                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 10-3141
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Southern District of Iowa.
Jason Richard Allison,                    *
                                          * [UNPUBLISHED]
             Appellant.                   *
                                     ___________

                               Submitted: September 23, 2011
                                   Filed: December 7, 2011
                                   ___________

Before RILEY, Chief Judge, COLLOTON and GRUENDER, Circuit Judges.
                              ___________

PER CURIAM.

       Jason Richard Allison pled guilty to possession with intent to distribute at least
fifty grams of methamphetamine. Allison now invokes the right to appeal that he
reserved in his plea agreement, challenging the district court’s1 denial in part of his
motion to suppress evidence. For the reasons stated below, we affirm.




      1
        The Honorable James E. Gritzner, Chief Judge, United States District Court
for the Southern District of Iowa.
       Allison and his girlfriend, Amber Shipp, were traveling in the back of a taxi
when law enforcement officers stopped the taxi because they identified Shipp—for
whom arrest warrants were outstanding—as an occupant of the taxi. After the
officers arrested Shipp and placed her in a patrol car, Deputy United States Marshal
Mark Shepherd removed Allison from the taxi. Allison was handcuffed and
surrounded by three law enforcement officers when Polk County Sheriff’s Deputy
Jake Hedgecock removed a zippered gym bag from the back seat of the taxi. Deputy
Hedgecock inspected the bag within four minutes of Shipp’s arrest and observed a
glass “crack or crank” pipe in it.

       When officers later learned that a warrant was outstanding for Allison, they
arrested him as well. A subsequent search of the bag at a police station revealed
approximately $7,000 in cash, digital scales, the glass pipe, and fourteen plastic bags
containing about twenty-nine grams of methamphetamine each. Allison sought to
suppress both the evidence found in the gym bag and statements he made after being
detained. The district court denied Allison’s motion to suppress the contents of the
gym bag, but granted the motion to suppress his statements. Allison now appeals the
district court’s denial of his motion to suppress evidence found in the gym bag.

       “In considering the denial of a motion to suppress, we review the district
court’s factual findings for clear error and its legal conclusions de novo.” United
States v. Kelley, 652 F.3d 915, 917 (8th Cir. 2011). The district court determined that
the evidence contained in the bag should not be suppressed because its discovery
resulted from a search conducted in reasonable reliance upon this court’s pre-Gant2
precedent governing searches incident to arrest. Allison argues that the district court
erred by failing to apply Gant retroactively to suppress the evidence in this case. In
the time between Allison’s briefing of this case and this decision, however, the
Supreme Court held that it was unnecessary to suppress evidence under Gant where


      2
          Arizona v. Gant, 556 U.S. 332 (2009).

                                         -2-
the search occurred prior to Gant, stating that “searches conducted in objectively
reasonable reliance on binding appellate precedent are not subject to the exclusionary
rule.” Davis v. United States, --- U.S. ---, 131 S. Ct. 2419, 2423-24 (2011).
Assuming, without deciding, that the search of the bag was unconstitutional under
Gant, we conclude that the incriminating evidence discovered should not be
suppressed in light of Davis.

        This court’s precedent at the time the officers stopped Allison in 2008 allowed
for a search of the passenger compartment of a vehicle “as ‘a contemporaneous
incident’ of” the “arrest of an ‘occupant’ or ‘recent occupant,’” even when “the
arrestee has exited the vehicle and has been handcuffed and placed in a police
officer’s patrol car . . . .” United States v. Hrasky, 453 F.3d 1099, 1101 (8th Cir.
2006) (quoting New York v. Belton, 453 U.S. 454, 460 (1981)). Because the search
of the gym bag was permissible under binding pre-Gant precedent as part of a search
of the passenger compartment of the taxi incident to arresting Shipp, the exclusionary
rule is not applicable even if the search was illegal under Gant. See Davis, 131 S. Ct.
at 2423-24.

       Allison also suggests that the search-incident-to-arrest exception to the warrant
requirement does not apply to the search of his bag because Shipp, not Allison, was
under arrest at the time of the initial search. We reject this argument. Even assuming
that Deputy Hedgecock knew the gym bag belonged to Allison prior to touching it,
knowledge that a container in an automobile belongs to someone other than the
arrestee does not preclude a search of the container in the course of a search incident
to arrest. See Wyoming v. Houghton, 526 U.S. 295, 305, 307 (1999) (noting that “[a]
criminal might be able to hide contraband in a passenger’s belongings as readily as
in other containers in the car” and holding that “police officers with probable cause
to search a car may inspect passengers’ belongings found in the car that are capable
of concealing the object of the search”).



                                          -3-
     For these reasons, we affirm the district court’s partial denial of Allison’s
motion to suppress evidence.
                      ______________________________




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