                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                    PUBLISH                     January 3, 2014
                                                              Elisabeth A. Shumaker
                   UNITED STATES COURT OF APPEALS                 Clerk of Court

                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 12-2127
 v.

 EDWARD CHRISTY,

       Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                   (D.C. No. 1:10-CR-01534-JB-1)


Lee P. McMillian of the Law Offices of Lee McMillian, South Houston, Texas,
for Defendant - Appellant.

Laura Fashing, Assistant United States Attorney (and Kenneth J. Gonzales,
United States Attorney, on the brief), Albuquerque, New Mexico, for Plaintiff -
Appellee.


Before KELLY, HARTZ, and MATHESON, Circuit Judges.


KELLY, Circuit Judge.


      Defendant-Appellant Edward Christy appeals from an order of the district

court granting in part the government’s motion to reconsider and denying Mr.

Christy’s motion to suppress on the basis of the inevitable discovery doctrine.
United States v. Christy, 810 F. Supp.2d 1219 (D.N.M. 2011). The district court

initially granted the motion to suppress. United States v. Christy, 785 F. Supp.2d

1004 (D.N.M. 2011). 1 Exercising jurisdiction under 28 U.S.C. § 1291, we hold

that the district court did not abuse its discretion in granting the motion to

reconsider and correctly applied the inevitable discovery doctrine. We therefore

affirm.



                                     Background

      This case concerns Mr. Christy’s relationship with a sixteen-year-old girl

(“K.Y.”). Mr. Christy met K.Y. on AgeMatch.com, a dating website, Aplt. App.

431, and the two exchanged sexually explicit emails and photographs, id. at

417-18. Believing that her father was abusive, Mr. Christy arranged to pick K.Y.

up from her home in Westminster, California, and bring her to his home in

Albuquerque, which he did. Id. at 431.

      On November 8, 2009, K.Y.’s parents reported her missing. Id. at 417.

K.Y’s father gained access to her email account and found sexually explicit

exchanges with Mr. Christy. Id. at 417-18. FBI Task Force Officers Carvo and

Fletes investigated K.Y.’s disappearance. Id. at 418. Using K.Y.’s telephone

records, they found that she received three calls from Mr. Christy around the time


      1
        The district court subsequently issued a slightly amended order which we
rely upon. Aplt. App. 415.

                                         -2-
of her disappearance and obtained Mr. Christy’s address and other information

from his cellular provider. Id. at 418-19. Using Mr. Christy’s cell phone usage

data, the agents determined that he traveled to California and back to

Albuquerque. Id. at 419-20.

      On November 9, 2009, the officers contacted the Bernalillo County

Sheriff’s Office (“BCSO”) and told them what they had found. Id. at 421. As a

result, BCSO deputies Littlefield and McKinney were dispatched to Mr. Christy’s

residence to conduct a welfare check on K.Y. Id. at 421-22. One of the deputies

walked to the rear of the house and noticed a crack in the blinds covering a

window. Id. at 423. He peered through the window and saw K.Y. wearing a

brassiere and underwear, smiling and holding a rope. Id. at 423-24. Concerned

for K.Y.’s safety, the deputy asked his sergeant for permission to force entry into

the house and for backup. Id. at 424. He looked again through the window and

saw K.Y. no longer wearing a brassiere and bound by the rope, and observed

camera flashes. Id. at 425.

      When backup arrived, the deputies forced entry into the house and arrested

Mr. Christy. Id. at 425-27. They conducted a protective sweep and found

pornographic materials. Id. at 426. Mr. Christy was given Miranda warnings and

told the deputies he had picked K.Y. up from California. Id. at 427. He was

taken to a law enforcement center and interviewed by Detective Proctor

(“detective”). Id. at 428, 430. Mr. Christy told the detective about his

                                        -3-
relationship with K.Y., how he drove her from California to Albuquerque, and

that they had sex. Id. at 431.

      Based in part on the BCSO deputies’ observations at Mr. Christy’s

residence and Mr. Christy’s post-arrest statements, the detective prepared and

obtained warrants to search Mr. Christy’s residence, cell phone, vehicle,

computer, and person. Id. at 433-435. Pursuant to the warrants, BCSO deputies

obtained used condoms, sexual devices, and computer files later determined to

contain child pornography, including pictures of K.Y. Id. at 435-36.

