13-3731
United States v. Guarino
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 5th day of September, two thousand fourteen.

PRESENT: GUIDO CALABRESI,
                 REENA RAGGI,
                 DENNY CHIN,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellant,

                           v.                                               No. 13-3731-cr

CESARE GUARINO,
                                 Defendant-Appellee.
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APPEARING FOR APPELLANT:                          PAUL D. SILVER (Kevin P. Dooley, on the
                                                  brief), Assistant United States Attorneys, for
                                                  Richard S. Hartunian, United States Attorney for
                                                  the Northern District of New York, Albany,
                                                  New York.

APPEARING FOR APPELLEE:                          JAMES P. EGAN (James F. Greenwald,
                                                 Assistant Federal Public Defender, on the brief),
                                                 Research & Writing Attorney, for Lisa Peebles,
                                                 Federal Public Defender for the Northern
                                                 District of New York, Syracuse, New York.

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       Appeal from an order of the United States District Court for the Northern District of

New York (Thomas J. McAvoy, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the order entered on September 23, 2013, is AFFIRMED and the

case is REMANDED for further proceedings.

       The United States appeals from an order suppressing evidence seized in violation of

the Fourth Amendment, arguing that the district court erred in failing to recognize that the

firearm and silencers seized were admissible under the theory of inevitable discovery. In

reviewing the district court’s findings of historical fact for clear error and its application of

the inevitable discovery doctrine de novo, see United States v. Stokes, 733 F.3d 438, 443

n.6 (2d Cir. 2013), we assume the parties’ familiarity with the facts and the record of prior

proceedings, which we reference only as necessary to explain our decision to affirm and

remand.

       Although evidence seized in violation of the Fourth Amendment is ordinarily

inadmissible at trial, an exception applies “if the government can prove that the evidence

would have been obtained inevitably without the constitutional violation.” United States

v. Heath, 455 F.3d 52, 55 (2d Cir. 2006) (internal quotation marks omitted).                 To

demonstrate inevitable discovery, the government must prove by a preponderance of the

evidence that, “viewing affairs as they existed at the instant before the unlawful search

occurred, . . . a court can find, with a high level of confidence, that each of the

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contingencies necessary to the legal discovery of the contested evidence would be resolved

in the government’s favor.” United States v. Stokes, 733 F.3d at 444 (internal quotation

marks omitted); see id. (“Under the inevitable discovery exception, unlawfully seized

evidence is admissible if there is no doubt that the police would have lawfully discovered

the evidence later.” (emphasis in original) (internal quotation marks omitted)).

       Here, the government does not contest that the firearm and silencers were seized

unlawfully.    Nevertheless, it proffers various theories to support inevitable lawful

discovery: (1) defendant would have voluntarily surrendered the firearm as a condition of a

court order of protection; or (2) if defendant did not comply with the surrender order,

police would have seized the firearm pursuant to a search warrant based on (a) such

non-compliance or (b) probable cause that evidence of defendant’s criminal conduct would

be found in his locked room. We are not persuaded.

       First, in the context of an inevitable discovery inquiry, assumptions about the

conduct of non-law enforcement—here, the defendant—are “inherently speculative,” thus

generally precluding the high degree of confidence required to afford an exception to

suppression.   Id. at 447 (reversing inevitable discovery conclusion that relied upon

assessment of “actions that might have been taken by third parties—[defendant],

[defendant’s associate], or motel staff—not acting at the behest of the police”). Indeed,

the requisite confidence in defendant’s hypothesized compliance with the surrender




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provision of a protective order is further undermined here by his history of volatile action

and potential mental illness.

       In nevertheless maintaining that Guarino’s compliance with the firearm surrender

provision of a protective order was inevitable, the government points to his earlier

“voluntary” disclosure of the combination to his gun safe. The district court was not

persuaded nor are we. When defendant disclosed the safe combination, he was in custody

and had not been advised of his rights. Moreover, he disclosed the combination knowing

that police had already entered his bedroom (the Fourth Amendment violation) and in

response to an officer’s questionable assertion of authority to “seize” any firearms in the

safe pursuant to the order of protection. G.A. 128. While the district court did not find

these circumstances to evidence coercion, the issue before us is not whether they manifest a

constitutional violation but whether they leave us with “no doubt” that, even without the

unlawful entry into defendant’s room and with a correct statement as to his obligations

under the protective order and the consequences of non-compliance, defendant would have

surrendered his guns. The circumstances of the combination disclosure do not support the

requisite high degree of confidence. Cf. United States v. Moreno, 701 F.3d 64, 77 (2d Cir.

