                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                             FOR THE TENTH CIRCUIT                          January 20, 2015
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 13-2197
                                                     (D.C. No. 1:11-CR-02292-JB-1)
OLADIPO ALABI,                                                  (D. N.M)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, SEYMOUR, and MORITZ, Circuit Judges.
                    _________________________________

       After the United States District Court for the District of New Mexico denied his

motions to suppress, Oladipo Alabi entered conditional pleas of guilty to one count each

of access device fraud under 18 U.S.C. § 1029(a)(3) and aggravated identity theft under

18 U.S.C. § 1028A(a)(1), retaining his right to appeal the district court’s denial of his

motions to suppress. The district court imposed a twenty-eight-month prison sentence,

and Alabi appealed. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




_______________________
*
       This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                      FACTUAL AND PROCEDURAL BACKGROUND

       On April 6, 2011, New Mexico State Police Officer Chester Bobbitt was standing

outside his patrol vehicle, which was parked alongside I-40 in eastern New Mexico, when

he heard a noise and noticed a vehicle speeding by him. According to the vehicle’s

passenger, Oladipo Alabi, Bobbitt made eye contact with Alabi, who is black, before

running and jumping into his car to pursue the vehicle Alabi was riding in. Bobbitt then

initiated a traffic stop based on the vehicle’s expired tags. Although Bobbitt suggested at

a later hearing that he initially pursued the vehicle because it was speeding, he did not

note the alleged speeding violation in his report, and he gave the vehicle’s driver,

Kehinde Oguntoyinbo, a warning only for the expired tags. Oguntoyinbo also is black.

       After giving Oguntoyinbo the warning and telling him he was free to leave,

Bobbitt secured Oguntoyinbo’s permission to search the vehicle. The ensuing search

yielded a list containing the names, addresses, telephone numbers, birthdates, and social

security numbers of hundreds of people; multiple laptop computers and cellular

telephones; and more than $1,500 in Wal-Mart gift cards. Bobbitt arrested both men on

suspicion of identity theft, searched their wallets, and discovered thirty-one credit and

debit cards. While the majority of the cards appeared to belong to Alabi or Oguntoyinbo,

five of the cards bore the names of other individuals.

       The next morning, Secret Service agents used a Model 5607 Card Verifier to

obtain information from the magnetic strips on the backs of the seized credit and debit

cards. The agents discovered that the magnetic strips on seven of the thirty-one cards had

been re-encoded, i.e., the names and account numbers embossed on the cards did not

                                             2
match the names and account numbers stored on their magnetic strips. The agents

concluded someone had re-encoded the cards with the intent to defraud the issuing

financial institutions and the individuals whose account information now appeared on the

magnetic strips.

       Based on the information gleaned from the cards and the physical evidence

Bobbitt discovered during his search of the vehicle, the government obtained a search

warrant to examine the cell phones and laptops seized during that search.

       A grand jury indicted both men. Alabi moved to suppress all the fruits of the

encounter, alleging Bobbitt’s racially motivated pursuit of the vehicle violated his equal

protection rights under the Fifth and Fourteenth Amendments to the United States

Constitution. Alabi also joined in Oguntoyinbo’s Motion to Suppress, wherein

Oguntoyinbo argued (1) the agents’ use of the card reader to obtain information from the

credit and debit cards’ magnetic strips constituted an illegal search in violation of the

Fourth Amendment; and (2) the inclusion of that information in the application for search

warrant rendered the warrant invalid.

       At the hearing on his motion to suppress on selective-enforcement grounds, Alabi

testified Bobbitt made eye contact with him before pursuing the vehicle, and, upon

learning Alabi was Nigerian, immediately asked him how many wives he had. Bobbitt

maintained he was unaware of Alabi’s or Oguntoyinbo’s race at the time he decided to

pursue their vehicle and testified he did not recall making eye contact with Alabi before

the stop. Although Bobbitt admitted to questioning Alabi about how many wives he had,

Bobbitt maintained the question was “conversation[al]” and made only after Alabi

                                              3
volunteered information about his second wife.