      In May 2010, Mr. Christy was indicted by a federal grand jury. Id. at 436.

He was charged with one count of transportation with intent to engage in criminal

sexual activity, 18 U.S.C. § 2423(a), and three counts of possession of matter

containing visual depictions of minors engaged in sexually explicit conduct, 18

U.S.C. §§ 2252(a)(4)(b), (b)(2), & 2256. App. 18-20. 2 He filed a motion to

suppress all evidence obtained as a result of the warrantless search of his house,

including his statements to the detective and all evidence obtained pursuant to the

search warrants. Id. at 437. The district court found that the deputies violated the

Fourth Amendment when they entered Mr. Christy’s house without a warrant, and

granted the motion to suppress. Christy, 785 F. Supp. 2d at 1045, 1054.

      The government then filed a motion to reconsider, Aplt. App. 495, which


      2
        A grand jury later returned a superseding indictment charging the same
counts. App. 436.

                                        -4-
the court granted to consider (inter alia) whether the illegally seized evidence was

nonetheless admissible under the inevitable discovery doctrine. Christy, 810 F.

Supp. 2d at 1222-23. The court determined that, absent the illegal search, Officer

Carvo would have legally obtained a warrant and discovered the evidence. Id. at

1278-82. Thus, the court denied Mr. Christy’s motion to suppress. Id. at 1282.

      Mr. Christy then entered into a plea agreement to a two-count information

charging him with (1) coercion and enticement of a person to travel in interstate

commerce to engage in sexual activity for which any person could be charged

with a criminal offense, 18 U.S.C. § 2422(a), and (2) possession of matter

containing visual depictions of minors engaged in sexually explicit conduct, 18

U.S.C. §§ 2252(a)(4)(B), (b)(2), & 2256. Pursuant to Fed. R. Crim. P.

11(c)(1)(C), Mr. Christy was sentenced to two concurrent terms of 108 months

and the district court imposed lifetime supervised release. Aplt. App. 1230-1236;

United States v. Christy, 888 F. Supp.2d 1107, 1168 (D.N.M. 2012). 3 Mr. Christy

timely appealed.



                                     Discussion

      Mr. Christy argues that the district court abused its discretion in granting

the government’s motion to reconsider and challenges the court’s application of

      3
         Although Mr. Christy challenged the lifetime sentence of supervised
release in his opening brief, he abandoned that claim in his reply brief. See Aplt.
Rep. Br. 4.

                                        -5-
the inevitable discovery doctrine. We discuss each point in turn.

A.    Motion to Reconsider

      We review a district court’s decision to reconsider a prior ruling for abuse

of discretion. United States v. Randall, 666 F.3d 1238, 1241 (10th Cir. 2011).

Motions to reconsider are proper in criminal cases even though the Federal Rules

of Criminal Procedure do not specifically provide for them. Id. at 1241-42; see

United States v. Healy, 376 U.S. 75, 78 (1964). A district court should have the

opportunity to correct alleged errors in its dispositions. See United States v.

Dieter, 429 U.S. 6, 8 (1976).

      A motion to reconsider may be granted when the court has misapprehended

the facts, a party’s position, or the law. Servants of Paraclete v. Does, 204 F.3d

1005, 1012 (10th Cir. 2000). Specific grounds include: “(1) an intervening

change in the controlling law, (2) new evidence previously unavailable, and (3)

the need to correct clear error or prevent manifest injustice.” Id. A motion to

reconsider should not be used to revisit issues already addressed or advance

arguments that could have been raised earlier. Id.

       Mr. Christy argues that the district court abused its discretion in granting

the motion to reconsider because the government had ample opportunity to brief

and argue its inevitable discovery theories during the initial suppression hearings.

Aplt. Br. 14. The government in fact raised inevitable discovery in its brief in

response to the motion to suppress, Aplt. App. 39, its brief in response to the

                                         -6-
amended motion to suppress, Aplee. Supp. App. 14, 20, 28, and during a hearing

on the suppression motion, Aplt. App. 81. But the district court did not rule on

the inevitable discovery issue in its order granting the suppression motion. See

Christy, 810 F. Supp. 2d at 1246.

