U.S. v. White

• Decision Date: 08 April 2003
• Docket Number: No. 02-2118.,02-2118.
• Citation: 326 F.3d 1135
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Firdie Earl WHITE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1135

326 F.3d 1135

UNITED STATES of America, Plaintiff-Appellee, v. Firdie Earl WHITE, Defendant-Appellant.

No. 02-2118.

United States Court of Appeals, Tenth Circuit.

April 8, 2003.

Todd B. Hotchkiss, Frechette & Associates, P.C., Albuquerque, NM, for Defendant-Appellant.

James Miles Hanisee, Assistant United States Attorney (David C. Iglesias, United States Attorney, and Laura Fashing, Assistant United States Attorney, on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before LUCERO, HOLLOWAY, and ANDERSON, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Defendant Firdie Earl White was convicted of possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He appeals the district court's denial of his motion to suppress his identity and the subsequent discovery of his status as a convicted felon following his unlawful arrest. We affirm, although on a different basis than the district court.

BACKGROUND

On December 22, 2000, an Albuquerque, New Mexico, police dispatcher informed Albuquerque police officer Anthony Simballa that an anonymous tip indicated that individuals were suspected of selling drugs at 540 Cardena, Apartment C. Officer Simballa, along with Officer Daniel Porter, responded and went to the apartment complex at that address.

Upon their arrival at the apartment complex, they encountered Francisco Navarez and Stephanie Holguin in the parking lot. When asked if they lived there, Navarez responded that he lived in Apartment C. When Officer Simballa asked Navarez if he would mind talking to the officers in the apartment, Navarez replied, "No, follow me." R. Vol. IV at 8-9. The officers followed Navarez to the apartment, where Navarez opened the door.

When the door to Apartment C was opened, Officer Simballa saw five people inside the apartment, one of whom, later identified as defendant White, was holding a gun and pointing it towards the floor. When White saw the officers, he turned his back to the officers. Id. at 11. When the officers saw the gun, Officer Porter yelled, "gun." Id. Both officers drew their weapons and told everyone to put their hands up. White placed the gun he was holding on a table and raised his hands.

Officer Simballa secured the gun and removed the magazine, which contained six bullets, although the chamber was empty. Officer Simballa handcuffed White and patted him down. During the pat-down, Officer Parker stood in the doorway with his gun pointed towards the ground in a "low ready" position. While he was patting down White, Officer Simballa felt a small hard object in White's pocket. When asked what it was, White told Officer Simballa, "Take it out." Id. at 15. The object turned out to be a small dental floss container, which made a rattling sound when the officer removed it from White's pocket. Officer Simballa set it aside while he patted down the other individuals in the apartment, finding no other weapons. When he returned to and opened the dental floss container, the officer discovered four rocks of what turned out to be cocaine. The officers placed White under arrest, and Officer Porter read him his Miranda rights.

After White was advised of his rights, Officer Simballa asked him what the substance was that was inside the dental floss container, and White responded that it was crack cocaine. When asked what he was doing with the gun, White replied that he was thinking of buying it. At some point, White either gave Officer Simballa an identification card or told the officer his name, date of birth and social security number. Officers Simballa and Porter checked the National Crime Information Channel ("NCIC") and learned that there was a warrant outstanding for White's arrest for traffic violations. They informed White that he had an outstanding warrant. At the hearing on White's motion to suppress, Officer Simballa testified that the existence of the outstanding warrant was "also a basis for [White's] being arrested at that time." Id. at 20.

The officers took the gun, the magazine with bullets, the dental floss container and the crack cocaine as evidence, and White was booked into the Bernalillo County Detention Center "on the possession of controlled substance and his warrant." Id. After White's arrest, subsequent inquiries revealed that he had previously been convicted of a felony. White was therefore indicted under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) for possession of a firearm by a person previously convicted of a felony.

White moved to suppress all evidence obtained in connection with his arrest, as well as the statements he made, on the ground that the cocaine was seized illegally. He also sought suppression of his identity and the subsequent investigation which led to the discovery that he was a felon. The district court conducted a hearing and granted White's motion in part and denied it in part. The court concluded that, while the initial pat-down was justified, White's consent to the removal of the dental floss container was not voluntary. Accordingly, the search leading to the discovery of the crack cocaine was invalid, and the court therefore suppressed the crack cocaine. The court also suppressed White's statements made following his arrest as fruits of an unlawful search. It refused to suppress White's identity, in reliance upon INS v. Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), and it refused to suppress the gun, concluding that the officers saw the gun when they lawfully entered the apartment and exigent circumstances gave the officers probable cause to seize it.

After a mistrial was declared in White's trial, shortly after jury selection began, White pled guilty pursuant to a plea agreement, reserving his right to appeal the district court's denial of his motion to suppress his identity, the subsequent investigation which led to the discovery of his status as a felon, and the gun. He was sentenced to twenty-one months in prison, three years of supervised release, and was ordered to pay a $100 special assessment. White appeals, arguing the court erred in failing to suppress his identity and the investigation leading to the discovery of his felon status.

DISCUSSION

When reviewing the denial of a motion to suppress, "we review the district court's factual findings for clear error, its conclusions of law de novo, and view the evidence in the light most favorable to the prevailing party." United States v. Gallegos, 314 F.3d 456, 458 (10th Cir.2002).

The district court denied the suppression of White's identity. In addition to arguing that White's identity was not suppressible,¹ the government had also asserted that, because the officers discovered that there was a warrant issued for White for traffic violations, his status as a convicted felon would have been inevitably discovered following his lawful arrest under that warrant. The court declined to apply the inevitable discovery doctrine, finding as follows:

Assuming the search of Defendant had ended when the pat down uncovered no weapons or contraband, it is not clear from Officer Simballa's testimony that the officers would have, as a matter of course, submitted Defendant's name to NCIC, based solely on the fact that he was holding a firearm for which he could not prove ownership. No testimony was offered regarding APD's protocol, if any, in such a situation or Officer Simballa's personal mode of operation.

Mem. Op. and Order at 8, R. Vol. I, Tab 25.

Even though the district court declined to apply the inevitable discovery doctrine, "we may affirm on any grounds supported by the record." Ruiz v. McDonnell, 299 F.3d 1173, 1182 (10th Cir.2002). We hold that the record supports application of the inevitable discovery doctrine to uphold the district court's denial of White's motion to suppress his identity and the subsequent discovery of his status as a felon.

Under the inevitable discovery doctrine, even if the initial search and arrest was unlawful, "the exclusionary rule is inapplicable if the evidence inevitably would have been discovered by lawful means." United States v. Souza, 223 F.3d 1197, 1202 (10th Cir.2000). "The government has the burden of proving by a preponderance of the evidence that the evidence in question would have been discovered in the absence of the Fourth Amendment violation." Id. at 1203. In determining whether the government has met its burden of proof, we consider "demonstrated historical facts," not "speculative elements." Nix v. Williams, 467 U.S. 431, 444 n. 5, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Accordingly, in this case we may affirm the district court's refusal to suppress White's identity and the subsequent revelation of his prior felony if we conclude that the government proved by a preponderance of the evidence that it would have obtained his identity and information about his prior conviction even though the search which revealed the cocaine was illegal. We hold that the demonstrated historical facts in the record establish that the government met that burden.

First, White does not contest the government's authority, during a brief investigatory detention, to run a person's name through the NCIC database. See United States v. Soto-Cervantes, 138 F.3d 1319, 1323 n. 2 (10th Cir.1998) (noting defendant's concession "that the pat-down and the requests for identification were permissible if the court determined that the detention was supported by reasonable...