                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 07-3141
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    * Appeal from the United States
                                          * District Court for the
      v.                                  * District of Nebraska.
                                          *
Zachary Hrasky,                           *
                                          *
             Appellant.                   *
                                     ___________

                              Submitted: June 02, 2009
                                 Filed: June 10, 2009
                                  ___________

Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

       After this court reversed the district court’s order suppressing evidence that was
seized from Zachary Hrasky’s vehicle after a traffic stop and arrest on July 2, 2004,
United States v. Hrasky, 453 F.3d 1099 (8th Cir. 2006), cert. denied, 127 S. Ct. 2098
(2007), Hrasky pleaded guilty to unlawful possession of a firearm as a previously
convicted felon. Hrasky appealed, seeking to preserve his Fourth Amendment claim
for further review, and we affirmed. United States v. Hrasky, 309 F. App’x 83 (8th
Cir. 2009) (per curiam). Hrasky petitioned for rehearing, and while the petition was
pending, the Supreme Court decided Arizona v. Gant, 129 S. Ct. 1710 (2009), which
addressed the search-incident-to-arrest exception to the warrant requirement of the
Fourth Amendment. Gant rejected the reading of New York v. Belton, 453 U.S. 454
(1981), that “predominated” in the courts of appeals, namely, that the Fourth
Amendment “allow[s] a vehicle search incident to the arrest of a recent occupant even
if there is no possibility the arrestee could gain access to the vehicle at the time of the
search.” Gant, 129 S. Ct. at 1718. The Court held instead that “[p]olice may search
a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching
distance of the passenger compartment at the time of the search or it is reasonable to
believe the vehicle contains evidence of the offense of arrest.” Id. at 1723.

       In light of Gant, we called for the United States Attorney to respond to
Hrasky’s petition for rehearing. The government now concedes that under the rule
announced in Gant, the search of Hrasky’s vehicle violated the Fourth Amendment,
because Hrasky was handcuffed in a law enforcement vehicle at the time of the search.
Further, while asserting that “the officers were completely justified in conducting the
search incident to arrest in 2004, based upon the clear state of the law as set forth in
New York v. Belton,” the government makes no argument in this case for application
of a good-faith exception to the exclusionary rule, cf. Illinois v. Krull, 480 U.S. 340
(1987), and expressly concedes that “due to the Supreme Court’s decision in Arizona
v. Gant, the two handguns seized from Appellant’s vehicle should be suppressed.” As
a result, the government concludes, “the conviction on appeal must be vacated.”

      Expressing no view on whether good-faith reliance on Belton would justify an
exception to the exclusionary rule if the argument is raised in another case, we grant
Hrasky’s petition for rehearing, apply the government’s concessions in this appeal,
vacate the judgment of the district court, and remand for further proceedings.
                       ______________________________




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