                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 13 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30447

              Plaintiff - Appellee,              D.C. No. 1:09-cr-00064-BLW-1

  v.
                                                 MEMORANDUM *
MARCUS JORDAN KOEPNICK,

              Defendant - Appellant.



                   Appeal from the United States District Court
                             for the District of Idaho
                 B. Lynn Winmill, Chief District Judge, Presiding

                     Argued and Submitted December 7, 2010
                              Seattle, Washington

Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and EZRA, District
Judge.**

       Marcus Koepnick appeals the district court’s ruling which admitted into

evidence a sawed-off shotgun that police found in the bedroom of Jeffery




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
Koepnick, his father. As the facts are known to the parties, we repeat them here

only as necessary to explain our decision.

      Officer Clint Doerr went to Jeffery Koepnick’s house in order to execute a

warrant for the arrest of his adult son, Marcus. Jeffrey gave Doerr consent to

search the house for his son. When in Jeffrey’s bedroom, Doerr saw a gun stock

protruding from a pile of clothes and later testified that the gun, combined with the

presence of other people in the house, made him concerned for his safety. ER 87.

Officer Doerr removed the gun, which turned out to be an illegal sawed-off

shotgun. Marcus was charged with its possession.

      The Supreme Court has instructed that the purpose of the plain view

exception is to protect police officers from danger, as well as to prevent destruction

of evidence. See Arizona v. Hicks, 480 U.S. 321, 327 (1987) (noting that “the

practical justification” for the plain view exception “is the desirability of sparing

police . . . the inconvenience and the risk—to themselves or to preservation of the

evidence—of going to obtain a warrant” (emphasis added)). Even if the district

court were correct in finding that Doerr did not have probable cause to believe the

gun was illegal, it was still a gun. Additionally, there was another person in the

bedroom, Jeffery was elsewhere in the house, and Marcus’s whereabouts were

unknown. These circumstances justify Doerr’s temporary seizure of the gun as a


                                             2
reasonable safety precaution. Every circuit to confront this question has so held.

See United States v. Rodriguez, 601 F.3d 402, 408 (5th Cir. 2010); United States v.

Bishop, 338 F.3d 623, 628–29 (6th Cir. 2003); United States v. Timpani, 665 F.2d

1, 5 n.8 (1st Cir. 1981); United States v. Malachesen, 597 F.2d 1232, 1234 (8th

Cir. 1979).

      After Officer Doerr seized the gun from the pile of clothes, he could see that

it was an illegal sawed-off shotgun, justifying a permanent seizure of the weapon.

See Rodriguez, 601 F.3d at 408.1 Accordingly, the conviction is

      AFFIRMED.




      1
         We note that there are serious questions about whether Marcus Koepnick
has standing to challenge the search of his father’s bedroom. We need not reach
these questions, however, because Fourth Amendment standing is a matter of
substantive Fourth Amendment law, not a prerequisite to jurisdiction. See Rakas v.
Illinois, 439 U.S. 128, 140 (1978) (stating that Fourth Amendment standing issues
are “more properly placed within the purview of substantive Fourth Amendment
law than within that of standing”); cf. United States v. Leon, 468 U.S. 897, 925
(1984) (“There is no need for courts to adopt the inflexible practice of always
deciding whether the officers’ conduct manifested objective good faith before
turning to the question whether the Fourth Amendment has been violated.”).

                                          3
