FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-30152 Plaintiff-Appellee,

D.C. No.

v.  CR-A03-0139-JKS

NIKOS DELANO DORSEY,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Alaska

James K. Singleton, Chief Judge, Presiding

Argued and Submitted

April 5, 2005—Seattle, Washington

Filed August 10, 2005

Before: William C. Canby, Jr., Richard C. Tallman, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Tallman;

Partial Concurrence and Partial Dissent by Judge Rawlinson

10297
COUNSEL

Kevin F. McCoy, Assistant Federal Defender, Anchorage,

Alaska, for the defendant-appellant. 

Jo Ann Farrington, Assistant United States Attorney, Anchorage, Alaska, for the plaintiff-appellee. 

OPINION

TALLMAN, Circuit Judge: 

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, 125 S. Ct. 728

(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. 

UNITED STATES v. DORSEY 10301
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. Dorsey refused,

and a verbal confrontation between Dorsey and Officer

Schmidt ensued. Although Dorsey eventually complied with

Officer Schmidt’s direction regarding his headgear, during the

course of the dispute Dorsey told Officer Schmidt that he was

not a student. Officer Schmidt then instructed Dorsey to leave

the school campus. Dorsey initially refused to comply, but did

eventually leave the building. 

Officer Schmidt followed Dorsey to his car, which was

parked in the fire lane outside of the school doors. Officer

Clinton Peck, who had overheard much of the foregoing,

joined him. They asked Dorsey to explain why he was at Bartlett. Dorsey replied that he wanted to pick up a student named

Staphon Livingood, but was unable to identify Livingood’s

age, grade, or anything else about him. Subsequent investigation confirmed that no student named Staphon Livingood

attended Bartlett High. 

Officer Schmidt told Dorsey that he was not allowed on

school property if he had no legitimate business there, and

that if he did have legitimate business he needed to make

arrangements through the school ahead of time. The officers

warned Dorsey that if he returned to the property, he would

be arrested for trespass. The officers then alerted the school

staff to this incident. Assistant Principal Tina Johnson-Harris

approved the officers’ decision to ask Dorsey to leave, and

agreed that if Dorsey returned he should be treated as a trespasser. 

B

Detective Nancy Potter reported to Officers Schmidt and

Peck that she had seen a car being driven recklessly around

the parking lot at the high school at the end of the school day

that same afternoon. Detective Potter’s description of the car

10302 UNITED STATES v. DORSEY
and driver matched Dorsey. From Detective Potter’s description Officer Schmidt concluded that Dorsey had returned to

campus in violation of his prior warning. 

At the end of the school day the next afternoon, Officers

Schmidt and Peck saw a car speeding erratically through one

of the school’s parking lots; the car looked similar to the car

Dorsey had driven the previous day. The officers pulled the

car over; Dorsey was the driver. Officer Schmidt asked Dorsey to step out of the car and, as Dorsey did so, Officer

Schmidt noticed the smell of marijuana and that Dorsey’s

eyes appeared bloodshot and watery. Officer Schmidt told

Dorsey that he was under arrest and conducted a protective

pat-down search. During the search, Dorsey pulled away from

Officer Schmidt, so Schmidt handcuffed Dorsey and put him

in the back of Officer Peck’s patrol car. 

Meanwhile, Officer Peck told Dorsey that he was going to

move Dorsey’s car, which was blocking traffic. As he did so,

he noticed a strong marijuana smell inside Dorsey’s car when

moving it. After Dorsey had been placed in the back of Officer Peck’s car, Peck returned to Dorsey’s car and briefly

searched it. Officer Peck found money and cocaine base rocks

in the console and a Glock pistol between the console and the

seat. The officers then secured the car and transported Dorsey

to a police substation, where Drug Unit detectives interviewed

him. 

C

Following the interview, the officers took Dorsey before a

state court magistrate where Dorsey was arraigned. At the

same time, the officers applied for a search warrant. The parties dispute whether the officers were ever placed under oath.

The magistrate found that probable cause existed, and issued

the warrant. 

Dorsey’s car was searched under the warrant. In between

the seat and the console officers found a 9-mm Glock semiauUNITED STATES v. DORSEY 10303
tomatic pistol with a loaded extended magazine and a jacketed hollow-point round in the chamber. Inside the console

they found a baggie with eight individually wrapped bindles

of crack cocaine, two more magazines, and about $400 in

cash. 

