                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                 No. 07-30098
                Plaintiff-Appellee,
               v.                            D.C. No.
                                          CR-06-02112-EFS
RICARDO GONZALEZ,
                                             OPINION
             Defendant-Appellant.
                                      
    On Remand From The United States Supreme Court

                   Filed August 24, 2009

       Before: Betty B. Fletcher, Richard A. Paez and
              N. Randy Smith, Circuit Judges.

               Opinion by Judge B. Fletcher




                           11571
                 UNITED STATES v. GONZALEZ           11573




                       COUNSEL

Rebecca L. Pennell, Federal Defenders of Eastern Washing-
ton and Idaho, Yakima, Washington, for the defendant-
appellant.

James A. McDevitt, United States Attorney, and Thomas J.
Hanlon (argued), Assistant United States Attorney, Yakima,
Washington, for the plaintiff-appellee.


                        OPINION

B. FLETCHER, Circuit Judge:

   We review this appeal for the second time on remand from
the United States Supreme Court. The Court on May 4, 2009
11574             UNITED STATES v. GONZALEZ
granted certiorari, and vacated and remanded our disposition
for further consideration in light of its recent decision in Ari-
zona v. Gant, 129 S. Ct. 1710 (2009). We hold that Gant
requires that Appellant Ricardo Gonzalez’s motion to sup-
press be granted and, therefore, Gonzalez’s conviction be
reversed.

   Gonzalez had previously been convicted of Possession of
a Firearm and Ammunition by a Prohibited Person, in viola-
tion of 18 U.S.C. § 922(g)(1). Gonzalez’s conviction resulted
from a firearm found during a June 19, 2006 traffic stop of a
car in which Gonzalez was riding. The police, following the
arrest of another passenger for out-standing warrants,
searched the passenger compartment of the car and discovered
a loaded 9 millimeter Beretta firearm inside the glovebox.
Gonzalez filed a motion to suppress, asserting the search of
the car violated his Fourth Amendment rights, which the dis-
trict court denied. Following his conviction on November 28,
2006, Gonzalez appealed his conviction and sentence, assert-
ing in part that the denial of his motion to suppress was in
error. We affirmed the district court on all aspects of the
appeal. United States v. Gonzalez, 290 Fed. Appx. 51 (9th Cir.
Aug. 7, 2008). Our ruling affirming denial of the motion to
suppress rested on the Supreme Court’s holding in New York
v. Belton, 453 U.S. 454, 460 (1981), which has been read by
our court as permitting a warrantless vehicle search incident
to the arrest of an occupant of the vehicle. Gonzalez, 290 Fed.
Appx. at 52; see United States v. Weaver, 433 F.3d 1104,
1106 (9th Cir. 2006) (“Applying the Belton rule, we have held
that a warrantless automobile search will be valid if it is
‘roughly contemporaneous with the arrest.’ ”).

   In Gant, the Court affirmed the Arizona Supreme Court’s
holding that the broad reading of Belton by our and other
courts was error. Reading Belton more narrowly, the Court
announced as the rule for vehicle searches incident to arrest:
“Police may search a vehicle incident to a recent occupant’s
arrest only if the arrestee is within reaching distance of the
                  UNITED STATES v. GONZALEZ              11575
passenger compartment at the time of the search or it is rea-
sonable to believe the vehicle contains evidence of the offense
of arrest. When 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 require-
ment applies.” Gant, 129 S. Ct. at 1723-24. The Government
concedes that, under the Supreme Court’s current reading of
Belton stated in Gant, the search of Gonzalez’s vehicle was
improper because Gonzalez was handcuffed and secured in a
patrol vehicle at the time of the search of the vehicle. How-
ever, the Government asserts nonetheless that the search was
in good faith under the then-prevailing interpretation of Bel-
ton and that, therefore, the exclusionary rule should not be
applied.

