United States v. Peterson

• Decision Date: 04 September 2018
• Docket Number: No. 17-30084,17-30084
• Citation: 902 F.3d 1016
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin Terrell PETERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

902 F.3d 1016

UNITED STATES of America, Plaintiff-Appellee,

v.Kevin Terrell PETERSON, Defendant-Appellant.

No. 17-30084

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 15, 2018, Seattle, Washington

Filed September 4, 2018

Jesse Cantor (argued) and Ann K. Wagner, Assistant Federal Public Defenders; Office of the Federal Public Defender, Seattle, Washington; for Defendant-Appellant.

Charlene Koski (argued), Assistant United States Attorney; Annette L. Hayes, United States Attorney; United States Attorney’s Office, Seattle, Washington; for Plaintiff-Appellee.

Before: Milan D. Smith, Jr., and Paul J. Watford, Circuit Judges, and Douglas L. Rayes,^* District Judge.

RAYES, District Judge:

Defendant-Appellant Kevin Peterson appeals the district court’s denial of his motion to suppress the handgun found in his backpack. The district court concluded that the evidence inevitably would have been discovered in an inventory search. We affirm the order.

Peterson also challenges his sentence of 48 months’ imprisonment imposed for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court concluded that Peterson’s prior conviction for first-degree robbery was a "crime of violence" as that term is defined by U.S. Sentencing Guidelines ("Sentencing Guidelines" or "U.S.S.G.") section 4B1.2(a) which, along with a prior controlled substance offense, increased his base offense level to 24 under U.S.S.G. section 2K2.1(a)(2). The district court also concluded that his conduct warranted a two-level enhancement under U.S.S.G. section 3C1.2 for reckless endangerment during flight. Finding that Peterson’s prior conviction for first-degree robbery was not a "crime of violence," we affirm in part and reverse in part. Accordingly, Peterson’s sentence is vacated, and this matter remanded for resentencing.

I. Background

On August 14, 2015, King County police officers arrested Peterson on outstanding warrants. At the time of the arrest, the arresting officer instructed Peterson to remove his backpack so that he could be handcuffed. The officer waited to search the backpack until after he had handcuffed and secured Peterson in the back of the patrol car. Upon opening the backpack, the officer discovered a handgun, which officers on the scene soon determined was stolen. The officers informed Peterson of additional charges for possession of the firearm, and then transported him to King County Jail, where Peterson was booked on charges of unlawful possession of a firearm and possession of a stolen firearm, both felony offenses.

After indictment for being a felon in possession of a firearm, Peterson filed a motion to suppress evidence of the handgun discovered in his backpack. The district court denied the motion, finding that the gun inevitably would have been discovered during an inventory search of the backpack during Peterson’s booking.

On January 19, 2017, at the close of a stipulated-facts bench trial, the district court found Peterson guilty of being a felon in possession of a firearm. Before sentencing, the United States Probation Office submitted a Presentence Report and a Sentencing Recommendation. The Probation Officer’s calculation of Peterson’s base offense level incorporated, among other things, a finding that Peterson’s prior Washington state felony conviction for first-degree robbery constituted a crime of violence under the Guidelines, and a two-level enhancement for reckless endangerment during flight.

Peterson objected to the sentencing recommendations, but the district court overruled his objections and applied the recommended base offense level. Peterson timely appealed the district court’s denial of his motion to suppress and its application of sentencing enhancements under sections 2K2.1(a)(2) and 3C1.2.

II. Discussion

Peterson raises several arguments on appeal. First, he claims that the district court erred in denying his motion to suppress because the inevitable discovery exception to the exclusionary rule is inapplicable. Second, Peterson challenges his sentence, arguing that the district court improperly found his first-degree robbery conviction constituted a crime of violence under sections 2K2.1(a)(2) and 4B1.2, and in applying a two-level enhancement for reckless endangerment during flight under section 3C1.2. We address each of these claims in turn.

A. Motion to Suppress

"We review de novo motions to suppress, and any factual findings made at the suppression hearing for clear error." United States v. Negrete-Gonzales , 966 F.2d 1277, 1282 (9th Cir. 1992). "[I]nevitable discovery rulings are mixed questions [of law and fact] that ... should be reviewed under a clearly erroneous standard." United States v. Lang , 149 F.3d 1044, 1047 (9th Cir. 1998).