D

A federal grand jury indicted Dorsey on three counts.

Count One charged him with possession of cocaine base with

intent to distribute. See 21 U.S.C. §§ 841(a)(1) and (b)(1)(C),

860. Count Two alleged possession of a firearm during and in

relation to and in furtherance of a federal drug trafficking

crime. See 18 U.S.C. § 924(c)(1)(A). Count Three charged

possession of a firearm in a school zone. See 18 U.S.C.

§§ 922(q)(2)(A), 924(a)(4). 

Dorsey moved to suppress the evidence derived from his

arrest but the district court, relying on the magistrate judge’s

recommendation, found that the arrest was supported by probable cause, that the initial search was incident to a lawful

arrest, and that the second search was either a lawful inventory search or saved by the inevitable discovery doctrine. Dorsey also moved to dismiss the charge under the Gun-Free

School Zones Act, 18 U.S.C. § 922(q), arguing that the statute

exceeds the scope of Congress’s Commerce Clause power.

The district court denied Dorsey’s motion to dismiss. 

Dorsey pled guilty to the indictment, preserving his right to

appeal. The district court determined the quantity of cocaine

in Dorsey’s possession. Dorsey was sentenced to a total of

ninety-eight months imprisonment — thirty-seven months for

Count One, sixty months for Count Two, and one month for

Count Three. This appeal followed. 

II

Dorsey challenges his arrest, the search of his car, and the

admission of Detective Potter’s statement at his pretrial sup10304 UNITED STATES v. DORSEY
pression hearing. Whether Dorsey’s arrest was supported by

probable cause is a mixed question of law and fact that we

review de novo. United States v. Nava, 363 F.3d 942, 944 (9th

Cir. 2004). We review the validity of a warrantless search de

novo, and the underlying factual findings for clear error.

United States v. Depew, 210 F.3d 1061, 1066 (9th Cir. 2000).

Alleged violations of the Confrontation Clause and the district

court’s interpretation of the hearsay rule are reviewed de

novo. United States v. Orellana-Blanco, 294 F.3d 1143, 1148

(9th Cir. 2002). 

A

[1] An arrest is constitutionally valid if the arresting officers had probable cause to make the arrest. Beck v. Ohio, 379

U.S. 89, 91 (1964). Officers have probable cause to make an

arrest when:

at that moment the facts and circumstances within

their knowledge and of which they had reasonably

trustworthy information were sufficient to warrant a

prudent man in believing that the petitioner had committed or was committing an offense. 

Id. At the time that Dorsey was arrested for trespass, the officers knew that Dorsey had been warned not to come back to

campus without a legitimate purpose, that Dorsey’s previous

explanation of his purpose had been a lie, that Detective Potter had reported seeing Dorsey the previous afternoon after he

had been asked to leave, and that Dorsey was once again on

campus. 

[2] These facts are sufficient to cause a prudent person to

believe that Dorsey had committed or was committing the

crime of trespass. In Alaska, a person commits trespass if he

“enters or remains unlawfully [ ] in or upon premises[.]”

Alaska Stat. § 11.46.330(a)(1). A person has entered or

remained unlawfully if he “fail[s] to leave premises . . . that

UNITED STATES v. DORSEY 10305
[are] open to the public after being lawfully directed to

do so personally by the person in charge[.]” Alaska Stat.

§ 11.46.350(a)(2). The Alaska Court of Appeals has interpreted this statute in the context of public property:

A person can not be convicted under AS

11.46.350(a)(2) of “fail[ing] to leave” a public facility “after being lawfully directed to do so” unless the

person fails to heed a reasonably contemporaneous

directive to leave, or . . . the person heeds the directive to leave but then returns to the public facility

after only a short while. 

Turney v. State, 922 P.2d 283, 288 (Alaska Ct. App. 1996).1

[3] Officers Schmidt and Peck had probable cause to

believe that Dorsey had returned to Bartlett after receiving a

reasonably contemporaneous directive to leave. The officers

had personally directed Dorsey off of the property on September 2, 2003, so they knew that he had been told to leave.2

1The events in Turney took place in a courthouse, which was clearly

open to the public. Bartlett welcomes the public in a more limited manner.

