                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 09-5012


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

OMAR ARELLANO,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:09-cr-00241-LMB-1)


Argued:   December 10, 2010                 Decided:   February 8, 2011


Before MOTZ, GREGORY, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Geremy C. Kamens, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Jason Hudson Poole, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.    ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Caroline S. Platt, Research and Writing Attorney,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant.   Neil H. MacBride, United States Attorney, Lore A.
Unt, Special Assistant United States Attorney, Robert E.
Friedman, Special Assistant United States Attorney, Gene Rossi,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                               2
PER CURIAM:

     A jury convicted Omar Arellano of possession and use of a

fraudulent resident alien card and possession of a stolen or

unauthorized social security card.         The district court sentenced

him to twelve months imprisonment.         Arellano appeals, challenging

three pretrial rulings of the district court.          We affirm.



                                      I.

     First, Arellano maintains that the district court erred in

denying his motion to suppress evidence the police found when

searching his car.

                                      A.

     On April 7, 2009, at approximately 2:50 pm, Deputy Sheriff

Steven Shiner stopped a blue Toyota Corolla driven by Arellano

because   of    a   broken    brake    light.      When   Deputy     Shiner,

communicating in Spanish, asked Arellano for identification, he

provided a Mexican driver’s license.            The deputy asked Arellano

for his home address; Arellano replied that he lived at Kira

Court, a local housing complex, but refused to give the exact

address or the names of the people with whom he lived.             After the

officer   ran   the   car’s    tag    number    through   the   system,   he

discovered that the tags had been issued to a grey Corolla with a

different VIN number.



                                      3
       The deputy then asked Arellano to step out of the vehicle,

and Arellano consented to a search of his person.                          Deputy Shiner

found $480 in U.S. currency, a wallet, about 30 business cards

for a Latino photography business, and a cell phone.                             When the

officer asked for the car’s registration, Arellano said he did

not have it because the vehicle belonged to a friend, but refused

to    provide     the    name     of     that      friend.      At    Deputy     Shiner’s

direction, Arellano sat in the back seat of the police car for

five to ten minutes, during which time the deputy determined that

his foreign driver’s license was invalid.                    Arellano had still not

provided an address which would allow for the officer to release

him   on    a   summons,    and       Deputy    Shiner   later      testified    that   he

decided at that point to take Arellano into custody and tow the

vehicle, which was improperly registered and was blocking the

egress of a business.

       Before the vehicle was towed, the deputy proceeded to search

it    and   found,      hidden    under        the   floor   mats,     coin     envelopes

containing social security cards, permanent resident cards, an

employment        authorization           card,        and      a     Virginia       state

identification card, which he suspected was fraudulent.                           He also

found a digital camera in the glove compartment and another in

the   console     between       the    two     front   seats.        The   officer    took

Arellano into custody, read him a Miranda warning, and advised



                                               4
him that he was under arrest for lacking proper registration and

a valid operator’s license.

                                        B.

      Arellano contends that the officer illegally searched his

car and so the district court should have suppressed the fruit of

that search.        The court denied Arellano’s motion to suppress,

finding that Deputy Shiner arrested Arellano when he was seated

in the back of the police car and so the search accompanied a

valid arrest.       We need not reach the question of whether Arellano

was actually     under    arrest     when    the   deputy   seated    him   in    the

police car because the police would, in any event, have soon

thereafter    arrested    Arellano     and    so   inevitably discovered          the

evidence in Arellano’s car.

      Under   the    doctrine   of    inevitable     discovery,      “information

obtained by unlawful means is nonetheless admissible ‘[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.’”           United States v. Allen, 159 F.3d

832, 838 (4th Cir. 1998) (citing Nix v. Williams, 467 U.S. 431,

444   (1984)).      The   inevitable    discovery      doctrine      applies     only

where “routine or factually established investigative steps . . .

would inevitably lead to discovery of the evidence;” speculation

and conjecture may play no role in the analysis.               Allen, 159 F.3d



                                        5
at 841; see also United States v. Thomas, 955 F.2d 207, 209, 210

(4th Cir. 2010).

      Here,    the    deputy,    whose     credibility        was   not    questioned,

testified     that    Arellano       offered     only    an     invalid      operator’s

license and improper vehicle registration.                    Given these facts and

Arellano’s refusal to provide a verifiable address to allow for

his release on summons, the officer would soon have arrested

Arellano, even if he had not done so when he ordered Arellano

into the patrol car.          Once Arellano was under arrest, impounding

the vehicle would have been a matter of course. The Fauquier

County     Sheriff’s        Office     General        Order     5.27      specifically

authorizes impoundment under those circumstances.                         Importantly,

the Order also provides that law enforcement officials conduct a

standard    inventory       search    at   the   time    of    towing.       These    are

precisely     the    “routine    or    factually      established        investigative

steps”     that     Allen    contemplates        in     its    discussion      of     the

inevitable discovery doctrine.                 159 F.3d at 841.            See, e.g.,

United States v. Lynn, 592 F.3d 572 (4th Cir. 2010) (finding that

the   inevitable     discovery       doctrine    would    provide      the    basis   to

arrest the defendant then conduct an inventory search of his

vehicle).




