UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-4427


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

TONY MAJETTE,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.     James C. Turk, Senior
District Judge. (7:07-cr-00010-jct-1)


Argued:   January 30, 2009                 Decided:   April 30, 2009


Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Larry W. Shelton, Federal Public Defender, Roanoke,
Virginia, for Appellant.    Jean Barrett Hudson, OFFICE OF THE
UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.
ON BRIEF: Christine Madeleine Spurell, Research and Writing
Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke,
Virginia, for Appellant. Julia C. Dudley, Acting United States
Attorney, R. Andrew Bassford, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          An    evidence-producing           automobile     search    incident   to

the arrest of Tony Majette for a driving offense turns out to be

unlawful under the Supreme Court’s new opinion in Arizona v.

Gant, 

___, No. 07-542 (Apr. 21, 2009).                      We therefore

vacate   Majette’s      conviction      for    possession      with    intent    to

distribute cocaine base.



                                        I.

          Majette was stopped by a Blacksburg, Virginia, police

officer on June 5, 2006, for driving a car (a Cadillac) with

impermissibly dark window tint.              When Officer Michael Czernicki,

who made the stop, asked Majette for his driver’s license and

registration,    Majette     admitted         that    his    license    had     been

suspended.     Officer Czernicki then checked with his dispatcher,

who confirmed the license suspension and reported that Majette

had three prior adult convictions for driving under a suspended

license and fifteen prior suspensions of his driving privileges.

Based on this information, Officer Czernicki decided to arrest

Majette rather than issue a summons.                   The officer handcuffed

Majette and secured him in the back seat of the patrol car.

Thereafter, Officer Czernicki searched the passenger compartment

of the stopped Cadillac.         During the search he found two baggies

containing    cocaine    base,    one    (with       20.7   grams)    between    the

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passenger      seat      and    passenger          door       and    one    (with       2.2   grams)

behind the passenger seat.                    The officer also found a Mason jar

behind the driver seat that contained a tiny amount of a leafy

substance that smelled like marijuana.                                Finally, the officer

found a set of digital scales underneath the passenger seat.

              On February 22, 2007, a federal grand jury indicted

Majette on one count of possession with intent to distribute

five grams or more of cocaine base, in violation of 21 U.S.C.

§ 841(a)(1) and § 841(b)(1)(B).                          Later, on October 23, 2007,

Majette filed a motion to suppress the evidence (the cocaine

base    and    scales)      seized          during      the     search      of    the     Cadillac.

Because      Majette      was    detained          for    the       misdemeanor         offense      of

driving       on    a    suspended          license,          he     claimed       that       Officer

Czernicki was required under Virginia Code § 19.2-74(A)(1) to

issue    a    summons      rather      than     place         him    under       arrest.        Thus,

according      to   Majette,          the    car       search       was    not    incident      to    a

lawful       arrest.           The     district          court       first       concluded      that

Majette’s      arrest      was       proper    under       § 19.2-74(A)(1)’s              exception

that authorizes an arrest when the officer reasonably believes

the person detained is likely to disregard a summons.                                     The court

then held “the search of the Cadillac was lawful, incident to

Majette’s valid arrest.”                J.A. 68.          The court relied on New York

v. Belton, 

 (1981), which it read broadly -- as did

many    courts,         including       ours       --    to     allow       a    vehicle      search

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incident to the arrest of an occupant, even when the arrested

occupant no longer had access to the passenger compartment.                           See

e.g., United States v. Coley, No. 92-5061, 

, at 2-4 (4th Cir. Dec. 17, 1992) (concluding that New York

v. Belton allowed police to search a defendant’s vehicle after

he was lawfully arrested during a traffic stop, handcuffed, and

placed in a patrol car.).

             Majette went to trial, and the government introduced

the evidence of the items (the drugs and scales) discovered in

the search of the Cadillac.               The jury convicted Majette, and he

was    sentenced      to     120   months      in    prison.        Majette     appeals,

claiming,     among        other   things,        that    the    search    of   the   car

violated the Fourth Amendment.



                                              II.

            During oral argument on January 30, 2009, it was noted

that this appeal might be controlled by the impending decision

of    the   Supreme     Court      in    Arizona     v.    Gant,     No.    07-542,    an

automobile search case with facts strikingly similar to those

presented here.        Gant was decided on April 21, 2009, and it does

indeed control.

             In Gant the Court clarified that New York v. Belton’s

(vehicle     search)         scope      was    limited      by     the     “safety    and

evidentiary     justifications           underlying”        the    “reaching-distance

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rule” of Chimel v. California, 

 (1969).                                  Gant, 

___,       ___,    No.     07-542,         slip   op.    at   1   (Apr.     21,    2009).

“Under Chimel,” the Court said, “police may search incident to

arrest only the space within an arrestee’s ‘immediate control,’

meaning ‘the area from within which he might gain possession of

a weapon or destructible evidence.’”                            Id. (quoting Chimel, 395

U.S.    at    763).         With      this    explanation,        the     Court     held       “that

Belton does not authorize a vehicle search incident to a recent

occupant’s arrest after the arrestee has been secured and cannot

access the interior of the vehicle.”                        Id., slip op. at 1-2.               The

Court     “also          conclude[d]         that       circumstances       unique        to     the

automobile context justify a search incident to arrest when it

is reasonable to believe that evidence of the offense of arrest

might be found in the vehicle.”                      Id., slip op. at 2.

               In this case Majette was handcuffed and secured in the

patrol       car    when    Officer        Czernicki       searched       the     Cadillac       and

found the drugs.            Thus, the Cadillac’s passenger compartment was

not “within [Majette’s] reach at the time of the search.”                                       Id.,

slip op. at 9.               Moreover, the officer would not have had a

reasonable basis to believe he would find evidence of Majette’s

license       suspension         --    the     offense      of    arrest     --    within        the

Cadillac’s passenger compartment.                          See, id., slip op. at 10.

These circumstances, considered in light of Gant, require us to

hold    that       the    search      of     the    Cadillac     was      unreasonable.           We

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therefore    vacate   Majette’s   conviction     and    remand   for   a   new

trial, if the government chooses to have one.



                                      III.

             Majette raises other issues in this appeal, claiming

(1)   that   the   government   did    not   provide   reasonable   pretrial

notice of its intent to offer evidence of other crimes or wrongs

under Federal Rule of Evidence 404(b); (2) that the district

court erred in its response to a jury question on the issue of

intent to distribute a controlled substance; and (3) that the

evidence was insufficient to sustain his conviction.             Because we

have concluded that a new trial is warranted due to the unlawful

vehicle search, we decline for prudential reasons to consider

the remaining issues.

                                                       VACATED AND REMANDED




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