   [1] The Government’s assertion is not directly supported by
our current case law. The Government relies on the Supreme
Court’s recent decision in Herring v. United States, 129 S. Ct.
695 (2009), which applied the good faith exception of United
States v. Leon, 468 U.S. 897 (1984), in holding that whether
the exclusionary rule should be applied to a search in viola-
tion of the Fourth Amendment “turns on the culpability of the
police and the potential of exclusion to deter wrongful police
conduct.” Herring, 129 S. Ct. at 698. Neither the Supreme
Court nor our court, however, has applied the good faith
exception to the scenario we face: a search conducted under
a then-prevailing interpretation of a Supreme Court ruling, but
rendered unconstitutional by a subsequent Supreme Court rul-
ing announced while the defendant’s conviction was on direct
review. The cases the Government relies on involve applica-
tion of the good faith exception to searches conducted in reli-
ance on a warrant held invalid following the search; see, e.g.,
Herring 129 S. Ct. at 698; or a statute or regulation subse-
quently found unconstitutional during direct review of the
defendant’s conviction; see, e.g., Illinois v. Krull, 480 U.S.
340 (1987); United States v. Peltier, 422 U.S. 531 (1975);
United States v. Meek, 366 F.3d 705 (9th Cir. 2004).
11576                UNITED STATES v. GONZALEZ
   [2] We conclude, however, that this case should be con-
trolled by long-standing precedent governing the applicability
of a new rule announced by the Supreme Court while a case
is on direct review. The Court has held that “a decision of this
Court construing the Fourth Amendment is to be applied
retroactively to all convictions that were not yet final at the
time the decision was rendered.” United States v. Johnson,
457 U.S. 537, 562 (1982); see Griffith v. Kentucky, 479 U.S.
314, 328 (1987) (finding that even decisions constituting a
“clear break” with past precedent have retroactive applica-
tion). This precedent requires us to apply Gant to the current
case without the overlay of an application of the good faith
exception. To hold that Gant may not be fully applied here,
as the Government urges, would conflict with the Court’s
retroactivity precedents.

   [3] Such a ruling would undermine the rationale of Johnson
and Griffith. As stated in Griffith, “failure to apply a newly
declared constitutional rule to criminal cases pending on
direct review violates basic norms of constitutional adjudica-
tion.” 479 U.S. at 314. It would violate “the integrity of judi-
cial review” by turning the court into, in effect, a legislative
body announcing new rules but not applying them, rather than
acting in our proper role as an adjudicative body deciding
cases. It also would “violate[ ] the principle of treating simi-
larly situated defendants the same” by allowing only one
defendant to be the beneficiary of a newly announced rule. Id.
at 322-23. In Gant, the Supreme Court upheld in full the deci-
sion of the Arizona Supreme Court, which not only found the
search at issue unconstitutional, but ordered the suppression
of the evidence found as a result of the unconstitutional
search. See Gant, 129 S. Ct. at 1724; State v. Gant, 162 P.3d
640, 646 (Ariz. 2007). Hence, refusal to allow Gonzalez simi-
larly to benefit from the Court’s ruling in Gant through appli-
cation of the exclusionary rule would implicate the same
concerns mandating the Court’s holding in Griffith.1
  1
   We are concerned here with the Fourth Amendment rights of the
defendant. We do not consider whether the police officers are entitled to
qualified immunity in a 42 U.S.C. § 1983 civil rights action.
                     UNITED STATES v. GONZALEZ                      11577
   [4] Because both Johnson and Griffith remain binding pre-
cedent, we cannot apply the good faith exception here without
creating an untenable tension within existing Supreme Court
law. We, therefore, hold that evidence derived from the search
at issue must be suppressed and reverse Gonzalez’s conviction.2

   REVERSED AND REMANDED.




  2
    To the extent that our opinion conflicts with our previous holding in
United States v. Osife, 398 F.3d 1143 (9th Cir. 2005), we decline to follow
Osife in light of the Supreme Court’s decision in Gant. See Miller v. Gam-
mie, 335 F.3d 889, 900 (9th Cir. 2003) (holding that “a three-judge panel
of this court and district courts should consider themselves bound by the
intervening higher authority and reject the prior opinion of this court as
having been effectively overruled”).
