United States v. Bernard Glenn

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 4, 2011
• Docket: 10-30287
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 04 2011

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-30287

Plaintiff - Appellee, D.C. No. 3:09-cr-05668-RBL-1

v. MEMORANDUM * BERNARD GLENN,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Submitted August 1, 2011 ** Seattle, Washington

Before: NOONAN and M. SMITH, Circuit Judges, and FOGEL, District Judge.***

Bernard Glenn (“Glenn”) appeals the district court’s denial of his motion to

suppress a firearm found on his person. Following the denial of his suppression

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jeremy D. Fogel, District Judge for the U.S. District Court for Northern California, sitting by designation. motion, Glenn was convicted of being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C. §

1291 and we affirm.

We review de novo the denial of a motion to suppress, while reviewing for

clear error the underlying factual findings. United States v. Davis, 530 F.3d 1069,

1077 (9th Cir. 2008).

Following an evidentiary hearing, the district court articulated several bases

for finding that the government had met its burden of showing the gun should not

be suppressed. Each of those grounds was independently sufficient for the police

to search Glenn, and for the court to deny the suppression motion.

In his opening brief, Glenn failed to address several of those grounds, in

particular the district court’s finding that he was subject to a valid probationary

search. “Generally, an issue is waived when the appellant does not specifically and

distinctly argue the issue in his or her opening brief.” United States v. Brooks, 610

F.3d 1186, 1202 (9th Cir. 2010) (internal quotation marks and citation omitted).

Even assuming Glenn had properly raised the probation search issue, the

district court was correct. Probation searches satisfy the demands of the Fourth

Amendment when they are conducted pursuant to a state law that itself satisfies the

Fourth Amendment. Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). The

2 Washington statute in effect at the time–since revised in a manner not relevant

here–required Glenn to submit to a search of his person when there was reasonable

cause to believe he had violated a requirement of his supervised release. See

Wash. Rev. Code § 9.94A.631 (2003). This court has confirmed that the

Washington statute allowing probation searches based on reasonable cause satisfies

the reasonableness standard of the Fourth Amendment. United States v. Conway,

122 F.3d 841, 842 (9th Cir. 1997).

The police officer who searched Glenn knew Glenn was under supervised

release. Moreover, the officer had reasonable cause to believe Glenn was in

violation of several of the conditions of his supervised release, including (1)

constructive possession of a controlled substance, (2) frequenting places where

controlled substances were illegally sold, (3) associating with persons engaged in

criminal activity, or those convicted of a felony, and (4) using alcohol or other

intoxicants. The officer’s search was reasonable under the Fourth Amendment.

The district court did not err in denying Glenn’s motion to suppress the firearm.

AFFIRMED.