                                      PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              _____________

                  No. 19-2003
                 _____________

        UNITED STATES OF AMERICA,
                           Appellant

                        v.

                GARY BRADLEY
                _______________

  On Appeal from the United States District Court
      for the Middle District of Pennsylvania
           (D.C. No. 1-18-cr-00230-001)
      District Judge: Hon. John E. Jones, III
                 _______________

                   Argued on
                  April 14, 2020

Before: AMBRO, JORDAN, and SHWARTZ, Circuit
                  Judges.

              (Filed: May 15, 2020)
                _______________
Scott R. Ford [ARGUED]
Office of United States Attorney
Middle District of Pennsylvania
228 Walnut Street
P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
      Counsel for Appellants

Ronald A. Krauss [ARGUED]
Frederick W. Ulrich
Office of Federal Public Defender
100 Chestnut Street – Ste. 306
Harrisburg, PA 17101
      Counsel for Appellee
                     _______________

                OPINION OF THE COURT
                    _______________

JORDAN, Circuit Judge.

       Early on a cold February morning in 2018,
Pennsylvania State Trooper Wesley Johnson pulled over Gary
Bradley for speeding. With a skillful and friendly demeanor,
the trooper coaxed Bradley into confessing that there was
cocaine in the vehicle he was driving. After being indicted for
possession with intent to distribute cocaine, Bradley moved to
suppress both his confession and the physical evidence,
including the drugs. The District Court granted that motion.

      The government now appeals the suppression of the
physical evidence, presenting two arguments, only one of




                              2
which was made to the District Court. The government has
forfeited the argument it did not make earlier – namely, that the
physical evidence should not have been suppressed because the
statements Bradley made before receiving Miranda warnings
were made voluntarily. But the government’s second
argument, that the cocaine would inevitably have been
discovered because Bradley’s vehicle would have been subject
to an inventory search, has merit. We will, therefore, vacate
the District Court’s order to the extent it suppressed the
physical evidence and remand for it to decide whether any
supplementation of the record is needed to decide whether that
physical evidence would have been inevitably discovered, and,
if so, whether police department policy sufficiently cabined the
scope of the officer’s discretion in conducting the inventory
search such that the search of the backpack, a closed container,
would have been lawful.

I.     BACKGROUND

       A.     The Traffic Stop

        Trooper Johnson was sitting in his unmarked police
vehicle at about 2:00 a.m. on February 10, 2018, on the side of
route 81 outside of Harrisburg, Pennsylvania, when he saw a
car pass at approximately 45-50 mph in a zone where the speed
limit is 65 mph. He could not see the driver of the car as it
passed. Suspecting the driver was under the influence of an
intoxicant, Johnson followed the car for about a half mile. At
that point, the car had accelerated and was weaving about in its
lane. When the car was going 75 mph, Trooper Johnson
switched on his lights and caused the car to pull over to the side
of the road. When the trooper activated the lights, the Dashcam
on his vehicle automatically began recording, so we have a




                                3
clear record of what was said during the conversation that
ensued.

        Trooper Johnson approached the car and greeted its
only occupant, Mr. Bradley. As is typical, he asked for
Bradley’s license and registration. Bradley promptly admitted
that his driver’s license was suspended and that the car was
rented, so he instead gave the trooper an I.D. card and the rental
information. When Bradley said that he had been cited for
driving on a suspended license “a couple times,” Johnson said
in a cheerful way, “my man, I got bigger things to worry about,
it’s almost the end of my shift,” and that they could “work
through that” because it wasn’t “a big deal.” (Dashcam Video
at 1:48-2:04.) Then, in the same sort of I’m-just-here-to-help
tone of voice, Johnson told Bradley, “I’m going to bring you
back to my car” to see if “I can cut you a break.” (Dashcam
Video at 3:03-27.) After a brief hesitation, Bradley got out of
his vehicle and went with Johnson to the police car. Johnson
patted down Bradley for weapons and, finding none, the two
got into the car, with Johnson in the driver’s seat and Bradley
in the passenger seat.

        Once in the car, Trooper Johnson asked Bradley a series
of questions about where he was going and where he had been,
all the while being remarkably solicitous. He made frequent
comments to put Bradley at ease, such as “Take a deep breath,
bud, take a deep breath,” and he frequently called him “bro,”
“bud,” and “my man.” (Dashcam Video at 2:42-53; see
Dashcam Video generally.) Under Johnson’s questioning,
Bradley said that he was on his way home from visiting his
mother in a personal care facility in Queens, New York. He
also said he had just been sentenced to two and a half years in
prison for “drugs.” (Dashcam Video at 4:30-11:00.) Johnson




                                4
continued his effort to build rapport with Bradley, asking him
“When’s the last time you’ve been cut a legitimate break, bro?”
(Dashcam Video at 8:25-27.) At the same time, Johnson
continued searching through Bradley’s driving record and the
rental car information. When asked about the rental car,
Bradley explained that it was rented in his wife’s name. The
interrogation to that point had lasted about ten minutes.

