PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 19-2003

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UNITED STATES OF AMERICA,

 Appellant

v.

GARY BRADLEY 

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 1-18-cr-00230-001)

District Judge: Hon. John E. Jones, III

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Argued on

April 14, 2020

Before: AMBRO, JORDAN, and SHWARTZ, Circuit 

Judges.

(Filed: May 15, 2020)

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2

Scott R. Ford [ARGUED]

Office of United States Attorney

Middle District of Pennsylvania

228 Walnut Street

P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

 Counsel for Appellants 

Ronald A. Krauss [ARGUED]

Frederick W. Ulrich

Office of Federal Public Defender

100 Chestnut Street – Ste. 306

Harrisburg, PA 17101

 Counsel for Appellee

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OPINION OF THE COURT

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JORDAN, Circuit Judge.

Early on a cold February morning in 2018, 

Pennsylvania State Trooper Wesley Johnson pulled over Gary 

Bradley for speeding. With a skillful and friendly demeanor, 

the trooper coaxed Bradley into confessing that there was 

cocaine in the vehicle he was driving. After being indicted for 

possession with intent to distribute cocaine, Bradley moved to 

suppress both his confession and the physical evidence, 

including the drugs. The District Court granted that motion.

The government now appeals the suppression of the 

physical evidence, presenting two arguments, only one of 
3

which was made to the District Court. The government has 

forfeited the argument it did not make earlier – namely, that the 

physical evidence should not have been suppressed because the 

statements Bradley made before receiving Miranda warnings 

were made voluntarily. But the government’s second 

argument, that the cocaine would inevitably have been 

discovered because Bradley’s vehicle would have been subject 

to an inventory search, has merit. We will, therefore, vacate 

the District Court’s order to the extent it suppressed the 

physical evidence and remand for it to decide whether any 

supplementation of the record is needed to decide whether that

physical evidence would have been inevitably discovered, and, 

if so, whether police department policy sufficiently cabined the 

scope of the officer’s discretion in conducting the inventory 

search such that the search of the backpack, a closed container, 

would have been lawful.

I. BACKGROUND

A. The Traffic Stop

Trooper Johnson was sitting in his unmarked police 

vehicle at about 2:00 a.m. on February 10, 2018, on the side of 

route 81 outside of Harrisburg, Pennsylvania, when he saw a 

car pass at approximately 45-50 mph in a zone where the speed 

limit is 65 mph. He could not see the driver of the car as it 

passed. Suspecting the driver was under the influence of an 

intoxicant, Johnson followed the car for about a half mile. At 

that point, the car had accelerated and was weaving about in its 

lane. When the car was going 75 mph, Trooper Johnson 

switched on his lights and caused the car to pull over to the side 

of the road. When the trooper activated the lights, the Dashcam 

on his vehicle automatically began recording, so we have a 
4

clear record of what was said during the conversation that 

ensued. 

Trooper Johnson approached the car and greeted its

only occupant, Mr. Bradley. As is typical, he asked for 

Bradley’s license and registration. Bradley promptly admitted 

that his driver’s license was suspended and that the car was 

rented, so he instead gave the trooper an I.D. card and the rental 

information. When Bradley said that he had been cited for 

driving on a suspended license “a couple times,” Johnson said 

in a cheerful way, “my man, I got bigger things to worry about, 

it’s almost the end of my shift,” and that they could “work

through that” because it wasn’t “a big deal.” (Dashcam Video 

at 1:48-2:04.) Then, in the same sort of I’m-just-here-to-help 

tone of voice, Johnson told Bradley, “I’m going to bring you 

back to my car” to see if “I can cut you a break.” (Dashcam 

Video at 3:03-27.) After a brief hesitation, Bradley got out of 

his vehicle and went with Johnson to the police car. Johnson 

patted down Bradley for weapons and, finding none, the two 

got into the car, with Johnson in the driver’s seat and Bradley 

in the passenger seat. 

Once in the car, Trooper Johnson asked Bradley a series 

of questions about where he was going and where he had been, 

all the while being remarkably solicitous. He made frequent 

comments to put Bradley at ease, such as “Take a deep breath, 

bud, take a deep breath,” and he frequently called him “bro,” 

“bud,” and “my man.” (Dashcam Video at 2:42-53; see

Dashcam Video generally.) Under Johnson’s questioning, 

Bradley said that he was on his way home from visiting his 

mother in a personal care facility in Queens, New York. He 

also said he had just been sentenced to two and a half years in 

prison for “drugs.” (Dashcam Video at 4:30-11:00.) Johnson 
5

continued his effort to build rapport with Bradley, asking him 

“When’s the last time you’ve been cut a legitimate break, bro?” 

