Opinion
OPINION
Appeal from the United States District Court for the Southern District of California Napoleon A. Jones, District Judge, Presiding
Argued and Submitted December 5, 2002-Pasadena, California
Filed January 13, 2003 Amended April 24, 2003
Before: Dorothy W. Nelson and Thomas G. Nelson, Circuit Judges, and William W Schwarzer, District Judge.
The Honorable William W Schwarzer, Senior District Judge for the Northern District of California, sitting by designation.
Opinion by Judge Thomas G. Nelson
COUNSEL
Vincent J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.
Patrick K. O'Toole, United States Attorney, San Diego, Cali- fornia, for the plaintiff-appellee.
Jill Burkhardt, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.
ORDER
The Opinion filed January 13, 2003, slip op. 331, and appearing at 315 F.3d 1205, is amended as follows:
1. At slip op. 344, line 4, insert the following footnote after "During their search,":
The officers had lawful consent to search the entire house to look for a dangerous fugitive for whom they had an arrest warrant. They had not yet com- pleted their search. Thus, the officers were lawfully in the room when they found Enslin. Accordingly, Enslin's reliance upon Maryland v. Buie, 494 U.S. 325 (1990), is misplaced. Buie held that an officer must have reasonable suspicion to search previously unsearched areas of a house when the officers were present to execute an arrest warrant and they had already found and arrested the suspect. Id. at 334. In reaching this conclusion, the Supreme Court relied on the fact that the officers had already accomplished what they set out to achieve. Thus, their jus- tification for being in the house (to execute the arrest warrant) had evaporated. Id. at 332-33. In this case, the officers were lawfully in the room when they found Enslin because they had not completed their search. Second, in balancing the Fourth Amendment interests, the Buie Court concluded that entering into previously unsearched rooms was not de minimis. Id. at 333-34. In this case, as we have described above, ordering Enslin to show his hands was a minimal intrusion.
Thus, Enslin's reliance upon cases that require rea- sonable suspicion for a Terry stop is misplaced. SeeUnited States v. Flippin, 924 F.2d 163, 167 (9th Cir.1991) (requiring reasonable suspicion before an offi- cer may forcibly remove a bag from the possession of an occupant during a consent search). These cases do not involve de minimis intrusions into individualliberty.
3. At slip op. 345, footnote 33, line 1, insert "in oral argu- ment" after "Contrary to Enslin's assertion".
With these amendments, the panel has voted unanimously to deny the petition for panel rehearing and the petition for rehearing en banc.
The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for rehearing and the petition for rehearing en banc are DENIED.
OPINION
T.G. NELSON, Circuit Judge:
Bobby Der Enslin appeals his criminal conviction for being a felon in possession of a firearm. He contends that the dis- trict court wrongfully denied his motion to suppress evidence from a warrantless search and evidence obtained after he was seized unlawfully. He further contends that the indictment was fatally flawed because it failed to allege a mens rea for his felon status. We affirm because we conclude that (1) even if the person who voluntarily consented to the search did not have authority to consent, the U.S. marshals appropriately relied upon her apparent authority; (2) the seizure imposed a de minimis obligation upon Enslin to show his hands while the marshals searched the room; and (3) United States v. Miller is controlling authority in this circuit, and it appropriately rejected any mens rea requirement for the felon status element of the felon in possession statute.
18 U.S.C. § § 922(g)(1), 924(a)(2) (2002).
105 F.3d 552 (9th Cir.), cert. denied , 522 U.S. 871 (1997).
I. FACTS AND PROCEDURAL HISTORY
Enslin was truly in the wrong place at the wrong time. Seven U.S. marshals were searching for a fugitive named Mickey Bass to execute an arrest warrant. Relying upon a tip that Bass had frequented John and Shannon Palacios' house, they approached the house dressed in plain clothes.
It is possible that the marshals' guns and badges were visible at their waists. The marshals knew that John and Shannon Palacios resided at the house.
At a subsequent suppression hearing, the marshals testified about the ensuing events. They knocked and identified them- selves to Larry Chance, Shannon Palacios' brother. When Shannon Palacios subsequently joined Chance at the door, they asked her if Bass was there and when she replied that he was not, they requested permission to search the house. Shan- non Palacios gave them consent to search the house: she did not limit her consent to any part of the house or give any indi- cation that she could not consent to their search of any part of the house, although the marshals admitted that she did not give them particularized consent to search the back bedroom where they subsequently found Enslin. The marshals also admitted that they did not tell her that she had a right not to consent or read her the Miranda warnings.
