PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. TYRELL BRAXTON, Defendant - Appellant. No. 21-1149

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:20-CR-00037-RM-1)

________________ _________________ Meredith Esser, Assistant Federal Public De fender, Denver, Colorado (Virginia L. Grady, Federal Public Defender, with her on th e briefs), for Defendant - Appellant. Wayne Paugh, Assistant United States Attorn ey, Denver, Colorado (Cole Finegan, United States Attorney, with him on th e brief), for Plaintiff - Appellee.

________________ _________________ Before HARTZ , SEYMOUR , and MORITZ , Circuit Judges.

________________ _________________ MORITZ , Circuit Judge.

________________ _________________ Law enforcement searched Tyrell Braxt on’s backpack after arresting him and found a gun. Facing several criminal char ges, Braxton moved to suppress the gun. The government conceded that the warrantless search was not a valid search incident to arrest. But it invoked the inevitable-discovery doctrine to avoid suppression of the FILED United States Court of Appeals Tenth Circuit 

### March 7, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 21-1149 Document: 010110822581 Date Filed: 03/07/2023 Page: 12 illegally obtained evidence, contending that—assuming the illegal se arch incident to arrest had not occurred—law enforcem ent would have validly impounded the backpack as a matter of community caretaking and then searched it pursuant to a standardized policy mandating inventory searches of sei zed property. The district court agreed with the government and denied the motion to suppress. But the government’s stated community -caretaking interest in safeguarding Braxton’s personal property by impounding it is signi ficantly undercut by the presence of an individual who arrived on the scene at Braxton’s request and repeatedly asked to take po ssession of the backpack thr oughout the arrest process. The government’s explanation for why the o fficers could have properly refused this individual’s requests is not persuasive. Nor is it dispos itive, on these facts, that Braxton himself did not ask the officers to turn the backpack over. Thus, the government failed to meet its burden to show that law enforcement would have validly retained the backpack , and the inevitable-discovery doctrine does not apply to excuse application of the exclusionary rule to suppr ess evidence discovered during the illegal search. We accordingly reverse the distri ct court’s order refusing to suppress the gun and remand fo r further proceedings. Background A Denver police officer monitoring a cam era installed in a high-crime area saw Braxton exchange drugs for cash. Offi cers arrived on the scene and arrested Braxton. As the district court noted, the details of the arrest are not in dispute because one officer’s bodycam captured the arrest on video. Appellate Case: 21-1149 Document: 010110822581 Date Filed: 03/07/2023 Page: 23 The video shows that at the moment he was handcuffed, Braxton was wearing a black backpack with a repeating “Emporio Armani” design on it, which the officers removed and placed on the sidewalk. One officer then patted Braxton down and discovered suspected crack cocaine and $1 83 in cash in Braxton’s pockets. During the patdown, Braxton called out , “Hey, get my girl, my girl . Tan! Tell her to come here!” Supp. R. at 1:51–1:56. Less than 30 seconds later, a woman—late r identified as Braxton’s girlfriend, Tanyrah Gay—approached the officers, and Braxton instru cted her, “Get the money so you can bond me out.” Id. at 2:18–2:23. Gay then asked the officers, “Can I get his bag?” Id. at 2:24–2:26. The officers responded in the negative. Gay stood by for a little over a minute while one officer cont inued searching Brax ton. Then, as one officer walked away with Braxton and a nother officer picked up the backpack, Gay again asked, “I can’t take my backpack?” Id. at 3:38–3:40. The officer immediately responded with a curt “nope.” Id. at 3:40–3:41. Gay followed as one officer escorted Braxton to a patrol car and another carried the backpack. As Braxton was getting into the patrol car, he said, “She needs the money, man.” Id. at 4:10–4:12. Gay then said, “I’m in a hotel. Please give me the money at least. I’m in a hotel.” Id. at 4:13–4:18. Before Gay could finish, the answer again was an immediate “nope.” Id. at 4:16. Gay then aske d if the officers would write her number down; they told her th ey would “get to that in a second.” Id. at 4:38–4:40. Appellate Case: 21-1149 Document: 010110822581 Date Filed: 03/07/2023 Page: 34 One officer placed the backp ack on the hood of the patrol car and searched it. As the officer dug through the backpack’s contents, he found a loaded gun with a pink handle. Before the officer completed th e search of the backpack, Gay asked him if she could retrieve her bus pass and identification from the backpack. The officer said they could “talk about that in a second.” Id. at 7:15–7:16. About 20 seconds later, after the officer placed the gun into an evidence bag and into the front of the patrol vehicle, the bodycam footage ends. Based on this event, the government charged Braxton with possession of a weapon in furtherance of drug trafficking, possession of cr ack cocaine with intent to distribute, and felon in possession of a w eapon. Braxton moved to suppress the gun, arguing that the warrantless se arch of his backpack was not justified as a search incident to arrest under th is court’s recent precedent. See United States v. Knapp , 917 F.3d 1161 (10th Cir. 2019) ( holding that search of arrest ee’s purse was not justified as search incident to arre st because arrestee could not access weapons or destroy evidence within purse at time of arrest). The government conceded th at the search was not a va lid search incident to arrest under Knapp . But it argued that the gun should not be suppressed because law enforcement would have inevitably discover ed it after impounding the backpack and conducting an inventory search . That is, the government re asoned, had the officer not searched the backpack at th e scene, he would have b een obligated to take the backpack to the station to prevent theft and to protect the community in case the backpack contained dangerous items. A nd once at the station, the government Appellate Case: 21-1149 Document: 010110822581 Date Filed: 03/07/2023 Page: 45 continued, standard policy re quired an inventory search th at would have revealed the gun. The government supported its position with testimony from the officer who searched Braxton’s backpack. The district court agreed with the government and denied the motion to suppress. Braxton eventually entered a conditional guilty plea to possessing a firearm in furtherance of a drug-trafficking crime, and the district cour t sentenced him to 60 months in prison and three ye ars of supervised release. 1 Braxton now appeals the suppression ruling. Analysis Our review of the overall reasonableness of a search or seizure is de novo, though we accept the district court’s factual findings unl ess clearly erroneous and view the evidence in the light most favor able to the district court’s findings. Knapp , 917 F.3d at 1165; see also United States v. Cook , 599 F.3d 1208, 1213 (10th Cir. 2010). “The Fourth Amendment’s prohibition of ‘unreasonable searches and seizures’ means that police generally cannot conduct a search or make a seizure absent a
warrant.” United States v. Kendall , 14 F.4th 1116, 1122 ( 10th Cir. 2021) (citation omitted) (quoting U.S. Const. amend IV). “A warrantless sear ch or seizure is reasonable only ‘if it falls within a speci fic exception to the warrant requirement.’”

