                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0287n.06

                                            No. 10-5178

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                          FILED
                                                                                       May 03, 2011
UNITED STATES OF AMERICA,                                 )                      LEONARD GREEN, Clerk
                                                          )
          Petitioner-Appellee,                            )
                                                          )
v.                                                        )    On Appeal from the United States
                                                          )    District Court for the Western
FORTRELL LATRAE SAIN,                                     )    District of Tennessee
                                                          )
          Defendant-Appellant.




Before:          KENNEDY, BOGGS, and SUTTON, Circuit Judges.

          BOGGS, Circuit Judge. Defendant Fortrell Sain was convicted of being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g), and was sentenced to 34 months in prison. Sain now

appeals that conviction, arguing that the evidence against him was the product of an unconstitutional

search of his vehicle and that the district court erroneously denied his motion to suppress. We

affirm.

                                                   I

          At approximately 1 p.m. on January 15, 2009, Sergeant Shane Beaver, a ten-year veteran of

the Jackson Police Department, received a be-on-the-lookout (“BOLO”) radio broadcast. The BOLO

reported that a black male, Fortrell Sain, was wanted regarding a domestic assault that left the victim

with a minor injury. Sain was said to be driving his red 1988 Ford Mustang with a black drop-down
No. 10-5178
United States v. Fortrell Sain

or convertible top,1 and the BOLO specified the vehicle’s license plate number. Significantly, the

broadcast also reported that Sain was either armed or possibly armed with a handgun,2 which was

either under the front seat or inside a blue backpack.

       Within a few minutes, Beaver spotted the Mustang, which he proceeded to follow to a gas

station. Beaver testified that, because the suspect was armed, he thought it best to wait for

assistance. Within a minute or two, two backup officers arrived and immediately approached Sain

while he was outside the vehicle next to the gas pump, ordered him to the ground, and handcuffed

him. Once the officers confirmed his identity, Sain was placed under arrest for the domestic assault.

       After arresting Sain, Beaver and another officer proceeded to search the Mustang while the

third officer stood by Sain, who had not yet been placed into a police car. Beaver first searched

under the driver’s seat, but did not find the gun. Beaver testified that the Mustang was a hatchback,

and that the hatchback area could be reached from the interior of the vehicle. However, Beaver used


       1
       Although not addressed by the district court or either party, it appears as though the
statement in the BOLO about the Mustang’s having a convertible top was inaccurate. The Mustang
was described as a hatchback, and 1988 Mustang hatchbacks did not have convertible tops.
       2
         It is not clear from Beaver’s testimony whether the BOLO report stated that Sain was armed
or that he was possibly armed. Beaver twice stated that he knew from the broadcast that Sain was
armed. But on cross-examination, Beaver’s testimony was more qualified at times. Defense counsel
asked Beaver, “Officer Taylor advised in his BOLO that there was possibly going to be a gun in the
vehicle . . . correct?”, and Beaver responded in the affirmative. Later, defense counsel asked Beaver
whether he “would . . . agree that it was a possibility . . . [t]hat’s what’s in your police report.”
Beaver responded that he did not understand the question, and defense counsel said, “Well, I’m just
stating that in your police report you state that Officer Taylor conveyed to you that there was a gun
possibly going to be in the vehicle either under the front seat or in the blue backpack. Do you agree
with that?” Beaver responded in the affirmative. Later still, Beaver testified that he knew that Sain
was “possibly armed.”


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United States v. Fortrell Sain

Sain’s keys to open the hatch from the outside. When asked if he required the keys to access the area

beneath the hatch, Beaver testified that “[y]ou can access it through the inside of the car, through

the—you know, you can reach through between the back seats or fold the back seats down. But as

far as for us, for convenience, I’m not going to crawl in the back seat and try to search that when I

can open the back.” Inside the hatchback area of the Mustang, Beaver found a blue backpack that

contained a handgun, a magazine, and several rounds of ammunition.

        On March 16, 2009, a grand jury indicted Sain with being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g). Sain filed a motion to suppress the evidence on August 6, 2009,

which the district court denied on October 7, 2009. The district court held that the officers had

probable cause to believe that “the Mustang . . . contain[ed] contraband in the form of a firearm,”

and the search was therefore valid pursuant to the automobile exception to the Fourth Amendment’s

warrant requirement. See United States v. Smith, 510 F.3d 641, 649–50 (6th Cir. 2007). Sain

pleaded guilty to the offense on November 16, 2009, expressly reserving the right to appeal the

denial of his suppression motion. On February 12, 2010, the district court sentenced Sain to 34

months in prison, and Sain filed a timely notice of appeal.

                                                   II

                                                   A

        When reviewing a denial of a motion to suppress, this court reviews the district court’s legal

conclusions de novo. United States v. Caruthers, 458 F.3d 459, 464 (6th Cir. 2006). However, the

district court’s factual findings are reviewed only for clear error, and we consider the evidence in the

light most favorable to the government. Ibid. Further, this court can affirm a district court’s denial

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United States v. Fortrell Sain

of a motion to suppress if the district court’s conclusion can be justified for any reason supported by

the record, including reasons not considered by the district court. United States v. Allen, 106 F.3d

695, 700 n.4 (6th Cir. 1997).