       Alabi also presented evidence drawn from the daily reports of multiple New

Mexico State Police officers, including Bobbitt, regarding twenty-three roadside vehicle

searches. The searches occurred between January 1, 2011, and June 30, 2011, primarily

in the same county where Bobbitt stopped Alabi and Oguntoyinbo. Alabi’s investigator

testified that based on his visual examination of photographs of the subject drivers, only

two of the individuals appeared to be white. Alabi presented no information about the

broader population from which the sample of twenty-three drivers was drawn, such as the

general demographic characteristics of all individuals driving in that area during the six-

month period or the demographic characteristics of the individuals whose vehicles police

had stopped, but had not searched.

       Alabi also presented the testimony of Alfredo Ramirez, one of the twenty-three

drivers whose vehicles had been searched. According to Ramirez, Bobbitt stopped him

for violating New Mexico’s window-tint statute, gave him a warning for that infraction,

searched Ramirez’s vehicle without permission, and found nothing. Later, however,

Ramirez learned Bobbitt falsely reported finding marijuana during the search.

       Finding Alabi’s showing of discriminatory purpose insufficient, the district court

denied Alabi’s motion to suppress on equal protection grounds. The district court based

this finding, in part, on its rejection of Alabi’s claim he made eye contact with Bobbitt

before the stop. Although the district court did not make a specific finding regarding

discriminatory effect, it questioned the value of Alabi’s statistical evidence given Alabi’s

failure to present any information about the demographics of the general population from

                                             4
which he drew his twenty-three-driver sample or demonstrate drivers of different races

speed with the same frequency.

       The district court also denied Alabi and Oguntoyinbo’s motion to suppress on

Fourth Amendment grounds, finding (1) the agents’ examination of the magnetic strips

on the credit and debit cards did not constitute a search for Fourth Amendment purposes;

(2) even if it was a search, it was reasonable under the circumstances; and (3)

alternatively, the evidence gleaned from the cards was admissible under the inevitable

discovery doctrine. Finally, the district court concluded the inclusion of the information

obtained from the cards in the government’s application for the search warrant did not

invalidate the warrant, and even if it did, the good-faith exception applied to save the

warrant.

       After the district court denied his motions, Alabi entered conditional pleas of

guilty to one count each of access device fraud under 18 U.S.C. § 1029(a)(3) and

aggravated identity theft under 18 U.S.C. § 1028A(a)(1), retaining his right to appeal the

district court’s denial of both motions to suppress. The district court accepted his pleas

and imposed a controlling twenty-eight-month prison sentence.

                                        DISCUSSION

       In this direct appeal, Alabi challenges the district court’s denial of both motions to

suppress. First, Alabi contends Bobbitt’s racially motivated pursuit of the vehicle violated

his rights under the Equal Protection Clause, requiring suppression of the fruits of the

stop. Second, he argues the agents’ warrantless examination of the cards’ magnetic strips

constituted an illegal search and revealed evidence law enforcement would not have

                                              5
inevitably discovered through lawful means. Finally, he asserts the inclusion of the

information from the magnetic strips in the search warrant application rendered the

warrant invalid, and the good-faith exception does not apply.

       I.     The district court did not err in denying Alabi’s motion to suppress on
              Equal Protection grounds.

       To succeed on his claim of selective law enforcement, Alabi must demonstrate

both that Bobbitt was motivated by a discriminatory purpose and that his actions had a

discriminatory effect. See Marshall v. Columbia Lea Reg’l Hosp., 345 F.3d 1157, 1168

(10th Cir. 2003). In the context of Alabi’s claim, the former necessarily requires him to

show Bobbitt was at least aware of Alabi’s or Oguntoyinbo’s race at the time he decided

to pursue them. See United States v. Alcaraz-Arellano, 441 F.3d 1252, 1265 (10th Cir.

2006) (concluding officer’s lack of knowledge regarding defendant’s ethnicity at time of

stop foreclosed finding of discriminatory purpose). The latter requires Alabi to

demonstrate a similarly situated individual of a different race could have been, but was

not, pursued under similar circumstances. See id. at 1264 (discussing similarities between

selective-prosecution and selective-enforcement claims).