1 Braxton also pleaded guilty to a separate count of felon in possession of a firearm based on events that occurred on a di fferent date. The district court imposed a consecutive 12-month sentence for this additi onal count (and a concurrent three-year term of supervised release), bringing Braxton’s prison senten ce to 72 months in total. Appellate Case: 21-1149 Document: 010110822581 Date Filed: 03/07/2023 Page: 56 Id. at 1121–22 (quoting United States v. Venezia , 995 F.3d 1170, 1174 (10th Cir. 2021)). These exceptions include, among others , searches incident to arrest, searches and seizures justified by a noninvestigatory community- caretaking rationale, and searches conducted for admini strative inventory purposes. See Knapp , 917 F.3d at 1165 (discussing exception for sear ches incident to arrest); United States v. Neugin , 958 F.3d 924, 931 (10th Ci r. 2020) (explaining community-caretaking exception); Kendall , 14 F.4th at 1124 (describ ing exception for inventory searches). It is the government’s burden to establish that an exception to the warrant requirement applies. Neugin , 958 F.3d at 930. If law enforcement searches or seizes wi thout a warrant or applicable warrant exception and thus “obtains evidence th[r]ough an unconstitutional search, the evidence is inadmissible under the exclusionary rule.” Id. at 931. But like the warrant requirement, the exclusionary ru le is also subject to some exceptions, one of which is the inevitable-discovery doctrine. Id. at 932. Under this doctr ine, the exclusionary rule does not apply if the government can prove by a preponderance that “the evidence inevitably would have b een discovered by lawful means.” Id. (quoting United States v. Souza , 223 F.3d 1197, 1202 (10th Cir. 2000)). The parties agree that the inevitable-discovery doctr ine requires a counterfactual inquiry into what “would have” happened under lawful circumstances. 2 Id. At the same time, “‘[i]n

