                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 07-10541
               Plaintiff-Appellant,
               v.                            D.C. No.
                                          CR-07-00559-JSW
MICHAEL YOUNG,
                                             OPINION
              Defendant-Appellee.
                                      
       Appeal from the United States District Court
          for the Northern District of California
        Jeffrey S. White, District Judge, Presiding

                Argued and Submitted
      November 18, 2008—San Francisco, California

                    Filed July 14, 2009

    Before: Alfred T. Goodwin, Andrew J. Kleinfeld and
              Sandra S. Ikuta, Circuit Judges.

                Opinion by Judge Goodwin;
                  Dissent by Judge Ikuta




                           8733
8736             UNITED STATES v. YOUNG




                      COUNSEL

Allison Marston-Danner, Assistant United States Attorney,
San Francisco, California, for the plaintiff-appellant.
                    UNITED STATES v. YOUNG                  8737
Elizabeth M. Falk, Assistant Federal Public Defender, San
Francisco, California, for the defendant-appellee.


                          OPINION

GOODWIN, Circuit Judge:

   The Government appeals the district court’s suppression of
evidence, including a firearm, from Michael Young’s hotel
room, as fruit of a warrantless search and seizure. After realiz-
ing Young had accidentally been given a key to another hotel
guest’s room, the hotel staff entered Young’s room, during his
absence from the room, to search for belongings reported
missing. The staff uncovered a firearm in a backpack in
Young’s room, but none of the missing items. Young was
temporarily locked out of his room, with all of his belongings
left in the room, including the firearm. Young returned to his
room only to find that his key no longer opened the room. He
contacted hotel staff, who called the police, but did not tell
Young that he was evicted or would not be allowed back in
his room. A San Francisco Police Department (SFPD) officer
arrived and spoke with Young, and then accompanied hotel
staff to Young’s room, at which point the staff opened
Young’s room and unzipped the backpack so that the firearm
was in plain view of the officer. The officer arrested Young
for being a felon-in-possession.

   In the proceedings before the district court, Young argued
that the fruits of the search should be suppressed because the
search violated the Fourth Amendment. The district court
agreed and granted the motion to suppress the firearm and any
other evidence found in the room, while denying without prej-
udice the motion to suppress statements made by Young.

  The Government brings this appeal, arguing that Young did
not have a reasonable expectation of privacy in the room
8738                UNITED STATES v. YOUNG
because hotel staff had evicted him prior to the warrantless
search. Alternatively, the Government argues that the search
should not be found unlawful because it did not exceed the
scope of the private search by the hotel staff that had occurred
earlier. Finally, the Government posits that even if Young
retained an expectation of privacy in the room and the police
search was unlawful, reversal is necessary here because the
firearm falls under the inevitable discovery exception. We
have jurisdiction under 18 U.S.C. § 3731 and hold that
because the hotel did not actually evict Young, he maintained
a reasonable expectation of privacy in his hotel room . We
therefore AFFIRM the district court’s order granting the
motion to suppress.

I.   BACKGROUND

   During the early evening of August 5, 2007, James John-
son, a guest at the Hilton Hotel in San Francisco who was
staying in Room 13572, reported the theft of a laptop com-
puter, iPod, and assorted other items from his room. Dirk
Carr, the Hilton’s Assistant Director of Security, was on duty
at the time and while reviewing hotel records, found that
defendant Michael Young had mistakenly been registered to
and given a key to Johnson’s room. Carr subsequently called
Young on his hotel room phone in Room 13575, asked Young
what room he was staying in (Young responded Room
13575), and then asked Young if he could come up and speak
to Young later. Young agreed to speak to Carr.

   Later that evening, at around 8:30 p.m., Carr went up with
Security Supervisor Roger Hicks to both of the rooms in ques-
tion to look for Johnson’s missing property and to speak to
Young. Young was not in his room at that time, so Carr and
Hicks unlocked Young’s room using a master key and found
a backpack. Upon opening the backpack, they found check-
books belonging to other people, as well as a firearm in the
front pocket. They also found an empty key package for John-
                   UNITED STATES v. YOUNG                     8739
son’s room, Room 13572, on Young’s bed. None of John-
son’s missing belongings were found.

   Carr then telephoned Bill Marweg, Security Director of the
Hilton, at his home. Marweg told Carr to place the room on
electronic lockout (also referred to as being “e-keyed”),
thereby preventing Young from being able to access the room
when he returned. A room placed on electronic lockout pre-
vents the room from being opened by any key other than the
special “electronic lockout” key. According to the Govern-
ment, this action was consistent with the Hilton’s unwritten
policy, as described by Marweg in his declaration, of evicting
guests believed to have committed a crime in their hotel
rooms. Marweg also told Carr to leave the firearm in the
room, pursuant to Hilton’s policy of its security officers not
handling weapons. No one from the Hilton called the police
at this time.

  Hilton also has a policy that once a weapon is found in a
guest’s room, the following steps are to be taken:

    Security shall E-key [electronically lock out] the
    guest room without disturbing the weapon and leave
    a note out on the door for the guest to call security
    upon returning to the room . . . [w]hen the guest
    returns, he/she is to be informed that company policy
    prohibits possession of weapons on company and/or
    hotel property and offered a secured location . . . for
    the storage of such weapons until the time of his/her
    departure.

Hilton Hotels Corp., Standard Practice Instructions, Part
IV.A.3, 9.

   At no time was Young informed of the hotel’s unwritten
policy regarding guests suspected of committing crimes, or its
written policy regarding guns in guest rooms. Accordingly,
these policies could not affect Young’s otherwise reasonable
8740                UNITED STATES v. YOUNG
expectation of privacy in his hotel room and the closed con-
tainers stored therein. See Rakas v. Illinois, 439 U.S. 128,
143-44 (1978); Katz v. United States, 389 U.S. 347, 352
(1967).

   At 11:45 p.m. that night, Young returned to the hotel and
tried to enter his room, but could not because of the electronic
lockout. Hicks was notified that Young had returned, and he
then contacted Marweg. At this point, Young did not know he
had been locked out by Hilton security; he knew only that his
key no longer worked. Marweg told Hicks to call the police,
which he did.