                                           6
                                        II.

      Second, Arellano argues that the district court erred in

denying his motion to suppress evidence obtained from the search

of his cell phone.

      At the police station, Deputy Shiner turned on Arellano’s

cell phone, which, at that point, was powered off.                       The deputy

proceeded to answer and return several calls to Arellano’s phone.

Speaking in Spanish to Deputy Shiner, the callers inquired about

their    identification      cards    and       social   security   numbers.       The

deputy later took Arellano to the jail for booking.

      More than two months later, on June 17, 2009, the Government

obtained a search warrant for the cell phone.                       The Government

submitted an affidavit in support of the warrant from a senior

special    agent    with    Immigration         and   Customs    Enforcement       that

included one sentence describing the information Deputy Shiner

acquired by turning on and using the cell phone.                        A magistrate

judge    granted   a   search    warrant        for   the   contents    of   the   cell

phone.     During the execution of the warrant, law enforcement

officials extracted contacts, call logs, and text messages from

the   phone.       Some    of   the   text       messages    included    information

matching identification documents from the seized vehicle.                          One

text message contained a birthday greeting sent on Arellano’s

date of birth.



                                            7
       Arellano moved to suppress the evidence gathered from the

cell phone.          The district court found that while the deputy’s

initial seizure of the phone was permissible, turning on and

using the phone at the station constituted a warrantless search

that exceeded the scope of a search incident to arrest.                                  The

court recognized that one sentence in the affidavit relied on

evidence    flowing        from    this    unlawful       act,    but    found    that   the

sentence did not taint the search warrant because, independent of

that    sentence,      the     affidavit         stated     probable     cause    for    the

warrant.

       We agree.      Our review is deferential in nature; “the duty of

a reviewing court is simply to ensure that the magistrate had a

substantial basis for . . . conclud[ing] that probable cause

existed.”      Illinois v. Gates, 462 U.S. 213, 238 (1983) (internal

quotation omitted).               Thus, we simply “determine whether, when

[the improper] evidence is excluded from the application for the

warrant, probable cause to support the warrant still existed.”

United    States      v.     Moses,   540       F.3d   263,      271    (4th    Cir.   2008)

(internal quotation omitted).

       The sentence in question states:                   “Within several hours, the

deputy answered several incoming calls to the cellular telephone,

including      one    call    from    an       individual     wanting      to   return   his

cards, one call from an individual wanting his identification

card,    and    one    call    from       an    individual       wanting    to   speak    to

                                                8
‘Omar.’”      Without that sentence, the affidavit sets forth the

basic   facts    surrounding     the     stop   and    search    --    namely   that

Arellano refused to provide his address or offer an explanation

of whose vehicle he was operating and that the deputy found in

the car 14 suspicious identification documents in other people’s

names, 30 business cards for a company called “Foto Latino,” and

two digital cameras, and found in Arellano’s pockets the cell

phone sought to be searched.             The affidavit also explains that

cell    phones    commonly     contain       text   messages,     phone   numbers,

contacts, personal calendars, dates, and other electronic records

that    would    provide     evidence    of     Arellano’s      alleged   unlawful

activity.

       Given the presence of business cards related to producing

photographs      for   false   identification         cards   and     containing   a

printed phone number, in close proximity to the cell phone which

appeared to be Appellant’s, and 14 suspected false identification

cards, law enforcement agents reasonably looked to the cell phone

for evidence of Arellano’s unlawful activity.                   See United States

v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988) (noting that “the

nexus between the place to be searched and the items to be seized

may be established by the nature of the item and the normal

inferences of where one would likely keep such evidence.”).




                                         9
                                            III.

      Finally, Arellano contends that the district court erred in

denying      his       motion      in      limine       to     exclude        a        witness’s

identification testimony.

                                                A.

      Arellano         challenges         the        in-court         identification          of

Victoriano Ticas, whom Arellano had purportedly approached at a

Wal-Mart four to five months before the trial and for whom he

agreed to make a false identification card.                            On the evening of

July 22, 2009, law enforcement officials went to Ticas’s home and

showed him       a    single      photo    of    Arellano,      along       with   the     false

identification cards they had found in Arellano’s car (including

one   with   a       photo   of    Ticas).           When     asked    if    he    recognized

Arellano’s photo, Ticas stated that he did not.                              Ticas was not

wearing    his       glasses,     and     the    agent      conducting       the       interview

suspected that Ticas was under the influence of alcohol.                                     Two

days later, the agents returned and showed the same photo to

Ticas, who then stated that he recognized Arellano and had seen

him   on   one     occasion       about    five      months    earlier       in    a    Wal-Mart

parking lot.

      At the third interview, a few days later, the agents showed

Ticas the same photo in a spread of photos that included photos

of five other Hispanic males.                   That meeting was conducted in the

back of a government-operated vehicle, with three law enforcement

                                                10
agents present.        At that point, the agents offered Ticas immunity

from     prosecution         for     seeking        fraudulent       documentation     and

assistance obtaining legal status.                       Again, Ticas stated that he

recognized Arellano.