       Appearing to have finished processing the information
related to the traffic stop, Johnson told Bradley that he was
going to give him a warning for speeding and that he would not
cite him for weaving in his lane of traffic. Despite those
statements, however, it seems that Johnson never intended to
let Bradley go with just a warning. He later acknowledged at
the suppression hearing that he would not have let Bradley
drive away. In fact, he said that from the beginning he
suspected criminal activity of some kind. For that reason, he
had called for backup, and at about that ten-minute mark in the
stop, Corporal Brian Hoye arrived on the scene.

       As Corporal Hoye approached the unmarked police car,
Trooper Johnson began a more pointed line of questioning,
focusing on the contents of the rental car. Specifically, he
asked Bradley whether there were any guns, marijuana, large
sums of U.S. currency, heroin, or cocaine in the car. Bradley
denied having any of those items, but Johnson later testified
that he “noticed a deviation in the way [Bradley] responded to
the question of cocaine.” (App. at 121.) Johnson asked again
whether any of the previously listed things were in the car. By
then, Corporal Hoye was standing next to where Bradley sat,
and this time, flanked by state troopers, Bradley admitted he
had cocaine.




                              5
        Johnson then quickly recited the Miranda warnings,1
telling Bradley he was “not free to leave.” (Dashcam Video at
13:40-55.) Close to fifteen minutes of questioning had gone
on, most of it in the police vehicle, before the warnings were
given. Immediately thereafter, Johnson asked, “Now, how
much cocaine is in the car?” (Dashcam Video at 13:55-57.)
Bradley answered, “a lot.” (App. at 123.) At that point,
Johnson believed he had probable cause to search the vehicle.
He asked Bradley where the cocaine was, and Bradley told him
it was in the trunk. He handcuffed Bradley and left him in the
care of Corporal Hoye while he went back to the vehicle to
search for the cocaine. As Bradley had said, about a kilo of
cocaine in a backpack was lying in the trunk of the car. The
officers told Bradley he was under arrest for possession of
cocaine with intent to distribute.

       B.       The Procedural History

       After he was indicted and arraigned, Bradley filed a
motion to suppress. In his briefing on that motion, he argued
that Trooper Johnson had unlawfully prolonged the traffic stop
and that the stop involved a custodial interrogation without the
benefit of Miranda warnings. The government argued that the
stop had not been unnecessarily prolonged, that Bradley was
not in custody, and that no warrant was necessary under the
automobile exception to the warrant requirement.2




       1
           Miranda v. Arizona, 384 U.S. 436 (1966).
       2
           See generally California v. Acevedo, 500 U.S. 565
(1991).




                                6
       At the suppression hearing, Trooper Johnson and
Bradley testified, and both parties played portions of the
Dashcam video. In addition to recounting the incident,
Johnson testified that, because of the suspended license, he
would not have allowed Bradley to drive away. Instead, as a
matter of routine, Bradley’s vehicle would have been towed
and the police would have conducted an inventory search of it.
At the conclusion of the hearing, the District Court requested
further briefing on the suppression motion, and Bradley
responded in his post-hearing submission by arguing that his
statements to Johnson were effectively involuntary because
they were made under custodial interrogation and therefore the
statements and physical evidence should be suppressed. The
government argued that, even if Bradley’s pre-Miranda
statements were suppressed, his post-Miranda statements were
voluntary and should be admissible in evidence, and it further
contended that the cocaine would have inevitably been
discovered when the rental car was impounded.

       The District Court granted the motion to suppress
Bradley’s pre- and post-Miranda statements, as well as the
evidence that was discovered in the vehicle as a result of those
statements. The Court focused primarily on the admissibility
of Bradley’s statements: whether they were given as part of a
custodial interrogation, and whether the post-Miranda
statements were given voluntarily. See generally United States
v. Bradley, 370 F. Supp. 3d 458 (M.D. Pa. 2019). It found that,
at least from the time Corporal Hoye arrived on the scene,
Bradley was subjected to custodial interrogation, and that
Bradley’s post-Miranda statements were not voluntary. In
closing, it addressed whether the physical evidence should also
be suppressed or whether it would have been inevitably
discovered in an inventory search. The District Court decided




                               7
that the possibility of an inventory search was merely
speculative, and it therefore ordered that the physical evidence,
as well as Bradley’s statements, be suppressed.

       The government has timely appealed.

