                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 09-1317
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Scott Goodwin-Bey,                       *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: September 22, 2009
                                 Filed: October 28, 2009
                                  ___________

Before MELLOY, BEAM and GRUENDER, Circuit Judges.
                          ___________

GRUENDER, Circuit Judge.

       Scott Goodwin-Bey entered a conditional guilty plea to the charge of being a
felon in possession of a firearm, reserving the right to appeal the denial of his motion
to suppress. We affirm.

I.    BACKGROUND

      The facts of this case are not in dispute. On April 3, 2007, Officer Daniel
Rankey stopped a white Mitsubishi Galant, which Goodwin-Bey was driving, for
running a red light. While Officer Rankey attempted to identify the vehicle’s four
occupants, he received a report of an earlier incident in which occupants of a white
Mitsubishi Galant had displayed a firearm. A short time later, Officer Mark Foos
arrived to further investigate that incident.

        During the course of the stop, Officer Rankey learned of an outstanding warrant
for a traffic violation issued for the front passenger, Lawrence Freeman. Officer Greg
Sly then arrested and handcuffed Freeman. The officers conducted protective pat-
downs of the vehicle’s other three occupants, including Goodwin-Bey.

       After Freeman’s arrest, Officer Rankey searched the vehicle. Finding the glove
box locked, Officer Rankey took Goodwin-Bey’s keys to continue the search, over
Goodwin-Bey’s objection. Inside the glove box, Officer Rankey found a Derringer
handgun, which he seized. Although Goodwin-Bey admitted that he was a convicted
felon, Officer Rankey did not arrest Goodwin-Bey at the time, instead advising
Goodwin-Bey that a detective would contact him for a follow-up investigation.
Freeman was transported to the county jail, and Officer Rankey allowed Goodwin-
Bey and the other two passengers to leave.

      A grand jury later indicted Goodwin-Bey on the charge of being a felon in
possession of a firearm, a violation of 18 U.S.C. § 922(g). Goodwin-Bey moved to
suppress the gun, arguing that Officer Rankey’s search of the vehicle violated the
Fourth Amendment. The magistrate judge1 issued a report and recommendation
proposing that Goodwin-Bey’s motion be denied, which the district court2 adopted in
full. The district court then accepted Goodwin-Bey’s conditional guilty plea and
sentenced him to 70 months’ imprisonment. Goodwin-Bey now appeals the denial of


      1
      The Honorable James C. England, Chief United States Magistrate Judge for the
Western District of Missouri.
      2
        The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.

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his motion to suppress, arguing first that the search incident to Freeman’s arrest was
impermissible under Arizona v. Gant, 556 U.S. ---, 129 S. Ct. 1710 (2009), because
the arrest scene was secure. Second, he argues that the district court erred in finding
probable cause sufficient to justify the search.

II.   DISCUSSION

      “We examine the factual findings underlying the district court’s denial of the
motion to suppress for clear error and review de novo the ultimate question of whether
the Fourth Amendment has been violated.” United States v. Williams, 577 F.3d 878,
880 (8th Cir. 2009) (quoting United States v. Walsh, 299 F.3d 729, 730 (8th Cir.
2002)). “[S]earches conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the Fourth Amendment—subject
only to a few specifically established and well-delineated exceptions.” Horton v.
California, 496 U.S. 128, 133 n.4 (1990) (quoting Katz v. United States, 389 U.S. 347,
357 (1967)). Two exceptions are relevant to this case: the search incident to arrest
exception described in Chimel v. California, 395 U.S. 752, 763 (1969), and the
reasonable suspicion of dangerousness exception articulated in Terry v. Ohio, 392
U.S. 1 (1968). These exceptions apply to searches of vehicles under New York v.
Belton, 453 U.S. 454 (1981), and Michigan v. Long, 463 U.S. 1032 (1983),
respectively.

       After lawfully arresting a suspect, officers may reasonably search “the area into
which an arrestee might reach in order to grab a weapon or evidentiary items.”
Chimel, 395 U.S. at 763. When the arrestee recently occupied an automobile, the
reaching area includes “the passenger compartment of that automobile.” Belton, 453
U.S. at 460. The “reaching area” rule serves the dual purposes of “protecting arresting
officers and safeguarding any evidence of the offense of arrest that an arrestee might
conceal or destroy.” Gant, 129 S. Ct. at 1716. In Gant, the Supreme Court recently
held that where those two concerns are not present, the Fourth Amendment does not

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permit a vehicle search incident to an arrest. Id. Where those concerns are present,
however, Belton continues to permit the search as an exception to the warrant
requirement. Id. at 1716-17. The Government argues that because Goodwin-Bey and
the other passengers were not secured, unlike the bystanders in Gant, officer safety
concerns justified the search. Goodwin-Bey argues that the scene was in fact secure,
since the other occupants had been patted down and did not outnumber the officers on
the scene.

