Summary
affirming lower court decision finding warrantless use of ultraviolet light was justified as search incident to lawful arrest and “[a]ssuming without deciding that the black-light test of [defendant's] hands was a search within the meaning of the Fourth Amendment”
Summary of this case from United States v. ComaOpinion
Submitted, Anchorage, Alaska June 25, 2012
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 32.1)
Appeal from the United States District Court for the District of Alaska. D.C. No. 3:09-cr-00027-TMB-2. Timothy M. Burgess, District Judge, Presiding.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Craig Michael Warner, Assistant U.S. Attorney, U.S. DEPARTMENT OF JUSTICE, Federal Building and U.S. Courthouse, Anchorage, AK.
For ISAIAS MARTINEZ, Defendant - Appellant: Jane Martinez, Law Office of Jane B. Martinez, Anchorage, AK.
Before: GOODWIN, W. FLETCHER, and M. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Defendant-Appellant Isaias Martinez appeals from his conviction and sentence for one count of drug conspiracy and one count of attempted possession of a controlled substance with intent to distribute. We affirm in part and reverse in part.
The district court did not err in denying Martinez's motion to suppress evidence obtained during a warrantless black-light " search" of his hands. Assuming without deciding that the black-light test of Martinez's hands was a search within the meaning of the Fourth Amendment, see United States v. Baron, 860 F.2d 911, 918 (9th Cir. 1988), the search was justified as incident to a lawful arrest. Law enforcement officers had probable cause to arrest Martinez prior to conducting the search because the totality of the circumstances known to them at that time would have led a prudent person to conclude that Martinez was probably involved in a conspiracy to possess and distribute illegal drugs. See id. at 917. Various facts indicated a high likelihood of drug dealing, and Martinez was found in a small apartment with two other men at a time when " a dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him." Maryland v. Pringle, 540 U.S. 366, 373, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003).
The district court erred in refusing to sentence Martinez in accordance with the ameliorative mandatory minimum sentences contained in the Fair Sentencing Act (" FSA" ). See Dorsey v. United States, 567 U.S. __, 132 S.Ct. 2321, 183 L.Ed.2d 250, 2012 WL 2344463, at *14 (2012). The Supreme Court recently held that the lower mandatory minimums of the FSA apply to defendants like Martinez who committed crack cocaine offenses prior to the effective date of the FSA but were not sentenced until after that date. Id. On remand, the district court should resentence Martinez in accordance with the FSA.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.