United States v. O'Neil ( 2023 )

Appellate Case: 22-2000 Document: 010110828134 Date Filed: 03/17/2023 Page: 1
FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
March 17, 2023
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-2000
STEVEN O’NEIL,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:19-CR-01832-JCH-1)
_________________________________
Jason Bowles of Bowles Law Firm, Albuquerque, New Mexico, for
Defendant – Appellant.
Tiffany L. Walters, Assistant United States Attorney (Alexander M.M.
Uballez, United States Attorney, with her on the brief), Albuquerque, New
Mexico, for Plaintiff – Appellee.
_________________________________
Before CARSON, EBEL, and ROSSMAN, Circuit Judges.
_________________________________
ROSSMAN, Circuit Judge.
_________________________________
After the government charged Mr. Steven O’Neil with violating the
federal felon-in-possession statute, 18 U.S.C. § 922(g)(1), he moved to
Appellate Case: 22-2000 Document: 010110828134 Date Filed: 03/17/2023 Page: 2
suppress eyewitness identification evidence and a gun seized from his
backpack. The district court denied the motions. Mr. O’Neil now appeals,
making two arguments. First, he contends the identifications should have
been excluded because they were unreliable. Second, he contends the district
court erred in concluding the gun would have been inevitably discovered
during an inventory search. We disagree with Mr. O’Neil on both issues.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.1
I. Background2
A. Factual History
On December 1, 2018, a little after 9 p.m., college student Matthew
Salmon and his friend Cagsu Caglar planned to have dinner at a dining hall
on the University of New Mexico (“UNM”) campus. Mr. Salmon drove them to
campus in his two-door coupe and parked at a UNM parking lot. Mr. Salmon
then got out of the car to pay for parking; Ms. Caglar stayed in the passenger
seat. Although it was dark, the parking lot was illuminated.
After examining the briefs and appellate record, this panel
1
unanimously determined to grant the parties’ request for a decision on the
briefs. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case was
therefore ordered submitted without oral argument.
We derive the background facts from the district court’s
2
comprehensive factual recitation in its memorandum and order on the
motions to suppress. ROA, vol. I at 153-92.
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While Ms. Caglar waited in the car, she saw a man a few parking
spaces away looking into vehicles and carrying what she thought was a black
handgun. After a minute and a half, the person approached and put his face
about two inches from the passenger window. Ms. Caglar looked at the man’s
face for ten to fifteen seconds.
When Mr. Salmon returned, the man was still standing at the
passenger-side door. The two locked eyes across the roof of the car for thirty
seconds to one minute. During this period of “hard eye contact,” the man
pointed a gun at Mr. Salmon and removed the magazine, demonstrating the
clip was loaded. ROA, vol. I at 154. Mr. Salmon later testified he was familiar
with guns and thought the weapon “looked like a 9-millimeter.” ROA, vol. III
at 15. Mr. Salmon then got back into the car and exited the parking lot.
As Mr. Salmon and Ms. Caglar drove away from campus, Ms. Caglar
called 911 and was transferred to the UNM Police Department. During the
call, Mr. Salmon turned the car around and headed toward the university
police station—about a one-minute drive from the parking lot where the
confrontation had just occurred. At the station, Mr. Salmon and Ms. Caglar
described the person they had just encountered as a man with a slender build
and facial hair wearing a black hoodie and carrying a black handgun.
Several officers from the UNM Police Department, including Officer
Nathan Lerner and Officer Tim Delgado, then drove to the scene of the
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encounter. Once at the UNM parking lot, Officer Lerner saw a man who
matched the descriptions provided by Mr. Salmon and Ms. Caglar. The man
sat on a bench, wearing a hoodie, and holding a black object, which Officer
Lerner thought “was the black Glock.” ROA, vol. III at 46, 63; ROA, vol. I at
155. There was a backpack on the bench.3
Officer Lerner told the suspect to put his hands up, but he did not
comply. Instead, he stood and walked toward Officer Lerner. On the third
command, the man put his hands up and then got on the ground. Officer
Lerner, helped by Officer Delgado, placed him in handcuffs. The object Officer
Lerner suspected was a gun was actually a shoe. Officer Delgado then went
looking for the handgun Ms. Caglar and Mr. Salmon had reported seeing.
