United States v. Palmore , 358 F. App'x 403 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4503
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONALD PALMORE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.
(8:07-cr-00056-DKC-1)
Submitted: November 10, 2009 Decided: December 23, 2009
Before WILKINSON, KING, and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Timothy Litka, LAW OFFICE OF TIMOTHY LITKA, LLC,
Washington, D.C., for Appellant. Rod J. Rosenstein, United
States Attorney, Bryan E. Foreman, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald Palmore was convicted, by a jury, of possession
of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g) (2006). The district court sentenced Palmore to
twenty-four months in prison. On appeal, Palmore challenges the
district court’s denial of his motion to suppress and moves this
court to expedite his case. In light of the Supreme Court’s
recent decision in Arizona v. Gant, 129 S. Ct. 1710 (2009),
which addressed the search-incident-to-arrest exception to the
warrant requirement of the Fourth Amendment, we find that the
vehicle search incident to Palmore’s arrest was unreasonable. 1
We accordingly vacate the district court’s judgment and remand
for further proceedings.
In Gant, the Supreme Court rejected the idea that the
Fourth Amendment “allow[s] a vehicle search incident to arrest
of a recent occupant even if there is no possibility the
arrestee could gain access to the vehicle at the time of the
search.” Gant, 129 S. Ct. at 1718. The Court held instead that
“[p]olice 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
1
Gant was decided after Palmore appealed the criminal
judgment. Thus, the district court did not have the benefit of
the Supreme Court’s decision.
2
reasonable to believe the vehicle contains evidence of the
offense of arrest.” Id. at 1723. The Court further explained
that “[w]hen 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.
Palmore was not in reaching distance of the vehicle’s
passenger compartment at the time of the search. Nor did the
officers have reason to believe that the vehicle contained
evidence of the offense of driving on a suspended license, for
which he was arrested. See id. at 1719 (“Gant was arrested for
driving with a suspended license--an offense for which police
could not expect to find evidence in the passenger compartment
of Gant’s car.”). As the Government commendably concedes, the
facts of this case do not justify the warrantless search of the
vehicle incident to his arrest.
Accordingly, we vacate the criminal judgment and
remand for further proceedings. 2 We deny Palmore’s motion to
expedite as moot. We dispense with oral argument because the
2
Palmore raises another issue in this appeal, claiming that
the district court erred by failing to give the jury a curative
instruction after a witness testified that Palmore was a
prohibited person in possession of a firearm. Because we have
concluded that the conviction should be vacated, we decline to
consider this remaining issue.
3
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
VACATED AND REMANDED
4