                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0192n.06

                                        Case No. 19-1367

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                  FILED
                                                                             Apr 03, 2020
UNITED STATES OF AMERICA,                           )                   DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiff-Appellee,                          )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE WESTERN DISTRICT OF
LANTREL DEKEITH WILSON,                             )       MICHIGAN
                                                    )
       Defendant-Appellant.                         )
                                                    )
____________________________________/


Before: MERRITT, MOORE, and MURPHY, Circuit Judges.

       MERRITT, Circuit Judge. Defendant Lantrel Wilson appeals the district court’s denial

of his motion to suppress evidence discovered during a pat-down search conducted after defendant

was found sleeping in a car. The officers contend that they sought and received consent from

defendant to pat him down for weapons, and discovered that defendant had a firearm in his

waistband. Defendant contends that he did not consent. After a hearing regarding the motion to

suppress, the district court found that defendant voluntarily consented to the search. The district

court also found, in the alternative, that the officers had reasonable suspicion to justify the pat

down of defendant for weapons and that the officers would have inevitably discovered the firearm

because they had probable cause to arrest him for several other offenses. Because the district court

did not clearly err in concluding that defendant voluntarily consented to the pat-down search, we
Case No. 19-1367, United States v. Wilson


affirm its judgment. We also agree with the district court that the officers were entitled to search

defendant, even without his consent, given the circumstances.

                                                            I.

           In June 2018, someone called 911 just before 5 am to report a person “passed out” in a

vehicle in Lansing, Michigan. Lansing police officers Ricky Spratt, Robert Bricker, and Stacey

Browe responded. Dispatch informed them that the car belonged to a woman who did not live in

the immediate area. The vehicle was at the end of an unlit dead-end street known to the officers

to be a high-crime area. When the officers, who were wearing body cameras,1 arrived, they saw

an “unresponsive” man sitting upright in the driver’s seat of the vehicle. Motion to Suppress Hr’g

Tr. at 7. Loud music was playing from the radio. The volume of the music made it impossible for

Officer Spratt to tell if the engine was running, but he noticed as he approached that the keys were

in the ignition and turned forward.

           The officers were concerned that the man, who was later identified to be defendant, was

having a medical emergency, and they tried to rouse him by shining their flashlights on his face,

but got no response. Officer Spratt then opened the unlocked passenger-side door and saw an open

bottle of what he believed to be alcohol in the center console. Officer Bricker opened the driver-

side door. Officer Spratt removed the keys from the ignition to stop the music, and he shook

defendant on the right arm and kept talking to him until he was responsive. Each time Officer

Spratt moved defendant’s right arm, his hand went to his waistband. Fearing that the man might

have a weapon, Officer Spratt ordered him to keep his hands up. The officers wanted to summon

an ambulance because they continued to fear that the man might have overdosed or be experiencing




1
    A CD of the 911 call and the body camera video is part of the record in this case.

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Case No. 19-1367, United States v. Wilson


some other medical problem, but defendant declined. Officer Spratt testified that he believed the

man to be intoxicated. Hr’g Tr. at 27.

       Officer Spratt asked defendant to step out of the car. The officer testified that defendant

“stumbled a bit” and seemed “puzzled” and swayed back and forth. Hr’g Tr. at 17, 25. He told

the officers that his name was “Duke Wilson” and he was visiting a friend in the area. Officer

Spratt asked him if he could pat him down “so we can make sure our safety is fine.” Hr’g Tr. at

32. Defendant nodded and complied with the officer’s request to put his hands behind his back.

Officer Spratt patted the man down and felt a pistol handle in his front right waistband. Office

Spratt removed the gun and handcuffed the man. Once arrested, a preliminary breath test for

alcohol determined his alcohol count was more than double the legal limit. It was later discovered

that defendant had three baggies of cocaine in his pocket, and he was on federal supervised release

for earlier crimes.

