was, however, somewhat
limited by the fact that Mr. Marrocco caused his briefcase to be
placed on a train. Because of that act, Mr. Marrocco could not
have expected that his briefcase would not be touched or
moved. Nevertheless, he did retain both an expectation of
privacy in the contents of his luggage and an expectation that
his briefcase would not be seized in an unlawful manner. See
United States v. Guzman, 

, 1095 (6th Cir. 1996) (noting
                                                     (continued...)
10                                                   No. 07-3101

agree that the officers had reasonable suspicion to detain
the briefcase in the first instance. Nor, on appeal, does
anyone contend that the officers could have lawfully
opened the briefcase. The Government claims, however,
that the evidence of the briefcase’s contents should
have been admitted against Mr. Marrocco because, even
without the unlawful search, the officers inevitably
would have discovered that the briefcase contained
money contaminated by drugs.5
  When considering a district court’s ruling on a motion
to suppress, we review the court’s legal conclusions de
novo, and we defer to the district court’s factual findings
unless those findings are clearly erroneous. United States
v. Martin, 

, 601 (7th Cir. 2005). We evaluate
the propriety of the officers’ conduct at each stage of the
investigation, viewing their actions in light of the
totality of the circumstances.6


4
  (...continued)
that “a passenger on a common carrier has a reasonable ex-
pectation that the contents of his luggage will not be exposed
absent consent or a search warrant”); see also Bond v. United
States, 

, 338-39 (2000) (abrogating our holding in
United States v. McDonald, 

, 1326-27 (7th Cir. 1996),
by holding that the physical manipulation of a bus passenger’s
bag violated the Fourth Amendment).
5
  The Government does not argue that the remedy of suppres-
sion is unavailable in forfeiture proceedings brought under
21 U.S.C. § 881.
6
  See United States v. Martin, 

, 601-02 (7th Cir. 2005)
(considering the events that led the arresting officer to detain
                                                     (continued...)
No. 07-3101                                                      11

                                A.
  We first consider the officers’ initial encounter with
Mr. Fallon to determine whether they were permitted to
seize and detain the briefcase and its contents.7 The
limited investigative detention of luggage is permissible
under the Fourth Amendment where an investigating
officer reasonably believes that the luggage contains
narcotics. United States v. Place, 

, 706 (1983). The
suspicion necessary to justify such an intrusion must
amount to “more than a mere hunch,” United States v.
LePage, 

, 487 (7th Cir. 2007) (citing United
States v. Ganser, 

, 843 (7th Cir. 2003)), and
cannot be based solely on an officer’s conclusion that a
suspect fits a drug-courier profile, United States v.
Sterling, 

, 1083 (7th Cir. 1990) (citing Reid v.
Georgia, 

, 440-41 (1980) (per curiam)). Instead,
the suspicion justifying such conduct must be based on


6
  (...continued)
the defendant, conduct additional investigation, request a
background check, and summon a canine unit, and concluding
that, “[a]t each stage . . . the additional information obtained
justified additional investigation”); Smith v. Ball State Univ., 

, 768 (7th Cir. 2002) (noting, in determining whether
an investigatory stop evolved into an illegal arrest, that “we
evaluate the totality of the circumstances of each case, and
we examine separately each stage in the encounter”).
7
  The district court concluded that the brief detention of the
briefcase was justified. At the outset, we consider the reason-
ableness of the initial detention because it is relevant to the
inevitable discovery discussion that follows.
12                                                   No. 07-3101

specific, articulable facts which, judged in light of the
officers’ experience, would justify the intrusion. United
States v. Yang, 

, 949 (7th Cir. 2002). However,
even when an officer has reasonable suspicion, his ability
to detain a suspect’s baggage is limited: Any such deten-
tion must be reasonable in time and scope given the
totality of the circumstances surrounding the investiga-
tory act. See 

(“Even if the decision
to detain a suitcase is made on the basis of reasonable
suspicion, the duration of the detention may abridge
constitutional standards.”).
  With these standards in mind, we turn to the officers’
initial questioning of Mr. Fallon. At the time that the
officers approached Mr. Fallon’s compartment, they
knew that Mr. Fallon had purchased a one-way train
ticket with cash within a few days of his scheduled depar-
ture. These facts, as Officer Romano noted, fit the profile
of a drug courier. Nevertheless, the officers reasonably
could not have suspected, based on these facts, that
Mr. Fallon was carrying drugs or money associated with
drugs.8 Thus, when the officers initially approached
Mr. Fallon, they were not permitted to seize or search
the briefcase.