For example, it posts signs indicating that the grounds are closed at night

and directing daytime visitors to stop first at the school office. The school

district also has a policy denying access to those who do not have “a valid

reason for their presence” and warns that “[i]ndividuals who proceed on

the District property without proper authorization shall be treated as trespassers and shall be subject to prosecution under relevant state statutes

and/or municipal ordinances.” If trespass charges had been brought against

Dorsey, it is not clear that the court’s analysis would have mimicked that

in Turney, where the public’s access to the property at issue was less

restricted. However, because the officers had probable cause to arrest Dorsey even under the Turney analysis, we do not reach this potential distinction. 

2Dorsey argues that the officers were not “person[s] in charge” who

could direct him to leave under Alaska’s trespass statute. However, Officers Schmidt and Peck were at Bartlett as part of a Memorandum of

Understanding (MOU) between the school district and the police department. The superintendent of the school district testified that at the time of

10306 UNITED STATES v. DORSEY
They had reason to believe that he had returned within a time

period “reasonably contemporaneous” to the time they asked

Dorsey to leave because Detective Potter reported seeing

someone matching Dorsey’s description in the school parking

lot later in the day on September 2, 2003. For purposes of

establishing probable cause, the officers were justified in relying on Detective Potter’s report. See United States v. Matlock,

415 U.S. 164, 172-73 (1974). Furthermore, Officers Schmidt

and Peck personally observed Dorsey at Bartlett the day after

they had told him to leave.3

Although the state would need to prove that Dorsey had no

legitimate purpose on campus to convict Dorsey of trespass,

less is required to establish probable cause for his arrest. After

the events giving rise to this case, the police officers working in the district’s schools under the MOU had the authority to arrest for trespass people who did not have a legitimate purpose for being on school property.

This authority was clarified, but not altered, by subsequent amendments

to the MOU. These facts support the district court’s conclusion that Officers Schmidt and Peck were authorized to remove Dorsey from Bartlett as

a trespasser. 

3Alaska law is unclear as to whether a direction to leave the day prior

to an arrest is “reasonably contemporaneous.” Turney quotes a Louisiana

case which “deem[s] a request to be reasonably contemporaneous if given

a few hours prior to the arrest, the same day as the arrest[,] or such other

pre-arrest interval [as is] reasonable under the . . . circumstances of each

particular case.” 922 P.2d at 287 (quoting State v. Johnson, 381 So. 2d

498, 500 (La. 1980)). This reasonable “pre-arrest interval” probably does

not include a warning given several weeks prior to the arrest, as this was

the fact situation that the Turney opinion finds not to be trespass. Id. at

288. However, it is not clear where the line of what is “reasonably contemporaneous” falls between the same-day warning described in the quote

from the Louisiana case and the several-week interval rejected in Turney.

Because Detective Potter observed someone matching Dorsey’s description at Bartlett on the same day as Officer Schmidt and Peck asked Dorsey

to leave, we need not decide whether returning the day after a warning is

given creates probable cause to suspect trespass. There was probable cause

to believe he had violated the law on the same day he was told to leave.

When he came back again the next day, an arrest was surely justified. 

UNITED STATES v. DORSEY 10307
Dorsey lied to the officers about his reason for being on campus (claiming to be picking up a fictitious student) the day

before his arrest, even if Dorsey had expressed a seemingly

legitimate purpose for once again being at Bartlett, the officers could have reasonably suspected him of trespass. 

[4] Reasonably prudent officers in the arresting officers’

position could have concluded that Dorsey had previously

engaged in and was again committing trespass; the officers

had probable cause for Dorsey’s arrest. The district court correctly found that Dorsey’s warrantless arrest was supported by

probable cause.

B

[5] Because Dorsey’s arrest was supported by probable

cause, the search of Dorsey’s car was a lawful search incident

to arrest. New York v. Belton, 453 U.S. 454, 460-61 (1981)

(holding that an officer’s search of a vehicle pursuant to arrest

may lawfully include the entire vehicle, including containers

within the vehicle); Thorton v. United States, 541 U.S. 615,

124 S.Ct. 2127, 2131-32 (2004) (holding that even when a

defendant is not in the car when he is arrested, “it is reasonable to allow officers to ensure their safety and to preserve

evidence by searching the entire passenger compartment”).

The district court properly ruled that Dorsey’s car was

searched lawfully incident to arrest.4

C

Dorsey contends that the admission of Detective Potter’s

reported sighting of him violated the Confrontation Clause

4Dorsey argues that the search warrant pursuant to which his car was

searched was based on the unsworn statements of Officers Schmidt and

Peck and was therefore invalid. We do not reach this issue, because, as is

discussed above, the warrantless search of Dorsey’s car was lawful, thus

the search warrant was unnecessary. 