       Defendant was charged with being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g), and possession of a controlled substance in violation of 21 U.S.C. § 844. After

his motion to suppress the weapon and drugs was denied, defendant pled guilty to being a felon in

possession of a firearm pursuant to a conditional plea agreement that reserved his right to appeal

the suppression ruling. He was sentenced to 50 months imprisonment. This timely appeal

followed.

                                                II.

       The sole issue on appeal is whether the district court erred in denying defendant’s motion

to suppress evidence. Defendant challenges the three grounds for denying the motion that the

district court gave in its ruling. On appeal from a motion to suppress, we review factual findings




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Case No. 19-1367, United States v. Wilson


for clear error and legal conclusions de novo. United States v. Perez, 440 F.3d 363, 365-66 (6th

Cir. 2006).

           A. Consent

          Defendant’s primary argument on appeal is that he did not consent to the search of his

person.     While the Fourth Amendment protects citizens against unreasonable searches and

seizures, a search of a person is not unreasonable if that person gives free and voluntary consent.

See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); United States v. Kelly, 913 F.2d 261,

265 (6th Cir. 1990). The government bears the burden of proving, through “clear and positive

testimony” that the consent to search was given voluntarily. United States v. Salvo, 133 F.3d 943,

953 (6th Cir. 1998). “Consent is voluntary when it is unequivocal, specific and intelligently given,

uncontaminated by any duress or coercion.” United States v. Moon, 513 F.3d 527, 537 (6th Cir.

2008) (internal citations omitted). Voluntariness is determined by examining the totality of the

circumstances. See Bustamonte, 412 U.S. at 227; United States v. McCaleb, 552 F.2d 717, 720

(6th Cir. 1977). A court should consider the use of coercive or punishing conduct by the police;

and indications of “more subtle forms of coercion that might flaw [an individual’s] judgment.”

United States v. Watson, 423 U.S. 411, 424 (1976).

          In conducting an inquiry into consent to search, the court should examine the following

nonexclusive factors: “the age, intelligence, and education of the individual; whether the individual

understands the right to refuse to consent; whether the individual understands his or her

constitutional rights; the length and nature of detention; and the use of coercive or punishing

conduct by the police.” United States v. Worley, 193 F.3d 380, 386 (6th Cir. 1999) (quoting United

States v. Riascos-Suarez, 73 F.3d 616, 625 (6th Cir. 1996)).




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Case No. 19-1367, United States v. Wilson


          In this case, Officer Spratt asked defendant, “I just want to make sure you don’t got no

weapons or nothing. Can you do me a favor? Can you put your hands behind your back so we

can make sure our safety is fine.” Hr’g Tr. at 32. Defendant appeared to consent by first nodding

his head, and then following the officer’s request to put his hands behind his back. Despite this

appearance of acquiescence, defendant argues that any consent was not voluntary due to the

coercive nature of the encounter. We note that lack of voluntariness was not raised in defendant’s

motion to suppress, but it was argued briefly at his hearing and the district court addressed it in its

ruling.

          Whether a person is in custody is not dispositive of whether consent can be freely given.

Salvo, 133 F.3d at 953-54. While it is debatable whether defendant would feel free to go in these

circumstances, that is but one factor to consider in determining consent. Coercive behavior

includes “the threatening presence of several officers, the display of a weapon by an officer, some

physical touching of the person . . ., or the use of language or tone of voice indicating that

compliance with the officer’s request might be compelled.” United States v. Peters, 194 F.3d 692,

697 (6th Cir. 1999) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). Defendant

argues that there were two officers, they had shaken him awake, they had bright lights shining on

the car, and they ordered him out of the vehicle. He contends that under these circumstances, the

nod of his head and the agreement to put his hands behind his back as the officer requested were

coerced, not voluntary, actions. In contrast, the government points out that he was not handcuffed

and the officers did not have their weapons drawn. They touched defendant while he was in the

car only to try to rouse him, not to detain him. They were not yelling at him. The request was

made by Officer Spratt in a polite tone in the nature of a request, not a command. Hr’g Tr. at 67-

69.



