NO T FO R PUB L I CAT IO N UNITED STATES C O UR T OF APPEALS FOR

THE NINTH C IR C UIT

No. 20-50031 D.C . No. 2:18-c r-00719-DSF-1
M EM O R A NDUM *

O n Appe a l from

the Unite d Sta te s Distric t C ourt for the C e ntra l Distric t of C a l ifornia Da le S. Fisc he r, Distric t Judge , Pre siding Argue d a

nd Subm itte d Nove m

be r 17, 2021 Pa sa de n a , C a l ifornia B e fore : R AW LINSON a

nd LEE, C irc u it Judge s; KENNELLY, Distric t Judge **

. Pa rtia l C onc urre nc e a nd Pa rtia l Disse nt by

Judge KENNELLY.

* This disposition is not a p p r o p r i a t e for public a tion a

n d is not pre c e d e nt e xc e pt a s provide d by Ninth C irc uit R

u le 36-3.
** T he Honora

ble M a tthe w F. Ke nne lly , Unite d Sta te s Distric t Judge for the Northe rn Distric t of Illinois, sitting by de signa tion. 

# FIL ED

JAN 7 2022

M OLLY C. DW Y ER, CLERK U. S. CO URT O F APPEALS

UNITED STATES OF AM ER IC A,

Pla intiff-Appe lle e , v. PHONG PHAN,

De fe nda nt-Appe lla

nt.

Pa ge 1 of 4De fe nda nt-Appe lla

nt Phong Pha

n (Pha n ) a ppe a ls from

the distric t c ourt’ s orde r re ly ing on the ine vita b le disc ove ry

doc trine to de ny

his m otion to suppre ss. W e ha v e jurisdic tion pursua nt to 28 U.S.C . § 1291 a

nd 18 U.S.C . § 3742. Ine v ita ble disc ove ry rulings a

re m ixe d que stions of la

w a nd fa c t tha

t a re re v ie we d unde r a c le a rly e rrone ous sta

nda rd of re vie w . Se e Unite d State s v . Lang , 149 F.3d 1044, 1047 (9th C ir. 1998). W e a ffirm the distric t c ourt’ s de nia l of Pha n’ s m otion to suppre ss, but re ve rse a nd re m a nd the im position of sta

nda rd supe rvise d re le a se
c ondition Num

be r 14 (Sta

nda rd C ondition 14). 1. The distric t c ourt found tha t two offic e rs viola

te d Pha n’ s Fourth Am e ndm e nt rights during a tra ffic stop tha

t le d to the disc ove ry

of inc rim i na ting
e vide nc e . Pha n

brought a

m otion to suppre ss the e vide nc e re c ove re d from his pe rson, wa l le t, a

n d ve hic le , whic h the distric t c o urt de nie d. Spe c ific a lly , the c ourt found tha t a lthough the

offic e rs viola

te d Pha n ’ s c onstitutiona

l rights unde r the Fourth Am e ndm e n t , the inc rim ina ting e v ide nc e would ha v e be e n ine vita

bly disc ove re d by

the offic e rs in c onduc ting a se a rc h inc ide nt to Pha

n’ s a rre st on a n outsta nding wa rra n t disc ove re d during a

re c ords c he c k. 2. The distric t c ourt de t e rm ine d tha t the gove rnm e nt a de q

ua te ly de m onstra

te d the e vide nc e Pha n sought to suppre ss would ha ve be e n ine vita

bly disc ove re d by

la wful m e a ns, i .e . during the se a rc h inc ide nt to a rre st on the Pa ge 2 of 4outsta

nding wa rra n t, a n d the la te r inve ntory

se a rc h of the c a r. Se e N

ix v . W illiams , 467 U.S. 431, 432 (1984). The distric t c o urt re a s one d tha t it is c om m on a nd pe rm issible for offic e rs to run a wa rra n t c he c k during a va lid tra ffic stop. Inde e d, the Supre m e C ourt ha s c onfirm e d tha t a wa rra nt c he c k during a va lid tra ffic stop is
a n “ o rdina

ry inquir[y ] inc ide nt to the tra ffic stop” a nd is pa rt of a n “ offic e r’ s
m ission.” Rodrigue

z v . Unite d State

s , 575 U.S. 348, 355 (2015). The distric t c ourt
a lso note d

tha t the offic e rs ra n

a wa rra nt c he c k while still in the fie ld, “ a lbe it a fte r
se a rc hing a

nd a rre sting M r. Pha n, but be fore M r. Pha n wa s ta ke n to the sta

tion.” The distric t c ourt’ s a

pplic a tion of the ine vita

ble disc ove ry

doc trine wa s not
c le a rly e rrone ous. Se e Unite d S tate s v . Hink son , 585 F.3d 1247, 1262 (9th C ir. 2009) (e n ba

nc ); se e also Yu v . Idaho State Univ e rsity , 15 F.4th 1236, 1241-42 (9th C ir. 2021) (e xpla ining tha t findings a

re c le a rly e rrone o us if the y

a re “ illogic a l, im pla usible , or without support in infe re nc e s from the re c ord” ) (c ita tion om itte d). As the distric t c ourt obse rve d, the offic e rs ultim a te ly pe rform e d

a wa rra nt c he c k while still a

t the sc e ne of the tra ffic stop. This “ o rdina ry inquir[y ] ” tha

t is pa rt of

“ a n offic e r’ s m ission,” se e Rodrigue z , 575 U.S. a

t 355, wa s m

uc h m ore dire c t tha

n the a tte nua t e d ine v ita

ble disc ove ry uphe ld by

the Supre m e C ourt in N

ix
. Se e 104 S.C t. a t 448-49. The re fore , N ix doe s not support Pha

n’ s suppre s sion a

rgum e nt. B e c a use the re wa s no c le a r e rror in the distric t c ourt’ s finding tha t the offic e rs

