UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT APR 24 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, No. 23-422 D.C. No. Plaintiff - Appellee, 1:21-cr-00004-TMB-MMS-1 District of Alaska, v. Juneau DUSTIN OLIVER JONES, ORDER
Defendant - Appellant.
Before: BYBEE, FRIEDLAND, and MILLER, Circuit Judges.
The memorandum disposition filed on June 12, 2024 is amended, and the
amended memorandum disposition is filed concurrently with this order. The
petition for panel rehearing is DENIED. NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 24 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-422 D.C. No. Plaintiff - Appellee, 1:21-cr-00004-TMB-MMS-1 v. AMENDED MEMORANDUM*
DUSTIN OLIVER JONES,
Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, District Judge, Presiding
Argued and Submitted May 20, 2024 Anchorage, Alaska
Dustin Jones appeals his convictions for possession with intent to distribute
controlled substances, 21 U.S.C. § 841(a)(1), and being a felon in possession of a
firearm, 18 U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291
and affirm.
1. Jones first challenges the lawfulness of his convictions on the theory that
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. certain evidence of drug and firearm possession should have been suppressed
because it was obtained in violation of the Fourth Amendment. None of his Fourth
Amendment arguments withstands scrutiny.
As a threshold matter, we conclude that Jones’s boat was a vehicle, not a
home, for Fourth Amendment purposes. In conducting this inquiry, we look to
whether the boat was: (1) “readily mobile” such that “it could readily have been
moved beyond the reach of the police”; (2) “subject to extensive regulation and
inspection”; and (3) “the vehicle was so situated that an objective observer would
conclude that it was being used not as a residence, but as a vehicle.” California v.
Carney, 471 U.S. 386, 393 (1985) (citation omitted). Although the boat was
anchored, it was still readily mobile—the boat was located near open waterways,
and an anchor could be raised in less time than it would take for officers to obtain a
warrant. See United States v. Albers, 136 F.3d 670, 673 & n.3 (9th Cir. 1998)
(explaining that a boat’s being on “open waters on a large lake” and not
“permanently moored” weighed in favor of it being a vehicle). It appears that the
boat was not subject to inspection by the State when it was not in operation, see
Alaska Stat. Ann. § 16.05.480, but because it was not permanently moored or
connected to utilities, an objective observer would likely believe that Jones’s boat
was being used as a vehicle, not a residence, see Albers, 136 F.3d at 673 n.3; Carney,
471 U.S. at 394 n.3. Together, these considerations persuade us that Jones’s vessel
2 was a vehicle for Fourth Amendment purposes.1
Our court has not decided what standard must be met to justify entry of a large
vehicle to execute an arrest warrant. But even assuming the standard is as high as
that required to enter a home, that standard was met here. To enter a dwelling for
the purpose of executing an arrest warrant, law enforcement must have “reason to
believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603 (1980). We
have concluded that the requirement of reasonable belief “embodies the same
standard of reasonableness inherent in probable cause.” United States v. Gorman,
314 F.3d 1105, 1111 (9th Cir. 2002). The officers met that standard in this case.
Probable cause requires only a “fair probability” considering the totality of
the circumstances, “not certainty or even a preponderance of the evidence.” United
States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006) (en banc) (citation omitted).
The facts known to the police when they boarded Jones’s boat were enough to
support a fair probability that Jones was on board. They knew that the vessel was
registered to Jones. They had a tip from an identified source confirming that Jones
1 Our decision in United States v. Alfonso, 759 F.2d 728 (9th Cir. 1985), is not to the contrary. Alfonso, which was decided before Carney, involved the search of an individual cabin on a cargo ship subject to search at the border. Id. at 732. Jones’s vessel is more akin to the houseboat in Albers, both in size and in its ability to be used as a private vehicle. Even if “private living quarters” within a large ship “are at least analogous to a private dwelling,” id. at 737–38, that does not guarantee those quarters the same privacy protections as a home, see id. at 738 (applying “the same level of reasonable suspicion” standard required to search the ship more broadly to the search of the living quarters).
3 had been aboard the craft in recent days. Surveillance had revealed that a man had
also recently been receiving visitors on the boat. And when the police arrived, they
found a jet ski tied up alongside the vessel and the bilge pump operating. The district
court found the officers’ testimony about the usual operation of bilge pumps to be
credible and therefore found the running bilge pump to be a “significant fact”
indicating that someone was aboard the boat, and this conclusion was not clearly
erroneous. The possibility that Jones had left the boat or that someone other than
Jones was aboard did not negate probable cause. Cf. United States v. Diaz, 491 F.3d
1074, 1076–78 (9th Cir. 2007). The officers’ entry upon Jones’s boat was therefore
reasonable.