      Considering this, the district court acted well within its discretion in

granting the motion to reconsider (at least as to inevitable discovery) in order to

rule on an issue it mistakenly overlooked. The district court was plainly aware of

the appropriate grounds for a motion to reconsider. Id. at 1250. Given its

extensive treatment of inevitable discovery in its order granting reconsideration,

there is little doubt that the court either misapprehended the government’s

original position, or else was in clear error in failing to address it at all. We defer

to the district court’s discretion to correct its mistakes.

B.    Inevitable Discovery

      Subject to a few exceptions, evidence obtained in violation of the Fourth

Amendment will be suppressed under the exclusionary rule; the inevitable

discovery doctrine is one such exception. United States v. Cunningham, 413 F.3d

1199, 1203 (10th Cir. 2005). Under it, illegally obtained evidence may be

admitted if it “ultimately or inevitably would have been discovered by lawful

means.” Nix v. Williams, 467 U.S. 431, 444 (1984). The government bears the

burden of proving by a preponderance of the evidence that the evidence would

have been discovered without the Fourth Amendment violation. Cunningham,

                                          -7-
413 F.3d at 1203.

        Mr. Christy makes three arguments as to why the inevitable discovery

doctrine does not apply: (1) there was no “independent investigation” that would

have lawfully discovered the evidence; (2) the court misapplied the factors set

forth in United States v. Souza, 223 F.3d 1197 (10th Cir. 2000); and (3) the

officers in this case took no preliminary steps to obtain a warrant before

conducting the illegal search.

        We review the district court’s factual determinations for clear error and its

ultimate Fourth Amendment conclusions de novo. Cunningham, 413 F.3d at

1203.

1.      Independent Investigation

        Mr. Christy argues that the district court failed to require an independent

investigation before applying the inevitable discovery doctrine. Aplt. Br. 17-21.

He asserts that our case law requires a second investigation, independent of the

one that resulted in the illegal search, that would have legally discovered the

evidence in question. Id. at 18-20. This case, he continues, involves only one

investigation—the joint investigation of the Westminster police, FBI, and BCSO.

Id. at 20.

        We cannot agree with Mr. Christy’s interpretation of our inevitable

discovery cases. We have said that the doctrine “permits evidence to be admitted

if an independent, lawful police investigation inevitably would have discovered

                                          -8-
it.” Cunningham, 413 F.3d at 1203 (quoting United States v. Owens, 782 F.2d

146, 152 (10th Cir. 1986)) (internal quotation marks omitted). In Owens, we

relied on “the necessity of an independent investigation” in refusing to apply

inevitable discovery to a warrantless search of a closed container in the

defendant’s hotel room. 782 F.2d at 152. While we noted that the illegal search

“tainted the only police investigation that was ongoing,” id., we have since held

that “neither the majority opinion in Nix nor our cases limit the inevitable

discovery exception to lines of investigation that were already underway.” United

States v. Larsen,127 F.3d 984, 987 (10th Cir. 1997).

      In Cunningham and Souza we applied inevitable discovery to situations like

the one here—where there was “one line of investigation that would have led

inevitably to the obtaining of a search warrant by independent lawful means but

was halted prematurely by a search subsequently contended to be illegal.”

Cunningham, 413 F.3d at 1204 n.1. In Cunningham, police searched the

defendant’s home after getting his consent. Id. at 1202. The defendant later

contested the search, claiming his consent was coerced. Id. We held that even if

the search was illegal, the evidence was admissible because the officers “would

have obtained a search warrant” if the search had not occurred. Id. at 1205. In

Souza, police illegally opened a UPS package that contained drugs. 223 F.3d at

1200, 1202. We held the evidence admissible under inevitable discovery because

the officers “would have obtained a warrant” had the illegal search not occurred.

                                        -9-
Id. at 1206. Thus, our case law does not require a second investigation when the

first (and only) investigation would inevitably have discovered the contested

evidence by lawful means.

      This comports with the Supreme Court’s treatment of inevitable discovery.

When the Court approved of the doctrine in Nix, it did not limit its application to

scenarios with a second, independent investigation, even though the facts of that

case involved one. See Nix, 467 U.S. at 434-36. The Court instructed only that

evidence is admissible if it would be discovered “by lawful means” or “without

reference to the police error or misconduct.” Id. at 444, 448. And in Murray v.