2 Because we rule for Braxton on anot her ground, we need not address his argument that law enforcement violated th e Fourth Amendment because the officer testified that he did search the backpack with an i nvestigatory motive, under the facts as they occurred. Appellate Case: 21-1149 Document: 010110822581 Date Filed: 03/07/2023 Page: 67 determining whether the government has me t its burden of proof, we consider “demonstrated historical facts, ” not “speculative elements.”’” Id. (quoting United States v. White , 326 F.3d 1135, 1138 (10th Cir. 2003)). Here, the government concedes that th e warrantless search of the backpack was not justified by the warrant exception fo r searches incident to arrest. But it contends that the inevitable-discovery ex ception to the exclusionary rule should apply because the officers would have ev entually conducted a valid warrantless search of the backpack via two other exceptions to the warrant requirement: community caretaking and inventory. Spec ifically, the government argues that the officers would have impounded the b ackpack under a community-caretaking rationale to protect Braxton’s property ratherthan leaving it vulnerable to theft on the public sidewalk where Braxton was arrested. See, e.g. , Venezia , 995 F.3d at 1180 (“Certainly, an abandoned vehicle on a public highway may be at risk of theft or vandalism, and thus may be impounded under the community -caretaking doctrine.”). And it further contends that once the backp ack was delivered to the police station, law-enforcement policy mandated an inventory search to further protect Braxton’s property. See, e.g. , Kendall , 14 F.4th at 1124 (explaining that inventory “searches serve several administrative purposes, in cluding ‘to protect an owner’s property while it is in the custody of the police, to insure agains t claims of lost, stolen, or vandalized property, and to guard the police from danger’” (quoting Colorado v.
Bertine , 479 U.S. 367, 372 (1987))). Appellate Case: 21-1149 Document: 010110822581 Date Filed: 03/07/2023 Page: 78 The latter point is not in dispute—as th e district court concluded, the parties do not “quarrel[] with the need or appropria teness of the invent ory” search once the backpack reached the police station. R. vol. 3, 147. Instead, this case turns on whether the officers would have validly impounded Braxton’s backpack in the absence of the illegal sear ch incident to arrest. See United States v. Ibarra , 955 F.2d 1405, 1410 (10th Ci r. 1992) (finding no inevitabl e discovery because although inventory search was valid, “no inventory of the conten ts of defendant’s vehicle could have been conducted but for the unl awful impoundment of the vehicle”). On impoundment, the district c ourt concluded that the offi cers were “entitled to take physical possession of” the backpack “on a community[-]caretaker . . . basis.” R. vol. 3, 146. The district court dismissed the re levance of Gay’s presence and her repeated requests to take possession of the backp ack, emphasizing that Braxton never asked the officers to give the bac kpack to Gay and reasoning that to the officers at the time, the relationship between Br axton and Gay was unclear. On appeal, Braxton argues that the gove rnment did not m eet its burden of showing that officers would have impounded the backpack as a matter of community caretaking. We have had many recen t opportunities to examine communitycaretaking impoundments, albe it in the context of vehicl es rather than personal property like Braxton’s backpack. See Kendall , 14 F.4th at 1122 (citing three recent published cases). Yet the principles fr om these vehicle-impoundment cases are relevant in the contex t of personal property. See Knapp , 917 F.3d at 1168 (noting that principles articulated in vehicle-impoundment caselaw “apply more broadly” and Appellate Case: 21-1149 Document: 010110822581 Date Filed: 03/07/2023 Page: 89 using such caselaw to review search of defendant’s purse); United States v. Perea , 986 F.2d 633, 643 (2d Cir. 1993) (noting that for arre sts that do not occur at individual’s home, “officers may ‘impound th e personal effects that are with him [or her] at the time to ensu re the safety of those effects or to remove nuisances from the area’” (quoting Cabbler v. Superintendent , Va. State Penitentiary , 528 F.2d 1142, 1146 (4th Cir. 1975))). Indeed, the parties also fr ame their arguments around our vehicle-impoundment cas elaw, in particular United States v. Sanders , 796 F.3d 1241 (10th Cir. 2015). Sanders held that impoundment of a vehi cle from private property must be “justified by both [1] a standardized po licy and [2] a reasonabl e, non[]pretextual community-caretaking rationale.” Id. at 1248. We begin (and en d) our analysis with the second prong. 3 On that prong, Sanders set out a nonexclusive list of factors relevant to determining whether “a re asonable and legitimate, non[]pretextual community-caretaking rationa le” exists, including: (1) whether the vehicle is on public orprivate property; (2) if on private property, whether the property owner has been consulted; (3) whether