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Case No. 19-1367, United States v. Wilson


       The district court properly considered the totality of the circumstances in concluding that

defendant freely gave consent to the pat-down search for weapons. The court noted that, as seen

in the video, defendant “perceptively nodd[ed]” his head and then put his hands behind his back

at Officer’s Pratt’s request. Hr’g Tr. at 72. The district court also concluded the officers’ actions

and tone of voice indicate that the officers did not engage in any coercive behavior towards

defendant that would vitiate consent. Id. at 72-73. The district court did not clearly err in

concluding that the government met its burden in demonstrating that defendant “voluntarily and

knowingly” consented to the pat-down search.

         B. Inevitable Discovery Doctrine

       The district court ruled, in the alternative, even if defendant did not give consent to search

his person, the weapon would have inevitably been discovered. Hr’g Tr. at 73. Under the

inevitable discovery doctrine, evidence obtained unlawfully will not be suppressed if the

government can prove that the evidence inevitably would have been obtained through lawful

means. Nix v. Williams, 467 U.S. 431, 448 (1984). For the doctrine to apply, the government must

demonstrate “the existence of an independent untainted investigation that inevitably would have

uncovered the same evidence,” or “other compelling facts establishing that the disputed evidence

inevitably would have been discovered.” United States v. Kennedy, 61 F.3d 494, 499-500 (6th

Cir. 1995).

       The hearing transcript demonstrates that the officers had probable cause to arrest defendant

for (1) operating a vehicle while under the influence of alcohol in violation of Mich. Comp. Laws

§ 257.625(1); (2) possessing an open container of alcohol in his car, in violation of Mich. Comp.

Laws § 257.624a and of the terms of his supervised release; and (3) violating the municipal noise

ordinance. As defendant points out, the officers did not in fact arrest defendant on any of these



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Case No. 19-1367, United States v. Wilson


charges. But Officer Spratt testified that he would have placed defendant under arrest for the

violations had the gun not been found, noting particularly that driving under the influence and

violating the terms of supervised release are serious crimes that would have prevented the officers

from releasing defendant. Hr’g Tr. at 21-23.

           The officers detailed the circumstantial evidence that led them to conclude that they had

probable cause to believe that defendant had driven while intoxicated. When the officers arrived

on the scene, they found defendant unresponsive in his car with what appeared to be an open

container of alcohol in the console beside him. They had difficulty rousing him, and they smelled

alcohol in the car and saw the open container next to defendant.2 While defendant is correct that

the officers did not see him driving the car, it was reasonable for them to believe that he had done

so as he was sitting in the driver’s seat with the keys in the ignition, and with the radio on. He had

some difficulty standing up after he got out of the car. The officers would have had probable cause

to arrest him under the circumstances. Based on this fact, Officer Spratt testified at the hearing

that he would have arrested defendant.

             C. Reasonable Suspicion to Pat Down

           The district court also concluded that even if defendant did not give consent, the pat down

was necessary for the officers’ safety. Hr’g Tr. at 74. “A concern for officer safety permits a

variety of police responses in differing circumstances, including ordering a driver . . . out of a car

during a traffic stop, . . . and conducting pat-down searches ‘upon reasonable suspicion that they

may be armed and dangerous.’” Bennett v. City of Eastpointe, 410 F.3d 810, 822 (6th Cir. 2005)

(citations omitted) (quoting Knowles v. Iowa, 525 U.S. 113, 118 (1998)). An officer may pat down

a person in the course of a Terry stop if he can “point to particular facts from which he reasonably



2
    When tested, defendant’s blood alcohol content was .193, well above the legal limit for operating a vehicle.

                                                          -7-
Case No. 19-1367, United States v. Wilson


inferred that the individual was armed and dangerous.” Sibron v. New York, 392 U.S. 40, 64

(1968). Officer Spratt testified that defendant’s hand went to his waistband at least twice while

defendant was still in the car, and, in his experience, the waistband was a common place to keep a

weapon. This movement led the officer to suspect that defendant might have a weapon. See United

States v. Noble, 762 F.3d 509, 521 (6th Cir. 2014) (Officers may “perform a ‘pat-down’ of a driver

. . . upon reasonable suspicion that they may be armed and dangerous.” (citation omitted)).