       In reviewing the district court’s rulings, we are mindful of our duty to view the

evidence in the light most favorable to the court’s denial of the motion and to accept its

factual findings unless they are clearly erroneous. See United States v. Augustine, 742

F.3d 1258, 1264-65 (10th Cir.), cert. denied, 134 S. Ct. 2155 (2014). A finding of fact is

clearly erroneous if it lacks support on the record, or if review of all the evidence leaves

us with a firm and definite conviction a mistake has been made. See United States v.


                                              6
Cash, 733 F.3d 1264, 1273 (10th Cir. 2013), cert. denied, 134 S. Ct. 1569 (2014).

              A. Discriminatory Purpose

       Here, the district court denied Alabi’s motion based in part on its acceptance of

Bobbitt’s testimony maintaining he was unaware of Alabi’s and Oguntoyinbo’s race at

the time he decided to pursue their vehicle. In reviewing this finding, we recognize it is

not for us to judge Bobbitt’s credibility. See United States v. Donahue, 442 F.2d 1315,

1316 (10th Cir. 1971) (noting district court determines credibility at hearing on motion to

suppress).

       Nevertheless, we are troubled by the district court’s reliance on its own out-of-

court experiment, which purportedly established the inability of passing motorists to

make eye contact with law enforcement officers parked alongside I-40 in eastern New

Mexico. In its written order, the district court explained,

              The [c]ourt travels on I-40 in eastern New Mexico often, in
              part because he grew up in Hobbs, New Mexico, and travels
              to visit family in Dallas. The [c]ourt was on I-40 around
              Santa Rosa last week, and saw two [New Mexico State
              Police] cars in the median. The [c]ourt’s car was traveling at
              seventy-five miles per hour, and, of course, looked at the
              police cruisers. The [c]ourt could did not [sic] have time to
              make eye-contact with the police officers. The [c]ourt is
              skeptical of Alabi’s story that he locked eyes with Bobbitt.
              The [c]ourt thus credits Bobbitt’s testimony, and finds it more
              credible that Bobbitt did not know Alabi’s race when he gave
              chase to the Camry, and not until he approached [the]
              Camry’s driver-side window.

       Federal Rule of Evidence 201(b)(1) permits a district court to take judicial notice

of generally known facts not subject to reasonable dispute. But here, the district court’s

reliance on its own test of whether it was possible to make eye contact with officers

                                              7
parked alongside I-40 belies any claim the impossibility of doing so is generally known

or beyond dispute; if it were, the district court would have had no reason to conduct the

experiment.

       In any event, we have cautioned against such off-the-record fact-finding because it

may place the judge in the role of a witness. See Lillie v. United States, 953 F.2d 1188,

1189, 1191-1192 (10th Cir. 1992) (reversing judgment when judge’s visit to scene and

apparent attempt to recreate scenario resulting in plaintiff’s injury may have impacted

court’s findings); see also Fed. R. Evid. 605 (prohibiting a judge from testifying in a trial

over which he or she presides).

       Further, even if we assume the propriety of the district court’s undertaking, the

results of its experiment were of limited value. While the district judge apparently

attempted to make eye contact with officers seated inside their cruisers, Alabi offered

uncontroverted testimony Bobbitt was standing outside his vehicle when Alabi and

Oguntoyinbo passed him. An experiment performed under the former conditions says

very little, if anything, about what might transpire during a situation occurring under the

latter. See Navajo Freight Lines v. Mahaffy, 174 F.2d 305, 310 (10th Cir. 1949)

(recognizing even slight change in conditions may so distort results of experiment so as

to destroy its evidentiary value).

       Finally, we question the soundness of the district court’s implied conclusion that

the ability of a passenger to make eye contact with an officer is somehow a prerequisite

for the officer to determine the passenger’s race. Even if the district court’s experiment

justified its rejection of Alabi’s testimony asserting he made eye contact with Bobbitt, it

                                              8
does not follow from that rejection that Bobbitt necessarily was unaware of Alabi’s and

Oguntoyinbo’s race at the time he decided to pursue their vehicle. See, e.g., Hopkins v.