       On    July    30,    2009,    Arellano       filed    a    motion   in limine   to

exclude      Ticas’s        identification          as    unduly     suggestive.       The

district court ordered that the motion would be addressed in

court.       When the Government called Ticas at trial, Arellano did

not object.          Ticas first testified that he did not recognize

anyone in the courtroom and then, after putting on his glasses,

identified Arellano.              After trial, the court denied the motion in

limine as moot.

                                              B.

       In     determining           whether        identification          testimony    is

admissible, we employ a two-step analysis.                        “First, the defendant

must     establish         that    the    photographic           lineup    procedure   was

impermissibly suggestive. . . .                     Second, even if the procedure

was suggestive, the in-court identification is valid if it was

reliable.”          United States v. Wilkerson, 84 F.3d 692, 695 (4th

Cir. 1996) (internal citations omitted).

       Assuming that the identification procedure at issue here was

impermissibly        suggestive,         we   cannot       hold    that    its   admission

constitutes reversible error.                 This is so because the second step

of     the   inquiry       allows     for     the    admission       of    identification

                                              11
evidence      despite       its        improper        suggestiveness            “if     the

identification       was     sufficiently         reliable           to     preclude     the

substantial likelihood of misidentification.”                            United States v.

Johnson, 114 F.3d 435 (4th Cir. 1997).

     In     assessing      the    reliability          of    an     identification,      we

consider:     “(1) the witness’ opportunity to view the perpetrator

at the time of the crime; (2) the witness’ degree of attention at

the time of the offense; (3) the accuracy of the witness’ prior

description     of   the     perpetrator;         (4)       the     witness’     level   of

certainty when identifying the defendant as the perpetrator at

the time of the confrontation; and (5) the length of time between

the crime and the confrontation. . . .                      These factors are weighed

against the ‘corrupting effect of the suggestive identification

itself.’”       Wilkerson,        84    F.3d      at    695        (internal     citations

omitted).

     Here, the first two factors counsel strongly in favor of the

reliability of the identification.                Ticas had approximately three

minutes to view Arellano.           Moreover, the meeting took place face-

to-face, one-on-one, and in the daytime.                          Compare United States

v. Saunders, 501 F.3d 384, 392 (4th Cir. 2007) (the facts that

the witness had a “clear view of the side of [defendant’s] face”

and made eye contact for “about three to four seconds, maybe a

little    longer”    weighed      in     favor    of        the    reliability     of    the

identification)      and     Wilkerson,          84     F.3d        at     695   (in-court

                                           12
identification         would     be      reliable     because       witnesses     saw

defendant’s face “in broad daylight while their full attention

was focused on him”).           With respect to the degree of attention at

the time of the encounter, Ticas met directly with Arellano,

spoke with him, exchanged phone numbers with him, and had his

photo taken by him.             By contrast, “[i]n-court identifications

have also been upheld even when a witness had only a brief but

‘real good look’ at his assailant in the headlights of a passing

car.”     United States v. Burgos, 55 F.3d 933, 942 (4th Cir. 1995),

citing Neil v. Biggers, 409 U.S. 188, 197 (1972).

     Given      that    the     record    contains     no     evidence   that     law

enforcement     agents    asked       Ticas   to   describe   Arellano    prior    to

showing him the photo, the third factor plays no role here.                       The

fourth factor (the witness’ level of certainty), like the first

two, weighs in favor of reliability.                  Although Ticas failed to

identify Arellano when he first saw the photo, he reasonably

attributed that failure to the fact that it was nighttime and he

was not wearing his glasses at the time.                      Furthermore, Ticas

successfully identified the camera that Arellano used to take his

picture, and he stated in court that he was “sure” Arellano was

the person at Wal-Mart who took his photo and agreed to make the

false documents.

        Only   the   fifth     factor    weighs    against    the   reliability    of

Ticas’s identification.            The Government concedes that the fact

                                           13
that “four or five months” passed between Ticas’s initial meeting

with Arellano and his in-court identification “arguably favors

the identification being unreliable.”           Appellee’s Br. at 57.        The

Supreme Court, however, has found that a time delay of seven

months between an encounter and an in-court identification did

not undermine the reliability of the identification.                  Neil, 409

U.S. at 201.

     Ultimately, this case falls squarely in line with the great

majority   of   identification          cases    in     which      courts   find

circumstances   determined         to      be     suggestive        nonetheless

“sufficiently reliable to preclude the substantial likelihood of

misidentification”   under   the    second      prong   of   the    test.    See

Johnson, 114 F.3d at 442 (citing United States v. Washington, 12

F.3d 1128 (D.C. Cir. 1994); United States v. Sanchez, 988 F.2d

1384 (5th Cir. 1993); Ruff v. Wyrick, 709 F.2d 1219 (8th Cir.

1983)).



                                    IV.

     For all of these reasons, the judgment of the district court

is

                                                                      AFFIRMED.




                                    14
