                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 10-1052
                                    ____________

                            UNITED STATES OF AMERICA

                                           v.

                              TIMOTHY S. PATTERSON,

                                                  Appellant
                                    ____________

                   On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                (D.C. No. 08-cr-00383)
                   District Judge: Honorable Christopher C. Conner
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 14, 2010

           Before: RENDELL, JORDAN, and HARDIMAN, Circuit Judges.

                              (Filed: December 16, 2010)
                                     ____________

                             OPINION OF THE COURT
                                  ____________

HARDIMAN, Circuit Judge.

      Timothy S. Patterson appeals the District Court’s denial of his motion to suppress

evidence. We will affirm.
                                              I

       Because we write for the parties, we recount only the essential facts. We accept

the facts as found by the District Court in toto because we find none of them “clearly

erroneous.”

       In May 2006, while in state prison on felony drug charges, Patterson was

sentenced for different felonies committed while he was on parole in 2005. The Dauphin

County Court of Common Pleas sentenced Patterson to thirty-six months intermediate

punishment with eleven and a half months in a Dauphin County work release center to be

served after his release from state prison. In April 2008, Patterson was released to the

custody of the County with conditions of supervision that included electronic monitoring

and consent to random searches of his person, property, and residence. He was also

prohibited from “possess[ing], us[ing], or hav[ing] available to [his] control . . . any

contraband such as: stolen property, drugs and drug paraphernalia, [or] firearms” or

“possessing or having available to [his] control . . . [o]ver $50.00 cash without a receipt.”

App. at 50, 55.

       Within months of his release, Patterson removed his electronic monitoring

bracelet, and a warrant was issued for his arrest. On October 15, 2008, Probation Officers

Tom Walton and Justin Anderson went to the Presidential Apartments in Swatara

Township where they located a gray Cadillac matching the description of a vehicle

allegedly used by Patterson. After surveilling the car for approximately thirty minutes

                                              2
without observing anything of interest, Walton and Anderson left the scene. They

returned several hours later to continue their surveillance, and after approximately forty-

five minutes, they observed a man they believed to be Patterson approach the car. The

man placed a small child in the car, entered the vehicle, and started the engine. Once the

man was inside the car, the officers approached, visually confirmed that he was Patterson,

and ordered him to turn off and exit the vehicle.

       Patterson complied with the order to remove the keys from the ignition, but he then

took hold of the child and refused to exit the car. Walton opened the driver’s side door,

grabbed Patterson’s arm, and removed him from the vehicle. Anderson took control of

the child, and Walton handcuffed Patterson. A search of Patterson’s person revealed that

he was in possession of a small quantity of marijuana and $480 in cash.

       While the officers were in the process of arresting Patterson, two women

approached and Patterson repeatedly instructed them to get in the car and drive away.

The women did not comply, and the car remained in the parking lot with the driver’s side

door open. Anderson then informed Walton that he could see a firearm in the driver’s

side door compartment. Walton had not yet noticed the firearm, but upon looking at the

door saw that “it was very visible.” App. at 75, 124.

       Walton placed Patterson in the back of the officers’ vehicle, and Anderson called

the Swatara Township police, who arrived several minutes later and secured the firearm.

Walton then attempted to get Patterson’s consent to a search of the vehicle, but Patterson

                                             3
refused. Nevertheless, Walton still “believe[d] that there could possibly be other criminal

activity parole violations within the vehicle and [he] began to search the immediate area

of the driver’s seat.” App. at 77. The search turned up a bag of crack cocaine in the car’s

center console.

       Although the officers’ search was conducted for the purpose of finding evidence

that Patterson had violated terms of his supervised release, it yielded evidence sufficient

for a grand jury to indict Patterson on new federal charges of possession of cocaine base

with intent to distribute, 21 U.S.C. § 841(a)(1), possession of a firearm in furtherance of

drug trafficking, 18 U.S.C. § 924(c), and possession of a firearm by a convicted felon, 18

U.S.C. § 922(g)(1). Patterson moved to suppress the evidence seized from the vehicle,

claiming that the firearm was not in plain view and that the officers’ decision to wait until

Patterson was in the car before arresting him was a pretext for searching the car incident

to arrest. The District Court denied his motion, finding that under Supreme Court

precedent, including New York v. Belton, 453 U.S. 454 (1981), the officers’ safety

concerns justified their seizure of the firearm and search of the entire car. The District

Court also rejected Patterson’s “pretext” argument, citing Whren v. United States, 517

U.S. 806, 812-13 (1996), for the proposition that “an officer’s subjective motivation is

incapable of invalidating behavior that is objectively justifiable.” App. at 128.

       After a two-day jury trial, Patterson was convicted of possession with intent to

distribute cocaine base, possession of a firearm in furtherance of drug trafficking, and

                                              4
possession of a firearm by a felon. He was sentenced to 280 months in prison. This

appeal followed. 1

                                              II

       Patterson contends that the District Court erred in denying his motion to suppress

the evidence seized by Officers Walton and Anderson because their search violated his

Fourth Amendment rights under the Supreme Court’s recent decision in Arizona v. Gant,

129 S. Ct. 1710 (2009), which limited the circumstances under which automobile

searches incident to arrest are permissible under Belton. 2

       “This Court reviews the District Court’s denial of a motion to suppress for clear

error as to the underlying factual findings and exercises plenary review of the District

Court’s application of the law to those facts.” United States v. Perez, 280 F.3d 318, 336

(3d Cir. 2002) (citing United States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998)).

