United States v. Jose Avendano , 373 F. App'x 683 ( 2010 )

FILED
NOT FOR PUBLICATION APR 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50505
Plaintiff - Appellee, D.C. No. 2:08-cr-00424-ODW-1
v.
MEMORANDUM *
JOSE MANUEL AVENDANO, AKA
Manuel Avendano, AKA Jose Avendano,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted March 1, 2010
Pasadena, California
Before: RYMER and WARDLAW, Circuit Judges, and KENNELLY, ** District
Judge.
Jose Manuel Avendano entered a conditional guilty plea to a one-count
indictment charging possession with intent to distribute cocaine, in violation of 21
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
U.S.C. § 841 (a) and (b), following the denial of his motion to suppress evidence
found during a vehicle search upon his arrest. We have jurisdiction under 28
U.S.C. § 1291, and review the lawfulness of a search and the denial of a motion to
suppress de novo. United States v. Ruckes, 586 F.3d 713, 716 (9th Cir. 2009). We
reverse.
Police officers stopped Avendano after they saw him park and exit a vehicle
that was missing its front license plate. After Avendano failed to produce
identification, an officer discovered an outstanding warrant for his arrest for
driving on a suspended license. An officer then arrested Avendano and placed him
in the back of a patrol car, stationed roughly thirty yards away from his vehicle.
Another officer searched Avendano’s vehicle and discovered four large bricks of
cocaine. The district court correctly applied then controlling law, and denied
Avendano’s motion to suppress on search incident to arrest grounds. See Thornton
v. United States, 541 U.S. 615, 623 (2004); New York v. Belton, 453 U.S. 454, 462
(1981). However, while this case was pending on appeal, the Supreme Court
decided Arizona v. Gant, 129 S. Ct. 1710 (2009), which held 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
reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at
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1723. We conclude, as the government concedes, that Gant requires us to reverse
the district court’s denial of the motion to suppress on this basis.
The government argues that we should affirm the district court because the
search was conducted in good faith reliance on then existing law. However, we
cannot affirm under the good faith exception because we must retroactively apply
Supreme Court decisions “‘to all convictions that were not yet final at the time the
decision was rendered.’” United States v. Gonzalez, 578 F.3d 1130, 1132 (9th Cir.
2009) (quoting United States v. Johnson, 457 U.S. 537, 562 (1982)). Therefore,
the good faith exception is an inappropriate basis upon which to affirm the district
court.
As an alternative argument in opposition to the motion to suppress, the
government fully briefed and argued that the search was lawful under the
inevitable discovery doctrine because police officers could have lawfully
impounded the vehicle and would then have discovered the cocaine during an
ensuing inventory search. We have “emphasiz[ed] . . . that the inevitable discovery
doctrine will not always save a search that has been invalidated under Gant. The
government is still required to prove, by a preponderance of the evidence, that
there was a lawful alternative justification for discovering the evidence . . . .”
Ruckes, 586 F.3d at 719. To meet that burden in the context of an inventory
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search, the government must establish: (1) lawful impoundment of the vehicle; (2)
standardized local inventory search procedure; and (3) compliance with that
procedure. See South Dakota v. Opperman, 428 U.S. 364, 368-69, 375-76 (1976);
United States v. Bowhay, 992 F.2d 229, 230 (9th Cir. 1993); United States v.
Wanless, 882 F.2d 1459, 1463 (9th Cir. 1989). The government concedes that it
failed to meet its burden of proving a standardized local procedure and compliance
with that procedure. Because of the government’s failure of proof, we cannot
affirm the district court on the alternative ground of inevitable discovery. See
Singleton v. Wulff, 428 U.S. 106, 120 (1976). Therefore, because Avendano’s
guilty plea was explicitly conditioned upon the right to seek review of the adverse
determination of his motion to suppress evidence, and because we must reverse
that decision, we vacate and remand to the district court with instructions that
Avendano be allowed to withdraw his guilty plea and for further proceedings
consistent with this disposition.
REVERSED; VACATED; and REMANDED.
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