NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 29 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 07-30493
Plaintiff - Appellee, D.C. No. CR-07-00028-RHW
v.
MEMORANDUM *
DEAN RUSSELL SHELTON,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 07-30494
Plaintiff - Appellant, D.C. No. CR-07-00028-RHW
v.
DEAN RUSSELL SHELTON,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, District Judge, Presiding
Argued and Submitted November 18, 2008
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: KOZINSKI, Chief Judge, B. FLETCHER and RAWLINSON, Circuit
Judges.
Defendant Dean Russell Shelton appeals his conviction for possession of a
firearm and ammunition by a prohibited person in violation of 18 U.S.C. §
922(g)(1). The Government cross-appeals Shelton’s sentence. We have
jurisdiction under 28 U.S.C. § 1291.
Shelton challenges his conviction on two grounds: 1) his motion to suppress
filed below was denied in error and 2) there was insufficient evidence presented at
trial to justify his conviction. We review a district court’s determination of a
motion to suppress as to issues of law de novo and as to issues of fact for clear
error. United States v. Jensen, 425 F.3d 698, 704 (9th Cir. 2005). We hold that the
district court committed an error of law in denying Shelton’s motion to suppress,
thereby requiring reversal of his conviction. As we hold that this error requires
reversal of his conviction, we do not reach Shelton’s insufficient evidence ground
for reversal and deny the Government’s cross appeal as moot.
On January 6, 2007, the police found a firearm in a vehicle registered to and
occupied by Shelton during a warrantless search. The search of Shelton’s vehicle
followed his and his co-occupant’s arrest and removal from the vehicle for refusal
to cooperate and for an outstanding arrest warrant, respectively. The police found
a handgun behind the driver-side inner door panel. Shelton filed a motion to
suppress, asserting in part that neither the initial stop of the vehicle nor the
subsequent search were justified. The district court denied the motion in pertinent
part. The district court found the search proper under the United States’s Supreme
Court’s ruling in New York v. Belton, 453 U.S. 454, 460 (1981). At that time, we
read Belton as permitting a warrantless vehicle search incident to the arrest of an
occupant of the vehicle. See United States v. Weaver, 433 F.3d 1104, 1106 (9th
Cir. 2006) (“Applying the Belton rule, we have held that a warrantless automobile
search will be valid if it is ‘roughly contemporaneous with the arrest.’” (quoting
United States v. Smith, 389 F.3d 944, 951 (9th Cir. 2004))).
We stayed the current appeal pending the Supreme Court’s decision in
Arizona v. Gant, 129 S. Ct. 1710 (2009), reviewing the Arizona Supreme Court’s
holding that the broad reading of Belton taken by our and other courts was in error.
The Court affirmed the Arizona Supreme Court and announced as the rule
applicable to vehicle searches incident to arrest:
Police may search a vehicle incident to a recent occupant’s arrest only
if the arrestee is within reaching distance of the passenger
compartment at the time of the search or it is reasonable to believe the
vehicle contains evidence of the offense of arrest. When these
justifications are absent, a search of an arrestee’s vehicle will be
unreasonable unless police obtain a warrant or show that another
exception to the warrant requirement applies.
Id. at 1723-24.
The Government concedes that, applying the rule stated in Gant, the search
of Shelton’s vehicle was improper because Shelton was secured at the time of the
search. The Government’s sole argument against suppression of the fruits of the
search and reversal of Shelton’s conviction is its assertion that the search was in
good faith under the then-prevailing interpretation of Belton and that, therefore, the
exclusionary rule should not be applied. This argument was rejected in our recent
opinion in United States v. Gonzalez, 578 F.3d 1130, 1132-33 (9th Cir. 2009),
reh’g en banc denied, __ F.3d __, 2010 WL 917204 (9th Cir. Mar. 16, 2010). We
therefore hold that evidence derived from the search at issue must be suppressed
and reverse Shelton’s conviction.
REVERSED AND REMANDED.