UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DARRYL MARSHALL SEAY, Defendant - Appellant.
No. 18-4383
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
December 4, 2019
PUBLISHED. Argued: September 20, 2019. Amended: December 4, 2019.
Before NIEMEYER, KEENAN, and RUSHING, Circuit Judges.
Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge Niemeyer and Judge Keenan joined.
ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Daniel Taylor Young, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Andrew W. Grindrod, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Conor Mulroe, Special Assistant United States Attorney, Alexander B. Gottfried, Special Assistant United States Attorney, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; G. Zachary Terwilliger, United States Attorney, OFFICE
Defendant Darryl Seay was convicted of possession of a firearm by a felon. On appeal, he asserts that the district court erred when it denied his motion to suppress the firearm as the fruit of an unconstitutional search because police inevitably would have discovered it. For the reasons that follow, we affirm.
I.
A.
On October 27, 2016, police responded to a request from staff at the SpringHill Suites in Hampton, Virginia to evict a difficult customer, Devin Bracey. The officers knocked on Bracey‘s hotel room door and, after a few minutes of delay, she opened it. As Bracey opened the door, Seay exited the bathroom. After the officers informed them that they had been asked to leave, Bracey and Seay packed their belongings and left the room. Seay carried a clear plastic bag as he left. The officers searched the hotel room, found ammunition in the toilet bowl and drug paraphernalia wrapped in women‘s underwear, and ordered Bracey and Seay back into the room.
Officer Angela DiPentima separated the suspects to interview them. After Bracey‘s interview, Officer DiPentima and Officer Daniel Lucy conferred and determined they had probable cause to arrest Bracey on drug charges. They discussed the possibility of arresting Seay for possession of ammunition as a felon and decided they should interview him. Officer Lucy also wanted to “determine what property was whose” and to “search [Bracey‘s] property prior to taking her to lockup.” J.A. 112.
B.
A grand jury in the Eastern District of Virginia indicted Seay on one count of possession of a firearm by a felon, in violation of
The district court held a hearing at which Officers DiPentima and Lucy testified. As relevant here, Officer Lucy testified that it was standard practice in the Hampton Police Department to search and inventory an arrestee‘s property before taking her to jail. He specifically testified that, because Bracey had identified the clear plastic bag as “our stuff,” he would have taken the bag “with her to lockup” and “would have searched through the items prior to lockup.” J.A. 117–118. Officer DiPentima similarly testified that, pursuant to police department policy, Bracey‘s property would have been searched and inventoried before or at lockup.
The district court granted Seay‘s motion to suppress the statements he made to officers after the firearm was discovered, because the court concluded that, although officers had probable cause to arrest Bracey, the search of the plastic bag was not a lawful search incident to her arrest. The court denied Seay‘s motion to suppress the firearm, however, concluding that officers inevitably would have discovered it during an inventory search of the plastic bag. Seay pleaded guilty but reserved the right to appeal the denial of his motion to suppress.
II.
On appeal from a district court‘s ruling on a motion to suppress, we review legal conclusions de novo and factual findings for clear error. United States v. Stevenson, 396 F.3d 538, 541 (4th Cir. 2005). Whether law enforcement inevitably would have discovered evidence by lawful means is “a question of fact” on which we “accord great deference” to the district court. United States v. Bullette, 854 F.3d 261, 265 (4th Cir. 2017).
“For the inventory search exception to apply, the search must have ‘be[en] conducted according to standardized criteria,’ such as a uniform police department policy[,] and performed in good faith.” United States v. Matthews, 591 F.3d 230, 235 (4th Cir. 2009) (quoting Colorado v. Bertine, 479 U.S. 367, 374 n.6 (1987)). The government may demonstrate standardized criteria “by reference to either written rules and regulations or testimony regarding standard practices.” United States v. Clarke, 842 F.3d 288, 294 (4th Cir. 2016) (quoting Matthews, 591 F.3d at 235).
The evidence presented to the district court supported a finding that the firearm inevitably would have been discovered during an inventory search of the plastic bag.
Seay argues that, because Officer Lucy testified that part of the inventory procedure was discretionary, the government could not demonstrate that an inventory would have been conducted according to standardized criteria or that such a search was inevitable. Seay is correct that an inventory search policy must restrict discretion in order to tether inventory searches to their permissible purposes and prevent them from becoming “a ruse for general rummaging in order to discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990). But police discretion is not entirely forbidden; for example, an inventory search policy “may leave the inspecting officer ‘sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself.‘” United States v. Banks, 482 F.3d 733, 739 (4th Cir. 2007) (quoting Wells, 495 U.S. at 4).
Officer Lucy testified that, if an arrestee requested to send property with a companion rather than take it to jail, officers would document each item being released. As he explained, this practice was intended to prevent allegations that officers stole seized
Nor does this discretion undermine the inevitability of the inventory search and discovery of the firearm. Indeed, Seay concedes that the police “inevitably would have” inventoried Bracey‘s belongings. Reply Br. 11. Whether or not the officers would have conducted the inventory by identifying each item on camera does not change the analysis. Bracey could not leave the plastic bag behind because she had been evicted from the hotel. And if she had asked to send the bag with Seay instead of bringing it to lockup, Officer Lucy testified that the contents would have been documented before being released. Based on the evidence, the district court easily concluded that the plastic bag would have been inventoried either when Bracey was taken to lockup or before being released to Seay.
Seay also argues that the plastic bag belonged to him, not Bracey, and the police could not, and would not, have conducted an inventory search of his property as a non-arrestee. Although Seay carried the bag out of the hotel room when he and Bracey were evicted, during the subsequent search Bracey twice told Officer Lucy that the bag was “our
For these reasons, we affirm the district court‘s denial of Seay‘s motion to suppress the firearm. Because we affirm on this basis, we decline to address the government‘s alternative argument that the firearm was discovered during a valid search incident to arrest.
AFFIRMED