The marshals entered the house and began searching for Bass. Two of them, Deputy Marshals Maddry and Kitts, went down the hallway and into the back bedroom. Although the back bedroom door had a key lock, there is no indication in the record that the door was locked. When the marshals entered the room, Enslin was in bed, apparently having just awakened from sleep. Enslin's hands were concealed under- neath the covers.
Concerned for their safety while they searched the room for Bass, Maddry and Kitts ordered Enslin to show his hands. The record indicates that the marshals likely had their hands on their weapons at the time. When Enslin put his hands in the air and began to sit up, his movement shifted the covers and the marshals could see a gun in the bed next to him. The mar- shals drew their weapons and placed Enslin under arrest. Only later did they learn that Enslin was on parole. He was charged subsequently and convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § § 922(g)(1) and 924(a)(2).
Shannon Palacios testified at the suppression hearing and contradicted some of the marshals' testimony. However, her testimony was confusing and inconsistent, and she was unable to remember many things about the events of that morning. She stated that she did not meet the marshals at the door: they just came into her home. Furthermore, she testified that she did not give consent to search (although she could not remem- ber whether the marshals asked for consent).
During the previous three months, she had rented the back bedroom to a man named Pat Dicker. Shannon Palacios never entered the room when Dicker lived there. However, she was having trouble getting Dicker to leave, so she enlisted the help of Enslin, who stayed in Dicker's room at her request. Enslin had only stayed for a few nights in the back bedroom, and he did not pay rent or have any sort of lease agreement with the Palacios. Dicker slept in the back bedroom as recently as three nights prior to the search. Along with some items belonging to Enslin, the back bedroom contained furniture owned by the Palacios as well as some personal belongings that Dicker had yet to remove. The district court expressed concern over the credibility of Shannon Palacios' testimony.
John Palacios also testified at the suppression hearing. He was in the front bedroom watching television when the mar- shals entered. Despite the fact that the front door was very close to his open bedroom window, he did not hear any con- versation between the marshals and Chance or Shannon Pala- cios until Chance said "cops." When he walked out of his bedroom, the marshals were in the living room.
The district court determined that Shannon Palacios con- sented to the search and that she had authority to do so. According to the court, Enslin did not have a reasonable expectation that Shannon Palacios could not allow others to enter the room because he was staying in a room that con- tained the furniture and belongings of a third party. The court further determined that the gun was in plain view once Enslin moved his hands from under the covers. Therefore, the court refused to suppress the gun. Finally, the court denied Enslin's motion to dismiss the indictment for failure to allege a mensrea requirement for his felon status.
II. JURISDICTION AND STANDARD OF REVIEW
Enslin timely appealed his criminal conviction. Therefore, we have jurisdiction pursuant to 28 U.S.C. § 1291.
We review a district court's refusal to grant a motion to suppress denovo Whether consent to search is voluntary depends upon the totality of the circumstances and is a ques- tion of fact that we review for clear error. However, whether a person has apparent authority to consent is a mixed question of law and fact that we review de novo.
United States v. Jones , 286 F.3d 1146, 1150 (9th Cir. 2002).
Id . at 1150, 1153.
United States v. Reid , 226 F.3d 1020, 1025 (9th Cir. 2000).
We review whether an encounter between a defendant and law enforcement is a seizure de novo as a mixed question oflaw and fact as well. Finally, when a defendant has properly objected, we review the sufficiency of the indictment de novo
United States v. Cormier , 220 F.3d 1103, 1110 (9th Cir. 2000).
United States v. Pernillo-Fuentes , 252 F.3d 1030, 1032 (9th Cir. 2001).
III. DISCUSSION
A. The marshals searched the bedroom pursuant to consent from a resident with apparent authority to consent .
Enslin contends that Shannon Palacios did not voluntarily consent and that, even if she did, she did not have actual or apparent authority to consent to the search of the back bed- room. Therefore, our analysis must proceed through several steps in order to address Enslin's claim on appeal. We will first address whether Shannon Palacios' consent was volun- tary. Next, we will discuss her authority to consent.
1. Enslin has not shown that the district court clearly erred in concluding that Shannon Palacios consented to the search voluntarily .
