                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 17 2010

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



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 08-50536

             Plaintiff - Appellee,               D.C. No. 3:08-cr-00854-LAB-1

  v.
                                                 MEMORANDUM *
RODNEY PARKER,

             Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Southern District of California
                    Larry A. Burns, District Judge, Presiding

                     Argued and Submitted February 10, 2010
                              Pasadena, California

Before: THOMAS and SILVERMAN, Circuit Judges, and FOGEL, *** District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.


        **
            The Honorable Jeremy D. Fogel, United States District Judge for the
Northern District of California, sitting by designation.
      Rodney Parker appeals the district court’s denial of his motion to dismiss

and motions to suppress. We review de novo a denial of a motion to dismiss an

indictment on constitutional grounds. United States v. Gallenardo, 579 F.3d 1076,

1081 (9th Cir. 2009). We also review de novo a district court’s denial of a motion

to suppress. United States v. Lemus, 582 F.3d 958, 961 (2009). We have

jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

      Parker first claims that 18 U.S.C. § 922(g)(1) is unconstitutional because, he

says, it infringes the Second Amendment right to bear arms and violates the equal

protection guarantee of the Fifth Amendment. These arguments were recently

rejected in United States v. Vongxay, No. 09-10072, 2010 WL 431768 (9th Cir.

Feb. 9, 2010).

      We also reject Parker’s argument that 18 U.S.C. § 922(g)(1) violates the

Tenth Amendment. We previously have held that Congress’s regulation of firearm

possession by felons is allowed under the commerce clause, and therefore, does not

violate the Tenth Amendment. United States v. Collins, 61 F.3d 1379, 1383–84

(9th Cir. 1995). The Supreme Court’s decision in District of Columbia v. Heller,

128 S. Ct. 2783 (2008) does not undermine that analysis.

      Parker’s arguments that the district court erred in denying his motions to

suppress also fail. The traffic stop of his vehicle was based on both suspicion of


                                         2
illegal window tint and suspicion that Parker was a felon in possession of

ammunition. The deputy sheriff who stopped Parker had reason to suspect that

Parker was a felon; and the deputy saw him leave a gun show with what the deputy

reasonably suspected to be a box of ammunition. This information provided a

reasonable basis for an investigative stop. Terry v. Ohio, 392 U.S. 1, 21 (1968).

The reasonableness of these suspicions, and the resulting right to investigate, are

not affected by the fact that the window tint was ultimately found to be legal. See

United States v. Morales, 252 F.3d 1070, 1073–74 (9th Cir. 2001). Next, in light

of the circumstances, the ten-minute delay between the sheriff’s deputy’s traffic

stop and the arrival of the federal agents was not unreasonable. It did not render

the detention unlawful. See United States v. Mayo, 394 F.3d 1271, 1276 (9th Cir.

2005).

      Likewise, the search of Parker’s vehicle after his arrest was not

unreasonable. The officers had reason to believe that additional evidence of

Parker’s crime-of-arrest might be found in the vehicle. Arizona v. Gant, 129 S. Ct.

1710, 1719 (2009). They had already discovered .32 caliber ammunition; it was

reasonable to search for a .32 caliber firearm for which the ammunition might have

been purchased.




                                          3
      Finally, the surreptitious recording of Parker’s statements to his girlfriend

did not violate the Federal Wiretap Act, 18 U.S.C. § 2511(1)(a). Parker had no

objectively reasonable expectation of privacy while in police custody in the

backseat of a government car. See United States v. Monghur, 588 F.3d 975, 979

(9th Cir. 2009).

      AFFIRMED.




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