Around this time, Officer Camacho drove Mr. Salmon and Ms. Caglar
back to the UNM parking lot for an in-field identification. When they arrived
at the scene, the man (later identified as Mr. O’Neil) was handcuffed and
standing near several officers. Police cruisers with their lights on were
parked nearby. Mr. Salmon and Ms. Caglar drove within fifteen to twenty
feet of the suspect, who was visible in the squad car’s headlights. From inside
3Officer Delgado testified the backpack “was there on the bench,”
ROA, vol. III at 85, while Ms. Caglar testified the backpack “wasn’t sitting
on a bench. It was on the ground.” Id. at 109. The district court found the
backpack was “on the bench,” ROA, vol. I at 155, and neither party
disputes this fact on appeal. We accept the district court’s finding.
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the squad car, Mr. Salmon and Ms. Caglar identified Mr. O’Neil as the man
they had encountered in the parking lot earlier that evening. Approximately
15 to 20 minutes had elapsed since the initial encounter. ROA, vol. III at 20;
ROA, vol. I at 154-55.
Meanwhile, as Officer Delgado was searching for the unaccounted-for
gun, he heard over his police radio that the witnesses had made a positive in-
field identification. A few minutes later, Officer Delgado located a backpack
on a bench about twenty feet from where Mr. O’Neil was standing while he
was detained. Officer Delgado searched the backpack and found a black
handgun inside.4
B. Procedural History
In a single-count indictment, the government charged Mr. O’Neil with
possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1).5 Mr. O’Neil filed two suppression motions. First, he sought to
Mr. O’Neil contends his backpack was searched before Officer
4
Delgado learned of the positive witness identifications. Aplt. Br. at 16-17.
As we will explain, this argument is waived, and even if we reached it, we
would not conclude the district court’s contrary finding was clearly
erroneous.
Mr. O’Neil was first prosecuted in state court for violating New
5
Mexico’s felon-in-possession statute, N.M. Stat. Ann. § 30-7-16. Mr. O’Neil
filed similar motions to suppress in state court. After an evidentiary
hearing, the state court granted Mr. O’Neil’s motion to suppress the gun,
and the state case was dismissed without prejudice.
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suppress the in-field identifications by Mr. Salmon and Ms. Caglar, which he
claimed were infected by improper police influence and unreliable, in
violation of the Due Process Clause. Second, he sought to suppress the gun
seized from his backpack in violation of the Fourth Amendment.
In January 2021, after full briefing, the district court conducted an
evidentiary hearing on the motions to suppress.6 Mr. Salmon and Ms. Caglar
testified for the prosecution, as did Officers Lerner and Delgado. The defense
did not put on any evidence. On direct examination, Mr. Salmon described
Mr. O’Neil’s appearance at the time of their initial encounter in the parking
lot. “I could tell that he was white, a little bit taller than me,” Mr. Salmon
stated. “He had a beard at the time, and a hoody [with] the hood on.” ROA,
vol. III at 16. When questioned about the in-field identification, Mr. Salmon
testified, “[t]here was no doubt in my mind that he was the same man” as the
person encountered in the UNM parking lot earlier that night. Id. at 21. “I
just noticed that he had the same stature,” Mr. Salmon said. “He had the
same sweatshirt on. The same facial hair. The same skin tone. It was pretty
obvious that it was the same guy.” Id.According to Ms. Caglar, she could identify Mr. O’Neil at the scene
because, during the confrontation in the parking lot, she had focused on his
6Mr. O’Neil waived an in-person hearing, so the proceedings took
place with all participants appearing by video conference.
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race, “Caucasian,” and “his hair color; his beard color; his clothes; his hoody,
which was black.” Id. at 103. Ms. Caglar testified that, during the encounter,
Mr. O’Neil “was actually wearing a backpack . . . I couldn’t see the back side
of his backpack, but I could see the arm strings around his arm.” Id. at 98. In
response to being asked if she was “absolutely clear” about the identification,
Ms. Caglar answered, “Yes.” Id. at 102.
Officer Lerner then testified about detaining Mr. O’Neil and the in-field
identification that followed. Officer Delgado’s testimony focused on his hunt
for the gun after Mr. O’Neil was detained and the eventual search of Mr.
