                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUN 19 2002
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 01-1156
          v.                                     (D.C. No. 98-CR-193-M)
 IRA L. MOORE,                                         (D. Colorado)

               Defendant - Appellant.


                             ORDER AND JUDGMENT         *




Before LUCERO and ANDERSON , Circuit Judges, and            BROWN , ** District
Judge.




      Following a jury trial, defendant Ira Moore was found guilty of one count

of robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951(a); one count of using

and carrying firearms in connection with the robbery, in violation of 18 U.S.C.

§ 924(c); unlawful possession of a machine gun, in violation of 18 U.S.C.



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         The Honorable Wesley E. Brown, United States District Judge for the
District of Kansas, sitting by designation.
§ 922(o)(1); and being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g). The district court sentenced Moore to a total of 138 months

imprisonment, followed by five years of supervised release. We affirm.



                                   BACKGROUND

        Chad Lawrence was a firearms dealer and owner of Cal’s Sporting Armory

in Englewood, Colorado. Cal’s Sporting Armory was authorized to sell restricted

firearms such as machine guns, silencers and sawed-off shotguns.

        At approximately 7:30 p.m. on April 22, 1998, Lawrence was pricing

inventory behind one of the store’s glass display cases when Kevin Shuler,

accompanied by another individual, entered the store.   1
                                                            Both men wore dark pants,

gray pinstripe shirts, and baseball caps. Shuler was taller than his companion.

The shorter of the two individuals asked Lawrence where a particular item was

and Lawrence left the counter to show him. After talking to the man for a few

minutes, Lawrence turned to walk back to the counter. The shorter man grabbed

him from behind and pinned his arms to his side while Shuler held a gun to his

head.




       Shuler and Moore were codefendants. Shuler ultimately plead guilty to the
        1

robbery. We affirmed his conviction. United States v. Shuler, 181 F.3d 1188,
1191 (10th Cir. 1999).

                                           -2-
      The shorter robber then took Lawrence’s keys and went to a back room.

Shuler continued to restrain Lawrence and asked him where the bulletproof vests

and MP5s were.   2
                     Lawrence was taken into a back room, forced to lie down on the

floor, and taped with duct tape on his hands, feet and eyes. He heard the two men

opening cabinets and walking in and out of the store. When the store sounded

empty, Lawrence freed his hands, triggered the alarm system and grabbed a

shotgun. When he saw Shuler returning to the store, Lawrence fired the shotgun

at him. Shuler and his companion fled the store, taking with them several

firearms, including an MP5, and Lawrence’s keys and wallet.   3



      Early the following morning, the Arapahoe County Sheriff’s Department

developed computer-generated sketches of the two robbers, based upon

Lawrence’s descriptions of them. Later that day, an attorney contacted the

Sheriff’s Department, stating that he had a client who wished to remain

anonymous who had information about the Cal’s Sporting Armory robbery.

Investigator Paul Goodman interviewed the informant by phone. The informant

provided a detailed account of the robbery and identified Shuler as one of the



      MP5s are German-made machine guns which Lawrence had in his store for
      2

demonstration purposes and to sell to law enforcement.
      3
        The firearms stolen, besides the MP5, were three Bushmaster semi-
automatic assault rifles, two .45 caliber handguns, one of which was equipped
with a silencer, and one .9 millimeter handgun. Tr. of Hr’g on Motions at 17, R.
Vol. 7.

                                          -3-
robbers. He described Shuler as a 6’1” African-American man with several

tattoos on his chest. The informant told Goodman that, during the robbery, Shuler

had knocked over the store video camera and simultaneously dropped his own gun

(a .9 millimeter Norinco handgun), that the owner had been duct-taped, that the

robbers made several trips in and out of the store, and that the owner had fired at

Shuler. The informant also provided details about where Shuler worked and

lived, the kind of car he drove, and the whereabouts and identities of his

girlfriends. Police were able to corroborate much of the informant’s information

about the robbery and Shuler.   4
                                    The informant also provided some information on

the second robber–that he was a shorter, stockier, African-American male known

as “Ira,” “Iroc,” or “Roc.”

      Law enforcement officers presented Lawrence with a six-man photographic

array early in the morning of April 24. He identified Shuler as the taller of the

two robbers. Later that day, police arrested Shuler soon after he arrived at his

construction job. The police interviewed Shuler’s girlfriend, Orchid Field, when

she arrived at his place of work for lunch. Field testified that on the night of the

robbery, she had picked Shuler up at the intersection of First and Havana, near the



      4
        For example, the store video camera had in fact been knocked over, and a
loaded .9 millimeter Norinco handgun found in the store was not in Lawrence’s
inventory. Further, the informant accurately identified Shuler’s residence, his
girlfriends, his place of work, and the fact that he had tattoos on his body.