(Dashcam Video at 8:25-27.) At the same time, Johnson 

continued searching through Bradley’s driving record and the 

rental car information. When asked about the rental car, 

Bradley explained that it was rented in his wife’s name. The 

interrogation to that point had lasted about ten minutes. 

Appearing to have finished processing the information 

related to the traffic stop, Johnson told Bradley that he was 

going to give him a warning for speeding and that he would not 

cite him for weaving in his lane of traffic. Despite those 

statements, however, it seems that Johnson never intended to 

let Bradley go with just a warning. He later acknowledged at 

the suppression hearing that he would not have let Bradley 

drive away. In fact, he said that from the beginning he 

suspected criminal activity of some kind. For that reason, he

had called for backup, and at about that ten-minute mark in the 

stop, Corporal Brian Hoye arrived on the scene. 

As Corporal Hoye approached the unmarked police car, 

Trooper Johnson began a more pointed line of questioning,

focusing on the contents of the rental car. Specifically, he 

asked Bradley whether there were any guns, marijuana, large 

sums of U.S. currency, heroin, or cocaine in the car. Bradley 

denied having any of those items, but Johnson later testified 

that he “noticed a deviation in the way [Bradley] responded to 

the question of cocaine.” (App. at 121.) Johnson asked again 

whether any of the previously listed things were in the car. By 

then, Corporal Hoye was standing next to where Bradley sat, 

and this time, flanked by state troopers, Bradley admitted he 

had cocaine. 
6

Johnson then quickly recited the Miranda warnings,

1

telling Bradley he was “not free to leave.” (Dashcam Video at 

13:40-55.) Close to fifteen minutes of questioning had gone 

on, most of it in the police vehicle, before the warnings were 

given. Immediately thereafter, Johnson asked, “Now, how 

much cocaine is in the car?” (Dashcam Video at 13:55-57.) 

Bradley answered, “a lot.” (App. at 123.) At that point, 

Johnson believed he had probable cause to search the vehicle. 

He asked Bradley where the cocaine was, and Bradley told him 

it was in the trunk. He handcuffed Bradley and left him in the 

care of Corporal Hoye while he went back to the vehicle to 

search for the cocaine. As Bradley had said, about a kilo of 

cocaine in a backpack was lying in the trunk of the car. The 

officers told Bradley he was under arrest for possession of 

cocaine with intent to distribute. 

B. The Procedural History

After he was indicted and arraigned, Bradley filed a 

motion to suppress. In his briefing on that motion, he argued 

that Trooper Johnson had unlawfully prolonged the traffic stop 

and that the stop involved a custodial interrogation without the

benefit of Miranda warnings. The government argued that the 

stop had not been unnecessarily prolonged, that Bradley was 

not in custody, and that no warrant was necessary under the 

automobile exception to the warrant requirement.2 

1 Miranda v. Arizona, 384 U.S. 436 (1966).

2 See generally California v. Acevedo, 500 U.S. 565 

(1991).
7

At the suppression hearing, Trooper Johnson and 

Bradley testified, and both parties played portions of the 

Dashcam video. In addition to recounting the incident, 

Johnson testified that, because of the suspended license, he 

would not have allowed Bradley to drive away. Instead, as a 

matter of routine, Bradley’s vehicle would have been towed 

and the police would have conducted an inventory search of it. 

At the conclusion of the hearing, the District Court requested 

further briefing on the suppression motion, and Bradley 

responded in his post-hearing submission by arguing that his 

statements to Johnson were effectively involuntary because 

they were made under custodial interrogation and therefore the 

statements and physical evidence should be suppressed. The 

government argued that, even if Bradley’s pre-Miranda

statements were suppressed, his post-Miranda statements were 

voluntary and should be admissible in evidence, and it further 

contended that the cocaine would have inevitably been 

discovered when the rental car was impounded. 

The District Court granted the motion to suppress 

Bradley’s pre- and post-Miranda statements, as well as the 

evidence that was discovered in the vehicle as a result of those 

statements. The Court focused primarily on the admissibility 

of Bradley’s statements: whether they were given as part of a 

custodial interrogation, and whether the post-Miranda

statements were given voluntarily. See generally United States 

v. Bradley, 370 F. Supp. 3d 458 (M.D. Pa. 2019). It found that, 

at least from the time Corporal Hoye arrived on the scene, 

Bradley was subjected to custodial interrogation, and that 

Bradley’s post-Miranda statements were not voluntary. In 

closing, it addressed whether the physical evidence should also 

be suppressed or whether it would have been inevitably 

discovered in an inventory search. The District Court decided 
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that the possibility of an inventory search was merely 

speculative, and it therefore ordered that the physical evidence, 

as well as Bradley’s statements, be suppressed. 

The government has timely appealed. 

