FILED
NOT FOR PUBLICATION NOV 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30031
Plaintiff - Appellee, D.C. No. 1:09-cr-00066-RFC-1
v.
MEMORANDUM *
LIONEL COTY BRINKERHOFF,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Submitted November 1, 2010 **
Portland, Oregon
Before: W. FLETCHER and FISHER, Circuit Judges, and BURY,
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable David C. Bury, United States District Judge for the
District of Arizona, sitting by designation.
Petitioner Lionel Coty Brinkerhoff appeals from a conditional plea after the
denial of his motion to suppress. We AFFIRM the district court.
The collective knowledge doctrine is applicable to this case. See United
States v. Ramirez, 473 F.3d 1026, 1031-3 (9th Cir. 2007). Wyoming officers had
reported to Montana Officer Olson that a man had loaded a semi-automatic pistol
in a parking lot outside a convenience store and had uttered profanities in a
threatening manner to a customer in the parking lot. Wyoming officers, relying on
information from a 911 call to dispatch, also told Montana officer Olson that the
suspect was driving a green car, as was Brinkerhoff. When Officer Olson called in
Brinkerhoff’s plate to Wyoming police, he was informed he was trailing the right
car. Officer Olson also had a physical description of the suspect that matched
Brinkerhoff. Wyoming officers suspected that the man in possession of the firearm
was Brinkerhoff, whom they knew to be a felon. The collective knowledge of the
officers provided reasonable suspicion to stop Brinkerhoff. See id. Given the
officers’ collective knowledge, they did not violate Brinkerhoff’s Fourth
Amendment rights.
The seizure of the firearm was warranted based on either of two exceptions
to the warrant requirement: plain view and inevitable discovery. Officers may
seize an item in plain view if they have probable cause to believe that the item is
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incriminating. United States v. Stafford, 416 F.3d 1068, 1076 (9th Cir. 2005),
(citing Arizona v. Hicks, 480 U.S. 321, 326-7 (1987)). Whether an item is
incriminating is not determined by the item in isolation but by considering the
surrounding circumstances. See, e.g. Texas v. Brown, 460 U.S. 730, 741-3 (1983);
United States v. Guy, 903 F.2d 1240, 1243 (9th Cir. 1990).
Brinkerhoff argues that the plain view doctrine is inapplicable because the
incriminating nature of the firearm – the obliterated serial number – was not
immediately apparent. This argument, however, ignores the information the
officers had at the time they saw the gun. They knew there had been a man who
was playing with or brandishing a gun in the parking lot of a Wyoming
convenience store near where Brinkerhoff was arrested, and Wyoming officers
suspected that Brinkerhoff, a felon, was that man. Consequently, the gun was
incriminating not because of the obliterated serial number, but because it was the
suspected property of a known felon.
Alternatively, illegally seized evidence need not be suppressed if the
government can show by a preponderance of the evidence that it would inevitably
have been discovered. United States v. Ramirez-Sandoval, 872 F.2d 1392, 1396
(9th Cir. 1989), (citing Nix v. Williams, 467 U.S. 431, 444 (1984)). The
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government can show inevitable discovery by explaining how the evidence would
have been discovered through routine procedures. Id. at 1399.
In this case, the police would inevitably have discovered the gun because
they obtained a warrant to search the vehicle for narcotics. Though the gun was
not mentioned in the warrant application, the trial court correctly concluded that
“during the execution of the warrant, the weapon would certainly have been
seized.” Brinkerhoff does not contest the validity of the warrant. Alternatively,
the gun would inevitably have been discovered because it was standard police
practice to remove firearms from towed cars. See South Dakota v. Opperman, 428
U.S. 364, 375-6 (1976).
Brinkerhoff also challenges the validity of the investigatory stop. Though he
may have waived this challenge, if he did not waive it, we would conclude that the
Montana officers had reasonable suspicion to stop him. See Illinois v. Wardlow,
528 U.S. 119, 124-5 (2000); Terry v. Ohio, 392 U.S. 1, 29-30 (1968). As noted,
Officer Olson had the collective knowledge that Brinkerhoff was reasonably
suspected of being a felon in possession of a gun. Officer Olson also observed
Brinkerhoff speeding well over the legal limit, which was an independently
sufficient basis for an investigatory stop.
For the foregoing reasons, we AFFIRM.
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