Osife

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 04-10172 Plaintiff-Appellee, v.  D.C. No.

CR-03-00393-FJM

DALE JUAN OSIFE,

OPINION

Defendant-Appellant.  Appeal from the United States District Court for the District of Arizona Frederick J. Martone, District Judge, Presiding

Argued and Submitted December 9, 2004—San Francisco, California

Filed February 22, 2005

Before: Diarmuid F. O’Scannlain, Robert E. Cowen,* and Carlos T. Bea, Circuit Judges.

Opinion by Judge O’Scannlain

*The Honorable Robert E. Cowen, Senior United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. COUNSEL

Robert J. McWhirter, Federal Public Defender’s Office, Phoe- nix, Arizona, argued the cause for the appellant; Fredric F. Kay was on the briefs.

Mary Beth Pfister, United States Attorney’s Office, Phoenix, Arizona, argued the cause for the appellee; Paul K. Charlton and Michael T. Morrissey were on the brief.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether the Fourth Amendment permits police to…