II. Discussion3

On appeal, the government argues only for the 

admissibility of the physical evidence seized from the rental 

car. Its first argument is that the physical evidence should not 

be suppressed because the statements Bradley made before 

hearing his Miranda rights were voluntarily made. It also

argues that, in any event, the physical evidence would have 

been discovered in a lawful inventory search when the police

impounded Bradley’s vehicle. The government has forfeited

its argument concerning the pre-Miranda statements, but it 

successfully preserved its argument that the cocaine and 

related evidence would have been inevitably discovered in an 

inventory search. 

3 The District Court had jurisdiction under 18 U.S.C. 

§ 3231, and we have jurisdiction under 18 U.S.C. § 3731. In 

considering the outcome of a motion to suppress, “we review 

a district court’s factual findings for clear error, and we 

exercise de novo review over its application of the law to those 

factual findings.” United States v. Goldstein, 914 F.3d 200, 

203 n.15 (3d Cir. 2019) (quoting United States v. Katzin, 769 

F.3d 163, 169 n.4 (3d Cir. 2014) (en banc)).
9

A. Argument Forfeiture

The government’s argument about the voluntariness of 

Bradley’s pre-Miranda statements is markedly different from 

the one it made before the District Court. There, its position 

was that, regardless of whether the pre-Miranda statements 

were illegitimately obtained, the post-Miranda statements 

were voluntary and sufficient to permit the search that yielded 

the physical evidence. Only now is it insisting that the preMiranda statements were voluntary and should be the focus of 

attention. Consequently, while the government rightly says

that suppression is inappropriate when evidence has been 

discovered based on voluntary statements, United States v. 

DeSumma, 272 F.3d 176, 180-81 (3d Cir. 2001), that point is 

unpersuasive here, since the voluntariness of the pre-Miranda

statements was not argued to the District Court, and the Court’s 

ruling on the involuntariness of the post-Miranda statements 

has not been challenged before us. 

The government, just like a defendant, is “subject to the 

ordinary rule that an argument not raised in the district court is 

waived on appeal[.]” United States v. Dupree, 617 F.3d 724, 

728 (3d Cir. 2010); accord United States v. Stearn, 597 F.3d 

540, 551 n.11 (3d Cir. 2010). “[T]he argument presented in 

the Court of Appeals must depend on both the same legal rule 

and the same facts as the argument presented in the District 

Court.” United States v. Joseph, 730 F.3d 336, 342 (3d Cir. 

2013). “[T]he degree of particularity required to preserve an 

argument is exacting.” Id. at 337. Thus, “fleeting reference or 

vague allusion to an issue will not suffice to preserve it for 

appeal.” In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 

262 (3d Cir. 2009). 
10

The government’s claim that it preserved the 

voluntariness issue in its suppression motion briefing by citing 

to Oregon v. Elstad, 470 U.S. 298 (1985), without discussing 

how it applies to the facts of this case, does not satisfy that

standard. It is apparent on this record that the government 

failed to argue before the District Court that the evidence 

should not be suppressed because the pre-Miranda statements

were made voluntarily. Moreover, the government never 

invoked the legal rule it relies upon as dispositive on appeal, 

namely that the physical fruits of voluntary statements are 

admissible regardless of whether Miranda warnings were 

given. DeSumma, 272 F.3d at 180. The argument has thus 

been forfeited, and we will not consider it.

B. Inevitable Discovery

The government did, however, preserve its argument 

that, even without Bradley’s statements, the physical evidence 

would have been discovered during a proper inventory search

of the rental car. The District Court was unpersuaded, 

concluding that the possibility of such a search was speculative

and that the government had thus not carried its burden of 

proving inevitable discovery. The government renews its

argument now, and we see much more merit in it. Indeed, we 

disagree with the District Court’s labeling as speculative the 

likelihood of an inventory search, but more work needs to be 

done to determine the lawfulness of the search of the 

backpack.

4

4 The government also argues that the cocaine would 

inevitably have been discovered through a search by a dog 

trained to detect drugs, but that argument fails. As Johnson 

himself admitted, while he suspected criminal activity from the 
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Evidence obtained by the police unlawfully may

nonetheless be admitted into evidence “if the prosecution can 

establish by a preponderance of the evidence that the 

information ultimately or inevitably would have been 

discovered by lawful means[.]” United States v. Vasquez De 

Reyes, 149 F.3d 192, 195 (3d Cir. 1998) (quoting Nix v. 

