                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT                         FILED
                                                                           OCT 07 2011
UNITED STATES OF AMERICA,                      No. 10-30287
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS

              Plaintiff - Appellee,            D.C. No. 3:09-cr-05668-RBL-1
                                               Western District of Washington,
  v.                                           Tacoma

BERNARD GLENN,
                                               ORDER
              Defendant - Appellant.


Before: NOONAN and M. SMITH, Circuit Judges, and FOGEL, District Judge.*

       The memorandum disposition filed on August 4, 2011 is hereby withdrawn.

       The petition for rehearing is DENIED. See Fed. R. App. P. 40.




       *
            The Honorable Jeremy D. Fogel, District Judge for the U.S. District
Court for Northern California, San Jose, sitting by designation.
                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 07 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-30287

              Plaintiff - Appellee,              D.C. No. 3:09-cr-05668-RBL-1

  v.
                                                 MEMORANDUM*
BERNARD GLENN,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                            Submitted August 1, 2011**
                               Seattle, Washington

Before: NOONAN and M. SMITH, Circuit Judges, and FOGEL, District Judge.***

       Bernard Glenn (“Glenn”) appeals the district court’s denial of his motion to

suppress a firearm found on his person. Following the denial of his suppression

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Jeremy D. Fogel, District Judge for the U.S. District
Court for Northern California, sitting by designation.
motion, Glenn was convicted of being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C. §

1291 and we affirm.

      We review de novo the denial of a motion to suppress, while reviewing for

clear error the underlying factual findings. United States v. Davis, 530 F.3d 1069,

1077 (9th Cir. 2008).

      Following an evidentiary hearing, the district court articulated several bases

for finding that the government had met its burden of showing the gun should not

be suppressed. Each of those grounds was independently sufficient for the police

to search Glenn, and for the court to deny the suppression motion.

      In his opening brief, Glenn failed to address several of those grounds, in

particular the district court’s finding that he was subject to a valid probationary

search. “Generally, an issue is waived when the appellant does not specifically and

distinctly argue the issue in his or her opening brief.” United States v. Brooks, 610

F.3d 1186, 1202 (9th Cir. 2010) (internal quotation marks and citation omitted).

      Even assuming Glenn had properly raised the probation search issue, the

district court was correct. Probation searches satisfy the demands of the Fourth

Amendment when they are conducted pursuant to a state law that itself satisfies the

Fourth Amendment. Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). The


                                           2
Washington statute in effect at the time–since revised in a manner not relevant

here–required Glenn to submit to a search of his person when there was reasonable

cause to believe he had violated a requirement of his probation. See Wash. Rev.

Code § 9.94A.631 (2003). This court has confirmed that the Washington statute

allowing probation searches based on reasonable cause satisfies the reasonableness

standard of the Fourth Amendment. United States v. Conway, 122 F.3d 841, 842

(9th Cir. 1997).

      The police officer who searched Glenn knew Glenn was under community

custody, or probation. Moreover, the officer had reasonable cause to believe Glenn

was in violation of several of the conditions of community custody, including (1)

constructive possession of a controlled substance, (2) association with drug sellers,

and (3) consumption of alcohol. The officer’s search was reasonable under the

Fourth Amendment. The district court did not err in denying Glenn’s motion to

suppress the firearm.

      AFFIRMED.




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