## F I L E D United States Court of Appeals Tenth Circuit 

### APR 8 2003 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. FIRDIE EARL WHITE,

Defendant - Appellant. No. 02-2118

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. NO. CR-01-741-LH)

Todd B. Hotchkiss, Frechette & Associates, P.C., Al buquerque, New Mexico, for Defendant - Appellant. James Miles Hanisee, Assistant United States Attorn ey (David C. Iglesias, United States Attorney, and Laura Fashing, Assistant Unite d States Attorney, on the brief), Albuquerque, New Mexico, for Plaintiff - Ap pellee.

Before LUCERO , HOLLOWAY , and ANDERSON , Circuit Judges.

ANDERSON , Circuit Judge.

Defendant Firdie Earl White was convicted of posses sion of a firearm after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and-2-

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 diff erent basis than the district

court.

BACKGROUND On December 22, 2000, an Albuquerque, New Mexico, p olice dispatcher informed Albuquerque police officer Anthony Simball a that an anonymous tip indicated that individuals were suspected of sellin g 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 e ncountered Francisco Navarez and Stephanie Holguin in the parking lot. When asked if they lived there, Navarez responded that he lived in ApartmentC. When Officer Simballa asked Navarez if he would mind talking to the offic ers 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 Si mballa saw five people inside the apartment, one of whom, later ide ntified as defendant White, was holding a gun and pointing it towards the floor . When White saw the-3-

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 g un he was holding on a table and raised his hands. Officer Simballa secured the gun and removed the ma gazine, which contained six bullets, although the chamber was emp ty. Officer Simballa handcuffed White and patted him down. During the p at-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, OfficerSimballa 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 off icer 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 h e returned to and opened the dental floss container, the officer discovered fourrocks of what turned out to be cocaine. The officers placed White under arrest, a nd Officer Porter read him his Miranda rights. After White was advised of his rights, Officer Simb alla asked him what the substance was that was inside the dental floss cont ainer, and White responded that it was crack cocaine. When asked what he was doing with the gun, White replied-4-

that he was thinking of buying it. At some point, White either gave Officer Simballa an identification card or told the officerhis name, date of birth and social security number. Officers Simballa and Port er checked the National Crime Information Channel (“NCIC”) and learned that there was a warrant outstanding for White’s arrest for traffic violations. They in formed White that he had an outstanding warrant. At the hearing on White’s mot ion to suppress, Officer Simballa testified that the existence of the outsta nding warrant was “also a basis for [White’s] being arrested at that time.” Id. at 20. The officers took the gun, the magazine with bullet s, the dental floss container and the crack cocaine as evidence, and Wh ite was booked into the Bernalillo County Detention Center “on the possessi on of controlled substance and his warrant.” Id. After White’s arrest, subsequent inquiries reveal ed that he had previously been convicted of a felony. White w as 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 co nnection with his arrest, as well as the statements he made, on the g round that the cocaine was seized illegally. He also sought suppression of hi s identity and the subsequent investigation which led to the discovery that he wa s a felon. The district court conducted a hearing and granted White’s motion in p art and denied it in part. The-5-

court concluded that, while the initial pat-down wa s justified, White’s consent to the removal of the dental floss container was not v oluntary. Accordingly, the search leading to the discovery of the crack cocain e 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 (1984), and it refused to suppress the gun, conclud ing that the officers saw the gun when they lawfully entered the apartment and ex igent circumstances gave the officers probable cause to seize it. After a mistrial was declared in White’s trial, sho rtly after jury selection began, White pled guilty pursuant to a plea agreeme nt, reserving his right to appeal the district court’s denial of his motion to suppress his identity, the subsequent investigation which led to the discoveryof 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 s pecial assessment. White appeals, arguing the court erred in failing to supp ress his identity and the investigation leading to the discovery of his felon status.1 The government also argued that White’s identity wa s not subject to

suppression, relying on Lopez-Mendoza ’s statement that “[t]he ‘body’ or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, evenif it is conceded that an unlawful arrest, search or interrogation occurred.” 468 U.S. at 1039. See United States v. Roque-Villanueva , 175 F.3d 345 (5th Cir. 1999); United States v. Guzman-Bruno , 27 F.3d 420, 422 (9th Cir. 1994). Because we mayresolve this case on the basis of the inevitable discovery doctr ine, we need not address this issue. -6- DISCUSSION When reviewing the denial of a motion to suppress, “we review the district court’s factual findings for clear error, its concl usions 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 thatthere was a warrant issued for White for traffic violations, his status as a convi cted felon would have been inevitably discovered following his lawful arrest u nder 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 clearfrom Officer Simballa’s testimony that the officers would have, as a matter of course, submitted Defendant’s name to NCIC, based s olely on the fact that he was holding a firearm for which he cou ld not prove ownership. No testimony was offered regarding APD’ s protocol, if-7-

any, in such a situation or Officer Simballa’s pers onal mode of operation. Mem. Op. and Order at 8, R. Vol. I, Tab 25. Even though the district court declined to apply th e 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 th at the record supports application of the inevitable discovery do ctrine to uphold the district court’s denial of White’s motion to suppress his id entity and the subsequent discovery of his status as a felon. Under the inevitable discovery doctrine, even if th e initial search and arrest was unlawful, “the exclusionary rule is inapplicabl e if the evidence inevitably would have been discovered by lawful means.” United States v. Souza , 223 F.3d 1197, 1202 (10th Cir. 2002). “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 burd en of proof, we consider “demonstrated historical facts,” not “speculative elements.” Nix v. Williams , 467 U.S. 431, 444 n.5 (1984). Accordingly, in this cas e we may affirm the district court’s refusal to suppress White’s identity and th e subsequent revelation of his prior felony if we conclude that the government pro ved by a preponderance of the evidence that it would have obtained his identity a nd information about his prior-8-