In addition, the knock-and-announce rule does not extend to vehicles, so the
officers’ failure to announce their purpose before boarding the boat did not render
their entry unreasonable. See United States v. Guzman-Padilla, 573 F.3d 865, 889
(9th Cir. 2009).
The officers’ protective sweep of the boat after they had detained Jones was
also reasonable. Law enforcement personnel are permitted to conduct “a quick and
limited search of premises, incident to an arrest and conducted to protect the safety
of police officers or others.” Maryland v. Buie, 494 U.S. 325, 327 (1990). “[T]he
searching officer [must] possess[] a reasonable belief based on specific and
articulable facts that the area to be swept harbors an individual posing a danger to
4 those on the arrest scene.” Id. at 337. The officers arresting Jones possessed this
reasonable belief.
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UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT APR 24 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, No. 23-422 D.C. No. Plaintiff - Appellee, 1:21-cr-00004-TMB-MMS-1 District of Alaska, v. Juneau DUSTIN OLIVER JONES, ORDER
Defendant - Appellant.
Before: BYBEE, FRIEDLAND, and MILLER, Circuit Judges.
The memorandum disposition filed on June 12, 2024 is amended, and the
amended memorandum disposition is filed concurrently with this order. The
petition for panel rehearing is DENIED. NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 24 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-422 D.C. No. Plaintiff - Appellee, 1:21-cr-00004-TMB-MMS-1 v. AMENDED MEMORANDUM*
DUSTIN OLIVER JONES,
Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, District Judge, Presiding
Argued and Submitted May 20, 2024 Anchorage, Alaska
Dustin Jones appeals his convictions for possession with intent to distribute
controlled substances, 21 U.S.C. § 841(a)(1), and being a felon in possession of a
firearm, 18 U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291
and affirm.
1. Jones first challenges the lawfulness of his convictions on the theory that
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. certain evidence of drug and firearm possession should have been suppressed
because it was obtained in violation of the Fourth Amendment. None of his Fourth
Amendment arguments withstands scrutiny.
As a threshold matter, we conclude that Jones’s boat was a vehicle, not a
home, for Fourth Amendment purposes. In conducting this inquiry, we look to
whether the boat was: (1) “readily mobile” such that “it could readily have been
moved beyond the reach of the police”; (2) “subject to extensive regulation and
inspection”; and (3) “the vehicle was so situated that an objective observer would
conclude that it was being used not as a residence, but as a vehicle.” California v.
Carney, 471 U.S. 386, 393 (1985) (citation omitted). Although the boat was
anchored, it was still readily mobile—the boat was located near open waterways,
and an anchor could be raised in less time than it would take for officers to obtain a
warrant. See United States v. Albers, 136 F.3d 670, 673 & n.3 (9th Cir. 1998)
(explaining that a boat’s being on “open waters on a large lake” and not
“permanently moored” weighed in favor of it being a vehicle). It appears that the
boat was not subject to inspection by the State when it was not in operation, see
Alaska Stat. Ann. § 16.05.480, but because it was not permanently moored or
connected to utilities, an objective observer would likely believe that Jones’s boat
was being used as a vehicle, not a residence, see Albers, 136 F.3d at 673 n.3; Carney,
471 U.S. at 394 n.3. Together, these considerations persuade us that Jones’s vessel
2 was a vehicle for Fourth Amendment purposes.1
Our court has not decided what standard must be met to justify entry of a large
vehicle to execute an arrest warrant. But even assuming the standard is as high as
that required to enter a home, that standard was met here. To enter a dwelling for
the purpose of executing an arrest warrant, law enforcement must have “reason to
believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603 (1980). We
have concluded that the requirement of reasonable belief “embodies the same
standard of reasonableness inherent in probable cause.” United States v. Gorman,
314 F.3d 1105, 1111 (9th Cir. 2002). The officers met that standard in this case.
Probable cause requires only a “fair probability” considering the totality of
the circumstances, “not certainty or even a preponderance of the evidence.” United
States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006) (en banc) (citation omitted).
The facts known to the police when they boarded Jones’s boat were enough to
support a fair probability that Jones was on board. They knew that the vessel was
registered to Jones. They had a tip from an identified source confirming that Jones
1 Our decision in United States v. Alfonso, 759 F.2d 728 (9th Cir. 1985), is not to the contrary. Alfonso, which was decided before Carney, involved the search of an individual cabin on a cargo ship subject to search at the border. Id. at 732. Jones’s vessel is more akin to the houseboat in Albers, both in size and in its ability to be used as a private vehicle. Even if “private living quarters” within a large ship “are at least analogous to a private dwelling,” id. at 737–38, that does not guarantee those quarters the same privacy protections as a home, see id. at 738 (applying “the same level of reasonable suspicion” standard required to search the ship more broadly to the search of the living quarters).
