PUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 18-4383


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

DARRYL MARSHALL SEAY,

                   Defendant - Appellant.


Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Raymond A. Jackson, District Judge. (4:17-cr-00100-RAJ-LRL-1)


Argued: September 20, 2019                               Decided: December 4, 2019
                             Amended: December 4, 2019


Before NIEMEYER, KEENAN, and RUSHING, Circuit Judges.


Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge
Niemeyer and Judge Keenan joined.


ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Daniel Taylor Young, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C.
Kamens, Federal Public Defender, Andrew W. Grindrod, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Conor Mulroe, Special Assistant United States Attorney, Alexander B.
Gottfried, Special Assistant United States Attorney, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C.; G. Zachary Terwilliger, United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.




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RUSHING, Circuit Judge:

       Defendant Darryl Seay was convicted of possession of a firearm by a felon. On

appeal, he asserts that the district court erred when it denied his motion to suppress the

firearm as the fruit of an unconstitutional search because police inevitably would have

discovered it. For the reasons that follow, we affirm.

                                             I.

                                            A.

       On October 27, 2016, police responded to a request from staff at the SpringHill

Suites in Hampton, Virginia to evict a difficult customer, Devin Bracey. The officers

knocked on Bracey’s hotel room door and, after a few minutes of delay, she opened it. As

Bracey opened the door, Seay exited the bathroom. After the officers informed them that

they had been asked to leave, Bracey and Seay packed their belongings and left the room.

Seay carried a clear plastic bag as he left. The officers searched the hotel room, found

ammunition in the toilet bowl and drug paraphernalia wrapped in women’s underwear, and

ordered Bracey and Seay back into the room.

       Officer Angela DiPentima separated the suspects to interview them. After Bracey’s

interview, Officer DiPentima and Officer Daniel Lucy conferred and determined they had

probable cause to arrest Bracey on drug charges. They discussed the possibility of arresting

Seay for possession of ammunition as a felon and decided they should interview him.

Officer Lucy also wanted to “determine what property was whose” and to “search

[Bracey’s] property prior to taking her to lockup.” J.A. 112.



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       While Seay was being interviewed, Officer Lucy searched Bracey’s belongings. As

footage from the officers’ body cameras shows, Officer Lucy first searched a handbag,

which Bracey admitted was hers. After searching the handbag, Officer Lucy gestured to

the clear plastic bag and asked, “whose stuff is this right here?” J.A. 189 (Video Lucy 3)

at 25:45–25:50. As Bracey picked up the plastic bag, she responded, “this stuff is our

stuff.” J.A. 117; J.A. 189 (Video Lucy 3) at 25:45–25:50. Officer Lucy again asked who

the plastic bag belonged to, and Bracey again responded that it was “our stuff.” J.A. 189

(Video Lucy 3) at 25:50–26:23. Officer Lucy then searched the plastic bag and discovered

a silver handgun wrapped in a red jacket.

                                              B.

       A grand jury in the Eastern District of Virginia indicted Seay on one count of

possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). He moved to

suppress the firearm and statements he made after his arrest.

       The district court held a hearing at which Officers DiPentima and Lucy testified.

As relevant here, Officer Lucy testified that it was standard practice in the Hampton Police

Department to search and inventory an arrestee’s property before taking her to jail. He

specifically testified that, because Bracey had identified the clear plastic bag as “our stuff,”

he would have taken the bag “with her to lockup” and “would have searched through the

items prior to lockup.” J.A. 117–118. Officer DiPentima similarly testified that, pursuant

to police department policy, Bracey’s property would have been searched and inventoried

before or at lockup.



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       If, hypothetically, Bracey had requested that the plastic bag be given to Seay instead

of accompanying her to jail, Officer Lucy testified that the bag would have been

inventoried before being released to Seay. According to Officer Lucy, when an arrestee

requested that property be released to another individual, standard practice was to complete

a field interview card for that individual and document the property being released. Officer

Lucy explained that when officers wore body cameras (as they did in this case), they

typically identified each item on camera and confirmed that the arrestee wanted her

companion to take that item, but whether to use this procedure was left to the officer’s

discretion.

       The district court granted Seay’s motion to suppress the statements he made to

officers after the firearm was discovered, because the court concluded that, although

officers had probable cause to arrest Bracey, the search of the plastic bag was not a lawful

search incident to her arrest. The court denied Seay’s motion to suppress the firearm,

however, concluding that officers inevitably would have discovered it during an inventory

search of the plastic bag. Seay pleaded guilty but reserved the right to appeal the denial of

his motion to suppress.

                                             II.

       On appeal from a district court’s ruling on a motion to suppress, we review legal

conclusions de novo and factual findings for clear error. United States v. Stevenson, 

, 541 (4th Cir. 2005). Whether law enforcement inevitably would have discovered

evidence by lawful means is “a question of fact” on which we “accord great deference” to

the district court. United States v. Bullette, 

, 265 (4th Cir. 2017).

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       The Fourth Amendment protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.