O’Neil’s backpack and seizure of the handgun inside. Both officers testified
about the UNM Police Department’s inventory procedures.
In a written order, the district court denied Mr. O’Neil’s motions to
suppress. The district court first agreed with Mr. O’Neil that the in-field
identification procedure was unnecessarily suggestive. Law enforcement had
conducted a “show-up,” the district court explained, which “by definition
occurs when ‘the police present only one suspect to the identifying
witness[es].’” ROA, vol. I at 159 (citation omitted). Here, Mr. O’Neil was
singly presented, in handcuffs, surrounded by police officers, and at the scene
of the crime. The district court emphasized courts have endorsed less-
suggestive identification procedures, but here, the witnesses made their
identifications in each other’s presence while sitting together in the police
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cruiser and after law enforcement asked, “We need you to ID him . . . is that
the man?” Id. at 160.
Although it found the show-up unnecessarily suggestive, the district
court concluded the identifications were “highly reliable.” Id. at 160-61. The
district court considered the factors in Neil v. Biggers, 409 U.S. 188 (1972), to
assess the reliability of the identifications. Based on the totality of the
circumstances, the district court determined there was “very little likelihood
of misidentification” by Mr. Salmon and Ms. Caglar, and thus no due process
violation that would require suppression of the identification evidence. Id. at
160.
The district court next considered Mr. O’Neil’s claim that the
warrantless search of his backpack, and the seizure of the gun found inside,
violated the Fourth Amendment. The government maintained the exigent
circumstances exception to the warrant requirement applied because the
gun—which the witnesses had reported seeing but was still unaccounted
for—posed a risk to officers and the public. The district court rejected the
government’s exigency argument but refused to suppress the gun, concluding
it would have been inevitably discovered pursuant to the UNM Police
Department’s standardized inventory procedures.
On August 26, 2021, Mr. O’Neil entered a conditional guilty plea to the
single-count indictment, reserving his right to appeal the district court’s
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order denying his motions to suppress. Mr. O’Neil was sentenced to 27
months in prison, followed by 3 years of supervised release. This timely
appeal followed.
II. Discussion
Mr. O’Neil argues the district court erred in denying his motions to
suppress the eyewitness identifications and the gun.7 We review a district
court’s denial of a motion to suppress by “view[ing] the evidence in the light
most favorable to the determination of the district court.” United States v.
Johnson, 43 F.4th 1100, 1107 (10th Cir. 2022) (citation omitted). The
ultimate question of whether an individual’s constitutional rights have been
violated is reviewed de novo. See id. (Fourth Amendment); United States v.
Thody, 978 F.2d 625, 628 (10th Cir. 1992) (Due Process Clause). “The ‘clearly
erroneous’ standard applies with respect to the trial court’s factual findings
‘even when those findings relate to a constitutional issue.’” Thody, 978 F.2d
at 629 (citations omitted). As we explain, we affirm the district court’s well-
reasoned suppression rulings.
7Mr. O’Neil also sought to exclude “the expected in-court
identification by both Cagsu Caglar and Matthew Salmon.” ROA, vol. I at
33. The district court correctly found this argument premature because
“[a]n in-court identification is technically one that is ‘made for the first
time in court[ ]’ before a jury, which has not yet occurred in this case.” Id.
at 162 (citation omitted). Mr. O’Neil was convicted after pleading guilty
pursuant to a plea agreement, so he makes no appellate argument about
in-court identifications.
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A. The district court did not err in denying the motion to
suppress the eyewitness identifications because they were
reliable.
Typically, “juries are assigned the task of determining the reliability
of the evidence presented at trial.” Perry v. New Hampshire, 565 U.S. 228,
237 (2012). When evidence “‘is so extremely unfair that its admission
violates fundamental conceptions of justice,’” the Supreme Court has
“imposed a constraint tied to the Due Process Clause.” Id. (quoting
Dowling v. United States, 493 U.S. 342, 352 (1990)). The admission of
eyewitness identification evidence raises due process concerns “only when
law enforcement officers use an identification procedure that is both
suggestive and unnecessary.” Id. at 238-39 (citations omitted).8
Unnecessary suggestiveness alone does not require exclusion of
identification evidence. “It is the likelihood of misidentification which violates
a defendant’s right to due process,” so “the central question [is] whether
under the ‘totality of the circumstances’ the identification was reliable.”
