                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                             File Name: 05a0003p.06

                         UNITED STATES COURTS OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                               X
                                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                                -
                                                                -
                                                                -
                                                                    No. 04-5352
             v.
                                                                ,
                                                                 >
 JAMES HERNDON,                                                 -
                                      Defendant-Appellant. -
                                                               N
                                Appeal from the United States District Court
                             for the Western District of Tennessee at Memphis.
                             No. 03-20207—Bernice B. Donald, District Judge.
                                          Argued: December 3, 2004
                                    Decided and Filed: January 5, 2005
             Before: GILMAN and SUTTON, Circuit Judges; McKEAGUE, District Judge.*
                                             _________________
                                                  COUNSEL
ARGUED: Needum L. Germany, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis,
Tennessee, for Appellant. Lorraine Craig, ASSISTANT UNITED STATES ATTORNEY, Memphis,
Tennessee, for Appellee. ON BRIEF: Needum L. Germany, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Memphis, Tennessee, for Appellant. Lorraine Craig, ASSISTANT UNITED STATES
ATTORNEY, Memphis, Tennessee, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
        RONALD LEE GILMAN, Circuit Judge. James Herndon pled guilty to illegally possessing a
firearm, which the police found pursuant to a warrantless search of his truck following Herndon’s arrest.
In this direct appeal, Herndon alleges that the district court erred in denying his motion to suppress the
evidence. He properly reserved the right to appeal this adverse evidentiary ruling. For the reasons set forth
below, we AFFIRM the judgment of the district court.




    *
     The Honorable David W. McKeague, United States District Judge for the Western District of Michigan, sitting by
designation.


                                                        1
No. 04-5352             United States v. Herndon                                                        Page 2


                                            I. BACKGROUND
A.      Factual background
        Ronald Weedle, a Memphis police officer, testified that he and his partner, Jimmy Gaylor, saw
Herndon driving a truck into a carwash lot in November of 2002. The sticker on the license plate, showing
an expiration date in 2003, was falling off, so they decided to check the tag number using a computer in the
police car. While waiting for the results, they followed Herndon into the carwash lot. The results soon
came back, informing the officers that the truck’s tag had expired in 2001.
        This caused Weedle and Gaylor to approach Herndon, who was standing only five feet away from
the open driver’s side door of the truck, and ask for his driver’s license. Herndon responded that he had no
driver’s license. The police officers then asked for his name, birth date, and Social Security number. He
gave a false name and a false birth date. When they found out that the name was not on file, they asked
Herndon again, and he gave them his real name and a different birth date. At this point they frisked him and
found his wallet, which contained the correct identifying information. They then checked the information
and learned not only that Herndon’s license was revoked, but also that he had multiple outstanding warrants
for his arrest. This caused the officers to take Herndon into custody.
        Before transporting Herndon to the police station, the police searched the truck. During the search,
Gaylor noticed “a bulge in the fold of the rear seat” and found a loaded .380 caliber handgun. He also found
a leather pouch next to the handgun that contained 182 pills for which Herndon had no prescription.
       Herndon’s girlfriend later arrived on the scene, but she was not permitted to drive the truck away.
According to Weedle, the internal police divisions in charge of narcotics and traffic offenses both had the
option under police department policy to have the vehicle towed.
B.      Procedural background
       Herndon moved to suppress both the evidence taken from the truck and the statements he made after
being arrested but before being advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).
Comparing Weedle’s testimony to differing testimony offered by Herndon and an additional witness for the
defense, the district court found Weedle’s testimony more credible. It held that “[o]nce [Herndon] was
under arrest, [the police] had the legal authority to conduct an inventory search.” The district court therefore
denied the motion to suppress with respect to the evidence obtained from the truck, but granted the motion
with respect to the statements that Herndon had made after his arrest.
       Herndon pled guilty to one count of possessing a firearm after having been convicted of a crime
punishable by a term of imprisonment exceeding one year. He was sentenced to 94 months in prison and
two years of supervised release. As part of his plea bargain, Herndon reserved “the right to have an
appellate court review the adverse determination of [his] motion to suppress.” This timely appeal followed.
                                               II. ANALYSIS
A.      Standard of review
         Factual findings supporting a district court’s ruling on a motion to suppress are upheld unless clearly
erroneous, but “[t]he court’s final determination as to the reasonableness of the search is a question of law
reviewed de novo.” United States v. Galloway, 316 F.3d 624, 628 (6th Cir. 2003) (upholding the district
court’s denial of a motion to suppress evidence that was found during a customs inspection). Where the
district court has denied the motion to suppress, “the appellate court must consider the evidence in the light
most favorable to the government.” United States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998) (en banc)
(upholding the district court’s denial of a motion to suppress evidence that was found during a search of the
defendant’s vehicle).
No. 04-5352             United States v. Herndon                                                          Page 3


