PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-5269
CLINTON LEE RUMLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(4:08-cr-00005-jlk-1)
Argued: October 29, 2009
Decided: December 7, 2009
Before MOTZ and KING, Circuit Judges, and
Anthony J. TRENGA, United States District Judge for the
Eastern District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Motz wrote the opin-
ion, in which Judge King and Judge Trenga joined.
COUNSEL
ARGUED: Allegra Mathilde Catha Black, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for
Appellant. Jean Barrett Hudson, OFFICE OF THE UNITED
2 UNITED STATES v. RUMLEY
STATES ATTORNEY, Charlottesville, Virginia, for Appel-
lee. ON BRIEF: Larry W. Shelton, Federal Public Defender,
Christine Madeleine Lee, Research and Writing Attorney,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roa-
noke, Virginia, for Appellant. Julia C. Dudley, United States
Attorney, R. Andrew Bassford, Assistant United States Attor-
ney, OFFICE OF THE UNITED STATES ATTORNEY,
Roanoke, Virginia, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
A jury found Clinton Lee Rumley guilty of possession of
a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)
(2006). On appeal, Rumley challenges the court’s denial of
his motion to suppress a firearm the police seized from his
vehicle during a traffic stop. We affirm.
I.
On December 12, 2007, Deputy Michael Wagner initiated
a traffic stop of a Chevrolet pickup truck owned and driven
by Rumley. Deputy Wagner believed that the truck lacked
working taillights, in violation of Virginia law. The deputy
approached the truck and asked Rumley for his license and
registration; Rumley responded that his license was sus-
pended. After learning that Rumley had two prior convictions
for driving with a suspended license, Deputy Wagner arrested
Rumley, handcuffed him, and placed him in the backseat of
the deputy’s patrol car.
Deputy Wagner then returned to the passenger side of
Rumley’s truck and requested that the front seat passenger,
Fletcher Ross, step out of the truck. At that time, Deputy
Wagner intended to search the truck incident to Rumley’s
UNITED STATES v. RUMLEY 3
arrest. When Ross moved his right leg to step out, Deputy
Wagner noticed a silver pistol lying on the floorboard in front
of the passenger-side seat.
After conducting a pat-down search of Ross and securing
him in the backseat of a second patrol car, Deputy Wagner
seized the pistol from Rumley’s truck. The deputy then
returned to his own patrol car, read Rumley his Miranda
rights, and questioned him about the pistol. Rumley admitted
that the gun was his and that he had placed it on the floor-
board when Deputy Wagner stopped him. The record suggests
that, at some point after seizing the pistol, Deputy Wagner
searched Rumley’s truck.
The Government charged Rumley with possession of a fire-
arm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e). In the district court, Rumley moved
to suppress the pistol on the ground that Deputy Wagner vio-
lated the Fourth Amendment by stopping Rumley’s truck.
Specifically, Rumley contended that Deputy Wagner lacked a
reasonable, articulable suspicion that Rumley had violated the
Virginia taillight statute, which requires that every motor
vehicle "carry at the rear two red lights plainly visible in clear
weather from a distance of 500 feet to the rear of such vehi-
cle." Va. Code Ann. § 46.2-1013 (2009). The district court
found that any mistake that Deputy Wagner made in assessing
whether Rumley’s taillights were visible was an "honest" one,
and denied Rumley’s motion to suppress. Rumley appealed.
II.
On appeal, Rumley no longer challenges the constitutional-
ity of the stop of his vehicle. Rather, for the first time, Rum-
ley challenges the constitutionality of Deputy Wagner’s
asserted search of the truck and ultimate seizure of the pistol.
The Fourth Amendment protects "[t]he right of the people
to be secure in their persons, houses, papers, and effects,
4 UNITED STATES v. RUMLEY
against unreasonable searches and seizures." U.S. Const.
amend. IV. This guarantee contemplates distinct protections
against unreasonable searches and unreasonable seizures. See
Horton v. California, 496 U.S. 128, 133 (1990) ("A search
compromises the individual interest in privacy; a seizure
deprives the individual of dominion over his or her person or
property.").
The "plain-view" exception to the requirement that police
obtain a warrant before seizing property "does not involve an
invasion of privacy and, consequently, does not constitute a
search implicating the Fourth Amendment." United States v.
Jackson, 131 F.3d 1105, 1108 (4th Cir. 1997); see also Hor-
ton, 496 U.S. at 133-34. Pursuant to this plain-view doctrine,
an officer may, without a warrant, seize "incriminating evi-
dence when (1) the officer is lawfully in a place from which
the object may be plainly viewed; (2) the officer has a lawful
right of access to the object itself; and (3) the object’s incrimi-
nating character is immediately apparent." Jackson, 131 F.3d
at 1109 (citing Horton, 496 U.S. at 136-37).
Rumley contends that the plain-view doctrine does not
apply in his case because Deputy Wagner, by approaching the
truck with intent to search it and requesting that Ross exit the
vehicle, engaged in the "first step" of an assertedly unconsti-
tutional search that led to his spotting the pistol. Rumley
relies on the Supreme Court’s recent holding in Arizona v.
