United States v. Nikos Delano Dorsey

418 F.3d 1038 UNITED STATES of America, Plaintiff-Appellee, v. Nikos Delano DORSEY, Defendant-Appellant. No. 04-30152. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 5, 2005. Filed August 10, 2005. COPYRIGHT MATERIAL OMITTED Kevin F. McCoy, Assistant Federal Defender, Anchorage, AK, for the defendant-appellant. Jo Ann Farrington, Assistant United States Attorney, Anchorage, AK, for the plaintiff-appellee. Appeal from the United States District Court for the District of Alaska; James K. Singleton, Chief Judge, Presiding. D.C. No. CR-A03-0139-JKS. Before: CANBY, TALLMAN, and RAWLINSON, Circuit Judges. TALLMAN, Circuit Judge: 1 Following a conditional guilty plea, Nikos Delano Dorsey was convicted of possession of cocaine base with intent to distribute, possession of a firearm during and in relation to a drug trafficking offense, and possession of a firearm in a school zone. He challenges his conviction and sentence. We affirm his conviction and remand his sentence for consideration in light of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), and United States v. Ameline, 409 F.3d 1073 (9th Cir.2005). 2 * The following…

Following a conditional guilty plea, Ni-kos Delano Dorsey was convicted of possession of cocaine base with intent to distribute, possession of a firearm during and in relation to a drug trafficking offense, and possession of a firearm in a school zone. He challenges his conviction and sentence. We affirm his conviction and remand his sentence for consideration in light of United States v. Booker, — U.S. -, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), and United States v. Ameline, 409 F.3d 1073 (9th Cir.2005).

I

The following description of the facts is drawn from the record of the prior proceedings, particularly the magistrate judge’s findings of fact which were adopted by the district court.

A

The facts relevant to this appeal primarily took place on the grounds of Bartlett High School in Anchorage, Alaska. On September 2, 2003, while patrolling the school pursuant to a Memorandum of Understanding between the Anchorage Police Department and the school district, Officer Jason Schmidt encountered Dorsey on school grounds.

Officer Schmidt approached Dorsey, who was wearing a bandana and hat in violation of the school’s posted dress policy, and asked him to remove his headgear.…

concurring in the result, dissenting in part:

I concur in the result in this case because, and only because, of the Supreme Court’s recent ruling in Devenpeck v. Alford, — U.S. -, 125 S.Ct. 588 , 160 L.Ed.2d 537 (2004). In Devenpeck , the Court rejected our decision that probable cause to arrest must be predicated upon an offense that is “closely related” to the offense invoked by the arresting officer as the basis for arrest. See id. at 593 . The Supreme Court reiterated its prior holdings that “a warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.” Id. (citations omitted) (emphasis added).

In this case, the magistrate judge specifically found that there was probable cause to arrest Dorsey for reckless driving. Because of that fact, the arrest was lawful, and evidence discovered during the search incident to Dorsey’s arrest was admissible. See id., see also United States v. Smith, 389 F.3d 944, 952 (2004) (holding “that as long as there is probable cause to make an arrest, and the search is conducted roughly contemporaneously with the arrest, the *1048…