conviction even though the search which revealed th e 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 auth ority, 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 r equests for identification were permissible if the court determined that the detent ion was supported by reasonable suspicion”). Thus, there was, and there would be, nothing improper in the officers’ checking White’s name against the NCIC database. Further, a police officer may request identificatio n from any person he encounters, and, if the individual responds, as Whi te evidently readily did, the officer may run that identification through the NCI C database. White does not dispute the district court’s conclusion that the in itial pat-down of himself and the other individuals at the apartment was justified, g iven the tip about drug activity, and the discovery of the five individuals in the ap artment, one of whom, White, was holding a gun whose ownership was undetermined. While the district court found that it was unclear whether a routine NCIC ch eck would have been run on an individual in White’s situation, the record reve als that the officers in fact did2 Citing the testimony quoted above, the government averred in its motion

for reconsideration of the district court’s refusal to apply the inevitable discovery doctrine that the officers ran NCIC checks on all o f the individuals in the apartment. White does not refute that representati on.

3 We recognize, of course, that we review any factual findings made by the (continued...) -9- run NCIC checks on other individuals in the apartme nt. Officer Simballa testified as follows: When [White] gave me his name, his date of birth, s ocial, I relayed that message or that information along with the other ID’s that we found on the subjects or whatever their names were to Officer Porter, who then switched to the national crime informationchannel on our radio system and ran them to see if they had any outstanding warrants. R. Vol. IV at 19 (emphasis added). That testimony establishes that NCIC checks were run on multiple individuals at the apartment. 2 Indeed, the NCIC check revealed an outstanding warrant on one of the indiv iduals (Navarez) besides White, and Navarez was arrested along with White. Thus, there is a solid implication that the officers routinely ran NCIC ch ecks on persons briefly detained, following the discovery of a weapon in co nnection with an investigation into alleged drug activity, and they in fact did so in this case. We find the record establishes that the government proved by a prepond erance of the evidence that, regardless of the illegal search of the dental flos s container, the officers would have routinely and lawfully run an NCIC check on Wh ite, which would have revealed his outstanding arrest warrant. 3 Cf. United States v. Santana-Garcia , 2643 (...continued)

district court for clear error. It is unclear from the district court’s opinion whether it found as a matter of fact that the offic ers would or would not routinely run NCIC checks on individuals in White’s situation . To the extent the district court found that the officers did not routinely run such checks, or did not do so in this case, we conclude that finding was clearly err oneous. -10- F.3d 1188, 1192 (10th Cir. 2001) (noting that legal ity of detention is measured by an objective standard and the fact “[t]hat an offic er did not believe probable cause existed to detain a suspect does not preclude the G overnment from justifying the suspect’s detention by establishing probable cause” ). The record also contains ample evidence supporting the conclusion that, once the NCIC check revealed his outstanding warrant, White would have been lawfully arrested and booked into the Bernalillo Co unty Detention Center. Officer Simballa testified that the existence of th e outstanding warrant was “also a basis for [White’s] being arrested.” R. Vol. IV at 20. He further testified that White was booked into the Bernalillo County Detenti on Center “on the possession of controlled substance and his warrant.” Id. (emphasis added). Officer Simballa testified that it was his personal practice to “enf orce all the metropolitan court bench warrants that [he] come[s] across.” Id. at 44. The fact that Navarez was also booked on an outstanding warrant further suppo rts the government’s position below that White would have been arrested on his ow n outstanding warrant.-11-

Thus, White was lawfully arrested and detained at t he Detention Center, where further investigation revealed his prior felony con viction. Finally, we find further support for our conclusionin this case by considering the purpose of the exclusionary rule. As the Supreme Court stated: We need not hold that all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt questi on in such a case is whether, granting establishment of the primary ille gality, the evidence to which instant objection is made has bee n come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Wong Sun v. United States , 371 U.S. 471, 487-88 (1963) (quotations omitted). Accordingly, we do not conclude that White’s identi ty and the record of his prior felony conviction are suppressible simply because “ but for” the illegal search and seizure of the cocaine, his identity and status as a felon would not have been discovered. Rather, the question is whether the po lice exploited that illegality to discover his identity and felon status. In this case, it can hardly be said that the police exploited the illegal search to obtain White’s identity and, eventually, information on his prior conviction. To the contrary, in connection with a brief investi gatory detention to determine whether a tip about drug activity had any validity, and after seeing White holding a gun which nobody in the apartment was authorized to possess, the police asked his name, he promptly gave it to them, they ran an NCIC check on it and-12-

determined there was an outstanding warrant. He wa s arrested for both the illegally obtained cocaine and the warrant. At that point, the police were completely unaware of the fact that White had a pri or felony conviction. After being booked, the police, at some later date, deter mined that he had a prior felony conviction, presumably from public records predatin g any illegality in the police officers’ conduct relating to White’s arrest. The purpose of the exclusionary rule is in no way compromised by refusing to suppress th at information. “The exclusionary rule enjoins the Government from benef iting from evidence it has unlawfully obtained; it does not reach backward to taint information that was in official hands prior to any illegality.” United States v. Crews , 445 U.S. 463, 475 (1980).

CONCLUSION For the foregoing reasons, we AFFIRM the judgment o f the district court.