                                                                              FILED
                            NOT FOR PUBLICATION                               MAR 17 2010

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 07-10296

              Plaintiff - Appellee,              D.C. No. CR-03-05014-AWI

  v.
                                                 MEMORANDUM *
MICHAEL ALVAREZ,

              Defendant - Appellant.


                  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.



        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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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