Firearm in bag would have been discovered

Where the police would have inevitably discovered a firearm in a plastic bag during an inventory search following a lawful arrest of two people whom officers evicted from a hotel room, the defendant’s motion to suppress was denied.

Background

Police responded to a request from staff at a Hampton, Virginia, hotel to evict Devin Bracey. After the officers asked them to leave, Bracey and Darryl Seay packed their belongings and left the room. Seay carried a clear plastic bag as he left. The officers then searched the hotel room, found ammunition in the toilet bowl and drug paraphernalia and ordered Bracey and Seay back into the room.

Officer DiPentima separated the suspects to interview them. After Bracey’s interview, Officer DiPentima and Officer Lucy conferred and determined they had probable cause to arrest Bracey on drug charges.

After searching Bracey’s handbag, Officer Lucy gestured to the clear plastic bag and asked, “Whose stuff is this right here?” Footage from the officers’ body cameras shows that Bracey twice responded it was “our stuff.” Officer Lucy then searched the plastic bag and discovered a silver handgun wrapped in a red jacket.

A grand jury indicted Seay on one count of possession of a firearm by a felon. He moved to suppress the firearm and statements he made after his arrest. 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.

Analysis

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.

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.”

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. This limited discretion “based on concerns related to the purposes of an inventory search does not violate the Fourth Amendment.”

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. 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.

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 nonarrestee. 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 stuff.” 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.

Affirmed.

United States v. Seay, Appeal No. 18-4383, Dec. 4, 2019. 4th Cir. (Rushing), from EDVA at Norfolk (Jackson). Caroline  Swift Platt for Appellant, Daniel Taylor Young for Appellee. VLW 019-2-286. 9 pp.