8
   See, e.g., United States v. Goodwin, 

, 767 (7th Cir.
2006) (“This pattern—last-minute cash purchase of a one-way
ticket—is deemed by enforcers of the drug laws to be the
profile of a drug courier, though not to establish probable
cause or even reasonable suspicion to believe that someone
who fits the profile is a drug courier.” (citation omitted)).
No. 07-3101                                                      13

   Nevertheless, the events that transpired during the
officers’ initial encounter with Mr. Fallon gave them
sufficient reason to detain the briefcase. The officers
noticed that Mr. Fallon began sweating when they asked
him whether he was carrying weapons, drugs or large
sums of money. Furthermore, Mr. Fallon gave con-
flicting responses when questioned about the briefcase’s
contents: He initially denied that he was carrying large
sums of money, but later told Officer Romano that the
case contained $50,000. Mr. Fallon’s demeanor and re-
sponses to the officers’ questions led the officers to
become suspicious not only of Mr. Fallon but also of the
contents of the briefcase.9 The officers were permitted to
consider Mr. Fallon’s responses and mannerisms, the
circumstances surrounding his ticket purchase, their own
experience and knowledge, and “the characteristics of
persons engaged in illegal activities,” when determining
whether the briefcase was likely to contain contraband.

.1 0 These facts gave rise to



9
  See United States v. Sterling, 

, 1084 (7th Cir. 1990)
(noting that the same facts that justified the detention of the
suspect justified the detention of the suitcase itself); see also
United States v. Place, 

, 708-09 (1983) (“[W]hen the
police seize luggage from the suspect’s custody, we think the
limitations applicable to investigative detentions of the
person should define the permissible scope of an investigative
detention of the person’s luggage on less than probable cause.”).
10
  In Sterling, we concluded that the officers, who were trained
to identify drug smugglers on the basis of circumstantial
                                                  (continued...)
14                                                    No. 07-3101

a reasonable suspicion that the briefcase contained
drugs, or money associated with drugs. United States v.
Goodwin, 

, 768-69 (7th Cir. 2006) (“The combi-
nation of fitting the drug profile and giving a suspicious
answer to the question about looking inside his luggage
created a reasonable suspicion that the defendant’s
luggage contained contraband.” (citations omitted)).1 1
The officers were therefore permitted to detain the brief-
case for a reasonable period of time in order to investi-
gate further.
  As we already have mentioned, however, it is not
enough for the Government to show that the officers
reasonably suspected Mr. Fallon of engaging in illegal
activity; it must also show that the officers’ detention of
the suitcase was reasonable under the circumstances.
The propriety of such a detention is determined by
“balancing ‘the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the
importance of the governmental interests alleged to
justify the intrusion.’ ” United States v. Borys, 

,


10
  (...continued)
evidence, reasonably could have suspected the defendant of
carrying drugs based on (1) her false and suspicious state-
ments and (2) evidence that she conformed to a drug smuggler
profile, including evidence that she purchased her ticket with
cash. 

.
11
  See also United States v. Borys, 

, 312 (7th Cir. 1985)
(“What fueled the agents’ suspicions, and justifiably so, was
Borys’ lying about how long he had been away rather than
the actual length of the stay.”).
No. 07-3101                                              15

312 (7th Cir. 1985) (quoting 

). In
conducting this analysis, we may consider a number of
factors pertaining to both the intrusion and the counter-
vailing government interests. These interests include,
among other things, the availability of alternative means
of investigation, the extent to which the individual con-
tributed to the intrusion, the significance of the offense
at issue and the consequences of delaying the investiga-
tion. 

.
   The Government submits that the officers’ detention of
the briefcase was reasonable. It does not deny that, as a
result of the officers’ actions, the briefcase did not reach
its intended destination. Instead, it asserts, the officers’
actions were reasonable despite those consequences
because there were no viable alternatives to detaining
the briefcase and removing it from the train for a dog-sniff
test. Mr. Marrocco, however, disputes the Government’s
claim and asserts that a less-invasive alternative was
available to the officers. Because Mr. Fallon purchased
his ticket two days prior to the train’s scheduled
departure, Mr. Marrocco submits that the officers could
have investigated the circumstances of the purchase at
an earlier time, assessed whether Mr. Fallon fit the profile
of a drug courier, and arranged for a canine unit to
be present at the station upon Mr. Fallon’s arrival.
Mr. Marrocco maintains that the availability of this alter-
native, less-invasive means of investigation renders
the officers’ conduct unreasonable.
  In support of this argument, Mr. Marrocco points to
our opinion in 

. In that case, the
16                                               No. 07-3101

arresting officers seized the defendant’s luggage,
removed it from the train and subjected it to a dog-sniff
test because they reasonably suspected the defendant to
be carrying contraband; however, the defendant in that
case, unlike Mr. Fallon, did not purchase his train ticket
until the morning of his departure. 