As the Supreme Court has acknowledged, “The vagaries of
8
eyewitness identification are well-known; the annals of criminal law are
rife with instances of mistaken identification.” United States v. Wade, 388
U.S. 218, 228 (1967). But absent unnecessarily suggestive procedures, the
reliability of eyewitness identifications is ensured through traditional trial
protections. Perry, 565 U.S. at 233; see also United States v. Thomas, 849
F.3d 906 (10th Cir. 2017) (“[E]videntiary reliability is traditionally a
question for the jury . . . and . . . other due-process protections are in place
that limit the weight the jury attributes to evidence that may be
unreliable.”).
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Biggers, 409 U.S. at 198-99. This makes “reliability [] the linchpin in
determining the admissibility of identification testimony.” Manson v.
Brathwaite, 432 U.S. 98, 114 (1977).
Courts assess reliability—or put differently, “evaluat[e] the likelihood
of misidentification”—by examining the totality of the circumstances,
including (1) the opportunity of the witness to view the defendant at the time
of the crime, (2) the witness’s degree of attention, (3) the accuracy of any prior
description given by the witness, (4) the level of certainty demonstrated by
the witness at the confrontation, and (5) the length of time between the crime
and the confrontation. Biggers, 409 U.S. at 199-200; see also Archuleta v.
Kerby, 864 F.2d 709, 710-12 (10th Cir. 1989) (applying Biggers factors to
conclude a suggestive show-up identification—where the suspect was
presented alone and handcuffed at the scene of the crime approximately
thirty minutes after the witnesses’ initial encounter—was nevertheless
reliable); United States v. Bredy, 209 F.3d 1193, 1195-97 (10th Cir. 2000)
(same). “[I]f the indicia of reliability are strong enough to outweigh the
corrupting effect of the police-arranged suggestive circumstances, the
identification evidence ordinarily will be admitted, and the jury will
ultimately determine its worth.” Perry, 565 U.S. at 232.
Here, the district court concluded law enforcement used an
unnecessarily suggestive identification procedure. The government has not
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contended otherwise.9 We thus consider only Mr. O’Neil’s argument that the
district court erred in concluding the witnesses “made highly reliable
identifications.” ROA, vol. I at 161. The district court recited all the Biggers
factors in assessing reliability, but on appeal, Mr. O’Neil focuses primarily on
challenging the first three: (1) the opportunity of the witness to view the
defendant at the time of the crime, (2) the witness’s degree of attention, and
(3) the accuracy of any prior description given by the witness. His arguments
are unavailing.
First, Mr. O’Neil maintains that “neither witness had a very good
opportunity to view the suspect” because the “encounter lasted only a matter
of minutes at night.” Aplt. Br. at 23. The record shows otherwise. As the
district court correctly determined, the witnesses’ opportunity to view Mr.
9 Although we need not address this first step, we briefly observe the
record amply supports the district court’s conclusion. Suggestive
procedures are those which convey “intentionally or unintentionally, that
[police officers] expect the witness to identify the accused,” Moore v.
Illinois, 434 U.S. 220, 224 (1977), or are “so arranged as to make the
resulting identifications virtually inevitable,” Foster v. California, 394
U.S. 440, 443 (1969). Here, the district court concluded the procedure was
unnecessarily suggestive because Mr. O’Neil was “the only suspect shown
[and] was handcuffed, surrounded by police officers [] at the scene of the
crime,” and “the witnesses made their identifications in each other’s
presence.” ROA, vol. I at 160. These circumstances, the district court
determined, “gave the impression that the police had their man.” Id.(citation omitted).
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O’Neil during the confrontation—before the in-field identification—indicates
the identification was reliable.