                                                   B

        In general, a police officer may search an automobile without a warrant only if the officer has

“probable cause to believe that the vehicle contains evidence of a crime.” Smith, 510 F.3d at 647

(quoting United States v. Lumpkin, 159 F.3d 983, 986 (6th Cir. 1998)). This so-called “automobile

exception” to the Fourth Amendment’s warrant requirement is justified because individuals have a

lesser expectation of privacy in their vehicles than in their homes. Ibid. (citing California v. Carney,

471 U.S. 386, 391 (1985)).

        In addition, a police officer may in certain circumstances conduct a warrantless search of a

vehicle incident to an arrest even without probable cause to believe that the vehicle contains

evidence of a crime. Searches of an automobile conducted pursuant to an arrest are controlled by

the recent Supreme Court decision in Arizona v. Gant, which holds that such a search violates the

Fourth Amendment unless “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.” 129 S. Ct. 1710, 1723 (2009). Prior to Gant, police officers had much greater authority to

search an automobile pursuant to an arrest, as laid out in New York v. Belton, 453 U.S. 454 (1981).

This circuit’s “consistent reading of Belton [was] that, once a police officer ha[d] effected a valid

arrest, that officer can search the area that is or was within the arrestee’s control.” United States v.

Buford, 632 F.3d 264, 269 (6th Cir. 2011) (quoting United States v. White, 871 F.2d 41, 44 (6th Cir.

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United States v. Fortrell Sain

1989)). Significantly, under this circuit’s Belton jurisprudence, the area that could be searched

incident to arrest included the cargo area of a wagon or hatchback-style vehicle, which, for purposes

of Belton, is within the passenger compartment of the vehicle because it is reachable without exiting

the vehicle. United States v. Pino, 855 F.2d 357, 364 (6th Cir. 1988) (holding that the passenger

compartment for purposes of Belton “is properly viewed as including all space reachable without

exiting the vehicle, excluding areas that would require dismantling the vehicle” (internal quotation

marks and citation omitted)).

        Recently, this circuit held that, even where a search of an automobile conducted incident to

an arrest is unconstitutional under Gant, suppression of the evidence seized is not warranted so long

as, at the time of search, the “police officer . . . reasonably relie[d] on settled circuit precedent that

authorizes the search of [the] vehicle.” Buford, 632 F.3d at 276–77. Under such circumstances, the

good-faith exception to the exclusionary rule applies. Ibid.; see Herring v. United States, 555 U.S.

135, 129 S. Ct. 695, 702 (2009) (“To trigger the exclusionary rule, police conduct must be

sufficiently deliberate that exclusion can meaningfully deter it . . . .”).

                                                    C

        We affirm the district court’s denial of Sain’s motion to suppress on the ground that the

search, which was conducted more than three months prior to the Supreme Court’s decision in Gant,

was valid under Belton and this circuit’s pre-Gant caselaw and, accordingly, the good-faith exception

to suppression applies. Buford, 632 F.3d at 276–77; Pino, 855 F.2d at 364. The district court found,

and the record supports, that Beaver found the handgun in the hatchback area of the Mustang, which



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United States v. Fortrell Sain

was reachable from inside the vehicle.3 Sain suggests that the district court’s finding is clearly

erroneous because Beaver did not, in fact, access the hatchback from inside the vehicle, but rather

used Sain’s keys to open the trunk. But the question is not how Beaver chose to access the area, but

rather how an occupant of the vehicle could have accessed it. See Pino, 855 F.2d at 364. Here,

Beaver testified that he could have accessed the hatchback area from inside the vehicle, but as a

matter of convenience, he chose to open the hatch from outside. The district court credited that

testimony, and its decision to do so was not clearly erroneous in the absence of any evidence to the

contrary. United States v. Akram, 165 F.3d 452, 456 (6th Cir. 1999) (“In the absence of any

contradictory testimony, we will abide by the district court’s findings of fact.”).

       Sain also argues that Beaver did not rely on established precedent in good faith because he

was unaware of the relevant precedent. This argument has no merit. First, Sain relies only on

Beaver’s testimony that he believed he could search the trunk of the Mustang incident to arrest. As

explained supra, the trunk of the Mustang hatchback is part of the passenger compartment for

purposes of Belton, so considering the type of vehicle at issue, Beaver’s statement is not problematic.

Second, and more significantly, the proper inquiry is of objective—not subjective—good faith.

Buford, 632 F.3d at 267; see United States v. Hython, 443 F.3d 480, 487–88 (6th Cir. 2006).




       3
         Although the district court used the term “trunk,” it noted that the vehicle was a hatchback
and that the area was accessible from inside the vehicle. Although Belton specifically carved out a
vehicle’s trunk from its rule, 453 U.S. at 461 n.4, the relevant inquiry is not what label the district
court used to describe the area, but whether the area was accessible from inside the vehicle, in which
case, for purposes of Belton, it is not a trunk at all, but rather a part of the passenger compartment.
Pino, 855 F.2d at 364.

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United States v. Fortrell Sain

Accordingly, Beaver’s search of the Mustang incident to Sain’s arrest was valid under this circuit’s

clearly established pre-Gant caselaw, and pursuant to Buford, the good-faith exception applies.

                                                III

       For the foregoing reasons, we AFFIRM the district court’s denial of Sain’s motion to

suppress.




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