B.      The constitutionality of searching Herndon’s truck
        1.      Search incident to arrest
        The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Searches of
vehicles “must meet the test of reasonableness under the Fourth Amendment before evidence obtained as
a result of such searches is admissible.” Preston v. United States, 376 U.S. 364, 366 (1964).
        Unlike searches of a suspect’s home, which require a warrant unless they fall within one of several
well-defined exceptions, see Coolidge v. New Hampshire, 403 U.S. 443, 474 (1971), searches of a suspect’s
vehicle without a warrant have been found reasonable in many circumstances. In particular, the police can
search the vehicle occupied by a person being lawfully arrested without first obtaining a search warrant.
See New York v. Belton, 453 U.S. 454, 460 (1981) (holding that “when a policeman has made a lawful
custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest,
search the passenger compartment of that automobile”); Chimel v. California, 395 U.S. 752, 763 (1969)
(noting that “it is entirely reasonable for the arresting officer to search . . . the area into which an arrestee
might reach in order to grab a weapon or evidentiary items”); Preston, 376 U.S. at 367 (holding, in the
context of the search of a suspect’s car, that the police can search “things under the accused’s immediate
control, and . . . the place where he is arrested”) (citations omitted).
         Herndon correctly notes in his brief that Belton did not settle the question of whether a vehicle can
be searched incident to an arrest if the suspect is no longer occupying the vehicle at the time that the police
initiate contact. This circuit’s cases have also left some doubt about this point. Compare United States v.
Strahan, 984 F.2d 155, 159 (6th Cir. 1993) (holding that Belton was inapplicable to the search of an
automobile when the occupant “was approximately thirty feet from his vehicle when arrested”), with United
States v. White, 871 F.2d 41, 44 (6th Cir. 1989) (upholding the constitutionality of the search of an arrestee’s
vehicle where the arrestee was in the vehicle when the police initiated contact, but was out of the vehicle
at the time of his arrest).
         Recently, however, the Supreme Court has clarified the scope of Belton. In Thornton v. United
States, __ U.S. __, 124 S. Ct. 2127 (2004), the Court held that “Belton governs even when an officer does
not make contact until the person arrested has left the vehicle.” Id. at 2129. “So long as an arrestee is the
sort of ‘recent occupant’ of a vehicle such as petitioner was here, officers may search that vehicle pursuant
to the arrest.” Id. at 2132. The circumstances giving rise to the search in Thornton were nearly identical
to those in the present case, and they leave little doubt that Herndon is the same “sort of recent occupant”
as was Thornton:
        After petitioner passed him, [Officer] Nichols ran a check on petitioner’s license tags, which
        revealed that the tags had been issued to a 1982 Chevy two-door and not to a Lincoln Town
        Car, the model of car petitioner was driving. Before Nichols had an opportunity to pull him
        over, petitioner drove into a parking lot, parked, and got out of the vehicle. Nichols saw
        petitioner leave his vehicle as he pulled in behind him. He parked the patrol car, accosted
        petitioner, and asked him for his driver’s license. He also told him that his license tags did
        not match the vehicle that he was driving.
        Petitioner appeared nervous. . . . Nichols asked petitioner if he had any narcotics or weapons
        on him or in his vehicle. Petitioner said no. Nichols then asked petitioner if he could pat
        him down, to which petitioner agreed. . . . [After the petitioner revealed that he was carrying
        narcotics,] Nichols handcuffed petitioner, informed him that he was under arrest, and placed
        him in the back seat of the patrol car. He then searched petitioner’s vehicle and found a . . .
        handgun under the driver’s seat.
Id. at 2129.
No. 04-5352            United States v. Herndon                                                      Page 4


        Indeed, the “concerns regarding officer safety and the destruction of evidence” cited by the Thornton
court, id. at 2131, apply with at least equal force here because, when the police approached Herndon, the
door of his truck was still open and he was standing only a few feet away. The search of Herndon’s truck
thus falls squarely within the range of searches deemed permissible by the Supreme Court in Belton and
Thornton.
       2.      Inventory search
         Both parties have argued at length about whether the search of Herndon’s truck was a valid
inventory search. See United States v. Lumpkin, 159 F.3d 983, 987 (6th Cir. 1998) (noting that officers can
conduct inventory searches of vehicles lawfully taken into custody, and citing Colorado v. Bertine, 479 U.S.
367, 372 (1987), for the proposition that these searches “serve to protect an owner’s property while it is in
the custody of the police, to insure against claims of lost, stolen or vandalized property, and to guard the
police from danger”). Because the search yielding the gun was valid as a search incident to Herndon’s
arrest, however, we have no need to address the inventory-search issue. See United States v. Patterson, 993
F.2d 121 (6th Cir. 1993) (declining to determine whether the search of a motor vehicle was valid as an
inventory search on the ground that the search was valid as a search incident to arrest).
C.     Sentencing issues
        We also note that Herndon submitted a supplemental brief during the week of oral argument,
asserting that the sentence imposed by the district court under the Sentencing Guidelines is unconstitutional
under Blakely v. Washington ___ U.S. ___, 124 S. Ct. 2531 (2004). The brief acknowledges that this court
held in United States v. Koch, 383 F.3d 436 (6th Cir. 2004) (en banc), that Blakely does not invalidate the
Sentencing Guidelines, but explains that Herndon “wishes to preserve the record” with respect to his Blakely
claims. Because Koch compels us to reject Herndon’s Blakely claim, we have no need to further discuss
this issue or to consider whether Herndon has properly preserved the argument.
                                           III. CONCLUSION
       For all of the reasons set forth above, we AFFIRM the judgment of the district court.
