                                                                             FILED
                    UNITED STATES COURT OF APPEALS                            JAN 10 2011

                                                                         MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                          U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                        No. 10-30001

              Plaintiff - Appellee,              D.C. No. 2:08-cr-06057-LRS-1
                                                 Eastern District of Washington,
  v.                                             Spokane

BENJAMIN GROTE,
                                                 ORDER
              Defendant - Appellant.


Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.

       The panel has unanimously voted to deny the petition for panel rehearing.

Judges McKeown and Bea have voted to deny the suggestion for rehearing en

banc, and Judge Hawkins so recommends.

       The full court has been advised of the suggestion for rehearing en banc and

no judge has requested a vote on whether to rehear the matter en banc. Fed. R.

App. P. 35(b).

       The petition for panel rehearing and the suggestion for rehearing en banc are

denied. No further petitions shall be entertained.
                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 10 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-30001

              Plaintiff - Appellee,              D.C. No. 2:08-cr-06057-LRS-1

  v.
                                                 AMENDED
BENJAMIN GROTE,                                  MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Eastern District of Washington
                  Lonny R. Suko, Chief District Judge, Presiding

                      Argued and Submitted August 31, 2010
                               Seattle, Washington

Before: HAWKINS, McKEOWN and BEA, Circuit Judges.

       Benjamin Grote (“Grote”) appeals his conviction for possession of an

unregistered firearm in violation of 26 U.S.C. § 5861(d). Grote contends that the

district court erred when it denied his Fourth Amendment motion to suppress




        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
evidence seized from his truck and mobile home. We have jurisdiction under 28

U.S.C. § 1291. We find no merit in Grote’s contentions, and affirm.1

I.    The Search of Grote’s Vehicle

      The officers’ search of Grote’s vehicle was permissible as a search incident

to arrest under Arizona v. Gant, 129 S. Ct. 1710, 1719 (2009), because it was

“‘reasonable to believe evidence relevant to the crime of arrest might be found in

the vehicle.’” Id. (quoting Thornton v. United States, 541 U.S. 615, 632 (2004)

(Scalia, J., concurring)). It was reasonable to believe that the car might contain one

or more bottles of open liquor or drugs. Because officers had reasonable belief that

the car contained evidence relevant to a DUI, they could legally search the entire

passenger compartment under Gant. See id. There was no need for officers to limit

their search to the brown paper bag. (“[t]he offense of arrest will supply a basis for

searching the passenger compartment of an arrestee’s vehicle and any containers

therein.”) (emphasis added).

II.   The Search of Grote’s Mobile Home

      Grote contends his consent to search the trailer in which he lived was tainted

by officers’ exclusion of Grote from the trailer. Under the balancing test in Illnois



      1
        Because the parties are familiar with the facts of the case, we will repeat
them here only to the extent necessary to explain our decision.

                                          2
v. McArthur, 531 U.S. 326, 331-32 (2001), the officers’ warrantless seizure of

Grote’s trailer was reasonable. Because the officers found a .223 caliber

magazine—but no .223 rifle—in Grote’s truck the day before, there was probable

cause to believe Grote’s trailer contained an illegal firearm, and thus, evidence of a

crime or contraband. Excluding Grote from the trailer was less intrusive than

searching the trailer without a warrant. Grote was excluded from the trailer for

only ten minutes before he decided to “get this over with” and consented to a

search. And during Grote’s short exclusion from his trailer, a police officer was

diligently working on obtaining a warrant. Because the warrantless seizure of

Grote’s residence was reasonable, Grote’s consent to the search was also valid.

      AFFIRMED.




                                          3
