                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 25 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-30108

                Plaintiff-Appellee,             D.C. No.
                                                2:15-cr-00011-TOR-1
 v.

MICHAEL CURTIS PAINTER,                         MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Eastern District of Washington
                    Thomas O. Rice, Chief Judge, Presiding

                       Argued and Submitted May 11, 2017
                              Seattle, Washington

Before: McKEOWN, BEA, and N.R. SMITH, Circuit Judges.

      Michael Painter appeals two issues related to his conviction and sentence for

being a felon in possession of a firearm. We have jurisdiction under 28 U.S.C. §

1291 and reverse. Because the parties are familiar with the factual and procedural

background, we repeat only those facts necessary to resolve the issues raised on

appeal.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Painter argues that the police officers discovered the gun in his car by means

of a constitutionally impermissible warrantless search: the officer reached into the

car to move the airbag out from in front of the open glove compartment and looked

into this compartment.1

      The government does not dispute that the police officers’ actions here

constituted a Fourth Amendment search because the police physically occupied

private property (the car’s interior and airbag) for the purpose of obtaining

information (the vehicle registration information thought to be located behind the

airbag in the glove box). See United States v. Jones, 565 U.S. 400, 404-11 (2012).

      Because the Fourth Amendment protects against only unreasonable searches,

however, resolving whether the search of Painter’s vehicle was constitutionally

permissible requires determining whether it was reasonable. As the Supreme

Court explained in New York v. Class:

     [T]here is ‘no ready test for determining reasonableness other than by
     balancing the need to search [or seize] against the invasion which the search
     [or seizure] entails.’ And in justifying the particular intrusion the police
     officer must be able to point to specific and articulable facts which, taken
     together with rational inferences from those facts, justifiably warrant that
     intrusion.
475 U.S. 106, 116-17 (1986) (alterations in original) (citation omitted).

      The Supreme Court found the officer’s actions in Class (reaching into


1
 The district court found that the search was neither authorized by the search-
incident-to-arrest doctrine nor by the automobile exception to the search warrant
requirement. On appeal, the government does not argue to the contrary.

                                          2
defendant’s vehicle to remove papers obscuring the VIN) constituted a

constitutionally-permissible reasonable search for several reasons. Namely, the

Supreme Court noted that “the safety of the officers was served by the

governmental intrusion; the intrusion was minimal;…the search stemmed from

some probable cause focusing suspicion on the individual affected by the search,”

and the intrusion served the government’s interest in motor vehicle regulation. 475

U.S. at 113-14, 117-18. It is worth emphasizing that the intrusion in Class was

minimal because the officer “did not reach into any compartments or open any

containers.” Id. at 118. However, although Painter had just run a red light before

his accident, Class is not applicable to the search of Painter’s vehicle for several

important reasons. First, unlike in Class, the record in this case does not establish

(nor does the government argue) that searching Painter’s vehicle would have

protected the safety of the police officers at the scene. Second, in this case the

officer searched a private container of the vehicle (knocked open in the accident,

but covered by a deployed airbag), whereas in Class the officer searched merely to

identify the VIN, which is designed to be viewable from outside the vehicle. Id. at

114 (“The VIN's mandated visibility makes it more similar to the exterior of the

car than to the trunk or glove compartment”). Third, the officer’s search of

Painter’s vehicle does not appear to have furthered meaningfully the government’s

interest in regulating motor vehicles, because Painter’s vehicle could have been


                                           3
readily identified through either its license plate or publicly viewable VIN.

      In United States v. Brown, the Ninth Circuit found reasonable and

constitutionally permissible a police search of a defendant’s vehicle’s glove box to

locate registration information after the defendant “failed to produce a driver’s

license as required by state law, responded vaguely to a question regarding the

vehicle’s ownership, failed to produce the vehicle registration as required by state

law, and was found in the illegal possession of chemical mace.” 470 F.2d 1120,

1122 (9th Cir. 1972). This court found that “these facts were amply sufficient to

establish a police right to inspect the vehicle for the limited purpose of ascertaining

the vehicle registration.” Id. (footnotes omitted). As with Class, Brown is not

applicable here because there is no evidence in the record that Painter refused to

produce a driver’s license and registration or that he answered vaguely any

question posed by officers. The record in Painter’s case simply does not establish

the same “facts [that] were amply sufficient” to justify the search in Brown.

      Considering the facts of this case, none of the “specific and articulable

facts…justifiably warrant[ed] [this] intrusion.” Class, 475 U.S. at 116-17. First,

while the ostensible purpose of invading Painter’s glove box was to retrieve his

car’s registration information, such information would be readily available by

looking at either the car’s license plate or publicly viewable VIN and running such

information through the police computers. There is no evidence in the record that


                                           4
either the license plate or VIN were obscured or destroyed in the accident or that

the police computers were offline or otherwise unable to process such information.

Second, even assuming that such alternative methods for obtaining the registration

information were not available to the police officers, the record does not establish

(and the government does not argue) that there was any exigency that demanded

such registration information be immediately identified before a warrant could be

obtained. Finally, while there is some evidence in the record that Painter was

dazed after getting out of his wrecked car, there is no indication he was unable to

communicate with the police officers or that his dazed condition provided any

other justification for the search. To the contrary, the record establishes that

Painter was sufficiently aware and responsive to interact with the police officers

and follow their instructions to climb over the center console of his vehicle and out

of the passenger-side door. Taken together, these “specific and articulable facts”

do not justify under the Fourth Amendment the police officer’s physical

occupation and intentional search into a private container in Painter’s vehicle.

      For these reasons, we remand the case with instructions for the district court

to suppress the evidence of Painter’s possession of a firearm. 2



2
  We decline to address here whether Washington’s second degree assault offense
(RCW § 9A.36.021(1)(a)–(f)) is categorically a crime of violence because the
above-discussed unlawfulness of the police’s search of Painter’s vehicle renders
this issue moot.

                                           5
REVERSED AND REMANDED.




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