Furthermore, the car was not registered to defendant and the owner of the car did not live in the

area. The circumstances under which the officers found defendant reasonably led them to believe

he might be armed.

       The judgment of the district court is affirmed.




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Case No. 19-1367, United States v. Wilson


       KAREN NELSON MOORE, Circuit Judge, dissenting. The majority’s opinion reduces

to three propositions. First, if a police officer finds you sleeping or unconscious in a car with your

hands resting on your lap, roughly shakes your arm to wake you, and you return the arm to its

original resting position on your lap, that officer has reasonable suspicion that you are armed and

dangerous, and may order you out of the car to search you. Second, if the officer—after physically

rousing you—asks you to step out of your vehicle and to put your hands behind your back while

immediately taking hold of your arm, a wordless nod on your part constitutes unequivocal consent

to the officer’s ensuing search of your body. Third, even if this search violated your constitutional

rights, the courts will ignore this violation if the officer had probable cause to arrest you for any

other offense—even one for which, in reality, he may not have arrested you. I find each of these

propositions to be at odds with the Fourth Amendment, and therefore I dissent.

                                 I. REASONABLE SUSPICION

       First, the majority omits crucial portions of the arresting officers’ testimony and fails to

discuss the revealing bodycamera footage in concluding that the officers had reasonable suspicion

to search Lantrel Wilson because he was armed and dangerous. “Reasonable suspicion is based

on the totality of the circumstances,” Joshua v. DeWitt, 341 F.3d 430, 443 (6th Cir. 2003), and

“requires more than just a ‘mere hunch,’” Smoak v. Hall, 460 F.3d 768, 778 (6th Cir. 2006)

(quoting United States v. Arvizu, 534 U.S. 266, 274 (2002)), but less than proof by a preponderance

of the evidence, see United States v. Sokolow, 490 U.S. 1, 7 (1989). As an initial matter, the

majority notes that “the car was not registered to defendant and the owner of the car did not live

in the area,” Maj. Op. at 8, but not even the government argued in this case that this fact gave the

officers reasonable suspicion that Wilson was armed and dangerous.




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Case No. 19-1367, United States v. Wilson


       More significantly, the majority’s terse description of Wilson’s physical response to the

officers’ actions ignores what the bodycamera footage plainly reveals and what Officer Spratt

admitted on the stand. The footage shows that when the officers first opened the doors of the

vehicle and found Wilson sleeping or unconscious, Wilson’s hands were resting on his lap, Spratt

Video at 1:00, and that after Spratt shook Wilson’s right arm, Wilson simply returned the arm to

its initial, resting position, id. at 1:33, 1:40, 2:08. Spratt even acknowledged at the suppression

hearing that after he finished “shaking [Wilson] pretty vigorously,” Wilson was “bringing [his

arm] back to rest on his exactly where he was sitting when [Spratt] found him.” R. 27 (Suppression

Hr’g Tr. at 31) (Page ID #94). Wilson’s arm did not suspiciously relocate to his waistband after

initially resting on a different part of his body; his hands had been resting on his lap in a natural,

seated position before Spratt ever touched him.

       Wilson’s physical readjustment was nothing like the evasive or sudden movements that we

have held trigger reasonable suspicion. See, e.g., United States v. Smith, 594 F.3d 530, 542 (6th

Cir. 2010) (defendant’s “sudden reach into his jacket” supported the officers’ reasonable suspicion

that he was armed and dangerous); United States v. McDaniel, 371 F. App’x 617, 621 (6th Cir.