United States, the Court applied the related independent source rule to admit

evidence discovered during an illegal search but subsequently seized by the same

officers pursuant to a valid warrant. 487 U.S. 533, 541-44 (1988). The

determinative factor in that case was that the warrant and eventual seizure were

not tainted by the initial illegality—not that the evidence was discovered by a

second, unrelated investigation. See id. at 542.

      Thus, lest there be any doubt, we reaffirm the notion that inevitable

discovery requires only that the lawful means of discovery be “independent of the

constitutional violation,” Larsen, 127 F.3d at 987, and conclude that a second

investigation is not required. In this case, and as discussed more fully below,

Officer Carvo had sufficient probable cause to obtain a warrant based on the

information he had before the BCSO deputies searched Mr. Christy’s residence.

                                        - 10 -
The warrant he would have inevitably obtained would thus have been independent

of the constitutional violation.

2.    The Souza Factors

      Next, Mr. Christy argues that the district court misapplied the factors set

forth in Souza in finding that the evidence would have been inevitably

discovered. Aplt. Br. 21-26. In cases like this one, where the theory of inevitable

discovery is that a warrant would have been obtained but for the illegal search,

the district court must determine “how likely it is that a warrant would have been

issued and that the evidence would have been found pursuant to the warrant.”

Souza, 223 F.3d at 1204. In Souza, we adopted four factors from the Second

Circuit 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 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, 473 n.2 (2d. Cir.

1995) (internal quotation marks and citations omitted)). Factors (1) and (3) are of

particular importance. Id. Ultimately, the court must examine each contingency

that would need to have been resolved in favor of the government and apply the

inevitable discovery doctrine “only when it has a high level of confidence” that

                                        - 11 -
the warrant would have been issued and the evidence obtained. Id. at 1205.

      Mr. Christy challenges the court’s treatment of factors (2) and (4)—the

strength of probable cause and whether the officers “jumped the gun” to sidestep

the warrant requirement. Aplt. Br. 24, 26. Factors (1) and (3) are

undisputed—the government concedes that the officers took no steps to obtain a

warrant before the search, Aplee. Br. 32, and Mr. Christy concedes that a warrant

was ultimately obtained, albeit after the illegal entry, Aplt. Br. 24.

      As to factor (2), the district court concluded that Officer Carvo had strong

probable cause that Mr. Christy committed the California crime of unlawful

sexual intercourse and the federal crime of coercion or enticement. Christy, 810

F. Supp. 2d at 1276-78. The California crime consists of sexual intercourse with

a minor under the age of 18, Cal. Penal Code § 261.5(a), (c), and the federal

crime consists of persuading or enticing someone to cross state lines to engage in

any sexual activity for which any person can be charged with a criminal offense,

18 U.S.C. § 2422(a).

      The district court found that Officer Carvo knew that K.Y. was a minor,

there was a large age difference between her and Mr. Christy, the two exchanged

sexually explicit pictures, and that Mr. Christy traveled across state lines with

K.Y. Christy, 810 F. Supp. 2d at 1277-78. Given those factual findings, it is a

reasonable inference that a sexual relationship existed between Mr. Christy and

K.Y. Officer Carvo also knew that K.Y. was potentially suicidal, had left her

                                         - 12 -
depression medication behind, and ran away from home with Mr. Christy. Aplt.

App. 166. Based on that knowledge, Officer Carvo’s belief that K.Y. was at risk

for sexual victimization and assault was reasonable. Thus, Officer Carvo had

reasonable grounds to believe that Mr. Christy engaged in sexual activity in

violation of California law and coerced or enticed K.Y. to travel across state lines

to engage in criminal sexual activity in violation of federal law. See Maryland v.

Pringle, 540 U.S. 366, 371 (2003). The district court was correct in weighing this

factor in favor of applying inevitable discovery.

      Next, Mr. Christy argues that the deputies “jumped the gun” by forcing

entry into his home due to their lack of confidence about probable cause. Aplt.

Br. 26. Yet as the district court found, no evidence supports the theory that the

deputies forced entry for that reason. Christy, 810 F. Supp. 2d at 1279. Instead,

the deputies forced entry because they believed K.Y. was in danger. Aplt. App.

423-25. Mr. Christy argues that the search was not in fact justified by exigent

circumstances and points to the district court’s conclusion that it was not. Aplt.

Br. 26. But that is beside the point. The record fully supports the reasonableness

of the deputies’ assessment of danger. The district court was correct in weighing

this factor in favor of the government. Thus, the district court did not err in

applying the Souza factors.

