### The Honorable Lawrence L. Piersol, United States Distric t 1 

### Judge for the District of South Dakota. ____________ No. 95-2763

____________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of South Dakota Wayne Steven Snook, * * Appellant. *

____________ Submitted: December 12, 1995 Filed: July 5, 1996

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

____________ McMILLIAN, Circuit Judge.

Wayne S teven Snook appeals from a final judgment entered in th e United States District Court for the District of South Dakota, upon a jury 1 verd ict finding him guilty of one count of possession with intent t o distribute methamphetamine, in violation of 21 U .S.C. § 841(a)(1), and one count of carrying a firearm in relation to a dru g 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 t o suppress evidence seized from his automobile following his arrest on a

### -2-

warrant. For the reasons discussed below, we affirm the judgment of the district court.
I. Background

On J anuary 1, 1995, a Sioux Falls police officer, John Keenan , over heard a radio call directed to another officer, David Rowe. Th e dispatcher informed Rowe that Snook was at a nearby car dealership, Te d Tufty Dodge, and that a warrant was outstanding for Snook’s arrest fo r simple assault. In addition, the dispatcher gave a description of Snook and the car he was dr iving. Upon realizing that he was only a half block away from Ted Tufty Dodge, Keenan informed Rowe that he was in the vicinit y and proc eeded towards the car dealership. When Keenan arrived, h e 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 fo r weapons, handcuffed h im 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 ha d been arrested, that Snook’s car was still runnin g 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 th e Minne haha 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 o bserved what he thought to be a marijuana pipe s itting in the open ashtray of the car. In addition, while reaching over to examine the marijuana pipe, Rowe observed a .38 0 caliber semi-automatic handgun which slid out from underneath a jacket tha t was lying on the center of

### Rowe subsequently learned at the police station that Snoo k 2 

### had a concealed weapons permit. -3- the driver’s seat. Rowe also found on the front passenger sid e floorboard 2
a Tupperware dish which contained marijuana. As he continued to search th e front seat of the veh icle, he lifted the jacket and noticed that the left sleeve was heavy. Up on reaching down inside the left jacket sleeve, Rowe removed a large plastic bag. Inside this bag were several smaller bag s containing various amounts of methamphetamine wi th 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 J anuary 19, 1995, a federal grand jury returned a two-coun t 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). O n February 14, 1995, Sn ook filed a motion to suppress all physical evidence seized from his vehicle at the time of his arrest. In an Order an d Memorandum dated Marc h 20, 1995, the district court denied Snook’s motion to suppress.

OnMarch 29, 1995, the jury found Snook guilty on both counts charge d in t he indictment. The district court sentenced Snook to 123 month s 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 th e district court’s factual findings for clear erro r and its conclusion as to whether the search violated the Fourth Amendment

### The Supreme Court has recently held that in considering the 3 

### lega lity of police conduct undertaken without a warrant, a n appell ate court should review de novo the ultimate questions o f probable cause and reasonable suspicion. Ornelas v. United States , 116 S. Ct. 1657, 1663 (1996). Although the district court admitted the evidence found i n 4 

### Snoo k’s automobile under the plain view doctrine, it determine d 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 hi s automobile at the time of his arrest. Slip op. at 2. -4- 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 v ehicle fell within the plain view exception to the search warran t requireme nt. As articulated by the Supreme Court in Minnesota v

. 4 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 officer s 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 deny ing 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 Office r Rowe unlawfully entered the vehicle in order to turn off the ignition.

Snook also argues that the search of his automobile conducted b y 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 th e conte xt of vehicle searches, holding that “when a policeman has made a lawful custodial arrest of the

### -5-

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 e xception does not apply in the present case, bec ause he was not an occupant of the automobile at the time of his arrest, as required by Belton , but r ather had just stepped out of the car.

In re sponse, the government maintains that the district cour t properly denied Snook’s motion to suppress the contraband discovered insid e his vehi cle. First, the government argues that Officer Rowe acte d reasonably in entering Snook’s car in order to turn off the ignition

. Citi ng Colorado v. Bertine , 479 U.S. 367, 372 (1987), the governmen t contends that Officer Rowe had an obligation to secure Snook’s vehicle fro m damage or theft. Because Rowe was performing a valid post-arrest duty whe n he observed the marij uana pipe and handgun inside Snook’s automobile, the government argues tha t the plain view exception squarely applies to these two items. Further, the government maintains that the discovery of th e marijuana pipe and ha ndgun 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 th e probable cause exception to the search warrant requirement.
Addressing Snook’s argument that the search of his automobile was no t made incident to his arrest, the government responds that the Belto n bright-line rule prov ides an alternative basis for upholding the district court’ s admission of the contraband. More particularly, the governmen t maintains that Snook was an occupant of his vehicle because he had bee n inside the vehicle immediately prior to the arrest and was standing only
a f ew 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 al so believe the district court did not err in holdin g 5 

### that the evidence was admissib le under the plain view exception to the search warrant requirement. -6- It is well-settled t hat 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 (8t h Cir. 1996). We hold that the search of Snook’s automobile wa s incident to his arrest and that the evidence fou nd pursuant to that search
was admissible on this basis. The fact that Snook had just stepped ou t 5 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 ge t out of the car, “placed them under arrest . . . and split them up int o 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 procee ded to search the passenger compartment of the car. Id . Upo n disco vering a jacket belonging to Belton on the back seat, the office r opened one of the poc kets 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 R iedesel , 987 F.2d at 1389 (warrantless search of passenge r compa rtment of defendant’s automobile was justified as valid searc h 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 (8t h Cir. 1985) (warrantless search of passenger comp artment of defendant’s car immediately after defendant was arrested and placed in police car was a valid search incident to defendant’s arrest).

Inthe present case, Snook had stepped out of his vehicle immediatel y befor e he was arrested by Officer Keenan. Thus, we hold that he was a n occupant of his automobile at the time of his

### -7-

arrest and the warran tless 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.