3 The government contends that Sanders ’s first prong does not apply here because we are on public—not private—property. See Kendall , 14 F.4th at 1122 (“In one of our recent cases, however , we clarified that the first Sanders prong is ‘specific to private property im poundments.’” (quoting Venezia , 995 F.3d at 1178)). But Braxton asserts in reply thatthe government waived su ch argument by not raising it below. See United States v. Martinez , 643 F.3d 1292, 1298 ( 10th Cir. 2011) (“We will not consider a suppression argument rais ed for the first time on appeal absent a showing of good cause for why it was not ra ised before the tria l court.”). In any event, we need not address th ese issues here because even if the government did not waive its first-prong argument and its argument is correct, itstill needs to satisfy the second Sanders prong; and the same is true if the government did waive its firstprong argument or if such argument is incorrect. Appellate Case: 21-1149 Document: 010110822581 Date Filed: 03/07/2023 Page: 910 an alternative to impoundment exists (especially another person capable of driving the vehicle); (4) whether th e vehicle is implicated in a crime; and (5) whether the vehicle’s owner a nd/or driver have consented to the impoundment. Id. at 1250. These factors help guide the overall question for Fourth Amendment purposes: whether, in the counterfactual world of our inevitable-discovery inquiry, the seizure of Braxton’s backpack would have been reasonable. See id. (“Protection against unreasonable impoundments . . . is part and parcel of the Fourth Amendment’s guarantee against unreasonable searches and seizures.”). Four of these factors appl y in a relatively straightfo rward manner here. First, the arrest took place on public property, so the backpack itself was also on public property. See id. Braxton concedes that this fact would weigh in favor of a reasonable community-caretaking rationale for impou ndment because the officers obviously could not have left the backpack on the sidewalk. See Kendall , 14 F.4th at 1123 (weighing this factor in fa vor of reasonable community -caretaking rationale for impoundment because it was not “a reasonabl e option for officers to leave the vehicle where it was,” parked on public street). Re latedly, the public location renders the second Sanders factor—whether the owner of priv ate property has been consulted— simply not relevant here. See id. (omitting second factor fro m discussion where arrest took place on public property). On the fourth and fifth other fact ors, the government concedes that the backpack here was not im plicated in a crime and that Braxton did not consent to the impoundment. See 796 F.3d at 1250.These tw o factors accordingly would weigh against a reasonable community -caretaking rationale for impoundment. Appellate Case: 21-1149 Document: 010110822581 Date Filed: 03/07/2023 Page: 1011 See United States v. Woodard , 5 F.4th 1148, 1158 (10th Cir. 2021) (weighing these factors against valid impoundment). Largely agreeing on these four factors, the parties center their disagreement on the third Sanders factor, the existence of an alte rnative to impoundment. See 796 F.3d at 1250. On this point, recall that Gay appeared less than 30 seconds after Braxton called out for his “girl,” Gay twi ce asked to take th e backpack, and the officers curtly rejected her requests almost before she c ould finish her requests. R. vol. 3, 143. Braxton contends that giving the backpack to Gay would have been an alternative to impoundment and argues that this factorweighs heavily against a reasonable community-caretaking rationale for impoundment. In response, the government argues that giving the backp ack to Gay would not have been an alternative to impound ment for two reasons: (1) Braxt on did not ask the officers to do so and (2) nothing in the r ecord suggests that Braxton a nd Gay had a relationship that warranted giving his b ackpack to her. As to the government’s first point, it is true that Braxton did not expressly ask the officers to give Gay the backpack. But we have stated that “[t]he proper inquiry under the third factor is ‘whether an alternative to impoundment exists’ and is not focused on who suggested that alternative .” Venezia , 995 F.3d at 1181 (emphasis added) (quoting Sanders , 796 F.3d at 1250). Braxton’s fa ilure to directly ask the officers to give the b ackpack to Gay is therefore not di spositive. It is just one fact among many, and we do not find it particularly meaningful in light of Gay’s physical Appellate Case: 21-1149 Document: 010110822581 Date Filed: 03/07/2023 Page: 1112 presence at the scene and rep eated requests to take the b ackpack. Given these facts, a satisfactory alternative to im poundment may have existed. As to the government’s second point, the record does not support the notion that Braxton and Gay’s relati onship negated the plausibility of this alternative. Gay appeared less than 30 seconds after Braxt on called out for his “girl,” and the officer who testified at the suppression hearing saidthat he assumed th e person who arrived in response to Braxton’s reque st was, in fact, the pers on Braxton had asked for—his “girl.” R. vol. 3, 143. Other facts s upport the conclusion that the two had a relationship close enough to merit giving her the backpack: Braxton asked Gay to bail him out; Braxton asked the officers to give Gay the money they found on him; Gay repeatedly asked to take the backpack; Gay at one pointreferred to the backpack as hers, which suggests that Braxton was carrying it for her; Gay remained nearby during the entire arrest pro cess; Gay asked the police to write her number down; and Gay told the officers her bus pass and identification we re in the backpack. These facts suggest that, at a mini mum, reasonable officers dea ling with the backpack in a lawful manner would have i nquired further about whether they should give the backpack to Gay, either by asking Braxton if he wanted Gay to take the backpack or by inquiring into their relationship. 4