   SFPD Officer Michael Koniaris was working in the front of
the hotel at approximately 12:30 a.m. on August 6, 2007,
when Hicks approached Officer Koniaris about Young. Hicks
asked Officer Koniaris to detain an individual who was sitting
in the lobby. Hicks told Officer Koniaris he believed the indi-
vidual had committed a burglary in a Hilton hotel room regis-
tered to another guest. Officer Koniaris entered the hotel
lobby, asked the individual his name, and the individual
responded that his name was Michael Young. Officer Kon-
iaris asked Young for his driver’s license, which Young then
gave to Officer Koniaris. Young was accompanied by another
individual, and Young asked Officer Koniaris if the other per-
son was permitted to leave. After Hicks told Officer Koniaris
that Young’s companion had just arrived at the hotel and was
not involved, Officer Koniaris told the companion he was free
to go.

   Officer Koniaris went outside and ran a warrants and iden-
tification check on Young. He found that Young had previ-
ously been arrested, on various felony and misdemeanor
charges. Officer Koniaris returned to the hotel lobby and
spoke to Young for about twenty or thirty minutes in the
lobby, discussing family matters and other topics. At no time
did Officer Koniaris read Young his Miranda rights or indi-
cate to him that he was a suspect. Officer Koniaris asked
                    UNITED STATES v. YOUNG                  8741
Young if he had ever been to prison and Young replied that
he had. Shortly after Officer Koniaris’s conversation with
Young ended, Hicks told Officer Koniaris about the firearm
in Young’s room.

   Officer Koniaris thereupon took Young to the hotel security
office, searched Young, and handcuffed him to a bench in the
office. Officer Koniaris then called his sergeant to advise him
of the situation. The sergeant informed Officer Koniaris that
Officer Koniaris could not “enter Young’s hotel room to
search it,” but the sergeant also told him that “Hilton security
staff could enter a guest’s room.”

   Officer Koniaris accompanied Carr and Hicks up to
Young’s room, where one of the security guards opened the
door to the room, while Officer Koniaris waited outside in the
hallway, in a position where he could see into Young’s room.
Officer Koniaris watched Hicks remove the backpack from
the closet, unzip the front pocket, where the firearm was
located, and put the backpack on the bed. This left the firearm
visible in plain sight to Officer Koniaris. Officer Koniaris
entered the room and seized the backpack and firearm. He
proceeded downstairs where he informed Young that he was
under arrest for being a felon in possession of a firearm.

   About two months after the arrest at the hotel, the Govern-
ment determined that Young had used a stolen credit card to
book his room at the Hilton. At the time of Young’s arrest,
however, the Hilton staff had no knowledge of the fraudulent
credit card usage.

   Young was subsequently indicted by the grand jury for pos-
session of a firearm after being convicted of a felony, in viola-
tion of 18 U.S.C. § 922(g)(1). On September 6, 2007, Young
filed a motion to suppress the fruits of the search of his hotel
room. On October 26, 2007, the district court held a hearing
on Young’s motion, and at the conclusion of the hearing, the
8742                UNITED STATES v. YOUNG
judge ruled from the bench, granting the motion. The Govern-
ment filed its timely notice of appeal.

II.    DISCUSSION

  A.    Young’s Expectation of Privacy

   [1] “The Fourth Amendment protection against unreason-
able searches and seizures is not limited to one’s home, but
also extends to such places as hotel or motel rooms.” United
States v. Cormier, 220 F.3d 1103, 1108-09 (9th Cir. 2000). In
order to benefit from Fourth Amendment protections, an indi-
vidual must “demonstrate a subjective expectation that his
activities would be private, and he must show that his expec-
tation was ‘one that society is prepared to recognize as rea-
sonable.’ ” United States Nerber, 222 F.3d 597, 599 (9th Cir.
2000) (quoting Bond v. United States, 529 U.S. 334, 338
(2000)).

   [2] Part of what a person purchases when he leases a hotel
room is privacy for one’s person and one’s things. See United
States v. Dorais, 241 F.3d 1124, 1128 (9th Cir. 2001). Like
a lessee of an apartment, a hotel guest does not lose his rea-
sonable expectation of privacy in his hotel room just because
he is detained or arrested by a police officer outside of his
apartment, or in Young’s case, his hotel room. See Stoner v.
California, 376 U.S. 483, 486-91 & n.4 (1964). A landlord
sometimes calls the police with suspicions or accusations
against his tenants. The landlord’s call to the police on a ten-
ant does not destroy the tenant’s right to his tenancy. The
same is true here. Being arrested is different from being
evicted, and being arrested does not automatically destroy that
person’s reasonable expectation of privacy in his home. See
id.; United States v. Bautista, 362 F.3d 584, 590 (9th Cir.
2004) (holding that “unless [a hotel guest’s] occupancy ha[s]
been lawfully terminated when the police conducted their
search, [the guest] retain[s] a reasonable expectation of pri-
vacy in the room”).
                    UNITED STATES v. YOUNG                   8743
   [3] In Bautista, this court explained that whether a hotel
guest retains a reasonable expectation of privacy in his room
turns on “whether or not management had justifiably termi-
nated [the patron’s] control of the room through private acts
of dominion.” 362 F.3d at 590; see also Dorais, 241 F.3d at
1127-28 (holding that a hotel guest did not have a reasonable
expectation of privacy after staff had taken “affirmative steps”
to evict him). Kevin Bautista had fraudulently procured a
motel room using a stolen credit card. Bautista, 362 F.3d at
586-87. The motel did not know that Bautista had used a
stolen credit card to make the reservation. Id. A few days
later, after the motel manager was informed of the fraud, she
called the police to help her “find out what was going on with
Mr. Bautista and the credit card.” Id. at 587. The manager told
the police that if Bautista could not explain the credit card sit-
uation to the manager’s satisfaction, she was prepared to have
the police evict him, unless he could make other payment
arrangements. Id. The manager gave the officer Bautista’s
room key, which the officer used to enter the room. Id.

