United States of America v. Jason Cole Bradford

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JASON COLE BRADFORD,
Defendant-Appellant.
No. 18-30147
D.C. No.
1:17-cr-00067-BLW-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding
Argued and Submitted June 4, 2019
Portland, Oregon
Before: MURGUIA and HURWITZ, Circuit Judges, and STATON,** District
Judge.
Jason Bradford appeals his conviction, after a conditional guilty plea, for
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
On appeal, Bradford argues that the district court improperly denied his
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Josephine L. Staton, United States District Judge for
the Central District of California, sitting by designation.
FILED
JUN 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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motion to suppress the firearm that formed the basis for the charge. The district
court determined that, although the handgun discovered by the arresting officers
was the result of an illegal pat-down search, the handgun nonetheless would have
inevitably been discovered later through lawful means.
We have jurisdiction under 28 U.S.C. § 1291. We reverse the district court’s
denial of Bradford’s motion to suppress, vacate his conviction, and remand for
further proceedings.
1. Under the inevitable discovery doctrine, otherwise illegally obtained
evidence may still be admissible if the government can show that the evidence
would have ultimately been discovered through lawful means. Nix v. Williams, 467
U.S. 431, 444 (1984). The doctrine applies “when the fact that makes discovery
inevitable is born of circumstances other than those brought to light by the illegal
search itself.” United States v. Reilly, 224 F.3d 986, 995 (9th Cir. 2000) (citing
United States v. Boatwright, 822 F.2d 862, 864-65 (9th Cir. 1987)). Here, the “fact
that makes discovery” of Bradford’s handgun potentially inevitable—the presence
of narcotics in his vehicle and the likelihood of a subsequent search incident to
arrest—are facts “born of circumstances other than those brought to light by the
illegal search itself.” Id. The district court thus did not err in concluding, as a
general matter, that the inevitable discovery doctrine could apply to this case.
2. However, the government bears the burden of demonstrating, based on a

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preponderance of the evidence, that the handgun would have been inevitably
discovered. United States v. Lopez-Soto, 205 F.3d 1101, 1106 (9th Cir. 2000). The
Supreme Court has instructed that application of the doctrine cannot rely on
“speculative elements;” instead, its application must turn “on demonstrated
historical facts capable of ready verification or impeachment.” Nix, 467 U.S. at 444
n.5.
The district court erred in relieving the government of its burden to
demonstrate that the handgun would, in fact, have been discovered. Here, the
record demonstrates that officers completed the dog search, which resulted in the
discovery of narcotics in Bradford’s vehicle. Critically, however, the record is
silent as to what would have happened next. Although it seems likely that Bradford
would have been searched incident to arrest and the handgun discovered, there is
no record evidence to support that conclusion. No officer testified about what steps
would have been taken had the handgun not been identified at the outset of the
stop, and the government failed to introduce any other evidence—such as Boise
police procedures, or other evidence tending to show Bradford would have been
arrested and then searched—to support the conclusion that the handgun would
have been inevitably discovered. Moreover, the government adduced no evidence
that Bradford would have remained detained during the entirety of the dog search,
such that the weapon would inevitably have been in his possession when a later

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search incident to arrest occurred. Because inevitable discovery cannot turn on
“speculative elements,” id., the district court erred by filling these evidentiary gaps
for the government.
We therefore reverse the district court’s denial of Bradford’s motion to
suppress, vacate Bradford’s sentence, and remand to the district court for further
proceedings on the motion to suppress. See United States v. Prieto-Villa, 910 F.2d
601, 610 (9th Cir. 1990). In any subsequent suppression hearing, to demonstrate
application of the inevitable discovery doctrine, the government must introduce,
and Bradford must be allowed to contest, evidence that would tend to show the
handgun would have been discovered after narcotics were identified in his vehicle.
REVERSED, VACATED, AND REMANDED.

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