                                            -4-
Timber Leaf Apartments. Tr. of Hr’g on Motions at 112, R. Vol. 7. One of the

officers involved testified that Field said that “he [Shuler] was carrying a duffel

bag that clinked when he placed it in the car.”    Id. at 30. Field later denied

making such a statement, testifying that she only mentioned the bag because she

felt compelled to do so by the police.    Id. at 121-22.

       Field further stated that she had taken or met Shuler there on other

occasions, and was under the impression that Shuler’s friend, Ira, lived in the

Timber Leaf Apartments. Field indicated she did not know Ira’s last name, but

knew he was referred to as “Roc.”

       Field and, apparently at times, Shuler lived with Field’s mother, Janet

Field. Janet Field consented to a search of their apartment, which turned up the

three stolen Bushmaster semi-automatic rifles, two handguns, some ammunition,

Lawrence’s wallet and keys, and a pair of pants, shirt and cap matching the

description of the clothes worn by the robbers.

       On the afternoon of April 24, Arapahoe County Sheriff’s Investigator

Jeffrey Britegam went to the Timber Leaf Apartment Leasing Office to look for a

short, stocky African-American in his early 30’s named “Ira” and with a possible

last name of “Griffin.” The apartment management staff told Britegam that the

only “Ira” living at the apartment complex was the defendant, Ira Moore. They

gave him Moore’s apartment number, date of birth and phone number, and


                                            -5-
showed him a photocopy of Moore’s driver’s license. Britegam communicated

this information to his command center.

       As Britegam was walking near Moore’s apartment, the door suddenly

opened and Moore and another man walked outside carrying several cardboard

boxes. When back-up officers arrived at the apartment complex, officers at the

command station arranged for Orchid Field to make a controlled telephone call to

Moore. 5 During this monitored call, Field told Moore that the police had arrested

Shuler and that she did not know what to do with “the guns.” Tr. of taped

conversation at 1, Attachment 1 to Mot. to Exclude Evid. of Tape Recorded

Conversation, R. Vol. 2, Doc. 191. Moore responded, “[i]f you can, get ‘em out.”

Id. Moore asked Field where she was and whether he could call her back. Moore

also stated, “I told him,” and “I hope he knows to do the right thing.”   Id. at 2.

The officers outside Moore’s apartment arrested Moore when he stepped outside

his apartment while talking on the telephone to Field. A search of his apartment

uncovered clothes similar to those worn by the robbers. Moore was then taken to

the Arapahoe County Sheriff’s Office, booked by Deputy Sheriff Douglas Cover,

and photographed as part of the booking process.




       5
        The district court subsequently suppressed the contents of this telephone
call, concluding that Field had not made the call voluntarily.

                                             -6-
      On April 27, Lawrence was shown a six-man photo array containing the

booking photograph of Moore. Lawrence identified Moore as the second robber.

In a November 1, 2000, post-indictment lineup, containing Moore and five other

men, Lawrence again identified Moore as the second robber.   6
                                                                 At this line-up,

each participant was asked to step forward and repeat three times a question the

shorter robber had asked Lawrence during the robbery. At trial, Lawrence again

identified Moore as the second robber.

      Moore filed a motion to suppress his post-arrest statements, evidence seized

at his apartment, and the booking photograph taken at the police station. After an

evidentiary hearing, the district court granted the motion with respect to his

statements and the evidence seized from his apartment. The district court

concluded that, while there was probable cause to arrest Moore, the officers at the

apartment who actually arrested Moore were not “privy to” the information

establishing probable cause. Tr. of Trial Preparation Conference Proceedings at

5-7, R. Vol. 10. The court rejected the government’s argument that the

“collective knowledge” of the officers at the station and the arresting officers

provided probable cause for the officers at the apartment complex to arrest

Moore, because there had been no “actual communication” of the information




      6
          There was a two-year delay between Moore’s indictment and his trial.

                                          -7-
establishing probable cause from the officers at the station to the officers at the

complex. Id. at 5.

       However, the court denied the part of the motion seeking suppression of the

booking photograph, concluding that, because there was probable cause to arrest

Moore (even though the arresting officers were not aware of that probable cause),

“ultimately he would have been arrested . . . [and] upon arrest, the defendant

would have been photographed and, therefore, the photograph used in the photo

I.D. identification procedure is not covered by the exclusionary rule because it

would have inevitably been obtained under any circumstance of this case.”      Id. at

6-7.

