United States of America v. Michael Alvarez

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL ALVAREZ,
Defendant - Appellant.
No. 07-10296
D.C. No. CR-03-05014-AWI
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief District Judge, Presiding
Argued and Submitted March 8, 2010
San Francisco, California
Before: WALLACE, GRABER, and McKEOWN, Circuit Judges.
Alvarez appeals from the district court’s denial of his motions to suppress
the evidence seized during a search of his person and a search of his vehicle. We
review de novo the district court’s denial of a motion to suppress evidence, but the
factual findings underlying the denial of such a motion are reviewed for clear error.
FILED
MAR 17 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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United States v. Gust, 405 F.3d 797, 799 (9th Cir. 2005). We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
When police officers make a lawful arrest, a search of the person is
reasonable under the Fourth Amendment. United States v. Ruckes, 586 F.3d 713,
717 (9th Cir. 2009). Alvarez argues his arrest was unlawful, and that, therefore,
any search incident to that arrest was also unlawful. It is true that California law
prohibits arresting someone solely for being an unlicensed driver. Bingham v. City
of Manhattan Beach, 341 F.3d 939, 949 (9th Cir. 2003) (citing Cal. Veh. Code
§ 12801.5(e)). Here, however, Alvarez was arrested not for merely driving without
a valid license, but for doing so while on parole for a previous offense. The district
court was correct that it was reasonable for a police officer to conclude that a
condition of parole is to obey all laws, and therefore that Alvarez had violated the
terms of his parole. Thus, Alvarez’s arrest was lawful, and the search of his person
incident to that arrest was also lawful.
As to the search of Alvarez’s vehicle, the district court held that that search
was also incident to his lawful arrest. After the district court’s decision, however,
the Supreme Court ruled in Arizona v. Gant, 129 S. Ct. 1710, 1723 (2009), 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

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search or it is reasonable to believe the vehicle contains evidence of the offense of
arrest.” The United States conceded, both in its briefs and at oral argument in this
case, that the search of Alvarez’s car is not valid under the rule set forth in Gant.
At the time of the search, Alvarez was in the back of a patrol car, and it is doubtful
that the officers had a reasonable belief that the car might contain evidence of the
offense of driving without a license in violation of parole. We hold that the search
of Alvarez’s car was an invalid search incident to arrest.
The district court, however, held in the alternative that Alvarez voluntarily
consented to the search of his vehicle, and that, therefore, the evidence found
during that search was admissible. “An individual may waive his Fourth
Amendment rights by giving voluntary and intelligent consent to a warrantless
search of his person, property, or premises.” United States v. Cormier, 220 F.3d
1103, 1112 (9th Cir. 2000) (internal quotation marks omitted). Whether consent is
valid is a question of fact that depends on the totality of circumstances, and a
district court’s finding of voluntary consent is reviewed for clear error. Id. The
district court found that there were only two officers present at the time, that no
guns had been drawn, and that Alvarez “had initially approached the officers
voluntarily” and “had already volunteered information.” There was conflicting
evidence as to whether guns had been drawn and about the number of officers on

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the scene at the time of consent, but the district court apparently credited the two
officers’ testimony on those points. The district court also found there was no
evidence of other coercion, or evidence that Alvarez’s consent had been hesitant,
particularly given that Alvarez, as a parolee, likely had prior experience with law
enforcement, and was perhaps more aware of his rights and less vulnerable to
intimidation by the officers asking to search his vehicle. See id. at 1113.
“[E]vidence regarding the question of consent must be viewed in the light
most favorable to the fact-finder’s decision.” United States v. Brown, 563 F.3d
410, 414 (9th Cir. 2009) (internal quotation marks omitted). Given all of the
above, we hold that the district court’s finding that Alvarez voluntarily consented
to the search of his vehicle was not “clear error.”
AFFIRMED.

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