The witnesses saw Mr. O’Neil up close during their encounter with him
in the UNM parking lot. Ms. Caglar observed Mr. O’Neil in the parking lot
for a minute and a half as he approached the car and then “put his face two
inches from the car’s passenger window” where she was seated. ROA, vol. I at
161. When Mr. Salmon returned to the car after paying for parking, he had
an independent opportunity to look at Mr. O’Neil. The two men stared at
each other over the roof of Mr. Salmon’s car “for about thirty seconds to one
minute.” Id. Mr. Salmon was close enough to Mr. O’Neil to identify the
firearm he carried. And though the encounter occurred on a December
evening (at approximately 9:20 p.m.), the parking lot was illuminated. Under
the circumstances, Mr. O’Neil has not demonstrated error, let alone clear
error. See Johnson, 43 F.4th at 1107 (“A district court’s factual finding is
clearly erroneous when it is without factual support in the record or if, after
reviewing all the evidence, we are left with a definite and firm conviction that
a mistake has been made.”); see also United States v. Patterson, 20 F.3d 809,
815 (10th Cir. 1994) (“The judge decided [the witness] had a good opportunity
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to view Mr. Patterson before and after the hijacking. No evidence has been
presented to show the district court’s determination is clearly erroneous.”).10
Second, Mr. O’Neil contends the witnesses paid insufficient attention to
his appearance during the encounter and thus could only offer vague and
unreliable descriptions. We disagree. Both witnesses paid close attention to
Mr. O’Neil’s appearance when they saw him in the UNM parking lot. Mr.
Salmon and Mr. O’Neil “stared into each other’s faces” for almost a minute.
ROA, vol. I at 161. Likewise, while waiting in the passenger seat, Ms. Caglar
observed Mr. O’Neil in the parking lot and then got a closer look at him when
he put his face to the passenger window. As the district court put it, “there is
a good reason to believe” Ms. Caglar knew what Mr. O’Neil looked like. Id.The record thus does not support Mr. O’Neil’s argument that the
identifications are unreliable because the witnesses solely “focused on looking
into [his] eyes or the gun” during the encounter. Aplt. Br. at 23.
10 To the extent Mr. O’Neil contends an encounter of short duration in
dark conditions is inherently unreliable, we disagree. Mr. O’Neil has provided
no authority for such a blanket proposition, which would be inconsistent with
the general rule that the reliability of an eyewitness identification must be
considered on a “case-by-case basis,” Perry, 565 U.S. at 239, and under the
“totality of the circumstances,” see, e.g., Biggers, 409 U.S. at 199; United States
v. Williams, 605 F.2d 495, 498 (10th Cir. 1979).
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Finally, Mr. O’Neil contends the witnesses did not accurately describe
him before positively identifying him in the field. He emphasizes that, after
the encounter in the parking lot, Mr. Salmon and Ms. Caglar did not provide
enough details to law enforcement about his height or the color and cut of his
clothing. Neither witness mentioned he had a backpack or a dog, which Mr.
O’Neil claims are “highly distinctive” characteristics “that would stick out in
a recollection, particularly a recent recollection.” Id. at 24. Mr. O’Neil also
points out he weighed 237 pounds on the date of the incident, so it was
inaccurate to describe his build as “slender.” Id. at 23-24.11 We are not
persuaded.
The district court correctly acknowledged the existence of some
differences between the witnesses’ descriptions of Mr. O’Neil and his actual
appearance. “For example,” the district court said, “Salmon described
Defendant as slender when he was large; Caglar believed he had ginger
colored hair when his was darker; and apparently Defendant had a small dog
11 The government disputes the 237-pound figure, stating “[t]he
record does not contain any evidence verifying that O’Neil weighed 237
pounds.” Appl. Br. at 19 n.9. The government points to Mr. O’Neil’s
driver’s license which states he is 6’1” tall and weighs 220 pounds. The
district court credited the 237-pound figure in its factual findings, and we
see no clear error.
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with him that the witnesses did not report seeing.” ROA, vol. I at 162.12 As
the government correctly contends, a witness’s “description [can be] accurate
even where it contained minor errors.” Appl. Br. at 21 (citing Archuleta, 864
F.2d at 712). But errors, even slight ones, must be considered case-by-case
when evaluating the reliability of the eyewitness identification under the
totality of the circumstances. Here, the record supports the district court’s
conclusion that the discrepancies in this case “do not detract from the fact
that the witnesses’ descriptions, given over numerous occasions, are largely
consistent with one another and with [Mr. O’Neil’s] actual appearance.” ROA,
vol. I at 162.
