                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 21 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-30011

               Plaintiff - Appellant,            D.C. No. 2:07-cr-02078-FVS

  v.
                                                 MEMORANDUM *
CHARLES THOMAS WILMER
WEEMS,

               Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of Washington
                    Fred L. Van Sickle, District Judge, Presiding

                           Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       The government appeals from the district court’s order granting defendant

Charles Weems’ motion to suppress evidence seized pursuant to a vehicle search

incident to his arrest. We have jurisdiction under 18 U.S.C. § 3731, and we vacate


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the order and remand for reconsideration.

      The government concedes that the search of Weems’ vehicle after he was

handcuffed and placed in the back of a patrol car was unconstitutional under

Arizona v. Gant, 556 U.S. 332 (2009), but contends that it was permissible under

the good-faith exception for searches conducted in reliance on binding precedent.

The Supreme Court recently held that “searches conducted in objectively

reasonable reliance on binding appellate precedent are not subject to the

exclusionary rule.” Davis v. United States, 131 S. Ct. 2419, 2428-29 (2011). The

search of Weems’ vehicle occurred prior to the Supreme Court’s decision in Gant,

and was conducted in compliance with New York v. Belton, 453 U.S. 454, 460

(1981), which was binding appellate precedent at the time of the search.

Accordingly, we vacate and remand for the district court to reconsider its order in

light of Davis.

      The government’s request for a stay is denied as moot.

      VACATED AND REMANDED.




                                            2                                  11-30011