2010) (officers had reasonable suspicion to search a vehicle passenger when he “appeared startled

and turned his body away from them,” and “ma[de] a furtive movement as if he was putting

something into his waistband”). Wilson did not reach over to the passenger seat, see United States

v. Tillman, 543 F. App’x 557, 562 (6th Cir. 2013), or toward the center console, see United States

v. Ledbetter, 929 F.3d 338, 347 (6th Cir. 2019), or under his seat, see United States v. Graham,

483 F.3d 431, 439 (6th Cir. 2007), nor did he “quickly reach[] into his . . . pocket,” United States

v. Martin, 473 F. App’x 494, 495 (6th Cir. 2012). He moved his arm back to the position it was

in before the officers began physically to rouse him. Even Spratt’s fellow officer testified that



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Case No. 19-1367, United States v. Wilson


none of the movements Wilson made in the vehicle gave him concern that Wilson was armed and

dangerous. R. 27 (Suppression Hr’g Tr. at 50) (Page ID #113). For these reasons, I cannot agree

that there was reasonable suspicion to search Wilson.

                                          II. CONSENT

          Next, the majority wrongly concludes that the district court did not clearly err on the

consent issue. “Consent to a search, in order to be voluntary, must be unequivocal, specific and

intelligently given, uncontaminated by any duress or coercion, and is not lightly to be inferred.”

Simmons v. Bomar, 349 F.2d 365, 366 (6th Cir. 1965) (per curiam). The government’s burden to

show that a defendant consented voluntarily “cannot be discharged by showing no more than

acquiescence to a claim of lawful authority.” Bumper v. North Carolina, 391 U.S. 543, 548–49

(1968).

          The majority first offers factual misstatements to support its conclusion, recounting the

moment of supposed consent as follows: “Officer Spratt asked [Wilson] if he could pat him down

‘so we can make sure our safety is fine.’ Defendant nodded and complied with the officer’s request

to put his hands behind his back.” Maj. Op. at 3. Video evidence directly contradicts this recitation

of the facts in two critical ways. First, Wilson’s “nod” was not in response to the “request” for

him to put his hands behind his back. Spratt’s bodycamera footage reveals that Spratt stated: “Hey

Duke, do me a favor. I just want to make sure you don’t have no weapons or nothing, okay?”

Spratt Video at 3:46–3:48. At this moment—before the request—Wilson nodded. Id. Spratt then

continued: “So we can make sure our safety is fine, can you put your hands behind your back?

It’s just our policy.” Id. at 3:49–3:52. The footage clearly shows that Wilson did not “nod” yes

in response to Officer Spratt asking him to put his hands behind his back. Second, Officer

Bricker’s bodycamera footage unmistakably reveals that Wilson did not move his hands behind



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Case No. 19-1367, United States v. Wilson


his back voluntarily. At the same moment that Officer Spratt says to Wilson, “[C]an you put your

hands behind your back?” Spratt grabs Wilson’s left wrist and moves it behind his back, before

Wilson has an opportunity to act. Bricker Video at 4:18. Any suggestion that Wilson voluntarily

moved his hands behind his back, signaling his consent, is thus “utterly discredited by the record,”

and this court should not “rel[y] on such visible fiction.” Scott v. Harris, 550 U.S. 372, 380–81

(2007).

          As for its legal analysis, the majority overlooks several parts of this incident that indicate

Wilson’s lack of consent. First, by the time Spratt asked Wilson if he could conduct the search,

Spratt and his fellow officer had already physically roused Wilson from slumber while he was

alone in the vehicle. “A scared, defenseless man is not in a position to say no to a police officer

whose hands are still on or just removed from his body while another officer is standing just a few

feet away.” United States v. Beauchamp, 659 F.3d 560, 572 (6th Cir. 2011); see also United States

v. Mendenhall, 446 U.S. 544, 554 (1980) (identifying “some physical touching of the person of

the citizen” as evidence that an encounter was a nonconsensual seizure). This physical contact,

moreover, was not de minimis; Spratt acknowledged that he was “shaking [Wilson] pretty

vigorously” in the vehicle. R. 27 (Suppression Hr’g Tr. at 31) (Page ID #94).

