PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4524

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JUROTHER LEE ALSTON, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:17-cr-00446-NCT-1)

Argued: September 20, 2019 Decided: October 24, 2019

Before MOTZ, KING, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge King and Judge Diaz joined.

ARGUED: Leza Lee Driscoll, LAW OFFICE OF LEZA LEE DRISCOLL, PLLC, Raleigh, North Carolina, for Appellant. Terry Michael Meinecke, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Matthew G.T. Martin, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. DIANA GRIBBON MOTZ, Circuit Judge:

Jurother Lee Alston, Jr., entered a conditional guilty plea to possession of a firearm

in furtherance of a drug crime, reserving the right to appeal the district court’s order

denying his motion to suppress. Alston now appeals that order. For the reasons that follow,

we affirm.

I.

We recount the facts related to the suppression motion in the light most favorable

to the Government. See United States v. Norman,

(4th Cir. 2019).

On December 11, 2017, Captain Raheem Aleem of the Durham County Sheriff’s

Office saw Alston run a red light. Driving behind Alston, Captain Aleem activated his blue

emergency lights, but Alston failed to stop. Aleem watched Alston reach deep under the

passenger seat of his car — so deep that he briefly disappeared from Aleem’s view.

Captain Aleem suspected that Alston was reaching for a gun. Looking back at Aleem and

continuing to reach down, Alston slowly drove into a parked car and came to a stop.

Captain Aleem, concerned that Alston might try to flee, pulled up next to Alston’s

car. When asked why he ran a red light, Alston explained that he was distracted. Aleem

next asked why Alston was reaching deep under his seat, and Alston replied that he had

dropped his cell phone. Captain Aleem was skeptical; he heard a woman’s voice in an

ongoing phone call with Alston over the car’s speakers and noticed Alston holding his

phone in his left hand despite reaching under the seat with his right.

2 Aleem responded, “Bro, you mighty nervous, you got anything else in the vehicle

that you shouldn’t have?” Alston replied, “All I got is this little bag of weed.” He held up

a small bag of marijuana and, at Aleem’s request, tossed it into the officer’s vehicle.

Captain Aleem then asked Alston for his driver’s license, which Alston admitted

was suspended. Aleem asked if Alston “could call someone else to drive the vehicle,” and

Alston called his mother to do so. Captain Aleem parked and approached Alston. Noticing

that Alston remained very nervous, Aleem assured him that he did not intend to take him

to jail and “just want[ed] [him] to be honest.” The two made small talk until Alston’s

mother arrived about five minutes later.

Alston’s mother joined Captain Aleem outside Alston’s car, while Alston remained

seated inside. Aleem told Alston that besides the small bag of marijuana, he “still needed

to find out whatever else [Alston] had in the vehicle.” He added, “I’ve been straightforward

with you, and I need for you to be honest and straightforward with me.” Alston then handed

over a black bag containing marijuana, a digital scale, and small plastic bags. He told

Aleem it was “all he had.”

Captain Aleem thanked Alston but continued to suspect that Alston had been

reaching for a gun and sought to have him turn it over. Aleem told Alston and his mother,

“I’m going to need to get the heater” (a slang term for a firearm). Alston replied, “[A]re

you going to take me to jail?” Captain Aleem assured him, “I need you to be honest with

me and I will not take you to jail today.” Alston paused, looked at his mother and Aleem,

and admitted, “It is underneath the passenger seat.” Aleem then asked Alston to exit the

vehicle.

3 Captain Aleem searched Alston’s person and found nothing. He then searched the

passenger side of the vehicle and retrieved a loaded Glock firearm from under the seat.

Aleem called dispatch to check the gun’s serial number and learned that the gun was stolen.

He returned to Alston and reiterated that he did not intend to take Alston to jail.

As he was talking to Alston, however, Captain Aleem received a call from Durham

County Deputy James Gryder, a member of a joint task force with the Federal Bureau of

Investigation. Based on an independent tip, the task force was separately investigating

whether Alston, a convicted felon, illegally possessed a firearm, and a confidential source

had alerted Gryder that Alston was in a traffic stop. Deputy Gryder asked Aleem if he was

with Alston and if Alston had a gun. Captain Aleem confirmed that he was with Alston

and that Alston did have a gun. Deputy Gryder told Aleem to detain Alston until task force

officers arrived, and Aleem did so. Captain Aleem informed Alston’s mother that he did

not intend to take Alston to jail, but that he did not know what would happen when the

other officers got there.

