                                                                           FILED
                           NOT FOR PUBLICATION                              APR 01 2010

                                                                        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. 08-50505

             Plaintiff - Appellee,               D.C. No. 2:08-cr-00424-ODW-1

  v.
                                                 MEMORANDUM *
JOSE MANUEL AVENDANO, AKA
Manuel Avendano, AKA Jose Avendano,

             Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Otis D. Wright, District Judge, Presiding

                       Argued and Submitted March 1, 2010
                              Pasadena, California

Before: RYMER and WARDLAW, Circuit Judges, and KENNELLY, ** District
Judge.

       Jose Manuel Avendano entered a conditional guilty plea to a one-count

indictment charging possession with intent to distribute cocaine, in violation of 21


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
U.S.C. § 841 (a) and (b), following the denial of his motion to suppress evidence

found during a vehicle search upon his arrest. We have jurisdiction under 28

U.S.C. § 1291, and review the lawfulness of a search and the denial of a motion to

suppress de novo. United States v. Ruckes, 586 F.3d 713, 716 (9th Cir. 2009). We

reverse.

      Police officers stopped Avendano after they saw him park and exit a vehicle

that was missing its front license plate. After Avendano failed to produce

identification, an officer discovered an outstanding warrant for his arrest for

driving on a suspended license. An officer then arrested Avendano and placed him

in the back of a patrol car, stationed roughly thirty yards away from his vehicle.

Another officer searched Avendano’s vehicle and discovered four large bricks of

cocaine. The district court correctly applied then controlling law, and denied

Avendano’s motion to suppress on search incident to arrest grounds. See Thornton

v. United States, 541 U.S. 615, 623 (2004); New York v. Belton, 453 U.S. 454, 462

(1981). However, while this case was pending on appeal, the Supreme Court

decided Arizona v. Gant, 129 S. Ct. 1710 (2009), which held 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

reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at


                                           2
1723. We conclude, as the government concedes, that Gant requires us to reverse

the district court’s denial of the motion to suppress on this basis.

         The government argues that we should affirm the district court because the

search was conducted in good faith reliance on then existing law. However, we

cannot affirm under the good faith exception because we must retroactively apply

Supreme Court decisions “‘to all convictions that were not yet final at the time the

decision was rendered.’” United States v. Gonzalez, 578 F.3d 1130, 1132 (9th Cir.

2009) (quoting United States v. Johnson, 457 U.S. 537, 562 (1982)). Therefore,

the good faith exception is an inappropriate basis upon which to affirm the district

court.

         As an alternative argument in opposition to the motion to suppress, the

government fully briefed and argued that the search was lawful under the

inevitable discovery doctrine because police officers could have lawfully

impounded the vehicle and would then have discovered the cocaine during an

ensuing inventory search. We have “emphasiz[ed] . . . that the inevitable discovery

doctrine will not always save a search that has been invalidated under Gant. The

government is still required to prove, by a preponderance of the evidence, that

there was a lawful alternative justification for discovering the evidence . . . .”

Ruckes, 586 F.3d at 719. To meet that burden in the context of an inventory


                                            3
search, the government must establish: (1) lawful impoundment of the vehicle; (2)

standardized local inventory search procedure; and (3) compliance with that

procedure. See South Dakota v. Opperman, 428 U.S. 364, 368-69, 375-76 (1976);

United States v. Bowhay, 992 F.2d 229, 230 (9th Cir. 1993); United States v.

Wanless, 882 F.2d 1459, 1463 (9th Cir. 1989). The government concedes that it

failed to meet its burden of proving a standardized local procedure and compliance

with that procedure. Because of the government’s failure of proof, we cannot

affirm the district court on the alternative ground of inevitable discovery. See

Singleton v. Wulff, 428 U.S. 106, 120 (1976). Therefore, because Avendano’s

guilty plea was explicitly conditioned upon the right to seek review of the adverse

determination of his motion to suppress evidence, and because we must reverse

that decision, we vacate and remand to the district court with instructions that

Avendano be allowed to withdraw his guilty plea and for further proceedings

consistent with this disposition.

      REVERSED; VACATED; and REMANDED.




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