United States v. Bernard Glenn , 452 F. App'x 795 ( 2011 )

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT FILED
OCT 07 2011
UNITED STATES OF AMERICA, No. 10-30287
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Plaintiff - Appellee, D.C. No. 3:09-cr-05668-RBL-1
Western District of Washington,
v. Tacoma
BERNARD GLENN,
ORDER
Defendant - Appellant.
Before: NOONAN and M. SMITH, Circuit Judges, and FOGEL, District Judge.*
The memorandum disposition filed on August 4, 2011 is hereby withdrawn.
The petition for rehearing is DENIED. See Fed. R. App. P. 40.
*
The Honorable Jeremy D. Fogel, District Judge for the U.S. District
Court for Northern California, San Jose, sitting by designation.
FILED
NOT FOR PUBLICATION OCT 07 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30287
Plaintiff - Appellee, D.C. No. 3:09-cr-05668-RBL-1
v.
MEMORANDUM*
BERNARD GLENN,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted August 1, 2011**
Seattle, Washington
Before: NOONAN and M. SMITH, Circuit Judges, and FOGEL, District Judge.***
Bernard Glenn (“Glenn”) appeals the district court’s denial of his motion to
suppress a firearm found on his person. Following the denial of his suppression
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jeremy D. Fogel, District Judge for the U.S. District
Court for Northern California, sitting by designation.
motion, Glenn was convicted of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C. §
1291 and we affirm.
We review de novo the denial of a motion to suppress, while reviewing for
clear error the underlying factual findings. United States v. Davis, 530 F.3d 1069,
1077 (9th Cir. 2008).
Following an evidentiary hearing, the district court articulated several bases
for finding that the government had met its burden of showing the gun should not
be suppressed. Each of those grounds was independently sufficient for the police
to search Glenn, and for the court to deny the suppression motion.
In his opening brief, Glenn failed to address several of those grounds, in
particular the district court’s finding that he was subject to a valid probationary
search. “Generally, an issue is waived when the appellant does not specifically and
distinctly argue the issue in his or her opening brief.” United States v. Brooks, 610
F.3d 1186, 1202 (9th Cir. 2010) (internal quotation marks and citation omitted).
Even assuming Glenn had properly raised the probation search issue, the
district court was correct. Probation searches satisfy the demands of the Fourth
Amendment when they are conducted pursuant to a state law that itself satisfies the
Fourth Amendment. Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). The
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Washington statute in effect at the time–since revised in a manner not relevant
here–required Glenn to submit to a search of his person when there was reasonable
cause to believe he had violated a requirement of his probation. See Wash. Rev.
Code § 9.94A.631 (2003). This court has confirmed that the Washington statute
allowing probation searches based on reasonable cause satisfies the reasonableness
standard of the Fourth Amendment. United States v. Conway, 122 F.3d 841, 842
(9th Cir. 1997).
The police officer who searched Glenn knew Glenn was under community
custody, or probation. Moreover, the officer had reasonable cause to believe Glenn
was in violation of several of the conditions of community custody, including (1)
constructive possession of a controlled substance, (2) association with drug sellers,
and (3) consumption of alcohol. The officer’s search was reasonable under the
Fourth Amendment. The district court did not err in denying Glenn’s motion to
suppress the firearm.
AFFIRMED.
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