                                                                             FILED
                              NOT FOR PUBLICATION                             JAN 03 2011

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



                              FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                         No. 09-10480

                 Plaintiff-Appellee,               D. C. No. 2:09-cr-00337-WBS-1

     v.
                                                   MEMORANDUM*
 SHANNONJON BENTON,

                 Defendant-Appellant.


                       Appeal from the United States District Court
                          for the Eastern District of California
                       William B. Shubb, District Judge, Presiding

                        Argued and Submitted December 8, 2010
                               San Francisco, California


Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.


          A search of defendant Shannonjon Benton’s (“Benton”) purse resulted in her

conviction under 38 C.F.R. § 1.218(b)(39) for possession of a knife exceeding three

inches on Veteran Administration (“VA”) property, which she now appeals. The



 *
      This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
magistrate judge determined that the officers lacked probable cause to arrest Benton

for drug possession, a determination that has not been appealed by the government.

The magistrate nevertheless upheld the search on the theory that the officers could have

arrested Benton for bringing a dog onto VA property, in violation of 38 C.F.R.

§ 1.218(a)(11). Because Benton was not under arrest for the dog offense, and nothing

in the record supports a reasonable suspicion that Benton was armed or dangerous, we

reverse and remand with instructions to enter an order granting Benton’s motion to

suppress.

      The district court upheld the search as per se reasonable under the exception to

the warrant requirement permitting officers to conduct a contemporaneous “full field

search” incident to a lawful custodial arrest. See United States v. Robinson, 414 U.S.

218, 224, 235 (1973); Chimel v. California, 395 U.S. 752, 763 (1969). However, as

a threshold issue, we must “determine . . . whether appellant[] [was] subjected to

treatment that rendered [her] in custody at the time of the search.” United States v.

Mota, 982 F.2d 1384, 1386 (9th Cir. 1993) (internal quotation marks and citations

omitted, emphasis added). At the time of the search, the officers had already declined

to arrest Benton for the dog offense and she had been allowed to walk into the hospital

by herself to retrieve her prescription. “It is the fact of the lawful arrest which

establishes the authority to search.” Id. (quoting Robinson, 414 U.S. at 235). Here,


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there was no arrest for the dog offense at the time of the search and thus there could be

no search incident to arrest.

REVERSED and REMANDED for entry of an order granting the motion to

suppress.




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