NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 13 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30200
Plaintiff-Appellee, D.C. No.
2:15-cr-00096-RMP-1
v.
HEVER GUZMAN-GUERRERO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Argued and Submitted December 5, 2017
Seattle, Washington
Before: O’SCANNLAIN, TALLMAN, and WATFORD, Circuit Judges.
1. We affirm the district court’s denial of Hever Guzman-Guerrero’s
motion to suppress and his subsequent guilty plea.1 Cocaine was seized from
Guzman-Guerrero’s backpack during a search pursuant to a warrant, but law
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1
We have jurisdiction over this appeal from a pre-trial suppression order and a
non-conditional guilty plea because the government waived its argument that
Guzman-Guerrero entered an unconditional plea. See United States v. Jacobo
Castillo, 496 F.3d 947, 954 (9th Cir. 2007).
enforcement officers first saw the cocaine when they “peeked” into the backpack
before obtaining the warrant. Guzman-Guerrero argues that the peek tainted the
warrant and invalidates the subsequent search, and therefore the cocaine must be
excluded. The government argues, and following an evidentiary hearing the
district court held, that the cocaine was admissible under the “inevitable discovery”
exception to the exclusionary rule.
We review the district court’s application of the exclusionary rule de novo,
and its factual findings for clear error. United States v. Lundin, 817 F.3d 1151,
1157 (9th Cir. 2016).
This is not an inevitable discovery case because the evidence was actually
seized pursuant to an otherwise valid warrant. See Lundin, 817 F.3d at 1161
(citing United States v. Merriweather, 777 F.2d 503 (9th Cir. 1985)). We may
affirm on any ground supported by the record, Serrano v. Francis, 345 F.3d 1071,
1076–77 (9th Cir. 2003), and we hold that the cocaine was admissible under the
“independent source” doctrine.
Evidence observed during an illegal search is admissible if it is later seized
during a search that is “genuinely independent” of the initial search. Murray v.
United States, 487 U.S. 533, 542 (1988). Seizure under a subsequently obtained
search warrant is “genuinely independent” if the government would have sought,
and the magistrate would have issued, the warrant even in the absence of the
2
unlawful search. See id.; United States v. Heckenkamp, 482 F.3d 1142, 1149 (9th
Cir. 2007).
The agents disclosed in the warrant affidavit that they had looked inside the
backpack after Guzman-Guerrero was apprehended and observed eight cellophane-
wrapped bricks. But there was ample probable cause before the peek, and the
district court properly found that the magistrate would have issued the warrant
anyway. We agree that even when the information from the warrantless search is
excised from the warrant affidavit, the remaining facts still establish probable
cause. See Heckenkamp, 482 F.3d at 1149.
The district court did not explicitly find that officers would have sought a
warrant absent the initial search. We have previously remanded for such
factfinding in similar situations. See United States v. Duran-Orozco, 192 F.3d
1277, 1281 (9th Cir. 1999); United States v. Holzman, 871 F.2d 1496, 1513–14
(9th Cir. 1989), abrogated on other grounds by Horton v. California, 496 U.S.
128, 130 (1990). But here, Guzman-Guerrero conceded—both in his briefing and
at oral argument—that the officers would have sought a warrant even if they had
not peeked into his backpack.
Because both of Murray’s requirements are satisfied, the warrant constitutes
an independent source for finding the cocaine, and the district court’s denial of the
motion to suppress is AFFIRMED. The guilty plea stands.
3