       The facts here are similar to those of our recent decision in United States v.
Davis, 569 F.3d 813 (8th Cir. 2009). As here, Davis involved three unsecured
passengers and one vehicle occupant who had been arrested. The court found that
these unsecured passengers and the presence of alcohol and marijuana at the scene
gave rise to “textbook examples of ‘the safety and evidentiary justifications
underlying Chimel’s reaching-distance rule.’” Id. at 817 (quoting Gant, 129 S. Ct. at
1714). We held that the presence of Chimel’s concerns distinguished Gant, and that
the search incident to arrest exception thus justified the search. Id. Those same safety
concerns were present to an even greater degree here.3 Officer Rankey received a
report that occupants of a vehicle of the same make, model and color as the vehicle
he stopped had displayed a firearm during an earlier incident.4 While the Government
does not argue that the officers were concerned about evidence destruction or

      3
       That the gun was found in a locked glove box does not eliminate the potential
danger to the officers. See United States v. Palmer, 360 F.3d 1243, 1247 (10th Cir.
2004); United States v. Woody, 55 F.3d 1257, 1269 (7th Cir. 1995).
      4
        At oral argument, Goodwin-Bey suggested for the first time that this earlier
incident might have been so remote in time as to render the report stale. Regardless
of whether this argument was waived for failure to raise it in his opening brief, see
United States v. Mitchell, 31 F.3d 628, 633 n.3 (8th Cir. 1994), Goodwin-Bey’s
concession that the officers had a reasonable suspicion to perform a protective pat-
down, Appellant Br. 18, disposes of the claim. Because Goodwin-Bey admits that the
report of a displayed firearm was sufficiently fresh to justify the pat-down, it follows
that the report implicates Chimel’s safety concerns.

                                          -4-
concealment,5 our holding in Davis dictates that the earlier incident report, along with
the number of the vehicle’s occupants, sufficiently implicated officer safety concerns
to justify a search incident to arrest under Belton.

       Even if the search incident to arrest exception did not apply, these same
concerns for officer safety would justify the search under Michigan v. Long’s
reasonable suspicion of dangerousness exception. “[T]he search of the passenger
compartment of an automobile, limited to those areas in which a weapon may be
placed or hidden, is permissible if the police officer possesses a reasonable belief . . .
that the suspect is dangerous and the suspect may gain immediate control of
weapons.” Michigan v. Long, 463 U.S. 1032, 1049 (1983). In reexamining the search
incident to arrest exception to the warrant requirement, Gant left this exception
untouched. Gant, 129 S. Ct. at 1721.

       Although neither Officer Rankey’s report nor his testimony mention any
suspicion that Goodwin-Bey or the other occupants might pose a danger, we evaluate
whether a reasonable suspicion of dangerousness existed under an objective, not a
subjective, standard. United States v. Plummer, 409 F.3d 906, 909 (8th Cir. 2005)
(noting that the circuits are split on this issue). The report of the earlier incident
involving occupants of a car of the same make, model and color displaying a weapon
provided a reasonable suspicion that there was a weapon in the vehicle that the
unsecured occupants could immediately access. Indeed, Goodwin-Bey admits as
much in conceding that the officers had a reasonable suspicion of dangerousness
sufficient to justify a protective pat-down of Goodwin-Bey. Appellant Br. 18. All of
the occupants were outside the vehicle at the time of the search, but “[a]bsent an


      5
        Neither Chimel nor Gant require both safety and evidentiary concerns to exist
to justify a search incident to arrest. Either concern standing alone may trigger the
exception to the warrant requirement. See Gant 129 S. Ct. at 1716 (noting that “the
search-incident-to-arrest exception . . . does not apply” when “both justifications . . .
are absent” (emphasis added)).

                                           -5-
arrest,” they “would have been free to reenter the [vehicle] and pose a danger to the
officers.” United States v. Peoples, 925 F.2d 1082, 1087 (8th Cir. 1991). Thus, we
hold that a reasonably prudent officer on the scene would be warranted in believing
that Goodwin-Bey and his unsecured passengers were “‘dangerous’ and might access
the vehicle to ‘gain immediate control of weapons.’” Gant, 129 S. Ct. at 1721
(quoting Long, 463 U.S. at 1049). Therefore, even if Belton’s search incident to arrest
exception to the warrant requirement did not apply, Officer Rankey’s search was
permissible under Michigan v. Long’s reasonable suspicion of dangerousness
exception.

       As a result, there is no need to reach Goodwin-Bey’s argument that Officer
Rankey lacked probable cause to search the vehicle under the “automobile exception.”
 See Davis, 569 F.3d at 817 (articulating the test for applying the automobile
exception). Because the gun was found in an “area[] in which a weapon may be
placed or hidden,” Long, 463 U.S. at 1049, only reasonable suspicion of
dangerousness, not probable cause, was necessary. While the district court found
probable cause to justify the search under the automobile exception, “we may affirm
the judgment of the district court on any basis supported by the record.” United States
v. Siwek, 453 F.3d 1079, 1084 (8th Cir. 2006). Therefore, we need not reach
Goodwin-Bey’s argument regarding probable cause because the vehicle search was
permissible both as a search incident to Freeman’s arrest and as a protective search in
response to a reasonable suspicion of danger.

III.   CONCLUSION

      For the foregoing reasons, we affirm the district court’s denial of Goodwin-
Bey’s motion to suppress.
                      ______________________________




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