10308 UNITED STATES v. DORSEY
and the Federal Rules of Evidence (FRE) by allowing this

“hearsay” testimony at the suppression hearing. 

[6] Detective Potter’s statement was not hearsay in this

context. Hearsay is “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” FRE

801(c). Potter’s statement was not hearsay here because it was

not offered to prove that Dorsey had returned to Bartlett on

September 2, 2003. If the testimony regarding Detective Potter’s statement had been offered for this purpose, perhaps in

a criminal trial charging Dorsey with trespass, it would have

been hearsay and most likely excluded. FRE 802. 

[7] Instead, at the suppression hearing, Potter’s statement

was offered as evidence that Officers Schmidt and Peck had

probable cause to arrest Dorsey. The magistrate correctly

observed that Potter’s statement “was not received or considered for the truth of the matter as to whether Dorsey had in

fact trespassed since that ultimate issue would be decided by

a different forum.” Potter’s statement was offered to demonstrate that the officers were reasonable in believing that a

crime had occurred; in that context, the statement was not

hearsay because it was not offered for the truth of the matter

asserted. Advisory Committee Notes to FRE 801 (“If the significance of an offered statement lies solely in the fact that it

was made, no issue is raised as to the truth of anything

asserted, and the statement is not hearsay.”). 

[8] No goal would have been served by requiring Detective

Potter to testify personally at the suppression hearing. There

was no contention that Potter had not made the statement, and

her credibility was not at issue because whether Dorsey had

actually returned to Bartlett when Potter said he did was

immaterial to the inquiry at issue in the suppression hearing.

Thus, because the truth of Detective Potter’s report was not

at issue, her statement was not hearsay. See Swirsky v. Carey,

376 F.3d 841, 852 (9th Cir. 2004) (holding that evidence was

UNITED STATES v. DORSEY 10309
not hearsay because it was not proffered for the truth of the

content of the evidence); Calmat Co. v. U.S. Dep’t of Labor,

364 F.3d 1117, 1124 (9th Cir. 2004) (same). We uphold the

ruling permitting testimony in the suppression hearing about

Detective Potter’s statement. 

III

[9] We next consider the district court’s ruling on Dorsey’s

motion to dismiss Count Three of the indictment on the

ground that the Gun-Free School Zone statute on which it is

based, 18 U.S.C. § 922(q)(2)(A), is unconstitutional. It is now

a federal crime “knowingly to possess a firearm that has

moved in or that otherwise affects interstate or foreign commerce at a place the individual knows, or has reasonable

cause to believe, is a school zone.” 18 U.S.C. § 922(q)(2)(A).

Dorsey argues that this statute exceeds Congress’s power

under Art. I, § 8, cl. 3 of the United States Constitution (“the

Commerce Clause”). We review this constitutional question

de novo. United States v. McCoy, 323 F.3d 1114, 1117 (9th

Cir. 2003). 

[10] In 1995, the Supreme Court found a prior version of

§ 922(q), also known as the “Gun-Free School Zones Act,”

unconstitutional. United States v. Lopez, 514 U.S. 549 (1995);

see Pub. L. No. 101-647, Title XVII, § 1702(b)(1), 104 Stat.

4789, 4844 (1990). The version of the statute at issue in Lopez

made it a federal offense “knowingly to possess a firearm at

a place that the individual knows, or has reason to believe, is

a school zone.” 514 U.S. at 551. The question is whether the

addition of the jurisdictional element, which requires that the

firearm “has moved in or [ ] otherwise affects interstate or

foreign commerce” repairs the constitutional shortfalls

announced in Lopez. See Pub. L. No. 104-208, Div. A, Title

I, § 101(f), 110 Stat. 3009-369, 3009-372 (1996) (amending

the Gun-Free School Zones Act of 1990). 

[11] Incorporating a jurisdictional element into the offense

has traditionally saved statutes from Commerce Clause chal10310 UNITED STATES v. DORSEY
lenges. See e.g., United States v. Bass, 404 U.S. 336 (1971).

