concurring in part and dissenting in part:
I concur in Part II of the majority opinion holding that the officers here would have had probable cause to arrest Heath upon the plain view discovery of cocaine elsewhere on the scene only moments after Heath had been arrested, perhaps mistakenly but in good faith, by Lieutenant Paul. However, because I do not agree with the majority’s assessment of what the inevitable discovery doctrine requires in this case, or the decision to remand to the district court for further fact-finding, I respectfully dissent from Parts I and III of the majority opinion.
The majority opinion requires that, for the inevitable discovery doctrine to apply in this case, the district court must be convinced with a “high level of confidence” not only (1) that the officers in question would have had probable cause to arrest Heath only moments after they had (arguably) prematurely arrested him — a question answered in the affirmative in Part II — but also (2) that the officers actually would have arrested Heath once they had probable cause to do so. For the reasons stated below, I disagree with the majority’s decision to impose what could be called a “probable cause-plus” standard in the context of a search incident to an arrest — a well-established exception to the warrant requirement — by importing a standard more appropriately limited to those cases in which the police have engaged in a warrantless search of property otherwise unsupported by any exception to the warrant requirement. Moreover, even under the legal standard devised by the majority, I see no need to remand here so that the district court may confirm what is already apparent on the record — namely, that given the willingness of the officers in question to arrest Heath without probable cause, they inevitably would have done the same once they had even greater reason (i.e., probable cause) to arrest Heath only moments later.
In requiring separate proof that the officers would have arrested Heath once they had probable cause to do so, the majority relies heavily on the implied “teachings” of our Court in United States v. Cabassa, 62 F.3d 470 (2d Cir.1995), as well as the gloss put on that case by the district court in United States v. Lavan, 10 F.Supp.2d 377 (S.D.N.Y.1998), and the Tenth Circuit’s adoption of a “high level of confidence” standard in United States v. Cunningham, 413 F.3d 1199 (10th Cir.2005), and United States v. Souza, 223 F.3d 1197, 1205 (10th Cir.2000). I do not doubt that Cabassa and its progeny set forth a reasonable approach for those circumstances in which the police have entered into a home without a warrant. Indeed, prior cases have indicated that courts view warrantless property searches with suspicion and thus require a showing that the police had taken tangible steps to ensure that they inevitably would have obtained a warrant from a neutral and detached magistrate. See, e.g., Cabassa, 62 F.3d at 473 & n. 2 (requiring, “[i]n cases in which a claim of inevitable discovery is based on [the] expected issuance of a warrant,” an analysis of (1) “the extent to which the warrant process has been completed at the time those seeking the warrant learn of the search”; (2) the strength of the showing of probable cause at the time the warrantless entry occurred; (3) whether a warrant was “actually obtained” after the illegal entry; (4) “whether the same evidence would have been discovered pursuant to the warrant” during a hypothetical subsequent search; and (5) whether there is any “evidence that law enforcement agents ‘jumped the gun’ because they lacked confidence in their showing of probable cause”).
*64Courts require these detailed showings of “each of the contingencies” involved, see Lavan, 10 F.Supp.2d at 389, precisely because they do not wish to encourage officers to “obviate” or “nullif[y]” the Fourth Amendment’s warrant requirement by baldly asserting that they inevitably would have had the probable cause needed to obtain a warrant. See, e.g., United States v. Mejia, 69 F.3d 309, 320 (9th Cir.1995) (“[T]o excuse the failure to obtain a warrant merely because the officers had probable cause and could have obtained a warrant would completely obviate the warrant requirement.”); United States v. Brown, 64 F.3d 1083, 1085 (7th Cir.1995) (“To say that a warrant is required for a search is to say that the police must get judicial approval before acting. Yet if probable cause means that discovery is inevitable, then the prior approval requirement has been nullified.”); United States v. Cherry, 759 F.2d 1196, 1205 (5th Cir.1985) (“When the police forego legal means of investigation simply in order to obtain evidence in violation of a suspect’s constitutional rights, the need to deter is paramount and requires application of the exclusionary rule.”); cf. United States v. Eng, 971 F.2d 854, 860 (2d Cir.1992) (noting that “special care is required on the part of a district court when the government relies on the subpoena power” in light of “the need to prevent the inevitable discovery exception from swallowing the exclusionary rule”).