Consent to search is a well-established exception to the Fourth Amendment's prohibition of warrantless searches of homes. However, the consent must be voluntary, not a mere submission to an assertion of authority. Although the Gov- ernment must show consent, Enslin has a difficult burden to overcome in order to prevail on this appeal because the dis- trict court found that Shannon Palacios voluntarily consented, discounting her testimony to the contrary. The district court is in the best position to make credibility determinations, and Enslin has not shown any reason for us to conclude that the district court erred, let alone that the district court clearly erred, in making this determination. Thus, we conclude that the district court properly found that Shannon Palacios voluntarily consented to the search.
See United States v. Matlock , 415 U.S. 164, 165-66 (1974).
See Reid , 226 F.3d at 1025-26.
Id . at 1025.
See United States v. Gilbert , 774 F.2d 962, 964 (9th Cir. 1985).
Furthermore, the factors that courts evaluate to determine whether consent was voluntary support the district court's conclusion. See Reid , 226 F.3d at 1026-27. The marshals did not have their guns drawn, and Shannon Palacios was not in custody; in fact, she was never arrested. See United States v. Morning , 64 F.3d 531, 533 (9th Cir. 1995) (upholding dis- trict court's consent determination despite the fact that officers did not read the Miranda warnings and did not inform defendant that they could get a search warrant because officers did not draw their guns and the occu- pants were not placed under arrest).
2. Assuming that Enslin could show that the district court erred in concluding that Shannon Palacios had actual authority, she certainly had apparent authority to con- sent to the search
.
Voluntariness alone does not end our inquiry. The Govern- ment must also show that Shannon Palacios had either actual or apparent authority to consent to the search. To establish apparent authority, the Government must show that: (1) the marshals believed an untrue fact that they used to assess Pala- cios' control of the back bedroom; (2) it was objectively rea- sonable for the marshals to believe that the fact was true; and(3) if the fact was true, Palacios would have had actual authority to consent.
See Reid , 226 F.3d at 1025.
Reid , 226 F.3d at 1025.
Assuming Palacios did not have actual authority, the Gov- ernment made the necessary showing to establish that she had apparent authority. The marshals knew that John and Shannon Palacios were the residents of the house. The marshals did not know or have reason to believe that the Palacios rented the back bedroom in the past or that Enslin was staying in the back bedroom. A person who identified herself as Shannon Palacios came to the door in response to their arrival and gave them unlimited permission to search the house. Therefore, even assuming that Shannon Palacios did not have actual authority to consent, it was objectively reasonable for the marshals to rely upon her consent to search the back bedroom.
See id
Enslin relies upon United States v. Reid to argue that just because Shannon Palacios answered the door and appeared to live in the house, does not show that she had apparent author- ity because "the mere fact of access, without more, does not indicate that the access was authorized." However, a close analysis of the facts of Reid shows that Enslin's reliance is misplaced.
Id . (internal quotation marks omitted).
In Reid, "the surrounding circumstances . . . were such that a reasonable person would not presume, without further inquiry, that [the person who answered the door] resided in [the] apartment." The officers knew who resided at the apartment and knew that the person who answered the door was not the resident. The person who answered the door did not know whose car was consistently parked in the space assigned to the apartment: a further indication that the person answering the door did not live in the apartment. Finally, the name of the person who answered the door was not one of the names listed on the lease documents in the officers' posses- sion. In light of these circumstances, theReid court concluded that a reasonable officer would not have believed that the per- son who answered the door resided in the apartment and had authority to consent.
Id
Id . at 1026.
Id . at 1025.
The factual discrepancies present in Reid that should have alerted the officers to a problem with the purported consent to search contrast sharply with the facts of this case. The only circumstance that Enslin can identify to undermine the mar- shals' belief in Shannon Palacios' authority is that the back bedroom had a key lock. However, the record suggests that the door was not locked, and the presence of a key lock alone, without more, is not sufficient to bring this case within the realm of Reid. Therefore, the district court appropriately denied Enslin's motion to suppress the evidence obtained dur- ing the consent search.
See United States v. Fiorillo , 186 F.3d 1136, 1144 (9th Cir. 1999) (holding that consenting party had apparent authority to allow a search of a locked back room when there was no indication prior to the search that the room was leased, the consenting party gave a key to the officials, and there was no sign or other indication on the door to the leased room).
