                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4503


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

DONALD PALMORE,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, District Judge.
(8:07-cr-00056-DKC-1)


Submitted:    November 10, 2009            Decided:   December 23, 2009


Before WILKINSON, KING, and AGEE, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Timothy   Litka,    LAW   OFFICE    OF   TIMOTHY LITKA, LLC,
Washington, D.C., for Appellant. Rod J. Rosenstein, United
States Attorney, Bryan E. Foreman, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                Donald Palmore was convicted, by a jury, of possession

of a firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g)        (2006).     The       district    court     sentenced         Palmore    to

twenty-four months in prison.                On appeal, Palmore challenges the

district court’s denial of his motion to suppress and moves this

court to expedite his case.                  In light of the Supreme Court’s

recent decision in Arizona v. Gant, 129 S. Ct. 1710 (2009),

which addressed the search-incident-to-arrest exception to the

warrant requirement of the Fourth Amendment, we find that the

vehicle search incident to Palmore’s arrest was unreasonable. 1

We accordingly vacate the district court’s judgment and remand

for further proceedings.

                In Gant, the Supreme Court rejected the idea that the

Fourth Amendment “allow[s] a vehicle search incident to 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

         1
       Gant was decided after Palmore appealed the criminal
judgment. Thus, the district court did not have the benefit of
the Supreme Court’s decision.



                                             2
reasonable      to    believe      the    vehicle    contains    evidence    of   the

offense of arrest.”            Id. at 1723.         The Court further explained

that “[w]hen these justifications are absent, a search of an

arrestee’s vehicle will be unreasonable unless police obtain a

warrant    or        show   that      another       exception   to   the     warrant

requirement applies.”           Id. at 1723-24.

           Palmore was not in reaching distance of the vehicle’s

passenger compartment at the time of the search.                      Nor did the

officers   have       reason    to    believe     that    the   vehicle    contained

evidence of the offense of driving on a suspended license, for

which he was arrested.             See id. at 1719 (“Gant was arrested for

driving with a suspended license--an offense for which police

could not expect to find evidence in the passenger compartment

of Gant’s car.”).           As the Government commendably concedes, the

facts of this case do not justify the warrantless search of the

vehicle incident to his arrest.

           Accordingly,          we      vacate     the   criminal   judgment     and

remand for further proceedings. 2                 We deny Palmore’s motion to

expedite as moot.           We dispense with oral argument because the


     2
       Palmore raises another issue in this appeal, claiming that
the district court erred by failing to give the jury a curative
instruction after a witness testified that Palmore was a
prohibited person in possession of a firearm.    Because we have
concluded that the conviction should be vacated, we decline to
consider this remaining issue.



                                            3
facts   and   legal    contentions   are   adequately   presented    in   the

materials     before   the   court   and   argument   would   not   aid   the

decisional process.

                                                      VACATED AND REMANDED




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