   We held that at the time of the police entry into the room,
Bautista was still the lawful occupant of the room, and was
therefore entitled to a reasonable expectation of privacy, and
that the search violated the Fourth Amendment. Id. at 589-90.
“The manager did not ask the police to evict Bautista and the
police did not suggest doing so,” and under this court’s prece-
dent, “unless [a hotel guest’s] occupancy ha[s] been lawfully
terminated when the police conducted their search, [the guest]
retain[s] a reasonable expectation of privacy in the room.” Id.
Until the hotel manager “asked the police to evict Bautista, he
was still a lawful occupant who retained a legitimate expecta-
tion of privacy in the room.” Id. at 590. Accordingly, we held
that the warrantless search was illegal and vacated the convic-
tion. Id. at 593.

   [4] The circumstances in this case parallel Bautista. The
district court correctly found that Young maintained a reason-
able (although fraudulent) expectation of privacy in his hotel
8744               UNITED STATES v. YOUNG
room and the luggage he left in the hotel room, because hotel
staff had not evicted him from the room. The hotel had not
taken any affirmative act that was a clear and unambiguous
sign of eviction. Upon returning to his room and seeing that
his key did not work, Young might reasonably have believed
his key to be defective or demagnetized, rather than suspect-
ing that he had been evicted from the room.

  Numerous other facts militate against a factual finding that
Young had been evicted from his room, including:

    •   Young was never told by any member of the Hil-
        ton security staff that he had been evicted.

    •   Young’s belongings were never removed from
        his room and placed into storage.

    •   There was no evidence that Young had been
        removed from the registered guest list at the hotel
        at the time of the search.

    •   Hilton security staff did not contact the police
        after first discovering the firearm, but instead
        chose to contact police only after Young returned
        to his room and found that he had been temporar-
        ily locked out.

    •   At the time of the warrantless search and seizure,
        both Hilton security staff and Officer Koniaris
        appeared to consider Young to still be in posses-
        sion of the room. The security staff repeatedly
        referred to Room 13575 as “Young’s room,” and
        Officer Koniaris told Hicks that his supervisor
        said that he “could not enter Young’s room to
        search it.”

   The Government does not dispute the district court’s con-
clusion that Hilton security should be considered state actors
for the purposes of the second search of Room 13575.
                        UNITED STATES v. YOUNG                         8745
   The Government argues that the district court did not
accord adequate weight to a particular sentence in the Mar-
weg Declaration. The relevant sentence states: “It is the policy
of the Hilton that guests suspected of committing a crime in
the hotel should be evicted from the hotel.” Marweg Dec. ¶
16. However, no such statement exists in the written policies
submitted by the Hilton. A policy that something ought to be
done does not establish that it was done, and a hotel’s confi-
dential policy or manager’s suspicions, not disclosed to the
defendant, cannot destroy an otherwise reasonable expecta-
tion of privacy. Rakas, 439 U.S. at 143-44 & n.12.

   One portion of Hilton’s policy, titled “Suspected unlawful
activity,” does state that “[i]f the circumstances surrounding
a found or observed weapon suggests the potential for unlaw-
ful activity, the local police are to be informed by the Director
of Safety and Security or the General Manager.” But no evi-
dence in the record, including the submitted declarations,
indicates that the district court clearly erred in concluding that
the hotel was not implementing this portion of the policy.
Indeed, if the “suspected unlawful activity” was the cause for
the call to the police, the police would have been called imme-
diately after the first search by the Hilton security staff while
Young was out of the room, instead of after he unexpectedly
returned to the room.1

   Despite the unwritten policy, nothing in the record suggests
that Hilton security had concluded that Young had committed
a crime. The staff knew only that Young had accidentally
been given a key to another guest’s room (Room 13572), and
Marweg’s declaration states that the lock interrogation report
showed that an unidentified keycard was used to enter that
room at 3:30 p.m. — a full 15 minutes before Young was mis-
  1
    The other portion of the relevant written policy indicates only that once
a weapon is found in a guest’s room, the room is to be placed on electronic
lockout and a note is to be left for the guest to call Security upon his
return.
8746                UNITED STATES v. YOUNG
takenly given the key. While Marweg states in his declaration
that he believed the time clock on Room 13572’s lock to be
20 minutes behind, neither Hicks nor Carr — the two security
staff members on duty at the time — indicate in their declara-
tions that they were aware of or considered these facts about
the lock interrogation report when they decided to conduct
their search of Young’s room.

   [5] Furthermore, Marweg’s declaration states that in his
experience, guests who steal from the hotel rarely return, and
that was his expectation with Young — but Young behaved
contrary to this expectation by returning that same night to his
room, suggesting that Marweg was now less likely to believe
Young was a thief. This evidence does not support a conclu-
sion by Hilton security staff that Young had committed room
theft or provide grounds to evict Young from his room.
Young’s return to his room and attempt to enter it are evi-
dence Young still believed he was a guest at the hotel, a rea-
sonable belief given that the hotel had not actually evicted
him or told him that he was evicted.

   The Government’s contention that the Ninth Circuit’s ear-
lier decision in United States v. Cunag, 386 F.3d 888 (9th Cir.
2004), controls this case also falls short. In Cunag, Peter
Cunag sought to suppress stolen mail seized by police officers
from his fraudulently procured hotel room. Id. at 889. At the
time of check-in, Cunag provided materials that allegedly
authorized his use of another individual’s credit card. Id. at
890. Upon inspection, hotel staff realized the materials were
likely to be forgeries, and contacted the DMV and the credit
card’s issuing bank, which confirmed Cunag’s fraud. Id. The
hotel manager then locked Cunag out of the room and imme-
diately contacted the police to file a crime report. Id. Three
police officers arrived at the scene, and accompanied the man-
ager to Cunag’s room at the manager’s request. The manager
knocked several times, and after Cunag opened the door, the
manager informed him that he needed to discuss the bill with
him. Id. One of the officers smelled a “strong odor of smoke
                    UNITED STATES v. YOUNG                   8747
coming from the room” and was concerned that there might
be a fire, so he stepped forward to enter the room. Id. Cunag
responded by trying to close the door, but the officer per-
sisted, pushed forward, and removed Cunag and the other
inhabitants from the room. Id. The officers subsequently dis-
covered the stolen mail and observed a burner on the room’s
stove, and evidence that the occupants had been burning tis-
sue. Id.