B. The marshals' order to Enslin to show his hands imposed only a de minimis obligation upon him and does not require suppression of the gun that was then in plain view.
Enslin asserts that he was seized without reasonable suspi- cion when the marshals ordered him to show his hands as they entered the back bedroom. Therefore, Enslin contends that the district court should have suppressed the gun that the mar- shals saw when Enslin complied with their order. To address this claim, we must determine whether the marshals' order constituted a seizure under the Fourth Amendment and, if so, whether it was nonetheless reasonable under the circum- stances. We answer both inquiries in the affirmative.
1. The show hands order constituted a seizure under the Fourth Amendment.
[1] The Government argues that the marshals' order to Ens- lin to show his hands did not constitute a seizure pursuant to the Fourth Amendment. We disagree. "The Fourth Amend- ment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest." The appropriate inquiry is whether the marshals' order "in some way restrain[ed]" Enslin's liberty such that a reasonable person under the circumstances would not have felt free to disregard the order. Even if the official interference with an individual's liberty is brief, provided that it is some sort of "meaningful interference . . . with an individual's freedom of movement," it constitutes a seizure.
United States v. Brignoni-Ponce , 422 U.S. 873, 878 (1975).
United States v. Chan-Jimenez , 125 F.3d 1324, 1326 (9th Cir. 1997).
United States v. Jacobsen , 466 U.S. 109, 113 n.5 (1984) (stating that "the 'seizure' of a person within the meaning of the Fourth Amendment [is] meaningful interference, however brief, with an individual's freedom of movement"); see also United States v. Bailey , 628 F.2d 938, 940 (6th Cir. 1980) ("[T]he fourth amendment does not overlook de minimis intru- sions.").
[2] We think that the show hands order was a "meaningful interference" with Enslin's freedom. He had his hands cov- ered and two armed marshals ordered him to reveal his hands. A reasonable person in Enslin's situation would not have felt free to ignore the request of the marshals, who likely had their hands on their weapons when they gave the order. There- fore, the marshals' order to Enslin to show his hands consti- tuted a seizure within the meaning of the Fourth Amendment.
See Chan-Jimenez , 125 F.3d at 1326 (considering fact that officer had his hand on his weapon as an indication that a reasonable person in the defendant's circumstances would not have felt free to leave).
2. The show hands order did not violate the Fourth Amendment because it was not an unreasonablesei-zure .
[3] Our conclusion that the show hands order was a seizure does not end the inquiry, "[f]or the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable."The marshals' order to Enslin to show his hands, although technically a seizure, does not violate the Fourth Amendment because it was not an unreasonable sei- zure under the circumstances. The obligation placed upon Enslin to reveal his hands for officer safety during the search for a fugitive was de minimis and thus constitutionally reason-able.
Skinner v. Ry. Labor Executives' Ass'n , 489 U.S. 602, 619 (1989).
Cf. Michigan v. Summers , 452 U.S. 692, 697-98 (1981) (noting that "some seizures significantly less intrusive than an arrest have withstood scrutiny under the reasonableness standard embodied in the Fourth Amendment" when "the intrusion on the citizen's privacy was so much less severe than that involved in a traditional arrest that the opposing inter- est[ ] . . . in the police officer's safety could support the seizure as reason- able") (internal quotation marks omitted); Fontana v. Haskin , 262 F.3d 871, 880 (9th Cir. 2001) (concluding, pursuant to Fourth Amendment rea- sonableness standard, that "[s]ome bodily intrusions may be . . . deminimis and thus constitutionally reasonable").
[4] Any inquiry into the reasonableness of a seizure requires "a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." In this case, that balance affirmatively favors the Govern- ment's interest in officer safety, leading us to conclude that the marshals' order was constitutional. On Enslin's side of the balance, requiring an individual to reveal his hands does force him to show a part of his person that was otherwise con- cealed. However, the nature and quality of the intrusion are mini- mal.
Graham v. Connor, 490 U.S. 386, 396 (1989) (internal quotation marks omitted).