Deputy Gryder and other task force officers soon arrived at the scene. Captain

Aleem told Gryder that he had promised Alston and his mother that he would not arrest

Alston, but Gryder responded that Alston was “on both state and federal probation” and

that the task force “would be taking over.” Task force officers then arrested Alston.

II.

A grand jury indicted Alston on counts of possession of marijuana with intent to

distribute, possession of a firearm in furtherance of that crime, possession of a firearm by

4 a felon, and possession of a stolen firearm. Alston moved to suppress all evidence obtained

in the stop.

The district court granted Alston’s motion in part and denied it in part. The court

found Captain Aleem to be “a very credible witness” and “a very sincere person” and

credited his testimony. The court determined that the initial stop was permissible because

Alston had run a red light, “disappeared out of sight as if he were reaching for something

or to hide something,” attempted to evade Aleem until hitting a parked car, and gave a

dubious account of dropping his phone. Reviewing Captain Aleem’s words and conduct

at the start of the stop, the court found that he had not been coercive during that time.

Accordingly, the court held that Alston’s confession about the first bag of marijuana was

voluntary and denied the suppression motion for evidence obtained through that point in

the stop.

Given Captain Aleem’s assurances that he did not intend to arrest Alston, however,

the district court found that Alston’s subsequent admissions were involuntary. The court

emphasized that Aleem, a community liaison officer and former school resource officer

who preferred alternative programs to jailing offenders, was sincere. But the court

concluded that a reasonable person in Alston’s position would understand Captain Aleem’s

statements to mean that law enforcement — not only Aleem, but also any other officers —

would not arrest him if he confessed. These assurances, the court concluded, overbore

Alston’s will, and the court suppressed his statements about the black bag and the gun.

But the district court refused to exclude the gun itself. The court found that Alston’s

admission about and presentation of the first bag of marijuana gave Captain Aleem

5 probable cause to search the car. The court held that even if Alston had not admitted to

possession of the gun, it “would have inevitably been found because there was probable

cause to search.” The court did not, however, expressly find that the police would have

conducted the search, only that there was probable cause to do so.

Alston entered a conditional guilty plea to the sole charge of possession of a firearm

in furtherance of a drug crime, reserving his right to appeal the suppression ruling. The

district court sentenced Alston to sixty months’ imprisonment and five years’ supervised

release.

On appeal, Alston challenges the district court’s denial of his motion to suppress

“all derivative evidence resulting from his statements.” Opening Br. at 17. We review the

district court’s legal conclusions de novo and its factual findings for clear error, construing

the evidence in the light most favorable to the Government. United States v. McGee,

(4th Cir. 2013).

III.

Alston expressly poses three arguments. All are meritless.

First, he claims that his entire interaction with Captain Aleem amounted to custodial

interrogation and that because Aleem failed to read him his rights, under Miranda v.

Arizona,

(1966), the district court should have excluded all evidence obtained

from the stop, including the gun. Of course, the exclusionary rule bars admission of the

nontestimonial physical fruits of statements obtained in violation of Miranda when those

statements are involuntary, and statements obtained in violation of Miranda are

6 presumptively involuntary. See United States v. Nichols,

(4th Cir. 2006).

The district court agreed with Alston that most of his statements were involuntary and so

excluded them. The court admitted the derivative evidence, including the gun, not because

it was the fruit of voluntary statements, but because the court found that the inevitable

discovery exception to the exclusionary rule rendered the derivative evidence admissible.

Second, Alston contends that all of his statements were involuntary. The district

court held that Alston’s first statements were voluntary, as Captain Aleem had not yet made

any promises or otherwise said anything coercive, and we find no error in that holding. As

noted above, the district court held that the statements admitting possession of the gun were

involuntary and so excluded those statements; they are not at issue before us.

