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EDVA: Inevitable discovery applied to gun, but not statements

Officers’ search of a defendant’s bag while he was speaking with officers in another room was not incident to lawful arrest, as there was little chance he could reach the bag or control its contents at the time. The firearm discovered inside the bag was still admissible under the inevitable-discovery doctrine, but the defendant’s subsequent statements were excluded as the fruits of an unlawful search.


On October 27, 2016, Hampton police officers were dispatched to a Spring Hill Suites hotel in response to a trespassing complaint. Hotel staff informed officers that Devin Bracey was no longer welcomed on the premises because she repeatedly switched rooms and had behaved in an aggressive and confrontational manner towards staff members.

Officers went to Bracey’s room to escort her from the premises, but the room occupants refused to open the door for approximately six minutes. After officers advised the occupants that they no longer had rights to the room, Bracey and Defendant Darryl Seay exited the room with their belongings. Officers then searched the room and recovered a glass smoking device/crack pipe and gun ammunition in the toilet, after which they ordered Bracey and Seay back into the room.

Officers read Seay and Bracey Miranda rights and interviewed them separately. One officer began searching the bags that Seay and Bracey had placed on the beds while Seay was being interviewed in another room. Inside a bag, officers removed a red jacket and discovered a handgun that matched the ammunition found in the hotel toilet.

After the search, both suspects were placed in handcuffs and taken to the police station. Subsequent to his arrest, Seay made several statements to the officers about the firearm found in the plastic bag and his knowledge about the possession of the firearm.

Not incident to arrest

Having reviewed the parties’ filings and arguments, the court finds that the search and seizure of Defendant’s bag violated the Fourth Amendment.

Seay had no reasonable expectation of privacy in the hotel room at the time police entered because hotel staff terminated the occupancy. Officers also had probable cause to arrest Bracey and Seay, having discovered drug paraphernalia that included a glass pipe with suspected cocaine residue, and push rods and metal spoons wrapped in women’s underwear. Moreover, officers verified with hotel management that Seay and Bracey were the first to occupy the room following its cleaning. Seay and Bracey also delayed answering the door and took an estimated five to six minutes to open the door for officers.

There was probable cause to arrest Seay for possession of ammunition. Upon entering the room, officers observed Seay leaving the bathroom with a clear plastic bag and then saw ammunition in the toilet. Officers later learned that Seay was a convicted felon, having served seven to eight years for drug-related offenses.

However, in this case, because of the temporal nature of the search and the proximity of the bag to Seay, the search cannot appropriately be categorized as a search incident to a lawful arrest. At the hearing, Officer Dipentima testified on direct examination that the bags were never out of the reach of Bracey and Seay, but on cross-examination testified that they were. Officer Lucy testified that the bags were out of their reach, but that they could have gained access to them because they were free to move around.

These various accounts do not persuade this court that the bag was within the immediate control of either Bracey or Seay. The evidence suggests, at most, that Bracey and Seay could have gain accessed to the bag. But the fact that officers did not restrain or handcuff either of them during the entire encounter sheds doubt on the argument that the search was conducted incident to an arrest. On the contrary, the principle purposes of a search incident to arrest are to prevent the concealment or destruction of evidence and to remove any weapons that the arrestee might seek to use in order to resist arrest or effect his escape. The evidence does not suggest that officers were concerned that Bracey or Seay could access the bag to destroy evidence, affect their escape, or access a weapon to harm officers, where the bag was moved away from the suspects, and where the suspects were never restrained or handcuffed until they were formally arrested.

Accordingly, the search cannot appropriately be categorized as a search incident to a lawful arrest.

Inevitable discovery

Although the search violated the Fourth Amendment, the discovered firearm is still admissible because it would have been inevitably discovered by an inventory search. Officer Lucy testified that, pursuant to the police department’s procedures, the bag would have been searched prior to Bracey being processed at the police station. Even if Bracey had insisted that the bag belonged to Seay, discovery of the firearm was unavoidable and certain. On this issue, the court finds the testimonies of Officer Dipentima, a Master Police Officer and member of the force for 18 years, and Officer Lucy, a patrol officer for five years, credible.


Based on the above findings, Seay’s statements following the firearm discovery stem from an unlawful search incident to arrest. Even if officers completed an inventory search, they would not have been questioning Seay about a firearm they had not yet discovered. While this fact certainly favors excluding Seay’s subsequent statements as the “fruit of the poisonous tree,” the court must still weigh the deterrent effect of suppression against the costs of exclusion.

Here, officers had ample opportunity to comply with the Fourth Amendment. They could have performed a lawful search incident to arrest or sought a warrant to search the bag. They apparently contemplated whether a warrant was required to search the bag. At the very least, such evidence suggests that law enforcement had knowledge or may properly be charged with knowledge that the search may have been unconstitutional.

Moreover, the traditional concerns of exclusion — ignoring reliable, trustworthy evidence bearing on guilt or innocence – are not at issue here because the court did not exclude the discovered firearm.

Balancing these factors, the deterrent benefits of suppression outweigh any heavy costs of exclusion. Accordingly, Seay’s statements following discovery of the firearm are inadmissible.

United States v. Seay, Case No. 4:17cr100, Apr. 4, 2018. EDVA at Newport News (Jackson). VLW No. 018-3-135, 16 pp.