          Second, Wilson’s ability to exit the scene was severely restricted.1 On the related question

of whether a defendant bus passenger was “seized” for Fourth Amendment purposes during

questioning by a law-enforcement officer, the Supreme Court emphasized the passenger’s physical

freedom of egress throughout the encounter. See United States v. Drayton, 536 U.S. 194, 204

(2002) (“[The officer] left the aisle free so that respondents could exit.”); id. (“There was . . . no


1
  Notably, the government does not attempt to dispute Wilson’s argument that he was in custody when he was asked
to consent, see Appellant Br. at 17; instead it dismisses the import of this argument by stating that “[w]hether a person
is in custody is only one factor in considering whether he or she voluntarily consented to a search,” Appellee Br. at
15 (citing United States v. Faulkner, 133 F. App’x 298, 303 (6th Cir. 2005)).

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Case No. 19-1367, United States v. Wilson


blocking of exits.”); id. at 205 (another officer positioned at the front of the bus “said nothing to

suggest that people could not exit and indeed he left the aisle clear”). Here, by contrast, by the

time Wilson awoke, the officers had (1) opened the doors to the vehicle, (2) removed his keys from

the ignition, preventing his exit by car, and (3) positioned themselves at the driver- and passenger-

side doors, preventing his exit by foot. See United States v. Jones, 846 F.2d 358, 361 (6th Cir.

1988) (per curiam) (“[T]he initial stop and blocking of Jones’s car by three police cars established

a custodial atmosphere and coercive environment.”). Furthermore, after Wilson exited the vehicle,

Spratt communicated to him—both verbally and physically—that he could not leave the scene.

After Officer Browe asked Wilson which apartment his cousin was in, Wilson attempted to walk

past Spratt to identify the apartment, stating, “The first one, I’ll show you.” Bricker Video 4:03.

In response, Spratt stepped in Wilson’s path, held out his hand, and stated, “Nah, nah, it’s fine,

she’s just gotta check it out.” Id. at 4:04–05.

       Third, immediately prior to the search, Spratt had asked Wilson to step out of the car. It is

clear from the bodycamera footage that this first “ask” of Wilson—for him to step out of the car—

was more of a direction than a request. See United States v. Cowan, 704 F. App’x 519, 526 (6th

Cir. 2017) (Moore, J., dissenting) (“[The police officer]’s ‘ask’ was only that [the defendant] move

to the side, and not whether [the defendant] would consent to a pat-down of his person.”). Fourth,

Wilson did not “assist the officers in their search,” he did not “make any additional statements

which would indicate free and voluntary consent,” and the officers did not inform him of his right

to refuse consent. United States v. Worley, 193 F.3d 380, 386–87 (6th Cir. 1999). “[A]lthough

law enforcement officials are not required to inform criminal suspects of their right to refuse

consent to a search, ‘knowledge of the right to refuse consent is one factor to be taken into

account.’” Id. at 386–87 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)).



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         The majority cites no caselaw in support of its conclusion that the district court did not

clearly err on the consent issue. Instead, it responds to the overwhelming evidence that Wilson

did not consent by offering two mistaken factual observations that are directly contradicted by the

bodycamera footage.2 For the reasons stated above, I believe the majority is wrong.

                                     III. INEVITABLE DISCOVERY

         The majority’s final error is its conclusion that that Wilson’s firearm would have inevitably

been discovered by lawful means. When determining if evidence would have been inevitably

discovered, we focus on “affairs as they existed at the instant before the unlawful search.” United

States v. Kennedy, 61 F.3d 494, 498 (6th Cir. 1995) (quoting United States v. Eng, 971 F.2d 854,

861 (2d Cir. 1992)). “[We] must keep speculation at a minimum by focusing on demonstrated

historical facts capable of ready verification or impeachment.” United States v. Lazar, 604 F.3d

230, 240 (6th Cir. 2010) (quoting United States v. Ford, 184 F.3d 566, 577 (6th Cir. 1999)).

