                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            NOV 16 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-30144

              Plaintiff-Appellee,                D.C. No.
                                                 2:15-cr-00241-RSL-1
 v.

ANTONIO LAMAR PERRYMAN,                          MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert S. Lasnik, District Judge, Presiding

                      Argued and Submitted October 3, 2017
                              Seattle, Washington

Before: LIPEZ,** WARDLAW, and OWENS, Circuit Judges.

      Antonio Perryman appeals the district court’s denial of his motion to

suppress a firearm discovered and post-arrest statements made during a traffic stop,

claiming the evidence was obtained in violation of his Fourth Amendment rights.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
Following the district court’s denial of his motion to suppress, Perryman was

convicted at trial of one count of being a felon in possession of a firearm under 18

U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

reverse. Because the search was neither permissible under Michigan v. Long, 463

U.S. 1032 (1983), nor Arizona v. Gant, 556 U.S. 332 (2009), we decline to

consider the intersection of Long and Gant.

      1.     The district court erred in concluding that the search of Perryman’s

car was justified under Long. 463 U.S. at 1049–50. Long establishes that a

warrantless search of a vehicle’s passenger compartment “is permissible if the

police officer possesses a reasonable belief based on ‘specific and articulable facts

which, taken together with the rational inferences from those facts, reasonably

warrant’ the officers in believing that the suspect is dangerous and the suspect may

gain immediate control of weapons.” Id. (emphasis added).

      Although Officers Ellis and Prince may have reasonably believed that

Perryman and his cousin, Anthony Perryman (“Anthony”), were dangerous, the

evidence does not support the district court’s conclusion that the officers

reasonably believed that Perryman or Anthony would gain immediate control of

weapons in the car. Before the search, the officers secured Perryman and Anthony,

handcuffed them, and placed Perryman in a patrol car and Anthony by the curb.


                                          2
There was thus no immediate risk that Perryman or Anthony would gain control of

weapons at the time the search was conducted.

      Any risk that Perryman and Anthony would return to the car and gain

immediate access to weapons is contingent on facts that did not exist at the time of

the search. Perryman and Anthony both had suspended driver’s licenses, so

neither one of them could drive Perryman’s car away. And although the officers

testified that they intended to allow Perryman and Anthony to retrieve their

belongings from the vehicle before impounding it, the grounds for the officers’

search of the vehicle had not developed at the time the search was conducted.

Before deciding to conduct the protective search, the officers did not ask the

cousins if they would want to return to the vehicle and collect their belongings if

given the opportunity, so the officers’ assertion that the search was necessary was

speculative. In fact, Perryman testified that he and Anthony had all of their

personal belongings with them outside the vehicle and would not have needed

anything from the car. Simply put, the Long search was premature on the facts

found by the district court.

      2.     Nor was the search permissible under Arizona v. Gant, 556 U.S. 332

(2009). Gant held that police officers may not perform a warrantless search of a

vehicle incident to an occupant’s arrest unless “the arrestee is unsecured and within


                                          3
reaching distance of the passenger compartment” or “it is ‘reasonable to believe

evidence relevant to the crime of arrest might be found in the vehicle.’” Id. at 343.

Because Perryman was secured in the back of the patrol car and Anthony was

secured on the curb, and both were detained for tinted windows and driving with a

suspended license, no evidence of which could have been found in the car, the

search was constitutionally impermissible.

      3.     We reject the government’s argument that the firearm was admissible

under the inevitable discovery doctrine. “The doctrine permits the government to

rely on evidence that ultimately would have been discovered absent a

constitutional violation.” United States v. Ruckles, 586 F.3d 713, 718 (9th Cir.

2009) (citing Nix v. Williams, 467 U.S. 431, 443 (1984)). But the district court’s

findings do not support the conclusion that the firearm would have been discovered

by lawful means. See id. (quoting Nix, 467 U.S. at 444). The government

contends that the officers would have found the firearm when they performed an

inventory search incident to the impoundment of the car. However, neither an

inventory search nor impoundment was inevitable. The Washington Constitution

forbids officers from impounding cars without first considering reasonable

alternatives to impoundment, State v. Tyler, 302 P.3d 165, 180 (Wash. 2013)

(citing State v. Hill, 842 P.2d 996, 999 (Wash. Ct. App. 1993)), so the officers


                                          4
would have had to explore all reasonable alternatives, which they did not do.

Moreover, officers are not authorized under Washington law to do an “inventory

search” when they call private tow trucks or family members. Id. at 700–01

(explaining when an inventory search is permissible). This speculative sequence of

events belies the government’s assertion of inevitable discovery.

      4.     Perryman’s confession, which is the product of the unlawful search,

must also be suppressed. The exclusionary rule extends to indirect as well as direct

products of constitutional invasions. Wong Sun v. United States, 371 U.S. 471,

484–85 (1963). “[V]erbal evidence which derives so immediately from an

unlawful entry and an unauthorized arrest . . . is no less the ‘fruit’ of official

illegality than the more common tangible fruits of the unwarranted intrusion.” Id.

at 485. In Perryman’s case, neither the giving of Miranda warnings nor

Perryman’s motivation to protect Anthony through his own confession are

intervening events that remove the taint of the officers’ unconstitutional conduct.

See Brown v. Illinois, 422 U.S. 590, 603 (1975); Taylor v. Alabama, 457 U.S. 687,

692 (1987). Because the confession was close in time to the unlawful search and

prompted by the officers’ detection of the firearm, it must be suppressed.

      Accordingly, the district court erred by denying Perryman’s motion to

suppress.


                                            5
REVERSED AND REMANDED.




                     6
                                                                        FILED
United States v. Perryman, No. 16-30144
                                                                        NOV 16 2017
OWENS, Circuit Judge, dissenting:                                    MOLLY C. DWYER, CLERK
                                                                      U.S. COURT OF APPEALS

      I respectfully dissent. In my view, the circumstances provided “specific and

articulable facts” that reasonably warranted the officers’ belief that Anthony could

gain immediate control of weapons. Michigan v. Long, 463 U.S. 1032, 1049-50

(1983) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). Though the officers

handcuffed Anthony by the curb during their search, the officers had no reason to

arrest him and intended to (1) release him (as they eventually did) and (2) let him

access the car to retrieve his belongings, as was their standard practice.

Recognizing that “investigative detentions involving suspects in vehicles are

especially fraught with danger to police officers,” I believe the officers were

permitted to perform a Terry search of the car to ensure Anthony could not have

access to weapons if he returned to the vehicle to retrieve any remaining

belongings. Id. at 1047, 1049-50.