   In denying the motion to suppress, the district court consid-
ered all the submitted declarations and made findings of fact
regarding Cunag’s credibility. Id. at 892-93. The court found
that Cunag’s testimony was “farfetched at best,” and that he
could not have had any reasonable expectation of privacy in
the room because he obtained the room through outrageous
“misstatements, lies, fraud, forgery.” Id. at 893.

   In affirming, this court held that the district court’s finding
that Cunag obtained the room through fraud was fully sup-
ported by the evidence in the record, as was the finding that
Cunag could not have had a subjective belief that he had a
reasonable expectation of privacy in the room. Id. at 895. The
court concluded that the hotel took “justifiable affirmative
steps” to repossess the room by “[l]ocking out Cunag . . . in
conjunction with registering a crime report with the police
certainly satisfies the Dorais test.” Id. Accordingly, the court
held that “Cunag never lawfully occupied the hotel room, the
hotel reclaimed it before the entry took place, and he had no
protected Fourth Amendment protection in it at the time of the
incriminating search.” Id. at 896.

   [6] Unlike Bautista, Cunag is inapplicable to the facts pres-
ented here. Cunag involved a defendant who had been conclu-
sively evicted from his hotel room after hotel management
confirmed that the room had been procured through credit
card fraud. The lockout was done with the clear intention of
permanently removing Cunag from the room, as demonstrated
by the simultaneous filing of the crime report with the police.
8748                UNITED STATES v. YOUNG
Here, Young was placed on electronic lockout only as a tem-
porary measure, in accordance with the hotel’s weapons pol-
icy, and hotel management was unaware of the possibility that
Young had procured the room through fraud. The district
court correctly took note of Hilton’s security policy, which
states that when a room has been e-keyed and the guest
returns, “he or she is to be advised that the room will not be
cleaned or serviced while the weapon is left in the room unat-
tended,” and then offered a “secured location on company
hotel property, if available, for the storage of such weapon
until the time of his or her departure.” The policy says nothing
about evicting a guest whose room is found to contain a
weapon.

   [7] The Government itself acknowledges that the hotel
security staff could have taken affirmative acts of disposses-
sion against defendant, including removing Young’s back-
pack from the room and leaving a note on his door that he had
been evicted from the room. After reviewing the written pol-
icy and declarations, the district court did not clearly err in
holding that the Hilton security guards intended to secure the
room for safety purposes, not to evict Young, and therefore
correctly discredited Marweg’s single statement to the con-
trary. In other words, the intent apparent to Young critically
distinguishes Cunag from the circumstances before us now.
Had the Hilton hotel staff genuinely intended to evict Young
from the premises, it would have had to be readily apparent,
as demonstrated through removal of Young’s belongings from
the room, a note left on the door informing Young he had
been evicted, the hotel staff telling Young he was evicted, or
some combination of the above. None of those events
occurred. Nothing in the record suggests that even if the hotel
staff had discovered Young’s credit card fraud, they would
have taken affirmative steps to immediately evict Young from
the room, as the staff in Cunag did. Instead, it is entirely pos-
sible that hotel staff would have followed the course of action
chosen by the hotel staff in Bautista, where the manager did
                    UNITED STATES v. YOUNG                  8749
not call the police to file a report but instead waited to speak
to Bautista to see about alternative forms of payment.

   [8] Furthermore, Cunag’s fraudulent use of the credit card
was front and center in that case. The district court held a sup-
pression hearing and heard testimony from officers and from
Cunag himself before making the factual finding that Cunag
was “totally not deserving of any belief or credibility.”
Cunag, 386 F.3d at 895. This court agreed that Cunag did not
have a reasonable expectation of privacy in the hotel room
after reviewing the district court’s factual findings and noting
that the hotel, its manager, and agents “took justifiable affir-
mative steps to repossess room 320 and to assert dominion
and control over it when they discovered and confirmed that
Cunag had procured occupancy by criminal fraud and deceit.”
Id. Here, the district court acknowledged the possibility of
fraud, but correctly distinguished Young’s situation from that
in Cunag by noting that hotel management was completely
unaware of such a possibility and that, as a result, the alleged
fraud did not destroy Young’s expectation of privacy in the
room, just as it did not in Bautista.

   The Sixth Circuit’s decision in United States v. Allen, 106
F.3d 695 (6th Cir. 1997) also fails to support this appeal.
Allen involved the search of a hotel room that took place after
defendant’s rental period had expired because of his failure to
pay the room rate, and after the motel manager took posses-
sion of the room upon discovering that defendant was keeping
contraband in the room. 106 F.3d at 699. The Sixth Circuit
held that the hotel’s repossession of the room extinguished
Allen’s privacy interest in it, and that the manager’s actions
were proper, “both because he was not allowed to store illegal
drugs on the premises and because his pre-paid rental period
had elapsed.” Id. Neither of those circumstances exist in the
case here. At the time of the search, Young’s rental period
had not elapsed, and the hotel staff had not evicted Young
from his room. His privacy interest in the room therefore
remained intact.
8750                UNITED STATES v. YOUNG
   [9] We therefore conclude that Young maintained a reason-
able expectation of privacy because he had not been evicted,
as required under the Dorais test, from the hotel room at the
time of the warrantless search.

  B.   United States v. Jacobsen and the Search of Young’s
       Hotel Room

   The Government argues, for the first time on appeal, that
United States v. Jacobsen, 466 U.S. 109 (1984) should be
extended to permit the search of Young’s backpack stored in
his hotel room.

   [10] Jacobsen involved a Federal Express package that
was initially opened and searched by private employees, and
after the employees notified authorities that the package con-
tained contraband, authorities then searched and seized the
package. 466 U.S. at 121-22. In reversing the Eighth Circuit,
the Supreme Court held that “the package could no longer
support any expectation of privacy,” and that “[s]uch contain-
ers may be seized, at least temporarily, without a warrant.” Id.
at 121. The Court based its decision in part on the fact that
“the tube and plastic bags contained contraband and little
else,” and accordingly, the “warrantless search was reason-
able, for it is well-settled that it is constitutionally reasonable
for law enforcement officials to seize ‘effects’ that cannot
support a justifiable expectation of privacy without a warrant,
based on probable cause to believe they contain contraband.”
Id. at 121-22.