II.    Discussion3

       On appeal, the government argues only for the
admissibility of the physical evidence seized from the rental
car. Its first argument is that the physical evidence should not
be suppressed because the statements Bradley made before
hearing his Miranda rights were voluntarily made. It also
argues that, in any event, the physical evidence would have
been discovered in a lawful inventory search when the police
impounded Bradley’s vehicle. The government has forfeited
its argument concerning the pre-Miranda statements, but it
successfully preserved its argument that the cocaine and
related evidence would have been inevitably discovered in an
inventory search.




       3
         The District Court had jurisdiction under 18 U.S.C.
§ 3231, and we have jurisdiction under 18 U.S.C. § 3731. In
considering the outcome of a motion to suppress, “we review
a district court’s factual findings for clear error, and we
exercise de novo review over its application of the law to those
factual findings.” United States v. Goldstein, 914 F.3d 200,
203 n.15 (3d Cir. 2019) (quoting United States v. Katzin, 769
F.3d 163, 169 n.4 (3d Cir. 2014) (en banc)).




                               8
       A.     Argument Forfeiture

        The government’s argument about the voluntariness of
Bradley’s pre-Miranda statements is markedly different from
the one it made before the District Court. There, its position
was that, regardless of whether the pre-Miranda statements
were illegitimately obtained, the post-Miranda statements
were voluntary and sufficient to permit the search that yielded
the physical evidence. Only now is it insisting that the pre-
Miranda statements were voluntary and should be the focus of
attention. Consequently, while the government rightly says
that suppression is inappropriate when evidence has been
discovered based on voluntary statements, United States v.
DeSumma, 272 F.3d 176, 180-81 (3d Cir. 2001), that point is
unpersuasive here, since the voluntariness of the pre-Miranda
statements was not argued to the District Court, and the Court’s
ruling on the involuntariness of the post-Miranda statements
has not been challenged before us.

       The government, just like a defendant, is “subject to the
ordinary rule that an argument not raised in the district court is
waived on appeal[.]” United States v. Dupree, 617 F.3d 724,
728 (3d Cir. 2010); accord United States v. Stearn, 597 F.3d
540, 551 n.11 (3d Cir. 2010). “[T]he argument presented in
the Court of Appeals must depend on both the same legal rule
and the same facts as the argument presented in the District
Court.” United States v. Joseph, 730 F.3d 336, 342 (3d Cir.
2013). “[T]he degree of particularity required to preserve an
argument is exacting.” Id. at 337. Thus, “fleeting reference or
vague allusion to an issue will not suffice to preserve it for
appeal.” In re Ins. Brokerage Antitrust Litig., 579 F.3d 241,
262 (3d Cir. 2009).




                                9
       The government’s claim that it preserved the
voluntariness issue in its suppression motion briefing by citing
to Oregon v. Elstad, 470 U.S. 298 (1985), without discussing
how it applies to the facts of this case, does not satisfy that
standard. It is apparent on this record that the government
failed to argue before the District Court that the evidence
should not be suppressed because the pre-Miranda statements
were made voluntarily. Moreover, the government never
invoked the legal rule it relies upon as dispositive on appeal,
namely that the physical fruits of voluntary statements are
admissible regardless of whether Miranda warnings were
given. DeSumma, 272 F.3d at 180. The argument has thus
been forfeited, and we will not consider it.

       B.     Inevitable Discovery

        The government did, however, preserve its argument
that, even without Bradley’s statements, the physical evidence
would have been discovered during a proper inventory search
of the rental car. The District Court was unpersuaded,
concluding that the possibility of such a search was speculative
and that the government had thus not carried its burden of
proving inevitable discovery. The government renews its
argument now, and we see much more merit in it. Indeed, we
disagree with the District Court’s labeling as speculative the
likelihood of an inventory search, but more work needs to be
done to determine the lawfulness of the search of the
backpack.4

       4
         The government also argues that the cocaine would
inevitably have been discovered through a search by a dog
trained to detect drugs, but that argument fails. As Johnson
himself admitted, while he suspected criminal activity from the




                              10
       Evidence obtained by the police unlawfully may
nonetheless be admitted into evidence “if 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. Vasquez De
Reyes, 149 F.3d 192, 195 (3d Cir. 1998) (quoting Nix v.
Williams, 467 U.S. 431, 444 (1984)). One lawful means by
which the police may discover evidence is to conduct an
inventory search of an impounded vehicle, as “inventory
searches are now a well-defined exception to the warrant
requirement of the Fourth Amendment.” Colorado v. Bertine,
479 U.S. 367, 371 (1987).