However, the concerns animating these cases — namely, the need to deter warrant-less property searches — do not apply with equal force to the facts of this case. Not only were Lieutenant Paul and his fellow officers lawfully on the premises pursuant to a valid search warrant — thus reducing any significant concern that applying the inevitable discovery doctrine in this case would subvert the Fourth Amendment warrant requirement — the evidence here, and the logical inferences therefrom, demonstrate that the police would have obtained Heath’s currency during a valid search conducted pursuant to a well-established exception to the warrant requirement, namely, a search incident to a lawful arrest. See United States v. Allen, 986 F.2d 1354, 1357 (10th Cir.1993) (“[E]ven assuming that the [pat-down search of the defendant was conducted] prior to [the discovery of] the cocaine [on his companion], [the defendant] could ... have been searched seconds later, once the cocaine provided probable cause to arrest.... Therefore, the search was incident to a lawful arrest regardless of the exact sequence of events (emphases added); United States v. Romero, 692 F.2d 699, 704 (10th Cir.1982) (recognizing, without inquiring whether the officers would necessarily have arrested the defendant, that the “discovery of the marijuana in the van provided probable cause to arrest [the defendant], and upon arrest the officers unquestionably would have searched [the defendant] and discovered the marijuana in his pocket”) (emphasis added); see also United States v. Eylicio-Montoya, 70 F.3d 1158, 1166-67 (10th Cir.1995) (applying inevitable discovery exception because, although the defendant had been “prematurely arrested,” the police had reasonable suspicion to stop the defendant’s vehicle and would have noticed the suspicious burlap bags “during the course of a lawful Terry stop”).
Moreover, even if we were to distinguish the circumstances of this case from the clear import of the holdings in Allen, Romero, and Eylicio-Montoya — and thereby require evidence that the officers would in fact have arrested Heath once they had obtained probable cause to arrest him only moments after the initial (arguably) unlawful arrest — I see no need to remand for further fact-finding in this particular case. Absent a conclusion that the *65officers here would only have arrested Heath when they lacked probable cause, there is little reason to conclude that the officers in question somehow would have backed down from their earlier decision to arrest Heath, even though they would have had a stronger basis — namely, probable cause — on which to make that very arrest immediately thereafter.
Our decision in United States v. Eng, 971 F.2d 854 (2d Cir.1992), provides a constructive framework of analysis for this case and, I believe, demonstrates that a remand would be unnecessary here. In Eng, we noted that “proof of inevitability is made more convincing when [1] the areas of the search or investigation are well-defined, [2] the government effort is planned and methodical, and [3] a direct causal relationship and reasonably close temporal relationship exist between what was known and what had occurred prior to the government misconduct and the allegedly inevitable discovery of the evidence.” Eng, 971 F.2d at 859; see also id. at 861 (“[I]nevitable discovery analysis logically must begin with the progress of the investigation at the time of the government misconduct.”).
In this case, each of these factors weigh heavily against the granting of a remand. Unlike a hypothetical scenario in which, for example, the police initially arrest a defendant without probable cause and then contend that they inevitably would have arrested the defendant days later, in a different location, and as part of a separate investigation, the “demonstrated historical facts,” see Nix v. Williams, 467 U.S. 431, 444 n. 5, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), here show that the officers would have obtained an independent basis of probable cause to arrest Heath (1) at the same location at which the original, arguably unlawful, arrest of Heath had taken place; (2) as part of the same search and investigation that led to the initial arrest; and (3) only “a few moments,” Maj. Op. at 55, after the alleged government misconduct had occurred. It is precisely the seamless nature of the police search of the premises and the nearly simultaneous arrests of Heath and Summersett that should lead us to conclude here that there is no “residual possibility,” see Cabassa, 62 F.3d at 474, that Heath would not have been arrested only moments later, at the same location, and as part of the same investigation. See Allen, 986 F.2d at 1357 (applying inevitable discovery doctrine where it was “clear that both searches occurred at approximately the same time”); Romero, 692 F.2d at 704 (noting that “the evidence clearly would have been discovered within a short time through a lawful investigation already underway”); Lavan, 10 F.Supp.2d at 389-90 (finding inevitability because “there were relatively few contingencies, and the probability that each would have been resolved in the government’s favor was extraordinarily high”); cf. Cabassa, 62 F.3 d at 474 (noting that “no one can say with any certainty how much time would have been taken to complete the [warrant] application, to submit it to the magistrate judge for consideration, and to secure the warrant’s issuance,” and questioning even whether “the evidence would have been in the apartment when a lawful search occurred”); Eng, 971 F.2d at 861 (noting that “some weeks passed between the [warrantless] search of [the defendant’s] safe and the issuance of some of the subpoenas” and that “[d]elays of this kind are not fully consistent with the suggestion that the government was informed and ready to move as soon as [the defendant] was arrested and the risk of flight removed”) (emphasis added); id. at 862-64 (outlining in eight paragraphs several specific contingencies and unresolved factual inquiries necessitating a remand).
*66Accordingly, having determined in Part II of the majority opinion that the officers here would have had probable cause to arrest Heath based on the plain view discovery of cocaine elsewhere in the apartment, we should conclude, just as did the courts in Allen, Romero, and Eylicio-Montoya, that Heath’s currency inevitably would have been discovered pursuant to a well-established exception to the warrant requirement in a search incident to arrest). Moreover, even if the inevitable discovery doctrine requires evidence that the officers in question inevitably would have arrested the defendant, no remand should be granted here due to the “demonstrated historical facts” already evident in the record.