   [11] This language suggests a very restricted application of
the holding in Jacobsen, and there are no facts presented here
that persuade us to expand Jacobsen’s decision to warrantless
searches of private residences. The Sixth Circuit in Allen spe-
cifically rejected this line of argument:

      Unlike the package in Jacobsen, however, which
    “contained nothing but contraband,” Allen’s motel
                    UNITED STATES v. YOUNG                 8751
    room was a temporary abode containing personal
    possessions. Allen had a legitimate and significant
    privacy interest in the contents of his motel room,
    and this privacy interest was not breached in its
    entirety merely because the motel management
    viewed some of those contents. Jacobsen, which
    measured the scope of a private search of a mail
    package, the entire contents of which were obvious,
    is distinguishable on its facts . . . .

Allen, 106 F.3d at 699; see also United States v. Paige, 136
F.3d 1012, 1021 n.11 (5th Cir. 1998) (holding that applying
Jacobsen to searches of private residences “would make the
government the undeserving recipient of considerable private
information of a home’s contents strictly through the applica-
tion of an inflexible rule”).

   [12] We agree with the Sixth Circuit’s reasoning in Allen.
It is a crime to possess cocaine, and the package in Jacobsen
contained “nothing but contraband.” 466 U.S. at 120 n.17.
This case is distinguishable from Jacobsen because neither
the hotel room nor the backpack contained only contraband.
It is not a crime in most circumstances for a non-felon to pos-
sess a gun, and the hotel did not know at the time of its pri-
vate search that Young was a felon. The hotel could not have
been “virtually certain,” as the postal workers were in Jacob-
sen, that the gun was contraband, and the closed backpack
supported a reasonable expectation of privacy. Stoner, 376
U.S. at 490; Nerber, 222 F.3d at 600; see also United States
v. Ross, 456 U.S. 798, 822-23 & n.30-31 (1982). Until a hotel
guest’s lease of the room expires or he checks out, the room
is like a home. United States v. Jeffers, 342 U.S. 48, 51-52
(1951). A guest has a legitimate and significant privacy inter-
est in the room’s contents, and does not lose his expectation
of privacy against unlawful government intrusions into his
closed briefcase or the contents of his computer hard drive
when hotel staff sees the briefcase, laptop, or other belongings
while cleaning the room or changing a light bulb. See id.
8752                UNITED STATES v. YOUNG
Closed packages or containers, such as Young’s backpack,
“are in the general class of effects in which the public at large
has a legitimate expectation of privacy,” making warrantless
searches of them “presumptively unreasonable.” Jacobsen,
466 U.S. at 114-15. Even in circumstances (none of which
were present here) where government agents may lawfully
seize a package to prevent loss or destruction of suspected
contraband, “the Fourth Amendment requires that they obtain
a warrant before examining the contents of such a package.”
Id.; Johnson v. United States, 333 U.S. 10, 14 n.14 (1948)
(“Belief, however well founded, that an article sought is con-
cealed in a dwelling house, furnishes no justification for a
search of that place without a warrant. And such searches are
held unlawful notwithstanding facts unquestionably showing
probable cause.”).

  C.   Inevitable Discovery Exception to the Exclusionary
       Rule

   The Government’s final argument is that the district court
incorrectly applied the exclusionary rule in suppressing the
fruits of Officer Koniaris’s search because the court failed to
consider the viability of the inevitable discovery exception in
this case. This doctrine also forms the basis of the dissent.

   [13] The inevitable discovery doctrine was first recognized
by the Supreme Court in Nix v. Williams, 467 U.S. 431
(1984). It states that if, “by following routine procedures, the
police would inevitably have uncovered the evidence,” then
the evidence will not be suppressed despite any constitutional
violation. United States v. Ramirez-Sandoval, 872 F.2d 1392,
1399 (9th Cir. 1989).

   [14] Inevitable discovery does not govern in this case. The
government has not shown by a preponderance of the evi-
dence, see id. at 1396, that Young would never have been
allowed back into his room. The Hilton weapons policy pro-
                    UNITED STATES v. YOUNG                  8753
vides for staff members to carry out the following steps to be
taken after a weapon is discovered in a guest’s room:

    Immediately leave the guest room, lock the guest
    room door and notify Security . . . Security shall E-
    key the guest room without disturbing the weapon
    and leave a note on the door for the guest to call
    Security upon returning to the room . . . . When the
    guest returns, he/she is to be informed that company
    policy prohibits possession of weapons on company
    and/or hotel property and offered a secured location
    on company or hotel property, if available, for the
    storage of such weapon until the time of his/her
    departure.

Hilton Hotels Corp., Standard Practice Instructions, Part
IV.A.1, 3, 9.

   Therefore, assuming that staff had followed the written pol-
icy when Young returned to the room, it is entirely likely that
after some discussion with hotel security, Young might have
decided to store the firearm, or, alternatively, take his belong-
ings with him and vacate the room. Contrary to the dissent,
both our circuit precedent and Supreme Court precedent dem-
onstrate that the inevitable discovery exception does not
apply. The above facts show that we have a warrantless
search of a private residence, not incident to an arrest, by
hotel staff working with a police officer. In Nix, the Supreme
Court held that speculation on the inevitability of legal dis-
covery of evidence is constrained by “demonstrated historical
facts capable of ready verification or impeachment.” 467 U.S.
at 444-45 n.5.

