                                                                            FILED
                            NOT FOR PUBLICATION                               JAN 31 2012

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S . CO UR T OF AP PE A LS




                            FOR THE NINTH CIRCUIT



United States of America,                        No. 10-10379

              Plaintiff - Appellant,             D.C. No. 3:09-cr-01159-MHP-1

  v.
                                                 MEMORANDUM *
RONNIE BIDDLE, etc.

              Defendant - Appellee.



United States of America,                        No. 11-10271

              Plaintiff - Appellant,             D.C. No. 3:09-cr-01159-MHP-1

  v.

RONNIE BIDDLE, etc.

              Defendant - Appellee.



                  Appeal from the United States District Court
                      for the Northern District of California
                 Marilyn H. Patel, Senior District Judge, Presiding

                      Argued and Submitted January 10, 2012
                            San Francisco, California


       *     This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: WALLACE and M. SMITH, Circuit Judges, and RAKOFF, District
Judge.**

      The government appeals the district court's grant of Ronnie Biddle's motion

to suppress evidence found during a search of his vehicle. Separately, the

government also appeals the district court's dismissal of the indictment against

Biddle while the interlocutory appeal of the suppression motion was pending

before this court. Because the parties are familiar with the factual and procedural

history of this case, we repeat only those facts necessary to resolve the issues

raised on appeal. We have jurisdiction pursuant to 28 U.S.C. yy 1291, 3731, and

we affirm in part and reverse and remand in part.

      We affirm the suppression of the evidence found in Biddle's vehicle. Any

of Biddle's actions that may have constituted abandonment of the searched vehicle

were colored by the officer's initial illegal searches. United States v. Jacµson, 544

F.2d 407, 409 (9th Cir. 1976) (stating that the court cannot consider 'tainted' acts

that 'may have been brought by unlawful police conduct'); see also United States

v. Stevens, 206 F.3d 914, 916 (9th Cir. 2000) ('An abandonment must be

voluntary, and an abandonment that results from Fourth Amendment violations

cannot be voluntary.') (citation omitted). Upon initially approaching the vehicle,


       ** The Honorable Jed. S. Raµoff, Senior United States District Judge for
the Southern District of New Yorµ, sitting by designation.

                                           2
one officer reached into the car, turned the car off, and tooµ the µeys out of the car

and secured them on his person. Three minutes later, after the officers had already

run the license plates and found out that the car was registered to Biddle, they

opened the door of the vehicle and began to search through the glove box of the

car.

       A person retains some expectation of privacy in his car. See New Yorµ v.

Class, 475 U.S. 106, 114 (1986). Neither the officer's seizure of the µeys or search

of the glove compartment of an unoccupied vehicle can be justified as a stop under

Terry v. Ohio, 392 U.S. 1 (1968). The officers µnew the car was registered to

Biddle and was not stolen before they searched the glove compartment. The search

cannot be justified as a search incident to arrest because Biddle was not arrested at

that time. Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 1721 (2009). Nor can

the search be justified on the grounds of officer safety because Biddle was not

identified and present during the search. Michigan v. Long, 436 U.S. 1032, 1049

(1983). These initial actions by the officers tainted any succeeding actions by

Biddle, whether or not those succeeding actions constituted abandonment. United

States v. Gilman, 684 F.2d 616, 620 (9th Cir. 1982). Moreover, these initial

searches also tainted the towing of the car and subsequent search of the trunµ under




                                           3
a community caretaµing function rationale. See Wong Sun v. United States, 371

U.S. 471, 488 (1963).

      We conclude, and the parties agree, that the district court erred in dismissing

the indictment while the interlocutory appeal on the suppression issue was pending

before us. The district court may retain jurisdiction in appropriate situations to

dismiss an indictment, in spite of a pending interlocutory appeal. See United

States v. Gatto, 763 F.2d 1040, 1049 (9th Cir. 1985); United States v. Cox, 475

F.2d 837, 841 (9th Cir. 1973). However, the district court abused its discretion in

doing so here. United States v. W.R. Grace, 526 F.3d 499 (9th Cir. 2008) (en

banc); United States v. Adrian, 978 F.2d 486 (9th Cir. 1992). Accordingly, we

reverse and remand the dismissal of the indictment.

      AFFIRMED in part and REVERSED and REMANDED in part.




                                           4
                                                                             FILED
USA v. Biddle    10-10379/11-10271

                                                                               JAN 31 2012
WALLACE, Senior Circuit Judge, concurring in part and dissenting in part.

      I concur with my colleagues in reversing for the erroneous dismissal of the
                                                                         MOLLY C. DWYER, CLERK
                                                                           U .S . CO UR T OF AP PE A LS

indictment. I dissent from the holding that the police's seizure of the µeys and


search of the glove box tainted the later search of the trunµ with the resultant


seizure of the gun.


      Even if the seizure of the µeys and search of the glove box were unlawful,


these Fourth Amendment violations do not render Biddle's subsequent


abandonment involuntary unless there is 'a nexus between the allegedly unlawful


police conduct and abandonment of property.' United States v. Gilman, 684 F.2d


616, 620 (9th Cir. 1982). The disposition does not identify this nexus, and I have


not found it. Nothing suggests that Biddle disavowed ownership of the car


because the police tooµ the µeys and rummaged through his glove box. The police


tooµ the car µeys only to shut off the engine-maµing the surroundings safer.


Nothing illegal was found in the glove box, and nothing was done to the glove box
or µeys to maµe the car ownership less desirable. See Gilman, 684 F.2d at 620


('Abandonment of property in response to police investigation does not per se


render abandonment involuntary').


      Because we have no facts before us that establish a nexus between the initial


seizure and search and Biddle's subsequent abandonment, I would remand for the


district court to develop the record further. In doing so, I remind the district court


that the µey issue in abandonment is not the intent of the police, but the intent of


the car owner. United States v. Nordling, 804 F.2d 1466, 1469 (9th Cir. 1986).




                                           2
