United States of America v. Benjamin Grote

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BENJAMIN GROTE,
Defendant - Appellant.
No. 10-30001
D.C. No. 2:08-cr-06057-LRS-1
Eastern District of Washington,
Spokane
ORDER
Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.
The panel has unanimously voted to deny the petition for panel rehearing.
Judges McKeown and Bea have voted to deny the suggestion for rehearing en
banc, and Judge Hawkins so recommends.
The full court has been advised of the suggestion for rehearing en banc and
no judge has requested a vote on whether to rehear the matter en banc. Fed. R.
App. P. 35(b).
The petition for panel rehearing and the suggestion for rehearing en banc are
denied. No further petitions shall be entertained.
FILED
JAN 10 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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* 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NOT FOR PUBLICATION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.
BENJAMIN GROTE,
Defendant - Appellant.
No. 10-30001
D.C. No. 2:08-cr-06057-LRS-1
AMENDED
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, Chief District Judge, Presiding
Argued and Submitted August 31, 2010
Seattle, Washington
Before: HAWKINS, McKEOWN and BEA, Circuit Judges.
Benjamin Grote (“Grote”) appeals his conviction for possession of an
unregistered firearm in violation of 26 U.S.C. § 5861(d). Grote contends that the
district court erred when it denied his Fourth Amendment motion to suppress
FILED
JAN 10 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1 Because the parties are familiar with the facts of the case, we will repeat
them here only to the extent necessary to explain our decision.
2
evidence seized from his truck and mobile home. We have jurisdiction under 28
U.S.C. § 1291. We find no merit in Grote’s contentions, and affirm.1
I. The Search of Grote’s Vehicle
The officers’ search of Grote’s vehicle was permissible as a search incident
to arrest under Arizona v. Gant, 129 S. Ct. 1710, 1719 (2009), because it was
“‘reasonable to believe evidence relevant to the crime of arrest might be found in
the vehicle.’” Id. (quoting Thornton v. United States, 541 U.S. 615, 632 (2004)
(Scalia, J., concurring)). It was reasonable to believe that the car might contain one
or more bottles of open liquor or drugs. Because officers had reasonable belief that
the car contained evidence relevant to a DUI, they could legally search the entire
passenger compartment under Gant. See id. There was no need for officers to limit
their search to the brown paper bag. (“[t]he offense of arrest will supply a basis for
searching the passenger compartment of an arrestee’s vehicle and any containers
therein.”) (emphasis added).
II. The Search of Grote’s Mobile Home
Grote contends his consent to search the trailer in which he lived was tainted
by officers’ exclusion of Grote from the trailer. Under the balancing test in Illnois

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3
v. McArthur, 531 U.S. 326, 331-32 (2001), the officers’ warrantless seizure of
Grote’s trailer was reasonable. Because the officers found a .223 caliber
magazine—but no .223 rifle—in Grote’s truck the day before, there was probable
cause to believe Grote’s trailer contained an illegal firearm, and thus, evidence of a
crime or contraband. Excluding Grote from the trailer was less intrusive than
searching the trailer without a warrant. Grote was excluded from the trailer for
only ten minutes before he decided to “get this over with” and consented to a
search. And during Grote’s short exclusion from his trailer, a police officer was
diligently working on obtaining a warrant. Because the warrantless seizure of
Grote’s residence was reasonable, Grote’s consent to the search was also valid.
AFFIRMED.

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