   Because the purpose of the inevitable discovery doctrine is
related to the harmless error theory, Nix, 467 U.S. at 344 n.4,
we examine the government’s assertion that no warrant was
necessary here because the police would have lawfully dis-
covered the challenged evidence in the due course of police
8754                UNITED STATES v. YOUNG
business, no matter what mistakes the hotel staff or the police
officer at the hotel actually made. The government argues that
because the officer knew, before Young was arrested, that
Young had been to prison and because the police had been
informed by hotel personnel that Young had a firearm in his
room, the officer therefore had probable cause to arrest
Young. The government also argues that once Young was
arrested and immobilized in the hotel security office, the offi-
cer then had not only the right, but the duty, for public safety
reasons, to take possession of the firearm, which he had seen
in the course of his earlier search of the room. Once the police
had possession of the firearm, that possession became lawful
because it was inevitable. What is missing from this kind of
circular logic is the fact that the police officer could have
obtained a warrant — and in fact was informed by his supe-
rior officer that he needed a warrant — but instead of getting
a warrant, conducted a warrantless search of the room while
accompanied by hotel staff. The public safety exception does
not apply in this case, however, because the gun was locked
in a hotel room accessible only to hotel security staff. Cf. Jef-
fers, 342 U.S. at 51-52; Johnson, 333 U.S. at 15. The only
reason the police possession of the firearm was inevitable was
because the officer did what officers sometimes do — he took
a short cut, even in light of the instruction from his sergeant
that a search of the room was impermissible.

   [15] The dissent proposes that we accept Marweg’s state-
ment — that weapons belonging to a guest suspected of com-
mitting a crime are always turned over to the police — as
formal hotel policy, even though nothing in the Hilton’s writ-
ten policy is consistent with Marweg’s statement. We decline
to do so. The policy states that “[t]he local police are to be
notified and requested to come onto company or hotel prop-
erty and take possession of the weapon” only when a weapon
is found in a room after a guest has checked out. Young had
not checked out, so it was not inevitable under the policy that
the gun would be turned over.
                    UNITED STATES v. YOUNG                   8755
   In a long line of cases beginning with United States v.
Echegoyen, 799 F.2d 1271 (9th Cir. 1986), our court has
stated in no uncertain terms that “to excuse the failure to
obtain a warrant merely because the officers had probable
cause and could have inevitably obtained a warrant would
completely obviate the warrant requirement of the fourth
amendment.” Id. at 1280 n.7. See also United States v. Reilly,
224 F.3d 986 (9th Cir. 2000); United States v. Mejia, 69 F.3d
309 (9th Cir. 1995); United States v. Boatwright, 822 F.2d
862 (9th Cir. 1987). As we explained in Mejia, this court “has
never applied the inevitable discovery exception so as to
excuse the failure to obtain a search warrant where the police
had probable cause but simply did not attempt to obtain a
warrant.” 69 F.3d at 320.

   In the case at bar, nothing more than speculation — not the
“demonstrated historical facts capable of ready verification”
required by Nix — support the discovery of the challenged
evidence outside the improper search by Officer Koniaris.
According to Officer Koniaris’s affidavit, he learned of
Young’s past arrests and spoke to him for “twenty or thirty
minutes” before learning that hotel staff had found a gun in
his room. At that point, he and the hotel security officers took
Young to the Hilton security office, where Officer Koniaris
searched Young and then handcuffed him to the bench in the
office. Instead of entering Young’s room while accompanied
by the hotel security staff, Officer Koniaris should have
obtained a search warrant and then returned to search the
room. The gun and the other evidence found in the room
would then have been admissible against Young.

   [16] A failure to suppress the evidence here would place
the police in a better position than if the illegal search had not
occurred. We hold that the inevitable discovery exception
does not apply to the search of Young’s room and seizure of
the firearm and other belongings.
8756                UNITED STATES v. YOUNG
III.   CONCLUSION

  The district court’s suppression of the firearm seized from
Young’s room was consistent with the Fourth Amendment
precedent in this circuit. Young maintained a reasonable
expectation of privacy in the room.

  AFFIRMED.



IKUTA, Circuit Judge, dissenting:

   Even if Young’s Fourth Amendment rights were violated
when Officer Koniaris observed hotel security staff search the
hotel room, the government proved by a preponderance of the
evidence before the district court that the gun ultimately
would have fallen into police possession. The alleged miscon-
duct was thus harmless under the inevitable discovery excep-
tion to the Fourth Amendment’s exclusionary rule. I therefore
respectfully dissent.

                                 I

   The facts before the district court in this case establish that,
absent the purported police misconduct, the gun would have
come into police possession lawfully. The hotel’s search of
Young’s room was independent, private, and conducted prior
to police involvement. After reviewing registration records,
the hotel management realized it had mistakenly given Young
access to the room from which the laptop computer and other
items were stolen. Dirk Carr, Assistant Director of Security at
the Hilton Hotel San Francisco, called Young and asked to
speak with him. Young agreed, but when Carr and Roger
Hicks, the Security Supervisor at the hotel, went to Young’s
room and knocked on the door, Young did not answer. At that
point, Carr and Hicks opened the door with a master key.
They found Young’s gun in a backpack and an empty key
                          UNITED STATES v. YOUNG                        8757
sleeve (missing the key) nearby with a label matching the
number of the burgled room. Carr called William Marweg,
Director of Security and Safety at the hotel, for instructions.
Marweg told Carr to leave the gun in the room and to place
it on electronic lockout (meaning Young could not reenter),
actions consistent with hotel policy.1 Given the late hour,
Marweg told Carr to call the San Francisco Police Department
in the morning to inform it of the theft and the discovery of
the gun. Marweg testified that, in his experience, “individuals
who steal items from the hotel do not then return to the hotel.”

   Curiously, Young returned to the hotel later that night.
Upon finding the room inaccessible, he notified the front desk
that his key card did not work. Suspecting Young had stolen
the missing items from the room to which he mistakenly was
given access, Hicks radioed Officer Koniaris, who was on
patrol outside the hotel, and told him that the hotel suspected
Young had stolen items from another guest. Officer Koniaris
engaged Young in conversation for twenty to thirty minutes,
during which time he learned that Young had been arrested
for numerous felonies and had spent time in prison. Shortly
thereafter, Hicks informed Officer Koniaris of the gun found
  1
   Hilton Hotel Corporation Standard Practice Instructions section IV,
subsection A states, in pertinent part:
      In the event a team member in the course of his/her duties
      observes or finds a weapon in a guest room, the following proce-
      dures apply:
      ...
      3.    Security shall E-key the guest room without disturbing the
            weapon and leave a note on the door for the guest to call
            Security upon returning to the room.
      ...
      8.    If a weapon is found or observed in a guest room after a
            guest has checked out, the guest room is to be secured as
            indicated in 3 above. The local police are to be notified and
            requested to come onto company or hotel property and take
            possession of the weapon.
8758                UNITED STATES v. YOUNG
in Young’s room and asked Officer Koniaris to come upstairs
with him to Young’s room. With probable cause to believe
that Young was a felon in possession of a firearm, Officer
Koniaris searched Young for other weapons and handcuffed
him to a bench in the hotel security office. It was not until
after these events took place that Officer Koniaris followed
Carr and Hicks up to the room where he looked “into the
room from the hallway.” Then, after Hicks showed Officer
Koniaris the gun inside the backpack, Officer Koniaris
entered the room and took possession of it.

