                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                             FOR THE NINTH CIRCUIT                             JUL 28 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 13-30187

               Plaintiff - Appellant,            D.C. No. 6:12-cr-00018-DLC-1

  v.
                                                 MEMORANDUM*
DAVID GARY BURTON,

               Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Montana
                Dana L. Christensen, Chief District Judge, Presiding

                         Argued and Submitted July 11, 2014
                                 Portland, Oregon

Before: PAEZ, WATFORD, and OWENS, Circuit Judges.

       The government appeals the district court’s pretrial order granting defendant

David Burton’s motion to suppress evidence. We affirm.1



           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       1
        We have jurisdiction under 18 U.S.C. § 3731 to entertain an interlocutory
appeal from a district court order granting a motion to suppress evidence. See
United States v. W.R. Grace, 526 F.3d 499, 505 (9th Cir. 2008) (en banc).
      The Fourth Amendment permits investigatory stops of a vehicle only upon a

showing of reasonable suspicion, defined as “specific, articulable facts” that

provide “a particularized and objective basis for suspecting the particular person

stopped of criminal activity.” United States v. Jimenez-Medina, 173 F.3d 752, 754

(9th Cir. 1999) (citation and internal quotation marks omitted); United States v.

Thomas, 211 F.3d 1186, 1189 (9th Cir. 2000). To determine whether an objective

basis exists, we consider “the totality of the circumstances.” United States v.

Valdes-Vega, 738 F.3d 1074, 1078-79 (9th Cir. 2013) (en banc).

      The evidence the officers relied upon in stopping Burton’s vehicle does not,

individually or collectively, support a finding of reasonable suspicion.2 See

United States v. Ramirez, 473 F.3d 1026, 1033 (9th Cir. 2007) ( reasonable

suspicion may also be established through the “collective knowledge” of multiple

officers). As the district court found, none of the three investigating officers had

any reason to suspect that a white sedan was associated with Burton or any of the

crimes they were investigating. Although the officers observed the white sedan

arriving at, and leaving, Burton’s residence, we have previously held that

“unremarkable comings and goings” of a vehicle at a house suspected of



      2
       “We review reasonable suspicion determinations de novo . . . .” Valdes-
Vega, 738 F.3d at 1077.

                                          2
association with a crime is not sufficient to establish reasonable suspicion. See

Thomas, 211 F.3d at 1191.

        Moreover, although the government argues that the coincidental timing of

Burton’s call to Officer Weiss while the white sedan was parked at the Shannon

Court residence creates “[a]n objective and reasonable inference from the scene []

that Burton was driving the white car,” we disagree. The government provides no

“specific, articulable facts” to link Burton’s phone call to his residence or the

presence of the white sedan; indeed, the call could have been placed from

anywhere. Even viewing these facts in light of the totality of the circumstances, the

officers lacked a “particularized and objective basis” for the investigatory stop of

the white sedan. See United States v. Valdes-Vega, 738 F.3d at 1078. We

therefore affirm the district court’s conclusion that the stop violated the Fourth

Amendment, and the order suppressing evidence seized as a result of the unlawful

stop.

        The government argues that even if the evidence were obtained illegally, the

inevitable discovery doctrine permits the use of this evidence at trial. “The

inevitable discovery exception to the exclusionary rule is available when the

government demonstrates, by a preponderance of the evidence, that it would

inevitably have discovered the incriminating evidence through lawful means.”


                                           3
United States v. Lopez-Soto, 205 F.3d 1101, 1106 (9th Cir. 2000). Inevitable

discovery “involves no speculative elements” but focuses on “facts capable of

ready verification . . . .” Nix v. Williams, 467 U.S. 431, 444 n.5 (1984). Here, the

government’s arguments that it would have discovered the suppressed evidence

through continued investigation, personal observation, or questioning of Burton’s

wife are mere assumptions about what police may or may not have done that do

not meet the government’s burden by a preponderance of the evidence. See

United States v. Ramirez-Sandoval, 872 F.2d 1392, 1400 (9th Cir. 1989).

Accordingly, we affirm the district court’s order granting Burton’s motion to

suppress evidence.3

      AFFIRMED.




      3
       The district court’s order left open an avenue for the government to
demonstrate, in a pretrial motion, that it discovered certain evidence through
independent sources, or that circumstances were sufficiently attenuated to allow
admission of certain evidence. Our holding does not foreclose the government’s
opportunity to pursue those pretrial options.

                                          4
                                                                               FILED
United States v. Burton, No. 13-30187                                           JUL 28 2014

                                                                         MOLLY C. DWYER, CLERK
WATFORD, Circuit Judge, dissenting:                                       U.S. COURT OF APPEALS



      I would agree with the majority that the officers lacked reasonable suspicion

if we didn’t have the phone call. But the phone call makes this an easy case.

      Deputy Weiss goes to Burton’s house and leaves his card with Burton’s

wife, asking that she have Burton call him when Burton returned home. At least an

hour passes. Then, officers watching Burton’s house see a white sedan pull up and

park in the driveway. A man gets out and enters through the rear of the house,

rather than going to the front door and knocking, as would a visitor. Within

minutes, Deputy Weiss receives a call from a man identifying himself as David

Burton—the obvious inference being that Burton’s wife had just relayed the

message from Deputy Weiss to have Burton call when he returned home. Soon

thereafter, the same man walks out of the house, gets back into the white sedan,

and drives off.

      We could debate whether these facts gave the officers probable cause to

believe that the man driving the white sedan was David Burton. But they

unquestionably establish reasonable suspicion. For that reason, I would reverse.