4 The government asserts th at the district court made a factual finding that Gay was essentially “a stranger” to Braxton. R. vol. 3, 149. Bu t as Braxton points out in reply, the district court’s co mment on this point was less than clear. The district court referred to Gay as “a stranger, ” but not necessarily a stranger to Braxton ; it could have been pointing out that Gay was a stranger to the officers

. Id. Because of this ambiguity and because this ca se involves undisputed vide o evidence of the arrest—in Appellate Case: 21-1149 Document: 010110822581 Date Filed: 03/07/2023 Page: 1213 Importantly, the officer who testified atthe suppression h earing provided scant explanation for why—in the counterfactual scenario in which he was not going to search the backpack incide nt to arrest—he would have refused Gay’s requests and would not have inquired furthe r into their relationship or asked Braxton about giving her the backpack. At best, when explaining why he did not ask Br axton if Gay could take the backpack, the offi cer said it was “not common practice to be handing out personal property of other persons to other people.” Id. at 93. And it is true that the government produced a depart ment policy stating that “[a]ny officer coming into possession of personal . . . property will bring such property to the [e]vidence and [p]roperty [s]ection[] or an au thorized remote evidence lock er.” R. vol. 1, 28. But the existence of and compliance with such a policy does not by itself establish a reasonable community-caretaking rationale. See Sanders , 796 F.3d at 1249–50 (“Protection against unreasonable impoundments, even those conducted pursuant to a standardized policy , is part and parcel of the F ourth Amendment’s guarantee against unreasonable searches and seiz ures.” (emphasis added)); Venezia , 995 F.3d at 1182 (holding impoundment unreasona ble despite compliance w ith policy because policy

the words of the district court, its factual findings “really do[]n’t matter . . . because it’s all on body[]cam,” id. at 142—we decline to inte rpret the district court’s reference to Gay as “a st ranger” as a factual finding that she and Braxton were strangers to each other, id. at 149. And even if we were to do so, we would hold that finding clearly erroneous in light of th e strong record ev idence—detailed above, supra p. 12—that Gay and Braxton were not at all strangers. See United States v. Martinez-Jimenez , 464 F.3d 1205, 1209 (10th Cir. 2006) (stating that factual finding is clearly erroneous if it is “without factual support in the re cord or we are left with the definite and firm c onviction that a mistake has been made” (quoting United States v. Cernobyl , 255 F.3d 1215, 1221 (10th Cir. 2001))). Appellate Case: 21-1149 Document: 010110822581 Date Filed: 03/07/2023 Page: 1314 “did not grant the officers authority to do what the Fourth Am endment forbids—to impound a vehicle absent a reasonable co mmunity-caretaking rationale”). Nor does the policy negate the existenc e of an alternative to impo undment: The policy defines personal property as property that “ must be held for safekeeping for the owner.” R. vol. 1, 27 (emphasis added). And the of ficer’s testimony does not meaningfully explain why, in light of Gay’ s requests, he needed to impo und the backpack to keep it safe for its owner. We thus conclude, on the record before us, that the alternative to impoundment of giving the backpack to Gay weighs heavily against finding a reasonable community-caretaking rationale. See Woodard , 5 F.4th at 1156 (weighing this factor against community -caretaking rationale where officers refused, without reason, to let defendant call someone to take his car); Venezia , 995 F.3d at 1179 (“Where an alternative to impoundment does not threaten public safety or convenience, impoundment is less likely to be justified by a community-caretaking rationale.”). To recap, the only factor that favo rs a reasonable community-caretaking rationale for impoundment is that the arrest took place on public property. The remaining factors—an alternative to im poundment, that the backpack was not implicated in the crime, a nd that Braxton did not consen t—cut significantly against a community-caretaking rationale . On these facts, we conc lude the government failed to meet its burden of proving that, despite the alternative of giving the backpack to Gay, it was inevitable that the officers would have va lidly impounded the backpack under a reasonable commun ity-caretaking rationale. See Venezia , 995 F.3d at 1182 Appellate Case: 21-1149 Document: 010110822581 Date Filed: 03/07/2023 Page: 1415 (concluding that existence of altern ative rendered impoundment unreasonable); cf. Kendall , 14 F.4th at 1123 (concludi ng that “balance clearly weighs in favor of the reasonableness of impoundmen t, partly because there we re no good alternatives”). The government emphasizes that o fficers are not obligated to explore alternatives to impoundment, noting that “[ t]he reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative ‘less intrusiv e’ means.” Aplee. Br. 24 (emphasis added) (quoting Bertine , 479 U.S. at 374). But this general propositi on does not mean that reasonableness does