Third, Alston maintains that Captain Aleem impermissibly prolonged their

interaction by exceeding the scope of the stop, in violation of Rodriguez v. United States,

(2015). This argument fails because Alston’s admission to possessing the

first bag of marijuana gave Captain Aleem the “reasonable suspicion . . . demanded to

justify detaining” Alston and investigating further.

.

IV.

Strangely, neither Alston nor the Government directly addresses the inevitable

discovery doctrine. We find it necessary to consider the issue because it provides the sole

basis for the district court’s denial of Alston’s motion to suppress the gun. Cf. United

States v. Uzenski,

(4th Cir. 2006) (considering an issue that “neither

7 party directly addresse[d],” but which was necessary to reach in determining whether the

district court properly denied a suppression motion).

Although the district court held that Captain Aleem discovered the gun as a result

of Alston’s involuntary statements, the court refused to suppress it. Evidence discovered

by illegal means, like the gun here, is not admissible if obtained “by exploitation of that

illegality,” but it is admissible if discovered “by means sufficiently distinguishable to be

purged of the primary taint.” Wong Sun v. United States,

(1963) (quoting

JOHN MACARTHUR MAGUIRE, EVIDENCE OF GUILT 221 (1959)).

Such derivative evidence is admissible pursuant to the inevitable discovery doctrine

only “[i]f the prosecution can establish by a preponderance of the evidence that the

information ultimately or inevitably would have been discovered by lawful means.” Nix

v. Williams,

(1984). “A finding of inevitable discovery necessarily rests

on facts that did not occur,” but “by definition the occurrence of these facts must have been

likely, indeed ‘inevitable,’ absent the government’s misconduct.” United States v. Allen,

(4th Cir. 1998).

Inevitable discovery demands that the prosecution prove by a preponderance of the

evidence: first, that police legally could have uncovered the evidence; and second, that

police would have done so. See

(“We have no doubt that [the officer] could have used

the dog, but whether she would have presents an entirely different question.”); see also,

e.g., United States v. Pelletier,

(7th Cir. 2012); United States v. Heath,

(2d Cir. 2006); United States v. Almeida,

(1st Cir. 2006).

We address each requirement in turn.

8 A.

To rely on the inevitable discovery doctrine, the Government first must prove that

police could have used “lawful means” to discover the illegally obtained evidence. Nix,

. “‘Lawful means’ include an inevitable search falling within an exception

to the warrant requirement . . . that would have inevitably uncovered the evidence in

question.” United States v. Bullette,

(4th Cir. 2017).

One such exception to the warrant requirement is the automobile exception, which

the district court invoked. The automobile exception allows police to search a vehicle if

they have probable cause to believe it contains contraband. Maryland v. Dyson,

(1999) (per curiam); United States v. Kelly,

(4th Cir. 2010).

An officer’s detection of marijuana creates such probable cause. See United States v.

Palmer,

(4th Cir. 2016). When police have probable cause, the

automobile exception permits “the search of every part of the vehicle . . . that may conceal

the object of the search.” United States v. Ross,

(1982).

The district court expressly held that the automobile exception gave Captain Aleem

authority he could have exercised to lawfully search the car. The court reasoned that

Alston’s traffic violation justified Captain Aleem’s initial stop, and Alston’s attempt to

evade Aleem while reaching deep beneath the seat created adequate suspicion for further

investigative detention. Then, by admitting to possessing marijuana and showing it to

Captain Aleem — which Alston did voluntarily, before Aleem made any promises —

Alston gave Aleem “probable cause to search the car for further marijuana.” Finally, if

Captain Aleem had searched the car based on that probable cause, he inevitably would have

9 found the gun. We agree with the district court that these facts establish that Captain Aleem

could have uncovered the gun by lawful means. 1

B.

We turn to whether it was inevitable that Captain Aleem would have conducted a

search for the gun, based on the information Aleem had before Alston made the statements

that the district court found involuntary.