3.    Steps to Obtain a Warrant

      Finally, Mr. Christy argues that inevitable discovery is inappropriate

                                        - 13 -
because the officers in this case took no steps to obtain a warrant before the

illegal search. Aplt. Rep. Br. 13. He asserts that evidence of steps to obtain a

warrant—the first Souza factor—is a prerequisite to applying inevitable discovery

rather than a factor for the court to consider. Id. at 13-14. We disagree.

      While we have referred to preliminary steps to obtain a warrant as a

“prerequisite,” Souza, 223 F.3d at 1205, and a “requirement,” Cunningham, 413

F.3d at 1204 n.1, these descriptions are likely dicta. See United States v. Sanders,

43 F. App’x 249, 254 n.2 (10th Cir. 2002) (unpublished). 4 A close reading of

Souza and its underpinnings indicates that an effort to obtain a warrant is but one

factor of the inevitable discovery doctrine in this circuit.

      The ultimate question when applying inevitable discovery to factual

situations like the one here is “how likely it is that a warrant would have been

issued” and the evidence found. Souza, 223 F.3d at 1204. In Souza, we stated

that inevitable discovery does not apply when the government’s only argument is

that it had probable cause at the time of the search, but “may” apply where police

have “taken steps in an attempt to obtain a search warrant.” Id. at 1203. We

relied upon the Fourth Circuit in stating that the government must show that “the

police would have obtained the necessary warrant absent the illegal search,” and

that this “might include proof that . . . the police . . . took steps to obtain a


      4
        We cite this case only for its persuasive value. Fed. R. App. P. 32.1;
10th Cir. R. 32.1

                                          - 14 -
warrant” before the search. Id. at 1203-04 (quoting United States v. Allen, 159

F.3d 832, 841 (4th Cir. 1998)) (emphasis added). We quoted the Seventh Circuit

in stating that inevitable discovery requires “probable cause plus a chain of events

that would have led to a warrant.” Id. at 1204 (quoting United States v. Brown,

64 F.3d 1083, 1085 (7th Cir.1995)).

      Thus, evidence of steps to obtain a warrant is one way the government

might meet its burden of showing that a warrant would have ultimately been

obtained, but not the only way. 5 The district court’s conclusion that Officer

Carvo would have successfully obtained a warrant independent of the illegal

search is supported by the record, even though no steps to obtain a warrant had

been initiated at the time of the search. Officer Carvo had strong probable cause

to suspect Mr. Christy of at least two crimes, and was cross-designated to obtain

      5
         We are mindful of the concern of other courts that applying inevitable
discovery where officers have probable cause but simply choose not to obtain a
warrant would do harm to the Fourth Amendment’s warrant requirement. See,
e.g., United States v. Mejia, 69 F.3d 309, 320 (9th Cir. 1995); United States v.
Johnson, 22 F.3d 674, 683 (6th Cir. 1994). But we reiterate that probable cause
on its own is not enough; inevitable discovery requires that the district court have
a “high level of confidence” that the warrant would have—not could have—been
issued, Souza, 223 F.3d at 1205, and the government bears the burden of proof,
id. at 1203. The district courts thus stand as gatekeeper, preventing officers from
foregoing the warrant process entirely by always relying on inevitable discovery.
And to the extent officers might do that, requiring the government to always show
preliminary steps to obtain a warrant is not the cure. Officers may easily initiate
the warrant process with no intention of seeing it through, knowing they have
satisfied a prerequisite to inevitable discovery, and conduct a search before the
warrant is issued or denied. The better course is to continue to give discretion to
the district courts to consider this a factor of “great importance” in the
inevitability determination. See id. at 1204.

                                       - 15 -
state and federal search warrants. He would have been authorized to obtain a

federal search warrant for the California crime if evidence of it was in New

Mexico, Christy, 810 F. Supp. 2d at 1233; see also 2 LaFave et al., Search &

Seizure: A Treatise on the Fourth Amendment § 3.1(b) n.29 (5th ed.), and the

district court credited testimony that officers had easily obtained similar warrants

in the past, id. at 1281. Thus, Officer Carvo would in fact have obtained a search

warrant, and the evidence in question would have been discovered legally, had the

illegal search not discovered it first.

      AFFIRMED.




                                          - 16 -