Pa ge 3 of 4would ha

ve ine vita bly disc ove re d the e vide nc e Pha n sought to suppre ss, we a ffirm the d e nia l of Pha

n’ s m otion to suppre ss. 3. The gove rnm e nt c o n c e de s tha t im position of Sta

nda rd C ondition 14 wa s pla i nly e rrone ous, a

n d should be re m a nde d to the distric t c ourt. Se e Unite d State s
v . Magdirila , 962 F.3d 1152, 1158-59 (9th C i r. 2020). W e , the re fore , va c a te Sta n da rd C ondition 14 a

nd re m a nd to the distric t c ourt to re vise this c ondition in
c onform ity

with Magdirila
. AFFIRM E D in par t; RE V E RSE D and RE M ANDE D in par t
.

Pa ge 4 of 4USA v. Phong Phan , No. 20

- 50031 KENNELLY, District Judge, concurring in part and dissenting in part : I agree with the majority ’s decision to vacate the supervised release condition but respectfully dissent regarding the denial of Phan’s motion to suppress because I do not believe the government carried its burden on its claim of inevitable discovery
. The Supreme Court teaches that the i nevitable discovery doctrine requires “demonstrated historical facts” es tablishing that law enforcement would have discovered the evidence at issue even without the Fourth Amendment violation
. Nix v. Williams , 467 U.S. 431, 444 n.5 (1984 ). T he government carries the burden of proving this by a preponderance of the evidence. Id. at 444; s ee United States v. Cabassa , 62 F.3d 470, 474 (2d Cir. 1995) ( emphasizing the difference “between proving by a preponderance that something would have happened and proving by a preponderance that something would inevitably have happened ”). In this case, law enforcement violated Phan’s constitutional rights at nearly every turn of the encounter from the moment they pulled over his car to the point when they ran a warrant check forty minutes later: they prolon ged the stop through unnecessary questioning, they impermissibly conducted a Terry frisk, they illegally searched his wallet to obtain his license, and they illegally searched the vehicle. To establish inevitable discovery , the government had to prove tha t , if they had not 

# FILED

JAN 7 2022 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 violated the Fourth Amendment, the officers inevitably would have conducted a warrant check upon learning Phan’s name that would have led to his lawful arrest
. 1 The majority bases its inevitable discovery holding on the fact that the officers ultimately performed a warrant check at the end of the traffic stop and the determination that such a check i s an “ ordinary inquir[y] that is part of an ‘officer’s mission.’” Mem. Disp. at 3 (quoting Rodriguez v. United States , 575 U.S. 348, 355 (2015)). This, however, assumes that the officers would have conducted a warrant check earlier had they not violated the Constitution , and Nix requires “demonstrated historical facts,” not assumptions. I n this particular case the proposition that war rant checks are an “ordinary inquir[y] that is part of an officer’s mission” is refuted by the fact that under California law, “ [o]fficers have discretion to acce pt
. . . oral evidence of identity” in this situation and need not conduct a records check. Pe ople v. Lopez , 8 Cal. 5th 353, 370

– 71 (2019). It would have been simple enough

— were it true

— for the government to have elicited testimony that a warrant check following a stop is routine in the scenario that existed here, but it did not do so. In these circumstances, an assumption

1 The government’s inevitable discovery theory is predicated on a lawful arrest preceding both a search incident to arrest ( leading to evidence on Phan’s person and wallet) and the resulting impoundment and inventory search of the vehicle ( leading to evidence in the vehicle)
. Because I do not believe the government has proven the inevitability of the warrant check , I express no view on whether the government carried its burden regarding t he inventory search
.3 regarding what the officers would have done absent their multiple violations of the Fourth Amendment does not amount to “facts capable of ready verification or impeachment” sufficient to carry the government’s burden
. Nix , 467 U.S. at 444 n.5. On the record before the district court, a s in United States v. Ramirez

Sandoval , 872 F. 2 d 1392, 1400 (9th Cir. 1989), the court could not “say with any certainty that the police would have discovered the evidence if the illegal searc h had not occurred.” 2 Because the government, in my view, failed to carry its burden of establishing inevitable discovery , I would reverse the district court’s denial of the motion to suppress
.

2 In this regard, I note that ev en once the officers obtained Phan’s license via an unlawful search, they still did not conduct a warrant check but instead spent the next twenty minutes unlawfully scouring his vehicle. This further tends to undercut the proposition that a warrant check would have been done as a matter of routine.