         The question under the inevitable-discovery doctrine is not simply whether law-

enforcement officials had probable cause to arrest the defendant, which would have permitted them

to conduct a search. Rather, we must inquire whether a lawful arrest—and thus the discovery of

the evidence pursuant to a lawful search—was “inevitable.” In other words, we must conclude

that the arrest would have happened, not just that it could have happened. See Nix v. Williams,



2
  Even if I agreed that Wilson did not merely acquiesce to Spratt’s claim of lawful authority, I would still conclude
that Wilson did not consent to the search given his state of inebriation. We have ruled that “medication or intoxication
may diminish the capacity to consent to the extent it undermines an individual’s grasp on the reality of what he is
doing.” United States v. Montgomery, 621 F.3d 568, 572 (6th Cir. 2010). This approach “gauge[s] the impact of
drugs [or alcohol] on a case-by-case basis and in view of other circumstances at play.” Id. In this case, the officers’
own retelling of the events of June 24 depicts Wilson in a state of severe intoxication even after he became
responsive—“slurr[ing]” his speech, R. 27 (Suppression Hr’g Tr. at 47) (Page ID #110), “stumbl[ing] a bit” and
“look[ing] a bit puzzled,” id. at 16–17, and “swaying back and forth,” id. at 25. This is the exact opposite of
Montgomery, in which we explained that we had previously upheld a search based on the testimony of two police
officers who said that the defendant “did not seem impaired, was not swaying or unsteady, had no trouble signing the
consent form, and appeared to be coherent.” 621 F.3d at 572 (quoting United States v. Fletcher, 295 F. App’x 749,
757 (6th Cir. 2008)). Here, by contrast, Wilson’s intoxicated state prevented him from providing “unequivocal,
specific and intelligently given” consent. Simmons, 349 F.2d at 366.

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Case No. 19-1367, United States v. Wilson


467 U.S. 431, 444–45 n.5 (1984) (“[I]nevitable discovery involves no speculative elements.”). For

example, in United States v. Garcia, 496 F.3d 495 (6th Cir. 2007), we applied the inevitable-

discovery doctrine to the unconstitutional seizure of the defendant’s pager, when the police were

already engaged in a lawful investigation of the defendant and his confederates for drug trafficking.

Id. at 506. Shortly after the police seized the defendant’s pager, the investigation independently

unearthed two bundles of cash belonging to the defendant, giving the officers probable cause to

arrest him. The discovery of the pager was inevitable not because the officers would have

ultimately had probable cause to arrest the defendant for another offense, but because the arrest

for the bundles of cash would have inevitably occurred in light of the officers’ existing,

independent, untainted investigation. See also Kennedy, 61 F.3d at 501 (inevitable-discovery

doctrine applied to unlawful search of defendant’s luggage when officers were already suspicious

that it contained drugs or explosives, and defendant’s other piece of opened luggage had contained

$176,000 in cash); United States v. Hodge, 714 F.3d 380, 388 (6th Cir. 2013) (exhaustive search

of house for drugs would have inevitably led law enforcement to discover a pipe bomb); United

States v. Mohammed, 512 F. App’x 583, 589 (6th Cir. 2013) (“routine” check of the defendant’s

firearm would inevitably have revealed that it was stolen).

       The same cannot be said in this case, despite the fact that the officers almost certainly had

probable cause to arrest Wilson for violations of alcohol-related offenses and would have

eventually had probable cause to detain him for violating a condition of supervised release. Several

factors caution against concluding that the inevitable-discovery doctrine applies here. First, unlike

in the cases cited above, in which law-enforcement officers were carrying out an ongoing criminal

investigation regarding a suspect, here the officers encountered Wilson for the purpose of

performing a “welfare check” and found him sleeping or passed out in a car. Indeed, Spratt



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Case No. 19-1367, United States v. Wilson


confirmed that he did not respond to the 911 call to investigate a crime. R. 27 (Suppression Hr’g

Tr. at 26) (Page ID #90).