        The government bears the burden of proving that
evidence would have inevitably been discovered, and it can
satisfy that burden by demonstrating that the police, following
their routine procedures, would have uncovered it. Vasquez De
Reyes, 149 F.3d at 195. An analysis of whether certain
evidence would have been discovered in an inventory search,
including whether an inventory search would have occurred at
all, should be based “upon the historical facts capable of ready
verification, and not speculation.” Id.; see also Nix, 467 U.S.
at 444 n.5 (“[I]nevitable discovery involves no speculative
elements but focuses on demonstrated historical facts capable
of ready verification[.]”). The government may establish
routine police procedures by submitting them into evidence,


beginning of the traffic stop, his suspicions were “not
necessarily [about] drug activity.” Thus, as the District Court
correctly observed, it is just speculation that, without Bradley’s
statements, Johnson would have called for a drug-detecting
dog to come to the scene.




                               11
including by “testimony regarding standard practices.” United
States v. Mundy, 621 F.3d 283, 290 n.5 (3d Cir. 2010) (quoting
United States v. Thompson, 29 F.3d 62, 65 (2d Cir. 1994)).

       Here, the government argues that, whether or not
Bradley ever said a word, the cocaine in the trunk of his car
would have been found. According to the government, it
established through the Dashcam evidence and the testimony
of Trooper Johnson that Bradley was driving on a suspended
license, that he therefore could not continue driving the car,
that police procedure called for the vehicle to be towed and
impounded, and that necessarily there would have been an
inventory search that would have revealed the cocaine. None
of that seems speculative to us. On the contrary, it tracks
Pennsylvania law that requires the police to order a vehicle
towed if the driver has a suspended license and towing is “in
the interest of public safety.” 75 Pa. Cons. Stat. Ann.
§ 6309.2(a)(1). And it is consistent with Johnson’s testimony
that he would not have let Bradley drive away, that Bradley’s
vehicle would have been impounded, and that there would
have been an inventory search consistent with standard
procedures.

        Nevertheless, the District Court thought the testimony
was speculative because Trooper Johnson “did not aver that
protocol mandated that he tow and inventory Bradley’s vehicle
as a result of his suspended license.” Bradley, 370 F. Supp. 3d
at 477. The Court suggested that some alternative besides
towing and impoundment would have been more consistent
with Trooper Johnson’s statement to Bradley that he would
“cut him a break.” (App. at 44.) But the existence of
alternative methods of removing a vehicle from a snowy
highway in the middle of the night does not negate Trooper




                              12
Johnson’s sworn and unrebutted testimony of what police
procedures called for and what he would have done even if
Bradley had not confessed. That Johnson did not use the word
“mandated” or some like term to describe the procedures he
referenced is certainly not dispositive.

        At the same time, Trooper Johnson testified that the
cocaine was found in Bradley’s backpack, which was lying in
plain view in the trunk of the car. Police have discretion to
inventory a closed container, no doubt, see e.g., Bertine, 479
U.S. at 374, but only where there is evidence of a policy or
regulation sufficiently limiting the scope of that discretion.5
See United States v. Salmon, 944 F.2d 1106, 1120 (3d Cir.
1991), abrogated on other grounds by United States v.
Caraballo-Rodriguez, 726 F.3d 426 (3d Cir. 2013) (“[T]he pre-
existing criteria or routine must limit an officer's discretion
regarding the scope of an inventory search, particularly with
respect to the treatment of closed containers.”); see also
Mundy, 621 F.3d at 291–92 (internal quotation marks omitted)
(holding lawful an inventory search of a container where
department policy “specifically authoriz[ed] the search of the
trunk if accessible” and “forb[ade] any locked areas, including
the trunk area, from being forced open” because the policy
sufficiently limited the scope of officer discretion when it “(1)
authorized [the officer] to inventory any personal property of
value left in the trunk once [the individual] provided the keys
to it; and (2) simultaneously curtailed his authority to embark
on a generalized search for incidents of crime”).


       5
        That is not to say that there must be a written policy or
a regulation, but rather that there must be criteria or routines
that govern inventory searches.




                               13
       Given Trooper Johnson’s testimony concerning police
procedure and the course he would have taken once Bradley’s
ineligibility to drive had been revealed, and given that the
cocaine was inside a backpack that was in plain view when the
trunk of the rental car was opened, it seems probable that the
police would have discovered the cocaine in an inventory
search. But more information on police procedures – including
protocols for the conduct of an inventory search and the scope
of an officer’s discretion during such a search – is likely needed
before making a final determination on inevitable discovery.
Thus, we ask the District Court on remand to reopen the record
and take further evidence.

III.   CONCLUSION

      For the foregoing reasons, we will vacate the District
Court’s order suppressing the physical evidence and remand
the matter for further consideration.




                               14
