                      United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-2452
                                   ___________

United States of America,             *
                                      *
            Plaintiff-Appellee,       *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Northern District of Iowa.
Craig Allen Thomas,                   *
                                      *
            Defendant-Appellant.      *
                                 ___________

                          Submitted: December 12, 2006
                              Filed: March 28, 2007
                                  ___________

Before BYE, COLLOTON, and BENTON, Circuit Judges.
                         ________________

BYE, Circuit Judge.

      Craig Allen Thomas appeals the denial of his motion to suppress and the district
court’s1 sentence imposed upon him after being convicted on charges of possessing
with intent to distribute fifty grams or more of crack cocaine. As to the sentence,
Thomas challenges the district court’s imposition of an obstruction of justice
enhancement, and, generally, the 100:1 sentencing ratio between crack and powder
cocaine. We affirm.



      1
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
                                         I

      On May 23, 2005, the Cedar Rapids, Iowa, Police Department (CRPD) received
word from the Chicago Police Department that Markell Lane, a suspect in a shooting
death that had occurred in Chicago the day before, could be on his way to Cedar
Rapids on a particular bus.

       Three CRPD officers met the bus upon its arrival in Cedar Rapids. Among
others, two African-American males not matching Lane’s description exited the bus,
and were not stopped. Thomas then exited the bus. Officers decided he matched a
photograph they had of Lane. They approached Thomas and handcuffed him, then
performed a pat-down search. An officer felt a metal object and what he believed to
be a large bundle of currency in Thomas’s front pants pockets, and left them where
they were. He also found some paperwork in Thomas’s back left pocket, which he left
there.

      Thomas told officers his name was Donnell Thomas (actually his brother’s
name) and said he did not have any identification. He said he was unemployed and
did not know his Social Security number. He gave his address as being in an affluent
Chicago suburb of Country Club Hills, Illinois.

      The officers did not believe him. They asked Thomas if he had any relatives
they could contact to confirm his identity. He gave a phone number but no name for
his mother in Chicago and said his brother, Craig Thomas, also lived in Chicago.
Thomas then denied consent for officers to search his person and his bag. An officer
reached into Thomas’s back pocket, however, and pulled out a bus ticket assigned to
“Thomas, C.” The district court held this to be an illegal search, but declined to
suppress the evidence, citing the inevitable discovery doctrine.




                                        -2-
      Officers ran a search on both Craig and Donnell Thomas’s names, and
discovered the description of Donnell Thomas did not match the man they had
handcuffed, and that a warrant was outstanding for Craig Thomas’s arrest.

       A plan was hatched by one officer, who walked away from Thomas while
another officer remained with him. The officer who walked away called out “Craig!”
and Thomas “snapped [his] neck towards our direction looking at us, acknowledging
the word ‘Craig,’” the officer testified. After being confronted with his reaction,
Thomas admitted he was indeed Craig and had a warrant outstanding. He was then
arrested on the warrant and for providing false information to a police officer.

      Incident to the arrest, officers subsequently searched Thomas and his bag, and
found two tin-foil wrapped objects in a pair of brown shoes. Though they looked like
baked potatoes, they turned out to be 241.8 grams of crack cocaine. Officers testified
the encounter took about ten minutes.

       Thomas was charged with possession with the intention of distributing 50
grams or more of crack cocaine. At a suppression hearing, Thomas’s testimony was
at odds with police officers’. He said his head did not snap around when the officer
called out “Craig!” Instead, Thomas testified he turned to the other officer and asked,
“What did he say?” He said he was detained for an hour before his Miranda rights
were read to him. Thomas also said officers brought a drug-sniffing dog to the scene;
officers denied doing so (though one of the police units dispatched to the scene was
indeed a K-9 unit).

       At sentencing, the district court, citing Thomas’s testimony, gave him a two-
level enhancement for obstruction of justice, holding his statements material to the
defense theory he was putting forward – that it was a racially motivated stop in search
of drugs. “[D]efendant’s false statements were made in an attempt to put some flesh
on that bald assertion,” the district court held. “He made statements about the

                                         -3-
circumstances of the offense that, if believed, could have resulted in the suppression
of the evidence, and so nothing could be more material than that.”

