The Honorable Lawrence L. Piersol, United States District

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Judge for the District of South Dakota.

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No. 95-2763

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota

Wayne Steven Snook, *

*

Appellant. *

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 Submitted: December 12, 1995

 Filed: July 5, 1996

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Before McMILLIAN, JOHN R. GIBSON and BEAM, Circuit Judges.

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McMILLIAN, Circuit Judge.

Wayne Steven Snook appeals from a final judgment entered in the

United States District Court for the District of South Dakota, upon a jury 1

verdict finding him guilty of one count of possession with intent to

distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and one

count of carrying a firearm in relation to a drug offense, in violation of

18 U.S.C. § 924(c). The district court sentenced Snook under the federal

sentencing guidelines to 123 months imprisonment, seven years supervised

release and a special assessment of $100.00. For reversal, Snook argues

the district court erred in denying his motion to suppress evidence seized

from his automobile following his arrest on a
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warrant. For the reasons discussed below, we affirm the judgment of the

district court.

I. Background

On January 1, 1995, a Sioux Falls police officer, John Keenan,

overheard a radio call directed to another officer, David Rowe. The

dispatcher informed Rowe that Snook was at a nearby car dealership, Ted

Tufty Dodge, and that a warrant was outstanding for Snook’s arrest for

simple assault. In addition, the dispatcher gave a description of Snook

and the car he was driving. Upon realizing that he was only a half block

away from Ted Tufty Dodge, Keenan informed Rowe that he was in the vicinity

and proceeded towards the car dealership. When Keenan arrived, he

immediately saw Snook, who was just stepping out of his vehicle. At this

point, the motor of Snook’s car was still running.

After verifying Snook’s identity, Officer Keenan searched him for

weapons, handcuffed him and placed him in the back of the police car. At

approximately the same time, Officer Rowe arrived in a separate vehicle.

Rowe and Keenan called their supervisor and informed him that Snook had

been arrested, that Snook’s car was still running and that they were aware

of no one who could take possession of it. The supervisor gave permission

to tow the car. Keenan then left the scene to transport Snook to the

Minnehaha County Jail. Rowe, who was left alone with Snook’s vehicle,

walked over to the vehicle to turn off the ignition. When Rowe knelt on

the driver’s seat to shut off the ignition, he observed what he thought to

be a marijuana pipe sitting in the open ashtray of the car. In addition,

while reaching over to examine the marijuana pipe, Rowe observed a .380

caliber semi-automatic handgun which slid out from underneath a jacket that

was lying on the center of
 Rowe subsequently learned at the police station that Snook

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had a concealed weapons permit.

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the driver’s seat. Rowe also found on the front passenger side floorboard 2

a Tupperware dish which contained marijuana. As he continued to search the

front seat of the vehicle, he lifted the jacket and noticed that the left

sleeve was heavy. Upon reaching down inside the left jacket sleeve, Rowe

removed a large plastic bag. Inside this bag were several smaller bags

containing various amounts of methamphetamine with a total weight of 250.2

grams. Rowe also found a .380 caliber bullet in the pocket of the jacket.

The entire search of the vehicle lasted five to six minutes. Afterwards,

Rowe waited at the scene until the tow truck arrived.

On January 19, 1995, a federal grand jury returned a two-count

indictment against Snook. Snook was charged with possession with intent

to distribute methamphetamine under 21 U.S.C. § 841(a)(1) and carrying a

firearm in relation to a drug offense under 21 U.S.C. § 924(c). On

February 14, 1995, Snook filed a motion to suppress all physical evidence

seized from his vehicle at the time of his arrest. In an Order and

Memorandum dated March 20, 1995, the district court denied Snook’s motion

to suppress.

On March 29, 1995, the jury found Snook guilty on both counts charged

in the indictment. The district court sentenced Snook to 123 months

imprisonment, seven years supervised release and a special assessment of

$100.00. This appeal followed.

II. Discussion

We first address our standard of appellate review. We review the

district court’s factual findings for clear error and its conclusion as to

whether the search violated the Fourth Amendment
 The Supreme Court has recently held that in considering the 3

legality of police conduct undertaken without a warrant, an

appellate court should review de novo the ultimate questions of

probable cause and reasonable suspicion. Ornelas v. United States,

116 S. Ct. 1657, 1663 (1996).

 Although the district court admitted the evidence found in

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Snook’s automobile under the plain view doctrine, it determined

that the search of the vehicle was not made incident to the arrest

of Snook, under the standard set forth in New York v. Belton, 453

U.S. 454, 460 (1981), because Snook was not an “occupant” of his

automobile at the time of his arrest. Slip op. at 2.

