FILED
NOT FOR PUBLICATION JAN 03 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10480
Plaintiff-Appellee, D. C. No. 2:09-cr-00337-WBS-1
v.
MEMORANDUM*
SHANNONJON BENTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted December 8, 2010
San Francisco, California
Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.
A search of defendant Shannonjon Benton’s (“Benton”) purse resulted in her
conviction under 38 C.F.R. § 1.218(b)(39) for possession of a knife exceeding three
inches on Veteran Administration (“VA”) property, which she now appeals. The
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
magistrate judge determined that the officers lacked probable cause to arrest Benton
for drug possession, a determination that has not been appealed by the government.
The magistrate nevertheless upheld the search on the theory that the officers could have
arrested Benton for bringing a dog onto VA property, in violation of 38 C.F.R.
§ 1.218(a)(11). Because Benton was not under arrest for the dog offense, and nothing
in the record supports a reasonable suspicion that Benton was armed or dangerous, we
reverse and remand with instructions to enter an order granting Benton’s motion to
suppress.
The district court upheld the search as per se reasonable under the exception to
the warrant requirement permitting officers to conduct a contemporaneous “full field
search” incident to a lawful custodial arrest. See United States v. Robinson, 414 U.S.
218, 224, 235 (1973); Chimel v. California, 395 U.S. 752, 763 (1969). However, as
a threshold issue, we must “determine . . . whether appellant[] [was] subjected to
treatment that rendered [her] in custody at the time of the search.” United States v.
Mota, 982 F.2d 1384, 1386 (9th Cir. 1993) (internal quotation marks and citations
omitted, emphasis added). At the time of the search, the officers had already declined
to arrest Benton for the dog offense and she had been allowed to walk into the hospital
by herself to retrieve her prescription. “It is the fact of the lawful arrest which
establishes the authority to search.” Id. (quoting Robinson, 414 U.S. at 235). Here,
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there was no arrest for the dog offense at the time of the search and thus there could be
no search incident to arrest.
REVERSED and REMANDED for entry of an order granting the motion to
suppress.
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