Const. amend. IV.      Generally, the government is prohibited from using evidence

discovered in an unlawful search against the individual whose constitutional right was

violated. United States v. Doyle, 

, 466 (4th Cir. 2011). However, this rule is

subject to certain exceptions. Utah v. Strieff, 

, 2061 (2016). One such

exception is the inevitable discovery doctrine, which allows the government to use

evidence gathered in an otherwise unreasonable search if it can prove by a preponderance

of the evidence “that law enforcement would have ‘ultimately or inevitably’ discovered the

evidence by ‘lawful means.’” 

(quoting Nix v. Williams, 

, 444 (1984)). “Lawful means” include searches that fall into an exception to the

warrant requirement, “such as an inventory search[] that would have inevitably uncovered

the evidence in question.” 

inventory search exception to apply, the search must have ‘be[en]

conducted according to standardized criteria,’ such as a uniform police department

policy[,] and performed in good faith.” United States v. Matthews, 

, 235 (4th

Cir. 2009) (quoting Colorado v. Bertine, 

, 374 n.6 (1987)). The government

may demonstrate standardized criteria “‘by reference to either written rules and regulations

or testimony regarding standard practices.’” United States v. Clarke, 

, 294

(4th Cir. 2016) (quoting 

).

       The evidence presented to the district court supported a finding that the firearm

inevitably would have been discovered during an inventory search of the plastic bag.

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Officers Lucy and DiPentima testified that it was standard procedure to inventory an

arrestee’s belongings before taking her to jail. The officers had probable cause to arrest

Bracey and were preparing to arrest her. Officer Lucy testified that Bracey had identified

the plastic bag as “our stuff” and that the officers would have inventoried Bracey’s

belongings, including the contents of the plastic bag, pursuant to the standard procedure.

The officers’ testimony explaining the inventory procedure was sufficient to satisfy our

precedent; the government was not required to produce a written policy. See 

; United States v. Ford, 

, 60 (4th Cir. 1993).

       Seay argues that, because Officer Lucy testified that part of the inventory procedure

was discretionary, the government could not demonstrate that an inventory would have

been conducted according to standardized criteria or that such a search was inevitable.

Seay is correct that an inventory search policy must restrict discretion in order to tether

inventory searches to their permissible purposes and prevent them from becoming “a ruse

for general rummaging in order to discover incriminating evidence.” Florida v. Wells, 

, 4 (1990). But police discretion is not entirely forbidden; for example, an inventory

search policy “may leave the inspecting officer ‘sufficient latitude to determine whether a

particular container should or should not be opened in light of the nature of the search and

characteristics of the container itself.’” United States v. Banks, 

, 739 (4th Cir.

2007) (quoting 

).

       Officer Lucy testified that, if an arrestee requested to send property with a

companion rather than take it to jail, officers would document each item being released.

As he explained, this practice was intended to prevent allegations that officers stole seized

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property and to prevent contraband from going to jail. Officer Lucy testified that it was

“up to officer discretion” whether to verbally identify each item in a container on camera

and confirm with the arrestee that each item would be sent with her companion. See

(“We . . . construe the evidence in the light most favorable to the

government—the prevailing party below.”). This limited discretion “based on concerns

related to the purposes of an inventory search does not violate the Fourth Amendment.”

; see 

(“[I]nventory procedures serve to protect

an owner’s property while it is in the custody of the police, to insure against claims of lost,

stolen, or vandalized property, and to guard the police from danger.”).

       Nor does this discretion undermine the inevitability of the inventory search and

discovery of the firearm. Indeed, Seay concedes that the police “inevitably would have”

inventoried Bracey’s belongings. Reply Br. 11. Whether or not the officers would have

conducted the inventory by identifying each item on camera does not change the analysis.

Bracey could not leave the plastic bag behind because she had been evicted from the hotel.

And if she had asked to send the bag with Seay instead of bringing it to lockup, Officer

Lucy testified that the contents would have been documented before being released. Based

on the evidence, the district court easily concluded that the plastic bag would have been

inventoried either when Bracey was taken to lockup or before being released to Seay.

       Seay also argues that the plastic bag belonged to him, not Bracey, and the police

could not, and would not, have conducted an inventory search of his property as a non-

arrestee. Although Seay carried the bag out of the hotel room when he and Bracey were

evicted, during the subsequent search Bracey twice told Officer Lucy that the bag was “our

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stuff,” as the video evidence shows and Officer Lucy testified. Seay does not contend that

a policy of searching jointly-owned property would be illegal. Although Seay argues that

Bracey could have clarified during an inventory search that the plastic bag actually

belonged to Seay, that argument is speculative and contrary to the evidence. The district

court did not clearly err in finding that discovery of the firearm during an inventory search

of Bracey’s property was inevitable.

          For these reasons, we affirm the district court’s denial of Seay’s motion to suppress

the firearm. Because we affirm on this basis, we decline to address the government’s

alternative argument that the firearm was discovered during a valid search incident to

arrest.

                                                                                  AFFIRMED




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