In affirm-
ing the denial of the defendant’s motion to suppress,
we found the timing of the defendant’s purchase to be
significant: Because the defendant bought his ticket an
hour before departure, the only feasible means of investi-
gating the luggage was to remove it from the train. 

  Mr. Marrocco urges that, under Goodwin, the officers
were required to have a canine unit waiting at the
platform at the time of Mr. Fallon’s arrival; we disagree.
Even if the officers could have arranged for a canine unit
to be at the station on the day of Mr. Fallon’s departure,
we cannot accept Mr. Marrocco’s suggestion that our
holding in Goodwin required them to do so. In Goodwin,
we noted that, “[i]f the defendant had bought his ticket
a week in advance and the police had known then that
he fit the profile of a drug courier, [the police] could
have arranged for [the dog] to be at Union Station when
the train was scheduled to depart.” 

Contrary
to Mr. Marrocco’s arguments, that statement was simply
a hypothetical example used to explain why the timing
of the defendant’s arrival was important in that case.
Although, under the specific facts of Goodwin, we con-
cluded that the defendant’s tardiness excused the offi-
cers’ failure to have a canine unit present at the station, it
does not necessarily follow that, in any case where a
No. 07-3101                                                 17

suspect’s travel plans are known in advance, officers must
make arrangements to have a canine unit at the ready.
   The Supreme Court’s opinion in United States v. Place,

, 709 (1983), is not to the contrary. In that
case, federal narcotics agents became suspicious of the
defendant’s behavior at the Miami International Airport.
Because the Miami agents did not have time to search
the defendant’s bags prior to his flight’s departure, the
agents relayed their information to Drug Enforcement
Administration (“DEA”) authorities in New York. 

When the defendant’s flight landed in New York,
two DEA agents seized the defendant’s luggage and took
it to another airport for a dog-sniff test. 

The
Court found the ninety-minute detention between the
seizure and the dog-sniff test to be unreasonable. 

10. After stating that, “in assessing the effect of the
length of the detention, we take into account whether
the police diligently pursue their investigation,” the Court
criticized the officers’ failure to arrange for a drug-sniffing
dog to be present at the airport terminal, even though
they had the time and opportunity to do so. 

  We do not read Place as requiring that officers must
arrange for a canine unit to be present at a particular
location whenever they have time to make such arrange-
ments prior to a suspect’s arrival. Indeed, although it
may have been reasonable for the officers to have made
such arrangements under the facts in Place, it does not
necessarily follow that it would have been reasonable
for the officers to arrange for a canine unit to be present
at the station in this case. In Place, the DEA agents knew,
18                                                No. 07-3101

prior to the defendant’s arrival, that the defendant’s
actions and statements had caused the Miami agents to
suspect that the defendant might have been carrying
drugs. 

In this case, by contrast, the only informa-
tion that the officers had prior to Mr. Fallon’s arrival was
that his ticket purchase conformed with a drug-courier
profile; they had not had the opportunity to observe
his actions or demeanor, and, in fact, they did not even
know whether Mr. Fallon was carrying luggage.
  Rather than setting forth a bright-line rule that a canine
unit must be on-hand whenever police have advance
notice of a suspected drug courier’s arrival, Place and
Goodwin simply recognize that we must assess the reason-
ableness of a particular seizure by looking to a number
of factors that will vary from case to case. 

10;

. This flexible, fact-based
approach allows us to consider the many factors that
may impact the reasonableness of an officer’s decision
to summon—or not to summon—a canine unit. We recog-
nize that, even when investigatory officers would prefer
to station a canine unit in a particular area, it will not
always be possible for them to do so. Many factors could
contribute to the availability of a canine unit. See 

. For example, in some jurisdictions, the
demand for such units may exceed their availability.

(“And apparently there
aren’t enough of these highly trained dogs to have one
tethered at every bus station, train station, and airport
in Chicago.”). In addition, officers may have difficulty
predicting precisely when and where a canine unit will
No. 07-3101                                                   19

be required. See 

(noting that
agents cannot “predict precisely when they [will]
require the services of a dog, for they do not have cause
to suspect passengers on every flight they have under
surveillance”). Furthermore, it may be that a particular
location would not be suitable for a dog-sniff test. 