Williams, 467 U.S. 431, 444 (1984)). One lawful means by 

which the police may discover evidence is to conduct an 

inventory search of an impounded vehicle, as “inventory 

searches are now a well-defined exception to the warrant

requirement of the Fourth Amendment.” Colorado v. Bertine, 

479 U.S. 367, 371 (1987). 

The government bears the burden of proving that 

evidence would have inevitably been discovered, and it can 

satisfy that burden by demonstrating that the police, following 

their routine procedures, would have uncovered it. Vasquez De 

Reyes, 149 F.3d at 195. An analysis of whether certain

evidence would have been discovered in an inventory search, 

including whether an inventory search would have occurred at 

all, should be based “upon the historical facts capable of ready 

verification, and not speculation.” Id.; see also Nix, 467 U.S. 

at 444 n.5 (“[I]nevitable discovery involves no speculative 

elements but focuses on demonstrated historical facts capable 

of ready verification[.]”). The government may establish 

routine police procedures by submitting them into evidence, 

beginning of the traffic stop, his suspicions were “not 

necessarily [about] drug activity.” Thus, as the District Court 

correctly observed, it is just speculation that, without Bradley’s 

statements, Johnson would have called for a drug-detecting 

dog to come to the scene. 
12

including by “testimony regarding standard practices.” United 

States v. Mundy, 621 F.3d 283, 290 n.5 (3d Cir. 2010) (quoting 

United States v. Thompson, 29 F.3d 62, 65 (2d Cir. 1994)).

Here, the government argues that, whether or not 

Bradley ever said a word, the cocaine in the trunk of his car 

would have been found. According to the government, it 

established through the Dashcam evidence and the testimony

of Trooper Johnson that Bradley was driving on a suspended 

license, that he therefore could not continue driving the car, 

that police procedure called for the vehicle to be towed and

impounded, and that necessarily there would have been an 

inventory search that would have revealed the cocaine. None 

of that seems speculative to us. On the contrary, it tracks 

Pennsylvania law that requires the police to order a vehicle 

towed if the driver has a suspended license and towing is “in 

the interest of public safety.” 75 Pa. Cons. Stat. Ann.

§ 6309.2(a)(1). And it is consistent with Johnson’s testimony 

that he would not have let Bradley drive away, that Bradley’s 

vehicle would have been impounded, and that there would 

have been an inventory search consistent with standard 

procedures. 

Nevertheless, the District Court thought the testimony 

was speculative because Trooper Johnson “did not aver that 

protocol mandated that he tow and inventory Bradley’s vehicle 

as a result of his suspended license.” Bradley, 370 F. Supp. 3d 

at 477. The Court suggested that some alternative besides 

towing and impoundment would have been more consistent 

with Trooper Johnson’s statement to Bradley that he would 

“cut him a break.” (App. at 44.) But the existence of 

alternative methods of removing a vehicle from a snowy 

highway in the middle of the night does not negate Trooper 
13

Johnson’s sworn and unrebutted testimony of what police 

procedures called for and what he would have done even if 

Bradley had not confessed. That Johnson did not use the word 

“mandated” or some like term to describe the procedures he 

referenced is certainly not dispositive. 

At the same time, Trooper Johnson testified that the 

cocaine was found in Bradley’s backpack, which was lying in 

plain view in the trunk of the car. Police have discretion to 

inventory a closed container, no doubt, see e.g., Bertine, 479 

U.S. at 374, but only where there is evidence of a policy or 

regulation sufficiently limiting the scope of that discretion.

5

 

See United States v. Salmon, 944 F.2d 1106, 1120 (3d Cir. 

1991), abrogated on other grounds by United States v. 

Caraballo-Rodriguez, 726 F.3d 426 (3d Cir. 2013) (“[T]he preexisting criteria or routine must limit an officer's discretion 

regarding the scope of an inventory search, particularly with 

respect to the treatment of closed containers.”); see also 

Mundy, 621 F.3d at 291–92 (internal quotation marks omitted) 

(holding lawful an inventory search of a container where

department policy “specifically authoriz[ed] the search of the 

trunk if accessible” and “forb[ade] any locked areas, including 

the trunk area, from being forced open” because the policy 

sufficiently limited the scope of officer discretion when it “(1) 

authorized [the officer] to inventory any personal property of 

value left in the trunk once [the individual] provided the keys 

to it; and (2) simultaneously curtailed his authority to embark 

on a generalized search for incidents of crime”).

5 That is not to say that there must be a written policy or 

a regulation, but rather that there must be criteria or routines 

that govern inventory searches.
14

Given Trooper Johnson’s testimony concerning police 

procedure and the course he would have taken once Bradley’s 

ineligibility to drive had been revealed, and given that the 

cocaine was inside a backpack that was in plain view when the 

trunk of the rental car was opened, it seems probable that the 

police would have discovered the cocaine in an inventory 

search. But more information on police procedures – including 

protocols for the conduct of an inventory search and the scope 

of an officer’s discretion during such a search – is likely needed

before making a final determination on inevitable discovery. 

Thus, we ask the District Court on remand to reopen the record 

and take further evidence. 

III. CONCLUSION

For the foregoing reasons, we will vacate the District 

Court’s order suppressing the physical evidence and remand 

the matter for further consideration.