See Maryland v. Wilson , 519 U.S. 408, 413-15 (1997) (concluding that the change in status resulting from the officer's order to a vehicle pas- senger to exit the vehicle during an otherwise lawful stop is minimal); Pennsylvania v. Mimms , 434 U.S. 106, 111 (1977) (per curiam) (holding that additional intrusion into driver's liberty caused by officer's order to driver to exit a lawfully stopped vehicle was " de minimis "); see also Risev. Oregon , 59 F.3d 1556, 1559 (9th Cir. 1995) (holding, in the penal con- text, that gathering even an individual's genetic information "does not constitute more than a minimal intrusion upon . . . Fourth Amendment interests"). Thus, Enslin's reliance upon cases that require reasonable sus- picion for a Terry stop is misplaced. See United States v. Flippin , 924 F.2d 163, 167 (9th Cir. 1991) (requiring reasonable suspicion before an officer may forcibly remove a bag from the possession of an occupant during a consent search). These cases do not involve de minimis intrusions intoindividual liberty.
[5] On the Government's side of the balance, we have the substantial and important interest in preserving officer safety. The marshals were searching an unfamiliar residence for a fugitive. During their search, they came across an unknown adult male. They knew the man was not the fugitive, and requested that he reveal his hands.
See Wilson , 519 U.S. at 413 ("On the public interest side of the bal- ance, the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or passenger."); Mimms , 434 U.S. at 110 (concluding that the interest in preserving officer safety during a traffic stop was "both legitimate and weighty").
The officers had lawful consent to search the entire house to look for a dangerous fugitive for whom they had an arrest warrant. They had not yet completed their search. Thus, the officers were lawfully in the room when they found Enslin. Accordingly, Enslin's reliance upon Maryland v. Buie, 494 U.S. 325 (1990), is misplaced. held that an officer must have reasonable suspicion to search previously unsearched areas of a house when the officers were present to execute an arrest warrant and they had already found and arrested the suspect. Id. at 334. In reaching this conclusion, the Supreme Court relied on the fact that the officers had already accomplished what they set out to achieve. Thus, their justification for being in the house (to execute the arrest warrant) had evaporated.Id. at 332-33. In this case, the officers were lawfully in the room when they found Enslin because they had not completed their search. Second, in bal- ancing the Fourth Amendment interests, the Buie Court concluded that entering into previously unsearched rooms was not de minimis. Id. at 333-34. In this case, as we have described above, ordering Enslin to show his hands was a minimal intrusion.
In Michigan v. Summers, the Supreme Court held that, dur- ing a house search, "the risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation." Further, in United v. Garcia we held that officers may restrain an indi- vidual by placing him against a wall even during a consent search of a house while the officers completed a protective sweep. Compared to restraining an individual up against a wall during a protective sweep, it is clear that merely requir- ing an individual to show his hands while the marshals com- plete their search of a single room is a less significant intrusion into the individual's liberty.
See Summers , 452 U.S. at 695, 702-03. Although Summers involved a search pursuant to a search warrant rather than a consent search to exe- cute an arrest warrant, much of the analysis remains applicable. It is possi- ble that the danger to officers during a consent search is less than that posed during a search pursuant to a search warrant, but the danger is not eliminated. Additionally, the intrusion into the liberty of the individual in Summers was greater than the intrusion posed by the marshals' request to Enslin to show his hands. See id. (upholding officers' authority to require individual exiting the house at the time officers arrived to execute the war- rant to reenter the house and remain during the search).
997 F.2d 1273 (9th Cir. 1993).
Garcia , 997 F.2d at 1277, 1281-82. Contrary to Enslin's assertion in oral argument, the analysis in Garcia does not rest upon a finding that the officers had probable cause to arrest Garcia when they pushed him against a wall. Rather, the court found that Garcia consented to the search, he "was not unreasonably restrained when he was placed against the wall" during the protective sweep, and he was not arrested (pursuant to probable cause) until the officers saw the gun in plain view during the protective sweep. Id . at 1282.
[6] Therefore, upon conducting the required balancing of interests pursuant to the Fourth Amendment, we conclude that the balance substantially favors the Government's interest in preserving officer safety during a consent search for a fugi- tive. Enslin does have a minimal liberty interest in keeping his hands beneath the covers while the marshals searched the room, just as a driver or passenger in a vehicle has a minimal liberty interest in remaining inside the vehicle during the stop. However, similar to the "mere inconvenience" of being ordered out of the vehicle, being required to show one's hands is simply too small an intrusion into Enslin's liberty to overcome the weighty interest in protecting officer safety. Because the marshals' order to Enslin to show his hands was a constitutionally reasonable seizure, the district court cor- rectly refused to suppress the gun that the marshals saw in plain view after Enslin complied with their order.