(“A sniffer dog might not do his stuff in
the unfamiliar setting of a train’s interior.”). Other con-
siderations that are unrelated to the availability of a
canine unit may also impact whether it is feasible for
an officer to obtain such a unit at a particular time. See, e.g.,

(noting that it was not feasible
for an agent to leave to summon a canine unit). This
flexible approach allows us to consider these and other
factors when considering whether a particular search or
seizure is reasonable. See 

(recognizing that the need for a stop depends on, among
other factors, the seriousness of the offense, the conse-
quences of delay, the likelihood of the suspect’s involve-
ment in the offense, the risk of imminent departure, the
availability of alternative means of investigation and the
length of the detention).
  We believe that the officers acted reasonably when
they removed the briefcase from the train in order to
conduct a dog-sniff test. The information that the officers
possessed prior to their initial encounter with Mr. Fallon
was not so persuasive as to justify having a canine
unit at the ready prior to Mr. Fallon’s arrival. The
officers knew only that the circumstances surrounding
Mr. Fallon’s ticket purchase fit a drug-courier profile; this
20                                                  No. 07-3101

information, as we already have mentioned, amounted to
less than a reasonable suspicion that Mr. Fallon was
involved in transporting drugs or drug proceeds. Given
law enforcement’s interest in conserving resources
and avoiding unnecessary procedures, we do not think
that it was unreasonable, in this case, for the officers to
refrain from arranging the dog-sniff test until after
they had interacted with Mr. Fallon, observed his re-
sponses and were able to draw some conclusions about
the nature of his activities.1 2
  In addition, the officers acted with reasonable prompt-
ness: Although Mr. Fallon purchased his ticket on Decem-
ber 4, the officers did not learn of his purchase until
December 6, the day his train was scheduled to depart.
Shortly after the officers learned of the suspicious
nature of Mr. Fallon’s ticket purchase, they investigated
further. Once the officers reasonably suspected that Mr.
Fallon was carrying money associated with drugs, they
removed the briefcase from the train, took it to their
office and arranged for the dog-sniff test, which took
place within a reasonable time period. There is no sug-
gestion that the officers unnecessarily delayed carrying
out that test, nor is there any indication that the officers
engaged in any deliberate misbehavior intended to



12
  See 

(suggesting that the failure to have
a canine unit immediately available may not be unreasonable
where officers are “unsure where and when they might spot
someone behaving in a manner to justify detaining the suspect’s
luggage”).
No. 07-3101                                            21

delay Mr. Fallon unnecessarily. We therefore conclude
that, based on the information available to the officers,
the timeliness of their response, and the serious nature
of the suspected crime, the officers behaved reasonably
by removing the briefcase from the train and arranging
a dog-sniff test soon thereafter.


                            B.
  Our conclusion that the officers were permitted to
seize the briefcase and remove it from the train does not
end our inquiry. After the officers removed the briefcase,
and before they obtained a warrant or even probable
cause to search it, Officer Romano opened the briefcase
and observed its contents. There is no doubt that this
warrantless search was constitutionally impermissible.
We therefore must determine the constitutional signifi-
cance of that unlawful search on our analysis.
   Mr. Marrocco contends that, because of the unlawful
search, the results of the dog-sniff test and the evidence
of the briefcase’s contents, drug-tainted money, must be
suppressed. He asserts that there is no way to deter-
mine whether the officers would have discovered the
funds, or the connection between the funds and any
illegal activity, in the absence of the unlawful conduct.
The Government, however, maintains that the district
court erred in suppressing the evidence of the results of
the dog-sniff test. Although it admits that the officer’s
visual inspection of the contents of the briefcase was
improper, it contends that the challenged evidence
22                                                    No. 07-3101

should have been admitted under the inevitable discovery
doctrine.13
   The doctrine of inevitable discovery provides that
illegally obtained evidence will not be excluded if the
Government can prove, by a preponderance of the evi-
dence, that the officers “ultimately or inevitably would
have . . . discovered [the challenged evidence] by lawful
means.” Nix v. Williams, 

, 444 (1984). To satisfy
this burden, the Government must demonstrate that two



13
   Contrary to Mr. Marrocco’s assertions, we conclude that the
Government adequately preserved this issue for appeal. It is true
that the Government failed to use the exact term “inevitable
discovery” in its arguments before the district court. The
Government’s failure to invoke that particular term, however,
does not render the Government’s inevitable discovery argu-
ment “so wanting that we should find forfeiture.” United States
v. Roque-Espinoza, 

, 727 (7th Cir. 2003) (concluding
that the defendant did not forfeit his argument even though his
motion and supporting memorandum “did not in so many
words allege a due process violation”). In its response to the
motion to suppress, the Government argued that Mr. Fallon
consented to the search of the briefcase. R.45 at 12-13. It then
argued, in the alternative, that (1) the “finding of currency in the
bag was not a ground for detention for the dog sniff test,” 

and (2) the results of the dog-sniff test and other facts
gave the officers independent probable cause to believe that the
briefcase was associated with drugs, 