Although the court held that Captain Aleem developed the necessary probable cause

and therefore could have searched Alston’s car, and that “the firearm would have been

found had he performed that search,” the court never expressly held that Captain Aleem

would have conducted the search. We must answer this question because, as noted above,

discovery is not inevitable unless the Government proves that police not only could have

lawfully obtained the evidence but also would have done so. See Nix,

;

Allen,

.

The inevitable discovery exception “involves no speculative elements but focuses

on demonstrated historical facts.” Nix,

n.5. Although a finding that police

inevitably would have conducted the lawful search “necessarily rests on facts that did not

1 The only authority Alston offers in response to this holding is United States v. Graham,

(4th Cir. 2017). In addition to being unpublished and so lacking in precedential value, see Local Rule 36(b); United States v. Cortez,

, 362 n.2 (4th Cir. 2019), Graham is inapposite here. There, we rejected the Government’s post hoc attempt to leverage plain-view evidence of an open container violation as probable cause to justify a warrantless vehicle search, chiefly because the record did not demonstrate that the searching officer was even aware of that evidence at the time of the search. Graham, 686 F. App’x at 173–74. Here, by contrast, it is undisputed that Alston showed Captain Aleem the marijuana well before any search. 10 occur,” such a finding nonetheless requires adequate “evidentiary support.” Allen,

. Thus, a question too close to decide on the evidentiary record may require

remand. Cf. Murray v. United States,

(1988) (Scalia, J.) (vacating and

remanding an application of the related independent source doctrine where the district court

“did not . . . explicitly find that the agents would have sought a warrant” and the inferences

drawn from the record were not “clear enough to justify the conclusion” that the doctrine

applied).

But this is not such a case. Here, the record demonstrates that even absent Alston’s

admissions, Captain Aleem inevitably would have searched the car and found the gun.

Aleem repeatedly testified that his highest priority in conducting the traffic stop was to find

the gun he believed to be in the car and to get it off the street. As soon as he saw Alston

reaching deep beneath the passenger seat while attempting to evade him, Captain Aleem

grew suspicious that Alston was “reaching for a weapon.” After Alston produced the

marijuana and before Alston admitted to possessing a gun, Aleem announced that he

“need[ed] to get the heater.” He explained that “getting the heater off the street [was] more

pressing than taking [Alston] to jail.” Once Captain Aleem suspected that there was a gun

in the car, nearly every interaction he had with Alston was directed to finding that gun.

Concluding that discovery was inevitable here requires no tenuous “string of conjecture.”

See United States v. Thomas,

, 209–10 (4th Cir. 1992). We need not stack

any shaky inferences about what Alston and Captain Aleem would have done in order to

11 reach this conclusion. See Allen, 159 F.3d at 840–43. In this case, the evidence that the

search was inevitable jumps off the pages of the record. 2

The record makes clear that before Alston made any involuntary admissions,

Captain Aleem believed that Alston possessed a gun, had the probable cause necessary to

search the car, and intended to find the gun. The record thus establishes that Captain Aleem

not only could have searched the car but also would have done so. Accordingly, the district

court did not err in admitting the gun.

V.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

2 Alston emphasizes that Captain Aleem promised not to arrest him, and we accept the district court’s findings that Aleem’s promises were sincere. In another case, there well might be irreconcilable tension between an officer’s determination to obtain a gun and his repeated assurances that he would not arrest the suspect. In this case, however, there is not; we need not decide whether Captain Aleem, despite his sincere promises, would have arrested Alston because Deputy Gryder and the task force officers assuredly would have; indeed they did so. Independently of Aleem, Deputy Gryder learned that Alston was in a traffic stop. Deputy Gryder informed — not asked — Captain Aleem that the task force would arrest Alston; Gryder explained that Alston was “on both state and federal probation and due to the nature of the [offense], that [the task force] would be taking over” and “arrest [Alston] instead of allowing him to leave.” Captain Aleem repeatedly testified that “once [he] got the call” from Gryder, “[e]verything was frozen in time,” and that task force officers “took charge of everything.” The task force’s pursuit of Alston “is a critical intervening circumstance that is wholly independent” of Aleem’s promises not to arrest Alston. Utah v. Strieff,

(2016). The record indicates, and Alston does not dispute, that Gryder and the task force would and in fact did arrest Alston. 12