FILED
                           NOT FOR PUBLICATION                                 FEB 23 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-30117

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00146-LRS-1

  v.
                                                 MEMORANDUM*
DALLAS C. HERMAN,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Eastern District of Washington
                  Lonny R. Suko, Chief District Judge, Presiding

                      Argued and Submitted February 8, 2011
                               Seattle, Washington

Before: B. FLETCHER, PAEZ, and IKUTA, Circuit Judges.



       After entering a conditional plea of guilty to one count of possession with

intent to distribute 50 grams or more of a methamphetamine mixture in violation of

21 U.S.C. § 841(a)(1), Dallas Herman appeals the district court’s denial of his



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
motion to suppress evidence. Herman argues that the court’s factual findings were

clearly erroneous because the court credited inconsistent testimony by the arresting

officer, Trooper Walker. Herman also argues that the search of his car was illegal

under the Fourth Amendment in light of Arizona v. Gant, 

(2009).

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      “A district court's denial of a motion to suppress is reviewed de novo and its

factual findings for clear error.” United States v. Jennen, 

, 597 (9th

Cir. 2010). Here, the district court did not clearly err in crediting the testimony of

Trooper Walker. There were some inconsistencies between Walker’s two reports

regarding his subjective reasons for the stop, search, and arrest and some internal

inconsistencies in Walker’s testimony about the timing of Herman’s formal arrest.

Walker’s testimony was consistent, however, regarding Herman’s erratic driving,

indications that Herman was intoxicated, and Herman’s evasive behavior when

asked about weapons. We give special deference to the district court's credibility

determinations. United States v. Haswood, 

, 1028 (9th Cir. 2003).

Here, we cannot conclude that, in light of all the evidence, the trial court reached a

credibility decision that falls outside “the permissible choices the court could have

made.” United States v. Hinkson, 

, 1261 (9th Cir. 2009) (en banc).




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      The district court properly ruled that the search of Herman’s car did not

violate the Fourth Amendment. First, Herman does not contest the validity of the

traffic stop. Second, we conclude that Walker’s observation that Herman was

intoxicated together with Herman’s evasive movements when asked about

weapons created reasonable suspicion that Herman might be armed and dangerous,

thus justifying Walker in ordering Herman out of the car and performing a pat

down frisk. United States v. Hartz, 

, 1018 (9th Cir. 2006). We also

conclude that the scope of the frisk did not exceed constitutional limits. See 

agree with the district court that Trooper Walker had probable

cause to search Herman’s car. “Probable cause to search is evaluated in light of the

totality of the circumstances.” United States v. Pinela-Hernandez, 

,

978 (9th Cir. 2001). We conclude that the residue found on the spoon discovered

in Herman’s pocket, together with all of Trooper Walker’s observations regarding

Herman’s appearance and behavior, created probable cause to search the car.

Thus, the search was justified under the automobile exception. United States v.

Ross, 

, 809 (1982) (holding that a search of an automobile is not

unreasonable if based on facts that would justify the issuance of a warrant, even

though a warrant has not actually been obtained).




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      Because the government need not justify the search of Herman’s vehicle as

incident to a valid arrest, Gant has no application here. We conclude, however,

that even as a search incident to arrest, the search of the vehicle was proper

because it was reasonable to believe that evidence of the crimes of

arrest—possession of methamphetamine and driving under the influence of

narcotics—might be found in the car. See 

.

      AFFIRMED




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