Mimms , 434 U.S. at 111.
C. No mens rea is required for the felon status element of the felon in possession statute
Enslin argues that his indictment was fatally flawed for failure to allege a mens rea for the felon status element of 18U.S.C. § § 922(g)(1) and 924(a)(2). However, in United Statesv. Miller, this court held that the knowledge requirement of 18U.S.C. § 924(a) "only applies to the possession element of § 922(g)(1), not to . . . felon status." In an attempt to avoid the clear requirements of precedent, Enslin urges us to call for en banc review of Miller , contending that 's holding should be reconsidered in light of Staples v. United States and United States v. X-Citement Video, Inc. Staples and X-Citement Video implied a knowledge requirement into certain criminal statutes to avoid criminalizing a vast range of other- wise innocent conduct when the defendant would have no rea- son to suspect that the conduct might be problematic. We decline Enslin's invitation to call for en banc review of Miller. The cases upon which relied explicitly consid- ered and rejected, after a thorough analysis, the application of Staples andX-Citement Video that Enslin urges us to adopt. Miller was correctly decided.
Miller , 105 F.3d at 555.
511 U.S. 600 (1994).
513 U.S. 64 (1994).
E.g. , Staples , 511 U.S. at 602 (holding that the National Firearms Act must be read to include a knowledge requirement, not only that a person possessed the firearm, but that the person knew of the characteristics of the weapon that brought it within the statutory definition of a machine gun).
Miller , 105 F.3d at 555 (relying upon United States v. Capps , 77 F.3d 350, 352-53 (10th Cir.), cert. denied , 518 US. 1027 (1996), and United States v. Langley , 62 F.3d 602, 604-08 (4th Cir. 1995) (en banc), cert. denied , 516 U.S. 1083 (1996)).
Attempting to bolster his argument, Enslin relies upon United States v. Wilson for support. However, a thorough analysis of Wilson shows that Enslin cannot garner support from that case. In Wilson, the defendant made a due process argument contending that he had no notice of the statute. In rejecting that contention, the court mentioned in passing that the defendant "has not argued that he did not have knowledge of the actions constituting the offense (i.e., that he was pos- sessing a gun in his car and was subject to an order of protec- tion)." Such a brief assertion, without supporting analysis, does not provide substantial support for Enslin's argument. Further, even if Wilson can be read to directly support Ens- lin's argument, this court has held, under similar factual cir- cumstances to Wilson, that a defendant need not have knowledge that his possession violates the law. Therefore, the district court appropriately refused to dismiss the indict- ment.
159 F.3d 280 (7th Cir. 1998).
Id . at 289.
Id
United States v. Kafka , 222 F.3d 1129, 1131-33 (9th Cir. 2000).
IV. CONCLUSION
The marshals came across Enslin during a constitutionally valid search of the house. The district court appropriately con- cluded that Shannon Palacios' consent was voluntary. Even if Enslin could show that she did not have actual authority to consent, she certainly had apparent authority to consent to the search. When the marshals encountered Enslin and ordered him to show his hands, the order did amount to a seizure under the Fourth Amendment; however, it was a reasonable seizure. Therefore, the district court appropriately refused to suppress the gun the marshals found in plain view when Ens- lin raised his hands. Finally, we decline Enslin's invitation to call for en banc review ofMiller : an indictment need notallege a mens rea for felon status pursuant to 18 U.S.C. § § 922(g)(1) and 924(a)(2).
AFFIRMED.
Although Enslin argues that cases such asMimms and Wilson are inap- plicable because Fourth Amendment jurisprudence recognizes a distinc- tion between the main branch of Fourth Amendment cases and those cases involving vehicles, this argument is overstated. Enslin is correct that Fourth Amendment doctrine has developed particular rules for cases deal- ing with vehicles; however, the differences between the vehicle cases and the main branch of Fourth Amendment jurisprudence are not significant in this context.See Wilson, 519 U.S. at 414 (analyzing a vehicle stop Fourth Amendment question by analogizing to a non-vehicle case, Michi- gan v. Summers). Because the vehicle cases use precisely the same Fourth Amendment balancing test as we use here, the rationale and analysis remain applicable even though the details of the balance may change because of the particular mobile nature of vehicles and an individual's legitimate expectations of privacy within vehicles. See Wilson, 519 U.S.at 413-15; Mimms, 434 U.S. at 108-11.