                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-1280
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the Western
      v.                                * District of Missouri.
                                        *
Antwan L. Tinsley,                      *        [UNPUBLISHED]
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: November 20, 2009
                                Filed: March 1, 2010
                                 ___________

Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
                           ___________

PER CURIAM.

       After the district court1 denied his motion to suppress, Antwan Tinsley entered
a conditional guilty plea to one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). Tinsley now appeals the denial of
his motion to suppress, and we affirm.

     In the early morning hours of December 3, 2006, officers with the Kansas City,
Missouri, police department were called to respond to the intersection of 28th and

      1
        The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
Troost where a driver was reported to be slumped over the wheel of his vehicle. Upon
arriving at the scene, the officers observed Tinsley's vehicle stopped in the middle of
the street, with its left turn signal activated and the engine running. As officers
approached the vehicle, they saw Tinsley asleep in the driver's seat. In an effort to
awaken him, the officers began knocking on the window, shaking the vehicle, and
shouting. After about two minutes, Tinsley apparently awoke and, without
acknowledging the officers, began to slowly move his vehicle forward.

       The officers returned to their squad car and activated its siren. After driving a
short distance, Tinsley stopped his vehicle. Officers again approached the vehicle and
shouted for Tinsley to roll down the window, put the vehicle in park, and open the
door. After another two minutes, Tinsley slowly rolled down his window. One of the
officers immediately reached in through the window, put the vehicle in park, and
opened the door. Upon opening the door, officers began to remove Tinsley and
smelled a strong odor of alcohol. Based on their observations, officers believed
Tinsley was intoxicated and arrested him for driving while impaired.2

      While two officers placed Tinsley under arrest, a third officer began searching
the vehicle. The search produced a handgun, cocaine, and some marijuana. Tinsley
was charged in a two-count indictment with being a felon in possession of a firearm
and possession with intent to distribute cocaine base. He moved to suppress the
evidence found during the search. The magistrate judge3 recommended that the
motion be denied, and the district court adopted the magistrate judge's report and




      2
       Notably, the officers decided not to conduct a field sobriety test because they
believed that Tinsley's impairment was obvious and that it would not have been safe
to ask Tinsley to take the test.
      3
      The Honorable John T. Maughmer, United States Magistrate Judge for the
Western District of Missouri.

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recommendation. Tinsley then pled guilty to the firearm charge but reserved his right
to appeal the denial of the motion to suppress.4 Tinsley now brings that appeal.

       "When reviewing the denial of a motion to suppress, we review the district
court's factual findings for clear error and the legal question of whether the Fourth
Amendment was violated de novo." United States v. Romo-Corrales, 592 F.3d 915,
918 (8th Cir. 2010). "[S]earches 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).
"Among the exceptions to the warrant requirement is a search incident to a lawful
arrest." Arizona v. Gant, 129 S. Ct. 1710, 1716 (2009). Here, the district court held
that the search of Tinsley's vehicle was reasonable as an automobile search incident
to arrest. On appeal Tinsley contends that his arrest was unlawful and that the search
exceeded the scope of an automobile search incident to arrest as outlined in Gant. We
disagree.

       Tinsley first argues that because police failed to conduct a field sobriety test,
the district court erred in finding that his warrantless arrest was lawful. "A
warrantless arrest without probable cause violates the Fourth Amendment as applied
to state actors by the Fourteenth Amendment." Stufflebeam v. Harris, 521 F.3d 884,
886 (8th Cir. 2008). "We review de novo the district court's conclusion that there was
probable cause to arrest, and the underlying factual determinations for clear error."
United States v. Quiroga, 554 F.3d 1150, 1154 (8th Cir.), cert. denied, 129 S. Ct. 2175
(2009). And "[w]e consider 'the totality of the circumstances as set forth in the
information available to the officers at the time of arrest.'" Id. (quoting United States
v. Kelly, 329 F.3d 624, 628 (8th Cir. 2003)). Prior to his arrest, officers observed
Tinsley (1) sleeping (or passed out) at the wheel of his vehicle on a public street with


      4
       Pursuant to the plea agreement, the government dismissed the cocaine charge.

                                          -3-
the engine running and the vehicle in gear, (2) taking several minutes to respond to
officers attempts to awaken him, (3) driving the vehicle away without acknowledging
the officers, and (4) acting lethargic and slow. Additionally, officers smelled a strong
odor of alcohol coming from Tinsley. Under the totality of the circumstances, this
information was sufficient to give officers probable cause to arrest Tinsley for driving
while impaired.

       Tinsley's second argument is that the warrantless search of his vehicle was
impermissible under Gant. We disagree. Pursuant to Gant, "[p]olice may search a
vehicle incident to a recent occupant's arrest only if the arrestee is [(1)] within
reaching distance of the passenger compartment at the time of the search or [(2)] it is
reasonable to believe the vehicle contains evidence of the offense of arrest." Gant,
129 S. Ct. at 1723. Tinsley argues that because he was already secured at the time of
the search, the search exceeded the scope of Gant. However, the officers' observations
of Tinsley's behavior coupled with the strong odor of alcohol gave them a reasonable
basis to believe that evidence relevant to Tinsley's intoxication (i.e. the means of
intoxication such as bottles containing alcohol) might be found in the vehicle.5 Thus,
under the second prong of Gant, the warrantless search of Tinsley's vehicle incident
to his lawful arrest was reasonable.6




      5
       Such containers would be relevant to a subsequent prosecution not only for
driving while impaired, but also the separate, yet related, offense of consuming an
alcoholic beverage while driving. See Mo. Ann. Stat. § 577.010 (driving while
intoxicated); id. § 577.017 (consuming an alcoholic beverage while driving).
      6
       The magistrate judge also found the warrantless search reasonable under the
inventory exception. See, e.g., United States v. Betterton, 417 F.3d 826, 830-31 (8th
Cir. 2005) (discussing the inventory exception to the warrant requirement). Since this
search was reasonable under Gant, we do not express any opinion on the
reasonableness of the inventory search.

                                          -4-
      Therefore, we conclude that officers had probable cause to arrest Tinsley for
driving while intoxicated and that the warrantless search was reasonable under the
search of a vehicle incident to a recent occupant's arrest exception as refined by Gant.
Accordingly, the judgment of the district court is affirmed.
                        ______________________________




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