                                                                                                                           United States Court of Appeals
                                                                                                                                    Fifth Circuit
                                                                                                                                     F I L E D
                                 IN THE UNITED STATES COURT OF APPEALS
                                                                                                                                   November 16, 2006
                                                    FOR THE FIFTH CIRCUIT
                                                                                                                               Charles R. Fulbruge III
                                                                                                                                       Clerk

                                                                 No. 05-10667




United States of America,
                                                                                                                      Plaintiff-Appellee,

                                                                        versus

Troy Dean Palmer,

                                                                                                                        Defendant-Appellant.



                                         Appeal from the United States District Court
                                             for the Northern District of Texas



Before GARZA, DEMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

           Troy Dean Palmer appeals the district court’s ruling on a motion to suppress. For the

following reasons, we affirm.

                                 I. FACTUAL AND PROCEDURAL BACKGROUND

           On October 15, 2003, Palmer, driving along with a companion, parked a truck in a residential

driveway. Palmer was being followed by Officer Keller, a Grapevine police officer, who had run

Palmer’s registration and discovered several outstanding traffic warrants. Upon seeing Palmer and



           *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
his companion exit, Officer Keller made contact and requested their licenses. After running Palmer’s

license, Officer Keller discovered several more outstanding traffic warrants. Palmer requested that

the officer not make an arrest as he was cooperating with an ongoing, unrelated FBI investigation.

Officer Keller contacted the FBI, which also requested that an arrest not be made. Officer Keller’s

supervisor, however, insisted on arresting Palmer.

       Approximately twenty-four minutes passed while Officer Keller completed Palmer’s arrest.

During that time, Palmer was in the general area of the parked truck and Officer Keller. After

arresting Palmer, placing him in the back of the patrol car, and obtaining the car keys from Palmer’s

companion, Officer Keller searched the truck, discovering a .38 caliber Smith & Wesson handgun,

a small amount (24.1 grams) of methamphetamine and other drug paraphernalia.

       Palmer is an ex-felon and was charged with being a felon in possession of a firearm and for

being in possession of a firearm with an altered serial number. After the district court denied his

motion to suppress, Palmer agreed to plead guilty to being a felon in possession of a firearm but

reserved the right to appeal the denial of the motion to suppress. See, e.g., 18 U.S.C. § 922(g) (1);

18 U.S.C. § 924 (a) (2). Palmer now appeals and we affirm.

                                  II. STANDARD OF REVIEW

       When reviewing a motion to suppress, this court views all evidence in the light most favorable

to the prevailing party. United States v. Howard, 106 F.3d 70, 73 (5th Cir. 1997). Factual findings

are reviewed for clear error, and questions of law are reviewed de novo. Id.

                                        III. DISCUSSION

       Palmer alleges that the search of the truck was unreasonable under the Fourth Amendment.

We affirm the district court. Our decision is guided by Thornton v. United States, 541 U.S. 615


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(2004), which held that the legality of searches incident to a lawful arrest do not rest on whether an

officer makes contact with a person inside or outside of a vehicle. Thornton extended the holding

in New York v. Belton, 453 U.S. 454 (1981), a case establishing the constitutionality of searches

incident to a lawful arrest, to cover such situations where “recent occupants” of vehicles are arrested.

        The majority in Thornton does not precisely define the term “recent occupants” other than

to remark that “the arrest of a suspect who is next to a vehicle presents identical concerns regarding

officer safety and the destruction of evidence as the arrest of one who is inside the vehicle.” Thornton,

453 U.S. at 621. Thus, the opinion appears to provide officers broad discretion to search any and

all areas within reach of a person who is arrested.

        The Thornton holding does not go any further than that, simply stating that it is constitutional

for officers to search vehicles following the arrest of a “recent occupant of a vehicle such as petitioner

was here.” Id. at 624. In Thornton, the officer began following a car, ran its registration and

discovered that it did not match. Soon thereafter, the defendant parked the car and exited. The

officer approached and questioned the defendant. After a pat down search, the officer discovered

narcotics, leading to a lawful arrest. Following the arrest and after placing the defendant in the patrol

car, the officer searched the vehicle, finding a .9 millimeter handgun. The situation in Thornton is

analogous to the one here. After a lawful arrest and after placing Palmer in the patrol car, Officer

Keller conducted a constitutional search incident to the arrest. The twenty-four minutes that passed

between the time the officer approached Palmer and the time he made the arrest was not sufficient

to remove Palmer from being characterized as a “recent occupant.”

        The majority opinion in Thornton chose not to reach the major issue raised in the concurring

opinions, which is whether Belton should be limited to situations where it is “reasonable to believe


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evidence relevant to the crime of arrest might be found in the vehicle . . . .” Id. at 624. Likewise, we

decline to decide that issue as the concurring opinions ultimately joined the majority holding in

Thornton, which would uphold the constitutionality of Officer Keller’s search of Palmer’s vehicle.

       Under Thornton, two of our sister circuits have also upheld “recent occupant” searches

resting on facts similar to those involved here. See, e.g., United States v. Herndon, 393 F.3d 665 (6th

Cir. 2005) (vacated on other grounds); United States v. Poggemiller, 375 F.3d 686 (8th Cir. 2004).

                                         IV. CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s denial of the motion to suppress.

AFFIRMED.




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