      Thomas’s sentencing guideline range was 236 to 293 months, and he was
sentenced to 250 months, with five years of supervised release.

                                          II

      This court reviews the district court’s factual findings for clear error, and its
application of law and the sentencing guidelines de novo.

      Thomas argues officers knew early on that he was not murder suspect Markell
Lane, and had no reason to hold him for further questions on an unrelated matter. The
evidence does not support this argument.

       When they stopped Thomas, the police officers were at the bus station to look
for Lane on a bus from Chicago. Thomas resembled the photograph they had of Lane,
giving police both good reason to believe Thomas might be Lane, and good reason to
handcuff him. Police are authorized to use handcuffs in making Terry stops. United
States v. Miller, 974 F.2d 953, 957 (8th Cir. 1992).

       Though the search of Thomas’s pocket was improper, the evidence found need
not be suppressed if the two prongs of the inevitable discovery doctrine are proved by
a preponderance of the evidence: (1) there is a reasonable probability the evidence
would have been discovered by lawful means in the absence of police misconduct, and
(2) the government was actively pursuing a substantial, alternative line of
investigation at the time of the constitutional violation. United States v. Glenn, 152
F.3d 1047, 1049 (8th Cir. 1998).




                                         -4-
       We find the discovery of the evidence on the ticket – the name “Thomas, C.”
 – was inevitable. The officers were trying to determine whether they had a murder
suspect on their hands. The “substantial, alternative line of investigation” the officers
were conducting was whether the man they were speaking to was Lane; the stop could
not be concluded until police discovered Thomas’s true identity. This is a permissible
reason to continue a Terry stop. “A brief stop of a suspicious individual, in order to
determine his identity . . . may be most reasonable in light of the facts known to the
officer at the time.” Adams v. Williams, 407 U.S. 142, 145-46 (1972); Terry v. Ohio,
392 U.S. 1 (1968).

        Before the improper search of his pocket, Thomas had told officers his first
name was “Donnell.” After he was unable to give them his Social Security number
and did give them an address they believed unlikely to be his – and after a check on
“Donnell Thomas” returned a description he did not match – police had good reason
to believe he was not Donnell Thomas. The other name he had mentioned to officers
was his own, giving officers some reason to think he was, instead, Craig Thomas. But
until they could confirm he was Craig Thomas, officers had no firm reason to believe
he was not Lane.

      When Thomas turned his head to look at the officers who yelled “Craig!” he
gave them reason to believe he was not Lane. Unfortunately for Thomas, at that same
moment he also gave them reason to arrest him lawfully as Craig Thomas on an
outstanding warrant, and search him incident to that arrest.

       Thomas’s argument that the stop was racially motivated is also not supported
by the evidence. Officers had in hand a photograph of an African-American male, and
did not stop several other African-American males who were on the bus from
Chicago. The district court found Thomas did indeed resemble the photograph of Lane
the officers had in hand. Only when Thomas exited the bus did police make their first
stop.

                                          -5-
       As to the obstruction of justice enhancement, the district court based its
determination on the pre-sentence report, which listed three areas in which the
probation officer found Thomas lied at his suppression hearing when he testified: (1)
he turned to another officer with a question, and not toward the officer who called his
name; (2) he was detained for an hour without being Mirandized; and (3) police had
a drug-sniffing dog along on their search.

       Thomas also testified he was not aware drugs were in his bag, and the drugs
were not his. The district court found those statements to be false, but declined to
make them part of her obstruction calculation because they went to the ultimate issue
of guilt versus innocence.

       The sentencing guidelines allow for an obstruction of justice enhancement if a
district court finds by the preponderance of the evidence that the defendant willfully
obstructed or impeded the administration of justice during the investigation,
prosecution, or sentencing. United States v. Molina, 172 F.3d 1048, 1058 (8th Cir.
1999). The application notes to the guidelines list providing materially false
information to a judge or magistrate as conduct constituting obstruction of justice.