The exclusionary rule allows courts to suppress evidence obtained as a result of an unconstitutional search or seizure. Mapp v. Ohio , 367 U.S. 643, 655–66, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The exclusionary rule does not apply, however, if the government establishes by a preponderance of the evidence that the unlawfully obtained information "ultimately or inevitably would have been discovered by lawful means[.]" Nix v. Williams , 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) ; see also United States v. Andrade , 784 F.2d 1431, 1433 (9th Cir. 1986) (holding that potentially unconstitutional search incident to arrest did not warrant application of the exclusionary rule because police would have found the evidence while taking inventory of the defendant’s belongings during booking).

Here, the district court found that, under the circumstances, the warrantless search of Peterson’s backpack was not justified as a search incident to arrest, but that the evidence nonetheless was not subject to exclusion because it inevitably would have been discovered during an inventory search at the time of booking. Specifically, the district court found that "even if the deputies had not searched [Peterson’s] backpack, they would have had cause to book him for something more serious than the warrants: obstructing a law enforcement officer or resisting arrest ...."

On appeal, the government contends that the handgun discovered in Peterson’s backpack inevitably would have been discovered during the inventory search, but also argues the search was a proper search incident to arrest. For purposes of this decision, we will assume that the district court properly found that the warrantless search of Peterson’s backpack was not justified as a search incident to arrest. We affirm because the district court properly applied the inevitable discovery rule.

"[I]t is not ‘unreasonable’ for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures." Illinois v. Lafayette , 462 U.S. 640, 648, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983) ; see also United States v. Cormier , 220 F.3d 1103, 1111 (9th Cir. 2000) (noting that courts should consider state law in addition to any local police department policies when determining lawfulness of inventory search conducted by state or local police officers). Peterson does not dispute that, if he were booked, his backpack would inevitably have been subject to an inventory search.¹ Instead, he contends that the discovery of the handgun was not inevitable because, but for the illegal search of his backpack at the time of his arrest, the officers would have had cause to book him only on his misdemeanor warrants, for which he would have posted bail and avoided the inventory search altogether.

We agree that the evidence suggests that Peterson’s backpack would not have been subject to an inventory search had he been arrested only for his misdemeanor warrants. Under Washington law, arrestees capable of posting bail may avoid incarceration. See State v. Smith , 56 Wash.App. 145, 783 P.2d 95, 98 (1989). Revised Code of Washington section 10.31.030 provides that, when someone is arrested under the authority of a warrant, the arresting officer must provide the arrestee with notice of the charge and the amount of bail set by the warrant. Smith , 783 P.2d at 98. An inventory search conducted before an arrestee is provided the information required by section 10.31.030 is unlawful. Id. ; see also State v. Caldera , 84 Wash.App. 527, 929 P.2d 482, 483–84 (1997) (holding inventory searches unlawful when conducted prior to providing arrestees the opportunity to post bail as required by section 10.31.030 ).

Here, no arresting officer advised Peterson of the amount of bail for his misdemeanor warrants, which was set at $135,000. Peterson presented sufficient evidence of his ability to post a bail bond in that amount. Accordingly, had the officers arrested Peterson only on the misdemeanor warrants, and had they complied with section 10.31.030, Peterson would have been able to post bail, thereby avoiding the booking and inventory search process altogether.

Peterson’s ability to post bail on the misdemeanor warrants, however, has no bearing on whether his backpack would have been subject to an inventory search had he been booked on charges of obstructing law enforcement officers or resisting arrest because bail had not yet been set on those charges at the time Peterson was booked. The district court credited the arresting officer’s testimony that he "absolutely" would have booked Peterson on obstruction of law enforcement officers and resisting arrest charges had he not searched the backpack and discovered the handgun. During the arrest, Peterson twice broke away from officers and tried to escape on foot. Although Peterson was not charged with these crimes at booking, the district court credited officer testimony that it was standard practice to book arrestees only on felony charges when both felony and misdemeanor charges are available. Because the officers would have booked Peterson on obstruction or...