Moreover, the final two Biggers factors—the level of certainty
demonstrated by the witness at the confrontation, and the length of time
between the crime and the confrontation—are unchallenged by Mr. O’Neil
and do not undermine the district court’s reliability determination. The
district court correctly observed that the witnesses “expressed complete
certainty in their identifications.” Id.13 Mr. Salmon testified there was “no
Although the backpack was not mentioned in the description
12
provided to police, Ms. Caglar testified at the suppression hearing she saw
that Mr. O’Neil “was actually wearing a backpack.” ROA, vol. III at 98.
The record does not resolve whether Mr. O’Neil had a dog with him that
night.
13We have no reason to question the district court’s reliance in this
case on the witnesses’ own level of certainty in their identifications. But
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doubt” Mr. O’Neil was the man they had encountered. Ms. Caglar likewise
maintained she was “absolutely clear” during the in-field identification that
Mr. O’Neil was the individual in the parking lot. And the record shows the
positive in-field identifications occurred only about twenty minutes after the
incident.
We thus affirm the district court’s conclusion that the identifications
were “highly reliable,” and need not be suppressed, even though the
identification procedure used by law enforcement was unnecessarily
suggestive.
B. The district court did not err in denying the motion to
suppress the gun found in Mr. O’Neil’s backpack because it
would have been inevitably discovered.
Mr. O’Neil’s second motion to suppress concerned the gun, which he
claimed was seized pursuant to an illegal search of his backpack. The
government originally invoked the exigent circumstances exception to justify
the warrantless search, contending “an unattended gun in a heavily
trafficked area” made for “a clear instance of exigency.” Id. at 40. The district
court rejected this argument, finding no exigency because the scene was
there will not always be clear correlation between witness confidence and
accuracy. See, e.g., 2 Wayne R. LaFave et al., Criminal Procedure § 7.4(c)
(4th ed. 2015) (“The level of certainty demonstrated at the confrontation
by the witness . . . is not a valid indicator of the accuracy of the
recollection.”) (collecting cases).
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secure, a pat-down search revealed no weapons, and Mr. O’Neil was
handcuffed and separated from his backpack by about twenty feet when he
was detained. “[W]hile the record contains some facts supporting a conclusion
that the risk to the public’s safety or third persons was present,” the district
court reasoned, “those facts are not so overwhelming to dispense with the
warrant requirement before conducting a search or seizure.” Id. at 166.
The government offered no other basis for finding the warrantless
search satisfied the Fourth Amendment. Notwithstanding the constitutional
violation, however, the government maintained the gun should not be
suppressed because it would have been inevitably discovered during an
inventory search by the UNM police. The district court agreed with the
government. As soon as the witnesses positively identified Mr. O’Neil in the
field, the district court explained, law enforcement had probable cause to
arrest him. The district court concluded that, once Mr. O’Neil was arrested,
his backpack was “necessarily going to be searched and inventoried under the
university police department’s inventory policy.” Id. at 168.
On appeal, Mr. O’Neil challenges the district court’s decision to deny
suppression of the gun on inevitable discovery grounds. We begin by reciting
the legal foundation for the inevitable discovery exception before explaining
why the district court correctly applied it here to deny Mr. O’Neil’s motion to
suppress.
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1. Inevitable Discovery
The Fourth Amendment protects “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures.” U.S. Const. amend. IV. “Searches conducted without a warrant
are per se unreasonable under the Fourth Amendment—subject only to a few
specifically established and well-delineated exceptions.” Roska ex rel. Roska
v. Peterson, 328 F.3d 1230, 1248 (10th Cir. 2003) (citation omitted). Evidence
obtained through an unconstitutional search will be inadmissible under the
exclusionary rule unless the government proves an exception applies. United
States v. Neugin, 958 F.3d 924, 931-32 (10th Cir. 2020).
The Supreme Court has recognized “the ultimate or inevitable
discovery exception to the exclusionary rule,” which applies when “the
prosecution can establish by a preponderance of the evidence that the
information ultimately or inevitably would have been discovered by lawful
means . . . .” Nix v. Williams, 467 U.S. 431, 444 (1984). “Those lawful means
include an inventory search.” United States v. Tueller, 349 F.3d 1239, 1243
(10th Cir. 2003) (citing United States v. Ibarra, 955 F.2d 1405, 1410 (10th
Cir. 1992) (“[I]f evidence seized unlawfully would have been inevitably
discovered in a subsequent inventory search, such evidence would be
admissible.”)); see also Colorado v. Bertine, 479 U.S. 367, 371 (1987)
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(“[I]nventory searches are now a well-defined exception to the warrant
requirement of the Fourth Amendment.”).