not sometimes , depending on the facts, turn on th e existence of alternatives to impoundment. Indeed, “we have recognized th at impoundment . . . is not reasonable when there are clear and promp tly available alternatives.” United States v. Trujillo , 993 F.3d 859, 868 (10th Cir. 2021); see also United States v. Pappas , 735 F.2d 1232, 1234 (10th Cir. 1984) (finding impoundm ent unreasonable in part because defendant’s girlfriend and ot her friends were present a nd could have taken custody); cf. Trujillo , 993 F.3d at 870 (concluding that wher e vehicle posed traffic hazard and defendant was alone at 2:30 a. m., officers “were not require d to allow [d]efendant to call someone to come pick up the [vehicle ] and then, assuming he was successful, wait around for the new driver to arrive” and citing cases with similar facts and reasoning). Moreover, our precedent establ ishes that office rs generally act unreasonably when they ignore or shut down obvious alternatives to impoundment. See Woodard , 5 F.4th at 1156 (weighing existence of alternative against communitycaretaking rationale where defendant asked o fficers if he could call someone to pick Appellate Case: 21-1149 Document: 010110822581 Date Filed: 03/07/2023 Page: 1516 up vehicle and officers refused to le t him do so without explanation); Sanders , 796 F.3d at 1251 (finding impound ment unreasonable in part because “police impounded [defendant’s] vehicle withoutoffering her the opportunity to make alternative arrangements, even though sh e stated that she was willi ng to have someone pick up the vehicle on her behalf”); cf. Kendall , 14 F.4th at 1123–25 (finding impoundment reasonable in part because of absence of alternatives). 5 And the officer here did just that, failing to offer any reasonable rationa le for not at least inquiring further about whether Gay could take the backpack. 6 In sum, because a clear and promptly available alternative existed here, the government cannot show that it would have impounded the backpack under a reasonable, nonpretextual comm unity-caretaking rationale. Thus, the government

5 Braxton additionally highlights a district-court case that held the impoundment of personal property was unjustified by a reasonable communitycaretaking rationale in a factually similar case. See United States v. Knapp , No. 17- CR-207, 2019 WL 11502454, at *3 (D . Wyo. June 13, 2019) (concluding impoundment was unreasonable in part because friend who was present during defendant’s arrest offered to take her pur se, but officers talked friend out of it). 6 A separate aspect of the officer’s test imony is also troubling: When prompted to expound on what he would have done had he availed himself of the alternative to impoundment, the officer said that even if he had given Gay the backpack, he would have inventoried it before doing so. The government does not argue on appeal that this on-the-scene inventory s earch would have led to the inevitable discovery of the gun, and the district court ruled below th at any such on-the-scene inventory search would have been constitutionally impermis sible. But we note that this testimony suggests that in a counterfactual world without the illegal search incident to arrest and without an illegal impoundment, an ille gal search would sti ll have taken place. Although by no means determinative, this testimony further supports our conclusion that the inevitable-discovery doctrine does not save the government from the exclusionary rule in this case. Appellate Case: 21-1149 Document: 010110822581 Date Filed: 03/07/2023 Page: 1617 failed to meet its burden to show that the gun would have been legally and inevitably discovered.
Conclusion The government failed to prove by a prep onderance of the ev idence that if the law-enforcement officers had not conducted an illegal search incide nt to arrest, they would have nevertheless lawfully impounde d the backpack as a matter of community caretaking and then discove red the gun during an inve ntory search. Thus, the inevitable-discovery exception to the exclus ionary rule does not apply, and the gun discovered during the illegal search of the backpack must be suppressed. We accordingly reverse the dist rict court’s order denying suppression and remand for further proceedings. Appellate Case: 21-1149 Document: 010110822581 Date Filed: 03/07/2023 Page: 17