Gant, 129 S. Ct. 1710 (2009), which establishes that a search
of a vehicle incident to a recent occupant’s arrest is justified
"only when the arrestee is unsecured and within reaching dis-
tance of the passenger compartment at the time of the search"
or when "it is reasonable to believe evidence relevant to the
crime of arrest might be found in the vehicle." Id. at 1719
(internal quotation marks omitted). Rumley maintains that
because Deputy Wagner arrested him for a minor offense and
at all relevant times had him handcuffed in the back of a
patrol car, the deputy had no justification under Gant for any
search of, or seizure from, Rumley’s truck.
UNITED STATES v. RUMLEY 5
For the reasons that follow, we hold that Deputy Wagner
lawfully seized Rumley’s pistol when it came into plain view
before any search of Rumley’s vehicle, and so Gant does not
apply to the present facts. Accordingly, the district court did
not commit plain error, or any error at all, in refusing to sup-
press the pistol.1
III.
Deputy Wagner discovered Rumley’s pistol while standing
beside the truck after asking Ross to step out of it. Rumley
argues that the deputy’s request that Ross leave the truck con-
stituted the first step of an impermissible search. Rumley
maintains that this "search," not the pistol’s presence in plain
view, occasioned the deputy’s seizure of the pistol. This argu-
ment fails.
Long before its holding in Gant or the events giving rise to
this appeal, the Supreme Court held that an officer conducting
a lawful traffic stop may, as a safety measure, order any pas-
senger to exit the vehicle as a matter of course. Maryland v.
Wilson, 519 U.S. 408, 414-15 (1997); see also United States
1
Because Rumley did not challenge the constitutionality of Deputy
Wagner’s asserted search in the district court, we review only for plain
error. See Fed. R. Crim. P. 52(b). Under plain error analysis, we must first
identify an error. See United States v. Carter, 300 F.3d 415, 429 (4th Cir.
2002) (citing United States v. Olano, 507 U.S. 725, 732 (1993)). To war-
rant reversal, such error must be plain; must affect substantial rights; and
must seriously affect the fairness, integrity, or public reputation of judicial
proceedings. Id. We apply plain error review even though the Supreme
Court had not yet decided Gant at the time of Rumley’s suppression hear-
ing. See United States v. David, 83 F.3d 638, 640-41 (4th Cir. 1996). We
note, moreover, that our plain-error review works no harshness here
because the Supreme Court granted certiorari in Gant on February 25,
2008, more than six months prior to Rumley’s September 5, 2008 sup-
pression hearing. See Arizona v. Gant, 128 S. Ct. 1443 (2008). This cer-
tainly put interested persons on notice that the Court would soon consider
the confines of a lawful search of an automobile incident to arrest. See
also United States v. Thornton, 541 U.S. 615, 624 n.4, 625-32 (2004).
6 UNITED STATES v. RUMLEY
v. Sakyi, 160 F.3d 164, 168 (4th Cir. 1998). Nothing in Gant,
which limits permissible searches incident to arrest, under-
mines the bright-line rule established in Wilson. Thus, Deputy
Wagner acted lawfully in requesting that Ross step out of the
truck.
Moreover, Deputy Wagner’s intent to search the truck does
not transform his lawful request of Ross into the "first step"
of an improper search. Rather, Deputy Wagner’s request was
a "discrete" act that brought the pistol into plain view. Cf.
United States v. Moses, 540 F.3d 263, 272 (4th Cir. 2008)
(concluding that separate acts of lawfully inserting a key in a
lock and unlawfully entering a house without a warrant, while
part of a "continuous activity," constituted discrete acts yield-
ing discrete information, "because the use of the key in the
lock need not have led to entry of the residence at all").
Rumley makes no other argument as to why the plain-view
doctrine does not apply here, nor could he. Deputy Wagner
required no further inspection of the truck and its contents to
observe the previously concealed pistol, which the deputy
immediately recognized as potential evidence of a crime. See
Texas v. Brown, 460 U.S. 730, 740 (1983) (upholding a police
officer’s right to "peer into the interior of [an] automobile");
Va. Code Ann. § 18.2-308 (2009) (outlawing the concealed
carrying of weapons about one’s person, subject to certain
exceptions not applicable here).2
2
Rumley does challenge Deputy Wagner’s authority to order Ross out
of the truck given the deputy’s lack of particularized safety concerns at the
scene. Notwithstanding the bright-line rule of Wilson, Rumley cannot rely
on the Fourth Amendment rights of his passenger, Ross; such rights are
personal in nature and "may not be vicariously asserted." Rakas v. Illinois,
439 U.S. 128, 133-34 (1978) (internal quotation marks omitted); see also
United States v. Taylor, 857 F.2d 210, 214 (4th Cir. 1988). Rumley offers
no rationale for how Deputy Wagner’s order that Ross exit the truck
intruded on Rumley’s Fourth Amendment rights.
UNITED STATES v. RUMLEY 7
IV.
In summary, Deputy Wagner lawfully seized the pistol
when it came into plain view. Therefore, we reject Rumley’s
challenge to the district court’s refusal to suppress the pistol.
The judgment of the district court is
AFFIRMED.