     Case: 10-10099     Document: 00511647016         Page: 1     Date Filed: 10/27/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 27, 2011
                                     No. 10-10099
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

TERRELL LAMAR MILAN,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:09-CR-95-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Terrell Lamar Milan appeals following his guilty plea conviction for being
a felon in possession of a firearm. Milan reserved the right to appeal the denial
of his motion to suppress the firearm, which was found hidden in the dashboard
of his vehicle, behind the light switch panel on the driver’s side. Milan argues
that contrary to the district court’s finding that the search was based on
probable cause, the search of his vehicle was a search incident to arrest and,



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 10-10099

further, that the search was unconstitutional under Arizona v. Gant, 556 U.S.
332, 129 S. Ct. 1710 (2009).
      The Government argues that Milan has raised a new argument on appeal
and that the issue is thus either waived, or reviewed for plain error only.
Although we note that Milan’s counsel arguably raised his current arguments
at the evidentiary hearing, we decline to resolve this issue because, as discussed
more fully below, Milan’s arguments are premised on a failed assertion that the
search was incident to arrest rather than probable cause.
      When reviewing the denial of a motion to suppress, this court reviews the
district court’s factual findings for clear error, viewing the evidence in the light
most favorable to the Government. United States v. Charles, 469 F.3d 402, 405
(5th Cir. 2006). The district court’s conclusions of law are reviewed de novo. Id
To the extent that the denial of the motion is denied based on live oral
testimony, the clearly erroneous standard is “particularly strong” because the
district court had the opportunity to observe the demeanor of the witnesses.
United States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005).
      A search incident to arrest is an exception to the warrant requirement set
forth in the Fourth Amendment. See United States v. Curtis, 635 F.3d 704, 711
(5th Cir.), petition for cert. filed, (Jun. 6, 2011) (No. 10-10931). In Gant, 129 S.
Ct. at 1719, the Supreme Court limited the scope of a search of a vehicle incident
to an occupant’s arrest. However, the search of a vehicle based on probable
cause is an exception to the warrant requirement that is distinct from the
incident to arrest exception. See United States v. Saucedo-Munoz, 307 F.3d 344,
351 (5th Cir. 2002); see also United States v. Hinojosa, 392 F. App’x 260, 261-62
(5th Cir. 2010) (noting that because the search at issue was made based on
probable cause and not pursuant to arrest “Gant was inapplicable.”); United
States v. Polanco, 634 F.3d 39, 42 (1st Cir. 2011) (concluding that Gant did not
“scrap” the automobile exception); United States v. Aguilera, 625 F.3d 482,
485–86 (8th Cir. 2010) (declining to reach whether search was appropriate

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                                 No. 10-10099

“incident to arrest” because officers had probable cause to search the vehicle).
      Milan has not shown that the district court clearly erred in concluding that
the search was based on probable cause rather than incident to arrest.
Accordingly, we do not address Milan’s argument that the search was invalid
under Gant, or his argument regarding the inevitable discovery rule. See
Charles, 469 F.3d at 405 (noting that the court may affirm the denial of a motion
to suppress on any basis supported by the record).
      AFFIRMED.




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