UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4149


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

ROBERT MEGGINSON,

                  Defendant - Appellant.


     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 07-6309)


Submitted:    July 29, 2009                 Decided:   August 12, 2009


Before TRAXLER, Chief Judge, and NIEMEYER and GREGORY, Circuit
Judges.


Vacated and remanded by unpublished per curiam opinion.


Aaron E. Michel, Charlotte, North Carolina, for Appellant.
Gretchen C.F. Shappert, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                Robert Megginson entered a conditional plea of guilty

to possession of a firearm by a convicted felon, in violation of

18 U.S.C. § 922(g) (2006), reserving the right to challenge the

district court’s denial of his motion to suppress.                                      Megginson

was sentenced to 110 months in prison.                          On appeal, we affirmed

the district court’s denial of Megginson’s motion to suppress

and   his   conviction,        because       the       prevailing          law    permitted         an

officer who had made a lawful custodial arrest of an occupant of

a vehicle to search the passenger compartment of that vehicle.

See New York v. Belton, 

 (1981); Thornton v. United

States, 

 (2004).                On May 18, 2009, the Supreme Court

granted Megginson’s petition for a writ of certiorari, vacated

this court’s judgment, and remanded to this court for further

consideration         in   light    of     its       recent    decision          in    Arizona     v.

Gant,     129    S.    Ct.   1710    (2009),           which    addressed             the    search-

incident-to-arrest exception to the warrant requirement of the

Fourth Amendment.            Finding that the vehicle search incident to

Megginson’s arrest was unreasonable under Gant, we vacate the

district court’s judgment and remand for further proceedings.

                In Gant, the Supreme Court rejected the reading of

Belton that        predominated       in     the       courts    of    appeals,             that   the

Fourth Amendment “allow[s] a vehicle search incident to arrest

of    a   recent      occupant      even    if        there    is     no    possibility            the

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arrestee could gain access to the vehicle at the time of the

search.”     Gant, 129 S. Ct. at 1718.                    The Court held instead that

“[p]olice may search a vehicle incident to a recent occupant’s

arrest only if the arrestee is within reaching distance of the

passenger    compartment          at        the   time    of    the   search   or     it    is

reasonable       to    believe        the    vehicle      contains     evidence      of    the

offense of arrest.”             Id. at 1723.             The Court further explained

that “[w]hen these justifications are absent, a search of an

arrestee’s vehicle will be unreasonable unless police obtain a

warrant     or        show     that     another         exception      to    the     warrant

requirement applies.”            Id. at 1723-24.

            In light of the Supreme Court’s decision in Gant, the

facts of this case do not justify the warrantless search of

Megginson’s car incident to his arrest.                         Therefore, the firearm

seized     from       the    vehicle        should       be    suppressed.         Megginson

acknowledged to Officer Crooks that he was aware of the warrants

against him.          Megginson was cooperative, and was not engaged in

other criminal behavior at the time of the stop.                             Crooks asked

Megginson to step out of the car, he complied, she handcuffed

him, searched his person, and then placed him in the back of the

patrol    car.         After    Megginson         was     removed     from   the    car    and

secured, Crooks and another officer found and searched a bag in

the back seat of Megginson’s car.                     When asked at the suppression



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hearing the basis for the search, Officer Crooks responded “for

officer’s safety reasons and search incident to arrest.”

            Because    Megginson      was     handcuffed       and   placed    in   the

police    vehicle     before    the    search,      he    was    not   in     reaching

distance of the passenger compartment, and the contents of the

bag could not have posed a threat to the officers’ safety.                          Nor

did   the   officers     have    reason       to   believe      that   the    vehicle

contained   evidence     of    the    offense      of    the   domestic     abuse   for

which    Megginson    was     stopped.        Accordingly,       under      Gant,   the

search incident to arrest was not justified, and the officers

were required to obtain a warrant or show that another exception

to the warrant requirement applies.                 No exception validates the

search of Megginson’s vehicle.

            Accordingly, we vacate the judgment of the district

court and remand for further proceedings.                  We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                                          VACATED AND
                                                                             REMANDED




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