The inevitable discovery exception is not a windfall device. It is not
intended to put police in a better position but only “in the same, not a worse,
position [than] they would have been in if no police error or misconduct had
occurred.” Nix, 467 U.S. at 443. In assessing the government’s burden, we are
mindful “inevitable discovery involves no speculative elements but focuses on
demonstrated historical facts capable of ready verification.” Id. at 444 n.5.
2. Analysis
Mr. O’Neil challenges the application of the inevitable discovery
exception to the exclusionary rule on two grounds; neither is availing.14
First, Mr. O’Neil contends there was no probable cause to arrest him
before the gun was discovered. The government faults Mr. O’Neil for failing
14 Mr. O’Neil also seems to contend his arrest was not justified, even
if the eyewitness identifications are admissible, because illegally carrying
a firearm on university premises is only a misdemeanor under New
Mexico law. This argument is advanced only in the Summary of Argument
section of Mr. O’Neil’s opening brief and not otherwise developed; it is
therefore waived. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.
2007) (“[W]e routinely have declined to consider arguments that are not
raised, or are inadequately presented, in an appellant’s opening brief.”);
Ewing v. Doubletree DTWC, LLC, 673 F. App’x 808 (10th Cir. 2016)
(unpublished) (“[Plaintiff] dedicates less than one page to this issue in the
Summary of Argument section of her brief and then never discusses this
issue in the actual Argument section. Such a flimsy and deficient legal
analysis is inadequate to preserve an issue for appeal.”).
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to address the district court’s finding that probable cause to arrest would
have existed even without the subsequent seizure of the gun, just based on
the witness identifications. We agree with the government.
“[A] government official must have probable cause to arrest an
individual.” Cortez v. McCauley, 478 F.3d 1108, 1117 (10th Cir. 2007).
“Probable cause is measured at the moment the arrest occurs and must
derive from facts and circumstances based on reasonably trustworthy
information.” Id. at 1121. Courts generally deem a victim’s identification of
their assailant reasonably trustworthy to support probable cause to arrest.
See id. (“[O]rdinarily, the statement of a victim of a crime to police may
establish probable cause absent some reason to think the statement not
trustworthy.”); see also Stansbury v. Wertman, 721 F.3d 84, 90 (2d Cir. 2013)
(“[A]bsent circumstances that raise doubts as to the victim’s veracity, a
victim’s identification is typically sufficient to provide probable cause.”)
(citation omitted); Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir. 1999) (“A law
enforcement officer is entitled to rely on an eyewitness identification to
establish adequate probable cause with which to sustain an arrest.”).
Mr. O’Neil focuses on the unconstitutionality of the backpack search,
but he offers no argument to explain why the district court erred in its
probable cause assessment when analyzing the applicability of the inevitable
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discovery exception.15 Under the circumstances, and particularly given no
contrary argument, the district court did not err in concluding the witness
identifications would have given law enforcement probable cause to arrest
Mr. O’Neil.
Second, Mr. O’Neil claims the government failed to carry its burden of
establishing that the inventory search was conducted according to
standardized procedures. The government offered no written policy of UNM’s
inventory protocols, Mr. O’Neil contends, but provided only a “general
reference to some undescribed inventory search process Officer Delgado
would have undertaken.” Aplt. Br. at 22. The government concedes no
15 Mr. O’Neil suggests in his Summary of Argument that the district
court clearly erred in finding the backpack was searched after the in-field
identifications, but he does not develop this argument in his opening brief
and has therefore waived it. Aplt. Br. at 16-17; see Bronson, 500 F.3d at 1104.
Even if we reached the merits, we would reject the argument. The district
court acknowledged that, in the federal case, Officer Lerner testified the
backpack search was done after the in-field identification, but in state court,
he testified to the opposite chronology of events. According to the district
court, however, “[t]hese differing accounts do not render Lerner’s testimony
unreliable, but instead highlight gaps in Lerner’s recollection of events.
