                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 15 2018
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No.    16-10489

             Plaintiff-Appellee,                D.C. No.
                                                3:15-cr-00479-CRB-1
 v.

WILLIE CLIFTON,                                 MEMORANDUM*

             Defendant-Appellant.


                   Appeal from the United States District Court
                     for the Northern District of California
                   Charles R. Breyer, District Judge, Presiding

                          Submitted February 12, 2018**
                            San Francisco, California

Before: HAWKINS, BEA, and N.R. SMITH, Circuit Judges.

      Willie Clifton (“Clifton”) appeals his conviction for unlawful possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). On appeal, Clifton argues that the




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
district court erred when it denied his motion to suppress. We have jurisdiction under

28 U.S.C. § 1291 and affirm.1

      Officer Venzon properly searched Clifton incident to his arrest. An arrest

occurs when, considering the “totality of the circumstances,” a reasonable person

would have believed he or she was not free to leave after brief questioning.

Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir. 1996); see United States v.

Guzman–Padilla, 573 F.3d 865, 884 (9th Cir. 2009). After learning that Clifton’s

license was suspended, Officer Venzon ordered Clifton out of the car and handcuffed

him almost immediately, explaining that he was under arrest. Once handcuffed, a

reasonable person in Clifton’s circumstances would have believed “indefinite

custodial detention [was] inevitable.” Guzman–Padilla, 573 F.3d at 884 (citing Kraus

v. Pierce Cty., 793 F.2d 1105, 1109 (9th Cir. 1986)). The search that followed was

therefore lawful. See United States v. Edwards, 415 U.S. 800, 802 (1974).

      That is so even if Clifton was not arrested until after the search. A search

incident to arrest need not precede the arrest; rather, the critical inquiry “is whether

the search is ‘roughly contemporaneous with the arrest.’” United States v. Smith, 389


      1
        The denial of a motion to suppress is reviewed de novo, but the factual
findings underlying the district court’s decision are reviewed for clear error. United
States v. McTiernan, 695 F.3d 882, 887 (9th Cir. 2012) (citing United States v.
Caseres, 533 F.3d 1064, 1067 (9th Cir. 2008)).
                                           2
F.3d 944, 951 (9th Cir. 2004) (quoting United States v. McLaughlin, 170 F.3d 889,

892 (9th Cir. 1999)). Here, the arrest and search were not “so separated in time or by

intervening acts that the latter cannot be said to have been incident to the former.” Id.

(quoting McLaughlin, 170 F.3d at 893). Thus, the motion to suppress was properly

denied.

      AFFIRMED.




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