                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                    No. 08-3536
                                    __________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
                                         *
Uneal Davis,                             *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: April 14, 2009
                                 Filed: July 2, 2009
                                  ___________


Before RILEY, BENTON, and SHEPHERD, Circuit Judges.


SHEPHERD, Circuit Judge.

      Uneal Davis was charged with one count of possession of a firearm by a
prohibited person in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(3), and 924(a)(2).
Davis entered a plea of guilty conditioned on his right to appeal the district court’s1




      1
        The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
denial of his motion to suppress.2 He appeals on the ground that the firearm was
seized pursuant to a warrantless search of his vehicle in violation of the Fourth
Amendment. We affirm.

                                         I.

       On May 4, 2007, Officer Shelby Howard of the Joplin, Missouri, police
department stopped a 2007 Nissan Altima driven by Davis for speeding. John Hicks,
a deputy with the Jasper County Sheriff’s Department, assisted Officer Howard during
the traffic stop. Because Officer Howard smelled the odor of marijuana as he
approached the vehicle, he asked Davis to exit the vehicle so he could conduct a pat-
down search.

      During the pat-down, Officer Howard felt a lump that he believed to be a plastic
bag in Davis’s pocket. After Davis admitted that the lump was a bag of marijuana,
Officer Howard arrested Davis and placed him in Deputy Hicks’s patrol car. Officer
Howard then ordered the three passengers riding with Davis out of the car so that he
could search the vehicle. None of the passengers was secured in handcuffs while
Officer Howard searched the vehicle. During the search, Officer Howard found a
loaded Smith & Wesson 9mm handgun in the center console. Officer Howard also
observed opened bottles of beer in the vehicle and arrested one of the passengers,
Gregory Harlin, for being a minor in possession of alcohol. The two remaining
passengers left in a taxi because they had been drinking.

     After his indictment, Davis filed a motion to suppress the handgun on the
ground that the search was impermissible under the decision by the Arizona Supreme

      2
       As acknowledged in his plea agreement, Davis has two previous felony
convictions, burglary in the second degree and robbery in the second degree. Both
offenses are punishable by a term of imprisonment of more than one year under the
laws of the State of Missouri.
                                         -2-
Court in State v. Gant, 162 P.3d 640 (Ariz. 2007), cert. granted in part, 128 S. Ct.
1443 (2008), which required that officers demonstrate a threat to their safety or a need
to preserve evidence in order to justify a warrantless search incident to arrest. Id. at
643-44. The government opposed the motion on three alternative grounds: 1) that the
search of the vehicle was a lawful search incident to arrest; 2) that under the
“automobile exception” the odor and discovery of marijuana provided probable cause
to search the vehicle without a warrant; and 3) that the firearm would have inevitably
been discovered during an inventory search of the car after it was impounded. The
district court denied Davis’s motion on the grounds that both the search-incident-to-
arrest and automobile exceptions obviated the need for a warrant. It declined to
address the government’s inevitable discovery argument. After Davis filed this
appeal, the Supreme Court affirmed the Arizona Supreme Court’s decision in State v.
Gant limiting the search-incident-to-arrest exception to situations either threatening
officer safety or the preservation of perishable evidence. Arizona v. Gant, 129 S. Ct.
1710, 1723 (2009).

                                          II.

      “We review the district court’s findings of fact for clear error and the ultimate
question whether the Fourth Amendment was violated de novo.” United States v.
Green, 560 F.3d 853, 856 (8th Cir. 2009). Davis does not challenge any of the district
court’s factual findings. Accordingly, we are faced with the purely legal question of
whether the search of Davis’s vehicle without a warrant was permissible under the
Fourth Amendment.

      It is now axiomatic that “searches 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.” Katz v. United States, 389 U.S. 347, 357 (1967) (footnote
omitted). “The exceptions are jealously and carefully drawn, and there must be a

                                          -3-
showing by those who seek exemption . . . that the exigencies of the situation made
that course imperative.” Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971)
(quotation and footnote omitted). “Among the exceptions to the warrant requirement
is a search incident to a lawful arrest.” Gant, 129 S. Ct. at 1716. Another “such
exception is the so-called ‘automobile exception,’ which authorizes officers to search
a vehicle without a warrant if they have probable cause to believe the vehicle contains
evidence of criminal activity.” United States v. Hill, 386 F.3d 855, 858 (8th Cir.
2004).

       Davis’s primary argument is that the Gant decision requires suppression
because the search of his vehicle was not a valid search incident to arrest.3 In Gant,
police officers stopped the defendant’s vehicle because he had an outstanding warrant
for driving with a suspended license. 129 S. Ct. at 1714-15. The Supreme Court
suppressed the evidence because the driver and two of his associates were
“handcuffed and secured in separate patrol cars . . .” before the search of his vehicle,
and no evidence of the offense of arrest of driving with a suspended license could
possibly be obtained by a search of his vehicle. Id. at 1715, 1719.