In Bass, the Supreme Court considered whether the statutory

phrase “in commerce or affecting commerce” in a federal statute that imposed a penalty on any felon “who receives, possesses, or transports in commerce or affecting commerce . . .

any firearm” applied to “possesses” and “receives” as well as

“transports.” Id. at 337, 339. In large part to avoid the federalism problems that would result from a broader construction,

the Court interpreted the “in commerce or affecting commerce” language to be part of the offense that the government

had to prove in each individual case. Id. at 349-50. Several

years later, the Court revisited the same statute and clarified

that the required nexus could be proven by demonstrating that

the firearm had previously traveled in interstate commerce;

the nexus did not need to be contemporaneous with the

offense. Scarborough v. United States, 431 U.S. 563, 575-77

(1977). 

The Lopez decision did not alter this rule that a jurisdictional element will bring a federal criminal statute within

Congress’s power under the Commerce Clause. In fact, Lopez

rejected § 922(q) in part because it did not follow Bass: 

Unlike the statute in Bass, § 922(q) has no express

jurisdictional element which might limit its reach to

a discrete set of firearm possessions that additionally

have an explicit connection with or effect on interstate commerce. 

Lopez, 514 U.S. at 562; see also United States v. Morrison,

529 U.S. 598, 613 (2000) (holding that the civil remedies in

42 U.S.C. § 13981 were beyond Congress’s power under the

Commerce Clause because, inter alia, “[l]ike the Gun-Free

School Zones Act at issue in Lopez, § 13981 contains no jurisdictional element establishing that the federal cause of action

is in pursuance of Congress’[s] power to regulate interstate

commerce”). 

UNITED STATES v. DORSEY 10311
[12] Contrary to the prior version of § 922(q) discussed in

Lopez, the current version includes a “requirement that [the

defendant’s] possession of the firearm have a[ ] concrete tie

to interstate commerce.” Lopez, 514 U.S. at 567. This new

version of § 922(q) resolves the shortcomings that the Lopez

Court found in the prior version of this statute because it

incorporates a “jurisdictional element which would ensure,

through case-by-case inquiry, that the firearm possession in

question affects interstate commerce.” Id. at 561. This jurisdictional element saves § 922(q) from the infirmity that

defeated it in Lopez. See Morrison, 529 U.S. at 612 (“Such a

jurisdictional element may establish that the enactment is in

pursuance of Congress’ regulation of interstate commerce.”);

Scarborough, 431 U.S. at 575 (finding, with regard to an

unrelated statute, that Congress need only require “the minimal nexus that the firearm have been, at some time, in interstate commerce” for the statute to be within Congress’s

Commerce Clause power). 

[13] This holding follows circuit precedent on a closely

related statute, 18 U.S.C. § 922(g). See United States v. Davis,

242 F.3d 1162 (9th Cir. 2001) (per curiam); United States v.

Jones, 231 F.3d 508 (9th Cir. 2000); United States v. Polanco,

93 F.3d 555 (9th Cir. 1996); United States v. Hanna, 55 F.3d

1456 (9th Cir. 1995). Section 922(g) prohibits several categories of persons from possessing a firearm “in or affecting

interstate commerce” and from receiving a firearm that has

been “shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g). In each of the cases to consider

the issue, we have found that the jurisdictional element saves

§ 922 because it “insures, on a case-by-case basis, that a

defendant’s actions implicate interstate commerce to a constitutionally adequate degree.” Polanco, 93 F.3d at 563; see also

Davis, 242 F.3d at 1162-63; Jones, 231 F.3d at 514-15;

Hanna, 55 F.3d at 1462. 

[14] The Eighth Circuit reached the same conclusion

regarding § 922(g), and relied upon it to uphold the constitu10312 UNITED STATES v. DORSEY
tionality of the amended § 922(q). United States v. Danks,

221 F.3d 1037, 1038-39 (8th Cir. 1999) (per curiam) (citing

United States v. Shelton, 66 F.3d 991, 992 (8th Cir. 1995) (per

curiam)). The Eighth Circuit concluded that because “section

922(q) contains language that ensures, on a case-by-case

basis, that the firearm in question affects interstate commerce

. . . the amended Act is a constitutional exercise of Congress’s

Commerce Clause power.” Danks, 221 F.3d at 1039. 

[15] We agree with the Eighth Circuit’s decision in Danks,

and follow our own precedent regarding § 922(g), in similarly

resolving this issue. Dorsey’s motion to dismiss Count Three

of the indictment on the ground that 18 U.S.C. § 922(q) is not

a valid exercise of congressional power under the Commerce

Clause was properly denied. 

