PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v. ISAAC JACOB SOZA, Defendant–Appellant. No. 10-2196

Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:08-C R-00995-JAP-1)

Benjamin A. Gonzales, Assistant Federal Pub lic Defender, Office of the Federal Public Defender, District of New Mexico, Albuquerque, New Mexico, for the DefendantAppellant. Kenneth John Gonzales, United States Attorney (Andrea W. Hattan, Assistant United States Attorney, with him on the briefs), Office of the United States Attorney, District of New Mexico, Albuquerque , New Mexico, for the Plaintiff-Appellee.

Before LUCERO , BALDOCK , and HARTZ , * Circuit Judges.

* The Honorable Deanell Reece Tacha sat on this panel originally and participated in oral argument. On May 31, 2011, howe ver, she retired and resigned her commission. Judge Hartz has been substituted. FILED United States Court of Appeals Tenth Circuit 

### July 7, 2011
Elisabeth A. Shumaker Clerk of Court-2- LUCERO , Circuit Judge.

Isaac Soza appeals the district court’s de nial of his motion to suppress. We possess jurisdiction under 28 U.S.C. § 1291. Because the unlawful search of Soza’s vehicle was conducted in good-faith reliance on later-overturned circuit precedent, we affirm.
I Just before 4:00 a.m. on November 7, 2007, Bernalillo County Sheriff’s Patrol Officer Luis Funes stopped a vehicle for speedin g. He asked the driver of the vehicle, Soza, for his driver’s license. Soza handed Funes an identific ation card. Funes returned to his patrol car to run a check on Soza and the vehicle. A criminal database revealed that Soza had a revoked driver’s license and an outstanding felony warrant with an “arrest clause.” Funes decided to arre st Soza and called for backup. When a second offi cer arrived, Funes arrested So za, handcuffed him, and placed him in the back of his patrol car. After securing Soza, Funes conducted a search of Soza’s vehicle incident to arrest. On the driver’s side floorboard, he discovered a handgun and a plastic bag containing a “cr ystal-like” substance consistent with methamphetamine. Soza was charged with being a felon in po ssession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He moved to suppress the evidence seized from his-3- vehicle, relying on Arizona v. Gant , 129 S. Ct. 1710 (2009), which held that law enforcement may not search a vehicle “inciden t to a recent occupant’s arrest after the arrestee has been secured and cannot acce ss the interior of the vehicle.” Id. at 1714. The government responded th at the good-faith exception to the exclusionary rule applied because Gant had not been decided at the time of the search. Relying on United
States v. McCane , 573 F.3d 1037, 1045 (10th Cir. 2009) , the district court concluded that the good-faith exception was app licable and denied the motio n to suppress. Soza then entered into a conditional plea agreement, re serving his right to appeal the suppression determination. Soza now appeals that issue.
II Following the denial of a motion to suppre ss, we review factual findings for clear error and legal conclusions de novo. United States v. White , 584 F.3d 935, 944 (10th Cir. 2009). Prior to Gant , our circuit interprete d New York v. Belton , 453 U.S. 454 (1981), as permitting the warrantless search of a vehicle in cident to the driver’s arrest “even though [the] defendant was handcuffe d and outside the vehicle at the time [the] search was made.” United States v. Brothers , 438 F.3d 1068, 1073 (10th Cir. 2006), abrogated as recognized by McCane , 573 F.3d at 1041-42. The Supreme Court overturned that rule in
Gant , holding that “police may search incident to arrest only th e space within an arrestee’s immediate contro l, meaning the area from within which he might gain possession of a weapon or destru ctible evidence.” 129 S. Ct . at 1714 (quotation omitted).-4- At the time of the search at i ssue in this case, however, Gant had not yet been decided.
In McCane , we considered whether the good-fa ith exception applies to searches “justified under the settled case law of a Un ited States Court of Appeals, but later rendered unconstitutional by a Su preme Court decision.” 573 F.3d at 1044. Because the Supreme Court “has declined to apply the ex clusionary rule when no deterrent effect would result from its application,” we held th at evidence should not be suppressed “when law enforcement officers act in objectively reasonable relian ce upon the settled case law of a United States Court of Appeals.” Id. at 1045. Soza concedes that McCane is controlling of his appeal, but requested that we refrain from deciding this case pending the S upreme Court’s decision in Davis v. United
States , No. 09-11328, 564 U.S. ___ (June 16, 20 11). The Court recently decided Davis , holding consistent with McCane that “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Davis , No. 09-11328, slip. op. at 1. Because Funes’ search of Soza’s vehicle was permissible under binding circuit precedent at the time it occurred, see Brothers , 438 F.3d at 1073, the district court correctly de nied Soza’s motion to suppress. AFFIRMED

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