Although this
argument is somewhat underdeveloped, it sufficiently estab-
lishes the Government’s contention that, even if Mr. Fallon
did not consent to the search, the results of the dog-sniff test
were nonetheless admissible.
No. 07-3101                                                        23

criteria are met: First, it must show that it had, or would
have obtained, an independent, legal justification for
conducting a search that would have led to the discovery
of the evidence;14 second, the Government must demon-
strate that it would have conducted a lawful search
absent the challenged conduct.1 5 See United States v.
Brown, 

, 1085 (7th Cir. 1995) (“[W]hat makes
a discovery ‘inevitable’ is not probable cause alone . . . but
probable cause plus a chain of events that would have
led to a warrant . . . independent of the search.”). The
Government submits that it has satisfied both of these
criteria: It asserts that, even absent the challenged conduct,
there is no doubt that the officers would have subjected the
briefcase to a dog-sniff test. It further claims that, after
learning the results of that test, the officers certainly would
have applied for and obtained a warrant to search the
briefcase.
   We agree with the Government that the officers inevita-
bly would have discovered both the funds and the evi-
dence that the funds were associated with narcotics. The
first prong of the inevitable discovery test has been met



14
  We have held that an independent justification exists when,
for example, officers had probable cause justifying a search
incident to an arrest. See United States v. Jones, 

, 1333-
34 (7th Cir. 1995).
15
  See 

n.8 (“[W]hether authorities would in fact have
conducted a lawful search is a question distinct from whether
they would have had probable cause to do so; that is, probable
cause to search does not alone render discovery of the
evidence in question inevitable.” (citations omitted)).
24                                                      No. 07-3101

because the officers could have obtained, based on the
results of the dog-sniff test, an independent legal basis
for searching the briefcase; namely, the results of the dog-
sniff test 16 would have supported the issuance of a war-
rant. See United States v. Washburn, 

, 643 (7th
Cir. 2004) (“[W]e have held that a positive alert by a
trained drug dog gives rise to probable cause to search a
vehicle.” (citations omitted)). 1 7 Mr. Marrocco claims that
we cannot rely on the results of the dog-sniff test
because it is not clear that the officers would have
ordered that test in the absence of the illegal search. We
disagree. At the time the search took place, the officers
already knew that the briefcase contained a large sum
of money; Mr. Fallon had told them this much when he
stated that the briefcase contained $50,000. The unlawful
search of the briefcase yielded nothing more than a con-
firmation of Mr. Fallon’s earlier admission.1 8


16
  Because the dog-sniff test in fact was performed, we can be
certain that the canine unit would have alerted to the con-
tents of the briefcase.
17
  See also, e.g., United States v. Ganser, 

, 844 (7th Cir.
2003) (“Once the canine alerted to the letter, reasonable suspi-
cion was elevated to probable cause.” (citations omitted));
United States v. Thomas, 

, 912 (7th Cir. 1996) (“Of
course, once the dog reacted positively for narcotics, the
officers had probable cause to obtain a search warrant for the
suitcase . . . .”).
18
  Indeed, it is difficult for us to see how the illegal search was in
any way exploited to discover the necessary evidence linking
                                                        (continued...)
No. 07-3101                                                      25

  This is not a case where the investigating officers
learned new information during an illegal search and,
based on that information, took investigatory steps that
they would not have taken otherwise.1 9 Instead, after
performing the illegal search, the officers did no more
than they ordinarily would have done when confronted
with a suspected drug courier. There is relevant and
probative evidence that suggests the officers would have
performed the dog-sniff test as a matter of course:
First, and most importantly, the officers already had
reliable information about the contents of the briefcase;
Mr. Fallon had informed them that the case contained a
large sum of money. Thus, the purpose of the officers’
investigation was not to discover the contents of the
briefcase, but, instead, to determine whether there was
a link between those contents and illegal narcotics.
Because this link could not be established by merely
observing the funds, it is certain that the officers would
have conducted some test aimed at establishing that
connection.
  Furthermore, the officers already had removed the
briefcase from the train and taken it back to the office



18
  (...continued)
Mr. Fallon and the bag to illegal drugs. See Wong Sun v. United
States, 