      The Gant decision confined the applicability of the search-incident-to-arrest
exception to two situations. First, police may “search a vehicle incident to a recent
occupant’s arrest only when the arrestee is unsecured and within reaching distance of
the passenger compartment at the time of the search.” Id. at 1719. The within-reach
requirement places the search-incident-to-arrest exception within the boundaries set
by the two underlying rationales for the rule set forth in Chimel v. California, 395
U.S. 752 (1969)—ensuring officer safety and protecting perishable evidence. Id. at



      3
       Davis bases his appeal on the Arizona Supreme Court’s decision because the
United States Supreme Court had not yet rendered its decision when Davis filed his
appeal. Henceforth, when we refer to the Gant decision, we are referring to the United
States Supreme Court’s decision, Arizona v. Gant, 129 S. Ct. 1710 (2009).
                                          -4-
762-63.4 In addition to the within-reach requirement, Gant also provided “that
circumstances unique to the vehicle context justify a search incident to a lawful arrest
when it is ‘reasonable to believe evidence relevant to the crime of arrest might be
found in the vehicle.’” Gant, 129 S. Ct. at 1719 (quoting Thorton v. United States, 541
U.S. 615, 632 (2004) (Scalia, J., concurring in judgment)). Thus, police may validly
search an automobile incident to an “arrest only if the arrestee is within reaching
distance of the passenger compartment at the time of the of the search or it is
reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at
1723 (emphasis added).

     Under the Gant decision, Officer Howard lawfully searched Davis’s
automobile. At the time of the search, Officer Howard had already discovered


      4
        Basing the exception on the twin rationales of officer safety and the
preservation of perishable evidence, Chimel limited the scope of a search incident to
arrest to “the arrestee’s person and the area ‘within his immediate control’–construing
that phrase to mean the area from within which he might gain possession of a weapon
or destructible evidence.” 395 U.S at 763. In New York v. Belton, 453 U.S. 454
(1981), the Chimel rule was applied to vehicle searches to “hold 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.” Id. at 460 (footnote omitted). After Belton, it was unclear
whether Chimel’s rationales limited the applicability of this exception to situations in
which the arrestee actually posed such a threat. Subsequent courts disagreed as to
whether Belton’s seemingly bright-line rule removed the exception from its moorings
in Chimel’s rationales of protecting officer safety and preserving destructible
evidence. Some courts continued to limit searches pursuant to traffic arrests to
situations in which officers could show that the arrestee or undetained passengers
were capable of accessing the passenger compartment. Most others took Belton at
face value and permitted automobile searches even after the suspect had been
handcuffed and safely secured. See Gant, 129 S. Ct. at 1718 n.2 (collecting and
comparing cases). Gant settled the issue by limiting the applicability of vehicular
searches incident to arrest within the confines of the two Chimel rationales of safety
and evidence-preservation.
                                          -5-
marijuana in Davis’s pocket and placed Davis in custody. The odor of marijuana was
wafting from the car. Empty beer bottles lay strewn in the back seat. Three
passengers, all of whom had been drinking, were not in secure custody and
outnumbered the two officers at the scene. Each of these facts comports with Gant’s
within-reach requirement and its two underlying rationales as articulated in Chimel.
Although Davis had been detained, three unsecured and intoxicated passengers were
standing around a vehicle redolent of recently smoked marijuana. These facts are
textbook examples of “[t]he safety and evidentiary justifications underlying Chimel’s
reaching-distance rule . . . .” Gant, 129 S. Ct. at 1714; see also id. at 1719
(distinguishing New York v. Belton, 453 U.S. 454 (1981), on the grounds that there
a single officer was confronted with four unsecured arrestees, whereas in Gant five
officers had handcuffed and secured three arrestees in different patrol cars).5

       In addition to his search-incident-to-arrest challenge, Davis also appeals the
district court’s ruling that the search was permissible under the “automobile
exception” to the warrant requirement. “Under the automobile exception, officers
may search a vehicle without a warrant if they have probable cause to believe the
vehicle contains evidence of criminal activity.” United States v. Cortez-Palomino,
438 F.3d 910, 913 (8th Cir. 2006) (per curiam). In Cortez-Palomino, we held that the
search of an automobile was supported by probable cause where officers observed
packages wrapped in cellophane and detected the odor of masking agents commonly
used to obscure the smell of narcotics. Id. If there had been any doubt about whether
the smell of smoldering cannabis constituted probable cause to search the vehicle,
such doubt was obviated by the discovery of a bag of marijuana in Davis’s pocket.


      5
       We also note that the discovery of marijuana in Davis’s pocket combined with
the smell of recently burned marijuana made it “reasonable to believe evidence
relevant to the crime of arrest might be found in the vehicle.” Gant, 129 S. Ct. at 1719
(quoting Thornton v. United States, 541 U.S. 615, 632 (2004)). We do not decide the
case on this basis, however, because the evidence-of-arresting-offense rule had not
been established until after the filing of this appeal.
                                          -6-
Consequently, Officer Howard was permitted to search Davis’s vehicle without a
warrant under the automobile exception.6

                                         III.

      Accordingly, we affirm the district court’s denial of Davis’s motion to suppress.




      6
       It is unnecessary to address the government’s argument that the firearm would
have inevitably been discovered during an inventory search after the vehicle had been
impounded.
                                         -7-