       The suppression hearing was before the district court who sentenced Thomas;
she was in a good position to evaluate the truthfulness and materiality of Thomas’s
testimony. Though the district court dealt Thomas quite a heavy blow when it levied
the obstruction enhancement, it cannot be said it committed clear error in finding he
perjured himself materially at the suppression hearing. See, e.g., United States v.
Carter, 884 F.2d 368, 375 (8th Cir. 1989) (“[I]t is axiomatic that, although we might
have decided differently in the first instance, we will not substitute our judgment for
that of the district court absent a finding of clear error, and we do not so find”).

      As to the 100:1 crack-to-powder cocaine sentencing ratio, we have held the
determination of the appropriate ratio is solely the province of Congressional

                                         -6-
policymaking, with the personal views and policy preferences of individual district
judges set aside. United States v. Spears, 469 F.3d 1166, 1176 (8th Cir. 2006) (en
banc).

       The district court did not err when it admitted evidence gained from the Terry
stop of Thomas, nor when it sentenced Thomas to a within-guidelines 250 months.
It did not clearly err when it sentenced Thomas with an enhancement for obstruction
of justice. We affirm.

COLLOTON, Circuit Judge, with whom BENTON, Circuit Judge, joins, concurring.

      I concur in Judge Bye’s opinion and agree that Craig Allen Thomas’s
conviction and sentence should be affirmed. In particular, I concur that the district
court properly applied circuit precedent concerning the “inevitable discovery
doctrine” to the facts of this case. The discussion of that doctrine, however, provides
an opportunity to observe that our court’s present articulation of the inevitable
discovery doctrine is inconsistent with Supreme Court precedent and warrants
consideration at an appropriate time by the en banc court.

       In Nix v. Williams, 467 U.S. 431 (1984), the Supreme Court adopted the
ultimate or inevitable discovery exception to the exclusionary rule. The Court held
that where information is discovered after police violate the Fourth Amendment, the
evidence should not be suppressed “[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.” Id. at 444. The rationale for this inevitable
discovery exception, like the related independent source doctrine, is that “the interest
of society in deterring unlawful police conduct and the public interest in having juries
receive all probative evidence of a crime are properly balanced by putting the police
in the same, not a worse, position that they would have been in if no police error or
misconduct had occurred.” Id. at 443.

                                          -7-
       Since then, our court has said that the inevitable discovery exception to the
exclusionary rule applies only where the government proves “by a preponderance of
the evidence: (1) that there was a reasonable probability that the evidence would have
been discovered by lawful means in the absence of police misconduct, and (2) that the
government was actively pursuing a substantial, alternative line of investigation at the
time of the constitutional violation.” United States v. Conner, 127 F.3d 663, 667 (8th
Cir. 1997). This two-pronged test was adopted from decisions of the Fifth Circuit, see
United States v. Wilson, 36 F.3d 1298, 1304 (5th Cir. 1994) (citing United States v.
Cherry, 759 F.2d 1196, 1205-06 (5th Cir. 1985)), with no analysis of the competing
approaches to the doctrine or whether Fifth Circuit’s approach is consistent with Nix
v. Williams.

        Our court’s present approach is both overinclusive and underinclusive. The
first prong of the analysis is overinclusive. It provides that evidence is admissible if
the government proves by a preponderance of the evidence that there is merely a
“reasonable probability” that the disputed evidence would have been discovered by
lawful means. The Supreme Court, however, held that a preponderance of the
evidence must show that the evidence “ultimately or inevitably would have been
discovered.” Nix, 467 U.S. at 444 (emphasis added). “Reasonable probability” means
something less than “more likely than not.” See Kyles v. Whitley, 514 U.S. 419, 434
(1995). By diluting the Supreme Court’s standard – “would have been discovered”
– to a “reasonable probability that the evidence would have been discovered,” we
open the possibility that police will be in a better position as a result of police error
or misconduct.