“[W]hen a party asks us to affirm a district court’s suppression ruling[,] . . . we may


       1
        The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291, which grants “courts of appeals . . . jurisdiction of appeals
from all final decisions of the district courts of the United States.”
       2
        Although the officers’ search of Patterson’s car and the District Court’s denial of
Patterson’s motion to suppress both predate Gant, Patterson may still appeal based on
Gant’s holding because “a decision of [the Supreme] Court construing the Fourth
Amendment is to be applied retroactively to all convictions that were not yet final at the
time the decision was rendered.” United States v. Johnson, 457 U.S. 537, 562 (1982); see
also United States v. Shakir, 626 F.3d 315 (3d Cir. 2010) (analyzing, in light of Gant, a
search and district court suppression determination from 2007 and 2008). Patterson was
found guilty more than two months after Gant was decided.

                                              5
affirm for any reason supported by the record.” United States v. Dupree, 617 F.3d 724,

728 n.2 (3d Cir. 2010).

                                               A

       We first address the officers’ “plain view” seizure of the gun found in the driver’s

side door of the Cadillac. The Supreme Court stated in Horton v. California:

       It is, of course, an essential predicate to any valid warrantless seizure of
       incriminating evidence that the officer did not violate the Fourth
       Amendment in arriving at the place from which the evidence could be
       plainly viewed. There are, moreover, two additional conditions that must
       be satisfied to justify the warrantless seizure. First, not only must the item
       be in plain view; its incriminating character must also be ‘immediately
       apparent.’ . . . Second, not only must the officer be lawfully located in a
       place from which the object can be plainly seen, but he or she must also
       have a lawful right of access to the object itself.

496 U.S. 128, 136-37 (1990) (citations omitted); see also United States v. Yamba, 506

F.3d 251, 256 (3d Cir. 2007) (“As the Supreme Court has said, precedent has ‘come to

reflect the rule that if, while lawfully engaged in an activity in a particular place, police

officers perceive a suspicious object, they may seize it immediately.’” (quoting Texas v.

Brown, 460 U.S. 730, 739 (1983) (plurality opinion))).

       All of the requirements of the plain view doctrine are met in this case. First, the

officers had a warrant for Patterson’s arrest, so they were authorized to remove him from

the vehicle. Second, Walton testified that the firearm was “very visible” and the District

Court found it was “readily accessible in the driver’s side door compartment.” App. at

127. Moreover, the “incriminating character” of the firearm was “immediately apparent”

                                               6
because, as an individual on supervised release, Patterson’s possession of a weapon

constituted an automatic violation of the terms of his release. 3 Finally, the officers had a

“lawful right of access” to the firearm because it was in an open car, visible, and

accessible to anyone in the public area outside of the Presidential Apartments. 4

                                              B

       We now turn to the warrantless search of the vehicle. According to Gant, law

enforcement officials may conduct a warrantless search of a vehicle incident to arrest only

(1) “when it is reasonable to believe that evidence of the offense of arrest might be found

in the vehicle” or (2) “when the arrestee is unsecured and within reaching distance of the

passenger compartment at the time of the search.” 129 S. Ct. at 1719.


       3
        The officers had information that Patterson used the gray Cadillac regularly, and
they observed him sit in the car for fifteen to twenty seconds. It was therefore reasonable
for them to conclude that, even if the car did not technically belong to Patterson, he had
constructive possession of it and its visible contents. See United States v. Cunningham,
517 F.3d 175, 178 (3d Cir. 2008) (“Constructive possession exists if an individual
knowingly has both the power and the intention at a given time to exercise dominion or
control over a thing.”).
       4
         Patterson argues that the officers waited until he entered the vehicle before
arresting him as a pretext to search the vehicle. The District Court correctly declined to
analyze the officers’ subjective intent because, as the Supreme Court held in Whren,
“[n]ot only have we never held, outside the context of inventory search or administrative
inspection . . . that an officer’s motive invalidates objectively justifiable behavior under
the Fourth Amendment; but we have repeatedly held and asserted the contrary.” 517 U.S.
at 812; see also Horton, 496 U.S. at 130 (holding that the plain view doctrine can apply
even when officers intentionally find evidence rather than come upon it inadvertently).
Moreover, the District Court found as a matter of fact that the officers had a legitimate
reason for waiting: they wanted to make sure that the man under observation entered the
vehicle they had identified as one used by Patterson. App. at 129 n.6.
                                              7
       The offense for which Patterson was arrested in this case was his violation of the

conditions of his supervised release. Upon searching Patterson’s person, the officers

found proof of two additional violations: possession of contraband (i.e., marijuana) and

possession of more than $50.00 in cash. The subsequent “plain view” seizure of the

firearm confirmed another contraband violation, the evidence of which was located inside

the vehicle. During the arrest, Patterson instructed bystanders to drive his car away,

providing additional circumstantial evidence that the car contained contraband. Taken

together, these factors gave the officers ample reason to believe that the car contained

evidence that Patterson violated his conditions of release. Accordingly, the District Court

did not err in rejecting Patterson’s Gant argument.

                                             III

       For the foregoing reasons, we will affirm the District Court’s denial of Patterson’s

motion to suppress evidence.




                                             8