       The jury convicted Moore. The primary issue at trial was whether Moore

was, in fact, the shorter robber. Lawrence identified Moore at trial and testified

concerning his identification of Moore from the photographic array, which

included the booking photograph.

       Moore appeals, arguing the district court erred “in holding that the police

would have inevitably arrested Mr. Moore, where the objective indications are

that the police did not believe they had probable cause, the showing of probable

cause was not overwhelming, and the government offered no testimony that the

police would have arrested Mr. Moore had the officers at the scene not illegally

arrested him.” Appellant’s Opening Br. at 2. He thus argues the court erred in


                                          -8-
declining to suppress his booking photograph and the identifications allegedly

based thereon.



                                      DISCUSSION

       “In assessing a challenge to a district court’s denial of a motion to suppress

evidence, this court reviews    de novo the question of reasonableness under the

Fourth Amendment.”       United States v. King , 222 F.3d 1280, 1283 (10th Cir.

2000). Further, “[w]e view the evidence produced at the pretrial suppression

hearing in the light most favorable to the government and accept the district

court’s factual findings unless they are clearly erroneous.”      United States v.

Yazzie , 188 F.3d 1178, 1193 (10th Cir. 1999).

       The district court denied suppression of Moore’s booking photograph in

reliance on the “inevitable discovery” doctrine. Under this doctrine, even if

Moore’s initial arrest was unlawful, “the exclusionary rule is inapplicable if the

evidence inevitably would have been discovered by lawful means.”             United States

v. Souza , 223 F.3d 1197, 1202 (10th Cir. 2000). “The government has the burden

of proving by a preponderance of the evidence that the evidence in question

would have been discovered in the absence of the Fourth Amendment violation.”

Id. at 1203. In examining whether the government has met its burden of proof,

we look at “demonstrated historical facts,” not at “speculative elements.”         Nix v.


                                             -9-
Williams , 467 U.S. 431, 444 n.5 (1984). Thus, in this case, we may affirm the

district court’s refusal to suppress the booking photograph if we conclude that the

government proved by a preponderance of the evidence that it would have

obtained the booking photograph even without Moore’s illegal arrest.

       We begin by noting that the district court specifically found that, at the

time of Moore’s arrest, the officers at   police headquarters had sufficient

information establishing probable cause to arrest Moore. Moore does not dispute

this finding on appeal.   7



       We have said that “‘what makes a discovery “inevitable” is not probable

cause alone . . . but probable cause plus a chain of events that would have led to a

warrant (or another justification) independent of the search.’”    Souza , 223 F.3d at

1204 (quoting United States v. Brown , 64 F.3d 1083, 1085 (7th Cir. 1995)).

“The key issue in these cases, one of probability, is how likely it is that a warrant

would have been issued and that the evidence would have been found pursuant to

the warrant.”    Id.

       In Souza , we approved the following factors as “helpful” in assessing

inevitability:

       1) “the extent to which the warrant process has been completed at the
       time those seeking the warrant learn of the search” . . . ; 2) the


       7
        Moore conceded at oral argument that, while he pursued this issue in the
district court, he does not press it on appeal.

                                            -10-
      strength of the showing of probable cause at the time the search
      occurred . . . ; 3) whether a warrant ultimately was obtained, albeit
      after the illegal entry . . . ; 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[.]”

Id. (quoting United States v. Cabassa , 62 F.3d 470, 473-74 & n.2 (2d Cir. 1995)).

Moore argues that the following combination of circumstances compel the

conclusion that the police would not have inevitably arrested, booked and

photographed Moore without the prior illegal arrest: (1) the fact that the police

had not even begun the process of obtaining an arrest or search warrant, (2) the

fact that a warrant was never in fact obtained, and (3) the fact that, in his view,

the police only had a modest degree of probable cause for his arrest. We

disagree.

      The objective historical facts facing the police at the time of Moore’s arrest

were as follows: an anonymous informant had provided accurate and

corroborated information about Shuler’s involvement with the robbery; this same

informant had told police that Shuler’s accomplice was a shorter, stockier

African-American known as “Ira” or “Roc;” on the night of the robbery, Orchid

Field had picked up Shuler from a location very near Moore’s apartment complex,

to which Field had taken Shuler and from which she had picked him up on prior

occasions and where she believed his friend Ira or “Roc” lived; Moore was the

only “Ira” living at that apartment complex; and Moore appeared generally, from

                                          -11-
the photocopy of his driver’s license on file with the apartment manager, to match

the description of Shuler’s accomplice. Further, the police were in the process of

