52 F.3d 335 (9th Cir. 1995), 94-10443, U.S. v. Estabrook

Docket Nº:94-10443.
Citation:52 F.3d 335
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert Dana ESTABROOK, Defendant-Appellant.
Case Date:April 07, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 335

52 F.3d 335 (9th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert Dana ESTABROOK, Defendant-Appellant.

No. 94-10443.

United States Court of Appeals, Ninth Circuit

April 7, 1995

Submitted April 4, 1995. [*]

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Appeal from the United States District Court, for the District of Nevada, D.C. No. CR-94-00019-ECR; Edward C. Reed, Jr., District Judge, Presiding.

D.Nev.

AFFIRMED.

Before: BROWNING, SNEED, and T.G. NELSON, Circuit Judges.

MEMORANDUM [**]

Robert Dana Estabrook appeals his conviction, following a conditional guilty plea, for possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Estabrook contends that the district court erred in ruling that the firearm would inevitably have been discovered. Estabrook argues that the district court's finding that the investigative detention was brief was clearly erroneous. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo a district court's denial of a motion to suppress. United States v. Becker, 23 F.3d 1537, 1539 (9th Cir.1994). We review the district court's factual findings for clear error. Id.

If the government establishes by a preponderance of the evidence that the challenged evidence ultimately would have been discovered by lawful means, the evidence is admissible despite of any constitutional violation. Nix v. Williams, 467 U.S. 431, 444 (1984); see also United States v. Andrade, 784 F.2d 1431, 1433 (9th Cir.1986) (government can meet its burden by establishing that, by following routine practice and procedure, evidence would be uncovered); cf. United States v. Ramirez-Sandoval, 872 F.2d 1392, 1400 (9th Cir.1989) (government failed to meet its burden where record did not suggest with certainty that police would have discovered evidence had illegal search not occurred).

A highway patrolman frisked Estabrook and found a firearm after a traffic stop. The district court found the frisk was unreasonable, but concluded that the firearm would have been discovered inevitably. We agree. The patrolman testified at the suppression hearing that he requested a check on Estabrook's expired driver's...

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