, 487-88 (1963). See also infra p.32-33.
19
   Cf. United States v. Thomas, 

, 210-11 (4th Cir. 1992)
(concluding that discovery was not inevitable where police
first unlawfully searched the defendant’s hotel room and then
set up surveillance to monitor the hotel room).
26                                                       No. 07-3101

for the purpose of subjecting the briefcase to a dog-sniff
test.20 Additionally, although the officers had not sum-
moned the canine unit at the time of the unlawful search,
they did do so shortly thereafter. Finally, after Officer
Romano impermissibly opened the briefcase, he quickly
shut it, an act likely intended to prevent any odor on the
funds from dissipating. Officer Romano did not rummage
through the contents of the briefcase in search of obvious
contraband, nor did he attempt to exploit the results of
the unlawful search. We can conclude, based on all of
this evidence, that the officers detained the briefcase in
order to conduct an investigation that would establish
a link between the funds and illegal activity, rather than
to determine the contents of the briefcase, which, as we
have mentioned, were already known. We therefore
have no difficulty in concluding that the dog-sniff test
would have been performed absent the illegal search, and
that the results of that test would have supported a
warrant application.



20
     Officer Terry testified as follows:
       Q. Now, the purpose of getting off the train and going to
          the office is to investigate the money, is that correct?
       A. Correct.
       Q. And the purpose of investigating the money is accom-
          plished by bringing it to the office for a dog sniff, is that
          right?
       A. Through conversation, that’s determined later, yes, sir.
R.49-2 at 83.
No. 07-3101                                                     27

  The fact that the results of the dog-sniff test would
have supported a warrant is not sufficient, however; the
Government must also show, under the second prong
of our inevitable discovery inquiry, that the officers
inevitably would have sought the warrant and conducted
a lawful search. In this circuit, when the Government
seeks “to use the doctrine of inevitable discovery to
excuse its failure to have obtained a search warrant,” it
must “prove that a warrant would certainly, and not
merely probably, have been issued had it been applied
for.” United States v. Tejada, 

, 813 (7th Cir.
2008).
  We are convinced that the Government has satisfied
this burden.21 Our case law establishes that the
inevitable discovery rule applies in cases, such as this
one, where investigating officers undoubtedly would
have followed routine, established steps resulting in the
issuance of a warrant. See, e.g., 

the
evidence of the container’s contents was admissible, even


21
   Mr. Marrocco protests that we cannot know that the officers
inevitably would have obtained a warrant because the officers
were not in the process of obtaining, and ultimately did not
obtain, a warrant; it is clear from our case law, however, that the
Government is not required to show that investigators in fact
obtained or sought a warrant in order to prove that they
inevitably would have done so. In fact, we have explicitly
rejected a rule that “would allow the doctrine to be invoked only
if the police were in the process of obtaining a warrant,”
concluding that such a rule would be “untenable.” United
States v. Tejada, 

, 813 (7th Cir. 2008).
28                                                  No. 07-3101

though the officers did not obtain a warrant to search
the container, because there “[was not] even the shadow
of a doubt that had they applied for a warrant to search
the bag, . . . the warrant would have been issued”);
United States v. Buchanan, 

, 1573 (7th Cir.
1990) (determining that the police inevitably would have
sought a warrant to search the defendant’s hotel room,
pursuant to “proper and predictable police investigatory
procedure[],” where the defendant was arrested on an
outstanding murder warrant and the murder weapon
had not yet been found (alteration in original) (citation
omitted)).22 As we already have discussed, the officers
certainly would have subjected the briefcase to a dog-sniff
test even absent the illegal search. After the test was
performed, the officers would have known (1) that Mr.
Fallon fit a drug-courier profile; (2) that Mr. Fallon had
admitted that the briefcase contained a large sum of


22
  We also have applied this reasoning when the challenged
evidence would have been discovered through a means other
than a search warrant. For example, in United States v.
Johnson, 

(7th Cir. 2004), we noted that the evidence
discovered during an illegal search of the trunk of the defen-
dant’s car inevitably would have been discovered during the
routine, permissible inventory search that would have
followed the defendant’s arrest. 

n.8 (“Therefore,
assuming arguendo that Cook did not initially have probable
cause to search the trunk, after legally arresting Johnson on the
outstanding warrant, the firearm would have nevertheless
been discovered later when the police took possession of the
vehicle he was driving and performed an inventory search,
thus rendering the firearm admissible at trial.”).
No. 07-3101                                                     29

money; and (3) that the dog-sniff test indicated that the
briefcase carried the odor of drugs. It would be unrea-
sonable to conclude that, after discovering all of this
information, the officers would have failed to seek a
warrant. See 

(concluding that
police inevitably would have sought a warrant to search
the room, as “it would have been foolish not to want to
look for the gun there”); see also United States v. Allen, 

