While there was some exigency, the government failed on its burden of proving exigency necessitated its action. Instead, the court finds inevitable discovery. United States v. O’Neil, 2021 U.S. Dist. LEXIS 35424 (D. N.M. Feb. 25, 2021):*
Thus, while the record contains some facts supporting a conclusion that the risk to the public’s safety or third persons was present, those facts are not so overwhelming to dispense with the warrant requirement before conducting a search or seizure. Additionally, the Government’s caselaw in support of its exigency argument is distinguishable because the officers in those cases observed guns in plain view. See Ware, 914 F.2d at 1000-01 (officer observed gun inside car in plain view through the automobile’s window); United States v. Webb, 83 F.3d 913, 917 (7th Cir. 1996) (officer saw the defendant aim a gun at another individual before tossing the gun into a car’s unlocked trunk). Here, in contrast, the gun was not in plain view. Officer Delgado only found the gun because he opened the backpack. The Government has not carried its burden of proof to show that exigent circumstances justified opening the backpack.
- The evidence would have been inevitably discovered during an inventory search
Despite this conclusion, the gun will not be suppressed because it would have been inevitably discovered. Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984), establishes that the inevitability of discovering certain evidence through lawful means removes the taint from that evidence even though it was originally discovered by unlawful means. “The inevitable discovery doctrine provides an exception to the exclusionary rule, and permits evidence to be admitted if an independent, lawful police investigation inevitably would have discovered it.” United States v. Cunningham, 413 F.3d 1199, 1203 (10th Cir. 2005). “Those lawful means include an inventory search.” United States v. Tueller, 349 F.3d 1239, 1243 (10th Cir. 2003) (citing United States v. Ibarra, 955 F.2d 1405, 1410 (10th Cir. 1992)) (quotations omitted). Inventory searches are “a well-defined exception to the warrant requirement of the Fourth Amendment.” Colorado v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987). The purposes of an inventory search are to protect the defendant’s property while in police custody, to shield the police from claims of lost or stolen property, and to protect the police from potential dangers. South Dakota v. Opperman, 428 U.S. 364, 369, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976). “The government has the burden of proving by a preponderance of the evidence that the evidence in question would have been discovered in the absence of the Fourth Amendment violation.” United States v. Souza, 223 F.3d 1197, 1203 (10th Cir. 2000).