                               II

   As a disincentive to police overreaching in violation of the
Fourth Amendment’s bar on “unreasonable searches and sei-
zures,” U.S. Const. amend. IV, the exclusionary rule prohibits
the introduction of evidence seized during unlawful searches.
Weeks v. United States, 232 U.S. 383, 398 (1914). Because
the underlying goal of the exclusionary rule is to balance “de-
terring unlawful police conduct with the public interest in
having juries receive all probative evidence of a crime,”
courts have developed a number of exceptions to the rule
where the deterrence rationale “has so little basis that the evi-
dence should be received.” Nix v. Williams, 467 U.S. 431,
443-44 (1984) (discussing the inevitable discovery exception,
the independent source exception, and the attenuated basis
exception). As the Supreme Court has explained, the purpose
of these exceptions is to allow the use of improperly obtained
evidence when police misconduct is harmless. Id. at 443 n.4
(noting “[t]he ultimate or inevitable discovery exception to
the exclusionary rule is closely related in purpose to the
harmless-error rule”).

   In line with this harmless-error approach, the Supreme
Court adopted the inevitable-discovery rule in Nix, “to block
setting aside convictions that would have been obtained with-
out police misconduct.” Id. In that case, police were transport-
ing a man suspected of involvement in the disappearance of
                    UNITED STATES v. YOUNG                  8759
a 10-year-old girl when one of the officers began questioning
him in violation of his right to counsel. Id. at 435. The suspect
made incriminating statements and directed the officers to the
child’s body. Id. at 436. Meanwhile, a search team was busy
combing the woods where the body was located. Id. At trial,
the prosecution sought to admit evidence concerning the
body’s location and condition. The accused moved to sup-
press the evidence, but the state court denied the motion, con-
cluding the search team would have found the body a short
while later. Id. at 437-38. In subsequent habeas proceedings,
the federal district court denied relief for the same reason. Id.
at 439. The Supreme Court affirmed, holding that, “[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 . . . then the deterrence rationale
has so little basis that the evidence should be received. Any-
thing less would reject logic, experience, and common sense.”
Id. at 444 (footnote omitted). Because the body “would ulti-
mately or inevitably have been discovered even if no violation
of any constitutional or statutory provision had taken place,”
id. at 434, the government was not precluded from introduc-
ing evidence concerning its discovery, id. at 450.

   In applying Nix, we have considered whether evidence may
“ultimately or inevitably” be discovered through the exercise
of ordinary police practices. In United States v. Lang, 149
F.3d 1044, 1046 (9th Cir. 1998), the police discovered a
cereal box containing crack cocaine in the engine compart-
ment of a vehicle as a result of an interrogation in violation
of the defendant’s Miranda rights. We applied the inevitable
discovery exception “ ‘to determine whether a reasonable
probability of discovery existed prior to the unlawful conduct,
based on the information possessed and investigations being
pursued at such time.’ ” Id. at 1047 (quoting United States v.
Drosten, 819 F.2d 1067, 1070 (11th Cir. 1987)). In light of
the “training and experience of the officers in searching vehi-
cles for drugs,” the district court had found that the police
would have discovered the drugs even absent the defendant’s
8760               UNITED STATES v. YOUNG
incriminating statements. Id. at 1048. Based on that finding,
we upheld the district court’s denial of the defendant’s motion
to suppress. Id.; see also United States v. Mancera-Londono,
912 F.2d 373, 376 (9th Cir. 1990) (holding that drugs discov-
ered in the warrantless search of a rental car were admissible
because a standard inventory search after the arrest of a sus-
pect in a rental car would result in police possession of the
drugs); United States v. Andrade, 784 F.2d 1431, 1433 (9th
Cir. 1986) (holding the same in the context of the search of
a garment bag).

   As the majority rightly points out, the inevitable discovery
doctrine does not apply where police officers simply fail to
obtain a search warrant after their investigation has uncovered
sufficient evidence to give them probable cause to conduct a
search. In such circumstances, the exclusionary rule prevents
the government from using evidence it would not have
obtained absent an unlawful search, thereby deterring police
from ignoring the warrant requirement. In United States v.
Reilly, 224 F.3d 986, 990 (9th Cir. 2000), for example, the
police conducted a search based on invalid consent and there-
after discovered physical evidence. We held that such evi-
dence was not admissible under the inevitable discovery
doctrine, which “applies only when the fact that makes dis-
covery inevitable is born of circumstances other than those
brought to light by the illegal search itself.” Id. at 995; see
also United States v. Mejia, 69 F.3d 309, 320 (9th Cir. 1995)
(inevitable discovery doctrine not applicable to items discov-
ered during search of suspect’s residence pursuant to alleg-
edly invalid consent, whether or not suspect’s consent was
valid); United States v. Echegoyen, 799 F.2d 1271, 1280 n.7
(9th Cir. 1986) (inevitable discovery doctrine did not justify
entry into a residence by narcotics detectives based on their
observations of signs of likely drug manufacturing activities,
even if a search warrant would have inevitably been issued).