, 841 (4th Cir. 1998) (“The inevitable discovery
doctrine may apply where additional routine or factually
established investigative steps would inevitably lead to
discovery of the evidence without undertaking any
search.” (citations omitted)). In addition, as we already
have recognized, there is no serious question that the
warrant would have been issued once sought.2 3 Therefore,
we may conclude that the officers inevitably would have
had a lawful basis for discovering both the funds and the
link between the funds and illegal narcotics activity.2 4



23
  There is no contention in this case that, for example, the
dog that performed the sniff test was unreliable.
24
  We have recognized that the standard employed in this
circuit is an “intermediate” one, 

, which
differs somewhat from the tests employed by our sister circuits.
The Second and Tenth Circuits, for example, will only apply the
inevitable discovery doctrine where there exists evidence from
which “a court can find, with a high level of confidence, that
each of the contingencies necessary to the legal discovery of the
contested evidence would be resolved in the government’s
favor.” United States v. Heath, 

, 60 (2d Cir. 2006); see
                                                    (continued...)
30                                                  No. 07-3101



24
   (...continued)
also United States v. Souza, 

, 1205 (10th Cir. 2000)
(applying the “high level of confidence” standard). Other
courts of appeals, by contrast, apply a somewhat lower stan-
dard, requiring only a “reasonable probability” that the chal-
lenged evidence would have been discovered lawfully. See

(citations omitted) (collecting cases).
  The effect of this difference in verbal formulation is evident
in the circuits’ differing analysis of cases where the Govern-
ment seeks to use the inevitable discovery doctrine to excuse
a failure to seek a warrant: In Tejada, we observed that cases
from some courts of appeals suggest that the inevitable dis-
covery doctrine “should be confined to the situation in which
the police are gathering evidence with a view toward obtaining
a search warrant and it is certain or nearly so that . . . the
investigation would have culminated in a successful warrant
application.” 

(citing United States v.
Virden, 

, 1323 (11th Cir. 2007); United States v.
Conner, 

, 667-68 (8th Cir. 1997); United States v.
Mejia, 

, 320 (9th Cir. 1995)). Other appellate courts,
however, apply a more flexible approach. See, e.g., United States
v. Ford, 

, 377 (1st Cir. 1994) (noting that court’s
rejection of an ongoing-investigation requirement and its
adoption of a “flexible standard” under which “[t]he specific
facts of each case will determine the requirements necessary to
prove independence and inevitability”); 

-
11 (rejecting a “blanket requirement” that officers be pursuing
an alternate investigation, and instead requiring, at minimum,
that discovery “arise from circumstances other than those
disclosed by the illegal search itself” (citation and quotation
marks omitted)); United States v. Garcia, 

, 506
                                                   (continued...)
No. 07-3101                                                       31



24
  (...continued)
(6th Cir. 2007) (noting that the inevitable discovery doctrine “ap-
plies where the facts indicate that the officers inevitably
would have discovered and seized the tainted evidence by
following ‘routine procedures’ ” (quoting United States v. Vite-
Espinoza, 

, 466 (6th Cir. 2003))).
  We believe that, given the facts of this case, our holding
would be the same even if we applied one of these other
approaches. Under the flexible approach, we may conclude,
based on the results of the dog-sniff test and the officers’ actions,
that the officers would have had probable cause to search
the briefcase, and that a warrant would have issued as a
result. See 

(concluding that, where the
officers had independent probable cause to search the defen-
dant’s home, “[it was] inevitable that the existence of probable
cause would find fruition in the issuance of a search warrant,”
and noting that this conclusion was bolstered by evidence
that the decision to seek a warrant already had been made);
see also 

(concluding that the officers
inevitably would have discovered the defendant’s pager
because, after searching his vehicle, they would have had
probable cause to arrest the defendant, and they would have
discovered the pager during the “routine procedure of
searching [him] prior to taking him into custody” (citation and
quotation marks omitted)); United States v. White, 

,
1138-39 (10th Cir. 2003) (determining, based on evidence that
the officer ran several detained individuals’ names through a
database, that there was “a solid implication that the officers
routinely ran [such] checks on persons briefly detained,” and
concluding that the officers would have run such a check on
the defendant and discovered his prior conviction); cf. United
                                                      (continued...)
32                                                   No. 07-3101

  Indeed, even if the inevitable discovery doctrine was
waived or inapplicable, we would have to conclude that
the results of the dog-sniff test were admissible. The


24
  (...continued)
States v. Allen, 

, 839-40 (4th Cir. 1998) (stating that
the court had “little trouble” with the district court’s finding
that, had a dog-sniff test been performed, the dog would have
alerted to the bag and the police would have had probable
cause for a search warrant, but concluding nevertheless that
the inevitable discovery rule did not apply because there was
no evidence that the officer would have used a dog to investi-
gate the bag).
  Even if we were to require a high level of confidence that the
warrant inevitably would have been issued, the Government
has carried that burden here. At the time of the unlawful search,
the officers were conducting an investigation that logically
would have culminated in the discovery of the odor of the
drugs on the money; that discovery would have been made
even absent the illegal conduct, and the probability is there-
fore “very high that the evidence would have been discovered
pursuant to a search warrant.” 

