Unpublished Disposition, 930 F.2d 30 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 930 F.2d 30 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Lavonnzy PIERSON, Defendant-Appellant.

No. 89-10482.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 15, 1991.Decided April 10, 1991.

Before SCHROEDER, CANBY and NOONAN, Circuit Judges.


MEMORANDUM* 

Appellant-defendant Lavonnzy Pierson appeals his conviction by jury for two counts of armed bank robbery and one count of unarmed bank robbery. Pierson argues that the trial court erred in denying his motion to suppress: (1) the testimony of Tasha Champion, and (2) the physical evidence discovered in Champion's car. We affirm.

BACKGROUND

After Pierson was arrested, police officers took him to the police department where he was advised of his Miranda rights. During the subsequent interrogation by the police, Mr. Pierson twice requested to speak with an attorney before continuing to answer questions. The officers continued to question Pierson in violation of the constitutional protections set forth in Edwards v. Arizona, 451 U.S. 477 (1981). During this interrogation, the officers obtained Pierson's consent to search the house where Pierson lived with his mother and sister. Officers searched the house and found and noted a phone number and address for Tasha Champion, Pierson's girlfriend.

Shortly after the search, Detective McBride spoke with an officer who had executed the search of Pierson's home. McBride told the officer that a Hyundai had been used in one of the robberies in which Pierson was a suspect. The officer then recalled that he had seen a parking ticket for a gray Hyundai in Pierson's room.

Officer McBride went to Pierson's residence. Pierson's mother permitted McBride to search Pierson's room. On the dresser McBride found the ticket and noted the license plate. McBride then returned to the station and ran the license plate number on the police computer system. He found that the registered owner was Tasha Champion.

The next day, the police went to Champion's address. A two-door gray Hyundai was parked outside. An officer told Champion that he had reason to believe the car was involved in a robbery and asked for permission to search the car. Champion consented. In the car, the officers found shoes, a cap and sweat pants, all of which had red dye stains consistent with those caused by a dye-pack explosion.

Pierson moved to suppress the physical evidence found in Champion's car and Champion's testimony. Pierson argued that this evidence was fruit of his illegally obtained consent to search the house. The district court denied the motion.

At trial, Champion testified that Pierson had borrowed her car on March 2, 1989, the date of one of the robberies. Champion also testified that Pierson had admitted to her that he had robbed two banks. Champion identified Pierson as the person in three surveillance photos. Additionally, the physical evidence found in Champion's car was admitted into evidence at Pierson's trial.

ANALYSIS

The district court's denial of a motion to suppress is reviewed de novo. United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.), (en banc) cert. denied, 469 U.S. 824 (1984). The court's factual determinations are reviewed for clear error. Id. at 1200. The trial court stated three grounds for its decision to admit Champion's testimony: (1) the attenuation theory; (2) the use of the witness was permissible under Michigan v. Tucker, 417 U.S. 433 (1974); and (3) the inevitable discovery doctrine. The court concluded that the physical evidence was admissible because: (1) the defendant's consent to search his house was valid, and (2) the evidence would have been inevitably discovered.

We may affirm on any ground fairly supported by the record. Lee v. United States, 809 F.2d 1406, 1408 (9th Cir. 1987), cert. denied sub nom, Lee v. Eklutna, Inc., 484 U.S. 1041 (1988). We conclude that the trial court properly admitted the evidence under the inevitable discovery doctrine.

For evidence to be admissible under the inevitable discovery doctrine, the government must show by a preponderance of the evidence that tainted evidence would inevitably have been discovered through lawful means. United States v. Ramirez-Sandoval, 872 F.2d 1392, 1396 (9th Cir. 1989).1  It is clear that the police inevitably would have found the gray Hyundai. Agent Wilson of the FBI, who was in regular contact with Detective McBride, had received evidence that a gray Hyundai had been used in one of the robberies and had obtained the partial license plate number K3861. At the time of Pierson's arrest, Agent Wilson was looking for evidence regarding the gray Hyundai.

After learning that Pierson had been arrested on March 7, Detective McBride ran Pierson's name on the Berkeley police computer and discovered that he had been arrested the previous month on charges of possession of a handgun in a vehicle. The arrest report noted that keys to another car had been found on the defendant. The report stated that the other car had been rented by Tasha Champion. Champion's address and phone number were noted on the report. An obvious and inevitable step in the investigation was to find Champion and explore her connection to the robbery.

Because the police already possessed Champion's name and address prior to the illegal questioning of Pierson, we conclude that the police would have found Champion and obtained her testimony through lawful means. The district court found that Champion was "very cooperative" in answering the police questions and allowing them to search her car. Accordingly, the trial court properly admitted Champion's testimony under the inevitable discovery doctrine.2 

The judgment is AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

 1

Whether the court's standard of review for an inevitable discovery finding is de novo or for clear error is undecided in this circuit. See Ramirez-Sandoval, 872 F.2d at 1399 n. 8. We need not resolve this issue here, because under either standard of review we determine that the trial court did not err

 2

Because we determine that the evidence was properly admitted under this exception to the exclusionary rule, we do not decide whether a consent to search is rendered involuntary when obtained in violation of Edwards v. Arizona, 451 U.S. 477 (1981)