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de novo. See United States v. Hogan, 25 F.3d 690, 692 (8th Cir. 1994).3

The district court determined that, although the search of Snook’s

vehicle was conducted without a warrant, the contraband discovered inside

the vehicle fell within the plain view exception to the search warrant

requirement. As articulated by the Supreme Court in Minnesota v.

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Dickerson, 508 U.S. 366, 374-75 (1996), the plain view doctrine provides

that “if police are lawfully in a position from which they view an object,

if its incriminating character is immediately apparent, and if the officers

have a lawful right of access to the object, they may seize it without a

warrant.” Id. On appeal, Snook argues that the district court erred in

denying his motion to suppress the evidence seized from his vehicle,

because the search violated the Fourth Amendment. Snook argues that the

plain view doctrine does not apply in the present case, because Officer

Rowe unlawfully entered the vehicle in order to turn off the ignition.

Snook also argues that the search of his automobile conducted by

Officer Rowe was not a lawful search incident to his arrest. In New York

v. Belton, 453 U.S. 454, 460 (1981) (Belton), the Supreme Court extended

the “search incident to arrest” exception to the warrant requirement to the

context of vehicle searches, holding that “when a policeman has made a

lawful custodial arrest of the
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occupant of an automobile, he may, as a contemporaneous incident of that

arrest, search the passenger compartment of that automobile.” Id.

(citations omitted). Snook contends that this exception does not apply in

the present case, because he was not an occupant of the automobile at the

time of his arrest, as required by Belton, but rather had just stepped out

of the car.

In response, the government maintains that the district court

properly denied Snook’s motion to suppress the contraband discovered inside

his vehicle. First, the government argues that Officer Rowe acted

reasonably in entering Snook’s car in order to turn off the ignition.

Citing Colorado v. Bertine, 479 U.S. 367, 372 (1987), the government

contends that Officer Rowe had an obligation to secure Snook’s vehicle from

damage or theft. Because Rowe was performing a valid post-arrest duty when

he observed the marijuana pipe and handgun inside Snook’s automobile, the

government argues that the plain view exception squarely applies to these

two items. Further, the government maintains that the discovery of the

marijuana pipe and handgun gave Officer Rowe probable cause to search the

passenger compartment of the vehicle, such that the container of marijuana

and the methamphetamine were admissible under the probable cause exception

to the search warrant requirement.

Addressing Snook’s argument that the search of his automobile was not

made incident to his arrest, the government responds that the Belton

bright-line rule provides an alternative basis for upholding the district

court’s admission of the contraband. More particularly, the government

maintains that Snook was an occupant of his vehicle because he had been

inside the vehicle immediately prior to the arrest and was standing only

a few feet from his car when he was arrested. E.g., United States v.

Riedesel, 987 F.2d 1383, 1388-89 (8th Cir. 1993) (Riedesel)). We agree.
 We also believe the district court did not err in holding

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that the evidence was admissible under the plain view exception to

the search warrant requirement.

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It is well-settled that a court of appeals may affirm on any ground

supported by the record. See, e.g., Phillips v. Marist Soc’y, 80 F.3d 274,

275 (8th Cir. 1996). We hold that the search of Snook’s automobile was

incident to his arrest and that the evidence found pursuant to that search

was admissible on this basis. The fact that Snook had just stepped out

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of his vehicle as the officer arrived and before his arrest does not alter

his status as an “occupant” of the vehicle. The present case is similar

to Belton, in which the police officer, after directing the suspects to get

out of the car, “placed them under arrest . . . and split them up into

separate areas of the Thruway.” 453 U.S. at 456. The officer then picked

up an envelope marked “super gold,” found that it contained marijuana and

proceeded to search the passenger compartment of the car. Id. Upon

discovering a jacket belonging to Belton on the back seat, the officer

opened one of the pockets and discovered cocaine. Id. The Supreme Court

upheld the search as incident to a lawful arrest, although Belton had been

standing outside the car at the time of his arrest. Id. at 460-61. See

also Riedesel, 987 F.2d at 1389 (warrantless search of passenger

compartment of defendant’s automobile was justified as valid search

incident to defendant’s arrest, where defendant had been standing next to

car at the time of his arrest and had asked of his own accord to re-enter

car to lock the doors); United States v. McCrady, 774 F.2d 868, 871-72 (8th

Cir. 1985) (warrantless search of passenger compartment of defendant’s car

immediately after defendant was arrested and placed in police car was a

valid search incident to defendant’s arrest). 

In the present case, Snook had stepped out of his vehicle immediately

before he was arrested by Officer Keenan. Thus, we hold that he was an

occupant of his automobile at the time of his
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arrest and the warrantless search of the passenger compartment of his car

was justified as a search incident to his arrest. We therefore hold that

the district court did not err in denying Snook’s motion to suppress the

evidence discovered in his vehicle.

Accordingly, the judgment of the district court is affirmed.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.