Following Inventory Policy Leads to Admissible Evidence of Firearm

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United States v. Seay, 944 F.3d 220 (4th Cir. 2019)

Officers were called to evict an unruly motel guest. The officers knocked on the motel room door; Devin Bracey opened the door as Darryl Seay was coming out of the bathroom. The officers told Bracey and Seay the motel wanted them to leave. Bracey and Seay packed up their belongings and walked out of the room. Bracey carried a clear plastic bag as he left the room.

As the two guests were leaving, the officers searched the room. They found ammunition in the toilet bowl and drug paraphernalia wrapped in women’s underwear. The officers called out to Bracey and Seay and ordered them to come back into the motel room.

The officers determined there was probable cause to arrest Bracey on drug charges, but they did not immediately arrest her. As one officer interviewed Seay, another officer searched Bracey’s belongings. As Bracey picked up the clear plastic bag, she said, “This stuff is our stuff.” The officer searched the clear plastic bag and found a handgun wrapped in a jacket.

The inevitable discovery doctrine permits admission of evidence gathered in an arguably unreasonable search if the prosecution can show by a preponderance of the evidence that officers would have “ultimately or inevitably” discovered the evidence by other lawful means…

Seay was charged with being a felon in possession of a firearm. Seay asked the court to suppress the discovery of the gun and his statements made after the officers found the gun. The officer who found the gun testified it was standard department policy to search and inventory an arrestee’s property before taking the arrestee to jail. The officer explained if the arrestee asked for personal property to be released to a third party, the officer would usually identify each item of property, capturing the image on a body worn camera and asking for specific authorization to release that item of property.  However, the department allowed an officer to exercise discretion whether to verbally identify each item in a container on camera and obtain specific authorization to release each item to another person. Seay claimed that measure of officer discretion rendered the inventory invalid because it did not follow a standard department policy. Seay claimed when Bracey twice identified the plastic bag as containing “our stuff,” the officer should have stopped and clarified whose property was in the bag.

The trial court agreed to suppress Seay’s statements made after discovery of the gun, ruling the search of the plastic bag was not a lawful search incident to arrest. However, the trial court refused to suppress the gun itself, ruling it would have inevitably been discovered in the inventory of the plastic bag. The inevitable discovery doctrine permits admission of evidence gathered in an arguably unreasonable search if the prosecution can show by a preponderance of the evidence that officers would have “ultimately or inevitably” discovered the evidence by other lawful means, such as an inventory (Nix v. Williams, 467 U.S. 431 (1984)). A valid inventory search must “be conducted according to standardized criteria,” such as a police department policy, and performed in good faith, as stated in Colorado v. Bertine (479 U.S. 367 (1987)).

The appellate court agreed the gun would have been inevitably discovered. The court held the measure of discretion allowed in whether to video record each item was not fatal to a valid standard inventory policy. The contents of the bag would have been inventoried, whether on camera or not. Because the court held the gun would have been inevitably discovered one way or another, the court did not decide whether the search could have been upheld as a valid search incident to arrest.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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