IV

Dorsey finally challenges the sentencing court’s finding

that he had more than three grams of cocaine base in his possession. Dorsey claims that this sentence violated his Sixth

Amendment rights under Blakely v. Washington, 124 S. Ct.

2531 (2004), because the weight of the cocaine base was

determined by the judge by preponderance of the evidence;

the weight was neither charged in the indictment or admitted

by the defendant in his plea. See id at 2537-38. 

In an initial test of the crack cocaine seized from Dorsey’s

car, the cocaine weighed 3.088 grams. A subsequent measurement indicated that the weight was 2.988 grams. At sentencing, the government presented testimony explaining that the

difference in weight was due to small amounts of cocaine

consumed in laboratory testing, small amounts clinging to the

packaging when drugs are removed, and water evaporating

from the suspect sample. Dorsey presented no contrary testimony. The district court accepted the government’s explanation, and sentenced Dorsey for possession of three or more

grams of crack cocaine. 

UNITED STATES v. DORSEY 10313
[16] Dorsey concedes that he is raising this Sixth Amendment challenge for the first time on appeal. Consequently, we

must review his sentence for plain error. See United States v.

Booker, 543 U.S. ___, 125 S. Ct. 738, 769 (2005); United

States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005). He is

not entitled to relief unless his sentence amounts to plain

error, meaning that there is 1) error, 2) that is plain, and 3)

that affects substantial rights. Ameline, 408 F.3d at 1078.

Because it was given “in reliance upon judge-made findings

under the then-mandatory guidelines,” Dorsey’s sentence was

constitutional error and he satisfies the first two prongs of the

plain error test. Ameline, 409 F.3d at 1078. 

[17] The next question is whether the error affected Dorsey’s substantial rights, i.e. “whether the outcome of [Dorsey’s] sentencing was affected by erroneous enhancement of

[Dorsey’s] sentence on the basis of judge-made findings in

the mandatory guidelines regime.” Id. Dorsey “must demonstrate a reasonable probability that he would have received a

different sentence had the district judge known that the sentencing guidelines were advisory.” Id. In cases, like this one,

where “the record does not provide an inkling of how the district court would have proceeded had it known that the Guidelines were advisory rather than mandatory” the proper course

of action is to “remand to the district court to answer the question whether the sentence would have been different had the

court known that the Guidelines were advisory.” Id. at 1078-

79. Accordingly, we remand Dorsey’s challenge to his sentence to the district court for consideration in light of Booker

and Ameline. 

CONVICTION AFFIRMED; SENTENCE

REMANDED.

10314 UNITED STATES v. DORSEY
RAWLINSON, Circuit Judge, 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, 125 S. Ct. 588 (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 search-incident-toarrest doctrine applies and no warrant is required.”). 

I respectfully disagree that there was probable cause to

arrest Dorsey for the crime of trespassing. Alaska Stat.

11.46.330(a)(1) defines trespass as “enter[ing] or remain[ing]

unlawfully . . . upon premises.” A person has entered or

remained unlawfully on public property if he “fail[s] to leave

premises . . . that [are] open to the public after being lawfully

directed to do so personally by the person in charge.” Alaska

Stat. 11.45.350(a)(2) (emphasis added). The Alaska Court of

Appeals has interpreted Alaska Stat. 11.45.350(a)(2) in the

context of public property, as follows: 

A person cannot be convicted under

AS 11.46.350(a)(2) of “failing to leave” a public

UNITED STATES v. DORSEY 10315
facility “after being lawfully directed to do so”

unless the person fails to heed a reasonably contemporaneous directive to leave, or . . . the person heeds

the directive to leave but then returns to the public

facility after only a short while. 

Turney v. State, 922 P.2d 283, 288 (Alaska App. 1996)

(emphasis added). 

Turney involved a courthouse protester who was given a

letter by the court administrator informing Turney that he was

“prohibited from entering or remaining on court property to

engage in protest activities, picketing or pamphleteering.” Id.

at 285. Approximately two months later, Turney returned to

the courthouse, again engaging in protest activities. Id. A

court employee called the Alaska State Troopers, who

responded. Id. One of the troopers asked Turney to leave, and

Turney complied. Id. Turney was subsequently charged with

and convicted of trespass. Id. “[T]he State’s theory of prosecution was that Turney had committed trespass by returning

to the courthouse to renew his protect activities after receiving

[the court administrator’s] letter.” Id. at 286. 