(concluding that the inevitable discovery doctrine applied
because the officers took steps to prepare a warrant prior to
the search, the officers had probable cause to believe the
package contained contraband, a narcotics dog alerted to the
container, and a warrant ultimately was issued). In this case, the
inevitability of the warrant’s issuance is clear from the facts.
See 

, 62 n.11 (remanding for further
findings to assess whether an arrest would have been made
absent the unlawful conduct, but noting that “[t]here obviously
will be some [cases] in which the inevitability of the arrest is
sufficiently obvious as not to require discussion”).
No. 07-3101                                                  33

illegality of Officer Romano’s opening of the briefcase
with a knife had no effect on the subsequent discovery
that the money was tainted by drugs. The officers
already knew of the presence of the money. Opening the
briefcase gave them no knowledge about whether the
money was tainted. That knowledge was completely
dependent on the dog-sniff test. Therefore, the causal
connection between the illegality of Officer Romano’s
search was so far attenuated from the crucial evidence
as to make invocation of the suppression doctrine inap-
propriate. See United States v. Carter, No. 09-1608, slip op. at
7-8 (7th Cir. July 20, 2009); United States v. Ienco, 

, 526 (7th Cir. 1999); see also Brown v. Illinois, 

, 609 (1975) (Powell, J., concurring); United States v.
Fazio, 

, 957 (7th Cir. 1990).
  Accordingly, we hold that the district court improperly
suppressed the evidence of the contents of the briefcase
and the results of the dog-sniff test.




                         Conclusion
  For the reasons set forth in this opinion, we reverse the
decision of the district court and remand this case for
further proceedings consistent with this opinion. On
remand the district court may hear additional evidence
as to whether the funds are subject to forfeiture and, if
necessary, as to the ultimate ownership of the funds.
                                   R EVERSED and R EMANDED
34                                              No. 07-3101

   E ASTERBROOK, Chief Judge, concurring. I join the court’s
opinion without reservation but add a few words about
an issue that, as the court notes (slip op. 10 n.5), the
litigants have overlooked.
  All parties assume that the exclusionary rule applies
to forfeiture, so that the res must be returned if it
was improperly seized. Yet the Supreme Court has
twice held that the exclusionary rule is not used in civil
proceedings. See INS v. Lopez-Mendoza, 

(1984) (deportation); United States v. Janis, 

(1976) (taxation). See also Pennsylvania Board of Probation
& Parole v. Scott, 

(1998) (rule inapplicable
to probation revocation). Although One 1958 Plymouth
Sedan v. Pennsylvania, 

(1965), suppressed
evidence in a forfeiture, Janis stated that this was be-
cause that forfeiture was intended as a criminal punish-

n.17. The forfeiture in our case is
civil. It is farther from a criminal prosecution than is a
probation-revocation proceeding.
  Suppressing the res in a civil proceeding, even though
the property is subject to forfeiture, would be like dis-
missing the indictment in a criminal proceeding whenever
the defendant was arrested without probable cause.
The Supreme Court has been unwilling to use the ex-
clusionary rule to “suppress” the body of an improperly
arrested defendant. See United States v. Alvarez-Machain,

(1992). Why then would it be sensible to
suppress the res?
  The appropriate remedy is civil damages measured by
the value of the privacy interest wrongly invaded. Exclu-
No. 07-3101                                            35

sion sometimes may be appropriate in criminal prosecu-
tions, but damages are the best remedy in the run of
situations. See Hudson v. Michigan, 

(2006);
Herring v. United States, 

(2009). This case
illustrates why: the value of the res is about $121,000,
exceeding any plausible estimate of the injury inflicted
by opening the case before the dog arrived. Awarding
claimants $121,000 would both overcompensate them
and overdeter law-enforcement agents—just as awarding
excessive damages in tort suits warps the incentives of
both potential victims and potential injurers, leading
potential victims to take excessive risks and potential
injurers to take excessive (i.e., unjustifiably expensive)
precautions.
  Because the United States has not questioned the use
of the exclusionary rule, and the issue does not affect
subject-matter jurisdiction, we need not decide what
scope Janis, Lopez-Mendoza, Hudson, and Herring leave
for One 1958 Plymouth Sedan.




                          8-24-09