                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 13 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-30200

                Plaintiff-Appellee,             D.C. No.
                                                2:15-cr-00096-RMP-1
 v.

HEVER GUZMAN-GUERRERO,                          MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Eastern District of Washington
                Rosanna Malouf Peterson, District Judge, Presiding

                     Argued and Submitted December 5, 2017
                              Seattle, Washington

Before: O’SCANNLAIN, TALLMAN, and WATFORD, Circuit Judges.

      1.     We affirm the district court’s denial of Hever Guzman-Guerrero’s

motion to suppress and his subsequent guilty plea.1 Cocaine was seized from

Guzman-Guerrero’s backpack during a search pursuant to a warrant, but law


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1
  We have jurisdiction over this appeal from a pre-trial suppression order and a
non-conditional guilty plea because the government waived its argument that
Guzman-Guerrero entered an unconditional plea. See United States v. Jacobo
Castillo, 496 F.3d 947, 954 (9th Cir. 2007).
enforcement officers first saw the cocaine when they “peeked” into the backpack

before obtaining the warrant. Guzman-Guerrero argues that the peek tainted the

warrant and invalidates the subsequent search, and therefore the cocaine must be

excluded. The government argues, and following an evidentiary hearing the

district court held, that the cocaine was admissible under the “inevitable discovery”

exception to the exclusionary rule.

      We review the district court’s application of the exclusionary rule de novo,

and its factual findings for clear error. United States v. Lundin, 817 F.3d 1151,

1157 (9th Cir. 2016).

      This is not an inevitable discovery case because the evidence was actually

seized pursuant to an otherwise valid warrant. See Lundin, 817 F.3d at 1161

(citing United States v. Merriweather, 777 F.2d 503 (9th Cir. 1985)). We may

affirm on any ground supported by the record, Serrano v. Francis, 345 F.3d 1071,

1076–77 (9th Cir. 2003), and we hold that the cocaine was admissible under the

“independent source” doctrine.

      Evidence observed during an illegal search is admissible if it is later seized

during a search that is “genuinely independent” of the initial search. Murray v.

United States, 487 U.S. 533, 542 (1988). Seizure under a subsequently obtained

search warrant is “genuinely independent” if the government would have sought,

and the magistrate would have issued, the warrant even in the absence of the


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unlawful search. See id.; United States v. Heckenkamp, 482 F.3d 1142, 1149 (9th

Cir. 2007).

      The agents disclosed in the warrant affidavit that they had looked inside the

backpack after Guzman-Guerrero was apprehended and observed eight cellophane-

wrapped bricks. But there was ample probable cause before the peek, and the

district court properly found that the magistrate would have issued the warrant

anyway. We agree that even when the information from the warrantless search is

excised from the warrant affidavit, the remaining facts still establish probable

cause. See Heckenkamp, 482 F.3d at 1149.

      The district court did not explicitly find that officers would have sought a

warrant absent the initial search. We have previously remanded for such

factfinding in similar situations. See United States v. Duran-Orozco, 192 F.3d

1277, 1281 (9th Cir. 1999); United States v. Holzman, 871 F.2d 1496, 1513–14

(9th Cir. 1989), abrogated on other grounds by Horton v. California, 496 U.S.

128, 130 (1990). But here, Guzman-Guerrero conceded—both in his briefing and

at oral argument—that the officers would have sought a warrant even if they had

not peeked into his backpack.

      Because both of Murray’s requirements are satisfied, the warrant constitutes

an independent source for finding the cocaine, and the district court’s denial of the

motion to suppress is AFFIRMED. The guilty plea stands.


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