       Subsequent to Nix, the Supreme Court has reiterated that “inevitable discovery
of illegally seized evidence must be shown to have been more likely than not.”
Bourjaily v. United States, 483 U.S. 171, 176 (1987). The Second Circuit, interpreting
Nix, has concluded that “the government cannot prevail under the inevitable discovery
doctrine merely by establishing that it is more probable than not that the disputed

                                          -8-
evidence would have been obtained without the constitutional violation.” United
States v. Heath, 455 F.3d 52, 58 (2d Cir. 2006). That court has found “semantic
problems in using the preponderance of the evidence standard to prove inevitability,”
id. at 59 n.6 (internal quotation omitted), and two of Yale Law School’s most
distinguished professors have yet to solve this “semantic puzzle,” other than to
observe that there is a difference between proving that something “would have
happened” and that something “would inevitably have happened.” United States v.
Cabassa, 62 F.3d 470, 474 (2d Cir. 1995) (Winter, J.); Heath, 455 F.3d at 59 n.6
(Calabresi, J.). This analysis arguably overlooks the fact that the Supreme Court
spoke of evidence that “ultimately or inevitably would have been discovered,” Nix,
467 U.S. at 444 (emphasis added), and there may be no difference between proving
that something “would have happened” and that something “ultimately would have
happened.” In any event, whether the proper standard is “more likely than not” or
some higher degree of certainty, suffice it to say for present purposes that a
“reasonable probability” standard is inconsistent with Nix and should be eliminated
from our court’s formulation. See Heath, 455 F.3d at 60.

       The second prong of our court’s analysis, on the other hand, is underinclusive.
A rule that the inevitable discovery doctrine applies only where “the government was
actively pursuing a substantial, alternative line of investigation at the time of the
constitutional violation,” Conner, 127 F.3d at 667, allows for the exclusion of
evidence that inevitably would have been discovered. Even if the police were not
actively pursuing an alternative line of investigation at the time of police error or
misconduct, for example, the government may well be able to establish that the
execution of routine police procedure or practice inevitably would have resulted in
discovery of disputed evidence. By requiring proof that a “substantial, alternative line
of investigation” was in progress, our court’s application of the doctrine contravenes
the command of Nix that police should not be placed in a worse position than they
would have occupied in the absence of error or misconduct. 467 U.S. at 444. The
existence of an alternative line of investigation may be strong proof, as in Nix, that

                                          -9-
supports a finding that evidence inevitably would have been discovered in a particular
case. But a rigid requirement that such proof be mustered in every case is an
inappropriate prophylactic rule that unduly expands the exclusionary rule. Cf. Murray
v. United States, 487 U.S. 533, 540 n.2 (1988) (rejecting prophylactic exception to
independent source rule).

       Most courts of appeals have expressly or implicitly rejected the “substantial,
alternative line of investigation” requirement. See United States v. Vasquez De Reyes,
149 F.3d 192, 195 (3d Cir. 1998); United States v. Larsen, 127 F.3d 984, 987 (10th
Cir. 1997); United States v. Kennedy, 61 F.3d 494, 499-500 (6th Cir. 1995); United
States v. Fialk, 5 F.3d 250, 253 (7th Cir. 1993); United States v. Thomas, 955 F.2d
207, 210 (4th Cir. 1992); United States v. Boatwright, 822 F.2d 862, 864 (9th Cir.
1987) (Kennedy, J.); United States v. Silvestri, 787 F.2d 736, 745-46 (1st Cir. 1986).
That prophylactic rule is now followed by only our court, the Eleventh Circuit, and
the Fifth Circuit, from which both we and the Eleventh Circuit adopted it. Jefferson
v. Fountain, 382 F.3d 1286, 1296 (11th Cir. 2004); Conner, 127 F.3d at 667; United
States v. Kirk, 111 F.3d 390, 392 (5th Cir. 1997). We should align ourselves with the
majority of circuits and abandon this unwarranted requirement.

       Because I agree that the district court properly applied our governing precedent
to the facts of this case, and that Thomas’s other contentions are without merit, I
concur in the opinion of the court affirming the judgment of the district court.
                        ______________________________




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