Vaughn, 363 F. App’x 931, 932 n.1 (3d Cir. 2010) (unpublished) (describing witnesses’

ability to discern suspect’s race, despite his use of ski mask and gloves, based on

“patches” of visible skin).

       Ultimately, however, we need not resolve whether the district court’s questionable

basis for rejecting Alabi’s testimony and crediting Bobbitt’s compromised its ruling

regarding discriminatory purpose. As next discussed, Alabi’s failure to make a showing

of discriminatory effect, standing alone, is sufficient to defeat his claim.

              B. Discriminatory Effect

       We have recognized three possible methods of proving discriminatory effect in a

selective-enforcement case: statistical evidence; the identification of a similarly situated

individual who could have been, but was not, stopped or arrested; and, in certain

circumstances, anecdotal evidence establishing an officer’s pattern of similar

discriminatory behavior. See Marshall, 345 F.3d at 1170-71 (suggesting evidence of

officer’s prior record of racially selective stops and arrests could demonstrate

discriminatory effect); United States v. James, 257 F.3d 1173, 1179 (10th Cir. 2001)

(discussing use of statistics and identification of similarly situated individual as means of

demonstrating discriminatory effect).

       Here, Alabi attempted a hybrid approach, collecting information from the daily

reports of multiple New Mexico State Police officers, including Bobbitt. From these

reports, Alabi compiled a list of twenty-three roadside vehicle searches occurring during

                                              9
a six-month period, twenty-one of which appeared to involve non-white drivers. One of

those drivers testified at the suppression hearing, claiming Bobbitt stopped him for a

window-tint violation, searched his vehicle, found nothing, and ticketed him for the

violation. Later, the driver learned Bobbitt reported finding marijuana in his vehicle, an

allegation the driver denied.

       But Alabi’s statistical evidence is of little use because he failed to present any

information regarding the broader population from which he drew the limited sample of

twenty-three drivers, such as the demographic characteristics of all individuals driving in

the area during the relevant time frame. He also failed to demonstrate drivers of different

races speed with the same frequency. See Marshall, 345 F.3d at 1168 (explaining

statistical evidence in selective-enforcement case must include (1) reliable demographic

information, (2) some manner of determining whether the data represents similarly

situated individuals, and (3) information about the actual rate of occurrence of the

suspected crime across relevant racial groups); see also United States v. Armstrong, 517

U.S. 456, 469 (1996) (rejecting presumption, in context of selective-prosecution claim,

that people of all races commit all crimes with equal frequency).

       Alabi’s anecdotal evidence regarding a single stop is similarly insufficient to show

discriminatory effect. Alabi failed to identify an individual of another race who could

have been, but was not, stopped, and his anecdotal evidence of a single stop did not rise

to the level of the evidence in Marshall. See 345 F.3d at 1162-63, 1170-71. There, this

court suggested evidence of an officer’s extensive history of stopping predominantly non-

white drivers for minor traffic infractions and falsely accusing them of possession of

                                             10
narcotics may have been sufficient to establish discriminatory effect.

       Given Alabi’s failure to make a sufficient showing of discriminatory effect, we

affirm the district court’s rejection of his equal-protection-based claim without deciding

whether he made a sufficient showing of discriminatory purpose. See Alcaraz-Arellano,

441 F.3d at 1266 (declining to analyze issue of discriminatory effect when defendant

failed to show discriminatory purpose); Mallinson-Montague v. Pocrnick, 224 F.3d 1224,

1233 (10th Cir. 2000) (explaining court may affirm on any ground supported by record).

And because Alabi has failed to demonstrate an equal protection violation, we also need

not consider the parties’ dispute as to whether suppression is the appropriate remedy for

an equal protection violation. See United States v. Coleman, 483 F. App’x 419, 421 (10th

Cir. 2012) (unpublished) (finding it unnecessary to address whether suppression would

have been appropriate remedy for equal protection violation when defendant failed to

show such violation occurred). Accordingly, we affirm the district court’s denial of

Alabi’s motion to suppress on equal protection grounds.