3 had been aboard the craft in recent days. Surveillance had revealed that a man had
also recently been receiving visitors on the boat. And when the police arrived, they
found a jet ski tied up alongside the vessel and the bilge pump operating. The district
court found the officers’ testimony about the usual operation of bilge pumps to be
credible and therefore found the running bilge pump to be a “significant fact”
indicating that someone was aboard the boat, and this conclusion was not clearly
erroneous. The possibility that Jones had left the boat or that someone other than
Jones was aboard did not negate probable cause. Cf. United States v. Diaz, 491 F.3d
1074, 1076–78 (9th Cir. 2007). The officers’ entry upon Jones’s boat was therefore
reasonable.
In addition, the knock-and-announce rule does not extend to vehicles, so the
officers’ failure to announce their purpose before boarding the boat did not render
their entry unreasonable. See United States v. Guzman-Padilla, 573 F.3d 865, 889
(9th Cir. 2009).
The officers’ protective sweep of the boat after they had detained Jones was
also reasonable. Law enforcement personnel are permitted to conduct “a quick and
limited search of premises, incident to an arrest and conducted to protect the safety
of police officers or others.” Maryland v. Buie, 494 U.S. 325, 327 (1990). “[T]he
searching officer [must] possess[] a reasonable belief based on specific and
articulable facts that the area to be swept harbors an individual posing a danger to
4 those on the arrest scene.” Id. at 337. The officers arresting Jones possessed this
reasonable belief. Again, multiple men had been seen repeatedly visiting the boat.
When the officers found Jones, he was attempting to conceal himself. These facts
were enough to give rise to a “legitimate concern that other occupants may have
been concealed within.” United States v. Wiga, 662 F.2d 1325, 1333 (9th Cir. 1981).
The officers’ protective sweep was also properly limited. The cabin search
lasted only about “three and a half minutes.” Nothing in the record indicates that the
search was more than cursory. The firearms and evidence of drug use were
apparently in plain view. One of the officers who conducted the sweep testified that
he was careful not to move or open anything, and the district court found this
testimony to be credible. In short, nothing the officers did while conducting a
protective sweep of the vessel for other occupants ran afoul of the Fourth
Amendment.
We therefore conclude that the district court did not err in admitting the
evidence of drug and firearm possession, discovered on Jones’s boat, at Jones’s trial.
2. Jones also challenges the validity of his conviction for being a felon in
possession of a firearm by arguing that 18 U.S.C. § 922(g)(1) violates the Second
Amendment as applied to him. Although Jones forfeited this argument by failing to
raise it before trial as required by Federal Rule of Criminal Procedure 12(b)(3), we
“may consider the defense . . . if the party shows good cause.” Fed. R. Crim.
5 P. 12(c)(3). Jones has shown good cause for failing to raise this Second Amendment
challenge to his indictment prior to the district court’s deadline for pretrial motions.
Up to and until more than a year after that deadline, our precedent foreclosed Jones’s
argument. Cf. United States v. Aguilera-Rios, 769 F.3d 626, 631 (9th Cir. 2014).
By the time that the Supreme Court decided New York State Rifle & Pistol
Association, Inc. v. Bruen, 597 U.S. 1 (2022), opening a new avenue for challenging
our precedent, the deadline had long expired. Because Jones “had no reason to
challenge” the indictment on Second Amendment grounds until after Bruen, he has
shown good cause for not raising the challenge in a pretrial motion due over a year
before Bruen. Aguilera-Rios, 769 F.3d at 630.
We thus address the merits of Jones’s constitutional challenge. As a threshold
matter, the standard of review presents an open question. Typically, constitutional
issues not originally raised at trial are reviewed for plain error. United States v. Chi
Mak, 683 F.3d 1126, 1133 (9th Cir. 2012). But in United States v. Duarte, an en
banc panel of this court, reviewing a Second Amendment challenge to § 922(g)(1)
that was not raised before the district court, “assume[d] without deciding that de
novo review” governed its review of the merits. 137 F.4th 743, 750 (9th Cir. 2025)
6 (en banc) (quoting United States v. Begay, 33 F.4th 1081, 1089 (9th Cir. 2022) (en
banc)), cert. denied, No. 25-425, 2026 WL 135692 (U.S. Jan. 20, 2026).
We follow Duarte’s lead. There, we stated that “under either standard, the
outcome is the same—the district court did not err and § 922(g)(1) is constitutional
as applied to non-violent felons.” Id. Similarly, Jones cannot succeed under either
standard of review. Jones claims that § 922(g)(1) is unconstitutional as applied to
one “whose felony convictions were for driving under the influence.” Because
Duarte categorically establishes that § 922(g)(1) does not violate the Second
Amendment by barring non-violent felons from possessing firearms, id., Jones’s
challenge fails.
AFFIRMED.