United States v. Rodney Parker , 371 F. App'x 749 ( 2010 )

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                                                                              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NOT FOR PUBLICATION                                MAR 17 2010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