       II.    The district court did not err in denying Alabi’s motion to suppress on
              Fourth Amendment grounds.

       Alabi presents two related Fourth Amendment challenges. First, he argues the

district court erred in denying his motion to suppress the information contained on the

cards’ magnetic strips because the agents’ examination of those strips constituted an

illegal search, and the evidence was not admissible under the inevitable discovery

doctrine. Second, citing the government’s reliance on that illegally obtained information

in securing a search warrant, he argues the district court erred in refusing to suppress the


                                             11
evidence obtained from the computers and cellphones. Because resolution of the latter

issue is helpful in analyzing the former, we address Alabi’s claims in reverse order.

                A. Validity of the Warrant

          Even if we assume the agents’ act of scanning the cards violated Alabi’s Fourth

Amendment rights, the government’s partial reliance on that information in obtaining a

warrant for the devices found in the vehicle is not necessarily fatal. See United States v.

Snow, 919 F.2d 1458, 1460 (10th Cir. 1990) (acknowledging warrant is valid as long as

supporting affidavit contains sufficient untainted evidence to establish probable cause,

even if affidavit also contains unconstitutionally obtained information).

          Standing alone, Alabi and Oguntoyinbo’s possession of multiple credit cards

embossed with names other than their own and a list containing the names and social

security numbers of hundreds of individuals would have caused a reasonably prudent

person to believe evidence of a crime, such as the source of this personal information,

would be found on the computers and cell phones. See United States v. Romero, 749 F.3d

900, 904 (10th Cir. 2014) (explaining probable cause exists when facts would warrant

person of reasonable caution to believe evidence of crime will be found at place to be

searched); see also 18 U.S.C. §§ 1028(a)(7), (d)(7)(A) (possession of name, social

security number, or date of birth in connection with unlawful activity constitutes identity

theft).

          Faced with this evidence, the district court properly determined the government’s

application contained sufficient indicia of probable cause to issue a warrant, even without

the information derived from the cards’ magnetic strips.

                                              12
              B. Examination of the Cards

       Finally, Alabi argues his Fourth Amendment rights were violated when the agents

extracted the contents of the credit cards’ magnetic strips without a warrant. Alabi

contends the district court should have granted his motion to suppress because the

information the agents obtained would not have been discovered absent the unlawful

search.

       Again assuming the officers’ actions constituted an illegal search, any evidence

obtained from the strips nevertheless was admissible under the inevitable discovery

doctrine as long as the government demonstrates, by a preponderance of the evidence,

that a lawful police investigation would have inevitably discovered the information.

United States v. Cunningham, 413 F.3d 1199, 1203 (10th Cir. 2005).

       Here, application of the inevitable discovery exception depends on the likelihood

law enforcement ultimately would have discovered the evidence on the magnetic strips

pursuant to a valid search warrant. See United States v. Christy, 739 F.3d 534, 541 (10th

Cir.), cert denied, 135 S. Ct. 104 (2014). In United States v. Souza, 223 F.3d 1197 (10th

Cir. 2000), this court adopted a four-factor test to aid in this determination:

              1) “the extent to which the warrant process has been
              completed at the time those seeking the warrant learn of the
              search”; 2) the strength of the showing of probable cause at
              the time the search occurred; 3) whether a warrant ultimately
              was obtained, albeit after the illegal [search]; and 4)
              “evidence that law enforcement agents ‘jumped the gun’
              because they lacked confidence in their showing of probable
              cause and wanted to force the issue by creating a fait
              accompli.”

Souza, 223 F.3d at 1204 (quoting United States v. Cabassa, 62 F.3d 470, 473–74, 473 n.2

                                              13
(2d Cir. 1995)) (internal citations omitted).

       The government concedes law enforcement had not yet begun the process of

obtaining a warrant when agents examined the magnetic strips on the thirty-one credit

cards found in Alabi and Oguntoyinbo’s possession. Critically, however, the first Souza

factor is relevant, in part, because it informs the determination of whether the evidence at

issue would have remained in place and intact while law enforcement secured the

warrant, thus increasing the likelihood of its discovery. Souza, 223 F.3d at 1204 (citing

Cabassa, 62 F.3d at 473). Because the credit cards were safely in police custody when

agents examined them, even if the first factor weighs against application of the inevitable

discovery doctrine in this case, it does so only slightly. See Souza, 223 F.3d at 1204

(treating probability as key issue in determining applicability of inevitable discovery

exception and characterizing probability of discovery as high when police had already

secured item to be searched, guaranteeing access until warrant issued).

