Appeal from the United States District Court for the Western District of Missouri.
The opinion of the court was delivered by: Gruender, Circuit Judge.
Submitted: September 22, 2009
Before MELLOY, BEAM and GRUENDER, Circuit Judges.
Scott Goodwin-Bey entered a conditional guilty plea to the charge of being a felon in possession of a firearm, reserving the right to appeal the denial of his motion to suppress. We affirm.
The facts of this case are not in dispute. On April 3, 2007, Officer Daniel Rankey stopped a white Mitsubishi Galant, which Goodwin-Bey was driving, for running a red light. While Officer Rankey attempted to identify the vehicle's four occupants, he received a report of an earlier incident in which occupants of a white Mitsubishi Galant had displayed a firearm. A short time later, Officer Mark Foos arrived to further investigate that incident.
During the course of the stop, Officer Rankey learned of an outstanding warrant for a traffic violation issued for the front passenger, Lawrence Freeman. Officer Greg Sly then arrested and handcuffed Freeman. The officers conducted protective pat-downs of the vehicle's other three occupants, including Goodwin-Bey.
After Freeman's arrest, Officer Rankey searched the vehicle. Finding the glove box locked, Officer Rankey took Goodwin-Bey's keys to continue the search, over Goodwin-Bey's objection. Inside the glove box, Officer Rankey found a Derringer handgun, which he seized. Although Goodwin-Bey admitted that he was a convicted felon, Officer Rankey did not arrest Goodwin-Bey at the time, instead advising Goodwin-Bey that a detective would contact him for a follow-up investigation. Freeman was transported to the county jail, and Officer Rankey allowed Goodwin-Bey and the other two passengers to leave.
A grand jury later indicted Goodwin-Bey on the charge of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g). Goodwin-Bey moved to suppress the gun, arguing that Officer Rankey's search of the vehicle violated the Fourth Amendment. The magistrate judge*fn1 issued a report and recommendation proposing that Goodwin-Bey's motion be denied, which the district court*fn2 adopted in full. The district court then accepted Goodwin-Bey's conditional guilty plea and sentenced him to 70 months' imprisonment. Goodwin-Bey now appeals the denial of his motion to suppress, arguing first that the search incident to Freeman's arrest was impermissible under Arizona v. Gant, 556 U.S. ---, 129 S.Ct. 1710 (2009), because the arrest scene was secure. Second, he argues that the district court erred in finding probable cause sufficient to justify the search.
"We examine the factual findings underlying the district court's denial of the motion to suppress for clear error and review de novo the ultimate question of whether the Fourth Amendment has been violated." United States v. Williams, 577 F.3d 878, 880 (8th Cir. 2009) (quoting United States v. Walsh, 299 F.3d 729, 730 (8th Cir. 2002)). "[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions." Horton v. California, 496 U.S. 128, 133 n.4 (1990) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). Two exceptions are relevant to this case: the search incident to arrest exception described inChimel v. California, 395 U.S. 752, 763 (1969), and the reasonable suspicion of dangerousness exception articulated in Terry v. Ohio, 392 U.S. 1 (1968). These exceptions apply to searches of vehicles under New York v. Belton, 453 U.S. 454 (1981), and Michigan v. Long, 463 U.S. 1032 (1983), respectively.
After lawfully arresting a suspect, officers may reasonably search "the area into which an arrestee might reach in order to grab a weapon or evidentiary items." Chimel, 395 U.S. at 763. When the arrestee recently occupied an automobile, the reaching area includes "the passenger compartment of that automobile." Belton, 453 U.S. at 460. The "reaching area" rule serves the dual purposes of "protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy." Gant, 129 S.Ct. at 1716.In Gant, the Supreme Court recently held that where those two concerns are not present, the Fourth Amendment does not permit a vehicle search incident to an arrest. Id. Where those concerns are present, however, Belton continues to permit the search as an exception to the warrant requirement. Id. at 1716-17.The Government argues that because Goodwin-Bey and the other passengers were not secured, unlike the bystanders in Gant, officer safety concerns justified the search. Goodwin-Bey argues that the scene was in fact secure, since the other occupants had been patted down and did not outnumber the officers on the scene.
The facts here are similar to those of our recent decision in United States v. Davis, 569 F.3d 813 (8th Cir. 2009). As here, Davis involved three unsecured passengers and one vehicle occupant who had been arrested. The court found that these unsecured passengers and the presence of alcohol and marijuana at the scene gave rise to "textbook examples of 'the safety and evidentiary justifications underlying Chimel's reaching-distance rule.'" Id. at 817 (quoting Gant, 129 S.Ct. at 1714). We held that the presence of Chimel's concerns distinguished Gant, and that the search incident to arrest exception thus justified the search. Id. Those same safety concerns were present to an even greater degree here.*fn3 Officer Rankey received a report that occupants of a vehicle of the same make, model and color as the vehicle he stopped had displayed a firearm during an earlier incident.*fn4 While the Government does not argue that the officers were concerned about evidence destruction or concealment,*fn5 our holding in Davis dictates that the earlier incident report, along with the number of the vehicle's occupants, sufficiently implicated officer safety concerns to justify a search incident to arrest under Belton.
Even if the search incident to arrest exception did not apply, these same concerns for officer safety would justify the search under Michigan v. Long's reasonable suspicion of dangerousness exception. "[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief . . . that the suspect is dangerous and the suspect may gain immediate control of weapons." Michigan v. Long, 463 U.S. 1032, 1049 (1983). In ...