In reaching its decision to reverse Turney’s conviction, id.

at 290, the Alaska Court of Appeals started with the premise

that 

a criminal trespass statute which applies to public

property in general, and which proscribes refusing or

failing to leave a public building or public grounds

upon being requested to do so by an authorized

employee, limits the power of public officials to notifying people, in specified circumstances, that they

may not remain on the property and does not permit

them to bar entry. 

Id. at 287 (citation and alterations omitted) (emphasis

added). 

10316 UNITED STATES v. DORSEY
The Turney decision discussed a Maryland case that is

remarkably similar to the case before us. In that case, In re

Appeal No. 631, 383 A.2d 684 (Md. 1978), the defendant visited a school after being previously told not to return. When

discovered, the defendant was taken to the vice-principal to

explain his return to the premises. Having failed to give a satisfactory explanation, the defendant was arrested and convicted of trespassing. Id. at 685. 

In reversing the conviction, the Maryland Court of Appeals

noted that the defendant was never asked to leave the school

premises on the day of the arrest. Id. at 687. “No request having been given [on that day], there was none to disobey.” Id.

The Maryland Court emphasized that the previous requests to

leave could not serve as the predicate for the trespass charge.

Id.

State v. Johnson, 381 So. 2d 498 (La. 1980), is also a similar case cited in the Alaska Court of Appeals’ decision. In

Johnson, the Louisiana Supreme Court, like the Maryland

Court of Appeals, focused on the lack of a request to leave on

the day of the alleged trespass. Id. at 500. The Louisiana

Supreme Court construed the trespass statute as incorporating

“a reasonably contemporaneous” request to leave. Id. The

Louisiana Supreme Court defined reasonably contemporaneous as “a few hours prior to the arrest, the same day as the

arrest, or such other pre-arrest interval reasonable under the

. . . circumstances.” Id.

Finally, the Alaska Court of Appeals turned to New York

cases interpreting that state’s trespass statute. The Alaska

court summarized the New York approach as consistent with

that of Maryland and Louisiana. See Turney, 922 P.2d at 288.

“[U]nder New York’s general trespass statutes, the supervisor

of a public facility has no such power to bar an individual

from ever returning to the facility. Even though a person has

previously been ordered to leave and not return, this person

UNITED STATES v. DORSEY 10317
may not be prosecuted for trespass merely for returning on

another occasion.” Id. (citations omitted). 

As informed by case precedent from three other states, the

Alaska Court of Appeals’ interpretation of the trespass statute

poses two major impediments to finding probable cause for a

trespass arrest in this case. The first is that Dorsey was not

“lawfully directed” to leave the school. The second is that the

record does not support the finding that he failed to leave the

premises or was directed to leave on the day he was arrested.

Alaska Stat. 11.46.330(a)(1) provides that a direction to

leave public premises must be done “personally by the person

in charge.” The Anchorage School District developed a written warning to be given to potential trespassers. The warning

specifies that it is to be given by an Alaska School District

representative, not an Alaska Police Department representative. This distinction was known to the Alaska School District

and Alaska Police Department, as evidenced by the Memorandum of Understanding (MOU) between those two entities,

where representatives of each were designated as signees.1

As the Maryland Court of Appeals recognized, if the trespass warning is not given as specified in the statute, no trespass occurs upon re-entry onto the premises. See In Re Appeal

No. 631, 383 A.2d at 687. In this case, no authorized representative of the Anchorage School District directed Dorsey to

vacate the premises. Consequently, the provisions of the trespass statute were never triggered. 

There is also no evidence in the record that Dorsey failed

to leave the school premises when directed to do so. The only

evidence in the record is that Dorsey was seen on campus

later that day, which in no way indicates that he never left.

1The MOU was subsequently amended to specifically provide that

Alaska Police Department officers were authorized to provide the trespass

warning. 

10318 UNITED STATES v. DORSEY
Further complicating the trespass charges is that, as in Turney,

Dorsey was not directed to leave the campus on the day he

was arrested for trespass. The Alaska Court of Appeals concluded that under these circumstances, no trespass occurred.

Turney, 922 P.2d at 286. The Alaska Court of Appeals noted

that the Alaska statute “does not authorize a government official to bar a person from returning to a public building and its

surrounding property in perpetuity.” Id. Yet that is exactly

what the government officials attempted with Dorsey. I cannot agree that the arrest for trespass was supported by probable cause, and dissent from that portion of the opinion

concluding otherwise.

UNITED STATES v. DORSEY 10319