Those gaps were filled by Officer Delgado, however, who testified that he
personally searched the backpack and consistently maintained that he did so
after the witnesses identified [Mr. O’Neil].” ROA, vol. I at 156 n.1. We discern
no clear error in the district court’s decision to credit Officer Delgado’s
rendition of events and on that basis, to find the backpack was searched after
the witnesses positively identified Mr. O’Neil. See United States v. Souza, 223
F.3d 1197, 1201 (10th Cir. 2000) (“[T]he district court’s factual
determinations are reviewed only for clear error.”); see also United States v.
Long, 176 F.3d 1304, 1307 (10th Cir. 1999) (“The credibility of witnesses . . .
fall[s] within the province of the district court.”).
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written inventory procedures were introduced into evidence. According to the
government, “standard inventory procedures and practices can be proven by
testimonial evidence.” Appl. Br. at 31. The government points to the
testimony of Officers Lerner and Delgado at the suppression hearing as
sufficient to satisfy its burden of establishing standardized inventory
procedures. We discern no error.
“A so-called inventory search is not an independent legal concept but
rather an incidental administrative step following arrest and preceding
incarceration.” Illinois v. Lafayette, 462 U.S. 640, 644 (1983). Inventory
searches are “not treated as investigative searches because they serve three
administrative purposes: ‘the protection of the owner’s property while it
remains in police custody, the protection of the police against claims or
disputes over lost or stolen property, and the protection of the police from
potential danger.’” Tueller, 349 F.3d at 1243 (quoting South Dakota v.
Opperman, 428 U.S. 364, 369 (1976)).
An inventory search is unconstitutional unless conducted “according to
standard criteria and on the basis of something other than suspicion of
evidence of criminal activity.” Florida v. Wells, 495 U.S. 1, 4 (1990) (quoting
Bertine, 479 U.S. at 375); United States v. Haro-Salcedo, 107 F.3d 769, 772
(10th Cir.1997) (inventory searches “are reasonable only if conducted
according to standardized procedures”). “[R]easonable police . . . inventory
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procedures administered in good faith satisfy the Fourth Amendment.”
United States v. Taylor, 592 F.3d 1104, 1108 (10th Cir. 2010) (quoting
Bertine, 479 U.S. at 374). The government carries the burden of
demonstrating reasonableness. Id. at 1107.
Our precedent does not require the government to produce standard
inventory procedures in writing. See United States v. Kornegay, 885 F.2d 713,
717 (10th Cir. 1989) (“The record reflects no written regulation . . . but the
testimony of Agent Blanton established that it is the customary and standard
practice [to perform an inventory] when a vehicle is impounded.”). What is
required is that the government prove “[t]he policy or practice governing
inventory searches [is] designed to produce an inventory” and is not a “ruse
for a general rummaging in order to discover incriminating evidence.” Wells,
495 U.S. at 4.
Officer Lerner testified at the suppression hearing that “[e]verybody we
arrest, we take their stuff and we don’t tag it into evidence. We tag it in for
safekeeping.” ROA, vol. III at 56. Likewise, Officer Delgado testified “by our
policy, we needed to go through the backpack to make sure [because] we’re
responsible for any belongings belonging to a person that’s placed in custody.”
Id. at 79. On cross-examination, Officer Delgado was asked why he searched
the backpack, and he said, “our policy is any time we place anybody in
custody their possessions [are] our responsibility. . . . [W]e have to make sure
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there’s no narcotics, weapon, alcohol, food, or anything in there before we can
place them in safekeeping. So we have to search them.” Id. at 86.
Here, Officer Lerner’s and Officer Delgado’s testimony suffices to show
UNM police had a policy to take and inventory for safekeeping the
possessions of anyone they arrest.16 We thus affirm the district court’s
conclusion that suppression was not warranted because the gun would have
been inevitably discovered under the standard inventory procedures used by
UNM police.
III. Conclusion
We affirm the district court’s denial of Mr. O’Neil’s motions to suppress
the eyewitness identifications and the gun.
16 We note that, when the government seeks to demonstrate the
existence of standardized procedures to establish the reasonableness of an
inventory search under the Fourth Amendment, the better practice would
be to introduce the written inventory procedures, if they are available.
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