2012) (stating that handcuffs, absence of Miranda warnings, and knowledge of right to

refuse are factors in voluntariness analysis); United States v. Vasquez, 638 F.2d 507, 528–

29 (2d Cir. 1980) (implying that false claim of ability to obtain warrant can negate

voluntariness of consent).


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       Second, we also do not have the requisite “high level of confidence” that, if

defendant had not complied with the surrender order, police inevitably would have seized

firearms pursuant to a search warrant based on such non-compliance. Violation of a

surrender order appears to expose a defendant to criminal charges. See People v. Havrish,

8 N.Y.3d 389, 392, 834 N.Y.S.2d 681 (2007) (stating that had defendant not surrendered

weapons pursuant to order of protection, “he could have been prosecuted for criminal

contempt”). Nevertheless, the government points us to no authority that a search warrant

inevitably issues, cf. United States v. Cabassa, 62 F.3d 470, 473–74 (2d Cir. 1995) (stating

that even where probable cause exists, if “there is some room for disagreement . . . [t]here

is thus a residual possibility” that warrant would not have issued), much less issues so

promptly as to preclude removal of sought items by third parties, see People v. Degiorgio,

36 A.D.3d 1007, 1007, 827 N.Y.S.2d 342, 343 (3d Dep’t 2007) (stating that search warrant

for guns was obtained after defendant not in custody repeatedly refused to comply with

surrender provision); see also United States v. Stokes, 733 F.3d at 447 (rejecting inevitable

discovery, in part, because contraband possibly would have been moved by third party

prior to lawful seizure).1 Accordingly, we do not conclude that the evidence inevitably

would have been seized lawfully on this basis.



1
  In this respect we note that although defendant’s mother originally requested that police
remove her son’s firearms from her house, she subsequently testified in his defense at the
suppression hearing, making it difficult to have a high degree of confidence that she would
not have removed the firearms before a non-compliance warrant was executed.
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       Third, even assuming that the police had probable cause to search Guarino’s

bedroom for evidence of his criminal mischief and stalking offenses, we cannot determine

with a high level of confidence that police would have sought a warrant on such grounds.

Cf. United States v. Heath, 455 F.3d at 55 (remanding for further factual findings as to

whether officer would have arrested suspect even though probable cause likely existed).

Police had not begun to apply for such a warrant at the time of the illegal search. See

United States v. Cabassa, 62 F.3d at 473 (instructing that where inevitable discovery claim

is “based on expected issuance of a warrant, the extent to which the warrant process has

been completed” at time of unlawful search “is of great importance”). Rather, the single

court order police intended to secure at that time was an order of protection with a firearm

surrender provision. Compliance with that order, however, would have, at least arguably,

precluded defendant’s prosecution for unlawful firearms possession under New York law.

See N.Y. Penal Law § 265.20(a)(1)(f) (stating that New York unlawful firearms possession

statutes do not apply to persons who “voluntarily surrender[]” firearm to police); N.Y.

Crim. Proc. Law § 530.14(5)(b) (providing that “prompt surrender of one or more firearms

pursuant to a court order issued pursuant to this section [authorizing protective orders’

surrender provisions] shall be considered a voluntary surrender for purposes of [N.Y. Penal

Law § 265.20(a)(1)(f)]”). These circumstances do not afford a high degree of confidence

that police intended or inevitably would have secured a search warrant based on probable

cause that they would find evidence of the charged state mischief and stalking offenses.


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Indeed, the government did not argue such a search and seizure theory before the district

court, either in its initial opposition to defendant’s motion to suppress or in its motion for

clarification.

       In sum, because we cannot conclude that there is “no doubt” that the police

inevitably would have secured the illegally seized evidence by lawful means, the

government’s challenge fails on the merits.

       We have considered the government’s remaining arguments and conclude that they

are without merit. We therefore AFFIRM the order of the district court and REMAND for

further proceedings.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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