       The second factor, the strength of the probable cause showing at the time of the

search, weighs in favor of applying the inevitable discovery exception here. As discussed

above, Bobbitt’s search of the vehicle and the men’s wallets turned up more than thirty

credit and debit cards, some of which bore the names of other individuals, as well as a list

containing the personal identifiers of hundreds of people. Such evidence would cause a

person of reasonable caution to believe it likely the magnetic strips on the seized cards

contained evidence of a crime or crimes, such as the account numbers of other

individuals. See 18 U.S.C. §§1029(a)(3), (e)(1) (possession, with intent to defraud, of

fifteen or more cards or account numbers that could be used to obtain something of value

                                                14
constitutes access device fraud). This showing of probable cause is strong enough to

convince us not just that a magistrate could have issued a warrant, but that a magistrate

would have issued one. See Cabassa, 62 F.3d at 473-74 (concluding second factor

weighed against government where residual possibility remained that magistrate would

have required stronger showing of probable cause).

         The government also argues the third factor weighs in favor of applying the

inevitable discovery exception because the agents ultimately obtained a warrant, albeit

for the electronics rather than for the cards’ magnetic strips. 1 But the government

provides no authority suggesting the third factor is satisfied if law enforcement simply

obtains any warrant, rather than a warrant for the evidence it argues would have been

inevitably discovered. On the other hand, the fact the agents ultimately sought and

obtained a search warrant for closely related items suggests they would have included the

cards in their application had they not already examined them. Thus, while this factor

does not weigh fully in favor of the government, the agents’ act of procuring a warrant to

search other items found during the same traffic stop makes it likely the agents would

have procured a warrant to search the cards, as well.

         Finally, the fourth factor also weighs in favor of the government, as there is no

evidence the agents’ decision to swipe the cards’ magnetic strips was based on a lack of

confidence in their probable-cause showing, i.e., was an attempt to “jump the gun.”

1
 In his brief, Alabi argues, “It is undisputed that the [g]overnment made no efforts to obtain a warrant to search the
magnetic strips on the credit/debit cards. Further, it is undisputed that the [g]overnment did not intend to do so.”
Aplt. Br. at 44. But Alabi does not address the fact that the agents ultimately obtained a warrant for the electronics.
Nor does he challenge the district court’s conclusion that the third Souza factor weighed in favor of the government
as a result. Thus, Alabi has waived any such argument on appeal. See United States v. Wayne, 591 F.3d 1326, 1336
n.6 (10th Cir. 2010) (explaining appellant’s failure to raise argument in opening brief resulted in waiver).

                                                          15
       On balance, we conclude the Souza factors weigh in favor of applying the

inevitable discovery exception. Given this conclusion, we affirm the district court’s

denial of Alabi’s motion to suppress the evidence obtained from the cards without

addressing the parties’ remaining Fourth Amendment arguments, e.g., whether the scan

of the strips constituted a search for Fourth Amendment purposes, and, if so, whether that

search was reasonable. See United States v. Martinez, 512 F.3d 1268, 1274 (10th Cir.

2008) (declining to address remaining Fourth Amendment arguments when inevitable

discovery doctrine applied).

                                       CONCLUSION

       Alabi’s failure to make a showing of discriminatory effect directs that we affirm

the district court’s denial of his suppression motion based on equal protection grounds.

Further, we affirm the district court’s denial of Oguntoyinbo’s suppression motion based

on Fourth Amendment grounds, in which Alabi joined. Even assuming the warrantless

examination of the credit cards’ magnetic strips constituted an illegal search, the warrant

application contained sufficient independent indicia of probable cause to support the

warrant to search the computers and cell phones, and the evidence obtained from the

strips was admissible under the inevitable discovery doctrine.

                                                 Entered for the Court
                                                 Nancy L. Moritz

                                                 Circuit Judge




                                            16
