                                                                           FILED
                             NOT FOR PUBLICATION                            NOV 19 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 10-30031

                Plaintiff - Appellee,             D.C. No. 1:09-cr-00066-RFC-1

  v.
                                                  MEMORANDUM *
LIONEL COTY BRINKERHOFF,

                Defendant - Appellant.



                     Appeal from the United States District Court
                              for the District of Montana
                   Richard F. Cebull, Chief District Judge, Presiding

                            Submitted November 1, 2010 **

                                    Portland, Oregon

Before:         W. FLETCHER and FISHER, Circuit Judges, and BURY,
                District Judge.***




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
          ***
             The Honorable David C. Bury, United States District Judge for the
District of Arizona, sitting by designation.
      Petitioner Lionel Coty Brinkerhoff appeals from a conditional plea after the

denial of his motion to suppress. We AFFIRM the district court.

      The collective knowledge doctrine is applicable to this case. See United

States v. Ramirez, 473 F.3d 1026, 1031-3 (9th Cir. 2007). Wyoming officers had

reported to Montana Officer Olson that a man had loaded a semi-automatic pistol

in a parking lot outside a convenience store and had uttered profanities in a

threatening manner to a customer in the parking lot. Wyoming officers, relying on

information from a 911 call to dispatch, also told Montana officer Olson that the

suspect was driving a green car, as was Brinkerhoff. When Officer Olson called in

Brinkerhoff’s plate to Wyoming police, he was informed he was trailing the right

car. Officer Olson also had a physical description of the suspect that matched

Brinkerhoff. Wyoming officers suspected that the man in possession of the firearm

was Brinkerhoff, whom they knew to be a felon. The collective knowledge of the

officers provided reasonable suspicion to stop Brinkerhoff. See id. Given the

officers’ collective knowledge, they did not violate Brinkerhoff’s Fourth

Amendment rights.

      The seizure of the firearm was warranted based on either of two exceptions

to the warrant requirement: plain view and inevitable discovery. Officers may

seize an item in plain view if they have probable cause to believe that the item is


                                          2
incriminating. United States v. Stafford, 416 F.3d 1068, 1076 (9th Cir. 2005),

(citing Arizona v. Hicks, 480 U.S. 321, 326-7 (1987)). Whether an item is

incriminating is not determined by the item in isolation but by considering the

surrounding circumstances. See, e.g. Texas v. Brown, 460 U.S. 730, 741-3 (1983);

United States v. Guy, 903 F.2d 1240, 1243 (9th Cir. 1990).

      Brinkerhoff argues that the plain view doctrine is inapplicable because the

incriminating nature of the firearm – the obliterated serial number – was not

immediately apparent. This argument, however, ignores the information the

officers had at the time they saw the gun. They knew there had been a man who

was playing with or brandishing a gun in the parking lot of a Wyoming

convenience store near where Brinkerhoff was arrested, and Wyoming officers

suspected that Brinkerhoff, a felon, was that man. Consequently, the gun was

incriminating not because of the obliterated serial number, but because it was the

suspected property of a known felon.

      Alternatively, illegally seized evidence need not be suppressed if the

government can show by a preponderance of the evidence that it would inevitably

have been discovered. United States v. Ramirez-Sandoval, 872 F.2d 1392, 1396

(9th Cir. 1989), (citing Nix v. Williams, 467 U.S. 431, 444 (1984)). The




                                          3
government can show inevitable discovery by explaining how the evidence would

have been discovered through routine procedures. Id. at 1399.

      In this case, the police would inevitably have discovered the gun because

they obtained a warrant to search the vehicle for narcotics. Though the gun was

not mentioned in the warrant application, the trial court correctly concluded that

“during the execution of the warrant, the weapon would certainly have been

seized.” Brinkerhoff does not contest the validity of the warrant. Alternatively,

the gun would inevitably have been discovered because it was standard police

practice to remove firearms from towed cars. See South Dakota v. Opperman, 428

U.S. 364, 375-6 (1976).

      Brinkerhoff also challenges the validity of the investigatory stop. Though he

may have waived this challenge, if he did not waive it, we would conclude that the

Montana officers had reasonable suspicion to stop him. See Illinois v. Wardlow,

528 U.S. 119, 124-5 (2000); Terry v. Ohio, 392 U.S. 1, 29-30 (1968). As noted,

Officer Olson had the collective knowledge that Brinkerhoff was reasonably

suspected of being a felon in possession of a gun. Officer Olson also observed

Brinkerhoff speeding well over the legal limit, which was an independently

sufficient basis for an investigatory stop.

      For the foregoing reasons, we AFFIRM.


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