   Yet, if “the fact that makes discovery inevitable is born of
circumstances other than those brought to light by the illegal
                   UNITED STATES v. YOUNG                      8761
search,” Reilly, 224 F.3d at 995, application of the inevitable
discovery rule is necessary to avoid putting the government in
a worse position than it would be absent a police officer’s
error. We do not limit the circumstances that make discovery
inevitable in a rigid or mechanical way, nor do we limit the
inevitable discovery doctrine to those circumstances where an
independent search would have discovered the evidence, as in
Nix. For example, as noted above, we have held evidence
admissible under the inevitable discovery doctrine when ordi-
nary police practices would have uncovered the evidence. See,
e.g., Lang, 149 F.3d at 1048. Indeed, as explained by Judge
(now Justice) Kennedy:

    There will be instances where, based on the histori-
    cal facts, inevitability is demonstrated in such a com-
    pelling way that operation of the exclusionary rule is
    a mechanical and entirely unrealistic bar, preventing
    the trier of fact from learning what would have come
    to light in any case. In such cases, the inevitable dis-
    covery doctrine will permit introduction of the evi-
    dence, whether or not two independent
    investigations were in progress. The existence of two
    independent investigations at the time of discovery
    is not, therefore, a necessary predicate to the inevita-
    ble discovery exception.

United States v. Boatwright, 822 F.2d 862, 864 (9th Cir.
1987). In other words, even when evidence has been seized in
violation of the Fourth Amendment, the government can
introduce the evidence at trial if it would have been discov-
ered by the government anyway. Such unlawfully procured
evidence is not subject to the exclusionary rule, because sup-
pressing the evidence would put the government in a worse
position “than it would have been in if no illegality had tran-
spired.” Nix, 467 U.S. at 443.
8762                  UNITED STATES v. YOUNG
                                  III

   Applying this principle to the evidence at issue in this case,
we must ask whether the record shows that the police ulti-
mately would have obtained possession of the gun based on
the situation as it existed before Officer Koniaris unlawfully
took the gun out of the hotel room. See Lang, 149 F.3d at
1047. The answer to this question is yes. By the time Officer
Koniaris entered the hotel room, security staff had already
discovered Young’s gun by virtue of purely private action on
the part of the hotel.2 The hotel had already notified Officer
Koniaris of the existence of the gun and its exact location.
Officer Koniaris had already determined that Young was a
felon and that the gun was therefore evidence of a crime.
Moreover, it is clear that Officer Koniaris and the hotel staff
went to Young’s room because the hotel security staff wanted
to give the gun to Officer Koniaris and he wanted it as evi-
dence. Because the hotel staff had discovered the gun before
Officer Koniaris commenced his investigation, it was a rea-
sonable certainty that the police ultimately would have
obtained possession of the gun by lawful means. See Nix, 467
U.S. at 444. Accordingly, any error by Officer Koniaris in
entering the hotel room was harmless.

   Nevertheless, the district court rejected the government’s
inevitable discovery argument:

      The Court does not find this [inevitable discovery]
      argument persuasive as it is counter to the hotel pol-
      icy and based on speculation that the hotel would
      never [have let] the defendant back in the room. I’m
      not sure that’s necessarily correct, especially that the
      defendant could have come back and said, you
      know, “I know the person in the other room,” and I
      — it’s just as much speculation or as little to say, he
  2
   Young does not challenge the legality of the first search, which was
conducted by hotel employees.
                    UNITED STATES v. YOUNG                   8763
    could have exonerated himself and then he would
    not have been ejected from the room — or evicted
    from the room.

Parsing this holding, it appears that the district court based its
grant of Young’s motion to suppress the gun on two factual
findings, namely: (1) the government’s claim that it would
have inevitably obtained the gun “is counter to the hotel poli-
cy” and (2) the government’s claim is “based on speculation”
that Young would not have been able to obtain access to the
room to retrieve the gun.

   In making its first finding, the district court failed to con-
sider the facts before it. Because the hotel’s policy provides
a procedure for returning guns to hotel guests, it is reasonable
to infer that, under ordinary circumstances, the hotel would
not turn over a guest’s gun to the police. But the hotel’s writ-
ten policy does not address the situation where, as here, the
guest in possession of a weapon is a known felon and the lead
suspect in an ongoing criminal investigation taking place at
the hotel. Therefore, nothing in the policy is contrary to secur-
ity director Marweg’s statement that, under such circum-
stances, “the police must come to the hotel and take
possession of the weapon.” The district court’s finding that
turning over a weapon to the police in these circumstances
would have been counter to the hotel policy is clearly errone-
ous. The majority similarly misreads the hotel’s policy.

   The district court’s second finding, that it was speculative
to conclude that the hotel would never have let Young back
into his room, is clarified by the majority, which hypothesizes
that “it is entirely likely that after some discussion with hotel
security, Young might have decided to store the weapon, or,
alternatively, take his belongings with him and vacate the
room.” This finding is also clearly erroneous. In determining
whether the police inevitably would have obtained the gun,
the district court was required to consider the “demonstrated
historical facts” of the case, Nix, 467 U.S. at 444 n.5, at the
8764                UNITED STATES v. YOUNG
time directly before the unlawful conduct, Lang, 149 F.3d at
1047. Yet here, at the crucial moment before the unlawful
entry, Young was a criminal suspect handcuffed to a chair in
the hotel’s security office. Whether or not Officer Koniaris
conducted the unlawful search of the hotel room, Young’s
next destination was the police station for booking, not back
to his hotel room to pack up. Under the facts of this case, no
reasonable sequence of events would lead to Young retrieving
his gun before the police inevitably obtained it.

                               IV

   This is a case where, “based on the historical facts, inevita-
bility is demonstrated in such a compelling way that operation
of the exclusionary rule is a mechanical and entirely unrealis-
tic bar.” Boatwright, 822 F.2d at 864. Lawful police acquisi-
tion of Young’s gun was inevitable due to the hotel staff’s
independent discovery of the gun and communication of that
information to the police. The majority’s contention that the
inevitable discovery doctrine is inapplicable on the ground
that Officer Koniaris’s seizure of the gun was contrary to the
warrant requirement of the Fourth Amendment misses the
point. The question is not whether Officer Koniaris’s seizure
of the gun was lawful, but whether the district court’s holding
is contrary to the Supreme Court’s instruction that the exclu-
sionary rule should not “put the police in a worse position
than they would have been in if no unlawful conduct had tran-
spired.” Nix, 467 U.S. at 445 (emphasis omitted). Because
proper application of the inevitable discovery rule would put
the police in the same position it would have been in absent
Officer Koniaris’s error, I would hold that the district court
erred by suppressing the gun as evidence. Accordingly, I
would reverse the grant of Young’s motion to suppress, and
I respectfully dissent.