obtaining information from the recorded phone conversation between Field and

Moore which strongly suggested Moore’s familiarity with Shuler and with the

stolen guns found in Field’s apartment. Additionally, police had sent several

back-up officers to Moore’s apartment complex, and they knew they were dealing

with a suspect in an armed robbery of a firearms store in which a number of very

dangerous weapons had been stolen. Thus, the police had ample probable cause

to believe that Moore was involved in a serious robbery.   8



      Furthermore, while Souza and some of our other cases discussing the

inevitable discovery doctrine emphasize the importance of the police taking steps

toward obtaining a warrant, and that probable cause alone will not excuse the

absence of a warrant otherwise required, in those cases an actual warrant was a

prerequisite to a lawful search. For example, in    Souza , the police developed

probable cause to search a package at a United Parcel Service facility. As we

observed, “[t]he police had probable cause to open the package and intended to



      8
       We only consider the suppressed phone conversation for the purposes of
determining whether the police would inevitably have arrested Moore. Because
Moore does not contest the legal question of whether the police at headquarters
had probable cause, we therefore do not consider the conversation for the
purposes of determining the legal question of whether there was probable cause to
arrest Moore.

                                           -12-
obtain a search warrant to do so, but prematurely caused the package to be opened

in violation of the Fourth Amendment.”        Souza , 223 F.3d at 1203. In that case,

obtaining a warrant was the only way the police could have legally opened the

package: “there is no exception to the warrant requirement that could serve as a

basis for the inevitable discovery exception [in this case].”     Id. In such a

situation, we have held that the police may not simply ignore the warrant

requirement and conduct an illegal search, but must, instead, demonstrate that

“‘the police would have obtained the necessary warrant absent the illegal

search.’” Id. (quoting United States v. Allen , 159 F.3d 832, 841 (4th Cir. 1998)).

They could make such a demonstration with “‘proof that, based on independent

evidence available at the time of the illegal search, the police . . . took steps to

obtain a warrant prior to the unlawful search.’”      Id. (quoting Allen , 159 F.3d at

841.)

        In Souza , we in fact upheld application of the inevitable discovery

exception, although we noted we rarely do so in the circumstances of that case:

        Although we are very reluctant to apply the inevitable discovery
        exception in situations where the government fails to obtain a search
        warrant and no exception to the warrant requirement exists, in this
        case the inevitability of discovery of the evidence convinces us that
        this is one of those occasions when the doctrine should apply.




                                             -13-
Souza , 223 F.3d at 1206. A factor heavily influencing our decision was that the

police had taken steps to obtain a warrant, although they had not yet obtained one

at the time of the premature, illegal search.

      We further observed in Souza that we more typically and readily apply the

inevitable discovery exception in situations where some “exception[] to the

warrant requirement would have inevitably led to discovery of the evidence.”      Id.

at 1203 (citing United States v. Haro-Salcedo , 107 F.3d 769, 773-74 (10th Cir.

1997); United States v. Elycio-Montoya    , 70 F.3d 1158, 1165 (10th Cir. 1995);

United States v. Horn , 970 F.2d 728, 732 (10th Cir. 1992);   United States v.

Romero , 692 F.2d 699, 704 (10th Cir. 1982)). Such is the case here.

      In this case, as Moore acknowledges, the police could have made a

warrantless arrest of Moore outside his apartment complex once they had probable

cause to believe he was involved in the robbery. That is precisely what they did.

Indeed, all the evidence in this cases suggests that, although there was confusion

about whether the order to arrest Moore had officially been transmitted to the

officers on the scene at Moore’s apartment, the police were poised and ready to

give that order once Moore got off the phone with Field. Thus, while Moore

invites us to speculate that, for some reason, the police did not feel they had

adequate probable cause to make a warrantless arrest, and would, therefore, not

have arrested Moore the moment he stepped outside his apartment door, the


                                          -14-
record in this case indicates the exact opposite—that the police at headquarters

had probable cause to arrest Moore, that they knew he was in the apartment and

had recently been seen going in and out of it, that they had directed officers at the

scene to, in effect, conduct a de facto stakeout of Moore’s apartment, and that

they were going to arrest him as soon as he emerged from his apartment.

      Accordingly, we affirm the district court’s conclusion that the police,

possessing probable cause to arrest Moore, would inevitably have ordered the

police staking out his apartment to arrest him once he emerged therefrom. Once

arrested, he would most certainly have been taken to police headquarters, booked

and photographed. Thus, the police would have inevitably obtained a booking

photograph of Moore.



                                  CONCLUSION

      For the foregoing reasons, we AFFIRM Moore’s conviction.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




                                         -15-