         Second, there is uncertainty as to whether an arrest would routinely occur in this context.

Spratt did not testify or otherwise demonstrate that it was routine—let alone inevitable—for the

police to make arrests of intoxicated individuals sleeping or passed out in vehicles, when no

investigation into an alcohol-related offense was ongoing. Indeed, when Spratt’s fellow officer

Bricker was asked at the suppression hearing, “Were you investigating an open intox at any point?”

he said no. Id. at 51. Third, contrary to Spratt’s testimony that he would have executed an arrest,

much of the contemporaneous evidence indicates the opposite. Spratt had called for an ambulance,

id. at 15, and asked Wilson to step out of the vehicle out of concern for officer safety, not to

investigate an offense, id. at 16. Most significantly, Officers Spratt and Bricker repeatedly told

Wilson that he was “not in trouble” or “under arrest or anything like that.” Spratt Video at 2:47,

3:55. It is far from clear that an arrest was “inevitable” when the officers themselves assured

Wilson that he was neither in trouble nor under arrest.3

         Whereas “inevitable discovery involves no speculative elements,” Nix, 467 U.S. at 444–45

n.5, the majority engages in considerable speculation to determine that—if the unlawful search


3
 Expanding the inevitability inquiry beyond the question of whether the officers had probable cause to arrest for
another offense does not conflict with Whren v. United States, 517 U.S. 806 (1996). In Whren, the Supreme Court
declined the petitioners’ invitation to inquire into law-enforcement officers’ subjective intentions in initiating a traffic
stop, holding that “whatever the subjective intent,” the existence of probable cause justifies a search and seizure. Id.
at 814. The inevitable-discovery doctrine, by contrast, does not deal with whether a given search or seizure was
justified—it asks whether, despite the unlawfulness of a particular search or seizure, the evidence in question would
have been lawfully discovered anyways. As we have explained, “inevitable discovery is a doctrine relating to the
exclusionary rule; it does not speak to the legality of the search itself.” Evans v. Vinson, 427 F. App’x 437, 444 (6th
Cir. 2011). This is not a case in which, for example, the patdown itself was supported by probable cause despite some
evidence of illicit motive by the arresting officers. Moreover, in Whren, the petitioners asked the Supreme Court to
consider “whether the officer’s conduct deviated materially from usual police practices, so that a reasonable officer in
the same circumstances would not have made the stop for the reasons given,” Whren, 517 U.S. at 814 (emphasis
added), and the Court explained that “this approach is plainly and indisputably driven by subjective considerations,”
id. The proper approach to the inevitable-discovery doctrine is different. It does not ask whether an arrest would have
occurred “for the reasons given,” or whether a subsequent arrest would have been executed only with an illicit motive,
but simply whether such arrest was objectively likely to occur.

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Case No. 19-1367, United States v. Wilson


had not occurred—the officers would have inevitably used their discretion to arrest Wilson. See

Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019) (recognizing the existence of “circumstances

where officers have probable cause to make arrests, but typically exercise their discretion not to

do so”). Would the officers have allowed an ambulance to escort Wilson away from the scene,

rather than placing him under arrest? Was it routine for police officers encountering intoxicated

individuals sleeping in cars to arrest them for alcohol-related offenses, rather than ticketing them?

Do police officers routinely detain individuals on supervised release for possession of alcohol?

Would the officers have proceeded to execute an arrest when they assured Wilson that he was “not

under arrest or anything like that”? Bricker Video at 4:21. The majority offers no answers to these

questions, only reliance on Officer Spratt’s testimony that he would have arrested Wilson. In my

view, the Fourth Amendment demands an inquiry much more robust than this.

       For the foregoing reasons, I dissent.




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