United States v. Kory Ray Smith

concurring:

I concur in the judgment but disagree with the majority’s analysis in Part II.B. The majority announces a new rule that muddies an area of Fourth Amendment jurisprudence which the Supreme Court has said must be clear, and renders a decision inconsistent with our prior case law.

I.

We cannot expect police officers to abide by ambiguous rules. As the Supreme Court in New York v. Belton, 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981), so perspicuously observed, “a highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions ... may be literally impossible of *954 application by the officer in the field.” Id. at 458 , 101 S.Ct. 2860 (quotations and citations omitted). The panel majority’s rule infuses such subtle nuance where none is called for. The old standard, requiring that a search of an automobile “incident to” an arrest proceed only after the arrest, constituted a straightforward rule to “regulate police in their day-to-day activities.” Id. at 458 , 101 S.Ct. 2860 . By holding that, in some not fully delineated circumstances, a warrantless search of a vehicle incident…

389 F.3d 944 UNITED STATES of America, Plaintiff-Appellee, v. Kory Ray SMITH, Defendant-Appellant. No. 04-50046. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 14, 2004. Filed November 23, 2004. COPYRIGHT MATERIAL OMITTED Michael Petrik, Jr., Trial Attorney, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant. Kevin M. Mulcahy, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California, Irma E. Gonzalez, District Judge, Presiding. D.C. No. CR-03-01859-IEG. Before THOMPSON, SILVERMAN, WARDLAW, Circuit Judges. PER CURIAM. 1 Kory Ray Smith entered a conditional guilty plea to the charge of knowing possession of counterfeit currency, in violation of 18 U.S.C. §§ 2 and 472. He reserved the right to appeal the district court's denial of his pre-trial motion to suppress evidence. Smith now argues that the district court erred in (1) reversing its initial grant of his motion to suppress, (2) denying the motion to suppress, and (3) applying an incorrect standard of review to adjust his sentence. We have jurisdiction…

Kory Ray Smith entered a conditional guilty plea to the charge of knowing possession of counterfeit currency, in violation of 18 U.S.C. §§ 2 and 472. He reserved the right to appeal the district court’s denial of his pre-trial motion to suppress evidence. Smith now argues that the district court erred in (1) reversing its initial grant of his motion to suppress, (2) denying the motion to suppress, and (3) applying an incorrect standard of review to adjust his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm the district court.

I. BACKGROUND

Kory Ray Smith was driving a Chevrolet Camaro at 96 miles per hour with the high beam lights on when he passed a California Highway Patrol (“CHP”) car moving in the opposite direction. CHP Officers Eric Price and Timothy Ratcliff pulled Smith over. When Officer Price approached the Camaro and requested Smith’s license and registration, Smith said that he did not have any identification with him. Smith stated that he was licensed to drive in the State of Arizona. Officer Price then asked Smith to get out of his car and walk over to the patrol car.

At the front of the patrol car, Officer Price asked Smith his name,…